Hilary Term [2017] UKSC 1 On appeals from: [2014] EWHC 3846 (QB) and [2015] EWCA Civ 843

JUDGMENT
Rahmatullah (No 2) (Respondent) v Ministry of
Defence and another (Appellants)
Mohammed and others (Respondents) v Ministry of
Defence and another (Appellants)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Clarke
Lord Wilson
Lord Sumption
Lord Hughes
JUDGMENT GIVEN ON
17 January 2017
Heard on 9 and 10 May 2016
Appellants (MOD in XYZ
and ors)
Respondents (Rahmatullah
and XYZ and ors)
Derek Sweeting QC Phillippa Kaufmann QC
James Purnell Ben Jaffey
Edward Craven
(Instructed by The
Government Legal
Department
)
(Instructed by Leigh Day
)
Appellants (MOD and
FCO in Rahmatullah)
Respondent (Rahmatullah)
James Eadie QC Richard Hermer QC
Karen Steyn QC Nikolaus Grubeck
Julian Blake Maria Roche
(Instructed by The
Government Legal
Department
)
(Instructed by Deighton
Pierce Glynn)
Appellant (MOD in
Mohammed)
Respondent (Mohammed)
James Eadie QC Richard Hermer QC
Sam Wordsworth QC Ben Jaffey
Karen Steyn QC Nikolaus Grubeck
Julian Blake
Sean Aughey
(Instructed by The
Government Legal
Department)
(Instructed by Leigh Day
)
Page 2
LADY HALE: (with whom Lord Wilson and Lord Hughes agree)
1. This is another round in the series of important points of law which arise as
preliminary issues in actions brought by people who claim to have been wrongfully
detained or mistreated by British or American troops in the course of the conflicts
in Iraq and Afghanistan. The litigation is being expertly managed by Leggatt J, but
so far there have been no trials and so the points of law are being decided mainly on
the basis of assumed facts. To summarise the issues which have so far been heard in
this court:
(1) Mr Rahmatullah is a Pakistani national who was captured by the
British forces in Iraq on 28 February 2004, transported to a United States
detention facility that same day, and transferred by the US to a detention
facility in Afghanistan on 29 March 2004, where he remained until his release
on 15 May 2014. He is suing the Ministry of Defence and the Foreign and
Commonwealth Office, first in respect of the United Kingdom’s own
treatment of him, and second in respect of the UK’s alleged complicity in his
detention and treatment by the United States. In relation to the second aspect
of his claim, the UK government has raised the defences of state immunity
and foreign act of state. The arguments relating to these defences were heard
together with the claims of Mr Belhaj and his wife, Mrs Boudchar, against
Mr Jack Straw and a number of UK officials and agencies, for alleged
complicity in their rendition by Malaysian, Thai and US officials to Libya
and their detention and torture there, where the same defences were raised.
Judgment is given today: see Belhaj and another (Respondents) v Straw and
others (Appellants) and Rahmatullah (No 1) (Respondent) v Ministry of
Defence and another (Appellants) [2017] UKSC 3. In relation to the first
aspect of his claim, which is based on both the Iraqi law of tort and the UK
Human Rights Act 1998, the UK Government has raised the doctrine of
Crown act of state in relation to the tort claim, and this judgment is concerned
with that doctrine.
(2) A large number of Iraqi citizens have made claims similar to that of
Mr Rahmatullah in respect of their detention and treatment by UK troops and
transfer to the US authorities at various times during the UK’s military
presence in Iraq. In relation to many of these claims, the UK Government
raised the defence that they were statute-barred by the Iraqi law of limitation.
Judgment on that issue was given on 12 May 2016: see Iraqi Civilians v
Ministry of Defence [2016] UKSC 25; [2016] 1 WLR 2001. The UK
Government has also raised the doctrine of Crown act of state. Three of the
Page 3
claimants, known as XYZ, ZMS and HTF, have been chosen as
representative for the purpose of deciding this issue.
(3) Mr Serdar Mohammed is an Afghan national who was captured in a
planned International Security Assistance Force (ISAF) operation targeting a
senior Taliban commander on 7 April 2010. He was detained by British
troops until 25 July 2010 when he was transferred into Afghan custody. He
was subsequently tried, convicted and sentenced to ten years’ imprisonment
for offences relating to the insurgency in Afghanistan. He too claims that his
detention was unlawful both under the Afghan law of tort and the Human
Rights Act 1998. In relation to his Human Rights Act claim, the UK
Government argues that his detention was not in breach of article 5 of the
European Convention on Human Rights, because article 5 has to be modified
to take account of detention during armed conflict which is permitted, either
under resolutions of the United Nations Security Council or under
International Humanitarian Law. The argument about article 5 was heard
together with a similar argument raised against the Ministry of Defence by
Mr Al Waheed, an Iraqi national detained in the course of the conflict in Iraq.
Judgment is given today: see Abd Ali Hameed Al-Waheed (Appellant) v
Ministry of Defence (Respondent) and Serdar Mohammed (Respondent) v
Ministry of Defence (Appellant) [2017] UKSC 2. In relation to Mr
Mohammed’s tort claim, the UK Government has raised the same doctrine of
Crown act of state as is raised in Mr Rahmatullah’s and the Iraqi civilians’
cases, and with which this judgment is concerned.
(4) For completeness, there should also be mentioned the claims brought
by the “PIL three” under both the Human Rights Act 1998 and UK public
law in respect of their detention in Afghanistan. They bring no claim under
the Afghan law of tort and so the question of Crown act of state does not arise
in their cases.
The issues relating to Crown act of state
2. So what is this doctrine of Crown act of state? An act of state has been very
widely defined, for example, by ECS Wade (in “Act of State in English Law: Its
Relations with International Law” (1934) 15 British Yearbook of International Law
98, at p 103):
“Act of state means an act of the Executive as a matter of policy
performed in the course of its relations with another state,
including its relations with the subjects of that state, unless they
are temporarily within the allegiance of the Crown.”
Page 4
That definition is cited, not entirely approvingly, in the leading case of Nissan v
Attorney General [1970] AC 179, at 212 (Lord Reid), 218 (Lord Morris) and 231
(Lord Wilberforce). It is also cited in the footnotes to the current issue of Halsbury’s
Laws of England, with the comment that act of state is “not a term of art”. Halsbury
refines the definition slightly:
“An act of state is a prerogative act of policy in the field of
international affairs performed by the Crown in the course of
its relationship with another state or its subjects.”
No doubt it is a necessary component of the doctrine that the act in question falls
within some such definition. But, as Lord Wilberforce pointed out in Nissan, that
does not tell us what the doctrine is, or to what rule or rules of law it gives rise.
3. The doctrine is very rarely pleaded and so recent authority is scant. In this
century, it has been raised in the context of the conflicts in Iraq and Afghanistan,
first in Al-Jedda v Secretary of State for Defence (No 2) [2010] EWCA Civ 758;
[2011] QB 773, which was decided on other grounds, and now in the current cases.
In the 20th century, there are only two reported House of Lords cases in which it
was raised, Johnstone v Pedlar [1921] 2 AC 262 and Nissan v Attorney General,
above, and in neither of them was it successful, although it did succeed in a number
of Indian appeals before the Judicial Committee of the Privy Council. We have
therefore to go back to the 19th century and beyond to discover its origins and
rationale.
4. The starting point is that English law “does not recognise that there is an
indefinite class of acts concerning matters of high policy or public security which
may be left to the uncontrolled discretion of the Government and which are outside
the jurisdiction of the courts” (H Street, Governmental Liability, A Comparative
Study, Oxford University Press, 1953, p 50). That there is no general defence of state
necessity to a claim of wrongdoing by state officials was firmly established in the
landmark case of Entick v Carrington (1765) 19 St Tr 1029, following on from
Leach v Money (1765) 19 St Tr 1001 and Wilkes v Wood (1763) 19 St Tr 1029. This
principle was reiterated by Viscount Finlay in Johnstone v Pedlar, at 271:
“It is the settled law of this country, applicable as much to
Ireland as to England, that if a wrongful act has been committed
against the person or the property of any person the wrongdoer
cannot set up as a defence that the act was done by the
command of the Crown. The Crown can do no wrong, and the
Sovereign cannot be sued in tort, but the person who did the act
is liable in damages, as any private person would be.”
Page 5
5. It was thus no defence to a claim for the return of money and a cheque, taken
by the police from a person arrested in Ireland for illegal drilling in 1918, that the
Chief Secretary for the Treasury had signed a certificate formally to “ratify, adopt
and confirm the said seizure and detention of the said cash and cheque” as an act of
state for the defence of the realm and for the prevention of crime. It made no
difference that the person arrested was a US citizen: the United Kingdom was not at
war with the United States. As a friendly alien resident here he was “a subject by
local allegiance with a subject’s rights and obligations”, per Viscount Cave at 276.
6. However, there was an exception, which Viscount Finlay stated in very wide
terms, at 271:
“This rule of law has, however, been held subject to
qualification in the case of acts committed abroad against a
foreigner. If an action be brought in the British Courts in such
a case it is open to the defendant to plead that the act was done
by the orders of the British Government, or that after it had
been committed it was adopted by the British Government. In
any such case the act is regarded as an act of state of which a
municipal court cannot take cognizance. The foreigner who has
sustained injury must seek redress against the British
Government through his own Government by diplomatic or
other means.”
7. The question for this court is whether there is indeed a qualification such as
that expressed by Viscount Finlay and, if so, how far that qualification goes. It is not
contended on behalf of the Government that it is so broad as to cover any act
committed against a foreigner abroad which is authorised or ratified by the Crown.
The contention of the Government is that the doctrine of Crown act of state covers
two distinct principles. The first is a principle of non-justiciability: this is that certain
acts committed by a sovereign state are, by their very nature, not susceptible to
adjudication in the courts. The obvious examples (given by Lord Pearson in Nissan
v Attorney General, at 237) are “making war and peace, making treaties with foreign
sovereigns, annexations and cessions of territory”. The second is a defence to an
action in tort: that a foreigner cannot sue the Government, or its servants or agents,
in the courts of this country in respect of certain acts committed abroad pursuant to
deliberate UK policy in the conduct of its foreign affairs.
8. The respondent claimants, on the other hand, argue that there is only the first
rule, a narrow rule of non-justiciability whereby certain acts of government in the
conduct of foreign affairs are by their very nature not justiciable in the courts. The
decision to go to war in Iraq, and to remain there after the cessation of hostilities
between the allied invaders and the state of Iraq in order to bring about internal peace
Page 6
and stability, and the decision to contribute to the International Security Assistance
Force in Afghanistan, were of that nature. But the decision to detain these particular
individuals in the course of those operations was of a completely different character.
The question of whether the detention of an individual is lawful, under whichever
system of law is applicable, is “quintessentially a matter for a court” (per Leggatt J,
in Mohammed v Ministry of Defence [2014] EWHC 1369 (QB), para 381). None of
the reasons that might make it non-justiciable (helpfully summarised at para 377,
referring to Buttes Gas and Oil Co v Hammer (No 3) [1982] AC 888 and R (Al-Haq)
v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 1910
(Admin); see also Shergill v Khaira [2014] UKSC 33; [2015] AC 359) apply: there
is no “absence of judicial or manageable standards” by which to judge it; the courts
have the relevant expertise; and this is not a matter of high policy, which is
constitutionally in the hands of Government Ministers who are accountable to
Parliament and not in the hands of the courts.
9. For those reasons, in Mr Mohammed’s case, Leggatt J held that the nonjusticiability rule did not apply. However, he went on to hold that the tort defence
did apply, at para 395:
“It is not the business of the English courts to enforce against
the UK state rights of foreign nationals arising under Afghan
law for acts done on the authority of the UK government
abroad, where to do so would undercut the policy of the
executive arm of the UK state in conducting foreign military
operations.”
10. He went on to emphasise how narrow this second rule was: it applied only to
executive acts done abroad pursuant to deliberate UK foreign policy and might well
be confined to acts involving the use of military force (para 397). It was “analogous
to the conflict of laws rule that English courts will not enforce a right arising under
the law of a foreign country if to do so would be contrary to English public policy,
and to the rule that English courts will not enforce the penal, revenue and public law
of a foreign state” (para 396).
11. He returned to this question in the case of Mr Rahmatullah and the Iraqi
civilians and rejected the argument that there was no good authority for such a rule;
he also rejected the arguments that, if there were, it had been abolished by the Crown
Proceedings Act 1947 or was incompatible with the right to a fair hearing under
article 6 of the European Convention on Human Rights: Rahmatullah v Ministry of
Defence and Foreign and Commonwealth Office; R (Rahmatullah and Ali) v
Secretary of State for Defence and Secretary of State for Foreign and
Commonwealth Affairs [2014] EWHC 3846 (QB), paras 179-223.
Page 7
12. The cases were taken together in the Court of Appeal: Mohammed (Serdar)
v Ministry of Defence, Qasim v Secretary of State for Defence, Rahmatullah v
Ministry of Defence, Iraqi Civilians v Ministry of Defence [2015] EWCA Civ 843;
[2016] 2 WLR 247. That court also accepted that there was a tort defence as well as
a non-justiciability rule. But it was “an exception to the general principle that
proceedings may be brought in this country founded on a tort which is actionable
under the law of a foreign country where the law of that country is the applicable
law”. They agreed with the judge that the rationale for the exception was to be found
in domestic public policy (para 349). Accordingly, it was necessary to identify, in
each case, the public policy interests which justified denying access to the courts in
this way (para 352). In Mr Mohammed’s case there were no compelling
considerations of public policy which should prevent reliance on Afghan law as the
basis of his tort claims (para 364). In the other cases, the relevant facts and evidence
had not yet been pleaded. The court held that claims would be barred by the doctrine
of act of state “only if the defendant is able to establish that there are compelling
grounds of public policy to refuse to give effect to Iraqi law” (para 377).
13. On the Government’s appeal against those decisions, therefore, the parties
have defined the issues thus: (i) Is the doctrine of Crown act of state limited to a
non-justiciability rule or does it also encompass a tort defence? (ii) If it does
encompass a tort defence, what is its scope? (iii) In particular, is the test to be
applied, by analogy with section 14(3)(a) of the Private International Law
(Miscellaneous Provisions) Act 1995, whether there are compelling grounds of
public policy to refuse to give effect to the local law of tort? (iv) Was the tort defence
extinguished by the Crown Proceedings Act 1947? (v) Is the tort defence
incompatible with article 6 of the European Convention on Human Rights?
14. It may well be, however, that issues (i), (ii) and (iii) can be reduced to a single
issue, that is, the circumstances in which a claim is not cognisable in the courts of
England and Wales because it relates to a “Crown act of state”. The following issues
are not now in dispute: (i) if the doctrine is limited to a narrow non-justiciability
rule, of the sort identified before Leggatt J and the Court of Appeal, it is not
applicable in these cases, for the reasons given by the judge; (ii) the doctrine is not
a defence to claims made under the Human Rights Act 1998 and so those will
continue in any event. For the purpose of the Crown act of state issue, it is to be
assumed that the claimants’ detentions were in fact contrary to the Afghan or Iraqi
laws of tort, although that too is in issue in the case of Serdar Mohammed.
Some context
15. In order to discover the nature and content of the doctrine, it will be necessary
to look at some old authorities which, although culminating in Nissan v Attorney
General, were decided against a legal landscape which was very different from the
Page 8
legal landscape of today. The conduct of foreign affairs, making treaties, making
peace and war, conquering or annexing territories, are all aspects of the Royal
prerogative. Until the decision of the House of Lords in Council of the Civil Service
Unions v Minister for the Civil Service [1985] AC 374 (the GCHQ case), the general
position was that the courts would review whether what had been done fell within
the scope of the Royal prerogative but would not review how that prerogative had
been exercised. After that case, the exercise of executive power might be excluded
from the scope of judicial review, not because of its source, whether statute or the
prerogative, but because of its subject matter: hence the need to distinguish between
certain acts of high policy, which by their very nature are not subject to judicial
review, and other actions taken in pursuance of that policy, which are.
16. Second, the old cases were decided against the backdrop of the principle that
“the King can do no wrong”. The King could not be sued in his own courts. The
officials who carried out his policies could be sued for their unlawful actions, and
the practice developed of nominating an official as a defendant to claims in tort. But
the courts had to grapple with the circumstances in which the King’s prior authority
or subsequent ratification might import the doctrine that the King could do no wrong
and thus afford a defence to such a claim. We have already seen how the courts
distinguished between acts done to foreigners abroad and acts done to citizens or
residents here. The Crown Proceedings Act 1947 abolished the general immunity of
the Crown from liability in tort and enabled litigants to sue Government departments
such as the defendants in these cases.
17. Thirdly, it may be worth bearing in mind that until the Private International
Law (Miscellaneous Provisions) Act 1995, a tort committed abroad could only be
the subject of a claim in the English courts if the conduct complained of was tortious,
both by the law of the place where it took place and by the law of this country. This
rule was abolished by the 1995 Act, which established the general rule that the
applicable law in an action in tort is the law of the country in which the events took
place. Hence it is now accepted that the tort claims have to be determined according
to the law of Afghanistan or Iraq respectively, subject to the doctrine of Crown act
of state if applicable, while the human rights claims have to be determined according
to the Human Rights Act 1998.
18. Finally, as already noted, the term “act of state” is also used in a completely
different context, that of whether the courts of this country will adjudicate upon the
acts of a foreign legislature or executive. Sometimes, of course, both doctrines may
arise in the same case (they are both, for example, discussed by Lord Wilberforce in
the leading case of Buttes Gas and Oil Co v Hammer (No 3) [1982] AC 888). And
insofar as the doctrine of foreign act of state covers governmental acts outside the
territory of the state concerned, there may be some similarities, as Lord Mance has
shown. But Crown act of state was not raised as a defence in Belhaj v Straw and
foreign act of state is not the subject-matter of this judgment.
Page 9
Does the Crown act of state doctrine encompass two rules?
19. The clearest judicial statement that the doctrine does encompass two rules is
that of Lord Wilberforce in Nissan’s case, at 231:
“The first rule is one which provides a defendant, normally a
servant of the Crown, with a defence to an act otherwise
tortious or criminal, committed abroad, provided that the act
was authorised or subsequently ratified by the Crown. It is
established that this defence may be pleaded against an alien,
if done abroad, but not against a friendly alien if the act was
done in Her Majesty’s Dominions. It is supported in its positive
aspect by the well-known case of Buron v Denman (1848) 2
Exch 167 and in its negative aspect by Johnstone v Pedlar
[1921] 2 AC 262.
The second rule is one of justiciability: it prevents British
municipal courts from taking cognisance of certain acts. The
class of acts so protected has not been accurately defined: one
formulation is ‘those acts of the Crown which are done under
the prerogative in the sphere of foreign affairs’ (Wade and
Phillips’s Constitutional Law, 7th ed (1956), p 263). As regards
such acts it is certainly the law that the injured person, if an
alien, cannot sue in a British court and can only have resort to
diplomatic protest. How far this rule goes and how far it
prevents resort to the courts by British subjects is not a matter
on which clear authority exists. From the terms of the pleading
it appears that it is this aspect of the rule upon which the Crown
seeks to rely.”
20. It would appear, however, that the case was only concerned with the second,
the non-justiciability rule. The United Kingdom had made a treaty with the
government of Cyprus (then an independent country) to provide troops in order to
restore peace between the Greek and Turkish Cypriot communities. The claimant, a
British subject, ran a successful luxury hotel near Nicosia. The British troops took
over the hotel as their headquarters. No claim in tort was made in respect of the
occupation of the hotel, to which the claimant had apparently consented. There was
a tort claim in respect of damage to furniture and other chattels, but it was accepted
that this should go to trial. The main claim was that there was a contractual right to
compensation, which was disputed. But if there was such a contract, act of state
could not be a defence. The disputed claim was one in restitution, for compensation
for the use and occupation of the hotel. To this the government pleaded that the
actions of the British forces in Cyprus were acts of state of Her Majesty on the
Page 10
territory of an independent sovereign performed in pursuance of an agreement with
the Cyprus government and as such not cognisable by the court. The House of Lords
unanimously rejected this defence, Lord Reid on the ground that it could not be
pleaded against a British subject, but the other members of the House on the ground
that the occupation of the hotel did not have the character of an act of state. A
distinction should be drawn between the making of the treaty with Cyprus, which
was an act of state, and the actions of the troops complained about, which were not
so closely connected with the treaty as to amount to an act of state. Lord Morris
regarded Professor Wade’s definition of an act of state (para 2 above) as “helpful”
but went on to explain why it did not apply (at 218):
“I do not think that such actions as securing food or shelter in
peace time for troops situate abroad are to be regarded as acts
of the executive performed in the course of relations with
another state within the conception of the above definition. But,
even if they were, I would be surprised if the contention were
advanced that it was ‘a matter of policy’ on the part of the
executive to take food or shelter and not to make payment.”
21. It is worth noting that the House rejected the contention that the UK was
acting as agent for the government of Cyprus. But, as Lord Wilberforce pointed out
at p 230, if it had been, then the doctrine of foreign act of state might well have
applied: they would have been acts attributable to a foreign government in its own
territory. As Lord Mance has shown in his judgment in Belhaj, that doctrine may
extend to a state’s appropriation of property within its own territory even if this is
illegal by the law of that state.
22. The question for us is not whether the type of rule, with which Nissan was
concerned, exists: there is no reason to doubt that it does. The question is whether a
different type of rule, affording a tort defence even though the subject matter is
entirely suitable for adjudication by a court, also exists. Although its existence was
acknowledged in Nissan, and indeed Lord Morris stated that it was “so recognised
that it cannot now be overthrown” (at 220), the foundations upon which it is built
are very shaky.
23. The source of such a rule is the direction to the jury by Parke B in the wellknown case of Buron v Denman (1848) 2 Exch 167, 154 ER 450 (the background is
explained by C Mitchell and L Turano in C Mitchell and P Mitchell (eds), Landmark
Cases in the Law of Tort (Hart, 2010) and also by A Perreau-Saussine, “British Acts
of State in English Courts” [2008] British Yearbook of International Law 176).
Briefly, in 1835, as part of its campaign to suppress the slave trade, Britain made a
treaty with Spain, which allowed British ships to stop and search Spanish vessels on
the high seas if they were suspected of trading in slaves. Commander Denman’s
Page 11
patrol was looking for slaving ships at the mouth of the Gallinas river in West Africa.
He was asked by the Governor of Sierra Leone to liberate two British subjects who
were being held as slaves in one of the “barracoons” (slave pens) on islands at the
mouth of the river. Denman and his crew landed on the islands, chased away the
Spanish slavers, and liberated the slaves they were trying to take with them. Denman
then made a treaty with the local chiefs, outlawing slavery in their lands, handed
over the slavers’ trade goods in return, took possession of the barracoons, liberated
the slaves and burned the barracoons down. He carried several hundred former
slaves back with him to Sierra Leone. He also rescued some of the slavers, who were
fleeing local retribution, one of whom was Señor Buron.
24. All of this was greeted with great jubilation when the news reached England,
the Colonial Secretary and the Foreign Secretary exchanged letters praising
Denman’s actions, Parliament voted a bounty to him and his crew, and he was
promoted to Captain. Señor Buron, however, brought an action in trespass against
him, claiming damages for the loss of his chattels, including the slaves. Parke B
directed the jury that, slave-owning not being shown to be against the law in the
Gallinas, Denman’s actions could amount to a trespass; but their subsequent
ratification by the Government turned them into an act of state, for which he could
not be sued (although the judge left open whether Señor Buron might able to proceed
against the Crown by petition of right or whether he could only pursue a remedy by
diplomatic means, because this was irrelevant to the action he was trying).
25. It appears that the only act of state case cited in argument was Elphinstone v
Bedreechund (1830) 1 Kn 316, 12 ER 340. But that was essentially a nonjusticiability case: the issue was whether the Supreme Court of Bombay had
jurisdiction to hear a claim for damages for the seizure of property of the governor
of a fortress conquered in the course of military hostilities. There is a whole series
of cases, not all of them easy to reconcile (helpfully discussed by Perreau-Saussine,
loc cit), concerning the appropriation of property in the course of annexing territory
in India (and on occasions in Africa) supporting the proposition that “the
transactions of independent states between each other are governed by other laws
than those which municipal courts administer: such courts have neither the means
of deciding what is right, nor the power of enforcing any decision which they may
make” (Secretary of State in Council of India v Kamachee Boye Sahaba (1859) 7
Moore Ind App 476, at 529, 19 ER 388, at 407; Cook v Sprigg [1899] AC 572, at
578). The leading case is Kamachee, where the East India Company, as agent for
the British Crown, had seized the Raj of Tanjore, and the whole of the property of
the Rajah, who had died without male issue, under Treaties authorising the
annexation of the Raj. The Rajah’s widow sued for the return of his private property.
She succeeded in the Supreme Court of Madras but failed before the Judicial
Committee of the Privy Council. No distinction could be drawn between private and
public property for the purpose of such an act of state. Most of the discussion relates
to the character of the act, but there is a brief reference to Buron v Denman.
Page 12
26. The subject matter of Buron v Denman, however, was something different. It
was not a transaction between states. Denman’s actions were not carried out on the
high seas in accordance with the treaty with Spain. Britain was not at war with
another state or conquering territory (although it could be said to be conducting a
“war on the slave trade”). His actions were by ordinary standards, both of the local
law and of English law, unlawful. The case has therefore been treated as establishing
a defence to an action in tort over which the ordinary courts would otherwise have
jurisdiction. It was so regarded by the House of Lords in Johnstone v Pedlar, in
which the scope of such a defence was directly in point, and also in Nissan v Attorney
General, where it was not.
27. No doubt it was so regarded, in part at least, because this was how it was
regarded by some eminent academic authorities. For example, Lord McNair, in
International Law Opinions (1956) in a chapter dealing with “The Position of the
United Kingdom Government, its Servants and Agents, as Defendants instituted in
Actions in British Courts”, distinguished between (a) “the defence called act of state
available to certain defendants in British courts” and (b) “the rule which entirely
excludes from British courts certain areas of British governmental action in the
realm of foreign affairs”. As to (a):
“Act of state has been defined in a standard text book as
follows: ‘The plea, act of state, can be raised as a defence to an
act, otherwise tortious or criminal, committed abroad by a
servant of the Crown against a subject of a foreign State or his
property, provided that the act was authorised or subsequently
ratified by the Crown’.” (citing Wade and Phillips,
Constitutional Law (4th ed (1950), 193-196))
To this very wide definition McNair added the slight qualification:
“Its scope of operation is the whole field of governmental or
official activity in relation to the Crown’s dealings with foreign
states.”
28. The only authorities cited are Buron v Denman, Johnstone v Pedlar, where
the argument that it could be relied upon in claims brought by friendly aliens was
rejected, and Commercial and Estates Co of Egypt v Board of Trade [1925] 1 KB
271, at 290 and 297, where the argument that it could be relied upon in respect of
actions within the realm was rejected; however, Scrutton LJ noted that the owners
of the cargo of timber on a British ship which had been requisitioned abroad during
the first world war and brought to this country “did not rely on any dealings with the
cargo outside the realm for the probable reason that on the authority of such cases
Page 13
as Buron v Denman a claim by a foreigner for such acts would be successfully met
by the defence that the interference was an act of state”.
29. The doctrine was also relied upon in Al-Jedda v Secretary of State for
Defence (No 2) [2010] EWCA Civ 758; [2011] QB 773. This was another tort claim
arising from detention by British forces in Iraq, this time of a person with dual
British and Iraqi nationality. As here, the applicable law was the law of Iraq and
Underhill J held that the detention was lawful under the law of Iraq. But he also held
that the defence of act of state would have been available. In the Court of Appeal,
Lord Dyson JSC and Elias LJ agreed with the judge that the detention was not
unlawful under Iraqi law. Lord Dyson declined to deal with the act of state issue, on
the ground that it did not arise and raised points of very considerable difficulty, on
which they had not heard full argument (para 127). Elias LJ did discuss it (paras
192-226) and his “tentative” view was that it would not be an answer to the claim
(para 193). The act did fall into the category of act of state, in that it would have
removed the jurisdiction of the courts to question the detention of a foreign subject
(para 195); but “the courts would be failing in their constitutional duty if they were
to leave the executive with unfettered powers to intern British citizens merely
because the act of internment occurred abroad” (para 216); however, he did float an
intermediate possibility, that even if this were to be an act of state, and thus not to
give rise to liability for damages in tort, it would be amenable to judicial review on
conventional principles. Arden LJ, on the other hand, agreed with Underhill J that
act of state was a defence; but this was on the basis of the House of Lords’ decision
in R (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58; [2008] AC 332,
that the UK was entitled and bound under its obligations under article 103 of the
United Nations Charter and the applicable UN Security Council Resolution to intern
people where this was necessary for the internal security of Iraq (para 108); thus,
not only was the decision to join the Multi-National Force an act of state, but acts
required to be done pursuant to that decision were also acts of state; the fact that the
claimant was a British national made no difference.
30. Clearly, therefore, Al-Jedda (No 2) is of very little help in resolving the issue
between the parties here. Both Underhill J and Arden LJ appeared to be treating the
case as non-justiciable, because internment was required under international law;
Elias LJ appears to have agreed with them, but considered that this afforded no
defence to the internment of a British citizen. In the cases before us, both Leggatt J,
at [2014] EWHC 3846, para 197, and the Court of Appeal, at [2016] 2 WLR 247;
[2015] EWCA Civ 843, para 330, thought that the issue in Al Jedda (No 2) was
better analysed under the tort defence than under the non-justiciability rule.
31. In the light of these shaky foundations, it is scarcely surprising that the
respondent claimants argue that the tort rule does not, in fact, exist. The only rule is
that certain decisions of high policy in the conduct of foreign relations are nonjusticiable. The arguments to the contrary are of two kinds: first, that the existence
Page 14
of a wider rule is long-established both in the case law and in academic
commentaries and texts, as already discussed; and second, that there are good
reasons for it, certainly in the context of military operations abroad. As I understand
it, we are not asked to consider whether it exists outside that context.
32. Sir James Fitzjames Stephen, in his History of the Criminal Law (1883), Vol
II, argued that where an injurious act done to a foreigner “is an act of open war, duly
proclaimed, there can be no doubt at all that it does not amount to a crime … the
very essence of war is that it is a state of things in which each party does the other
all the harm they possibly can”. The same should apply to “acts which are in their
nature warlike done in time of peace”: “I think that if such acts are done by public
authority, or, having been done, are ratified by public authority, they fall outside the
sphere of the criminal law” (pp 62-63). He could cite no criminal law authority but
relied upon Buron v Denman and Secretary of State for India v Kamachee Boye
Sahaba. Of course, in those days, the criminal law was even more territorially
limited than it is today and so only killings by British subjects abroad would be
within the jurisdiction of the English courts. But the point is, if act of state is a
defence to the use of lethal force in the conduct of military operations abroad, it
must also be a defence to the capture and detention of persons on imperative grounds
of security in the conduct of such operations. It makes no sense to permit killing but
not capture and detention, the military then being left with the invidious choice
between killing the enemy or letting him go.
33. There are conceptual advantages in confining the doctrine to a nonjusticiability rule; but in doing so, a rather broader concept of non-justiciability
would be required than that which was espoused in the courts below. It would have
to encompass aspects of the conduct of military operations abroad as well as the
high policy decision to engage in them, and perhaps also some other aspects of the
conduct of foreign relations, even though their subject matter was entirely suitable
for determination by the court. It is necessary that the courts continue to recognise
that there are some acts of a governmental nature, committed abroad, upon which
the courts of England and Wales will not pass judgment. They may, of course, have
to hear evidence and find facts in order to determine whether the acts in question
fall into that category. It is also necessary to confine that category within very
narrow bounds. Contrary to the impression given in some accounts (for example, J
Collier, “Act of state as a Defence against a British Subject” (1968) 26 CLJ 102) it
cannot give carte blanche to the authorities to authorise or ratify any class of tortious
acts committed abroad in the conduct of the foreign relations of the state.
Is this aspect of the doctrine one of public policy?
34. The approach of the Court of Appeal has very real attractions. It is consistent
with the policy of the Private International Law (Miscellaneous Provisions) Act
Page 15
1995, that where the English courts have jurisdiction over a tort committed abroad,
the applicable law is the law of the state where the conduct took place, unless to
apply that law “would conflict with principles of public policy” (section 14(3)(a)).
It would enable a case-by-case approach depending upon a range of policy factors,
such as those identified by the Court of Appeal. There is, however, no hint of such
an approach in the cases concerned with act of state. In essence, public policy may
be the reason why the courts of this country will apply the domestic doctrine of act
of state rather than the tort law of the state where the events took place, but it cannot
tell us what the content of that defence is to be. It is not enough to say that it is not
for the courts of this country to enforce the tort laws of another state, because that is
exactly what the 1995 Act expects us to do. The question is in what circumstances
we should decline to do so.
35. The Court of Appeal, when considering Mr Mohammed’s case, concluded
that there was no authority to detain him, either under the regime established by the
United Nations, or under local Afghan law, and the UK government had deliberately
decided to apply a policy outside both of these without promoting UK legislation to
permit this. The public interest that “not doing harm to the nation by precluding HM
Armed Forces from detaining a commander in the Taliban for more than 96 hours
because it appeared that questioning him would provide significant new intelligence
vital for force protection purposes” was not sufficiently compelling to outweigh the
public interest in the protection of liberty. In effect, therefore, military necessity,
however compelling, provided no defence. If this aspect of the doctrine is to have
any content at all, this cannot be right.
What is its scope?
36. It would be unwise for this court to attempt a definitive statement of the
circumstances in which this aspect of the doctrine might apply. The question is
whether it applies in the circumstances of Mr Mohammed’s case, some of which
have been explored in pleadings and evidence, and how it might apply in the
circumstances of Mr Rahmatullah and the Iraqi civilians’ cases, which have not yet
been explored in pleadings and evidence. For the reasons already given, it cannot
apply to all torts committed against foreigners abroad just because they have been
authorised or ratified by the British Government. It can only apply to acts which are
by their nature sovereign acts, acts which are inherently governmental, committed
in the conduct of the foreign relations of the Crown. The Government accepts that
it cannot apply to acts of torture, even supposing that the Government of the United
Kingdom would ever authorise or ratify such acts. The Government also accepts that
it cannot apply to the maltreatment of prisoners or detainees, such as happened in
Baha Moussa’s case. Bearing in mind that this is a doctrine of the law of the United
Kingdom, I would prefer to regard this as an acknowledgement that such acts are
not inherently governmental, rather than creating exceptions to a general rule. The
Government of the United Kingdom can achieve its foreign policy aims by other
Page 16
means. Nor would it generally apply to the expropriation of property, for which
compensation can always be paid, but there could be circumstances in which the
expropriation, or more probably the destruction, of property, for example in the
course of battle, was indeed a governmental act.
37. We are left with a very narrow class of acts: in their nature sovereign acts –
the sorts of thing that governments properly do; committed abroad; in the conduct
of the foreign policy of the state; so closely connected to that policy to be necessary
in pursuing it; and at least extending to the conduct of military operations which are
themselves lawful in international law (which is not the same as saying that the acts
themselves are necessarily authorised in international law). For the purpose of these
cases, we do not need to go further and inquire whether there are other
circumstances, not limited to the conduct of military operations which are
themselves lawful in international law, in which the defence might arise. Buron v
Denman was at the borderline. The slaves were freed in the conduct of military
operations pursuant to British foreign policy. Commander Denman was clever
enough to negotiate a treaty with the local chiefs outlawing slavery before he freed
most of them and burned down the barracoons but that did not necessarily render his
acts lawful by local law. Nor do we need to decide whether the doctrine can ever be
pleaded against British citizens: it was freely acknowledged in the courts below that
there are arguments either way. They do not arise in these cases.
The Crown Proceedings Act 1947
38. The respondents argue that the defence was abolished by section 2(1) of the
Crown Proceedings Act 1947. This provides:
“Liability of the Crown in tort
E+W+S+N.I.
Subject to the provisions of this Act, the Crown shall be subject
to all those liabilities in tort to which, if it were a private person
of full age and capacity, it would be subject:-
(a) in respect of torts committed by its servants or
agents;
Page 17
(b) in respect of any breach of those duties which a
person owes to his servants or agents at common law by
reason of being their employer; and
(c) in respect of any breach of the duties attaching at
common law to the ownership, occupation, possession
or control of property:
Provided that no proceedings shall lie against the Crown by
virtue of paragraph (a) of this subsection in respect of any act
or omission of a servant or agent of the Crown unless the act or
omission would apart from the provisions of this Act have
given rise to a cause of action in tort against that servant or
agent or his estate.”
39. Both Leggatt J and the Court of Appeal held that the 1947 Act had not had
the effect of abrogating the defence of act of state. Section 2(1)(a) made the Crown
vicariously liable for the torts of its servants or agents. The proviso makes it clear
that this does not apply where the act or omission would not have given rise to a
cause of action in tort against the servant or agent. The servant or agent could claim
the defence of Crown act of state before the Act and the effect is, now, that the
Crown can do so too. That is certainly how it was understood at the time, for
example, by Professor Glanville Williams, in Crown Proceedings (Stevens, 1948, p
44), although he also suggested that the proviso was an unnecessary “bludgeon” as
the so-called defence meant that there was no liability in any event.
40. The claimants argue that the purpose of the 1947 Act was to put the Crown
in the same position as any other litigant in civil proceedings. Other litigants did not
enjoy the benefit of the defence of Crown act of state. It would be illogical if a
provision intended to put the Crown on the same footing as anyone else had a
proviso having precisely the opposite effect. It is also odd to do so by a proviso
aimed at the agent rather than the Crown. Where the Act intended to create
immunities or restrictions, or preserve existing common law rules, or make savings,
it did so clearly and expressly; an example is section 2(5), which gives the Crown
immunity from liability for anything done by any person while discharging
responsibilities of a judicial nature.
41. There is, however, nothing odd about preserving the previous law by means
of a proviso aimed at the agent. The Act imposed vicarious liability for the acts of
its servants or agents upon the Crown. It is natural, therefore, to make it clear that
the Act is not making any difference to the previous law relating to the liability of
that servant or agent, even if the previous law in question is one which applies only
Page 18
to Crown servants or agents. It may be that the proviso was unnecessary but there is
no reason to doubt that the previous law of Crown act of state, whatever it was, was
left intact.
Article 6
42. The respondents accept that if, as held by the Court of Appeal, Crown act of
state is only a defence where there are overriding reasons of public policy not to
apply the tort law of a foreign state, this would be a proportionate interference with
the right of access to a court and thus compatible with article 6 of the European
Convention on Human Rights. However, they argue that any wider defence would
be an unjustifiable impediment to that right of access. This depends upon two
questions: first, whether the defence is an aspect of the substantive law or whether
it is a procedural restriction on the right to go to court to vindicate a right; secondly,
if it is merely a procedural bar, whether it is justified as a proportionate means of
pursuing a legitimate aim.
43. The respondents argue that the defence is not an aspect of a substantive right,
akin to the rule of Italian law considered by the Grand Chamber of the European
Court of Human Rights in Markovic v Italy (2006) 44 EHRR 52. Claims had been
brought in an Italian court against the Prime Minister, Ministry of Defence and
Commander of NATO forces in southern Europe in respect of deaths caused by
military action in the former Yugoslavia in 1999. The Cour de Cassation had held
that the Italian court had no jurisdiction, under a rule very like the non-justiciability
aspect of our own Crown act of state doctrine, that certain “acts of government”,
including the conduct of hostilities, did not give rise to civil liability. The Grand
Chamber held that the claimants had not been deprived of access to a court: their
claims had been fairly examined in the Italian courts in the light of the applicable
domestic legal principles. Those principles “marked out the bounds of the law of
tort” so that the inability to sue was not the result of an immunity but of the principles
governing the substantive right of action. By contrast, argue the respondents, the
Crown act of state defence is a procedural bar, which prevents the United Kingdom
courts from enforcing rights and liabilities in tort which would otherwise be
justiciable. This means, they argue, that the government must justify it and this they
cannot do. It cannot be justified on the basis that it pursues the legitimate aim of
ensuring that the government and the courts speak with “one voice” on matters of
foreign policy. As the Court of Appeal pointed out (para 372), they are not required
to do so in public law claims or in claims under the Human Rights Act. Leggatt J
held that “it serves the legitimate aim of protecting the interests of the nation abroad,
in particular where military action is considered necessary by the executive in the
national interest” (Rahmatullah, para 217) and was proportionate to that aim (para
218). The respondents accept that it might be justified on the basis that it pursued
the legitimate aim of enabling the legality of the Government’s conduct of foreign
affairs, and in particular military operations abroad, to be determined by
Page 19
international law rather than the law of the place where those operations took place.
Thus it enables the Government to comply with its obligations in international law
without having to concern itself with local domestic law. But the rule as contended
for by the Government goes wider than is necessary to meet that aim and is thus
disproportionate to it.
44. The Government, on the other hand, contends that article 6 is “not engaged”.
This is a Markovic case. Article 6 does not guarantee any particular content to the
civil rights and liabilities protected by domestic law. It merely guarantees a right of
access to the courts to have those rights and liabilities determined: Z v United
Kingdom (2001) 34 EHRR 3, paras 87, 92. The claimants have the right to a fair
hearing of whether the doctrine of Crown act of state, in either of its aspects, applies.
But that doctrine defines the content of their rights. It means that there are certain
actions which do not give rise to civil liability. It is not simply a procedural bar.
Even if it were, they argue, it pursues the legitimate aim identified by Leggatt J and
is proportionate to that aim for the reasons he gave: it applies only to acts done
pursuant to deliberate United Kingdom foreign policy and only to claims arising
under foreign law. It does not therefore apply to claims under the Human Rights
Act.
45. In my view, this is clearly a rule of the substantive law rather than a
procedural bar. It does not confer an immunity on a particular class of actors. It
defines the circumstances in which there may be liability for a particular type of
activity. The rules are the same whether that activity is governed by English law or
by foreign law. As these cases show, the claimants do have access to a court to
determine the scope of their rights. This court is concerned with the question of law
as to how far their rights extend. In Mr Mohammed’s case, the facts necessary to
determine the extent of his rights have already been examined. In the other cases,
the facts have yet to be fully pleaded and evidence filed. When they have, the court
will have to decide what the facts are and whether they fall within the defence of
Crown act of state as defined by this court. There has been no procedural bar to the
claimants bringing these claims and fighting them vigorously through the courts. It
is the substantive law which will determine whether, on the facts found, they
succeed.
Conclusion
46. I would therefore allow the Government’s appeal. I would substitute a
declaration to the effect that, in proceedings in tort governed by foreign law, the
Government may rely on the doctrine of Crown act of state to preclude the court
passing judgment on the claim if the circumstances are such as stated in paras 36
and 37 above. It may well be that the declarations made by Leggatt J should be
restored. In the case of Serdar Mohammed, he declared that, on the assumption that
Page 20
the facts relating to his arrest and detention pleaded by the Government were true,
and without prejudice to his right to challenge the factual basis of his arrest and
detention at any further trial, the defendants could rely on the doctrine of Crown act
of state to preclude the enforcement of a claim under Afghan law. In the case of
Yunus Rahmatullah, he declared that the claims in tort in relation to his arrest and
detention by UK armed forces were barred by the doctrine of Crown act of state, “if
the defendants established that his arrest and detention was authorised pursuant to
lawful UK policy”. He made a declaration in similar terms in the Iraqi Civilian
Litigation. I would, however, invite further submissions as to the precise form of
declaration which would be appropriate in each of these cases.
LORD MANCE: (with whom Lord Hughes agrees)
47. Crown act of state certainly presents terminological and conceptual
difficulties. But I think it clear that the underlying principle is one of nonjusticiability or (as I would prefer to say: see para 54 below) abstention or restraint.
It creates unnecessary confusion to suggest that the principle has two branches, one
non-justiciability, the other a defence based on Buron v Denman (1848) 2 Exch 167.
48. Lord Sumption suggests a dichotomy between two rules (para 79). But he
ends with a proposition that, in the present context, the two rules merge into one
(para 81). This is achieved by defining non-justiciability in the present context as
going “to the existence or scope of legal rights” (para 80) and so as a defence (para
81). To my mind, this involves confusion. Lord Sumption seeks to support it in para
80 by suggesting that the case of R (Campaign for Nuclear Disarmament) v Prime
Minister [2002] EWHC 2777 (Admin) proceeded on the footing that the Divisional
Court “had both jurisdiction and competence to determine whether a resolution of
the United Nations Security Council authorised military operations against Iraq” but
that it declined to do so because there were no relevant domestic law rights. This,
however, in my opinion, misreads the Divisional Court’s judgment. The essential
ground of the decision in Campaign for Nuclear Disarmament was that the subject
matter was non-justiciable: see per Simon Brown LJ at para 47(ii), Maurice Kay LJ
at para 50, and Stephen Richards LJ at paras 59-60. Absence of domestic foothold
was a separate and (as Maurice Kay and Stephen Richards LJJ make clear in these
passages) lesser objection to the claim (see also Simon Brown LJ at paras 35-36).
49. The case of Campaign for Nuclear Disarmament therefore lends no support
to a proposition that Crown act of state involves a defence. On the contrary, it places
Crown act of state, involving foreign policy action including the deployment of
armed forces, firmly within the domestic principle of non-justiciability or
abstention, and this is so whether the Crown or its agent is being impleaded. Crown
act of state is at the same time (as Lady Hale notes: paras 43-45) a principle of
Page 21
substantive law outside the scope of article 6 of the European Convention on Human
Rights.
50. Crown act of state is in short based on the same underlying principle of
abstention that can in some circumstances also apply to preclude adjudication of the
third type of foreign act of state identified in my separate judgment on that topic
handed down concurrently with this judgment in the present case and in Belhaj v
Straw [2017] UKSC 3. That is not to suggest that the principle of abstention applies
with the same force or by reference to the same considerations in relation to the latter
context. Because of the way in which the issues in these cases were identified and
divided for determination, this was not an aspect on which the submissions before
us focused. I will say some provisional words about it.
51. Both Crown act of state and the third type of foreign act of state are based on
an underlying perception of the role of domestic courts. The constitutional
relationship of a domestic court with its own State differs from its relationship with
that of any foreign sovereign state. Crown act of state is reserved for situations of
sovereign authority exercised overseas as a matter of state policy. In these
circumstances a straight-forward principle of consistency directly underpins Crown
act of state (as identified by Lord Sumption in para 87). In contrast, if and when the
third type of foreign act of state applies, its underpinning is a more general
conception of the role of a domestic court, and, more particularly, the incongruity of
a domestic court adjudicating upon the conduct of a foreign sovereign state, even
though the foreign state is neither directly or indirectly impleaded or affected in its
rights. However, concern for the international relations of the domestic with the
foreign state, and in that sense a concern that the domestic court’s stance should not
be out of line with that of its own state’s, may probably in some cases play some
part: see the discussion in paras 103 to 105 of my judgment in Belhaj v Straw.
52. This analysis is supported by what Lord Wilberforce said in Buttes Gas,
938A-C, quoted in para 42, as well as with my own observations in para 91, of my
judgment in Belhaj v Straw. But to immunise the home state of the domestic court
from action anywhere (or, in a Buttes Gas type case to refuse to adjudicate upon
civil litigation between third parties), by reference to the conduct of a foreign state,
is self-evidently an extreme step. This is no doubt why the principle of abstention
recognised in Buttes Gas has rarely found application. These differences in
underpinning and analysis between Crown act of state and foreign act of state mean,
in my opinion, that it must be easier to establish that a domestic court should abstain
from adjudicating on the basis of Crown act of state than on the basis of the third
type of foreign act of state. The relationship is closer and the threshold of sensitivity
lower in the case of the former than the latter.
Page 22
53. It is necessary to grasp the considerations which may make a case nonjusticiable. A consideration which in the past may have encouraged an overly narrow
view is Lord Wilberforce’s pithy references in Buttes Gas & Oil Co v Hammer
[1982] AC 888, 938B-C to an absence of “judicial or manageable standards” by
which to judge the issues in that case, placing the court in a “judicial no-man’s land”.
But it is clear that these references do not represent the definitional limit of nonjusticiability in the present context. They represent – as Lord Sumption pointed out
in Shergill v Khaira [2014] UKSC 33; [2015] AC 359, para 40 – only one of two
reasons why the issue in Buttes Gas was “political” or “non-justiciable”. The other
was that the issue “trespassed on the proper province of the executive, as the organ
of the state charged with the conduct of foreign relations”, a consideration which
takes one back to the discussion in the previous paragraphs.
54. Bearing in mind the potential for misunderstanding the concept of nonjusticiability in the light of Lord Wilberforce’s aphorisms in Buttes Gas, it may be
preferable to refer instead, as I have done above, to a principle of abstention or
restraint, whereby Crown decisions and/or activities of a certain nature in the
conduct of foreign affairs are not open to question (or are “not cognisable”) in
domestic civil proceedings, at the instance of anyone injured thereby (except,
perhaps, someone owing allegiance to the Crown – a point which can be left open
on this appeal).
55. I have already indicated that I do not accept what was the primary case of the
appellants, the Ministry of Defence and the Foreign and Commonwealth Office,
namely that there is a dichotomy between two rules (non-justiciability and a tort
defence). However, the appellants never committed themselves to bringing their
case within either rule. On the contrary, they submitted in paras 101, 107 and 173(4)
and (5) of their written case: that “each of the claims should be dismissed on the
grounds that Crown act of state operates as a separate defence and/or a jurisdictional
bar”: that “the Court of Appeal mischaracterised the scope of the justiciability limb
of the Crown act of state doctrine, and consequently concluded that it did not apply
in the present case”; that “the Court of Appeal erred in holding that the nonjusticiability rule only applies in circumstances where the issue is one which the
court is constitutionally incompetent to determine”; and that “in any event, the tort
defence and/or non-justiciability rule applies to each of the cases”. In his oral
submissions, Mr Eadie QC maintained this position, in submissions to the effect that
“how you characterise the doctrine, whether as a defence or non-justiciability, does
not matter; its criteria and effect are what matters”. There is good sense in this. It is,
nonetheless, helpful to identify the conceptual basis of Crown act of state. In my
view, there is, as I have stated, a single doctrine based on non-justiciability or, in the
terms which I prefer, judicial abstention or restraint.
56. I turn to examine further the core rationale behind cases where courts will
abstain from adjudicating upon civil claims against the Crown or its servants. This
Page 23
is also discussed in some detail in the passages from Campaign for Nuclear
Disarmament cited above. Since Council of Civil Service Unions v Minister for the
Civil Service (“GCHQ”) [1985] AC 374, reinforced by R (Bancoult) v Secretary of
State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] 1 AC
453, the exercise of prerogative powers, including prerogative legislation in the form
of an order in council, has not enjoyed any general immunity from judicial scrutiny.
But the nature and subject-matter of the particular prerogative power being exercised
may make it inappropriate for adjudication before a domestic court. Thus in GCHQ
Lord Roskill said, at p 418, that
“Prerogative powers such as those relating to the making of
treaties, the defence of the realm, the prerogative of mercy, the
grant of honours, the dissolution of Parliament and the
appointment of ministers as well as others are not, I think,
susceptible to judicial review because their nature and subject
matter are such as not to be amenable to the judicial process.”
57. In Shergill v Khaira, para 42, Lord Sumption referred to this category of case
as “beyond the constitutional competence assigned to the courts under our
conception of the separation of powers”, and included within it “the nonjusticiability of certain transactions of foreign states and of proceedings in
Parliament”. The thinking behind all these concepts is linked in Blackstone’s
Commentaries on the Laws of England (vol 1) pp 251 and 257-258. There, the nonjusticiability of the royal prerogative of making war and peace or treaties is
explained on the basis that the appropriate forum for its control is Parliament
(including, in the last resort, as Blackstone notes, by impeachment). In the case of
certain foreign activities of the British state, there is in my view an additional parallel
aspect at the international level to their non-justiciability in domestic courts. That is
that representations and redress in respect of activities involving foreign states and
their citizens may be more appropriately pursued at a traditional state-to-state level,
rather than by domestic litigation brought by individuals.
58. In any event, it is, as already shown, wrong to regard either Lord Roskill in
GCHQ or the Supreme Court in Shergill v Khaira as basing this category of case on
an absence of judicial or manageable standards or the presence of a judicial noman’s land. When there is an appropriate domestic foothold and the matter is
otherwise justiciable, domestic courts are well able to adjudicate upon and give
effect to international law (see the citations from Campaign for Nuclear
Disarmament, above). Indeed, customary international law was long said to be
automatically incorporated into domestic law: see the discussion in R (Keyu) v
Secretary of State for Foreign and Commonwealth Affairs [2015] 3 WLR 1665,
paras 117-122 and 144-151. As Lord Sumption also recognised in Shergill v Khaira,
para 43, a private claim may require adjudication upon issues of international law,
where there is a domestic foothold in the sense of a prima facie domestic law right
Page 24
under whatever may be the relevant law: see eg Republic of Ecuador v Occidental
Exploration Production Co [2005] EWCA Civ 1116; [2006] QB 432.
59. The Report of William Murray (later Lord Mansfield) and other Law Officers
on the Rules of Admiralty Jurisdiction, etc in time of war dated 18 January 1753 and
the decision in The “Rolla” (1807) 6 Robinson 364, to which Lord Sumption refers
(para 83), do no more than exemplify the same point. Both concerned the civil rights
of neutrals whose property had been seized during the blockade of an enemy port.
They turn on the customary international law of war and prize, treated as
incorporated into domestic law. The Law Officers’ Report was thus sought
concerning the consistency of certain Prussian prize proceedings with “the Law of
Nations, and any Treaties …, the established Rules of Admiralty Jurisdiction, and
the Laws of this Kingdom” (p 889). The Report was given on the basis that “By the
Maritime Law of Nations, universally and immemorially received, there is an
established method of determination, whether the Capture be or be not lawful Prize”
(p 890), and that “In this method, by Courts of Admiralty acting according to the
Law of Nations and particular Treaties, all captures at sea have immemorially been
judged of, in every Country of Europe” (p 892). The Admiralty Court had
“immemorially” held trading with enemy subjects to be illegal: see Oppenheim’s
International Law (7th ed) paras 101, footnote 2, and 192; and see also McNair and
Watts, The Legal Effects of War (1966) pp 336-337.
60. Neither the Law Officers’ Report nor The Rolla bears on the issue currently
under discussion. They concern the application of customary international law as
and where incorporated into domestic law, giving rise to a foothold for domestic
adjudication, as there was for example in the case of The Rolla, where the issue
concerned a claim to seize and condemn a ship as prize for contravention of a legal
blockade.
61. The Secretary of State in Council of India v Kamachee Boye Sahaba (1859)
7 Moore Ind App 476 is, in contrast, an example of a case falling within the conduct
of foreign affairs which the Privy Council held was unsuitable for adjudication in a
domestic court. It concerned the annexation by the East India Company (exercising
sovereign power on behalf of the British Government) of a foreign territory and the
taking of its late ruler’s public and private property. The late ruler’s eldest widow
brought an action claiming to be entitled to the private property which (the Privy
Council was ready to accept) would under Hindoo law pass and belong to the late
ruler’s eldest widow. In relation to the appropriation of the private property, there
was clearly a domestic foothold for the claim. But the claim failed in its entirety.
This was not because it was non-justiciable in some narrow sense, involving absence
of judicial or manageable standards. A domestic court could, if necessary, identify
standards and rules of international law by reference to which to adjudicate upon
such a dispute. It was because the whole case fell within the category of nonjusticiability identified by Lord Roskill in GCHQ and the Supreme Court in Shergill
Page 25
v Khaira, para 42. It was a case upon which domestic courts should not adjudicate
because of its nature and subject-matter. It was a classic case of intervention by
forces acting for the British Crown intervening in and taking over a foreign territory
and property of its subjects.
62. Attempts at a bifurcation in this area between (a) cases of non-justiciability
(or cases not open to question) in a domestic court and (b) cases falling within the
so-called rule in Buron v Denman are in my view incorrect and confusing. The
correct analysis is that the rule applied in Buron v Denman is no more than a
corollary of the principle of non-justiciability, abstention or restraint. In short, the
rule applied protects the Crown’s servants or agents in circumstances where that
principle precludes a claim against the Crown itself. A claim which is non-justiciable
against the Crown itself cannot be justiciable against the servants or agents who,
with the Crown’s authority or subsequent ratification, undertook the relevant acts.
Otherwise, the principle of Crown act of state could and would be subverted.
63. The point is illustrated by the case of Secretary of State in Council of India v
Kamachee Boye Sahaba itself. The action there was not against the Crown, but for
an act done, as Lord Kingsdown said, by the East India Company as “its delegate”,
over which act domestic courts had “no jurisdiction” and “of the propriety or justice
of that act, neither the court below nor the Judicial Committee have the means of
forming, or the right of expressing, if they had formed, any opinion” (p 540). See
also, in the quotations from Lord Kingsdown’s judgment that Lord Sumption sets
out in para 86: “such [viz municipal] courts have neither the means of deciding what
is right” and “an act not affecting to justify itself on grounds of municipal law”;
“over which the Supreme Court of Madras has no jurisdiction” and “It is sufficient
to say that, even if a wrong has been done, it is a wrong for which no Municipal
Court of Justice can afford a remedy”.
64. This is the language of non-justiciability, abstention or restraint. The
authorities relied on by counsel for the East India Company also demonstrate the
same point. They included Tandy v Earl of Westmoreland (1792) 27 State 1246, in
which “the official acts of the Lord Lieutenant of Ireland were considered acts of
state, and not within the cognizance of the Municipal jurisdiction”, and Mostyn v
Fabrigas (1775) Cowp 161, where “Lord Mansfield laid it down that no Governor
of a Colony could be sued while he is exercising the functions of a Governor”. In
each case, the principle identified is one of non-justiciability.
65. Further, in Lord McNair’s magisterial and influential work International Law
Opinions vol 1 (1956), from which Lord Wilberforce quoted in Nissan v Attorney
General [1970] AC 179, at p 234C-F, the general principle of non-justiciability is
described in terms making clear that it protects the Crown’s servants and agents as
much as the Crown. The reality is that the rule in Buron v Denman is a necessary
Page 26
aspect of the principle of abstention or non-justiciability. Likewise, in the analogical
context of state immunity, not only the Crown, but also its servants and agents are
protected, or otherwise the rule would be subverted: see Jones v Saudi Arabia [2007]
1 AC 270. Equally, it cannot be open to a Crown servant or agent by waiving a plea
of Crown act of state to enable a domestic court to adjudicate upon an area falling
within the scope of the concept. Yet that would seem the consequence if Crown act
of state were a mere defence, rather than a bar to adjudication based upon a principle
of abstention or restraint.
66. There were only two issues in the Court of Exchequer case of Buron v
Denman. One, swiftly dispatched by Parke B in summing up (p 187), was whether
the plaintiff could show sufficient property or possession in slaves. The other, the
main issue, was whether a Crown servant or agent could by ratification of his acts
by the Crown be put in the same position as if those acts had been authorised by the
Crown from the outset. Had there been prior authorisation, it is clear from the way
that Buron v Denman was argued, that there would have been no doubt that the
action was not maintainable. The Attorney General cited briefly in this connection
at the end of his submissions (p 185) Elphinstone v Bedreechund, which concerned
British forces’ seizure of a military fortress during military hostilities and is,
correctly, analysed by Lady Hale in para 25 as a case of non-justiciability.
67. Conversely, without prior authorisation or ratification, it was well established
before Buron v Denman that a Crown servant could be held liable for unauthorised
naval action taken against foreign slavers conducting a trade which remained lawful
under the (Spanish) law of the flag of the ship they were using. In Madrazo v Willes
(1820) 3 B & Ald 353, relied on by counsel for the plaintiff in Buron v Denman,
Captain Willes, commanding a Royal Navy vessel, had without authority taken
possession of a Spanish brig engaged in the slave-trade between Africa and Cuba,
detaining her, her stores and other goods as well as 300 slaves, and preventing her
from further trading. The Spanish owner sued Captain Willes, maintaining
(consistently with the principle in Entinck v Carrington (1765) 19 State Tr 1029)
that he was personally liable. The only question which arose was as to the measure
of damages. Reluctantly, the Court of King’s Bench found itself obliged to award
Señor Madrazo damages which included not merely the deterioration of the ship’s
stores and goods, but also the alleged profit which would have been made from the
ship’s cargo of slaves.
68. When Buron v Denman was argued nearly 30 years later, the only substantial
question was therefore whether a different result could and should follow if the
Crown had, after the event, purported to ratify what its naval captain had done. There
was a faint suggestion, which led to nothing, that Lord John Russell’s and Viscount
Palmerston’s commendations of Captain Denman’s “very spirited and able” and
“highly meritorious” conduct and their expressions of desire that such conduct
should be repeated, whenever occasion arose, were insufficient to amount to
Page 27
ratification in fact. The plaintiff’s real argument was that ratification was only
permissible if the act would have been justified, if done by the principal, whereas
here it was “not for the purpose of showing that the act was justifiable, but for the
purpose of protecting the party committing it against examination as to whether it
was right or wrong”. That ratification was permissible, if the act done would under
domestic law have been justified if done by the principal, was in fact demonstrated
by The Rolla. There a British blockade of Monte Video (a Spanish enemy port) was
in principle legal under international and domestic law, had however actually been
imposed by the local British fleet commander, Sir Home Popham, without
governmental authority, but was ratified by the British government after the event.
Parke B was in Buron v Denman concerned by the plaintiff’s submission that a plea
of Crown act of state was of a different character, since it did not turn on any
conclusion that the act would, if authorised by the Crown be lawful (but simply
withdrew it from domestic adjudication). Ultimately, however, he joined with the
other members of the Court in holding that ratification was in this context also
equivalent to prior authorisation – even if it left the plaintiff without remedy against
the Crown because the injury would count as “an act of state without remedy” (p
189).
69. In summary:
(i) there is only one principle of Crown act of state;
(ii) Buron v Denman is simply authority for the proposition that conduct
capable by its nature of being an act of state may be so not only when
authorised in advance but also when subsequently ratified by the Crown; and
(iii) Crown servants or agents committing an act of state with prior
authorisation or subsequent ratification by the Crown enjoy the same
immunity from liability that the Crown does – otherwise, indeed, the doctrine
of Crown act of state would have very little bite at all.
70. In support of this analysis, I note the following further points:
(i) The suggestion that there are two separate rules of Crown act of state,
operating somehow in parallel but at different levels, stems essentially from
dicta of Lord Wilberforce in Nissan v Attorney General [1970] AC 179,
231C-E. Nothing said by other members of the House supports such a
bifurcation: see eg per Lord Reid at pp 207G, 208C-G and 212C-D and Lord
Morris at pp 219B-221B. Both analysed the issue in Nissan as turning on the
scope of the rule in Buron v Denman – ie as treating the rule in Buron v
Denman and the principle of non-justiciability as interdependent.
Page 28
(ii) It is far from clear that Lord Wilberforce intended the conceptual
distinction now proposed between two separate rules. He himself spoke of
Crown act of state as “a principle … that … includes within itself two
conceptions or rules”. His first conception or rule can be seen to have been
focused on the liability or immunity of Crown servants whose acts have been
authorised or subsequently ratified by the Crown. On that basis, his second
conception or rule represents the sole principle focusing on the case of a claim
against the Crown itself.
(iii) A precursor to Lord Wilberforce’s dicta consists in Lord McNair’s
International Law Opinions vol 1 (1956), from which, as I have already
noted, Lord Wilberforce quoted at p 234C-F in Nissan. Lord McNair
confined discussion of the rule in Buron v Denman to circumstances where a
claim is made against a Crown servant, and dealt with non-justiciability as a
“wider and more fundamental” principle precluding claims against the
Crown, its servants or agents (pp 111-112). But, in circumstances where
Crown servants are protected under the rule in Buron v Denman, the Crown
itself must also be protected. The inference again is that the rule in Buron v
Denman is simply an aspect of the protection afforded by the wider and more
fundamental principle of non-justiciability. The two rules cover different
facets of the same situation.
(iv) Further, in so far as Buron v Denman addressed the Crown’s immunity
from suit in relation to foreign military activity at all, it was based on
authority addressing circumstances of non-justiciability and has subsequently
been analysed in the same terms. Thus:
(a) the Attorney General in Buron v Denman successfully
advanced Crown act of state as a defence by referring to circumstances
which were and are clearly non-justiciable, referring (at p 184) to acts
under a treaty and, as I have already noted, by referring (at p 185) to
Elphinstone v Bedreechund, which concerned seizure of a military
fortress during military hostilities and is a case of non-justiciability;
(b) the rationale of Buron v Denman is clearly identified in later
authority at the highest level as being that it concerned non-justiciable
activity, that is (in the light of the ratification) state activity undertaken
abroad as a matter of policy at an inter-state level or in the course of
something like military operations against a foreign state or its
subjects: see Johnstone v Pedlar [1921] AC 262, per Viscount Finlay,
p 271 foot; per Viscount Cave, p 275 foot; per Lord Atkinson, p 279;
and per Lord Sumner, p 290 and pp 291-292. In these passages, both
Viscount Cave and Lord Atkinson assimilated Buron v Denman and
Page 29
Kamachee Boye Sahaba, which is another case correctly analysed by
Lady Hale at para 25 as an instance of non-justiciability.
71. In addition, no rationale for or explanation of the contours of any distinction
between circumstances of non-justiciability and circumstances falling within a
supposedly separate rule to be derived from Buron v Denman is available. Indeed,
Lord Sumption argues that the two rules are in the present context one (para 80), but
only (as I have pointed out in para 48 above) by assigning to non-justiciability the
unnatural meaning of a defence. He suggests that, contrary to contemporary and later
views, Buron v Denman was a case of a tort law defence.
72. Taking the criteria for activities which are non-justiciable or inappropriate to
be questioned in domestic civil proceedings, they clearly include all those identified
by Lord Sumption in para 82, that is
(i) they must involve an exercise of sovereign power, inherently
governmental in nature;
(ii) done outside the United Kingdom;
(iii) with the prior authority or subsequent ratification of the Crown; and
(iv) in the conduct of the Crown’s relations with other states or their
subjects (possibly excluding persons owning allegiance to the Crown).
73. I add two points. First, Crown act of state must be potentially applicable as
much to acts in the execution of policy-makers’ decisions as it is to the decisions
themselves. It would not otherwise be a coherent doctrine. In this, I am at one with
Lady Hale (para 33) and Lord Sumption (para 90). Second, in relation to the
availability of Crown act of state as a plea in relation to conduct towards the subjects
of foreign states: see eg the citations which Lady Hale gives in her para 2, the first
of which was also quoted and endorsed by Lord Wilberforce in Nissan at p 231B;
see also per Lord Reid at p 212C-D.
74. The upshot is that the criteria suggested for the rule in Buron v Denman are
the same criteria as lead to a conclusion that circumstances are non-justiciable or
inappropriate for adjudication in domestic civil proceedings. The reason is clear.
There is only one principle, though it has different aspects protecting Crown servants
or agents (Buron v Denman) and the Crown more generally. What matters in any
Page 30
case is therefore its scope and application in relation to the particular circumstances
the subject of the relevant civil proceedings.
75. As to this, I agree with Lady Hale and Lord Sumption that the present
claimants’ detention by Her Majesty’s forces and their transfer from British to
United States and Afghan custody were, as such, Crown acts of state which are not
justiciable or open to question in domestic proceedings for common law damages
such as the present. They were, on the actual or presently assumed facts, steps taken
pursuant to or in implementation of deliberately formed policy against persons (none
owing any allegiance to the Crown) reasonably suspected to be insurgents or
terrorists in the context and furtherance of foreign military operations during a time
of armed conflict.
76. I also agree with Lady Hale’s conclusions regarding the Crown Proceedings
Act 1947 and article 6 of the European Convention on Human Rights. As she
observes, the rule of Italian law considered by the European Court of Human Rights
in Markovic v Italy (2006) 44 EHRR 52 was effectively a rule of non-justiciability.
The Italian Court of Cassation had before it claims by relatives of persons killed in
the NATO bombing of Belgrade, in which Italian forces had participated. The Court
of Cassation categorised the impugned act as an act of war, and said that “since such
acts were a manifestation of political decisions, no court possessed the power to
review the manner in which that political function was carried out” (para 106). The
European Court of Human Rights said, at para 114, that
“the Court of Cassation’s ruling … does not amount to
recognition of an immunity but is merely indicative of the
extent of the courts’ powers of review of acts of foreign policy
such as acts of war. It comes to the conclusion that the
applicants’ inability to sue the state was the result not of an
immunity but of the principles governing the substantive right
of action in domestic law.”
This statement fits precisely the circumstances of the present case on my approach
to Crown act of state.
77. Further, in the light of the above, I agree that there should be a declaration in
each appeal as Lady Hale proposes in her para 46, and that we should invite further
submissions on its precise form. In the cases of Yunus Rahmatullah and the Iraqi
Civilian Litigation, I would specifically invite further assistance as to the effect and
appropriateness of the qualifying adjective “lawful” quoted by Lady Hale in her para
46.
Page 31
LORD SUMPTION:
78. In Nissan v Attorney General [1970] AC 179, 231, Lord Wilberforce, whose
speech comes closest to supplying a coherent judicial statement of the doctrine of
Crown act of state, reviewed the main relevant authorities on the doctrine and
concluded that it comprised two rules. One was a rule of non-justiciability, by which
he meant a rule which “prevents British municipal courts from taking cognisance of
certain acts”. The other was a rule which
“provides a defendant, normally a servant of the Crown, with a
defence to an act otherwise tortious or criminal, committed
abroad, provided that the act was authorised or subsequently
ratified by the Crown.”
The dichotomy between these two rules had previously been suggested by Lord
McNair in International Law Opinions (1956), pp 111-116.
79. “Non-justiciability” is a treacherous word, partly because of its lack of
definition, and partly because it is commonly used as a portmanteau term
encompassing a number of different legal principles with different incidents. Strictly
speaking, as this court observed in Shergill v Khaira [2015] AC 359 at para 41, it
should be reserved for cases where an issue is said to be inherently unsuitable for
judicial determination by reason only of its subject matter. This may result in a court
declining to determine an issue notwithstanding its relevance to the dispute between
the parties, for example because there are no juridical standards by which to
determine it, as in Buttes Gas and Oil Co v Hammer (No 3) [1982] AC 888; or
because its determination is not within the constitutional competence of the courts,
for example because it would trespass on Parliamentary privilege, as in Prebble v
Television New Zealand Ltd [1995] 1 AC 321. These are mandatory rules of public
policy, originating in the law’s recognition of the separation of powers between
different organs of the state. They define the limits of the court’s jurisdiction or
juridical competence. But there are other principles, also originating in the
separation of powers and described as principles of non-justiciability, which do not
go to the court’s jurisdiction or competence but to the existence or scope of legal
rights. Thus in R (Campaign for Nuclear Disarmament) v Prime Minister [2002]
EWHC 2777 (Admin), the court proceeded on the footing that it had both
jurisdiction and competence to determine whether a resolution of the United Nations
Security Council authorised military operations against Iraq, but declined to do so
because, among other reasons, there were no relevant “rights, interests or duties
under domestic law”: paras 14-15, 36. I venture to suggest that if domestic law
rights, interests or duties had been engaged, the court would not have regarded the
issues as non-justiciable.
Page 32
80. Crown act of state is a rule of substantive law which belongs in this latter
category. The court is not disabled from adjudicating on a Crown act of state by
virtue of its subject-matter. The acts of the Crown and its agents are always in
principle subject to the adjudicative power of the courts. They unquestionably have
both jurisdiction and competence to determine the legal effects of a Crown act of
state on the rights of those adversely affected by it. The real question is what are
those rights. The rule of law relating to Crown acts of state defines the limits which
as a matter of policy, the law sets upon certain categories of rights and liabilities, on
the ground that they would otherwise be inconsistent with the exercise by the
executive of the proper functions of the state. In principle an agent of the Crown is
liable as a matter of English law for injury or detention of persons or goods without
lawful authority. But that liability does not extend to a limited class of acts
constituting Crown acts of state. It follows that the agent has a defence if his acts
fall within that class. Like other members of the court, I doubt whether it helps to
treat the doctrine as comprising two rules. But in this context, it can fairly be said
that Lord Wilberforce’s two rules merge into one.
81. I agree with Lady Hale that a Crown act of state gives rise to no liability on
the part of the Crown or its agents. I also agree with her upon the essential elements
of a Crown act of state in this context. They are (i) that the act should be an exercise
of sovereign power, inherently governmental in nature; (ii) done outside the United
Kingdom; (iii) with the prior authority or subsequent ratification of the Crown; and
(iv) in the conduct of the Crown’s relations with other states or their subjects. There
may be a fifth requirement, that the alleged tort should have been committed against
a person not owing allegiance to the Crown. But that raises a distinct and
controversial question which does not need to be decided on these appeals. The
claimants in these proceedings did not owe allegiance to the Crown.
82. Although the label “act of state” is modern, the concept is very ancient. The
earliest illustrations relate to the right to seize ships or cargoes at sea. The right,
without incurring liability under English law, to seize property under letters of
marque and reprisal issued on the authority of the Crown, even in peacetime, dates
back to the 13th century. It was not, however, until the 18th century that the
underlying rationale of the doctrine began to emerge. The growth of British
seapower made it necessary to consider the interrelation between international and
municipal law concerning captures at sea. In a celebrated opinion of 1753, written
by Sir William Murray, later Lord Mansfield, the law officers of the Crown advised
that a belligerent power was entitled in international law to seize not only enemy
property but the property of neutrals destined for an enemy: British and Foreign
State Papers, 20 (1836), 889ff. The result was that the seizure of the property on
behalf of the Crown gave rise to no right to damages or possession at the suit of the
former owner. In The “Rolla” (1807) 6 Robinson 364, 365-367, Sir William Scott,
perhaps the greatest British international lawyer of his day, identified the basis of
the rule as being the authority or ratification of the Crown in the exercise of its
sovereign power. The result was that the American owner of a cargo had no rights
Page 33
under English municipal law in respect of the seizure of his property by Admiral Sir
Home Popham in the course of his highly irregular (but ratified) blockade of the
River Plate in 1806.
83. Greater definition was brought to this area of law in two seminal cases
decided in the middle of the 19th century: Buron v Denman (1848) 2 Exch 167, and
Secretary of State in Council of India v Kamachee Boye Sahaba (1859) 7 Moo Ind
App 476.
84. Buron v Denman is one of those cases which is more significant for what it
has always been understood to have decided, than for anything Parke B actually said
in the course of his summing up to the jury. Its significance is that Captain Denman’s
act in seizing the plaintiff’s slaves and destroying his property in the Gallinas in
West Africa was not a valid act of war, since Britain was at peace with Spain. Nor
was it justifiable in international law, since the slave trade had been held to be lawful
by the law of nations: see Le Louis (1817) 2 Dod 210. Although the indigenous ruler
of the Gallinas had undertaken by treaty with Captain Denman to destroy the
barracoons and surrender the slaves, he had not authorised Captain Denman to do
these things, which was presumably why the treaty was not relied upon by Captain
Denman and ignored by Parke B. There was therefore no legal basis whether in
international or municipal law for the invasion of Señor Buron’s proprietary rights.
In those circumstances, the only plea available to Captain Denman was that by virtue
of the Crown’s adoption of his acts, they were acts of state. The judge took it to be
axiomatic that the prior authority of the Crown would have constituted a defence.
The defendant would in that case be “irresponsible” (p 190), ie not liable. The only
contentious issue was whether subsequent ratification was equivalent to prior
authority. He held that it was.
85. Parke B did not explain why it went without saying that the authority of the
Crown was a defence, but the basis of the rule became clearer a decade later in the
advice of the Privy Council in Secretary of State in Council of India v Kamachee
Boye Sahaba. Lord Kingsdown, delivering the advice of the Board, applied the
principle in Buron v Denman (see pp 539-540) to the annexation of the Indian state
of Tanjore and the seizure of the late Rajah’s property there by the East India
Company in the exercise of the sovereign power of the Crown. He declared, at p
529:
“The general principle of law was not, as indeed it could not,
with any colour of reason be disputed. The transactions of
independent states between each other are governed by other
laws than those which Municipal Courts administer: such
courts have neither the means of deciding what is right, nor the
power of enforcing any decision which they may make.”
Page 34
Lord Kingsdown went on, at p 531, to inquire what was the nature of the act of the
East India Company’s officers:
“Was it a seizure by arbitrary power on behalf of the Crown of
Great Britain, of the dominions and property of a neighbouring
state, an act not affecting to justify itself on grounds of
municipal law? Or was it, in whole or in part, a possession
taken by the Crown under colour of legal title of the property
of the late Rajah of Tanjore, in trust for those who, by law,
might be entitled to it on the death of the last possessor?”
He concluded (p 540) that
“… the property now claimed, by the respondent has been
seized by the British Government, acting as a Sovereign power,
through its delegate the East India Company; and that the act
so done, with its consequences, is an act of state over which the
Supreme Court of Madras has no jurisdiction. Of the propriety
or justice of that act, neither the court below nor the Judicial
Committee have the means of forming, or the right of
expressing, if they had formed, any opinion. It may have been
just or unjust, politic or impolitic, beneficial or injurious, taken
as a whole, to those whose interests are affected. These are
considerations into which their Lordships cannot enter. It is
sufficient to say that, even if a wrong has been done, it is a
wrong for which no Municipal Court of Justice can afford a
remedy.”
86. Leggatt J regarded this as a “perverse doctrine under which the executive can
be held to account if it purports to act legally, but not if it openly flouts the law.”
But I think that the judge has misunderstood Lord Kingsdown’s reasoning. Lord
Kingsdown was not saying that the East India Company could not be held to account
because it had openly flouted the law. He was doing two things. In the first place he
was pointing out that even if the Crown’s annexation of Tanjore was unlawful in
international law that could not of itself give rise to any legal rights in municipal
law. Secondly, he was distinguishing between the sovereign and non-sovereign acts
of the Crown. If the seizure of the late Rajah’s property had been carried out under
colour of municipal law, for example as a taking of possession by a trustee, it would
not have been a sovereign act but an act such as any non-sovereign could have done.
As it was, it was an extraterritorial exercise of sovereign power, and as such an act
of state. It therefore gave rise to no actionable duty owed to the late Rajah’s heirs.
Page 35
87. The judgment of Lord Kingsdown has been treated by the House of Lords
and the Privy Council on many occasions since it was decided as an authoritative
statement of the law: see, among other cases, Sirdar Baghwan Singh v Secretary of
State for India [1874] LR 2 Ind App 38, 47; Cook v Sprigg [1899] AC 572;
Johnstone v Pedlar [1921] 2 AC 262, 275 (Viscount Cave), 278-279 (Lord
Atkinson), 290-291 (Lord Sumner); Vajesingji Joravarsingji v Secretary of State for
India [1924] LR 51 Ind App 357; Secretary of State for India v Sardar Rustam Khan
[1941] AC 536; Nissan v Attorney General [1970] AC 179, 218 (Lord Morris of
Borth-y-Gest), 225 (Lord Pearce), 231-232 (Lord Wilberforce), 238 (Lord Pearson).
88. The reason why the liabilities of the Crown in municipal law do not extend
to sovereign acts done in the course of military operations outside the United
Kingdom is essentially a principle of consistency. The deployment of armed force
in the conduct of international relations, or the threat of its deployment (express or
implicit) is one of the paradigm functions of the state. The law vests in the Crown
the power to conduct the United Kingdom’s international relations, including the
deployment of armed force in support of its objectives. Constitutionally, as
Blackstone observed, the result is that “what is done by the royal authority with
regard to foreign powers is the act of the whole nation:” Commentaries, para 252.
Or, as Willes J put it a century later in Esposito v Bowden 7 EL & BL 763, 781
(1857), speaking of a declaration of war, “as an act of state, done by virtue of the
prerogative exclusively belonging to the Crown, such a declaration carries with it
all the force of law”. In the nature of things, the use of armed force abroad involves
acts which would normally be civil wrongs not only under English law but under
any system of municipal law. People will be detained or killed. Their property will
be damaged or destroyed. It would be incoherent and irrational for the courts to
acknowledge the power of the Crown to conduct the United Kingdom’s foreign
relations and deploy armed force, and at the same time to treat as civil wrongs acts
inherent in its exercise of that power.
89. In this respect, Crown act of state differs from foreign act of state. When the
courts consider an exercise of sovereign authority by a foreign state, no question of
consistency arises because the sovereign authority of the foreign state is not derived
from English law. Foreign act of state operates purely as a rule of non-justiciability.
Its effect in the very limited class of cases to which it applies is not to afford a
defence but to preclude the courts from taking cognisance of an alleged civil wrong
if it necessarily depends on determining the lawfulness of a foreign act of state.
90. None of this means that whatever an agent of the Crown does pursuant to its
decisions in the conduct of the United Kingdom’s foreign relations gives rise to the
defence of act of state. The boundaries are admittedly difficult to draw. The only
extended discussion appears in the speeches in the House of Lords in Nissan v
Attorney General [1970] AC 179. But the inconsistencies between them, the
unsatisfactory terms of the pleading on which the argument was based and the
Page 36
obscurity of the facts combine to make it hard to extract any very clear ratio from
this decision. It is unquestionably right to say, as Lord Pearson did at p 237F, that
an act of state “must be something exceptional”. He cited the making of war and
peace, the making of treaties and annexations or cessions of territory as “obvious
examples” (p 237F-G), and the dispatch of a peacekeeping force to the territory of
an independent sovereign as having “to some extent the character of acts of state”
even if it did not follow that everything that it did there was an act of state (pp 239F240B). But this brings one no closer to a workable criterion on which to decide cases
like the present ones. In my opinion, the main relevant limitations on the act of state
doctrine are implicit in the doctrine itself. In particular, they are implicit in the
requirement that the act must be inherently governmental in nature, and either
specifically authorised or ratified by the Crown or inherent in what the Crown has
authorised or ratified. Without seeking to formulate a comprehensive definition of a
rule whose application is inevitably fact-sensitive, I consider that the following
points can fairly be made.
91. The first is that an act does not need to raise questions of “high policy” in
order to give rise to a plea of Crown act of state. This is because the rule extends not
just to the decisions of policy-makers, but to actions taken by the Crown’s agents in
the execution of those decisions, often at a relatively low level, far below the level
of policy-making. Moreover, as Lord Reid pointed out in Nissan, at p 212, acts
which are unauthorised but ratified after the event are unlikely to have been done in
accordance with any high policy of the Crown.
92. Secondly, it is sometimes said that the act must be the necessary consequence
of a decision made by the Crown through its ministers. I think that this is right,
provided that we are careful about what we mean by necessary. In rejecting the
Crown’s reliance on act of state in Nissan, two members of the Appellate Committee
observed that while the agreement with the government of Cyprus to station troops
on the island was itself an act of state, the occupation of the Cornaro Hotel was not
necessary to its implementation: pp 216-217 (Lord Morris of Borth-y-Gest), 227BC (Lord Pearce). But it is important to guard against the suggestion that the
availability of the act of state defence depends on a judicial assessment of the
political or tactical alternatives, an exercise which must be left to the judgment of
the executive or its officers on the spot. As Sir William Scott observed in The
“Rolla”, at p 366, “a commander going out to a distant station may reasonably be
supposed to carry with him such a portion of sovereign authority delegated to him,
as may be necessary to provide for the exigencies of the service on which he is
employed.” In my opinion, the question depends on the character of the act. It is
whether an act of that character is inherent in what the Crown has authorised or
ratified. It is in this sense that the concept of necessity is used in this context.
93. Thirdly, however, the fact that the act is of a kind which is inherent in what
the Crown has authorised or ratified, although undoubtedly a necessary condition,
Page 37
cannot be a sufficient one. It must also be by its nature a sovereign, ie an inherently
governmental act, for the Crown to be capable of authorising or ratifying it as an act
of state. In his speech in Nissan (p 218F), Lord Morris, after quoting the definition
of act of state in the then current edition of Halsbury’s Laws of England (“an act of
the executive as a matter of policy performed in the course of its relations with
another state including its relations with the subjects of that state”), observed, at p
218F:
“I do not think that such actions as securing food or shelter in
peace time for troops situate abroad are to be regarded as acts
of the executive performed in the course of relations with
another state within the conception of the above definition.”
I think that this was the true ratio of the decision. The appropriation of the hotel was
not an inherently governmental act in the circumstances pleaded. It was an ordinary
case of the army acquiring accommodation in peacetime, in respect of which they
were in no different position from any other organisation acquiring accommodation.
They therefore had to pay like any one else. As Lord Pearson suggested at p 240B,
the position might be different if there had been an “urgent military necessity” to
occupy the hotel.
94. I would prefer to reserve my opinion on the question whether the
appropriation of property, with or without compensation, can be an act of state. I
think that the answer would be likely to depend on the circumstances. In Buron v
Denman and in Kamachee Boye Sahaba and other colonial annexation cases, the
seizure of property without compensation was held to be an act of state. The same
would, I suspect, be true of most appropriations of property in the course of active
military operations. In other circumstances, like those in Nissan, the position would
be different. We have heard no argument on this question.
95. In the present cases, Crown act of state is raised by the Secretary of State only
so far as the allegations are based on the mere fact of the claimants’ detention by
Her Majesty’s forces or the mere fact of their transfer from British custody to that
of the United States. In my opinion these were acts of state so far as they were
authorised by the United Kingdom’s detention policy or required by the United
Kingdom’s agreements with the United States, these being the only particulars of
authority relied upon. If these criteria were satisfied, they were both inherently
governmental in character and authorised by the Crown in the conduct of the United
Kingdom’s international relations. The Crown and its servants could not therefore
be liable for them in tort. I would make a declaration to that effect.
Page 38
96. The Secretary of State denies that the claimants were maltreated, but does not
contend that any maltreatment which may have occurred was an act of state. That is
as one would expect. Any maltreatment of detainees was not authorised by the
United Kingdom’s detention policy. It is not alleged to have been authorised in any
other way, or to have been ratified. It is therefore unnecessary to address the question
whether the maltreatment of detainees ever could be an act of state, in the highly
improbable event of its being done with the authority of the Crown. I would merely
record my reservations about Lady Hale’s suggestion that the torture or
maltreatment of prisoners is not an inherently governmental act, although I agree
that in the light of the government’s statements on the subject this is a moot point.
As an international crime and a statutory offence in the United Kingdom, torture is
by definition a governmental act: see Jones v Saudi Arabia [2007] 1 AC 270, paras
19 (Lord Bingham of Cornhill) and 81-85 (Lord Hoffmann). There are,
unfortunately, well documented modern instances across the world of the use of
torture and other forms of maltreatment as an instrument of state policy authorised
at the highest levels. There is a more satisfactory answer to the hypothetical problem
of governmental torture and deliberate governmental maltreatment. Given the
strength of the English public policy on the subject, a decision by the United
Kingdom government to authorise or ratify torture or maltreatment would not as a
matter of domestic English law be a lawful exercise of the royal prerogative. It could
not therefore be an act of state. Nor would there be any inconsistency with the proper
functions of the executive in treating it as giving rise to civil liability.
97. I have nothing to add to Lady Hale’s analysis of the Crown Proceedings Act
1947, or her conclusions about article 6 of the European Convention on Human
Rights, with which I entirely agree.
LORD NEUBERGER: (with whom Lord Hughes agrees)
98. This aspect of these proceedings concerns the principle or doctrine of Crown
act of state, which has been raised by the defendants in circumstances which have
been explained by Lady Hale in paras 1-14 above.
99. Crown act of state, like foreign act of state, is a doctrine which has been
developed by judges over the years, as explained in the judgments of Lady Hale,
Lord Mance and Lord Sumption. It would be a fruitless exercise to try and reconcile
all the judicial dicta, even from the House of Lords, on this doctrine. Indeed, it is
very difficult to identify a comprehensive definition of the doctrine, as is clear from
the somewhat different approaches in the speeches of Lord Reid, Lord Morris and
Lord Wilberforce in the most recent decision of the House of Lords on the topic,
Nissan v Attorney General [1970] AC 179.
Page 39
100. A remarkable aspect of this doctrine is the weight that has been given to
Buron v Denman (1848) 2 Exch 167, given that it was a direction to a jury where
the nature and extent of the doctrine was not really in issue. The fact that the judge
concerned was Baron Parke no doubt helps to explain why the ruling has been
accorded particular respect. However, in agreement with Lord Mance’s analysis of
the report, it seems to me that, to the extent that the case is strictly an authority, it is
simply for the proposition that an action which would have been an act of state if it
had been authorised in advance, will (or at least may) be treated by the court as an
act of state if it is subsequently ratified by the Crown. Nonetheless, Buron was cited
with approval by Lord Reid, Lord Morris and Lord Wilberforce in Nissan, and by
Viscount Finlay, Viscount Cave, and Lord Sumner in Johnstone v Pedlar [1921] 2
AC 262, in relation to what Baron Parke said about the doctrine of Crown act of
state.
101. The fact that any attempt to define the precise nature and extent of the
principle of Crown act of state is doomed to failure is unsurprising. The doctrine is
ultimately based on judicial decisions and dicta as to when the judiciary should
decline to rule on the lawfulness of an act on the ground that any challenge to the
act should be left to the executive, at least normally where the act is based on the
Royal prerogative. However, it is only in relation to some acts based on the Royal
prerogative that when a court will decline to adjudicate, namely acts which, because
of their nature or circumstances, call for judicial self-restraint. There have been very
few cases in the past 100 years when the doctrine has been considered and hardly
any in which it has been held to apply. And decisions given even 50 years ago may
reflect a somewhat different approach to that which appears appropriate today,
following the growth of judicial review and the introduction of human rights into
our domestic law. The difficulty in identifying or delimiting the doctrine is
reinforced by the flexibility and imprecision of the United Kingdom’s constitutional
settlement. And it appears to me that any observation on the doctrine prior to the
decision of the House of Lords in Council of the Civil Service Unions v Minister for
the Civil Service [1985] AC 374 must be considered with particular caution,
essentially for the reason given by Lady Hale in para 15.
102. However, despite these points, there is no doubt that the doctrine of Crown
act of state remains a constitutionally important, if rarely invoked, feature of the
common law. For the reasons already given, I agree with Lady Hale (in para 36) that
it would be unwise for us to propound a definitive statement as to when the Crown
act of state doctrine can be invoked. However, I entirely endorse the attempts in the
preceding judgments to give as much guidance as we can on the extent of the
doctrine. In that connection, I consider that the formulations of Lady Hale (in paras
32 and 36-37), of Lord Mance (in paras 56-58 and 64) and of Lord Sumption (in
paras 88-93) provide helpful guidance as to what may constitute (or may not
constitute) a Crown act of state, as do the definitions cited in para 2 of Lady Hale’s
judgment.
Page 40
103. That leaves the question of the proper characterisation of the doctrine.
104. In those rare cases where an issue involving a Crown act of state arises, it
does not mean that a judge lacks the information or expertise to resolve the issue
(although in some exceptional cases that may be a different reason for the court not
determining an issue). As Lady Hale says in para 45, this is not because the doctrine
bestows any sort of immunity, or indeed because of any judicial discretion: it is
because there are certain acts of the UK government (sc the executive) which, owing
to their nature or circumstances, are not susceptible to judicial assessment. As Lord
Sumption says in para 88, the doctrine is ultimately based on the need for
consistency or coherence in the distribution of functions between the executive and
the judiciary in the United Kingdom’s constitutional arrangements. Accordingly, if
a claim depends on establishing the unlawfulness of a Crown act of state, then, as a
matter of United Kingdom law, the claim must fail, as a Crown act of state cannot
give rise to a legal liability.
105. When Crown act of state applies to a particular act, that act is often described
as being non-justiciable. However, as Lord Sumption explains in para 79, the
expression non-justiciable can have a number of different meanings, and, for that
very reason it seems to me that it is one which is best avoided if one is seeking to
explain precisely why an issue cannot be resolved because the doctrine of Crown
act of state applies. Thus, the expression “non-justiciable” could well be understood
as suggesting that the court is incapable of determining, or choosing not to
determine, the lawfulness of the act in question, or that the court is declining to
address any legal liability flowing from that act. But, as I have just explained (and
is explained more fully in the preceding judgments), none of those analyses
represents the basis of Crown act of state.
106. I agree with Lady Hale, for the reasons which she gives, that neither the
Crown Proceedings Act 1947 nor article 6 of the European Convention on Human
Rights assiststhe respondents. However, I also agree with her, Lord Mance and Lord
Sumption, for the reasons which they all give, that the doctrine of Crown act of state
can be relied on by the defendants in this case, and accordingly I would join them in
allowing this appeal.
LORD CLARKE:
107. I have read all these judgments with interest and admiration. There has been
much debate as to whether Crown act of state involves one or two principles.
However nobody has so far suggested a case in which it would make a difference as
to which of the two principles applied. Like Lord Sumption (the principal proponent
of the two principles approach), at the end of para 80, I doubt whether it helps to
Page 41
treat the doctrine as comprising two rules or one. I also agree with him that in this
context it can fairly be said that Lord Wilberforce’s two rules merge into one.
108. The only point that I would stress is this. It does seem to me that whether
there is one principle or two, the question whether a defendant can successfully rely
upon Crown act of state does not involve the court exercising a discretion or
anything approaching a discretion. The defendant either has a legal right to rely upon
Crown act of state or it does not. Only in the former case will it succeed, whether it
is held that it does so by way of defence or by the application of the principle of nonjusticiability.
109. I agree that the disposition of this appeal should be as proposed by the other
members of the court for the reasons they give. In so far as there may be differences
between them, I do not detect any difference which is critical to the resolution of
this appeal.