The Supreme Court has proposed referring questions to the Court of Justice of the European Union (CJEU) in two challenges to the legal basis for surrendering people from Ireland to the United Kingdom under European Arrest Warrants (EAWs).
In a judgment delivered on 20 July 2021, Chief Justice Clarke said the answers were not clear enough for the Supreme Court to decide without a reference. The proposed questions concern whether the Withdrawal Agreement and the EU-UK Trade and Cooperation Agreement could bind Ireland to EAW arrangements without Ireland opting in under Protocol No. 21.
The appeals were brought by Hasnain Saqlain and Salman Shahzad, who were detained in Ireland in connection with UK EAWs. Shahzad’s warrant sought his surrender to serve an eight-year prison sentence. Saqlain’s warrant sought his surrender for prosecution on 14 offences. Those are the purposes stated in the judgment; it does not determine the underlying criminal allegations.
Both men had challenged their detention under Article 40 of the Constitution. The High Court rejected their challenges. The Supreme Court held that, in the unusual circumstances of these cases, it was appropriate to consider the EU law issues in both appeals, even though Saqlain could raise them in his still-pending surrender proceedings and Shahzad had not raised his argument during his earlier surrender hearing. The court did not decide that their detention was unlawful.
The central issue was whether EU agreements concerning the UK’s departure and future relationship with the EU could continue EAW arrangements involving Ireland, despite Ireland not opting in to measures in the Area of Freedom, Security and Justice. The State argued that the surrender provisions were incidental to the broader purposes of the agreements. The appellants argued that the EU could not bind Ireland to those provisions without an opt-in.
The Supreme Court said it could not safely conclude that the EU’s authority to bind Ireland in those circumstances was sufficiently clear. It identified questions that could matter to the analysis, including that the agreements continued a surrender arrangement Ireland had previously accepted and that the Withdrawal Agreement and Trade and Cooperation Agreement rested on different legal bases.
The court proposed separate CJEU questions about the two agreements. It directed that a draft reference be submitted to the parties by 22 July 2021, with observations due by 28 July. The final wording remained for the Supreme Court to settle after considering those observations. The court also proposed asking the CJEU to use its urgent preliminary ruling procedure because both appellants were in prison.
The judgment did not answer the EU law questions or finally resolve the lawfulness of either man’s detention. It set out a proposed referral process; the final reference was still to be settled.