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The coverage of last week’s Court of Appeal’s decision in Belhadj & Or. v Straw & Ors  EWCA Civ 1394 has thus far generated more political heat than legal light. When a claim involves the suit of named officials and former Ministers for their alleged role in the rendition of a major political figure in the new Libya and his family to face torture under the Gaddafi regime, this is perhaps understandable. In a week where the Government – in the context of this claim – has conceded that it must disclose certain of its policies on surveillance and legal professional privilege, it is unsurprising that the press has had little time to digest the detail of this judgment.
Yet, in overturning the decision of Mr Justice Simon to strike out the major part of the claim, the carefully reasoned Court of Appeal (Lord Dyson MR, Lloyd Jones and Sharp LLJ) judgment raises a number of interesting questions for constitutional law scholars and political commentators alike about the function of domestic courts, the place of international comity in the law and the right of individuals to redress for violations of rights guaranteed in domestic and international law.
Suing the state: the role of domestic judges
The Respondents argued that both state immunity and the foreign act of state doctrine precluded the domestic courts from hearing the case. At first instance, they failed on the former but succeeded on the latter point. The Court of Appeal rejected their arguments on both counts.
First, agreeing with Simon J, the Court of Appeal finds that the law of state immunity has no application in this case (see  – ). In reliance on the language of the UN Convention on Jurisdictional Immunities of States and their Property (a Convention not yet in force), and a broad interpretation of existing jurisprudence, the Respondents argued for an interpretation of the domestic law of state immunity which would prevent the court from exercising jurisdiction in any case which might affect the broad “rights” or “interests” of a third state or where the decision of the court would necessarily involve “findings of illegality in respect of acts on the part of officials of foreign states for which they could claim immunity had they been sued directly” . In this case, the Appellants’ claim related to their treatment in China, Thailand and Malaysia and in Libya, the actions of those Governments and their agents and the activities of the United States. The Court of Appeal concludes that this argument on indirect impleading would be an “unprecedented extension” of the law on state immunity , which “lacks any foundation in law” .
Act of state doctrine
The second issue – the scope and application of the ‘foreign act of state doctrine’ is at the heart of this case. Simon J expressed his own discomfort in striking out the claim on this basis:
residual concern…that what appears to be a potentially well-founded claim that the UK authorities were directly implicated in the extraordinary rendition of the claimants, will not be determined in any domestic court; and that Parliamentary oversight and criminal investigations are not adequate substitutes for access to and a decision by, the Court (at ).
The Court of Appeal expressly shares this unease. It concludes that while the doctrine is engaged, significant limitations apply to prevent a strike out. The court confirms that the doctrine is subject to a geographical limitation, generally applicable only to the activities of a third state within its jurisdiction. So, the activities or interests of the US could not affect the role of the domestic court in this case. In any event, a broad policy exception to the rule operates in claims with its foundation in international human rights law.
In light of the stark conclusion of the lower court that an inquiry into the contested evidence in the case would be damaging to the national interest (see ), close examination of the Court of Appeal decision is warranted.
a) The nature of “act of state” doctrine: Long-standing arguments about the impact of the act of state doctrine are best understood in context. Although used to preclude the jurisdiction of domestic judges, the doctrine is not a creature of statute, nor required by the international legal framework. It has evolved in parallel and distinct from the law on state immunity. As a creature of Anglo-American common law – finding no direct parallel in civil law countries – its scope and the rationale for its existence has varied across the years and its application in either the US or the UK. Its foundation in this jurisdiction is found in Buttes Gas and Oil Co v Hammer (Nos 2 and 3)  AC 888, a case where the courts refused to exercise jurisdiction over a claim involving questions about the lawfulness of an international settlement agreed by four sovereign states. In the UK, the doctrine has been relied upon in such varied circumstances as the seizure of aircraft (Kuwait Airways v Iraqi Airways (Nos 4 and 5)  2 AC 883) and the determination of claims in connection with intellectual property (Lucasfilm v Ainsworth  1 AC 208).
The Court of Appeal in Belhadj conducts a considered review of the historical development of the doctrine in its analysis of its application to this claim. It draws a key distinction between the narrow class of claims which may bar a court’s jurisdiction, based on judicial competence (as in Buttes) and the wider rule of law, based on judicial restraint “which may result in a refusal by the English courts to permit the vindication of rights in certain situations in which the validity or legality of certain acts of foreign states and their agents are directly challenged”  (recognised in Yukos v OSJC Rosneft Oil (No. 2)  QB 458) . It rejects the Claimants’ suggestion that the doctrine must be confined to cases engaging questions of competency ([Shergill v Khaira  UKSC 33 (at  – ).
The foundation of the “act of state” doctrine lies in the sovereign equality of states and the principle of international comity . Thus the Court of Appeal finds that restraint may yet be required in cases where there is no constitutional question about the competence of the court. However, following, Yukos, the Court of Appeal holds that the modern incarnation of the principle must start from its limits, with:
the doctrine…defined, like a silhouette, by its limitations, rather than to regard it as occupying the whole ground save as to the extent that an exception can be imposed .
The Court accepted that there was a limitation applicable when the facts of a case would not require the validity of the acts of a foreign sovereign state to be called into question (the Kirkpatrick limitation). However, the Court rejects the Claimants’ contention that this limitation would apply in this claim . The two key limitations in this case were grounded in human rights and territoriality.
b) The human rights ‘limitation’: The Court recognises a broad public policy limitation to the common law doctrine “where there is a violation of international law or a grave infringement of fundamental human rights”  (see also Kuwait Corpn v. Iraqi Airways (Nos 4 and 5)  2 AC 883). Considering the treatment of this limitation in existing jurisprudence – including in Yukos and Kuwait Airways – the Court concludes that this policy limitation must also apply even when the court must undertake some degree of legal or factual investigation in order to determine whether a violation of international law or a grave infringement of fundamental rights has occurred . The Court explained:
i. “Judges in this jurisdiction are now frequently required to determine and rule on such conduct and, in particular, whether it is compliant with international law and international standards of human rights” . Such assessments are conducted in asylum and extradition cases, and in the consideration of whether evidence has been obtained through torture and in cases where it is alleged a person has unlawfully been brought before the court from another jurisdiction. The Courts have acknowledged in commercial cases that the Court is entirely well placed to consider a claim despite reaching conclusions on the acts of state officials (see Lucasfilm v Ainsworth  1 AC 208).
ii. “When it is necessary to do so for the vindication of justiciable rights, courts in this jurisdiction will be under an obligation to decide issues of public international law” , citing Abbasi v Secretary of State for Foreign Affairs  EWCA Civ 1598 and again, Shergill v Khaira  UKSC 33.
iii. Comparative case law supports this conclusion. In Habib v Commonwealth of Australia  FCAFC 12, although the constitutional context was different, the human rights limitation had been determinative. The Court of Appeal reasoned: “In this way, a senior court in another common law jurisdiction has concluded, on facts which bear a striking resemblance to those in the present case, that the limitation of act of state doctrine may be applied notwithstanding the need to investigate the conduct and to rule on the legality of the conduct of foreign states” .
iv. The Court of Appeal gave consideration of the evidence of the Respondents that this issue would be damaging to the UK’s relationship with the US (and to a lesser extent, with the other countries involved in the claim) and harmful to the national interest. The Court notes that the evolution of the doctrine in the US has led the courts there to afford a significant degree of weight – and deference – to the opinion of the executive . It concludes however: “while an approach based on deference to executive suggestion as to the likely consequences for foreign relations of the exercise of jurisdiction, capable of varying according to the issues raised or the foreign state concerned, may well be suited to the very different constitutional arrangements in the US, it has played no part in the development of the act of state doctrine in this jurisdiction” .
In this context, the Court is keen to stress that while evidence of damage to the national interest is relevant, national embarrassment would not be a proper justification for restricting the jurisdiction of the domestic courts  (see also ).
v. There were strong policy justifications for the court to hear this case:
a. The increasing role of international law in the protection of the individual and the recognition of that system as one 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” 
b. The allegations in this case were of particularly grave human rights violation: “So far as unlawful rendition is concerned, this too must occupy a position high in the scale of grave violations of human rights and international law, involving as it does arbitrary deprivation of liberty and enforced disappearance” (the court having already considered the nature of the international prohibition on torture) 
c. The respondents in this case were officials of the UK, not otherwise entitled to immunity: “there is a compelling public interest in the investigation by the English courts of these very grave allegations”. 
d. The applicable principles of both international law and English law to be applied are well established .
e. “[U]nless the English courts are able to exercise jurisdiction in this case, these very grave allegations against the executive will never be subjected to judicial investigation…As a result, these very grave allegations would go uninvestigated and the appellants would be left without any legal recourse or remedy” .
vi. The case should be heard: “despite the risk of displeasing our allies or offending other states, and even the risk of consequences of varying severity which it is said are likely to follow, cannot justify our declining jurisdiction on ground of act of state over what is a properly justiciable claim” .
c) The ‘territorial’ limitation: The Court emphasised that the strike out in Khan v Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 24 could not assist the Respondents. The territorial limitation had not been considered in that case .
Although it took a definitive view on the application of the territorial principle in this case, the Court of Appeal expressed some doubt as to whether the limitation might apply in cases which might more closely engage questions of judicial competence, for example, in connection with the transactions between states:
Indeed in the case of such activities it may often be difficult to locate with precision where different elements of the transactions took place. However, in the present case we are concerned with allegations relating to the way in which officials of one state have acted towards nationals of other states and therefore with the narrower principle of act of state. 
d) Article 6 ECHR: The Court of Appeal considers the relevance of the doctrine for the purposes of securing the right of access to a fair hearing guaranteed by Article 6 ECHR. (The Court also considered Article 14 UNCAT, but did not consider it necessary to reach any firm conclusion  – .)
While its primary conclusions are grounded in the common law, the Court of Appeal thus considers that the same conclusion would be required under the Human Rights Act 1998 and the ECHR. The application of the doctrine, largely confined to Anglo-American jurisprudence, is not required by international law (). Thus, Jones v UK and earlier domestic case law on state immunity is distinguished. The Court of Appeal considers that while the act of state doctrine may be applied consistently with Article 6 ECHR, in this case, its application would be disproportionate and would undermine the Appellants’ right to access the court guaranteed by the Convention . Thus, as in its common law analysis, for Convention purposes, the doctrine of act of state will remain a live point for argument in these cases, with its scope, relevance and application determined on a case by case basis.
The Respondents have been granted permission to appeal the application of the act of state doctrine. A few points of note can be drawn from the Court of Appeal’s analysis.
The evidence before the Court on the risk posed by the litigation to the UK’s relationship with the United States and to our security was considered at some length. The arguments raised are very familiar to those who followed the passage of the Justice and Security Act 2013. The introduction of closed material procedures (“CMP”) into ordinary civil litigation was justified to Parliament by Government as a means to ensure that litigation of precisely this kind might proceed. The proper scope and function of CMP even under the Act remains open to argument and it is very likely that should this case proceed to trial, the Respondents may seek to rely on the Act. However, the strike-out application in this case and the albeit limited engagement of the “act of state” doctrine serves as a reminder that CMP is not the only tool in the Government’s litigation strategy in dealing with cases which raise concerns about national security or the wider public interests of the UK. Despite the case made for the extension of CMP, a pick-and-mix approach to strike-out, public interest immunity (“PII”) and CMP is likely to prevail, at least as and until the scope of the law is clarified.
An outstanding question is whether the availability of alternative means to address concerns about national interest – such as PII or CMP – may affect the courts’ consideration of the weight of evidence presented to justify an argument on strike-out based on an “act of state” doctrine based on a public policy argument for restraint, rather than a constitutional question of competence. While not considered expressly by the Court of Appeal, its analysis, and its approach to deference suggest that this should be a relevant issue for consideration by any judge considering a claim for strike-out of any otherwise valid claim [see 211].
The Court of Appeal stresses that the Supreme Court in Shergill v Khaira  UKSC 33 (at  – ) did not intend to limit “act of state” doctrine to cases of non-justiciability on the grounds of competence . Yet, the Court of Appeal in this case does appear to draw distinctions in the law on “act of state” between cases based on competence and restraint. It is clear – particularly in its treatment of territoriality – it envisages that the consideration of the limitations applied may be different where questions of competence may arise. The Court of Appeal’s analysis places the Yukos “silhouette” approach on a clearer foundation. If the English doctrine of “act of state” is based on judicial restraint rather than constitutional competence, the case for the application of the doctrine should be subject to close scrutiny and its limitations drawn broadly. Yet, if this approach stands, argument on the boundaries of competence and restraint is likely in future cases, and on the precise scope of the limitations in play.
The practical implications of the Respondents’ arguments in this case – for the extension of protection for the state under both state immunity and “act of state” doctrine – would be to shield individual states and their institutions from scrutiny in many cases where they act unlawfully but in unison or in parallel with other states, circumscribing the ability of individuals to secure redress.
The expansion of immunities to limit the right of individuals to a remedy for violations of rights acknowledged by the international community, as is the case with redress in cases of torture, must begin as an international dialogue. The expansion of state immunity – or the creation of de facto common law immunities – by way of the unilateral development of domestic rules of jurisdiction or deference would undermine the long-term effectiveness not only of the international framework for the protection of human rights but the agreed minimum standards for state immunity.
Angela Patrick is the Director of Human Rights Policy at JUSTICE. JUSTICE, together with the International Commission of Jurists, REDRESS and Amnesty International intervened in Belhadj v Straw & Ors by way of written submissions. A copy of the submission is available, here.
Suggested citation: A. Patrick, ‘Suing the state: judicial competence, restraint and redress in Belhadj’ (7th November 2014) (available at http://ukconstitutionallaw.org).