Secretary of State for the Home Department, Ex parte Launder, R v. [1997] UKHL 20

House of Lords

Between

Secretary of State for the Home Department, Ex parte Launder, R v.Appellant

Before

Lord Browne-Wilkinson

Lord Steyn

Lord Hope of Craighead

Lord Clyde

Lord Hutton

Date 21 May 1997

My Lords,

I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Hope of Craighead. For the reasons which he gives, I would allow the appeal.

LORD STEYN

My Lords,

I have read in draft the speech to be delivered by my noble and learned friend, Lord Hope of Craighead. For the reasons he gives I would allow the appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

This is an appeal against the decision by the Divisional Court of the Queen's Bench Division (Henry L.J. and Ebsworth J.) on 6 August 1996 to quash a warrant under section 12 (1) of the Extradition Act 1989 by which the Secretary of State for the Home Department ordered the respondent, Ewan Quayle Launder, to be returned to Hong Kong at the request of the Governor to face trial there on charges of corruption for which on 23 November 1989 a warrant had been issued by the Principal Magistrate.

Although the respondent denies the charges which have been laid against him, he accepts for the purposes of this case that a prima facie case against him has been made. The offences fall within the definition of the expression "extradition crime" in section 2(1) of the Act . Arrangements exist between the United Kingdom and the Crown Colony under the Fugitive Offenders (Hong Kong) Order 1967 for securing that the requirements of section 6 (4), known as the "specialty protection", are satisfied. It is not suggested that any of the particular matters mentioned in section 12

(2) which would make it unjust or oppressive for him to be returned the Hong Kong arise in this case. There is no reason to think that there would have been any other grounds for objecting to the warrant, had it not been for the fact that on 1 July 1997 sovereignty over Hong Kong will be transferred to the Peoples' Republic of China and Hong Kong will then cease to be a Crown Colony.

It has for some time been obvious that the respondent's trial for these offences could not take place until after the transfer of sovereignty. It was plain that questions would be raised about the procedures which would be in place in Hong Kong after 1 July 1997, to ensure that the respondent would receive a fair trial and that he would continue to have the benefit of the specialty protection there were he to be extradited. But the respondent has raised objections to the warrant directed to the future of Hong Kong which are of an even more fundamental character. He maintains that, despite the arrangements which have been made to secure continuity for the rule of law after the transfer, he would be faced with the real risk that the safeguards will not be effective and that he will receive an unfair trial and, if convicted, inhumane punishment. It is these questions which have given rise to the important and difficult issues in this appeal.

It is hard to imagine a more significant event in the history of any state than a transfer of its sovereignty. The transfer of sovereignty over Hong Kong from the United Kingdom to the Peoples' Republic of China (P.R.C.) will bring to an end more than a century and a half of British rule since Hong Kong island was first occupied by the United Kingdom in 1841 after the Opium War. For the peoples of the region, and for the people of Hong Kong in particular, the resumption of Chinese sovereignty will change many things. That is to be expected and is, indeed, inevitable. But in other respects the transfer will be an unusual one, perhaps unique. It will above all be a negotiated and orderly transfer, the product of 15 years' preparation for the event. There are numerous examples in history of transfers of sovereignty by conquest, by treaty or concession or by purchase. But such a long period of negotiation and preparation appears to be unprecedented. The transfer will also involve the creation in Hong Kong of a separate and novel system of government. This has been designed to preserve its own legal system and to provide for it a high degree of legislative and executive autonomy. Under the principle of "one country, two systems" the P.R.C. have decided that, upon its resumption of sovereignty, a Special Administrative Region (S.A.R.) will be established in Hong Kong and that the socialist system and policies will not be practised there. Not even the United Kingdom, which in other respects is a unique arrangement, provides a precise analogy. For example, the supreme judicial authority for all three jurisdictions in the United Kingdom, save only in respect of decisions of the High Court of Justiciary in Edinburgh, resides in the House of Lords at Westminster. For Hong Kong the supreme judicial authority will reside in Hong Kong, not the P.R.C.

It will be necessary for me later to describe some of the details of these arrangements. At this stage it is sufficient to say that the context for an examination of the issues of law in this case is, even for extradition cases, an unusual one. It placed a heavy responsibility on the Home Secretary whose decisions are under challenge in this case. Your Lordships will be aware of the responsibility which now rests with this House, in view of the critical stage which matters have now reached in the preparation for the hand-over in only a few weeks' time.

Procedural History

It is first necessary to set out briefly a history of the events which have led to this appeal.

The warrant which was issued by the Principal Magistrate on 23 November 1989 was in connection with 14 charges of accepting an advantage, contrary to section 9 (1)( b ) of the Prevention of Bribery Ordinance, Chapter 201 of the Laws of Hong Kong. The charges related to payments made to the respondent between 11 October 1980 and 3 January 1982, during a period when he was resident in Hong Kong and employed there in a senior position in a merchant banking company. They were alleged to have been made in connection with the granting by that company of loans to groups in which the persons who made the payments were shareholders. The payments allegedly so made total HK$45.95 million, which is £3.8 million at current exchange rates. A provisional warrant for the respondent's arrest was issued at Bow Street Magistrates' Court on 21 May 1990. He was arrested on 10 September 1993 at Heathrow Airport, having arrived in this country from Berlin. He was granted bail on 30 September 1993 and has been on bail ever since.

On 7 October 1993 the Governor of Hong Kong made a request to the Secretary of State for Foreign and Commonwealth Affairs for the extradition of the respondent to Hong Kong. On 12 January 1994 the Secretary of State issued to the magistrate an authority to proceed under section 7 (1) and (4) of the Act of 1989. On the same day he issued a specialty certificate under section 6 (7) of that Act to the effect that the Governor of Hong Kong had undertaken that the respondent would receive the protection set out in subsection (4) of that section. On 7 April 1994 the magistrate committed the respondent under section 9 to await the Secretary of State's decision whether or not to order his return. The respondent challenged that order by applying for a writ of habeas corpus to the Divisional Court. That application was dismissed by the Divisional Court on 14 December 1994, and on 9 March 1995 leave to appeal to the House of Lords was refused.

The respondent then made extensive representations to the Secretary of State in an endeavour to persuade him not to order his return to Hong Kong. These were made by him personally by letter to the Home Secretary, through his M.P. and through his solicitor. These representations were supported by lengthy affidavits from experts in this field which raised substantial questions about the prospects of a fair trial and the impartial administration of justice in Hong Kong after the transfer of sovereignty. Following an invitation to comment on a response on these matters from the Hong Kong Government as the requesting authority, the respondent's solicitor submitted further material to the Home Secretary. On 31 July 1995 the Secretary of State wrote to the respondent's solicitor informing him that he had decided to order the respondent's return to Hong Kong.

That letter was written on his behalf by Mr. David Ackland, the Head of the International Criminal Policy Division of the Home Office, of which the Extradition Section of the Home Office is a part. He stated that, in the light of the matters raised by the respondent, the Secretary of State had agreed exceptionally to give his reasons at that stage, reserving the right to expand on them later if leave were to be sought to move for judicial review of the decision. In his statement of the reasons he said that the Secretary of State had considered very carefully all the extensive representations made on the respondent's behalf, but that he did not consider that they were sufficient either individually or cumulatively to justify not surrendering him. After dealing with matters which are no longer in issue, he dealt with the allegations of prejudice arising from the position in Hong Kong after 1 July 1997. He summarised the measures which were to be in place in Hong Kong after that date in the light of the Joint Declaration and the Basic Law to which I shall return later in this speech. He then dealt with representations that the order would be in breach of the respondent's rights under the European Convention of Human Rights and European Community law.

The letter concluded with these paragraphs:

That is the first decision which was challenged in the proceedings in the Divisional Court. Leave on the application was granted on 7 August 1995. On 8 January 1996 an affirmation by Mr. Ackland was lodged providing a more complete summary of the reasons for the decision taken by the Secretary of State.

Thereafter, in the light of further developments in Hong Kong which the respondent maintains made it clear that he would not get a fair trial after 1 July 1997 if he were to be extradited and that in other respects he would be exposed to oppression and injustice there, his solicitors wrote to the Home Secretary on 29 November 1995 inviting him to reconsider his decision to order the return. They enclosed with their letter a substantial body of further material which the Home Secretary was asked to consider in reviewing his decision. By a letter to the respondent's solicitor dated 21 December 1995, which was written on his behalf by Dr. Susan Atkins, the Head of the Extradition Section of the Home Office, the Home Secretary replied in these terms:

That decision also was challenged in the Divisional Court. An order granting leave on this application was granted on 4 January 1996. On 2 February 1996 an affidavit by Dr. Atkins was lodged setting out the reasons which had guided the Secretary of State in his decision that there were no grounds for reversing his decision of 31 July 1995.

Proceedings in the Divisional Court

The argument in the Divisional Court was directed to six issues, on all of which except one it was held that the application for judicial review must fail. Those on which the decision was adverse to the respondent were(1) the effect of delay, having regard in particular to the provisions of section 12 (2)( a )(ii) of the Act of 1989;

(2) alleged errors of law on the passage of time;

(3) procedural improprieties, injustice and perversity;

(4) the respondent's personal circumstances; and

(5) the European Convention on Human Rights and European Community law points. On the final point (6), identified in the judgment as the China Point, the Divisional Court reached the view that the Secretary of State had erred in his approach to the exercise of his discretion under section 12 (1). This was because they understood that he had felt himself bound by a collective Cabinet decision that the P.R.C. would comply with its treaty obligations in regard to each of the treaty provisions which were to be in place in Hong Kong after 1 July 1997 to prevent injustice. It was maintained that his decision on this basis was not reviewable in the courts, but that argument was rejected. The warrant ordering the return of the respondent was quashed, and the matter was remitted to the Secretary of State for further consideration.

As a result of that decision the following question was certified in order to identify the issue of public importance in the case:

The Issues in this Appeal

Mr. Parker Q.C. submitted, in opening the appeal, that the Divisional Court, while right in understanding his submission to be that the issue was non-justiciable, was wrong to conclude that the Secretary of State's decision was dictated by a collective decision by the Cabinet. He said that the Court had reached its judgment on the basis of a position which he had not put to them, as his argument had been that the Secretary of State had made a personal decision on these matters. He maintained that the Secretary of State had been entitled to rely on the fact that a treaty had been entered into between the United Kingdom and the P.R.C., the basic principles of which had been acted upon when the framework for the future administration of Hong Kong was set up when the Basic Law was promulgated. The real issue therefore was whether the Secretary of State had acted reasonably in reaching his decision, based on all the evidence, that the P.R.C. had not repudiated its obligations under the treaty and that there was no intention on its part not to implement the relevant provisions of the Basic Law.

In making these submissions Mr. Parker was repeating what had been set out in the Statement of Facts and Issues, in which it is recorded that there is an issue between the parties as to the basis of the Secretary of State's reasoning. The respondent's position is that the Secretary of State considered himself bound by a collective Cabinet decision to the effect that the P.R.C. would respect its obligations under the treaty and that there had been no acts indicating an intention on its part to repudiate those obligations. In the result he had considered that it was not open to him to examine for himself the question whether there was any risk to Mr. Launder if he were to be extradited. But Mr. Alun Jones Q.C. for the Government of Hong Kong supported Mr. Parker's submission that the Divisional Court had failed to appreciate that the Secretary of State had made an individual decision in which he had addressed the issues properly. He said that it was clear from the evidence that he had exercised his own discretion in reaching his decision on this matter, and that the only question in the case was whether he had acted irrationally. In the Divisional Court an issue had been raised for the first time about non-justiciablity, but the decision letters and the affidavits for the Home Secretary showed that he had conducted the normal exercise of assessing the competing factors in what was essentially a balancing exercise.

Mr. Vaughan Q.C. for the respondent maintained that the Divisional Court had been entitled to rely on the submissions of the Secretary of State's counsel, which had been to the effect that the decision taken was non-justiciable. That was why the certified question had, with the agreement of all counsel, been framed in order to identify this issue as the one which was of importance in the case. He agreed that it had not been stated anywhere in the evidence or in the Secretary of State's skeleton argument that the decision had been reached on the basis of a collective decision by the Cabinet. But he said that the evidence was ambiguous on this point and that it required explanation. He referred to a transcript of Mr. Parker's submissions to the Divisional Court in which he made it clear that his argument was that, as there had been a collective decision by the Government that the Joint Declaration and the Basic Law would be complied with by the P.R.C., the issue whether there was a substantial risk to the respondent was non-justiciable.

Mr. Parker conceded that the question as certified did not now arise, in view of his submissions to your Lordships about the state of the evidence. Mr. Vaughan submitted that your Lordships had no jurisdiction to decide any question other that that which had been certified and that, even if your Lordships had jurisdiction to consider the questions of irrationality and illegality, these questions should be directed only to the point whether there had been a repudiation by the P.R.C., not whether a proper assessment had been made of the risks to the respondent. I do not think that I need to expand upon these submissions because, having conferred after listening to them, your Lordships reached the view that we should not decline to hear argument on issues other than on the question which had been certified.

In Attorney General for Northern Ireland v. Gallagher [1963] A.C. 350 it was held that the jurisdiction of this House under section 1 of the Administration of Justice Act 1960 in criminal cases is not confined to the point of law set out in the certificate. The same reasoning can be applied to this case. As Lord Reid indicated, at pp.365-366, the function of the House is to decide the appeal. The only alternative would be to remit to the Court below to reopen the case, to hear further argument and to reach a fresh decision in the light of it. There would then have to be a further appeal to bring the matter back before your Lordships' House. In the present case that would not be attractive--it would mean more delay--and it is also unnecessary. All the evidence about the decisions in question is before us, and we were able to hear a full argument on all the issues which the respondent's counsel, in the knowledge that there was a dispute on this point, had set out in their printed case. While it is regrettable that, as Mr. Parker now accepts, the true issues in the case were not clearly identified in argument in the Divisional Court with the result that they were misled into deciding the case on a wrong basis, it would not be in the interests of justice for your Lordships to decline to deal with all the issues now in this appeal.

We must decline to answer the certified question, as it is conceded that that question does not now arise. It is accepted that the question whether the Secretary of State reached a decision which he was entitled to reach is justiciable. So the issues which your Lordships must decide are the familiar ones upon which an administrative decision is subject to review--those of procedural impropriety, illegality and irrationality. In addition there are the issues relating to the respondent's rights under the European Convention on Human Rights and European Community law, which Mr. Vaughan was allowed to develop again before your Lordships in view of the wider scope which it was necessary, in fairness to the respondent, to give to the argument. I shall deal with the issues in that order. But it is first necessary to set the scene by examining the situation in Hong Kong in more detail and identifying the basis on which the Secretary of State reached the decisions which are under challenge in this appeal.

The Joint Declaration and the Basic Law

In 1984, after two years of negotiation, between the United Kingdom and the P.R.C., an international agreement was entered into between these two countries entitled the Sino-British Joint Declaration on the Question of Hong Kong (the Joint Declaration). This is a legally binding bilateral treaty which has been registered with the United Nations both by the United Kingdom and by the P.R.C. The agreement binds the United Kingdom, as the outgoing sovereign state, to transfer sovereignty over Hong Kong to the P.R.C. with effect from 1 July 1997. In the United Kingdom the Hong Kong Act 1985 was passed to make provision for the transfer of sovereignty and other matters consequential on the change of sovereignty and jurisdiction in implement of the Joint Declaration. The P.R.C. for its part undertook, upon the resumption of the exercise of sovereignty, to establish in accordance with article 31 of the Constitution of the P.R.C., a Hong Kong Special Administrative Region which would enjoy a high degree of autonomy, except in foreign and defence affairs which were to be the responsibility of the Central Peoples' Government. Paragraph 3(3) of the Joint Declaration states:

Annex I to the Joint Declaration sets out an elaboration by the P.R.C. of its basic policies regarding Hong Kong. Among the many provisions set out in this Annex are those relating to its Constitution, and its legal and judicial systems. In regard to the Constitution Part I of Annex I states, in sentence 42:

In regard to the legal system Part II of Annex I states, in sentence 53:

In regard to the judicial system Part III of Annex I states, in sentences 59 to 62:

Sentence 68 of the same Part contains this provision:

Basic Rights and Freedoms are the subject of further provisions which are set out in Part XIII of Annex I, among which are the following provisions in sentences 150, 152 and 153:

It can be seen from these necessarily brief quotations that the Joint Declaration provides specifically for the maintenance of Hong Kong's existing judicial system, except for the changes which are required to vest the power of final adjudication in the court of final appeal in place of that vested at present in the Judicial Committee of the Privy Council. Hong Kong is to keep its own legal system based on the common law. That system will, for the next 50 years, be kept entirely separate from that which applies elsewhere in the P.R.C. The power of final adjudication will rest with the court of final adjudication in Hong Kong, not a supreme court in the P.R.C. The provisions of Part XIII of Annex I contain a striking declaration of the P.R.C.'s commitment to the protection of human rights in the Hong Kong S.A.R., bearing in mind the fact that the P.R.C. is not yet a party to either of the multinational treaties referred to at the end of that article.

The Joint Declaration was initialled on 26 September 1984, signed at Beijing on 19 December 1984 and ratified by Parliament on 27 May 1985. In accordance with provisions set out in Annex II a Sino-British Joint Liaison Group was set up to conduct consultations on the implementation of the Joint Declaration and to discuss matters relating to the smooth transfer of government in 1997. In June 1985 a Basic Law Drafting Committee was set up by the P.R.C. which consulted with a liaison committee in Hong Kong. On 4 April 1990 the President of the P.R.C. promulgated the Basic Law for the Hong Kong Special Administrative Region of the People's Republic of China (the Basic Law). On the same date in a Decision of the National People's Congress on the Basic Law it was declared:

The Basic Law is a lengthy document. It contains 159 articles. It would not be practicable to quote here all the provisions which are relevant to the respondent's case. But in summary it may be said to have implemented in full the treaty obligations owed to the United Kingdom by the P.R.C. under the Joint Declaration. It has also reflected throughout the principle of "one country, two systems" by which it had been declared as a matter of policy that the socialist system and policies would not be practised in the Hong Kong S.A.R. Then there are the provisions in Chapter III relating to the fundamental rights and freedoms of the residents of Hong Kong. Article 28 states that "No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment." These rights and freedoms are extended by article 41 to persons other than Hong Kong residents. Among the provisions in section 4 of Chapter IV relating to the Judiciary there are the following articles:

Article 158 provides that the power of interpretation of the Basic Law shall be vested in the Standing Committee of the National People's Congress, but that the Standing Committee shall authorise the courts of the S.A.R. to interpret on their own, in adjudicating cases, the provisions of the Basic Law which are within the limits of the autonomy of the region. So the power of interpretation of those parts of the Basic Law which relate to matters which have declared to be internal to the S.A.R. is to be devolved to the courts of the S.A.R.

These two documents are impressive both in their attention to detail and in their recognition of fundamental principles. The whole approach is founded on the rule of law. It is entirely consistent with modern concepts of legality. No criticisms have been made in these proceedings on the respondent's behalf about the content of the documents. The question which he has raised is whether the rule of law will turn out to be an illusion in the real world after the handover. The thrust of his attack is that the provisions are still at the executory stage. They have not yet been brought into effect. Their operation in practice has yet to be tested. The respondent contends, by reference to many recent examples of departures from human rights norms within the P.R.C., that there is a substantial risk that in various respects the Joint Declaration will not be adhered to by the P.R.C. after the handover. In so far as his prospects of receiving a fair trial, and of appropriate punishment if found guilty, are concerned he says that the present system in Hong Kong cannot be relied upon to continue beyond 30 June 1997. Questions have also been raised on his behalf as to whether the P.R.C. might so interpret the Basic Law as to deny him a fair trial in view of the provisions of article 19, which declares that the courts of the Hong Kong Special Administrative Region shall have no jurisdiction over acts of state such as defence and foreign affairs. He fears that, as a foreign national, he will be vulnerable to a decision by the Chief Executive that the prosecution in his case is an act of state, which would not be reviewable by the courts of the S.A.R. He also questions the reasonableness of the Secretary of State's judgment that extradition arrangements, and in particular the specialty protection required by section 6(4) of the Act of 1989, will be in place by 1 July 1997.

The Decisions by the Secretary of State

The provisions of the Extradition Act 1989 which are relevant to the decisions which are under review in this case are in sections 6 and 12 of that Act. Section 6 imposes general restrictions on the return of a person under the procedures set out in Part III of the Act . Subsection (4) of the section provides:

Section 12, which appears in Part III of the Act , provides that the decision to return a person into the custody of the requesting state is at the discretion of the Secretary of State. Subsection (2) sets out various circumstances in which it is provided ( a ) that the Secretary of State shall not make an order under that section and ( b ) that he may decline to make an order. The relevant subsection in this case is subsection (1), which confers a general discretion on the Secretary of State in these terms:

The power which is given to the Secretary of State by section 12 (1) to make no order in his case is an important part of the protections which the law provides to persons who are the subject of an extradition request. A provisional warrant for his arrest must first be issued under section 8 of the Act . Section 9 provides that, once arrested, he must be brought as soon as practicable before a court for committal to await the decision of the Secretary of State as to his return to the foreign state, Commonwealth country or colony which made the request. His committal is subject to review under the procedures set out in section 11 , by which he has the right to make an application for habeas corpus in the High Court. Then there is the Secretary of State's discretion under section 12 (1) not to order his return which, as these proceedings have demonstrated, is subject to judicial review by the court in the exercise of its supervisory power. Even after he has issued the surrender warrant the protections are not at an end. The Secretary of State has a continuing duty to keep the matter under review until the person is removed from this country for return to the place which made the request. This is because he has the power, should circumstances change, to withdraw the warrant before it has been implemented. It was in recognition of this duty that, although not obliged to do so by the statute, the Secretary of State agreed to consider the representations made in the light of his original decision letter before issuing his decision of 21 December 1995 not to reverse his earlier decision and withdraw the surrender warrant.

The evidence as to the basis on which the Secretary of State arrived at his decision on 31 July 1995 that the respondent was to be returned to Hong Kong, and his further decision on 21 December 1995 that there was nothing in the respondent's latest representations which led him to reverse that decision, is to be found in the letters themselves and in the supporting affidavits--the affirmation by Mr. David Ackland, who wrote the first letter, and the affidavit by Dr. Susan Atkins, who wrote the second letter. The structure and content of these documents leads me to the following conclusions about the process of reasoning which the Secretary of State adopted when he took these decisions.

First, it is stated expressly in these documents that the Secretary of State gave careful consideration to all the representations which had been made to him on the respondent's behalf. On the first page of the letter of 31 July 1995 it is stated:

"The Secretary of State considered very carefully all the extensive representations made on behalf of Mr. Launder."

In paragraph 2 on the second page it is stated:

"The Secretary of State does not consider that the representations made by or on behalf of Mr. Launder are sufficient, either individually or cumulatively, to justify not surrendering him."

Statements to the same effect are to be found in paragraph 3 of Mr. Ackland's affirmation. In paragraph 34 of his affirmation this statement appears:

In the letter of 21 December 1995 it is stated:

"The Secretary of State has given careful consideration to the representations made by you on behalf of Mr. Launder to determine whether they give rise to sufficient grounds for withholding the surrender warrant."

A statement to the same effect is to be found in paragraph 2 of Dr. Atkins' affidavit. No evidence has been shown to us which casts doubt on the accuracy of these statements by two senior officials of the Home Office.

Secondly, it is clear that great weight has been given by the Secretary of State, in his analysis of what the Divisional Court described as the China Point, to the provisions of the Joint Declaration and the Basic Law. The discussion in paragraphs 2.6 to 2.9 of the letter of 31 July 1995 of the respondent's representations refers throughout only to the Joint Declaration and the Basic Law and, in regard to specialty protection, to an extradition ordinance to be enacted locally. These points are discussed in more detail in paragraphs 23 to 33 of Mr. Ackland's affirmation. In paragraph 34 it is stated:

"On all the foregoing matters the Secretary of State has proceeded on the basis that the P.R.C. will honour its obligations and commitments under the established instruments."

In her affidavit Dr. Atkins repeats and develops this analysis. In paragraph 5 she states that the Secretary of State "proceeded on the basis" that the P.R.C. would comply with its obligations under the Joint Declaration, and similar statements appear in paragraphs 7, 9, 14, 19 and 20.

Third, no attempt is made to answer in any other way the many detailed representations on the respondent's behalf that, despite what is said in these instruments, the legal, penal and judicial system in Hong Kong after 1 July 1997 would not protect his right to a fair trial and, if convicted, to appropriate punishment. The respondent's argument is that the Secretary of State's approach, which faithfully reflects the evidence from Hong Kong through the affidavit of the Attorney General, Mr. Matthews, relies solely on the letter of the treaty and does not begin to address itself to reality. As the Divisional Court put it, the concerns which were expressed about this in the respondent's evidence were specific, reasoned and supported by evidential material and by argument. I shall not attempt to summarise this material. It is sufficient to say that it contains numerous examples of acts done or permitted to be done by the P.R.C. and its officials to illustrate the argument that in the P.R.C. the law is seen as the instrument of the Party and of the Executive, and that any legal framework, however fair and however comprehensive, cannot be expected to guarantee and independent system of justice after the handover. Neither of the decision letters or the supporting affidavits address contain any comments which are addressed to this issue.

Fourth, the test which the Secretary of State has applied in reaching his decision was, as is apparent from the letter of 31 July 1995, whether it was unjust, oppressive or wrong to order the respondent's return. This reflects the wording of section 12 (2) of the Extradition Act 1989 , which provides that the Secretary of State shall not, in the case to which the paragraph refers, order the return if it appears to him that "it would, having regard to all the circumstances, be unjust or oppressive to return him." The use of this test indicates that the Secretary of State was aware that his primary concern was with the rights of the individual which as Mr. Parker accepted, must prevail over such public interest as there may be in maintaining good relations with the P.R.C.

Fifth, there is no mention in either of the letters or in the affidavits of a collective Cabinet decision about the effects of the treaty arrangements or of any view taken on this matter by the Government. The views expressed are said to be those of the Secretary himself, in the exercise of his discretion. There is therefore a sound basis in the evidence for examining his decisions in the normal way to see whether there was a defect in the decision-making process in the manner described by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation

[1948] 1 KB 223

, 233-234. But it has to be said that we are dealing here with decisions in which there is obviously a substantial policy content where, as Sir Thomas Bingham M.R. observed in Regina v. Ministry of Defence, Ex parte Smith

[1996] QB 517

, the court must exercise great caution in holding a decision to be irrational. The area is a particularly sensitive one as it involves an assessment of the effect of treaty obligations undertaken between two sovereign states, as to which Lord Wilberforce's comments in Buttes Gas and Oil Co. v. Hammer (No.3) [1982] A.C. 888, 938 are especially relevant.

The Principles to be Applied in Extradition Cases

In Atkinson v. United States of America Government [1971] A.C. 197, 232-233, Lord Reid said of the Extradition Act 1870 that it provided a safeguard for the fugitive because the Secretary of State always had the power to refuse to surrender a man committed to prison by the magistrate, and that it appeared to him that Parliament must have intended the Secretary of State to use that power whenever in his view it would be wrong, unjust or oppressive to surrender the man. An express power to this effect has now been conferred on the High Court by section 11 (3) of the Extradition Act 1989 , as Lord Griffiths pointed out in Regina v. Horseferry Road Magistrates' Court, Ex parte Bennett

[1994] 1 AC 42

, 63. The same test, as to whether it would be unjust or oppressive to return the man, is to be found in section 12 (2) of the Act which deals with the powers of the Secretary of State. So there can be no doubt that the test which the Secretary of State applied in this case, as appears from the express references to this test in the concluding paragraphs of his letter of 31 July 1995, was the right one.

But what was the Secretary of State to make of the respondent's argument that the treaty arrangements with the P.R.C. could not be relied upon to guarantee his rights to a fair trial and to appropriate punishment? It is clear that an argument in these terms would not be justiciable in the courts. In Regina v. Governor of Brixton Prison, Ex parte Kotronis [1971] A.C. 250 the applicant was a Greek national who had been convicted of an offence in a Greek court for which he had been sentenced to three years' imprisonment. It was contended that, as he was a political opponent of the then Greek government, he had good reason to fear that, should he be returned to Greece, he would be detained either after, or in lieu of, serving his sentence there. Lord Reid dealt with that aspect of his case at pp. 278-279:

The position of the Secretary of State is, of course, different. He cannot ignore representations of that kind on the ground that it must be assumed that a foreign government with which this country has diplomatic relations will adhere to its treaty obligations. If issues of that kind are raised in a responsible manner, by reference to evidence and supported by reasoned argument, he must consider them. The greater the perceived risk to life or liberty, the more important it will be to give them detailed and careful scrutiny. In Regina v. Secretary of State for the Home Department, Ex parte Bugdaycay

[1987] AC 514

, 531G Lord Bridge of Harwich said:

In the same case, at p 537H, Lord Templeman extended that duty to the court in its examination of the Secretary of State's decision-making process:

"In my opinion where the result of a flawed decision may imperil life or liberty a special responsibility lies on the court in the examination of the decision-making process."

In that case one of the appellants, Musisi, had arrived at Heathrow from Kenya. He was a national of Uganda from which he was a refugee, and he claimed political asylum. The decision to refuse him leave to enter was not based on the denial of his claim to refugee status, but on a conclusion by the Secretary of State that his status as a refugee under the Convention from Uganda did not present an obstacle to his return to Kenya whence he had come. The argument on his behalf was that he would be at risk of being returned to Uganda if he were to be returned to Kenya as a Ugandan national. His appeal was successful, because the evidence showed that the Secretary of State had not adequately considered the question whether there was a danger that his removal to Kenya would result in his return to Uganda. He had not taken into account or adequately resolved the ambiguities and uncertainties which surrounded the conduct and policy of the authorities in Kenya. Lord Bridge explained the approach in this way, at p. 532 E-G:

Procedural Impropriety, Illegality and Irrationality

I can deal briefly with the issues of procedural impropriety and irrationality. Mr. Vaughan submitted, after taking us through the evidence, that it was clear that the Secretary of State had completely failed to conduct the proper procedures in his approach to this material. It seems to me however, as it did to the Divisional Court, that the Secretary of State cannot be faulted on the ground that he failed to act with procedural fairness. He gave ample opportunity to the respondent to submit representations. He took advice from the Government of Hong Kong, and he gave the respondent a further opportunity to comment on that advice. He decided, in a commendable departure from the normal procedure in extradition cases, to give reasons for his decision in the letter of 31 July 1995. This enabled the respondent to prepare and submit further representations, which the Secretary of State received and considered before issuing his decision on 21 December 1995 not to withdraw the surrender warrant. He made it clear both in his decision letters and through the affidavits of his officials that he had considered carefully all the representations which had been made.

As for irrationality, which Mr. Alun Jones said was the only real issue in the case, this also seems to me to be a complaint which is without any real substance. The question whether it is unjust or oppressive to order the respondent's return to Hong Kong must in the end depend upon whether the P.R.C. can be trusted in implement of its treaty obligations to respect his fundamental human rights, allow him a fair trial and leave it to the courts, if he is convicted, to determine the appropriate punishment.

It cannot be stressed too strongly that the decision in this matter rests with the Secretary of State and not at all with the court. The function of the court in the exercise of its supervisory jurisdiction is that of review. This is not an appeal against the Secretary of State's decision on the facts. His decision has had to be taken amidst an atmosphere of mistrust and suspicion which a court is in no position to penetrate. The visible part is the framework of law which I have described. That part can be explained and analysed. The invisible part is about the hearts and minds of those who will be responsible for the administration of justice in Hong Kong after the handover. This is not capable of analysis. It depends, in the end, upon the exercise of judgment of a kind which lies beyond the expertise of the court. That, no doubt, is why the decision whether or not to grant the warrant has been entrusted to the Secretary of State by Parliament.

On this matter there is room for two quite different views. On one view, which is that taken by the respondent and is supported by a substantial body of evidence from expert witnesses, the P.R.C. has already demonstrated by its conduct in recent years within China that it is incapable of giving effect to the rule of law on which the Basic Law must depend. On this view there is a risk, especially in a case which may be regarded as politically sensitive, that any trial would be unfair and that on conviction the executive would insist on inhuman and excessive punishment. The other view, which is that taken by the Secretary of State, is that the P.R.C. has good reason to make every effort in the Hong Kong S.A.R. to preserve the existing criminal justice system, in recognition that it would not be appropriate to practise the socialist system and policies there. As the preamble to the Basic Law declares, it has been appreciated by the P.R.C. that this is essential if the prosperity and stability of Hong Kong is to be maintained after the transfer. The P.R.C. have an obvious interest in making a success of the new arrangements. A breakdown of the rule of law generally, or even a departure from it in some cases such as this one, would be bound to have a serious effect on confidence throughout the business community on which it depends for that success. In these circumstances optimism about the future for human rights in Hong Kong after the handover, for which such careful arrangements have been made in the Joint Declaration and the Basic Law, cannot be said to be unreasonable. Past conduct within China is not necessarily a good guide to what will happen in Hong Kong after the transfer of sovereignty. The care which has been taken during the long period of preparation for the event to address this issue, which is obvious from the close attention to detail which is revealed by the relevant documents, provides a clear basis for holding that the decision of the Secretary of State to reject the respondent's arguments was not irrational. If there was room for doubt on this matter, I would regard this as a case where great caution would have to be exercised, despite the need for anxious scrutiny, before holding that decision to be one which, in the relevant sense, was unreasonable. But, in all the circumstances, I do not think that there is any real room for doubt.

The real question in the case, as I see it, is whether in taking his decision the Secretary of State asked himself the right question or whether, to put it another way, he fettered his discretion by asking himself the wrong one. This issue has been obscured by the way in which the case was argued on his behalf in the Divisional Court. There can be no doubt that if, as was being suggested, the Secretary of State regarded himself as bound by the Cabinet's judgment on this matter to assume that the P.R.C. would comply with its treaty obligations and on this ground gave no further consideration to the respondent's arguments, he would have failed to direct himself properly to his responsibilities under section 12 of the Act . But, for the reasons already given, I am satisfied that that is not what he did. The evidence shows that he took his own decision after considering all the representations which had been made to him.

But what was the question to which he addressed his mind? If, as was suggested by Mr. Parker at one stage in the argument, he addressed his mind only to the question whether the P.R.C. had repudiated, or was likely to repudiate, its obligations under the treaty, he would have failed to ask himself the right question. The right question, in the light of the representations which had been made to him, was a narrower and more precise one. It goes to the heart of the issue as to whether it would be unjust or oppressive for the respondent to be extradited. It is whether this particular individual would be exposed to the risk of injustice or oppression if he were to be returned to Hong Kong to face trial there after 1 July 1997. If he asked himself the wrong question his decision would be flawed on the ground of illegality. If he asked himself the right one and answered it negatively in the light of all relevant evidence, then, as Lord Bridge said in Bugdaycay , the court cannot interfere.

The point requires anxious consideration in the light of the risks which the respondent has identified. An assessment of the risks to the individual after 1 July 1997 is not completed by looking simply for evidence of repudiation by the P.R.C. of its obligations under the treaty. There are passages, especially in the affidavits, which indicate an assumption by the Secretary of State that all the treaty obligations relating to the implementation of the Basic Law will be observed. That, no doubt, is why so much of the content of the affidavits has been taken up with an explanation of the measures which will be in place by the date of the handover. There is nothing wrong with that as a starting point. The words of the Joint Declaration and the Basic Law are both relevant and important in the assessment of what the respondent is likely to face if he is returned to Hong Kong. But the question then has to be asked whether these words are likely in practice, in his case, to be meaningless. As the transfer of sovereignty still lies in the future, assumptions about what the future holds for him are inevitable. The P.R.C. cannot be required to serve a probationary period in order to test its behaviour after the handover. The question then is whether the Secretary of State went further in his consideration of the case beyond general assumptions about legality and examined the risks to the respondent as an individual.

The concluding paragraphs of the letter of 31 July 1995 which I quoted earlier provide the best evidence of the question which the Secretary of State had identified. He made it clear here that he had asked himself whether, in all the circumstances, it would be unjust or oppressive or wrong to order the respondent's return to Hong Kong. This was the correct test, and I consider that by applying it the Secretary of State can be taken to have applied his mind to the position which the respondent in particular would face under the new arrangements in view of the risks which he had identified. The point to which the respondent had drawn his attention was that the letter of the Basic Law could not be relied upon, at least in his case. The Secretary of State said in his decision letters that he gave careful consideration to the representations which had been made to him. It was not necessary for him to deal with every point which had been raised in the reasons which he gave. Any attempt to deal with only some of them would be open to criticism on the ground that the other points were ignored. There was so much material before him that it would not have been practicable for him to go over the whole ground in the written explanations for the decisions which he took. His statements that he considered the whole matter very carefully must be given due weight. In this unusual case, against the whole background which his letter of 31 July 1995 had identified, that was enough. The emphasis which he gave to the legal framework was not just, as Mr. Vaughan asked us to accept, an assertion that the law is the law. It was the basis for his decision, which as I have said was not an irrational one, that the P.R.C.--despite its actions elsewhere and in other circumstances--could be relied upon to respect the law in the respondent's case and not to interfere in the process of justice in bringing him to trial in Hong Kong and, if he is convicted, imposing and enforcing the appropriate penalties. If that assumption is made it provides a rational and complete answer to all the objections. I do not think that your Lordships would be justified in holding that he failed to address himself to the right question in reaching the conclusion that he should grant a warrant in this case.

There remains however one particular issue in this chapter which must be considered, because if it was clear that the Secretary of State misdirected himself about this it would be necessary to consider whether we should quash his decision and allow him to look at the matter again. This is whether there is substance in the respondent's concern about the absence of specialty protection after 1 July 1997.

Specialty Protection

Section 6 of the Extradition Act 1989 imposes a number of general restrictions on the return of a person to a foreign state. If one or more of these restrictions apply the Secretary of State has no discretion in the matter. It is unlawful for the person to be returned to the requesting state or committed or kept in custody for the purposes of return. Among these restrictions is that set out in subsection (4), known as the Specialty Protection. That subsection provides:

In subsection (7) it is provided that any such arrangement as is mentioned in subsection (4) which is made with a designated Commonwealth country or a colony may be an arrangement for the particular case or an arrangement of a general nature, and that a certificate of the Secretary of State confirming the existence of such an arrangement and stating its terms shall be conclusive evidence of the matters contained in the certificate.

The issues which were raised in regard to the Specialty Protection fall neatly into two separate chapters, although it is right to add that the whole subject is a complex one in view of the way matters have been developing prior to the handover on 1 July 1997. The first chapter relates to the question whether the Specialty Protection was in place on the dates when the Secretary of State took the decisions. The second question relates to the question whether the Specialty Protection will be in place after the handover. The third relates to the question whether, assuming that the Specialty Protection will be in place after the handover, it will provide effective protection against the respondent's removal from Hong Kong S.A.R. to any other part of the P.R.C. As the argument developed before your Lordships it became clear that the issue which is of primary importance is that raised in the third chapter. But it is necessary to deal with the other two chapters also, if only by way of background, because of the important place which the Specialty Protection has in extradition law.

a The Position at Present

It is clear, and not disputed by the respondent, that the requirements of section 6 (4) were satisfied at the time when the decisions were taken and that they will continue to be satisfied until the date of the handover. The relevant provisions for extradition to the Crown Colony are contained in the Fugitive Offenders (Hong Kong) Order 1967, which was made under the Fugitive Offenders Act 1967 and remains in force notwithstanding the repeal of that Act: see section 34 (3) of the Extradition Act 1989 . Section 14 of the Schedule to the 1967 Order provides the protection which is required by section 6 (4) of the Act of 1989. A certificate to the effect that the special protection exists has been issued under section 6 (7) of that Act. It is equally clear that the existence of this protection is now, and has some for some time been, academic for the purposes of this case as it will cease to exist when sovereignty over Hong Kong is transferred to the P.R.C. For the time being the requirements of section 6 (4) are satisfied, but the Secretary of State was also obliged to consider what the position would be on and after 1 July 1997. It would plainly be unjust for the respondent to be returned to Hong Kong until it was clear that there was in place in Hong Kong from and after that date a provision for special protection which satisfied the terms of section 6 (4).

b The Position in Future

The situation has changed since 1995 when the decisions were taken. So it is necessary first to mention the situation at that time and then to examine the situation at the present stage. Although we are concerned primarily with the reasonableness of the decisions at the time when they were taken we cannot ignore these developments. We are dealing in this case with concerns which have been expressed about human rights and the risks to the respondent's life and liberty. If the expectations which the Secretary of State had when he took his decisions have not been borne out by events or are at risk of not being satisfied by the date of the respondent's proposed return to Hong Kong, it would be your Lordships' duty to set aside the decisions so that the matter may be reconsidered in the light of the changed circumstances.

At the date when the decisions were taken in 1995 the matter had to be based upon a reasonable expectation of what would be arranged in the future. As Mr. Ackland has explained in paragraph 31 of his affirmation, the P.R.C. had agreed that Hong Kong might negotiate and conclude, under authorisation by the P.R.C., its own extradition arrangements prior to the date of the handover which would remain in force after that date. By the date of his affirmation a number of such agreements had already been signed with other countries which contained the Specialty Protection. A draft of an Ordinance to be enacted locally in Hong Kong had been prepared and was awaiting approval by the P.R.C. Mr. Ackland said that it was reasonably expected that the P.R.C. would give its approval, as Hong Kong's independent extradition arrangements were fully accepted by the P.R.C.

Since that date there have been further developments. We were shown a copy of an Order in Council made on 8 April 1997 under paragraph 3(2) of the Schedule to the Hong Kong Act 1985, called The Hong Kong (Extradition) Order 1997. That Order is subject to the negative resolution procedure. It had not yet been laid before Parliament. We were also shown a copy of Hong Kong Ordinance No. 23 of 1997 which was made on 26 March 1997, to be known as the Fugitive Offenders Ordinance. This is designed to regulate extradition between Hong Kong and places outside Hong Kong after 1 July 1997. Section 17 of the Ordinance will provide the Specialty Protection in Hong Kong S.A.R. after that date for persons who are surrendered to Hong Kong under such extradition arrangements. In order to complete the necessary arrangements with the United Kingdom it will be necessary for an agreement to be entered into in accordance with the statutory scheme contained in the Ordinance. Provision is made by section 3(1) of the Ordinance for these agreements, once made, to be enacted as part of the law of Hong Kong. The procedures in the Ordinance will then apply as between Hong Kong and the United Kingdom subject to the limitations, restrictions, exemptions and qualifications, if any, contained in the order.

The Joint Declaration and the Basic Law

In regard to the legal system Part II of Annex I states, in sentence 53:

In regard to the judicial system Part III of Annex I states, in sentences 59 to 62:

Sentence 68 of the same Part contains this provision:

Basic Rights and Freedoms are the subject of further provisions which are set out in Part XIII of Annex I, among which are the following provisions in sentences 150, 152 and 153:

The Decisions by the Secretary of State

"The Secretary of State considered very carefully all the extensive representations made on behalf of Mr. Launder."

In paragraph 2 on the second page it is stated:

"The Secretary of State does not consider that the representations made by or on behalf of Mr. Launder are sufficient, either individually or cumulatively, to justify not surrendering him."

Statements to the same effect are to be found in paragraph 3 of Mr. Ackland's affirmation. In paragraph 34 of his affirmation this statement appears:

In the letter of 21 December 1995 it is stated:

"The Secretary of State has given careful consideration to the representations made by you on behalf of Mr. Launder to determine whether they give rise to sufficient grounds for withholding the surrender warrant."

"On all the foregoing matters the Secretary of State has proceeded on the basis that the P.R.C. will honour its obligations and commitments under the established instruments."

Fifth, there is no mention in either of the letters or in the affidavits of a collective Cabinet decision about the effects of the treaty arrangements or of any view taken on this matter by the Government. The views expressed are said to be those of the Secretary himself, in the exercise of his discretion. There is therefore a sound basis in the evidence for examining his decisions in the normal way to see whether there was a defect in the decision- making process in the manner described by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation

[1948] 1 KB 223

[1996] QB 517

The Principles to be Applied in Extradition Cases

[1994] 1 AC 42

Two affidavits were shown to us to explain the stage which matters have now reached in finalising these arrangements. In her affirmation dated 18 April 1997 Clare Checksfield, Head of the Extradition Section of the Home Office, states that the text of the agreement is close to being finalised and that there remained only two outstanding minor issues neither of which is relevant to this case. She says that she has no reason to believe that the agreement, when it is concluded, will not contain articles dealing with the Specialty Protection which is required for fugitive offenders surrendered to Hong Kong. In his affidavit dated 21 April 1987 Wayne Walsh, Acting Deputy Principal Crown Counsel in the Attorney-General's Chambers, Prosecutions Division of the Legal Department of the Government of Hong Kong, states that to date Hong Kong has signed new agreements with six countries for the surrender of fugitive offenders, all of which contain a provision restricting re-surrender of the fugitive to a place outside the jurisdiction of Hong Kong. These six countries are the United States, Canada, Australia, the Philippines, Malaysia and The Netherlands. The new arrangements to govern the surrender of fugitives between Hong Kong and the United Kingdom have not yet been concluded, but they are in negotiation and the Chinese have already approved the model form of agreement in the Joint Liaison Group and no difficulties are expected. As the new arrangements with Hong Kong must be concluded between the United Kingdom and Hong Kong S.A.R. the agreement cannot be signed and brought into effect until 1 July 1997. But this is what the parties are working towards and it is likely that express protection against re-surrender will be in place by that date.

For the respondent an affidavit was produced from Professor Yash Pal Ghai of Hong Kong who had been asked to provide his opinion on whether the Specialty Protection contained in the Fugitive Offenders Ordinance would prevent the fugitive offender from being removed from Hong Kong S.A.R. to the P.R.C. He makes the point that the international arrangements which Hong Kong S.A.R. has entered into or which may be entered into on its behalf will not apply in its relations with the rest of the P.R.C. I shall deal with this point in the next chapter. As for the question whether arrangements will be in place on 1 July 1997 or shortly thereafter to provide the Specialty Protection in place of the present arrangements, it appears that matters have developed as the Secretary of State anticipated when he took his decisions in 1995.

( c ) Protection Against Surrender to the P.R.C.

The important question, which has only emerged as a special point of concern very recently in the light of the terms of the Fugitive Offenders Ordinance, is whether the provisions of that Ordinance will be effective to prevent the transfer of a person from Hong Kong S.A.R. to the P.R.C. It is plain that the present arrangements are effective to prevent such a transfer, but with effect from 1 July 1997 Hong Kong will be part of the P.R.C. Not surprisingly, the Ordinance has been framed on this basis. As Mr. Walsh has explained in his affidavit, it is designed to regulate extradition between Hong Kong and places outside Hong Kong other than the P.R.C. Section 17 (2) of the Ordinance deals with the re-surrender of the fugitive to a third jurisdiction, and it provides that the fugitive shall not be surrendered to any other "prescribed place" unless conditions similar to those in section 17(1) apply. The P.R.C. cannot be a prescribed place under the Ordinance , so section 17

(2) is silent about the re-surrender of a fugitive to China.

Professor Yash Ghai has therefore correctly identified a gap in the proposed arrangements which is of particular importance to the respondent's position were he to be returned to Hong Kong. Two questions then arise. The first is whether other protections will be available to him to prevent his surrender to the P.R.C. whether before or after any trial on the charges which have been made against him. The second is whether the existence of this gap, which was not observed by the Secretary of State when he took his decisions, vitiates these decisions and makes it necessary for the matter to be remitted to him for further consideration.

The answer to the first point lies partly in the terms of the agreement which is being negotiated by the United Kingdom with Hong Kong prior to its enactment under section 3 (1) of the Ordinance , and partly in the Basic Law. The draft agreement contains in article 18(1) a provision by which the surrender of the fugitive "to any other jurisdiction" is restricted on terms which are consistent with the Specialty Protection in section 6 (4) of the Act of 1989. Mr. Walsh states that all six of the agreements which have been made to date contained an article in similar terms. That safeguard will become part of the Ordinance once the agreement with the United Kingdom has been enacted under section 3 (1). Persons returned from the United Kingdom to the jurisdiction of Hong Kong S.A.R. after 1 July 1997 will therefore have the benefit of that protection, in the same way as persons returned to the jurisdiction of Hong Kong S.A.R. from the other six countries with whom agreements have already been made.

Then there are the provisions of the Basic Law relating to the rights and freedoms of persons in Hong Kong and to the judiciary. Mr. Walsh has explained in his affidavit that there is no operative legal basis for the surrender of fugitives from Hong Kong S.A.R. to the P.R.C. after the handover. The Chinese Extradition Ordinance, Cap. 235 which was originally enacted in Hong Kong in 1898 dealt only with the surrender from Hong Kong to China of Chinese nationals, not fugitives, and it is being repealed. Professor Yash Ghai has expressed concern about the risk of informal surrender from Hong Kong to the P.R.C., but Mr. Walsh states that Hong Kong has to date never informally, or otherwise, extradited a person from Hong Kong to the P.R.C. It does on a regular basis repatriate illegal immigrants, but it is the stated policy of the present Hong Kong Government and of the incoming Government of the S.A.R. that it does not and will not surrender or re-surrender persons to places outside its jurisdiction either to face trial or to serve sentences unless it is pursuant to a law and subject to safeguards.

I think that it is reasonable to conclude therefore that, in accordance with the fundamental policy which has been enshrined in the Basic Law, the prohibitions which are needed to ensure that the respondent is not surrendered to the P.R.C. will be in place on and after 1 July 1997. As I have already said, there is room for two views as to whether the P.R.C. can be relied upon to respect this policy. But it cannot be said to be irrational to prefer the view that sufficient commitment to that policy has already been demonstrated by the P.R.C. and that sufficient incentives exist to ensure the continuation of that commitment after the handover.

As for the second point, I do not think that the fact that this gap appears to have been overlooked by the Secretary of State is fatal to the decisions. It was not clearly identified until the Fugitive Offenders Ordinance had become available and the argument was well under way in your Lordships' House. The Secretary of State dealt sufficiently with the representations which were made to him at the time. There is nothing in the present information to suggest that the position is now materially different from that which, taking his decisions overall, he had anticipated.

European Community Law and Human Rights

In the Divisional Court the respondent contended that his arrest at Heathrow Airport, on his arrival there from Berlin, was an infringement of his right of freedom of movement under article 48 of the European Community Treaty and that the Secretary of State's decisions were in breach of various articles of the European Convention on Human Rights. These arguments were rejected by the Divisional Court. The respondent then applied to the Divisional Court for certification of these issues as raising matters of general public importance and for leave to cross-appeal. These applications were opposed by the appellant and they were rejected by the Divisional Court. As I have already mentioned however, Mr. Vaughan was allowed to develop these arguments again before your Lordships in view of the wider scope which it was necessary to give to the whole matter.

( a ) European Union Law

The respondent had established a place of business in Germany. It was necessary for him to travel extensively between the Member States for the purposes of that business, and he had done so frequently before his arrest. Article 48.3 of the European Community Treaty provides:

The respondent's argument is that the effect of his arrest and of any subsequent order for his extradition would be to prevent him from continuing with his business activities in Germany, from which he could not have been extradited to Hong Kong, and elsewhere in the Community. Although he relies principally on article 48 which applies to workers, he refers also to article 52 which relates to the right to establishment of the self-employed and to article 59 which relates to the provision of services. These articles also are subject to such limitations as may be justified on grounds of public policy: see articles 56 and 66 of the European Community Treaty. The effect of these provisions is to prevent discriminatory restrictions imposed by a Member State, other than that of which the person is a national, in which he wishes to carry out business activities. They can also extend to non-discriminatory restrictions imposed by his state of origin on movement to another Member State in which the person proposes to pursue or is pursuing his work or business activities: UEFA v. Bosman (

case C-415/93

) [1995] E.C.R. 1-1, 18-20. As these provisions have direct effect the respondent is entitled to apply to the courts of this country for their enforcement under section 2 of the European Communities Act 1972 .

The question which the respondent has raised is whether his detention and extradition can be justified on grounds of public policy. The Divisional Court held that extradition must come within the public policy exception. In his argument to your Lordships Mr. Vaughan said that the respondent had never contended that European Union law prevents extradition in all circumstances. His submission is that, whereas in normal circumstances public policy will justify extradition, in exceptional circumstances it will not do so. He maintains that such exceptional circumstances exist in this case because of the evidence which has been produced to show that the respondent's extradition to Hong Kong would expose him to the risk of violations of the European Convention on Human Rights, and that public policy could never justify such a restriction on his fundamental rights under European Union law.

In Regina v. Governors of Pentonville Prison, Ex parte Budlong; Reg. v. Governor of Holloway Prison, Ex parte Kember [1979] 1 W.L.R. 1110 the applicant, Kember, was a UK national who had been charged with burglary in the United States of America. The United States Government made a request for her surrender under the Extradition Treaty between the United Kingdom and the U.S.A. The applicant then sought a reference to the European Court of Justice for a preliminary ruling on the question whether her extradition had to be justified on public policy grounds under article 48(3). If her submission had been right on that point it would have meant that her extradition could only have been ordered on grounds of public policy based exclusively on her own personal conduct: see article 3 of Council Directive 64/221/EEC of 25 February 1964. Her argument was rejected and, as the point was held to be reasonably clear and free from doubt, no reference was made to the European Court. Griffiths J. observed, at p. 1127FA-D, in regard to the argument which relied on the decision of the European Court of Justice in Regina v. Bouchereau

[1978] QB 732

that a recommendation for deportation made by a criminal court in this country was a measure within the meaning of article 3(1) and (2) of the Directive and could only be made on grounds of public policy, that if this submission was right it would impose a formidable fetter upon extradition:

The decision in Kember was followed in In re Habeas Corpus Application of Navinder Singh Virdee [1980] 1 C.M.L.R. 709, in which it was held that article 48 did not apply to a case where the applicant was to be surrendered to a non-European Community state under the Visiting Forces Act, and in In re Habeas Corpus Application of Carthage Healy [1984] 3 C.M.L.R. 575, in regard to the detention of an Irish national pending his extradition from the United Kingdom. Mr. Vaughan has criticised the decisions in these cases on the ground that Kember was founded on the opinion of the Advocate-General in Regina v. Saunders (case 175/78) [1979] E.C.R. 1129. He has pointed out that it was made clear in UEFA v. Bosman (

case C-415/93

) that there was no Community element in Regina v. Saunders [1995] E.C.R. 1-1, as the situation there was a purely internal one. He has also pointed out that in none of these cases before the Divisional Court was it suggested that there was a risk of a breach of the European Convention of Human Rights by virtue of the surrender. But I do not think that either of these points affects the substance of the opinion which Griffiths J. expressed in Kember .

It is true that Griffiths J. relied in that case on the decision in Saunders that article 48 did not aim to restrict the power of the Member States to lay down restrictions, within their own territory, on the freedom of movement of all persons subject to their jurisdiction in the implementation of domestic criminal law. That case was concerned with a matter which was wholly internal to the United Kingdom, as Miss Saunder's case was concerned with the breach by her of a condition of a binding-over order requiring her to return to her place of residence in Northern Ireland. It did not involve travel between Member States. But the point which Griffiths J. was making was that in Saunders a clear distinction had been drawn between deportation, which was the subject of the decision in Regina v. Bouchereau , and restrictions on the freedom of movement of individuals imposed by the criminal court in the ordinary course of the administration of justice. He said that extradition was far more closely analogous to the implementation of domestic criminal law than to deportation.

In my opinion the recognition in Bosman that there was no Community element in Saunders adds nothing new which is relevant to this point. There is no indication in what Griffiths J. says about Saunders that he had overlooked the fact that it was dealing with a matter which was purely internal to the United Kingdom. On the contrary his repeated use of the phrase "domestic criminal law" shows that he was well aware of this point. His main reason for regarding extradition as outside the scope of article 48 was that, if that was so, the process of extradition would be emasculated if it was to be necessary to justify the decision in each case on grounds of public policy, and he also said that it would produce anomalies between Member States whose extradition treaties had been entered into before the Treaty of Rome and those whose treaties were made or amended after that date. His reasoning on these points seems to me, with respect, to be entirely satisfactory. As Goff L.J. explained in Healy [1984] 3 C.M.L.R. 575, 583 the significance of Saunders is that in that case the court took a purposive approach to article 48. He said that it was obvious that that article did not aim to restrict the power of Member States to lay down restrictions within their own territory from the freedom of movement of all persons subject to their jurisdiction in the implementation of extradition procedures. In my opinion the same can be said of the implementation by Member States of their obligation to extradite persons from their territory under treaty obligations entered into with other States. The result is that it is not necessary for the Secretary of State to justify the respondent's detention and his decision to extradite him on the grounds of public policy.

Mr. Vaughan's argument that the public policy exception does not permit extradition in cases where there is a risk of a breach of the European Court of Human Rights does not therefore arise. The decision in Kember was not that extradition could always be justified on grounds of public policy, but that the relevant provisions of the European Community Treaty did not apply to extradition cases at all. As I consider that Kember was correctly decided on this point, I consider it unnecessary to examine the scope of the public policy exception in this case.

b European Convention on Human Rights

The respondent's argument in the Divisional Court was that, in the light of what Mr. Vaughan has described as the exceptional circumstances of this case, the provisions of the European Convention itself provided a remedy. That argument was rejected by the Divisional Court on the ground that the Convention has not been incorporated into United Kingdom law: Regina v. Secretary of State for the Home Department, Ex parte Brind

[1991] 1 AC 696

. Mr. Vaughan's argument in that court that judicial review is a flexible remedy which can often achieve the same results as could be achieved in the European Court of Human Rights was accepted. But, as Henry L.J. put it, " . . . what matters is the route. Unless and until the Convention is incorporated into our law, breaches of the Convention cannot be relied on as such to provide the route."

Mr. Vaughan renewed his argument before your Lordships on a number of grounds which I think require more careful examination. The way in which they were expressed does not enable them to be dismissed simply on the ground that he has chosen the wrong route. Indeed, two features of this case seem to me to indicate that the respondent's arguments under the Convention are directly relevant to the remedy which he seeks by way of judicial review. The first is the argument which he presented to the Secretary of State in his representations. This was that the rights which would be put at risk if he were to be returned to Hong Kong were his rights under the Convention--in particular his rights to life and liberty, to a fair trial and not to be subjected to inhuman or degrading treatment or punishment: see articles 2, 3, 5 and 6. The second is that the Secretary of State himself, as Mr. Ackland has told us in paragraph 36 of his affirmation, took account of the respondent's representations that his extradition to Hong Kong would be a breach of the Convention in reaching his decision that he should be extradited.

It is often said that, while the Convention may influence the common law, it does not bind the executive. This view was reflected in the observation by Sir Thomas Bingham M.R. in Regina v. Ministry of Defence, ex parte Smith

[1996] QB 517

, 558E that exercising an administrative discretion is not of itself a ground for impugning that exercise. That is so; but the whole context of the dialogue between the Secretary of State and the respondent in this case was the risk of an interference with the respondent's human rights. That in itself is a ground for subjecting the decisions to the most anxious scrutiny, in accordance with the principles laid down by this House in Regina v. Secretary of State for the Home Department, ex parte Bugdaycay [1987] A.C. 151, as Sir Thomas Bingham M.R. also recognised in Smith at p. 554H. Then there is the question whether judicial review proceedings can provide the respondent with an effective remedy, as article 13 requires where complaints are raised under the Convention in extradition and deportation cases: see Soering v. United Kingdom [1989] 11 E.H.H.R. 439; Vilvarajah v. United Kingdom [1991] 14 E.H.H.R. 248; D. v. United Kingdom, The Times, 12 May 1997. If the respondent is to have an effective remedy against a decision which is flawed because the decision-maker has misdirected himself on the Convention which he himself says he took into account, it must surely be right to examine the substance of the argument. The ordinary principles of judicial review permit this approach because it was to the rationality and legality of the decisions, and not to some independent remedy, that Mr. Vaughan directed his argument.

That argument was directed to three issues. The first was whether the Secretary of State correctly took into account the scope and content of the Convention. It was maintained that it was not sufficient for him merely to assert that he took the Convention into account if he had failed to do so correctly. In a life and liberty case a bare assertion that the Convention was considered was insufficient, especially where the decision-maker had stated that his decision was based wholly on political policy considerations. The second was whether the Secretary of State had personally and properly considered the respondent's individual case and circumstances. It was pointed out that the Convention protects the individual and that it must be applied to his individual circumstances. It would not be sufficient for the Secretary of State to rely on a political decision of the Cabinet or to reach a decision not related to the respondent's contentions or to his individual circumstances. The third was directed to the rationality of the Secretary of State's decisions. In this regard the argument was that, in a case concerning the personal circumstances of an individual and not the creation or operation of a rule to be applied generally, the Convention was directly relevant.

It can be seen from this summary that much of the substance of the objection is directed to an aspect of the argument in the Divisional Court which has been departed from expressly in this House. I have already dealt with this point in my outline of the issues in this appeal and in my analysis of the decisions by the Secretary of State as revealed by his decision letters and the affidavits. The evidence which is before us does not support the proposition that his decision was based wholly on political policy considerations. It shows that he took his own decision, having proper regard to the rights of the respondent as an individual. The test which he applied was whether it would in all the circumstances be unjust or oppressive for the respondent to be extradited to Hong Kong. The application of this test shows that he was aware that his concern was with the rights of the individual, not with political considerations. The respondent's allegation in his printed case that the Secretary of State washed his hands of the respondent's fate without detailed scrutiny of his allegations is not made out by the evidence. The case would have been different, if the evidence had shown that the decisions were wholly political and that proper regard had not been paid to the respondent's human rights. If that had been the position there would have been no need, in a case of this kind, for Mr. Vaughan to rely on the Convention. The Secretary of State would have failed to address himself to the right question, and on that ground at least it would have been open to review as to its legality. As it is, that is not the state of the evidence and there are no longer any grounds for maintaining this criticism.

The remaining part of Mr. Vaughan's argument can be dealt with under the heading of irrationality. He maintained that the Convention required detailed scrutiny and evaluation of the facts in an extradition case where the person's human rights were at risk. He referred to Soering v. United Kingdom (1989) 11 E.H.H.R. 439 to illustrate his point that confidence in a legal system was not enough. There had to be an examination of the domestic law and practice as it was applied in reality. In that case, on the facts, practice in the United States was at serious risk of failing to conform to the standards of the Convention, so the decision to order the detainee's surrender to that country was held to involve a breach of the Convention. Mr. Vaughan said that the Secretary of State had based his decision on a formal interpretation of the Joint Declaration, asserting that the law was the law, rather than an analysis of practice in Hong Kong.

Here again, however, the argument raises points which I have already dealt with under previous headings, and in particular in my examination of the question whether the decisions could be said to be irrational. I do not think that it is necessary to go over these points again. It is enough to say that the argument which Mr. Vaughan presented under this heading seemed to me to be inextricably linked to those which he had already presented under the heading of irrationality. No new points of substance were raised in this branch of his argument. The decision which he says should have been taken would have had to have been based on the conclusion that, despite the provisions of the Joint Declaration and the Basic Law, the practice of the P.R.C. in the field of human rights to date within its own territory showed that there was a serious risk that the provisions of these instruments would be departed from in Hong Kong S.A.R. But the arguments are not all one way on this point, as I have already sought to demonstrate. A reasonable Secretary of State could, on the material available to him, have concluded that the concerns which were indicated by the P.R.C.'s actions in other places and in other circumstances were not so serious as to give rise to a serious risk of injustice or oppression in the respondent's case. The human rights context has not been overlooked in this assessment. On the contrary, it lies at the heart of the whole argument. It is precisely because it was not irrational for the Secretary of State to say that he was not persuaded that there was a case on human rights grounds for refusing extradition to Hong Kong that his decisions stand up to the required degree of scrutiny.

Conclusion

For these reasons I would allow this appeal and dismiss the respondents' applications for judicial review. In view of the fact that the argument for the Secretary of State in the Divisional Court was departed from, I would not alter the order as to costs which was made in that court. I would make no order as to costs in the appeal to this House.

LORD CLYDE

My Lords,

I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Hope of Craighead. For the reasons which he gives, I too would allow the appeal.

LORD HUTTON

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Hope of Craighead. I agree with it and for the reasons which he gives I would allow the appeal.

Cited in 46 later judgments

and 37 more of the most senior