This post, written by Robert Palmer Q.C. of Monckton Chambers, discusses the first Judicial treatment of the EU (Withdrawal Agreement) Act 2020 and the EU (Future Relationship) Act 2020 in Polakowski & others v Westminster Magistrates’ Court [2021] EWHC 53 (Admin).
In Polakowski & others v Westminster Magistrates’ Court [2021] EWHC 53 (Admin), the Divisional Court handed down the first judgment on the operation of the European Union (Withdrawal Agreement) Act 2020 (“EUWAA”) and the European Union (Future Relationship) Act 2020 (“EUFRA”), barely over a fortnight since the latter received Royal Assent.
It is perhaps unsurprising that the first substantive judgment since the end of the Transition Period on the operation of EU Relations Law should be concerned with extradition: cases concerned with the liberty of the subject jump to the head of the queue. Following a hearing on 15 January 2021, the Divisional Court gave judgment on 20 January 2021. It concerned five applications for writs of habeas corpus. (The applications in fact proceeded by way of application for judicial review, the Court having determined that applications for habeas corpus were inappropriate where detention had been authorised by an order of the court.)
Each applicant had been arrested pursuant to a European Arrest Warrant (“EAW”). Each challenged the lawfulness of their detention and proposed extradition on the grounds that following the end of the Transition Period, there was no longer any basis in international law for their arrest and surrender.
The applicants had argued that the legal basis for their arrest and surrender had previously been contained in an EU law instrument. However, they said, when the UK ceased to be treated as a Member State at 11pm on 31 December 2020 the legal basis fell away, because there was no express provision in the Withdrawal Agreement to the effect that the UK would continue to be treated as a Member State for the purposes of the relevant provisions of EU law concerning the EAW system beyond the end of the Transition Period. Without being treated as such, the EAW system could not apply to persons arrested in the UK, as it concerned only those arrested and surrendered “by another Member State”.
The applicants’ argument was roundly rejected by the Court: the basis for their detention and potential extradition remained in domestic law, having been expressly reserved in relation to persons arrested under a EAW before 11pm on 31 December 2020. The applicants’ argument was based upon an incomplete and inaccurate reading of the relevant legislative provisions giving effect to the Withdrawal Agreement, as well as of the Withdrawal Agreement itself. It is not necessary to summarise here the detail of the provisions preserving the effect of such warrants post-Implementation Period: extradition practitioners will find all necessary detail in the comprehensive judgment of the Court. But there are points of wider application, which provide a reminder for all of the approach now to be adopted to the determination of rights and obligations formerly conferred or imposed by EU law.
Most importantly, the correct starting point for the analysis was in relevant domestic legislation – not any provision of EU law, nor any unincorporated international agreement between the UK and the EU, which was not part of UK domestic law (save to the extent that it is specifically incorporated by statute). Since 11pm on 31 December 2020, EU law has effect in the UK only insofar as incorporated into domestic law by EUWAA (as amended) or other domestic legislation. As the Court stated: “[t]hese developments make it even more important that any legal question involving rights or obligations said to be derived from EU law should now be approached in the first instance through the lens of domestic law.”
Starting from that position, there was no dispute that all five applicants had been properly arrested and remanded in custody (or placed on conditional bail) pursuant to the Extradition Act 2003. There was nothing in the Act curtailing its effect from 11pm on 31 December 2020, or requiring them to be discharged if not surrendered before the stroke of 11pm on that date. Nor did those powers depend on the continued applicability of EU law or any international agreement. To the contrary, a series of (domestic) statutory instruments had made plain that the system was intended to continue to operate in respect of those arrested before that time. And although EUFRA had amended the Extradition Act in certain respects, transitional provisions made clear that those amendments did not apply to those arrested before that time.
The applicants’ misreading of the domestic law regime would have been enough to dispose of the applications. But the Court went on to consider the international law arguments as well. Importantly for wider purposes, the central plank of the applicants’ argument was that the relevant EU law instrument could not apply to or in the UK after 11pm on 31 December 2020 because, from that time onwards, the UK was neither an EU Member State, nor to be treated as if it were. The Court made clear that this was simply incorrect. Article 7(1) of the Withdrawal Agreement expressly provides that for the purposes of that Agreement, “all references to Member States and competent authorities of Member States in provisions of Union law made applicable by this Agreement shall be understood as including the United Kingdom and its competent authorities”, except in the specific context of (in summary) nomination, election or appointment to EU institutions, bodies, offices, agencies and expert groups, as well as participation in their meetings and decision-making.
The applicants had argued that this was qualified by Articles 127 and 128 of the Withdrawal Agreement, which confined the operation of Article 7 to the Transition Period alone. But that was wrong: to the contrary, they simply reaffirmed that Article 7 also applied in the Transition Period. Article 7 itself is not time-limited. Since Article 62 of the Withdrawal Agreement made provision for the EAW system to apply to “live” cases (i.e. those arrested before the end of the Transition Period), the relevant EU law instruments would continue to apply indefinitely to that class of cases. Indeed, as applicants were constrained to accept in written submissions after the end of the hearing, Article 185 of the Withdrawal Agreement made clear that Article 62 entered into force at the end of the Transition Period, which was inconsistent with any suggestion that it applied only during the Transition Period itself.
The result was that the Divisional Court refused permission to apply for judicial review – but gave permission for its judgment to be cited, having regard to the significance of the point it had decided.
This is unlikely to be the first time that the rabbit warren of domestic legislation implementing the Withdrawal Agreement and the Trade and Co-operation Agreement (“TCA”) trips up the unwary. The lasting point to take away, if nothing else, is to begin with consideration of that legislation, before expending too much energy in seeking to identify lacunae in the international agreements between the UK and the EU.
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