You win some, you lose some…Rahmatullah (No.2) in the Supreme Court
24 January 2017
In Rahmatullah (No 2) v MOD; Mohammed v MOD  UKSC 1, the Supreme Court gave a further important judgment in the litany of cases arising out of the UK’s intervention in Iraq and Afghanistan. The Court held unanimously that the doctrine of Crown act of state defeated claims brought by non UK citizens seeking to sue the Government in the English courts in respect of alleged torts committed abroad.
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 sued 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 in Belhaj v Straw and others; and Rahmatullah (No 1) (v MOD (see here for my post on this judgment). In relation to the first aspect of Mr Rahmatullah’s claim, which is based on both the Iraqi law of tort and the UK Human Rights Act 1998, the Government raised the doctrine of Crown act of state.
A large number of Iraqi citizens 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. The Government similarly also raised the doctrine of Crown act of state. Three of the claimants, known as XYZ, ZMS and HTF, were chosen as representative for the purpose of deciding this issue.
Mr Serdar Mohammed was an Afghan national who detained by British troops until 25 July 2010 when he was transferred into Afghan custody. He too claimed that his detention was unlawful both under the Afghan law of tort and the Human Rights Act 1998. In relation to Mr Mohammed’s tort claim, the Government again raised the same doctrine of Crown act of state.
In the High Court, Leggatt J held that the claims were justiciable, but declared that the Crown act of state doctrine provided a defence to the tort claims. The Court of Appeal allowed the respondents’ appeals. It held that the doctrine provided a tort defence as well as a non-justiciability rule, but that the defence would only apply when the Government could establish that there were compelling grounds of public policy to refuse to give effect to the local tort law.
For the Supreme Court, Lady Hale ( with whom Lord Wilson and Lord Hughes agreed) gave the lead judgment.
She held that a “Crown act of state” was 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”.
She noted that the principle that there is no general defence of state necessity to a claim of wrongdoing by state officials had been established since the eighteenth century and the landmark case of Entick v Carrington. The limited number of cases regarding the principle of Crown act of state did however suggest there was a possible exception in the case of acts committed abroad against a foreigner which were authorised or ratified by the Crown, and thus where “The foreigner who has sustained injury must seek redress against the British Government through his own Government by diplomatic or other means.” – per Viscount Findlay in Johnstone v Pedlar  2 AC 262.
Lady Hale summarised the central issue before the Supreme Court and the government’s argument in relation to it:
“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.”
Conversely, the various claimants contended 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 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.”
Moreover, none of the potential reasons why the claims might otherwise be non-justiciable applied – there was “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.”
The key issues were therefore summarised by Lady Hale as:
(1) Whether the doctrine of Crown act of state should be limited to a non-justiciability rule or does it also encompass a tort defence?
(2) If it does encompass a tort defence, what is its scope?
Lady Hale set out some aspects of the legal background, namely that following the decision of the House of Lords in Council of the Civil Service Unions v Minister for the Civil Service  AC 374 (the GCHQ case), the exercise of executive power might be excluded from the scope of judicial review, not because of its source in 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.” Secondly, following the Private International Law (Miscellaneous Provisions) Act 1995, the tort claims had to be determined according to the law of Afghanistan or Iraq respectively, subject to the doctrine of Crown act of state if applicable.
Lady Hale held that there was no reason to doubt that the first or non-justiciability rule existed but the question for the Supreme Court was whether, as the Government submitted, the doctrine also provided a defence to a claim which was otherwise suitable for adjudication for a court.
Having considered the relative paucity of relevant previous cases, she observed that
“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 non-justiciable. The arguments to the contrary are of two kinds: first, that the existence 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..”
Lady Hale stated that if “act of state” was 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.”
She held that the courts did have to continue to recognise that there were
“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.”
However, such a doctrine could not be defined so as to give “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.” Ultimately, the question was therefore in what circumstances the English courts should decline to enforce the tort laws of another state.
Lady Hale concluded that:
“It would be unwise for this court to attempt a definitive statement of the circumstances in which this aspect of the doctrine might apply… 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 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.,,,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).”
The Supreme Court has given a further significant judgment delineating the boundaries of judicial willingness to review the foreign adventures of the previous decade and a half of the war on terror. This judgment will perhaps been seen as a mixed blessing by the Government – while it preserves the defence of Crown act of state, and recognises that there are some Governmental acts that should properly be beyond the scope of tort, the defence has been drawn fairly narrowly.