Headrick, Re Devolution Issue Minute

In this case the Republic of South Africa requests the extradition of the Minuter, who has resided in Scotland for some years. It is alleged that in Johannesburg in around November 1995, March 1996 and April 1996 he committed the crimes of fraud and/or theft in respect of certain banking transactions. On 18 May 1996 a warrant was issued in Johannesburg for his arrest, but it transpired that the Minuter had left South Africa on 16 April 1996 and had travelled to the United Kingdom.

"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."

Clearly, both the Minister of Justice and the Lord Advocate are members of the Scottish Executive; and while the powers of both such Ministers are restricted by section 57(2) of the Scotland Act, the restrictions on the powers of the Lord Advocate will not apply if his acts come within section 57(3). Equally clearly, the Scottish Ministers and indeed the courts themselves are "public authorities" for the purposes of section 6(1) of HRA, although the application of section 6 to the Scottish Ministers is a complicated matter.