The Supreme Court held that the doctrine of Crown act of state can bar foreign-law tort claims by foreign nationals for detention by British forces abroad, where the detention was an inherently governmental act done pursuant to deliberate United Kingdom policy in military operations that are themselves lawful in international law. The Ministry of Defence may therefore rely on the doctrine to preclude the courts from adjudicating those claims. Claims under the Human Rights Act 1998 were unaffected.
The claims arose from detention by British forces during operations in Iraq and Afghanistan. The claimants sought damages in tort under the law of the place of detention. In deciding the preliminary issue, the Court largely proceeded on assumed facts. The Government accepted that Crown act of state provided no defence to a claim under the Human Rights Act. In Al-Waheed and Mohammed [2017] UKSC 2, the Court considered the Convention basis for security detention. In Belhaj and Rahmatullah [2017] UKSC 3, it addressed UK officials’ alleged participation in acts of foreign states.
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Lady Hale, with whom Lord Wilson and Lord Hughes agreed, traced the doctrine to older authorities, including statements that certain acts committed abroad against foreigners and authorised or ratified by the Crown are acts of state of which a municipal court cannot take cognisance. The Government contended that the doctrine comprised both a non-justiciability rule for acts such as making war or treaties and a tort defence for certain acts abroad pursuant to deliberate United Kingdom policy. The claimants argued that only a narrow non-justiciability rule existed and that it did not cover individual detentions, which were suitable for judicial decision. Leggatt J had held that non-justiciability did not apply but that a narrow tort defence did. The Court of Appeal accepted a tort defence but confined it to cases of compelling public policy reasons for refusing to apply the foreign law, which it found absent in Mr Mohammed’s case; the facts in the other claims had not yet been fully pleaded.
Lady Hale held that the relevant question is when a claim is not cognisable because it concerns a Crown act of state. The doctrine covers only a very narrow class: acts which are by their nature sovereign and inherently governmental, committed abroad in the conduct of the state’s foreign policy, so closely connected with that policy as to be necessary in pursuing it, and at least extending to the conduct of military operations that are themselves lawful in international law. The Government accepted that the doctrine cannot apply to torture or the maltreatment of detainees; Lady Hale treated those acts as not inherently governmental. It would not generally cover expropriation of property, although destruction in the course of battle might. The Court of Appeal’s case-by-case public-policy test, though consistent with the approach of the Private International Law (Miscellaneous Provisions) Act 1995, was not the test supported by the authorities. If the doctrine is to have any content, it can extend to detention on imperative grounds of security in such operations. Its application outside military operations, and whether it can be pleaded against British citizens, did not arise and was left open.
The doctrine was not abolished by section 2(1) of the Crown Proceedings Act 1947. That provision imposes vicarious liability on the Crown, but the proviso preserves the position where the servant or agent would not have been liable, including where Crown act of state was available. The doctrine is also compatible with article 6 of the European Convention on Human Rights because it is a rule of substantive law defining when liability arises, not a procedural bar. The claimants had access to the court to determine its scope.
Lord Mance, with whom Lord Hughes agreed, analysed the doctrine as a single principle of judicial abstention or restraint rather than two separate rules, protecting both the Crown and its authorised or ratified agents. He agreed that, on the actual or assumed facts, the detentions and transfers were Crown acts of state: steps taken pursuant to deliberately formed policy against persons owing no allegiance to the Crown and reasonably suspected of being insurgents or terrorists, in furtherance of foreign military operations during armed conflict. Lord Sumption agreed that a Crown act of state gives rise to no liability and identified its essential elements as an inherently governmental exercise of sovereign power, done outside the United Kingdom, authorised or ratified by the Crown, and undertaken in the conduct of relations with other states or their subjects. The mere fact of detention and transfer fell within the doctrine if authorised by United Kingdom detention policy or required by agreements with the United States; maltreatment was not said to have been authorised or ratified. Lord Neuberger, with whom Lord Hughes agreed, and Lord Clarke agreed that the appeals should be allowed. They noted the difficulty of a comprehensive definition, given sparse modern authority, but endorsed the guidance given. Reliance on the doctrine is a matter of legal right, not discretion.
Verdict: The Court allowed the Government’s appeals. It could rely on Crown act of state in foreign-law tort claims concerning acts within the narrow class identified in the judgment. The Court invited submissions on the declarations. The Human Rights Act claims were unaffected.
Source: Rahmatullah v Ministry of Defence and another [2017] UKSC 1
