Rahmatullah v Ministry of Defence and another

The doctrine of Crown act of state is a narrow rule of substantive law. It may preclude tort liability for an inherently governmental exercise of sovereign power abroad, authorised or ratified by the Crown and undertaken in the conduct of foreign relations. It extends to acts inherent in lawful foreign military operations, including authorised detention and transfer.

The doctrine does not protect every authorised tort committed abroad. Ordinary commercial or private acts, torture and unauthorised maltreatment fall outside its scope. Its application is a question of legal right, not judicial discretion or a case-by-case balance of compelling public-policy considerations. The Crown Proceedings Act 1947 preserved the doctrine. Because it defines substantive rights rather than restricting access to a court, its application is compatible with article 6 of the European Convention on Human Rights.

Foreign nationals detained during British military operations in Iraq and Afghanistan brought tort claims governed by Iraqi or Afghan law. The Government invoked Crown act of state in respect of their capture, detention and transfer. Claims under the Human Rights Act 1998 were unaffected.

Leggatt J accepted the doctrine as a narrow tort defence. In [2015] EWCA Civ 843, the Court of Appeal held that it could bar a foreign-law tort claim only where compelling grounds of public policy justified that result. The Government appealed.

The principal questions were whether Crown act of state extends beyond a narrow rule concerning non-justiciable high policy; the doctrine's scope; whether the Crown Proceedings Act 1947 abolished it; and whether it is compatible with article 6 of the European Convention on Human Rights.

1. The Government's appeals were allowed unanimously. The court held that Crown act of state may preclude liability in foreign-law tort proceedings for a narrow class of sovereign acts performed abroad in the conduct of the Crown's foreign relations. The precise declarations were left for further submissions.

2. Lady Hale, with whom Lord Wilson and Lord Hughes agreed, held that the doctrine applies only to inherently governmental acts committed abroad in the conduct of foreign policy, closely connected with and necessary to pursuing that policy. It extends at least to the conduct of military operations which are themselves lawful in international law. Lord Sumption identified substantially the same elements: sovereign character, extraterritorial performance, prior Crown authority or subsequent ratification, and conduct of relations with other states or their subjects. Whether the victim must owe no allegiance to the Crown was left open.

3. The doctrine cannot give the executive unrestricted power to authorise ordinary torts abroad. Ordinary acquisition of food or accommodation is not inherently governmental. Lady Hale treated torture and detainee maltreatment as outside the doctrine; Lord Sumption reserved the abstract question but held that torture or deliberate maltreatment authorised by the United Kingdom could not be a lawful exercise of the prerogative. In these proceedings the Government relied only on detention and transfer, not maltreatment.

4. The Court of Appeal's test of compelling grounds of public policy was rejected. Public policy helps explain why domestic law recognises Crown act of state, but it does not determine the doctrine's content through a discretionary, case-by-case balance. The defendant either has the legal right to rely on the doctrine or does not.

5. The authorised detention and transfer of persons reasonably suspected of insurgency or terrorism, in furtherance of foreign military operations during armed conflict, were capable of being Crown acts of state. On the pleaded or assumed facts, the doctrine could therefore bar the foreign-law tort claims. It did not affect the claims under the Human Rights Act 1998.

6. Section 2(1) of the Crown Proceedings Act 1947 did not abolish the doctrine. The Crown's new vicarious liability depended on the servant or agent having incurred tort liability, and the proviso preserved the previous law. The doctrine also complied with article 6. It defines the substantive limits of civil liability and does not confer immunity or impose a procedural bar to access to the courts.

1. United Kingdom Supreme Court: Allowed the Government's appeals unanimously and rejected the Court of Appeal's compelling-public-policy test. The court invited submissions on the precise declarations.

2. Court of Appeal: In [2015] EWCA Civ 843, accepted that Crown act of state could operate as a tort defence, but held that a claim would be barred only where compelling grounds of public policy justified refusing to apply the relevant foreign law. It found no such grounds on the established facts of the Afghan claim.

3. High Court: In [2014] EWHC 3846 (QB) and the related managed litigation, Leggatt J held that individual detention was justiciable but that Crown act of state could provide a narrow defence to foreign-law tort claims arising from authorised foreign military operations.