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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> CRAIG, PETITION OF JAMES CRAIG AGAINST LORD KEEN OF ELIE QC, ADVOCATE GENERAL FOR SCOTLAND AND THE SCOTTISH MINISTERS FOR JUDICIAL REVIEW [2018] ScotCS CSOH_117 (12 December 2018)
URL: http://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSOH_117.html
Cite as: 2018 GWD 40-484, 2019 SC 230, 2019 SLT 1, [2018] ScotCS CSOH_117, [2018] COSH 117, [2018] CSOH 117
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OUTER HOUSE, COURT OF SESSION
[2018] CSOH 117
P220/18
OPINION OF LORD MALCOLM
in the Petition of
JAMES CRAIG
Petitioner
against
LORD KEEN OF ELIE QC, ADVOCATE GENERAL FOR SCOTLAND,
as representative of the UK government in Scotland
First Respondent
and
THE SCOTTISH MINISTERS
Second Respondents
for judicial review of decisions of the UK and Scottish governments concerning the
extradition forum bar provisions of section 50 of, and schedule 20 to, the Crime and Courts
Act 2013
Petitioner: O’Neill QC, Mackintosh; Balfour + Manson LLP
First Respondent: Webster QC; Office of the Advocate General
Second Respondents: Johnston QC, O’Neill (sol adv); Scottish Government Legal Directorate
12 December 2018
[1] At the heart of this petition for judicial review is a complaint that the UK government
has failed to commence in Scotland the extradition forum bar provisions in section 50 of, and
schedule 20 to, the Crime and Courts Act 2013 which have been in force in the rest of the UK
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2
since October 2013. The petitioner is the subject of an extradition request by the government
of the USA, which he is currently challenging in Edinburgh Sheriff Court. He considers that
he could mount an additional defence under and in terms of the forum bar provisions were
they to apply in Scotland. The underlying aim of the provisions is to prevent extradition if
the alleged offence can be fairly and effectively tried in the UK and it is not in the interests of
paragraph 22. The relatively complicated provisions are discussed in some detail in Scott v
The Government of the USA [2018] EWHC 2021 (Admin) at paragraphs 23-35.
The background to the forum bar provisions in the 2013 Act
[2] The 2013 Act was preceded by a review chaired by Sir Scott Baker. In the course of
his review he received a letter dated 31 January 2011 from the then Crown Agent. On behalf
of the Crown Office and Procurator Fiscal Service she advised that forum bar to extradition
would, amongst other things, be a challenge to the independence of the Lord Advocate as
head of the prosecution system in Scotland, in that the court would be invited to consider
the merits of a prosecutorial decision. While the courts in England and Wales were
prepared to contemplate judicial review of such decisions, that was not the tradition in
Scotland. The Baker review concluded that the forum bar provisions should not be
introduced in the UK, generally because prosecutors were best placed to make decisions on
forum. The UK government did not accept that recommendation, considering that
enhanced protections were needed, including scrutiny of decisions in open court. In due
course a bill containing, amongst other things, a forum bar defence for the UK as a whole
(extradition being a reserved matter) was passed by the UK Parliament as section 50 of, and
schedule 20 to, the Crime and Courts Act 2013. Provision is made for the possibility of a
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prosecutor’s certificate to the effect that a decision has been made not to prosecute for the
alleged offence in the UK, which would then require the extradition judge to decide that
extradition is not barred by reason of forum. The decision underlying the certificate can be
questioned on appeal – for Scotland, see sections 19E(3) and 83D(3) of the Extradition Act
2003 (as would be amended if section 50 of, and schedule 20 to, the 2013 Act were brought
into force in Scotland). Under these provisions, if the High Court of Justiciary quashes a
certificate it must consider the issue of forum bar for itself.
Subsequent events
[3] On 16 September 2014 the then Lord Advocate submitted written evidence to the
House of Lords Select Committee on Extradition Law. On the present topic he stated that:
“The provisions relating to forum bar brought into force under the Crime and Courts
Act 2013 will only be implemented in Scotland if the Scottish Ministers request it.
They have thus far not done so and, as far as I am aware, there is no intention to do
so for the foreseeable future. This is consistent with the historic position in Scotland
where prosecutors are fully independent and have a fundamental discretion on
whether to raise a prosecution or not and with the independent role of the
Lord Advocate guaranteed by section 48(5) of the Scotland Act 1998 heading that
prosecution system.”
On 21 December 2017 the Rt Hon Alistair Carmichael MP tabled three questions in the
House of Commons for the Home Department to answer. The questions were:
“1. To ask the Secretary of State for the Home Department, for what reasons
section 50 of the Crime and Courts Act 2013 has not been commenced in
Scotland.
2. To ask the Secretary of State for the Home Department, what the timetable is for
the commencement of section 50 of the Crime and Courts Act 2013 in Scotland.
3. To ask the Secretary of State for the Home Department, what discussions she has
had with the Lord Advocate on the commencement of section 50 of the Crime
and Courts Act 2013 in Scotland.”
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On 21 December 2017 the then Minister of State at the Home Office, the Rt Hon
Brandon Lewis MP replied to all three questions on behalf of the Secretary of State as
follows:
“The Scottish Government has decided that it does not wish section 50 of the Crime
and Courts Act 2013 to be commenced in full in Scotland and there is no timetable
for its commencement. This is a decision for the Scottish Government and there have
been no recent discussions on the issue.”
The petitioner’s submissions on illegality
[4] The commencement and extent provisions of the 2013 Act are in section 61 which, so
far as is relevant for present purposes, is in the following terms:
“61 Short title, commencement and extent
(2) Subject as follows, this Act comes into force on such day as the Secretary of State
may by order appoint; and different days may be appointed for different
purposes and, in the case of Part 4 of Schedule 16 and section 44 so far as
relating to that Part of that Schedule, for different areas.
…
(8) An order which brings the monitoring provisions into force only in relation to a
specified area may provide that they are to be in force in relation to that area for
a specified period; and in this subsection ‘the monitoring provisions’ means Part 4
of Schedule 16 and section 44 so far as relating to that Part of that Schedule.
…
(10) An order which includes provision for the commencement of section 49 or
Schedule 19 may not be made unless the Secretary of State has consulted the
Scottish Ministers.
…
(12) Subject as follows, this Act extends to England and Wales, Scotland and
Northern Ireland.”
[5] The petitioner contends that section 61(12) demonstrates that, once commenced,
section 50 applies to the whole of the UK. Subsection 2 provides that section 50 may come
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into force on such day as the respondent may appoint and that different days may be
appointed for different purposes, but not for different areas. The power is given in
section 61(2) and (8) to commence some provisions selectively for different areas, but no
such power is given in respect of section 50. Any reading of section 61 which permits the
UK government to commence section 50 in different parts of the UK on different dates
would render subsections (2) and (8) otiose, contrary to the principles of statutory
interpretation. Further there is no provision in relation to section 50 or schedule 20 which is
akin to section 62(10) in requiring the Secretary of State to consult with the Scottish Ministers
before commencing these provisions. The submission is that the intention of the UK
Parliament was:
(1) That the Secretary of State had no power to bring into force the forum bar
provisions in England, Wales, and Northern Ireland without also commencing
them in Scotland;
(2) That there was no duty placed on the Secretary of State to consult with the
Scottish Ministers prior to bringing the provisions into force in Scotland;
(3) That the Scottish Ministers had no veto over the commencement of the provisions
in Scotland;
(4) That the Secretary of State had a duty to bring the forum bar provisions into force
across the United Kingdom, including Scotland, even where the Scottish
Ministers had not requested, or indeed had opposed, the bringing into force of
the provisions in Scotland.
[6] The Crime and Courts Act 2013 (Commencement No 5) Order 2013/2349 was made
by the Secretary of State for the Home Department in exercise of the powers conferred by
section 61(2) of the 2013 Act. The order brought into force the forum bar provisions in
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England, Wales and Northern Ireland with effect from 14 October 2013. The proposition for
the petitioner is that the commencement of the provisions in only part of the UK was illegal
given the terms of the power granted to the Secretary of State by section 61. The petitioner
refers to R v Secretary of State for the Home Department, ex parte Fire Brigades Union and others
contended that the UK government has fettered its discretion unlawfully by, in effect,
delegating decision-making to the Scottish Ministers. There is a secondary submission that
the purported decision of the Scottish government that the forum bar provisions should not
be introduced in Scotland is unlawful and ultra vires. Extradition is a reserved matter, and
the UK Parliament made clear its intention that the forum bar scheme would apply
throughout the UK.
The Fire Brigades Union and RM decisions
[7] The parties made extensive reference to the Fire Brigades Union decision as the
leading case on the subject. While a number of different views were expressed by the eight
judges who sat in the Court of Appeal and then the House of Lords, the following general
principles can be derived from the speeches in their Lordships’ House. (What follows is
principally taken from the speeches of Lord Browne-Wilkinson, pages 550-553;
Lord Mustill, pages 559 and 561; Lord Lloyd of Berwick, pages 571/572; and Lord Nicholls
of Birkenhead at pages 574/576.)
[8] A commencement provision of the kind under consideration is widely used, and is
intended to place a duty on the minister to consider when, not whether, the statutory
scheme will be brought into force. Until the power is exercised, or Parliament repeals the
legislation, this is a continuing duty to be exercised in good faith. A variety of factors may
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render it appropriate to delay commencement, including a change of circumstances, such as
unforeseen problems or costs. The power cannot be lawfully renounced, nor Parliament’s
purpose frustrated by the acts of the executive. If the relevant minister fails in this duty, or
abuses his power by acting in a manner inconsistent with it, it is the “paramount duty” of
the court to say so (Lord Lloyd of Berwick at 571E-F).
[9] In RM v Scottish Ministers it was stressed that “Parliament makes the law and the
executive carries the law into effect” (paragraph 34). Where discretion is given as to when a
law will commence, this is to allow time for practical considerations relating to its effective
operation to be addressed (paragraph 35). If regulations are needed, Parliament expects
them to be made, not that the law remains a dead letter for an indefinite period. It is a
“basic principle of administrative law that a discretionary power must not be used to
frustrate the object of the Act which conferred it…” (paragraphs 41/42). If a statute confers a
discretionary power, the failure to exercise the power will be unlawful if it is contrary to
Parliament’s intention (paragraph 47).
Parliamentary privilege
[10] The UK government has brought the forum bar provisions into force everywhere in
the UK other than Scotland. The obvious question is, why not Scotland? Here is where the
proceedings took a surprising turn. The question is not answered in the pleadings. During
the hearing, and on more than one occasion, the court inquired of counsel for the Advocate
General for Scotland (who is the UK government’s representative in Scotland) as to the
reason, but he was either unable or unwilling to provide an explanation. And there was no
explanation for the failure to provide an explanation. Unsurprisingly there was no mention
of national security, state secrets, or anything of that nature.
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[11] One might think that reference would be made to the answer given by the Minister
of State to Alistair Carmichael MP (see above at paragraph 3). However counsel submitted
that for the court to proceed upon that basis would be a breach of parliamentary privilege;
thus it was contended that there was no evidential basis for the petitioner’s claim that the
will of Parliament was being thwarted. (If speculation is allowed, the coyness might have
been caused by a desire to maintain this line of defence.) At the hearing, and for the first
time, mention was made of recent discussions on the matter between the UK and the
Scottish governments; discussions which it was acknowledged had been prompted by these
proceedings. No detail was given as to the content or purpose of the discussions, nor any
assurance that the outcome would be the commencement of the forum bar provisions in
Scotland. As I understood it, the intention was to assure the court that the UK government
was keeping the matter under review in the sense discussed in the Fire Brigades Union
decision. If nothing else, the reference to these discussions confirms that whatever it is
which has prevented the commencement of the provisions in Scotland, it has something to
do with the views of the Scottish government.
[12] Even without any reference to these discussions, or to the minister’s answer to
Mr Carmichael, and given the absence of any other explanation, in my view it is a
reasonable inference from all the other available information, including the pleadings for the
Scottish Ministers, that the forum bar defence was not introduced in Scotland because of the
concerns about the position of the Lord Advocate. Even assuming that the plea of
parliamentary privilege was well taken, nonetheless in all the circumstances I would be
content to proceed on the above basis. Indeed I can see no alternative, it being quite unreal
that the court should accept the vacuum urged upon it by the Advocate General. It follows
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that my views on the issue of parliamentary privilege are not necessary to the ultimate
determination of the petition.
[13] The Advocate General objects to any reliance on the answer given by the Minister of
State to various questions (see above), and also to a reference made in the petitioner’s
submissions to a statement made by Jeremy Browne MP when promoting the bill as
Parliamentary Under-Secretary of State before the House of Commons Public Bill
Committee on 12 February 2013 that “because Scottish Ministers and courts have a role in
the process, we have decided that the [forum bar] provisions should be commenced only
with their consent”. This is on the basis that to do so would be in breach of the
parliamentary privilege attaching to these statements.
[14] It would, I think, be surprising if an answer of the kind made by the Minister of State
could not be relied upon as an explanation of why the government had not brought the
forum bar provisions into force in Scotland. No doubt it could have been reported in the
media, and if one were a journalist or an interested member of the public subsequently
inquiring of the department, it is likely that one would be referred to the answer. There is
no suggestion that the minister was in error or misled the House. No contrary explanation
for the current state of affairs has been proffered to the court. Nonetheless under reference
HM Advocate 2015 SLT 438, it was insisted that neither the petitioner nor the court could
have regard to the answer (or Mr Browne’s statement) for the purpose of the present
proceedings.
[15] I am not of that view. It would be possible to embark upon a detailed analysis of a
large number of cases and other material, however I consider that sufficient guidance can be
found in the decision of the Privy Council in Toussaint v Attorney General of St Vincent and the
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Grenadines [2007] 1 WLR 2825. The judgment of the Board was delivered by Lord Mance. At
paragraph 16 it was noted that the House of Lords had on a number of occasions stated that
use could be made of ministerial statements in Parliament in judicial review proceedings. It
was described as “an established practice” in Wilson v First County Trust Ltd (No 2)
[2004] 1 AC 816. His Lordship continued at paragraph 17:
“In such cases, the minister’s statement is relied upon to explain the conduct
occurring outside Parliament, and the policy and motivation leading to it. This is
unobjectionable although the aim and effect is to show that such conduct involved
the improper exercise of a power ‘for an alien purpose or in a wholly unreasonable
manner’: Pepper v. Hart, per Lord Browne-Wilkinson at p 639A. The Joint Committee
(on parliamentary privilege) expressed the view that Parliament should welcome this
development, on the basis that ‘Both parliamentary scrutiny and judicial review have
important roles, separate and distinct, in a modern democratic society’ (para 50) and
on the basis that ‘The contrary view would have bizarre consequences’, hampering
challenges to the ‘legality of executive decisions … by ring-fencing what ministers
said in Parliament’, and ‘making ministerial decisions announced in Parliament …
less readily open to examination than other ministerial decisions’: (para 51). The
Joint Committee observed, pertinently, that
‘That would be an ironic consequence of article 9 (of the Bill of Rights).
Intended to protect the integrity of the legislature from the executive and the
courts, article 9 would become a source of protection of the executive from
the courts.’”
[16] At paragraph 23 Lord Mance said:
“In relation to the points identified in the previous three paragraphs, the Board
observes that the meaning of the Prime Minister’s statements to the House is an
objective matter. Mr Clayton accepts that Mr Toussaint can only rely on the
statements for their actual meaning, whatever the judge may rule that to be. While
no suggestion may be made that the Prime Minister misled the House by his
statement, Mr Toussaint also remains free to deploy any evidence available to him on
the issue whether the public purpose recited in the declaration was a sham – for
example, evidence as to the nature and location of the land and the likelihood or
otherwise of its being required for a Learning Resource Centre. The Prime Minister’s
statement to the House is potentially relevant to Mr Toussaint’s claim as an
admission or explanation of the executive’s motivation. If the Prime Minister were to
suggest that he expressed himself incorrectly, and did not intend to say what he said,
then it would not be Mr Toussaint who was questioning or challenging what was
said to the House.”
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[17] Failing parliamentary privilege, a subsidiary argument was presented that, in any
event, the answer given by Mr Lewis did not signal that the forum bar provisions would
never be introduced in Scotland. It did not indicate a closed mind, nor a delegation of
responsibility to the Scottish government. In this connection it is worth repeating the terms
of the answer, which was in response to questions asking why the forum bar provisions had
not been commenced in Scotland; the timetable for their commencement; and as to any
discussions which had taken place with the Lord Advocate.
“The Scottish government has decided that it does not wish section 50 of the Crime
and Courts Act 2013 to be commenced in full in Scotland and there is no timetable
for its commencement. This is a decision for the Scottish government and there have
been no recent discussions on the issue.”
The words used could hardly have been clearer or more emphatic. While reference was
made to a decision of the Scottish government, in reality the UK government had decided
not to bring the terms of section 50 and schedule 20 into force in Scotland, and this would
not change unless and until the Scottish government altered its view on the matter. (The
same comes across loud and clear from Mr Browne’s earlier statement to the Public Bill
Committee, see above at paragraph 13.) It is worth repeating that there was no suggestion
that anything had changed in terms of UK government policy.
Advocate General’s further submissions on illegality
[18] Counsel for the Advocate General submitted that, even if the court accepts the
petitioner’s position as to the reason for non-commencement in Scotland, nonetheless there
has been no illegality. There is no statutory time limit for commencement. Section 61 of the
2013 Act permits commencement in different parts of the UK on different days (“different
days may be appointed for different purposes”). Failing that, the provision should be
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at 592. Partial commencement does not fetter the discretion of the UK government on
commencement elsewhere. In any event there is no admissible statement of intent not to
commence the provisions in Scotland, and no failure on the part of the UK government to do
something which it is required to do under and in terms of section 61. Reliance is placed
upon a passage in the judgment of Hobhouse LJ in the Court of Appeal in the Fire Brigades
Union case to the effect that, until a statutory provision is brought into force, it cannot create
any enforceable rights and duties.
Analysis of the submissions on illegality
[19] Before considering the terms of section 61, it is worth revisiting the history of this
part of the extradition legislation. The forum bar to extradition proposal was controversial.
Having considered the various arguments, Sir Scott Baker recommended against such
provisions. The UK government disagreed and invited the UK Parliament to legislate
accordingly across the whole of the UK. Parliament acceded, but left it to the government to
decide when this would come into force. Not long thereafter, the necessary order
commenced this part of the Act in England, Wales and Northern Ireland, but not in
Scotland. The reason for this was acceptance of the concern in Scotland that a forum bar
defence would amount to an inappropriate interference with the prosecutorial
independence of the Lord Advocate.
[20] Several years passed, and then the matter was raised in this petition (and in a parallel
petition at the instance of another Scottish resident subject to an extradition request by the
USA). The claim is that there has been a breach of statutory duty by the executive. In
essence the submission is that, without any proper basis (the continuing concerns in
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Scotland not being a good reason to thwart the declared will of Parliament), there has been
an unlawful refusal, failing which at least an unwarranted delay in commencing the
provisions in Scotland. As discussed earlier (paragraphs 7/9), the lesson of the Fire Brigades
Union and RM decisions is that, absent a good reason to delay commencement, a failure to
do so amounts to an abuse of the discretionary power given to the executive. It is likewise if
the relevant minister renounces the power, fails to keep the matter under review, or
delegates decision-making to a third party.
[21] Turning to the Advocate General’s submissions, I do not find them persuasive or
compelling. First, I disagree with the proposition that section 61 envisages, or at least
permits, commencement of the forum bar provisions in different parts of the UK at different
times. On the contrary there was express provision for this only in respect of a different part
of the legislation, namely part 4 of schedule 16, no doubt to facilitate the partial and gradual
introduction of electronic tagging in different parts of England and Wales. Were the
submissions for the Advocate General to be correct, there would have been no need for this
specific permission. As to the allowance of different days to be appointed for different
purposes, this is a wholly understandable provision in the context of a complex and
multifaceted piece of legislation which deals with a number of different topics, of which
forum bar is but one. The Advocate General contends that the phrase “different purposes”
comprehends “different areas”, but this is contrary to the ordinary meaning of the words,
and is contradicted by the use of “different areas” later in the same section, which would be
unnecessary if the submission was correct.
[22] Reliance was placed upon Inco Europe (cited earlier). The case concerned the proper
interpretation of section 18(1)(g) of the Supreme Court Act 1981 with regard to whether it
excluded an appeal from a decision on an application to stay proceedings pending referral to
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arbitration. It is not necessary to recount the details; the view was taken that the draftsman
“slipped up” and the provision should be read in a manner which gave effect to the clear
parliamentary intention, albeit such must be done only after the exercise of considerable
caution to avoid judicial legislation. I find nothing in the speech of Lord Nicholls
of Birkenhead, with which the rest of the committee agreed, which is of assistance for
present purposes, and certainly nothing to suggest that Parliament must have intended that
the forum bar provisions could be commenced at different times in different parts of the UK.
[23] Reference was made to the decision in Singh v Secretary of State for the Home
Department 1993 SC (HL) 1. The view was taken that when section 18(1) of the Immigration
Act 1971 empowered the Secretary of State to make regulations to provide for certain
specified matters, including giving notice to a person affected by an immigration decision,
Parliament expected that the regulations would be made, and the Secretary of State was
accordingly under a duty to make them. This seems an unsurprising decision, which
provides no support for the Advocate General’s position in the present case. It is true that
the forum bar provisions in the 2013 Act are primary provisions, not ancillary in nature nor
required to give effect to statutory provisions already in force. The proposition for the
Advocate General is linked to Hobhouse LJ’s observations in his dissenting opinion in the
effect that a court cannot give effect to provisions not yet in force. The short answer is that
the court is not being asked to give effect to provisions not yet in force. It is being asked to
recognise the duty placed on the executive by section 61 of the 2013 Act, a provision which is
in force. Hobhouse LJ’s concerns were persuasively answered by Lord Lloyd of Berwick –
see pages 570G-571B. The commencement provision was to be understood as meaning that
the substantive provisions at issue “shall come into force when the Home Secretary chooses,
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and not that they may come into force if he chooses.” (emphasis in the text) His Lordship
observed that the Home Secretary had no power to reject the new law or set it aside as if it
had never been passed.
[24] I conclude that Parliament intended that the forum bar provisions would be brought
into law throughout the UK, and that there was no power to do so in different parts at
different times. Even if I am wrong on the latter point, this does not mean that the petition
should be refused. The submission was that commencement in Scotland can be delayed for
as long as the executive chooses. In response to questions from the court it was submitted
that this would remain true if in 10 years, or even 50 years, nothing had changed. I consider
this to be a wholly unreal position, which, even on the most favourable view of section 61
for the UK government, is clearly contrary to Parliament’s intention.
[25] One returns to the question – why were the forum bar provisions not brought into
force in Scotland? It was not because more time was needed. It was not because of a change
of circumstances. It was not because of unforeseen problems or costs. It was because the
decision was taken not to do so. It may be that, prompted by this petition, matters are being
reviewed, though with no promises as to the outcome. If the decision is changed, it will be
because the Scottish government’s concerns are no longer considered to be a sufficient
reason to exclude Scotland from the extradition forum bar provisions. That would return
matters to the position as decided by Parliament at the outset. The court was not told that
the provisions will be commenced in Scotland at some point in the future, let alone in the
near future. There was only a vague reference at the hearing to recent discussions with the
Scottish government. I am not persuaded that any weight can be placed on this information,
nor that it amounts to an answer to the petitioner’s complaint of illegality.
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[26] The court is asked to declare that the UK government is acting unlawfully by its
continuing failure to bring into force in Scotland the extradition forum bar provisions
contained in section 50 of, and schedule 20, to the Crime and Courts Act 2013. Having
regard to the legal principles laid down in the Fire Brigades Union and RM decisions
(summarised earlier) I am prepared to grant that declarator. For the sake of completeness, I
should mention other matters which were the subject of parties’ submissions.
Article 14 discrimination
[27] The petition suggests that, given that articles 6 and 8 of ECHR are engaged, the
non-enforcement of the forum bar provisions amounts to unlawful discrimination against
persons resident in Scotland, such as the present petitioner, all in terms of article 14. I am
doubtful as to whether, in practical terms, this adds anything to the primary argument. If
the primary argument fails, the UK Parliament has condoned different treatment in different
parts of the UK, or at least has allowed the minister a discretion on the matter. It is not
unusual for the UK Parliament (or the Scottish Parliament) to act in a manner which creates
important differences on either side of the border. It was not suggested that the laws on
extradition had to be the same throughout the UK.
differential treatment based on place of residence might fall within the terms of Article 14,
but nonetheless it may be justified. It was contended that the historic independence of the
Lord Advocate is not a sufficient reason to justify the absence of forum bar provisions north
of the border (petition paragraph 52). This is in the nature of an unsupported assertion. It
has not persuaded me that, if article 14 is in play, there is a violation.
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[29] In any event, there remains a real issue as to whether, for the purposes of the present
circumstances, residence in Scotland is a protected characteristic in terms of article 14. In
R(A) Lord Reed discusses the topic of different treatment within a devolved system such as
the UK. He notes the decision in Magee v UK [2000] 31 EHRR 35, which he explains as
meaning that differences in treatment based on the jurisdiction to whose law a person is
subject by reason of his geographical location are not based on that person’s “status” within
GC, the distinguishing feature there was that one law in one jurisdiction was being applied
in different ways depending on a person’s place of residence. As I understand it, his
Lordship’s discussion is supportive of the view taken in Magee (paragraph 50) that there
does not always require to be a uniform approach to legislation in the constituent parts of
the UK, and that differences do not require to be justified to avoid a violation of article 14.
[30] Strictly, perhaps article 14 could bite if, as I have held, the UK Parliament intended a
uniform approach to the forum bar provisions throughout the UK, but in that respect it adds
little, if anything, to the primary argument. And it seems unlikely that the minister could
successfully present a purported justification which contradicted the will of Parliament.
The “decision” by the Scottish Ministers
[31] The petitioner seeks an order that a purported decision by the Scottish government
that the forum bar provisions should not be commenced in Scotland is unlawful. I agree
with the Scottish Ministers’ submission that the expression of a view communicated to the
real decision-maker, the UK government, is not in the nature of a decision which is
susceptible to judicial review. The Scottish Ministers have no power to decide when or
whether the provisions should be commenced in Scotland. That position is not altered if the
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UK government decides to proceed upon the basis of their concerns. When asked by the
court, senior counsel for the petitioner was unable to envisage an outcome whereby the
petitioner would fail against the first respondent yet succeed in his claim against the Scottish
Ministers. At best, this argument is a fifth wheel on the wagon.
Oppression
[32] The petitioner presented an argument that, given the aforesaid illegality, it would be
oppressive for the Scottish Ministers to extradite him. Whatever force there might be in that
submission – if it comes to it – that is a matter which I was told is, along with other defences,
being pursued in the legal challenge to the extradition proceedings. No doubt the merits of
such a challenge will depend, at least in part, on the specific circumstances, including
whether, if it was in force, a forum bar defence would be reasonably available to the
petitioner. That is not a matter which I can determine in these proceedings. The Scottish
Ministers submitted that the challenge to the extradition is still ongoing, and in any event,
there may never be a decision to extradite the petitioner, thus it is premature to raise this
issue now. I agree with that submission. I do not consider that this is a matter which can or
should be addressed in this application for judicial review.
Interdict and time-bar
[33] The petitioner also seeks interdict against the extradition. For reasons similar to
those mentioned in the context of oppression, I do not consider that, at least at this stage
such an order can be made. I will refuse it in hoc statu (in the present circumstances). A
plea that the petition was time-barred in terms of section 27A of the Court of Session
Act 1988 was withdrawn at the hearing.
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19
Decision
[34] I shall pronounce decree of declarator that in its continuing failure to bring into force
in Scotland the extradition forum bar provisions in section 50 of, and schedule 20 to, the
Crime and Courts Act 2013, the UK government is acting unlawfully and contrary to its
duties under section 61 of the Act. Counsel for the petitioner indicated that if the court was
prepared to grant that declarator, he would not insist upon an order for specific
performance requiring the provisions to be brought into force in Scotland. Declarators are
sought against the Scottish government in respect of alleged illegality and oppression, and
also interdict prohibiting the extradition of the petitioner to the USA. For the reasons given
above these orders will be refused.