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The rule of law is not rocket science: just follow the law!

Dr Steve Foster reports on another case of the courts reminding the government to follow the rule of law: Craig v HM Advocate [2022] UKSC 6

In Craig v HM Advocate ([2022] UKSC 6), the Supreme Court ruled that the government’s failure to carry out a statutory duty to commence “forum bar provisions” in Scotland meant that subsequent extradition proceedings were unlawful and automatically in breach of the individual’s Convention rights.

The appellant had appealed against a decision of the High Court of Justiciary concerning his extradition to the United States. The Extradition Act 2003 contained “the forum bar provisions” – under s.83A, a person’s extradition to a category 2 territory was barred if extradition would not be in the interests of justice. The commencement provisions were contained in s.61(2) of the Crime and Courts Act 2013, which provided that the provisions would come into force on such day as the secretary of state might by order appoint. The Government failed to bring them into effect in Scotland.

The appellant was living in Scotland, and the US Government had requested his extradition. The appellant sought judicial review of the Government’s failure to commence the provisions in relation to Scotland, and the Lord Ordinary declared that the Government’s continuing failure to bring the provisions into force in Scotland was unlawful and contrary to its duties under the 2013 Act. The Government did not appeal against that decision, but continued its failure to make a commencement order. Six months later, the appellant’s extradition hearing took place. The sheriff then rejected the argument that his extradition would be incompatible with Article 8 ECHR and the High Court of Justiciary upheld that decision.

The Supreme Court held that there was a clear expectation that the executive would comply with a declaratory order from a court; that was one of the core principles of the constitution and vital to the mutual trust which underpinned the relationship between the Government and the courts.

As the appellant’s extradition would interfere with his ECHR rights, it needed to be justified under Article 8(2) – be “in accordance with the law” – and had to conform to domestic law, which must meet the requirements of the rule of law to protect against arbitrariness. The courts below had not treated that continuing breach of the law as meaning that the interference with ECHR rights would not be in accordance with the law. Instead, they had treated the unlawfulness as a factor in the balancing exercise. That was a mistaken approach.  Only if the test of legality was satisfied did the question arise of whether the measures in question were necessary. The procedure followed had not been in compliance with s.61 and was not, therefore, in accordance with the law. Thus, the proceedings and order were incompatible with the appellant’s ECHR rights and ultra vires.

This is yet another example of the government ignoring the rule of law and specifically a court order to change the law; see the case of Lawal [2021] UKUT 114, where the government ignored a court order not to deport a material witness to a death in custody inquiry. In the present case, the Supreme Court found that the public officers breached ECHR rights by interfering with that right in a manner not allowed by law. Yet, the decision is also based on domestic constitutional principles: no one shall suffer except for a distinct breach of the law; we are ruled by law not by wide arbitrary powers; and everyone is subject to the law, including the government. AV Dicey is resting gently in his grave.

Steve Foster

Dr Steve Foster

Associate Professor of Law

You can find out more about Steve’s research through his Pure profile, which sets out his research interests, publications, and contact details. You can also find out more about Coventry University’s research through our dedicated research page

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