Rahmatullah v Ministry of Defence and another

This appeal concerned the scope and nature of the doctrine of "Crown act of state" and its effect on tort claims governed by foreign law arising from detention and transfer by United Kingdom forces abroad. The Supreme Court held that the doctrine is a single principle of judicial abstention or non-justiciability which can operate to preclude the courts from adjudicating on certain sovereign acts done abroad. The court defined the narrow circumstances in which the doctrine applies: the act must be an inherently governmental or sovereign act; done outside the United Kingdom; authorised by the Crown or subsequently ratified; and carried out in the conduct of the Crowns relations with other states or their subjects.

Key subsidiary findings were that the doctrine (i) may preclude tort claims governed by foreign law but does not apply to claims under the Human Rights Act 1998, (ii) was not abolished by the Crown Proceedings Act 1947, and (iii) does not engage a violation of article 6 of the European Convention on Human Rights because it is a rule of substantive domestic law defining the existence or scope of rights rather than a mere procedural bar. The court also emphasised that acts such as torture or deliberate maltreatment are not within the doctrines legitimate scope.

Background and facts: The appeals arose from a series of claims by foreign nationals detained by or transferred from UK forces in Iraq and Afghanistan. The claimants sued the Ministry of Defence (and in one case the Foreign and Commonwealth Office) in tort under the local law applicable to the place of detention and, in parallel, under the Human Rights Act 1998. The government pleaded the doctrine of Crown act of state in relation to the tort claims, as well as other defences in respect of complicity claims (state immunity and foreign act of state in other proceedings). The appeals were taken from the Queens Bench Division and the Court of Appeal ([2014] EWHC 3846 (QB) and [2015] EWCA Civ 843).

Nature of the claims / relief sought: Damages for wrongful detention and related torts governed by the law of Iraq or Afghanistan; in parallel some claimants brought claims under the Human Rights Act 1998.

Issues framed: The court set out the issues as: (i) whether Crown act of state is limited to a narrow non-justiciability rule or also encompasses a tort defence; (ii) if it does include a tort defence, what is its scope; (iii) whether the appropriate test should be analogous to the public policy exception in section 14(3)(a) of the Private International Law (Miscellaneous Provisions) Act 1995; (iv) whether the Crown Proceedings Act 1947 extinguished the doctrine; and (v) whether the doctrine is compatible with article 6 ECHR.

Courts reasoning and conclusions:

• The court concluded that it is preferable to treat the doctrine as a single principle of abstention or non-justiciability (rather than two separate rules), protecting sovereign acts from judicial adjudication. The rule has the corollary that, where an act is treated as a Crown act of state, those who act under Crown authority or subsequent ratification are likewise protected.
• The court set out the core criteria for the doctrine to apply: (1) the act must be inherently governmental or sovereign in character; (2) it must have been done outside the United Kingdom; (3) it must have been authorised by the Crown or subsequently ratified; and (4) it must have been done in the conduct of the Crowns relations with other states or their subjects. There may be a further controversial limitation relating to allegiance, but that was not decided on these appeals.
• On those criteria, acts consisting merely of detention by UK forces and transfer to United States or local custody could be Crown acts of state if they were authorised by UK policy or by relevant agreements; maltreatment or torture would not be within the doctrines protection unless (very improbably) authorised lawfully by the Crown.
• The Crown Proceedings Act 1947 did not abolish the principle: section 2(1) preserved the previous law by its proviso and left the doctrine intact.
• The doctrine is a rule of substantive domestic law defining the existence or scope of rights; article 6 ECHR is therefore not engaged as if the doctrine were a procedural exclusion. Even if it were regarded as a procedural bar, the court held that a narrow public policy form of the doctrine would be a proportionate interference, but the court preferred to treat it as substantive.

Procedural outcome: The Supreme Court allowed the governments appeal and substituted declarations clarifying the doctrines scope, inviting further submissions as to precise form in these appeals.

The appeals by the Ministry of Defence (and where applicable the Foreign and Commonwealth Office) were allowed. The Supreme Court held that the doctrine of Crown act of state is best understood as a single principle of judicial abstention or non-justiciability: it can preclude the courts from adjudicating tort claims governed by foreign law where the act relied on is an inherently governmental (sovereign) act, committed abroad, authorised or subsequently ratified by the Crown, and done in the conduct of the Crowns relations with other states or their subjects. The Crown Proceedings Act 1947 did not abolish the doctrine and article 6 ECHR was not breached because the doctrine defines substantive rights and liabilities rather than constituting an unjustified procedural bar. The court emphasised the doctrines narrow scope and excluded torture and deliberate maltreatment from its ambit absent lawful authorisation by the Crown. The court invited further submissions on the form of declarations to be made in the individual cases.

Appeals to the Supreme Court from the Queen's Bench Division ([2014] EWHC 3846 (QB)) and the Court of Appeal ([2015] EWCA Civ 843). Related interlocutory and preliminary issues in the same litigation were dealt with in companion appeals (see eg Belhaj v Straw and Mohammed v Ministry of Defence) brought to the Supreme Court at the same time.