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

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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] ScotCS CSOH_117, [2018] COSH 117, 2018 GWD 40-484, 2019 SC 230, 2019 SLT 1, [2018] CSOH 117

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

Second Respondents: Johnston QC, O’Neill (sol adv); Scottish Government Legal Directorate

[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

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

justice that the accused person be extradited: see Love v USA [2018] 1 WLR 2889 at

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.

[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

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

[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

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

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

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

“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

[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:

(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

(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

(12) Subject as follows, this Act extends to England and Wales, Scotland and

[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

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

(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

(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

(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

[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

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

[1995] 2 AC 513 and RM v Scottish Ministers 2013 SC (UKSC) 139. Furthermore it is

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

[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

[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

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

[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

[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

[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

[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

that my views on the issue of parliamentary privilege are not necessary to the ultimate

[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

[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

to various authorities, including Adams v Guardian Newspapers Ltd 2003 SC 425 and Coulson v

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

[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

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)

“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

‘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

“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

[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

“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

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

[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

construed to that effect – Inco Europe Limited v First Choice Distribution [2000] 1 WLR 586

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

[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

[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

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

[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

[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

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

Court of Appeal decision in the Fire Brigades Union case ([1995] 2 AC 513 at 529/530) to 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,

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

[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.

[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.

[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

[28] It was said in R(A) v The Health Secretary [2017] 1 WLR 2492 at paragraph 49, that

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.

[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

the meaning of article 14. As to the subsequent decision in Carson v UK [2010] 51 EHRR 13,

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.

[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

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

[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

[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

[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.

Scottish Court of Session Decisions