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ADMINISTRATIVE COURT REJECTS LEGAL CHALLENGE TO GOVERNMENT'S PROPOSAL TO RE-JOIN EUROPEAN ARREST WARRANT

Posted by: Gherson Extradition

Wheeler v The Office of The Prime Minister and the Secretary of State for the Home Department [2014] EWHC 3815 (Admin)

There were chaotic scenes in the House of Commons on 10 November 2014 when the Government's long-promised vote on the European Arrest Warrant ("EAW") was revealed to in fact be a vote on 11 other EU Police and Criminal Justice measures which the Government intends to re-join prior to the 1 December 2014 deadline agreed under the terms of the Treaty of Lisbon. There was anger on both sides of the House at the lack of a specific vote on re-joining the controversial scheme. In the end, despite criticism, the motion passed with a majority of 426 votes.

Meanwhile, Stuart Wheeler, a major donor to UKIP and party treasurer, launched a legal challenge to the Government's plans to opt back into the European Arrest Warrant. The application for judicial review focussed on the interplay between the Government's proposed notification under Article 10 of Protocol 36 to the Treaty on the Functioning of the European Union ("the TFEU") and the European Union Act 2011 ("the 2011 Act").

On 14 November 2014 the Administrative Court, which consisted of the President of the Queen's Bench Division, Sir Brian Leveson, Mr Justice Jay and Mr Justice Lewis, unanimously refused permission to apply for judicial review.

Wheeler's lawyers advanced two grounds before the Administrative Court. First, that the Government was precluded from exercising its opt-in pursuant to Article 10 of the TFEU in the absence of a referendum as required under the 2011 Act. Second, that there was a legitimate expectation of a specific parliamentary vote on the issue of the EAW and, in the absence of this; the Government could not exercise its opt-in.

The court dismissed all the claimant's arguments without hesitation. It could find no possible basis for reading a requirement for a referendum in these circumstances into the 2011 Act. Nor could the court accept that any of the Government's public promises regarding a vote could be regarded as creating a 'legitimate expectation'. Furthermore, even if there had been a legitimate expectation, enforcement of it would amount to a breach of Article 9 of the Bill of Rights 1689 and also the law of Parliamentary privilege. A decision in the terms sought by the Claimant would run contrary to the proper constitutional principle of the separation of powers.

The decision of the Administrative Court appears to have conclusively closed down this last-ditch attempt by euro-sceptics to stymie the Government's attempt to re-join the EAW. This, coupled with substantial cross-party support, all but guarantees the UK's future participation in the EAW. Nevertheless the measure will doubtless remain controversial and it is likely to remain a focal point for argument over both extradition and the UK's membership of the EU.

©Gherson 2014

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