War remains inside the court room – Part 2: the Torture Convention

14 September 2016 by Alasdair Henderson

Al-Saadoon & Ors v. Secretary of State for Defence [2016] EWCA Civ 811, 9 September 2016 – read judgment.

This is the second in a series of posts on a very important judgment on the human rights obligations imposed on the British Armed Forces when operating abroad. The background to the case can be found in Dominic Ruck Keene’s post here, with David Hart QC’s analysis of the ECHR jurisdiction aspect here.

This short post looks at the third question raised in this judgment, namely whether or not the UN Convention Against Torture (CAT) could be relied upon in domestic law proceedings.

As well as being a fascinating question itself, this is part of a wider issue about the use of international law in the domestic courts. Countries are usually divided into ‘monist’ and ‘dualist’ legal systems. In a monist system international law is automatically included into domestic law. However, in a dualist system like the UK the general principle has always been that international treaties must be explicitly incorporated into UK domestic law by Parliament before they can be applied to an individual case.

There are some well-trodden, and less well-trodden, exceptions to this general principle. Customary international law is considered to form part of the common law (see Keyu). It has been established that an international convention may be used as an aid to statutory interpretation (see Assange at [122]), particularly when it comes to human rights (see Stevens at [55ff]), or be something to which the court can have regard in the exercise of judicial discretion (see Morgan v. Hinton Organics, concerning the Aarhus Convention principle that costs in environmental litigation should not be prohibitively expensive). An international obligation may also have become part of EU law and thus have some direct effect in the UK via that route, although this is a path that will presumably be closed down following Brexit.

In the case of Al-Saadoon, the Claimants tried to argue that the CAT gave rise to a duty on the UK to investigate allegations of torture or inhuman or degrading treatment, even in circumstances where Article 3 of the ECHR does not apply. The CAT has not been incorporated into UK law, save for section 134 of the Criminal Justice Act 1988, which creates a specific criminal offence of torture. However, the Claimants’ position was that the principle of legality meant that UK public authorities owe a duty in domestic public law not to override fundamental rights including those contained in international human rights treaties such as the CAT.

Lord Justice Lloyd Jones did not have much truck with this argument. The principle of legality is a principle of statutory interpretation, not a more wide-ranging principle as to how the court should develop the common law. Moreover, the principle depends on there being a statute in place to interpret and the fundamental rights in question being part of domestic law. The whole point here was there was no statute and the rights were not incorporated!

Lloyd Jones LJ went on to comment that:

…although international treaty obligations may sometimes guide the development of the common law, this is inappropriate where the proposed development would conflict with the principle of Parliamentary sovereignty, in particular where Parliament has decided not to implement the provision into domestic law or has already entered the field to strike the appropriate balance. In the present case Parliament has implemented Article 4 UNCAT, but must be taken to have decided not to implement its other provisions. Moreover, Parliament has implemented into domestic law the highly sophisticated body of human rights protections contained in the ECHR by the Human Rights Act 1998. It would not be appropriate to modify its scheme in relation to procedural investigative obligations under the guise of developing the common law.

In any event, he held that the CAT does not actually impose any broader duty of investigation than Article 3 ECHR, indeed probably much less of a duty. Overall, the argument took the Claimants nowhere.

So, a brave attempt to try to get some international law into a domestic case using an unorthodox route, but an unsuccessful one. Whilst the dualist principle has been chipped away at in various ways over the past few years, the Court of Appeal has confirmed that it still stands.

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