Belhaj and another v Straw and others

State immunity is personal. A claim against domestic defendants does not implead a foreign state merely because it requires findings about that state’s conduct. The foreign state’s legal rights or interests must be affected.

Foreign act of state does not prevent adjudication merely because foreign officials participated in alleged wrongs. Its executive-act branch does not extend to unlawful physical or mental harm. Judicial abstention applies only where the sovereign subject matter makes domestic adjudication inappropriate.

In any event, English public policy does not permit the doctrine to bar claims alleging complicity in torture, rendition or detention without legal authority or access to a court. Fundamental rights, domestic rule-of-law principles and relevant international norms inform that limitation.

Belhaj and another v Straw and others and the conjoined appeal concerning Rahmatullah arose from allegations that United Kingdom officials and departments had assisted foreign states in unlawful detention, rendition, torture and other mistreatment abroad. The claims were brought only against United Kingdom defendants. The pleaded facts had not been tried.

In the Belhaj proceedings, the Court of Appeal, [2014] EWCA Civ 1394, rejected state immunity and held that public policy prevented foreign act of state from barring the claims. In the Rahmatullah proceedings, Leggatt J, [2014] EWHC 3846 (QB), rejected both defences and made a leapfrog order.

The common questions were whether adjudicating the domestic defendants’ alleged complicity would indirectly implead the foreign states, and whether foreign act of state required the English courts to refrain from deciding the claims.

1. Disposition. The Supreme Court unanimously dismissed both appeals. The claims were not barred by state immunity or foreign act of state and could proceed. Written submissions were invited on the precise orders, any declarations and costs.

2. State immunity. Lord Neuberger, with whom Lord Wilson agreed, adopted the analyses of Lord Mance and Lord Sumption. Lady Hale and Lord Clarke agreed with Lord Neuberger, while Lord Hughes agreed with Lord Sumption. State immunity under the State Immunity Act 1978 is a personal immunity. It can extend to proceedings affecting a foreign state’s property or proceedings against its officials acting in that capacity. These claims were brought solely against United Kingdom defendants. Findings about the conduct of Malaysia, Thailand, Libya or the United States would neither bind those states nor affect their property, rights or liabilities. Reputational or political consequences were insufficient.

3. Foreign act of state. Lord Neuberger’s majority judgment, joined by Lord Wilson, Lady Hale and Lord Clarke, distinguished rules concerning foreign legislation, possible rules concerning foreign executive acts, and judicial abstention from certain sovereign dealings. The possible executive-act rule did not apply to unlawful conduct causing physical or mental harm. It was also territorial. The judicial-abstention rule did not arise merely because officials of several states had cooperated. The alleged detention, rendition and mistreatment were not shown to form part of sovereign dealings whose nature made domestic adjudication inappropriate.

4. Public policy. Even if judicial abstention were otherwise engaged, fundamental English public policy required the allegations to be justiciable. Torture, covert rendition and detention without legal authority or access to a court offend constitutional principles of liberty, access to justice and the rule of law. Relevant international norms reinforced, but did not exhaust, domestic public policy. The alleged ten-year detention and serious mistreatment of Rahmatullah were sufficient to engage that qualification at the pleading stage.

5. Other judgments. Lord Mance reached essentially the same result through a case-sensitive doctrine of judicial abstention, influenced by the seriousness of the alleged violations. Lord Sumption, with Lord Hughes agreeing, gave foreign act of state a broader initial scope but held that English public policy excluded complicity in torture and in detention or rendition without legal authority. On the pleaded facts, no part of either claim could be struck out.

6. Subsidiary matters. It was unnecessary to decide whether article 14 of the United Nations Convention against Torture created universal civil jurisdiction, or whether article 6 of the European Convention on Human Rights independently defeated either defence.

1. United Kingdom Supreme Court: Dismissed both appeals and held that state immunity and foreign act of state did not bar the pleaded claims: [2017] UKSC 3.
2. Court of Appeal: In the Belhaj proceedings, upheld the rejection of state immunity and allowed the claimants’ appeal on foreign act of state because the alleged conduct fell within territorial and public-policy limitations: [2014] EWCA Civ 1394.
3. High Court: In the Rahmatullah proceedings, Leggatt J rejected state immunity and held that foreign act of state was not engaged, before making a leapfrog order: [2014] EWHC 3846 (QB).
4. High Court: In the Belhaj proceedings, Simon J rejected state immunity but held that foreign act of state barred the relevant claims. The neutral citation is not stated in the judgment.