Al Jedda v Secretary of State for Defence

Existing laws promulgated by the Coalition Provisional Authority remained in force after the Iraqi Constitution came into effect unless annulled or amended under the Constitution. A constitutional prohibition on detention without judicial process was capable of restriction where the restriction was lawful and did not violate the essence of the right. A detention regime involving security-based internment, regular review and safeguards could satisfy that requirement. Immunity from Iraqi legal process did not extinguish liability or prevent proceedings in another competent jurisdiction. However, detention by British forces in Iraq pursuant to an international mandate was an act of state and therefore non-justiciable in the English courts where the claim challenged the detention itself. Claims alleging mistreatment or failure to comply with the detention regime remained potentially justiciable.

The claimant, a British national, had been detained by British forces in Iraq for more than three years under a security-internment regime. His earlier proceedings concerning the Convention and common-law claims had been dismissed by the Divisional Court, Court of Appeal and House of Lords. The present action pursued the Iraqi-law issue which the House of Lords had declined to determine, namely whether the detention remained lawful after the Iraqi Constitution came into force on 20 May 2006.

The Secretary of State also relied on justiciability, immunity, public policy and act of state. The claimant sought permission to amend his claim to include allegations of mistreatment under the Human Rights Act 1998 and Iraqi law.

1. Justiciability. The court could determine the effect of the Iraqi Constitution where that issue arose incidentally in a substantive claim for damages. Buck v Attorney General [1965] Ch 745 concerned a declaration directed solely at the validity of a foreign constitution and was distinguishable. The issues concerning Iraqi law were capable of determination by judicial standards.
2. Continuation of CPA legislation. Article 130 of the Iraqi Constitution provided that existing laws remained in force unless annulled or amended in accordance with the Constitution. CPA Memorandum no. 3 was an existing law despite its special origin. It therefore remained effective after 20 May 2006, and the claimant’s detention remained authorised by the security-internment regime.
3. Constitutional rights. Articles 15 and 37(1)(B), read with article 46, did not impose an absolute prohibition on detention without judicial process. The essence of the rights was assessed by reference to their underlying purpose, including protection against arbitrary or unfair deprivation of liberty. The regime’s security criterion, regular reviews, Iraqi involvement and time limits were sufficient to protect that essence.
4. Alternative grounds. CPA Order no. 17 created immunity from Iraqi legal process, not total immunity from liability. The expression “actionable tort” in section 9(4) of the Private International Law (Miscellaneous Provisions) Act 1995 could include a wrong which could not be sued upon in the jurisdiction whose law applied. Nevertheless, applying Iraqi law to impose liability for detention which discharged an international obligation would contravene public policy under section 14(3)(a)(i).
5. Act of state. The decision to contribute British forces to the multinational force was an act of state. Individual internments were sufficiently closely linked to that decision because internment was an express and essential part of the mandated task. The doctrine applied notwithstanding the claimant’s British nationality and rendered the challenge to the lawfulness of the detention non-justiciable. It did not bar claims alleging failure to comply with the detention regime or ill-treatment.
6. Re-amendment. Time was extended under section 7(5)(b) of the Human Rights Act 1998 because the delay was understandable, the allegations required face-to-face investigation, serious prejudice was not shown and the allegations concerned serious treatment of a detainee.

The claim concerning the lawfulness of detention was dismissed. Permission was granted to re-amend the claim to include the mistreatment allegations.

The judgment describes earlier proceedings in the same litigation but this was a first-instance trial of the Iraqi-law claim. The earlier decisions were:

• Queen’s Bench Divisional Court: claim dismissed, [2005] EWHC 1809 (Admin).
• Court of Appeal: appeal dismissed, [2006] EWCA Civ 327.
• House of Lords: appeal dismissed, [2007] UKHL 58.