European court asked if legal basis for surrender of people from Ireland to UK still holds

The Supreme Court wants the Court of Justice of the EU to decide important legal issues concerning whether there is any legal basis, post-Brexit, for the continuance of the European Arrest Warrant system for the surrender of people between Ireland and the UK.

The seven judge court made the referral on Tuesday in appeals by two men opposing surrender to the UK on grounds there is no legal basis for the continuance of the EAW system between here and the UK.

The Chief Justice, Mr Justice Frank Clarke, said it is important the “maximum clarity” be brought to these issues as soon as possible because of their potential to affect many similar cases.

Both men claim the EU lacks competence, either under the agreement for the UK’s withdrawal from the EU (the WA agreement), or the trade and co-operation agreement (the TCA agreement) between the EU and the UK, to bind Ireland to measures within the Area for Security, Freedom and Justice (ASFJ) because Ireland has not exercised an opt-in to the ASFJ. Ireland’s failure to opt in means the measures relating to surrender have no valid application to Ireland, they claim.

The surrender of one appellant is being sought to serve an eight year sentence while the other is facing prosecution for 14 offences.

Both sought a referral to the CJEU while the State opposed any referral.

Giving the court’s judgment, the Chief Justice said the UK’s departure from the EU has created many legal issues, including concerning the EAW system between states remaining in the EU and the UK.

Problems

There are potentially particular problems for Ireland in that context, he said. The first is the purely practical consideration, due to proximity, of many requests for surrender under the EWA system between Ireland and the UK.

Of particular relevance to these appeals is the fact Ireland is subject to a Protocol, No 21, annexed to the EU treaties, providing for the reservation of sovereignty by Ireland in respect of the ASFJ, he outlined.

Protocol 21 provides a mechanism whereby Ireland can opt in to any measures within the ASFJ, either when the measure is being considered or at a later stage. Where Ireland does not opt in at the time of the adoption of the relevant measure, it has no right to participate in the adoption process.

The WA and TCA agreements provide for continuance of the EAW system and it was accepted Ireland did not exercise an opt in under protocol 21 in relation to either agreement.

The men’s core claim was the EU had no competence to bind Ireland, in either agreement, to measures within the ASFJ when Ireland had not exercised such an opt in.

Other issues included whether those European law issues properly arose in these proceedings as both men had sought their release under Article 40 of the Constitution on the basis they are unlawfully detained under the EAW warrants because, they alleged, there was no legal basis for the continuance of the EAW system between the UK and Ireland.

Raised

The Chief Justice was satisfied EU legal issues could be raised in both appeals.

As a matter of Irish law, the questions of EU law potentially arising are “crucial” to the Supreme Court’s final decision on both appeals, he said.

The validity of the legal basis of the EAW regime between Ireland and the UK rests on whether the WA and/or TCA agreements bind Ireland to the continuance of the regime in respect of the UK, he said. If they do bind Ireland, Ireland was entitled, and obliged by EU law, to adopt appropriate measures extending the EAW regime to the UK as a, since, third country outside the EU. If the agreements do not bind Ireland, there was no proper legal basis for the men’s detention.

The court is obliged to refer questions concerning these matters to the CJEU, he concluded.

The wording of the reference will be finalised after the court receives observations from the sides, to be submitted by July 28th.