ALBA Summer Conference 2018: A Review (Part 1)

13 September 2018 by Conor Monighan

Conor Monighan reviews the Administrative Law Bar Association (ALBA) Summer Conference 2018

This year’s ALBA conference featured an impressive list of speakers and they did not disappoint. Delegates heard from a Supreme Court judge, an Attorney General, top silks, and some of the best legal academics working in public law.

The conference dedicated much of its time to public international law, a discipline which is often thought to have little relevance for most public lawyers. In fact, the conference showed that domestic public law is heavily intertwined with international law. This post summarises the key points from the conference, with a particular focus on human rights.

Keynote address by Lord Lloyd Jones, ‘Foreign Affairs and Domestic Courts: A Sea Change’

Public international law:

In his speech, Lord Lloyd Jones explained that public international law has changed fundamentally over time. In the past, international law almost exclusively concerned itself with the relationships between states. Now it increasingly operates to protect the rights of individuals. As the Court of Appeal put it in Belhadj & Or. v Straw, we now have

a system which includes the regulation of human rights by international law, a system of which individuals are rightly considered to be subjects. A corresponding shift in international public policy has taken place [115].

The evolution of this branch of law undoubtedly has consequences for domestic legal orders. But the influence is not one way. The ECHR, for instance, requires national courts to rule on international law. These rulings in turn can have radical consequences for domestic norms. The traditional divide between dualist and monist states is therefore becoming increasingly blurred.

State immunity:

The second topic covered by Lord Lloyd Jones was state immunity. As he highlighted, there has been movement away from permitting absolute immunity. For example, in The Philippine Admiral case the Privy Council found that there was no immunity from an action in rem against a vessel owned by a foreign nation, because the ship was being used for purely commercial purposes.

The limits of state immunity were historically unclear, but in modern times an increasingly restrictive approach is being taken. As Lord Denning held in in old case of Trendtex, there was no consensus on state immunity and domestic courts were capable of defining its boundaries. This uncertainty led to fundamental reform. Parliament acted by creating the State Immunity Act 1978 (prompted in no small part by a fear that commercial disputes would move to the US, which had already legislated on this issue). The State Immunity Act has since been interpreted quite narrowly. Notably in Belhadj & Or. v Straw, the Supreme Court rejected a broad interpretation of state immunity. This judgement marked an increasingly interventionist approach by the court into issues which were traditionally viewed as non-justiciable. In Ex parte Bennett, for example, extradition procedures were held to be reviewable. There Lord Bridge described the traditionally broad approach towards state immunity as an ‘insular’ one. The increasingly nuanced view of state immunity has also been displayed more recently. In 2016, a public inquiry into the poisoning of Mr Litvinenko went so far as to find that his death was probably ordered by Vladimir Putin. State immunity, it seems, is gradually being limited.

Act of State:

Lord Lloyd Jones suggested a four-stage road map which may be used when navigating disputes in this area:

• There are many cases where the application of established private international law gives a clear answer to the case. These laws may simply be applied.
• There is authority for a wider principle of an Act of State (at least up to the Court of Appeal). According to this doctrine, domestic courts cannot review acts taken by a foreign government within that government’s own territory. There are, however, exceptions to this principle: for example, it does not apply where there is a clear infringement of human rights.
• The doctrine of non-justiciability might apply. As Lord Neuberger recognised in Belhadj & Or. v Straw, there are some issues which are of such international importance that the courts cannot rule on them. The modern restatement of the principle was outlined by Lord Wilberforce in the Buttes Gas
• It was suggested that the court should decline to exercise their jurisdiction where it would embarrass foreign relations with other states. However, this possibility should not be accepted merely on the basis of a statement from the executive.

In conclusion, then, the traditional dualist approach is problematic. International law is increasingly governing individual rights, and concepts such as act of state; state immunity; and non-justiciability form part of this framework.

Immunities and the justiciability of claims affecting the interests of foreign States – Chair: Lord Justice Leggatt; Speakers: Karen Steyn QC and Ben Jaffey QC

Acts of State- Foreign and Crown (Karen Steyn QC)

According to the act of state doctrine, every sovereign nation must respect the independence of every other sovereign state and cannot judge another government’s acts within that government’s territory.

Ms. Steyn focused on Belhaj and its legacy for the act of state doctrine. Whilst it is difficult to extract the ratio from the case, arguably there are three separate rules of English law which govern foreign acts of state:

1. A foreign state’s laws are valid within its territory. This rule appears not to be limited to property and may be described as a rule of private international law.
2. Domestic courts are precluded from questioning a foreign state’s executive acts within the state’s territory. As Ms. Steyn noted, the scope and existence of this rule are uncertain.
3. Domestic courts will treat certain categories of sovereign act by a foreign state as non-justiciable. This rule is not limited to acts within the foreign state’s territory.
4. There is possibly a fourth rule which acts to protect foreign states from embarrassment. As noted above by Lord Lloyd Jones, this has not been properly examined by the courts.

However, this approach masks further complexities. Five are worth highlighting:

• According to the ‘Kirkpatrick exception’, the act of state doctrine only applies where a court is required to find whether an act of a sovereign state is valid or not (Kirpatrick case [406]).
• In Reliance Industries v Union of India, Popplewell LJ indicated that the protection offered by the foreign Acts of State doctrine may be waived.
• The Act of State doctrine applies in relation to the use of force, but it remains unclear whether it can go further.
• It is uncertain if the doctrine can operate in relation to British individuals.
• As Lord Neuberger recognised in Rahmatullah, the definition of Crown Acts of State is unclear. In his words, “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” because the “doctrine is ultimately based on judicial decisions” [101].

Privileges and Immunities (Ben Jaffey QC)

Mr Jaffey examined two kinds of immunity: diplomatic immunity and immunity for documents. Whilst limiting the scope of these protections might appear beneficial for the rule of law, Mr Jaffey argued that doing so could have serious consequences.

Diplomatic immunity:

According to the principle of diplomatic immunity, diplomats cannot be prosecuted under the law of the country in which they live. At first glance, this doctrine might appear to be an affront to justice. Why should diplomats be permitted to escape the legal consequences of their own actions?

However, the continued existence of diplomatic immunity can be justified. The UK protects foreign diplomats on the basis that other nations will reciprocate by protecting UK diplomats who are posted abroad. This is especially important within countries where the rule of law is weak and the judiciary are subject to political pressure.

In addition, the protection offered by the UK is not absolute. In Reyes v Al-Malki (2017), a former diplomat sought to rely on diplomatic immunity when faced with an allegation of human trafficking. The Supreme Court found he could not rely on immunity because his actions were not performed in the course of official functions. But whilst this approach might appear fair in a UK context, it paves the way for other nations to caveat the protection they offer to UK diplomats in return.

Immunity for documents:

Just as diplomatic immunity is subject to certain limitations, so too is immunity for documents. In R (Bancoult) v SSFCA (No. 3), the Supreme Court ruled that if a document remained under the control of an embassy then it could not be used in court proceedings. The matter is, of course, different if the material is in the public domain.

There are problems with this ruling. It remains unclear when it can be said a document is in the ‘public domain’. Furthermore, the ruling incentives whistle-blowers to release documents en masse as quickly as possible. This is because placing the documents into the public domain guarantees that it will be possible to rely upon the material in court. Releasing them selectively via an independent news organisation (as Edward Snowden chose to do) creates a risk that individuals will be left unable to call upon the documents as evidence. These issues are yet to be worked out.

My post on Part 2 of ALBA Summer Conference Review will be released on the UKHRB in the coming days. A number of papers from the conference are available here.

This post merely reflects the author’s personal interpretation of what was said at the conference. The opinions expressed do not necessarily reflect the views of ALBA, conference attendees, or the UKHRB.