JUDGES:  President of the Queen’s Bench Division and Mr Justice Cresswell

 

PRIOR HISTORY:  Appeal from Bow Street Magistrates Court, District Judge Nicholas Evans

 

COUNSEL:  Mr Alun Jones QC and Mr Richard Gordon QC (instructed by White & Case) for the claimant Mr E. Lawson QC and Miss A. Ezekiel (instructed by CPS) for the Government of the United States of America Mr K. Qureshi (instructed by Treasury Solicitor) for Secretary of State

 

 

Approved Judgment

 

[*2]  PRESIDENT OF THE QUEEN’s BENCH DIVISION:

 

Ian Norris (the claimant) is a citizen of the United Kingdom. These proceedings arise from an order for his extradition to the United States of America (United States) made by the Secretary of State for the Home Department (Secretary of State) on 29th September 2005 This followed the decision by District Judge Evans on 1st June 2005 to send the case to the Secretary of State for his decision whether the claimant should be extradited. The claimant appeals against the decisions of the District Judge and the Secretary of State under the Extradition Act 2003 (the 2003 Act). With permission of Sullivan J he also seeks judicial review of the continued designation of the United States within paragraph 3 of the Extradition Act 2003 (Designation of Part 2 Territories) Order SI 2003/3334 (the 2003 Order) and the consequent applicability of s 84(7) of the Extradition Act 2003 to the extradition proceedings brought against him.

 

The present proceedings

 

2.   There are therefore three distinct but connected issues for decision.

 

(a) The lawfulness, or otherwise, of what at this stage we shall describe, without deciding, as the decision by the Secretary of State in March 2005 that the United States should continue to be included as a designated territory within paragraph 3 of the 2003 Order, or his failure to decide that it should be removed from the designated territories to which s 84(7) of the 2003 Act applied.

 

(b) The correctness, or otherwise, of the decisions of District Judge Evans that:

 

(i) under s 78(4)(b) of the 2003 Act the offences specified in the extradition request were “extradition offences” as defined in s 137;

 

(ii) for the purposes of s 79(1) and s 82, the extradition of the claimant would not be “unjust or oppressive … by reason of the passage of time”;

 

(iii) for the purposes of s 87, his extradition was not incompatible with his rights under Article 8 of the European Convention on Human Rights.

 

This statutory appeal is brought under s 103 of the 2003 Act.

 

(c) The correctness, or otherwise, of the subsequent extradition decision by the Secretary of State, which in any event is said to have been incompatible with the claimant’s Convention rights, and inconsistent with the absence of effective speciality arrangements between the United Kingdom and the United States.

 

This statutory appeal is brought under s 108 of the 2003 Act

 

3.   When the case was called on for hearing on 12th January 2006, it was apparent that for reasons beyond the control of the parties, it would be impracticable to consider the appeals against the decisions of District Judge Evans and the Secretary of State until the judgment of the Divisional Court in the case of Bermingham & ors was available. Accordingly we conducted a full hearing of the application for judicial review, and postponed consideration of the statutory appeals. Having considered and decided the issue of principle to which the application for judicial review gave rise, and given its  [*3]  practical importance to a number of other cases, with the consent of the parties, we decided that our judgment should be handed down before the statutory appeals were heard and decided.

 

The circumstances of the alleged offences

 

4.   We emphasise at the start that this part of the judgment reflects no more than unproved and strongly contested allegations against the claimant. Equally, it is not a comprehensive narrative account of the entire case. The summary is however sufficient to demonstrate that two distinct areas of serious criminality are alleged against him.

 

5.   After many years employment in the carbon division of Morgan Crucible Company Plc (“Morgan Crucible”), in 1998 the claimant was appointed chief executive officer. In September 2002 he retired on the grounds of ill-health. While he was employed by Morgan Crucible, it developed into one of the major global manufacturers of carbon and came to enjoy a dominant share of the market in the United States. As chief Executive Officer, the claimant was in overall responsibility for literally dozens of companies in more than 60 different countries. In contravention of the Sherman Act 1890, he was party to a conspiracy organised in the United Kingdom to operate a criminal price fixing cartel in the United States. The conspiracy was effective for many years, beginning by not later than 1989 and continuing until about 2000. The participants included Morgan Crucible itself, and two of its subsidiaries, Morganite Inc (“Morganite”), a United States corporation located in North Carolina, and Morgan Advanced Materials and Technology Inc (“MAMAT”) another United States corporation, located in St Mary’s, Pennsylvania. Where necessary, the company and its subsidiaries are referred to as “Morgan”. Other members of the conspiracy included a number of major European producers of various carbon products used in the transport, industrial and consumer products market. The conspiracy operated through a number of different committees which met regularly to co-ordinate cartel activity. The claimant is alleged to have been a member of one of these committees, known as the “Summit Committee” until 1998.

 

6.   The essence of the allegation is that there was a continuing agreement between Morgan and the other conspirators in Europe to suppress and eliminate competition by fixing, maintaining and co-ordinating the prices of certain carbon products sold in the United States. To achieve this objective they ensured that quotations offered to prospective customers were not lower than those offered by existing suppliers, co-ordinated quotations offered to customers, and they appointed a pricing co-ordinator to facilitate discussions regarding prices. Both at face-to-face meetings, and through discussions in Europe, Mexico and Canada, the conspirators organised the prices of carbon products sold in the United States, agreeing to charge prices at particular levels, or otherwise to increase or maintain them. They discussed and exchanged price quotations to particular customers so as to ensure that the prices of co-conspirators were not undercut, and they submitted collusive, non-competitive and rigged bids, or refrained from submitting bids to public transit authorities. The overall effect was that customers in the United States were required to pay higher prices for these carbon products than they would otherwise have paid.

 

7.   On at least two occasions, one of the parties to the conspiracy, apparently inadvertently, offered lower prices to customers of Morgan in the United States than  [*4]  Morgan were charging. After Morgan complained, on each occasion, the party increased the price claiming that the original offer at the lower price had been miscalculated.

 

8.   An investigation was carried out by the Anti-trust Division of the United States Department of Justice. In April 1999, in the course of the investigation into allegations of price fixing in the carbon industry in the United States, a federal Grand Jury sitting in the Eastern District of Pennsylvania required Morgan to produce certain business records. Subpoenas were served. The Federal Bureau of Investigation uncovered material which suggested that between April 1999 and August 2001 the claimant conspired with others to influence the evidence of witnesses likely to be called to give evidence before the federal Grand Jury. Indeed the investigation appeared to reveal that the claimant had also assembled a “task force” to search through sales files in Europe and remove all documents which tended to show that the company had participated in any arrangements to fix the price of carbon products. Thereafter, notwithstanding the “task force”, documents nevertheless continued to be stored in a hidden location to enable the price fixing agreement to be monitored.

 

9.   In November 1999 at a meeting held in England and attended by a number of the conspirators, the investigation by the Anti-trust Division and the Federal Bureau of Investigation was discussed. The purpose of the meeting was to explore possible explanations and justifications for what had happened. In due course a “script”, containing false information, to be used by anyone questioned by the Anti-trust Division or the federal Grand Jury was prepared. This “script” included what purported to be full summaries of meetings held between Morgan and its competitors, describing the meetings as joint venture meetings, which deliberately omitted any mention of pricing discussions which had in fact taken place.

 

10. The claimant personally approved this “script”, which was then distributed to others who were then rehearsed and “questioned” about it, in preparation for any investigation. In addition to the creation of the “script”, and training in its contents, copies of fabricated hand-written summaries of meetings were provided to investigators in the United States to demonstrate that the meetings between the conspirators did not involve any contravention of United States anti-trust law.

 

11. In November 2002 Morgan Crucible and Morganite entered into a plea agreement with the United States Department of Justice which provided for the payment of substantial fines of US$1 million and US$10 million. Most of the directors, officers and employees of Morgan were granted immunity from prosecution as part of the plea bargain arrangement. The claimant and three other Morgan employees were excluded. The existence of the price-fixing conspiracy is not in doubt. There were pleas of guilty from Morgan Crucible and Morganite. That, of course, does not mean that the claimant was party to it.

 

12. In the meantime, in about September 2001 Morgan met with the European Commission and provided it with information relating to cartel activity connected with electrical and mechanical carbon products. In December 2003 the European Commission decided that Morgan should be granted immunity from fines on the basis that it was the first of the undertakings to have reported the cartel to the Commission.  [*5] 

 

13. The claimant was indicted by the Grand Jury for the Eastern District of Pennsylvania in September 2003 for offences connected with his alleged obstruction of the proper course of justice. This indictment was replaced by a superseding indictment in October 2003 which added charges relating to conspiracy to fix prices. The superseding indictment was in turn replaced by a second superseding indictment in September 2004, in which reference was made to US sentencing guidelines.

 

14. The effect of this indictment was conveniently summarised by Mr David Perry in the written argument on behalf of the Government of the United States, which he was unable to present personally at the hearing of the application. For present purposes we are content to adopt it as a convenient account in summary form of the case for the prosecution against the claimant.

 

“Count 1

 

(i) Between 1989 and May 2000 he conspired with persons known and unknown to suppress and eliminate competition by fixing the prices of certain carbon products to be sold in the United States and elsewhere in unreasonable restraint of interstate and foreign trade and commerce.

 

Count 2

 

Between April 1999 and August 2001 he conspired with persons known and unknown to tamper with witnesses and corruptly to persuade other persons to alter, destroy, mutilate or conceal records and documents with intent to prevent their availability to the Grand Jury by

 

(a) providing false and fictitious relevant information to the federal Grand Jury who were conducting the federal Grand Jury investigation into the carbon products industry;

 

(b) preparing a “script” containing false material information which was to be followed by anyone questioned by either the Anti-trust Division or the federal Grand Jury;

 

(e) contacting other persons who had information relevant to the investigation and distributing the “script” with instructions that it be followed when answering questions posed either by the Anti-trust Division or the federal Grand Jury;

 

(d) removing, concealing or destroying from their business files any documents which contained evidence of an anti- competitive agreement or reflected contacts between or among the co-conspirators; and

 

(e) persuading, directing and instructing other persons to remove, conceal or destroy any documents which contained evidence of an anti-competitive agreement or reflected contacts between or among their competitors.  [*6] 

 

Count 3

 

(iii) Between November 1999 and February 2001, he corruptly persuaded and attempted to persuade persons with intent to influence their testimony in an official proceeding, that is, the federal Grand Jury investigating, amongst other things, possible federal criminal Anti-trust violations occurring in the carbon products industry.

 

Count 4

 

(iv) Between April 1999 and August 2001, he knowingly and corruptly persuaded other persons with intent to cause or induce those persons to alter, destroy, mutilate or conceal records and documents, with intent to impair their availability for use in an official proceeding, that is, the federal Grand Jury investigating, amongst other things, poss1ible federal criminal Anti-trust violations occurring in the carbon products industry.”

 

15. In addition to the claimant other individuals from Morgan were also charged with participating in the obstruction of justice. Jacobus Kroef pleaded guilty to witness tampering and Robin Emerson and F Scott Brown to offences relating to the destruction or concealment of documents. All three have served short sentences of imprisonment. Again, although we record the guilty pleas of these individuals, it does not follow that the claimant himself was party to the obstruction of justice.

 

16. On 31St December 2004 an arrest warrant was issued in England at the request of the Government of the United States. The claimant was informed of this request in early January 2005, and arrested on 13th January 2005. At an initial hearing at Bow Street Magistrates’ Court, he was served with the papers in support of his extradition. These included the second superseding indictment and affidavit evidence from Lucy McClain, an attorney in the Justice Department of the United States, duly authorised to describe and identify the nature of the case against him. He was granted conditional bail. On 10th, 11th and 12th May 2005, the extradition hearing was held at Bow Street Magistrates’ Court before District Judge Nicholas Evans, under ss 75-87 of the 2003 Extradition Act. The material before the judge was extensive. Quite apart from the very substantial material presented on behalf of the Government of the United States, bundles of relevant papers were submitted to the judge on behalf of the claimant, together with bundles of authorities.

 

17. On 1st June 2005 the judge concluded that there were no factors which should properly bar the claimant’s extradition to the United States, and the case was sent to the Secretary of State under s 87(3) of the 2003 Act for his decision whether the claimant was to be extradited. On 29th September the Secretary of State ordered the extradition of the claimant to the United States of America under s 93(4) of the 2003 Act. In the meantime, the claimant was granted permission to proceed with his application for judicial review.

 

18. On 17th February 2005, solicitors acting on behalf of the claimant wrote to the Secretary of State requesting the removal of the United States from the list of states  [*7]  designated under Part 2 of the 2003 Act. On 4th March 2005, the letter from the Home Office in response stated there were “no plans” to remove the designation of the United States under section 84(7) of the Act. By letter dated 14th March, the solicitors suggested that the decision was irrational and that the Secretary of State had ignored relevant considerations, and in the absence of fuller explanation, the letter was to be treated as compliant with the pre-action Protocol for Judicial Review. The response dated 18th March in effect repeated that the proposal to remove the designation was rejected, and asserted that the United States was “properly designated under the Extradition Act 2003”. The proposed application for judicial review was “wholly misconceived”.

 

19. For the purposes of this judgment, we have assumed without deciding that this exchange of correspondence sufficiently demonstrated a decision which is susceptible to judicial review. (See R v Secretary of State for Employment ex parte Equal Opportunities Commission [1995] 1 AC 1). By way of footnote, if we concluded that the current position in relation to the designation order is either illegal or irrational, in the absence of any explanation, its continuation in force would appear to represent a continuing decision by the Secretary of State that it should do so. If so, subject to the overall discretionary question, declaratory relief would be available.

 

Judicial Review

 

20. Professor Cherif Bassiouni is a distinguished practitioner in the United States, with a particular expertise in extradition. In his evidence, the history of extradition relations between the United States and the United Kingdom is narrated. It begins in 1794 with the Treaty of Amity, Commerce and Navigation with Great Britain (Jay’s Treaty). In 1972 the Treaty on Extradition between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland was signed. It was not until 1976 that this then new treaty was ratified by the United States, and it came into force in January 1977. It was amended by the Supplementary Extradition Treaty of 1985, which came into force in December 1985.

 

21. On 31st March 2003 the Treaty on Extradition between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland was signed by both governments. It is subject to ratification. The governments agreed that exchange would take place “as soon as possible”. Although ratified in the United Kingdom, it has not yet been ratified by the United States. There are considerable reservations about when, and some scepticism has been expressed about whether, ratification by United States will ever take place. In summary, until instruments of ratification are signed by the governments of both countries, the express effect of Article 23 is that the 2003 Treaty itself will not come into force. Once the 2003 Treaty is ratified, the 1972 Treaty, as amended will cease to have effect, but until then the treaties in force are the 1972 Treaty, as amended by the 1985 Supplemental Treaty. According to Professor Bassiouni, prior to the signing of the 2003 Treaty, neither the United Kingdom nor the United States had sought previously to rely on an extradition treaty before it had come into force in both jurisdictions. That said, as the 1972 Treaty became effective simultaneously in both jurisdictions, problems arising from the lack of reciprocity, which we have to address, would not have arisen.  [*8] 

 

22. Article IX of the 1972 Treaty is at the heart of the complaint by Mr Alun Jones QC on behalf of the claimant. It provides:

 

“Extradition shall be granted only if the evidence be found sufficient according to the law of the requested Party … to justify the committal for trial of the person sought if the offence of which he is accused had been committed in the territory of the requested Party . …”

 

Mr Jones contends that the provisions of Article IX were ignored, and that the order for the claimant’s extradition from the United Kingdom to the United States was not based on and did not require the “sufficient” evidence prescribed by Article IX. Notwithstanding the unequivocal language of the 1972 Treaty, none was offered. Although he considered a large amount of evidential material explaining the allegations against the claimant, District Judge Evans did not apply Article IX.

 

The Extradition Act 1870

 

23. The 1972 Treaty derived its effect from the 1870 Act. It is unnecessary to narrate its provisions in detail, but Mr Jones drew attention to some of the restrictions on extradition which, according to his argument, provided specific protection for citizens of the United Kingdom whose extradition was being sought by a foreign government. Section 10 provided: “In the case of a fugitive criminal accused of an extradition crime … such evidence is produced as … would, according to the law of England, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England, the police magistrate shall commit him to prison, but otherwise shall order him to be discharged.”

 

This statutory provision came to be reflected in Article IX of the 1972 Treaty, effectively echoing it, and simultaneously exemplifying the principle that extradition treaties negotiated while the 1870 Act was in force were subject to it.

 

24. In Re Nielsen [1984] 1 AC 606, speaking for the House of Lords, Lord Diplock observed at p6 16:

 

“The jurisdiction conferred upon the Bow Street magistrate by the Acts of 1870 to 1932 is the widest that he may lawfully exercise upon applications for extradition of fugitive criminals from foreign states. His jurisdiction cannot be extended beyond that maximum but it may be limited, in the case of fugitive criminals from a particular foreign state, by the terms of the extradition treaty with that state. Ex parte Sotiriadis involved an example of an additional limitation imposed by the  relevant extradition treaty …

 

In my view, it is clear that where there is any conflict between them, the terms of an extradition treaty must give way to the relevant legislation. As Mr Jones put it, any extradition treaty must be “in conformity” with the applicable Act.  [*9] 

 

The Extradition Act 2003

 

25. This Act, which came into force on 1st January 2004, introduced a reformed, radically changed scheme, and provides the legislative structure which governs the process of extradition from the United Kingdom to the United States. The earlier legislation, and in particular the 1870 Act, is no longer in force. The most obvious feature of the 2003 Act is that it created a new extradition regime.

 

26. In the present proceedings it is unnecessary to set out the new statutory provisions in detail. A summary will suffice. By order of the Secretary of State, following an affirmative resolution of both Houses of Parliament, requesting states are designated within 1 or 2 categories. Part 1 (ss 1-68) deals with extradition to territories designated as category 1 territories, and Part 2 (ss 69-141) addresses extradition involving category 2 territories.

 

27. The claimant’s extradition fell within Part 2 of the Act, and the United States is a category 2 territory. Once the Secretary of State receives a valid request for extradition to the United States, subject to s 126 (which does not arise here), he is bound to issue a certificate under s 70. The case is then considered by a judge. The powers of the judge at an extradition hearing in category 2 cases are identified in s 77. The initial stages of the hearing are governed by s 78. The judge checks whether the documents sent to him by the Secretary of State include a valid request for extradition, together with any certificate which the Secretary of State may have issued, as well as a copy of the relevant Order in Council. More specifically, the documents must include particulars of the individual whose extradition is requested and particulars of the offence specified in the request. Assuming that the identity issue is resolved, and the judge decides that the offence specified in the request is an extradition offence, and appropriate documentation has been served, the judge then moves to consider whether extradition is barred by any of the four bars to extradition specified in s 79(1). Under s 84(1) the judge decides whether there is evidence sufficient “to make a case requiring an answer” by the person whose extradition is being sought. However, where the requesting state is a designated territory within category 2 and the Secretary of State has made an order for the purposes of s 84(7), s 84(1) is, in effect, disapplied. The judge must proceed under s 87. He considers whether the proposed extradition would be compatible with the individual’s Convention rights. Provided it is, the case must be sent to the Secretary of State for his decision. Critically, therefore, in such cases, the judge may not enquire whether there is sufficient evidence against the individual which requires an answer. This process is inconsistent with Article IX of the 1972 Treaty.

 

28. For the sake of completeness, we note that the Secretary of State is prohibited from ordering extradition in the circumstances identified in s 93(2). One is the absence of speciality arrangements (see s 95) with the United States, to the effect that the United States will proceed to deal with the offence for which the defendant has been extradited. Moreover, the order itself must not be incompatible with the individual’s Convention rights. Subject to the statutory exceptions, the extradition order must be made These issues will arise for examination at the hearings of the statutory appeals.

 

The Extradition Act 2003 (Designation of Part 2 Territories Order 2003  [*10] 

 

29. This Order was made on 18th December 2003, and came into force on the same date as the Extradition Act itself. The United States was designated for the purposes of Part 2, and specifically designated for the purposes of s 84(7). Since 1st January 2004 the United States has relied on these provisions. Therefore prima facie evidence of the kind envisaged in Article IX of the 1972 Treaty, has not been produced in the 43 or 44 requests made under the new procedure, nor, specifically, in the case of this claimant. That plainly cannot be decisive of the present application, not least because, as far as we are aware the point taken on the claimant’s behalf has not been taken before. On the other hand, it provides strong support for the view that the issue needs to be quickly resolved.

 

30. Lord Goodhart QC, spokesman for the Liberal Democrat Party on legal and constitutional affairs, explains in a witness statement that one of the purposes for the designation of territories to which Part 2 of the 2003 Act would apply was to identify territories (including the United States) which were not required to produce evidence showing a case to answer when an extradition order was being sought. He suggests, as Mr Jones submitted, that the designation of the United States in paragraph 3(1) of the Part 2 Order created an inconsistency between the Act, and statutory arrangements for extradition of United Kingdom nationals to the United States, and Article IX of the 1972 Treaty which, pending ratification of the 2003 Treaty remains in force.

 

31. In draft form, the Part 2 Order was considered by the House of Commons Third Standing Committee on delegated legislation on 15th December 2003, and by the House of Lords on the following day. Assurances were given on behalf of the Government that, subject to an inevitable measure of delay before the United States could or would ratify it, the 2003 Treaty would complete the appropriate processes leading to ratification in early 2004. Nevertheless, an amendment to the statutory instrument was moved by Lord Goodhart, inviting the Government to “withdraw the draft Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 and lay a new draft order deleting the reference to the United States of America in paragraph 3 of the order”. In short, the amendments sought the removal of the United States from the list of designated territories included in paragraph 3 (1) of the Part 2 Order. This amendment was defeated by 120 votes to 50. Accordingly the United States remained a designated territory for the purposes of s 84(7).

 

32. According to Lord Goodhart, the 2003 Treaty was not made publicly available in the United Kingdom until the end of May 2003, that is, effectively two months after it was signed by the then Home Secretary. He adds that the Treaty was “negotiated in secret and received no Parliamentary scrutiny”. At the same time it is clear from the debate which resulted in the defeat of Lord Goodhart’s proposed amendment (which we are considering not for the purpose of interpretation in accordance with Pepper v Hart, but simply as a matter of record) that the arguments against the designation of the United States were fully ventilated in the House of Lords. Plainly the process of designation was not secret, but the arguments against this particular designation failed to carry the day.

 

33. The continuing absence of ratification by the United States of the 2003 Treaty was plainly disturbing, among others, to those who had supported the amendment moved by Lord Goodhart. Their concerns were reflected elsewhere in serious public debate. No evidence purporting to suggest a timetable for completion of the process culminating in the ratification of the Treaty, or answering the concerns expressed  [*11]  about the perceived difficulties of obtaining such ratification, has been placed before us on behalf of the Secretary of State or indeed the Government of the United States. We have noted the letter from the Secretary of State to Lord Baker of Dorking dated 7th March 2005 which said:

 

“You raise the issue of reciprocity. It is true that the new Treaty removes the requirements upon the United States to provide a prima facie evidential case when making an extradition request to the UK. However, this requirements was also removed for Australia, Canada and New Zealand; and it has not applied to most European States since the passage of the European Convention on Extradition order 1990…”

 

“It is true that the US authorities have yet to ratify the treaty. The latest information we have is that it was placed before the US Senate’s Foreign Relations Committee for “advice and consent”. We clearly cannot purport to speak for the legislature of another State but we are assured by our colleagues in the US State Department and Department of Justice that they are pushing for this to be considered as a matter of urgency. They are currently advised by the Committee that the hearing may be in late Spring or early Summer of this”.

 

34. There is at present a lack of symmetry between the United States and the United Kingdom which will continue until either the United States has ratified the 2003 Treaty, or the Secretary of State seeks to obtain and receives Parliamentary approval for the removal of the United States from its current designation under paragraph 3(1) of the Part 2 Order. In the meantime, although Article IX continues to govern any extradition proceedings at the request of the United Kingdom in the United States, it no longer applies to extradition proceedings here at the request of the United States. In short, the procedure which applies on one side of the Atlantic does not apply on the other.

 

The submission on behalf of the claimant

 

35. The challenge in the present case is not to the fact that the United Kingdom signed the 2003 Treaty or to the Part 2 Order, but rather to the decision by the Secretary of State in March 2005 that the United States should continue to be included as a designated territory in paragraph 3 of the Part 2 Order. Mr Jones submitted that the current designation, and the failure or refusal of the Secretary of State to remove the United States from it, is unlawful and irrational. There is a contradiction between the designation and the express terms of the 1972 Treaty, still currently in force, embodying an agreement that extradition between the two states should not proceed without sufficient evidence to show a case to answer. If the 2003 Treaty is ratified by the United States, the inconsistency between the designation and the express terms of the extant Treaty would disappear and citizens of the United Kingdom would cease to have any enforceable right based on it. Until then, however, the right of United Kingdom citizens to rely on the terms of the existing Treaty applies in the same way as it does to citizens of the United States. In United States v Rauscher 119 US 407 (1886) 7 S. Ct 234, a longstanding decision of the Supreme Court, it was held that so far as the United States is concerned, a treaty to which it is party forms part of the law  [*12]  of the land capable of enforcement by United States citizens. The Secretary of State has failed sufficiently to appreciate that the 1972 Treaty continues in force, and that it provides protections enforceable by United Kingdom citizens faced with proceedings to extradite them to the United States. No sufficient effort has been made in the United States to seek ratification of the 2003 Treaty. The Government there had been “dilatory”, so that there is no immediate prospect of alleviating what Mr Jones described as a “glaring and continuing repugnance” between the international obligations created by the 1972 Treaty, and the continuing application of s84(7) to the United States. Moreover there is an imbalance and “lack of reciprocity” in the arrangements between the two sovereign states, which was never properly addressed.

 

36. Mr Jones further submitted that the decision to designate the United States was taken on the basis of what was differently described as a factual misunderstanding, or mistake, about the date when the 2003 Treaty would be ratified in the United States. This mistake impacted on the affirmative Parliamentary resolutions. In essence, Mr Jones suggested that it was anticipated, in accordance with the language of Article 23, that ratification in the United States would follow within a very short period of the designation order. Taking all these matters together, the basis for the claim for judicial review is that the continued designation of the United States is irrational and unlawful. Analysis

 

37. Mr Jones established that the Designation Order altered the arrangements for extradition between the United Kingdom and the United States, and removed the protective condition found in Article IX of the 1972 Treaty (so far as citizens of the United Kingdom are concerned) thus making it easier for the government of the United States to achieve the extradition of United Kingdom citizens. He has demonstrated that for the time being, the extradition arrangements between the two countries are not symmetrical. These are the essential features of the new arrangements for the extradition of United Kingdom citizens to the United States which represent the basis for criticism of the continued designation of the United States.

 

38. When I first read the papers it appeared that the claimant’s case proposed a direct interference by this Court in the legislative process. The relief he is seeking includes a declaration to the effect that the continuing designation of the United States under paragraph 3(1) of the Part 2 Order is inconsistent with the obligations of the United Kingdom under the 1972 Treaty. We were, so it seemed, being invited to order that the continued designation of the United States should have been disregarded by the Secretary of State in the case of the claimant, and should continue to be disregarded by him until such time as the 2003 Treaty has been ratified in the United States. In effect, notwithstanding the rejection in the House of Lords on 16th December 2003- of Lord Goodhart’s amendment, we should apply it, or treat it as if it applied. 39.Mr Jones emphasised in unequivocal terms that the claimant was seeking no more than a conventional judicial review. The power to make the designation order was created by Parliament and bestowed on the Secretary of State, but Parliament did not authorise him to designate in breach of international obligations. The discretion should be exercised in conformity with them. In support, our attention was drawn to the speech of Lord Browne-Wilkinson in R v Secretary of State for the Home  [*13]  Department ex parte Venables [1998] AC 407 at p 617 that there was an assumption that Parliament would not maintain “on the statute book a power capable of being exercised in a manner inconsistent with the treaty obligations of this country”. Mr Jones maintained that he was not attacking the 2003 Act itself, nor indeed the policy which gave rise to it. It was simply that the Secretary of State had a discretion whether to continue the designation of the United States as a territory to which s 84(7) applies, which he had exercised illegally and irrationally.

 

40. Despite the forensic stance taken by Mr Jones, it cannot be gainsaid that his submission repeated the arguments in the House of Lords which might have carried, but did not carry, the legislative day. As the designation of the United States was and remains politically controversial, I have to emphasise that we are not entitled toexercise some kind of broad supervisory oversight of the legislative process which led to the order, or the soundness of the affirmative resolution of both Houses that the order should be made. Our consideration is limited to the lawfulness, or otherwise, of the Secretary of State’s decision.

 

41. Mr Jones suggested that we should not be “inhibited” by the fact that the order made by the Secretary of State followed an affirmative resolution by both Houses of Parliament. Quite apart from his contention that his attack was directed to events after the designation order was made, he suggested that Javed v Secretary of State for Home Department [2002] QB 129 demonstrated the jurisdiction to review an orderapproved by both Houses of Parliament under the affirmative resolution procedure.

 

42. Mr Qureshi, on behalf of the Secretary of State, accepted that the court had jurisdiction to examine the exercise of the powers of the Secretary of State to continue the current designation of the United States. He drew attention to what he identified as significant differences between the issues under consideration in Javed and those which arise, from the reforming 2003 Act. Perhaps more important because it is obvious, he emphasised the caution to be taken when the court is invited to exercise this jurisdiction. On my analysis of Javed Mr Qureshi’s concession was right. As the Lord Phillips MR observed:

 

“Legislation is the function of Parliament, and an act of Parliament is immune from scrutiny by the courts, unless challenged on the ground of conflict with European law. Subordinate legislation derives it legality from the primary legislation under which it is made. Primary legislation that requires subordinate legislation to be approved by each House of Parliament does not thereby transfer from the courts to the two Houses of Parliament, the role of determining the legality of the subordinate legislation.”

 

Mr Qureshi focussed attention on the passage in the head note, derived, accurately in my view, from the judgment of the Master of the Rolls that:

 

“… the extent to which a statutory power was open to judicial review on the ground of irrationality depended critically on the nature and purpose of the enabling legislation.”  [*14] 

 

The context in Javed was Schedule 2 to the Asylum and Immigration Appeals Act 1933, as substituted, and the Asylum (Designated Countries of Destination Designated Safe Third Countries) Order 1996. As laid before Parliament, the order was in draft form. It was then approved by both Houses by affirmative resolution. Therefore the Secretary of State designated Pakistan for the purposes of the Order. He was entitled to do so, provided it appeared to him that there was in general no serious risk of persecution. The decision was quashed. There was no sufficient evidence to justify it.

 

43. The starting point for consideration of the present application is the 2003 Act. Nothing in the 2003 Act itself suggests that designation under Part 2 (and its subsequent application to an individual extradition case) is dependent on a bilateral treaty between the United Kingdom and the requesting country. The extradition process created by Parliament for United Kingdom citizens does not require reciprocity or mutuality. This is consistent with the approach of Lord Diplock in Re: Nielson where, in the context of the earlier legislation, he suggested that reciprocity was not a pre-condition to an extradition order. “The Acts of 1870 to 1932 do not themselves provide that an arrangement with a foreign state under s 2 of the Act of 1870 for the surrender by the United Kingdom to that foreign state of  fugitive criminals accused or convicted of criminal conduct committed within its jurisdiction must provide for reciprocity of surrender by the foreign state to the United Kingdom of persons accused or convicted of similar criminal conduct committed in this country. In practice, extradition treaties do provide for a substantial degree of reciprocity, but the surrender by a foreign state of a fugitive criminal from the United Kingdom who is found in the territory of that foreign state is not governed by English law at all, but solely by the law of the foreign state that is party to the treaty.”

 

In my judgment the argument based on the current absence of reciprocity does not, by itself, advance the claimant’s case.

 

44. The absence of reciprocity nevertheless provides the basis for Mr Jones’ primary complaint. He accepted that if the 2003 Treaty had been ratified by the United States within the short period envisaged by Article 23, then the extradition arrangements between the two countries would have been more symmetrical, and that the 1972 Treaty would have ceased to provide the claimant with the treaty rights for which he contends. Indeed, whenever it is so ratified, any such rights will be extinguished. Mr Jones was unable to show any previous authority in the United Kingdom which suggested that the 1972 Treaty, standing alone, created personal rights enforceable by its individual citizens. The Treaty specified the circumstances in which the governments of the United Kingdom and United States agreed that extradition would, or would not, take place and they bound themselves to a series of pre-conditions which would govern the extradition process. Thereafter, the rights of citizens of the United Kingdom were governed by domestic legislative arrangements which ensured that the extradition process should be subject to judicial oversight, in an appropriate case, extending as far as the House of Lords in its capacity as the final appellate court. The Treaty reflected the relationship agreed between the United Kingdom and the  [*15]  United States for the purposes of extradition, rather than the municipal rights of United Kingdom citizens, enforceable against their own government. In brief, therefore their rights were provided and guaranteed, not by treaty, but by domestic legislation.

 

45. That forms the context in which to consider the Order, which deprives the claimant of the protective condition found in article IX 1972 Treaty. In my view the treaty obligations to which Lord Browne-Wilkinson referred in Ex parte Venables (the United Nations Convention on the Rights of the Child (Treaty Series No. 44 of 1992)) are conceptually different from “rights” created by a treaty which is subject to and derives its authority from unequivocal statutory provisions. In a wide-ranging reform of the law relating to extradition, Parliament chose to give the Secretary of State power to make orders which, subject to affirmative resolutions in both Houses of Parliament, permitted the Government of the United Kingdom to afford other states, including United States, greater assistance in the extradition process than that provided in the 1972 Treaty, and simultaneously altered, and indeed reduced the protective provisions formerly available to United Kingdom citizens. The necessary affirmative resolutions were then passed. The protective conditions in the 1972 Treaty, and in particular Article IX, cannot obstruct, or hinder, or postpone the application of the 2003 Act, or defer the impact of the new legislative structure. The Act itself does not provide that the wide powers granted to the Secretary of State may not be exercised, or that he should postpone making designation orders, or delay the enforcement of those orders until reciprocity is achieved.

 

46. In my judgment Mr Jones is unable to bring this application anywhere near the considerations which led the court in Javed to quash the decision of the Secretary of State. The designation order with which we are concerned was made consistently with and derived its authority from current primary legislation, without constituting a breach of any continuing, enforceable, free-standing rights vested in the claimant. The Order itself is in close logical alignment with the legislation from which it draws its force. If, as I believe, the designation order was lawfully made by the Secretary of State following the af firmative resolutions of both Houses of Parliament, subject to Mr Jones’ alternative submission, I can see no basis for concluding that its continuation in force represents the exercise of a legally flawed or irrational decision.

 

47. I must now examine Mr Jones’ further criticism of the continued designation which, he argued, depended on the clear agreement, in effect cdnfirmed by Article 23 of the 2003 Treaty, that it would shortly be ratified by the United States, thus producing the level of symmetry for which he contends. Early in 2006, at the time of writing, the 2003 Treaty is still unratified. We were however told that the process leading to ratification has now started, and Senate hearings began in December 2005.

 

48. Mr Jones used different words to suggest that the United Kingdom had been acting under a mistake of fact, or “misled”, and in effect argued that the order had been signed by the Secretary of State on the basis of a misunderstanding. There is not a shred of evidence to suggest, and it was not suggested that the Secretary of State, or those who spoke in support of, or who indeed supported, either of the affirmative resolutions, were speaking or acting in bad faith. There was criticism of what was described as an inconsistency in the explanations given at different times by different Ministers which I have noted, but in the end, they are not critical to the outcome of the present application.  [*16] 

 

49. The position of the United Kingdom government was publicly expressed by Baroness Scotland of Asthal QC, Minister of State, responding to a debate on the maintenance of the designation in June 2005. She recorded her genuine disappointment “that the USA have not yet found the time to complete the necessary legal processes so that we can exchange instruments of ratification to ensure that the provisions of the new treaty are implemented on both sides of the Atlantic.”

 

50. It hardly needs saying that the United Kingdom cannot dictate to the United States the process by which it must or should ratify the 2003 Treaty. The constitutional process there appears to be much more complicated than it is here where, as Lord Goodhart says, it seems that a Treaty can be signed by the United Kingdom government without scrutiny by Parliament, or if I understand his evidence correctly, anyone else. Whether that is desirable is not a question we can or should address: nevertheless it emphasises that the constitutional arrangements in each country are different.

 

51. In my judgment it is not irrational for the Secretary of State patiently to endure the disappointment expressed by his Minister of State while nevertheless continuing to anticipate that in due course the new Treaty will be ratified. In the meantime, whatever he may do by exhortation and encouragement, he cannot interfere with the constitutional process in the United States. Even if he personally believed that the United States had been “dilatory”, to use Mr Jones’ word, given the wide margin of appreciation attaching to him, the Secretary of State is, at the very least, entitled to allow the democratic process in the United States to continue its carefully constructed progress, until it is, for practical purposes, effectively exhausted.

 

52. In summary, I accept that ratification by the United States failed to take place at the speed which, as signatory to Article 23, the Secretary of State may have anticipated, and others may have hoped. Nevertheless, I also remind myself that it took four years before final ratification of the 1972 Treaty was achieved. At the risk of repetition, on the arguments we have heard, the 2003 Treaty represents a diminution in the rights of the citizens of both countries, and in relation to citizens of the United States, personal rights which, if Mr Jones is correct, are directly enforceable by them. It is therefore hardly surprising that progress there has been slow. The proposal, implicit in this application, that we should make an order by way of judicial review which would compel the Secretary of State to remove the designation with a view to encouraging ratification of the Treaty by the United States, or to force the pace to the achievement of its ratification, would be inappropriate, while an order for the permanent removal of the United States would amount to a prohibition against the Secretary of State exercising powers expressly given to him by legislation. It is for him decide how to decide how and in what way the early ratification of the 2003 Treaty by the United States may best be achieved.

 

53. The application for judicial review is dismissed.

 

 

CRESSWELL J

 

I agree