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This is the first of three judgments handed down on 17 January 2017 by the Supreme Court. They concern several claims against the government (and its agents). Some have claimants in common. In each the government raised preliminary issues which acted as defences and/or rendered the claim non-justiciable. Some of these were conceptually related. This case considered the doctrine of Crown Act of State (“the CAS doctrine”). Click here for full judgment.
Mr Rahmatullah was captured by British forces in Iraq in 2004. He was detained in a US detention facility until release in 2014. His claim against the Ministry of Defence includes allegations about the UK’s treatment of him in detention. A group of Iraqi citizens make a similar claim about detention and treatment by UK troops. Mr Serdar Mohammed is an Afghan national who was captured by an International Security Assistance Force (ISAF) operation and detained by British troops in April 2010 until July 2010. He claims, amongst other things, that his detention was unlawful under the Afghan law of tort. In response to these aspects of the above three claims (which are wider), the government raised the CAS doctrine.
The judges were unanimous as to the result but differed in their reasoning. Lady Hale, delivering the leading judgment, determined that the government was not liable if the claims came within the CAS doctrine’s ambit, and issued a declaration to that effect (as the factual issues are undetermined at this stage). Per Lady Hale, for present circumstances, the CAS doctrine applied to acts which were by their nature sovereign and inherently governmental, committed abroad in the conduct of the foreign relations of the Crown and so connected to that policy as to be necessary in pursuing it. It could not apply to acts of torture. Lady Hale preferred to see this not as an exception but rather as qualities which precluded the acts from being inherently governmental [36-7]. As this was a rule of substantive law rather than a procedural bar, Article 6 of the European Convention on Human Rights (right to a fair trial) was not engaged .
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The judgments contain differing conceptual bases for the CAS doctrine, impacting on the contentious subject of non-justiciability. This was in part because of what Lord Mance described as the doctrine’s terminological and conceptual difficulties . Indeed, Lord Neuberger considered it fruitless to try and reconcile all the previous judicial dicta, given the doctrine’s limited consideration over the last century and given the growth of human rights law in the interim [99-101].
Lady Hale took as her starting point the principle that there is no general defence of state necessity to a claim of wrongdoing by state officials, citing Entick v Carrignton (1765) 19 St Tr 1029 . However, the earlier cases carved out an exception for acts committed abroad against a foreigner – if the acts were done by the order of the British government (or later approved by it), it was an act of state of which the municipal court could not take cognizance. This was an origin for the CAS doctrine . The issues were defined by Lady Hale as whether the CAS doctrine was limited to a non-justiciable rule or also encompassed a defence and if so what was the scope of that defence .
Lady Hale cited Lord Wilberforce in Nissan’s case at 231 where the CAS doctrine is most clearly seen as encompassing two rules: first a rule providing a defence to claims arising from acts otherwise tortious or criminal committed abroad which were authorised or later ratified by the Crown and second a rule of non-justiciability for certain prerogative acts of the Crown in sphere of foreign policy . There was no doubt that the rule existed. The question was whether the CAS doctrine provided a defence to a claim which is otherwise suitable for adjudication for a court . Having cited Buron v Denman (1849) 2 Exch 167 , Lady Hale seemed to identify a separate defence not just a rule of non-justiciability however she noted the conceptual advantages in seeing it as non-justiciability so long as a broader concept of non-justiciability was adopted  (i.e. one encompassing the requirements she set out at [36-7]).
Lord Sumption preferred reserving non-justiciability for cases where the issue is said to be inherently unsuitable for judicial determination by reason of the subject matter (following Shergill v Khaira  AC 359 ), citing the two usual reasons for non-justiciability: i) a lack of juridical standards and ii) a lack of constitutional competence (e.g. because the matter trespassed on Parliament’s privilege). Both reasons originated in the law’s recognition of the separation of powers. However, he identified other principles also originating in separation of powers and described as concerning non-justiciability but which did not go to the court’s jurisdiction. Instead they went to the scope of legal rights. He cited Campaign for Nuclear Disarmament v Prime Minister  EWHC 2777 (Admin) where court said it had jurisdiction to determine whether a resolution of the UNSC authorised military operation against Iraq but declined to do so because, amongst other reasons, there were no relevant rights interest or duties under domestic law . In his view the CAS doctrine belonged to this latter category. The court was not disabled from adjudicating on a CAS by virtue of the subject matter as in non-justiciability. The court had the competence to determine the legal effects of a CAS on the rights of those adversely affected by it - the real question was what those rights were . From here he described doctrine as defining the limits which the law sets on certain rights on the basis that they would otherwise be inconsistent with the exercise by the executive of the proper functions of the state. In principle, he stated, an agent of the Crown is liable as a matter of English law for detention without authority but that liability does not extend to a limited class of acts constituting CASs. Therefore the agent has a defence if its acts are within that class .
Lord Mance took a different view. He disagreed with Lord Sumption’s reading of the Campaign for Nuclear Disarmament case which he saw as based on the subject matter being non justiciable (48-9). He saw the CAS doctrine as a single doctrine based on non-justiciability or judicial restraint/ abstention (55). He did not see Nissan as a good basis on which to see a bifurcation of the rule in CAS into non-justiciability and an additional defence in tort.