Belhaj and another v Straw and others

The Supreme Court dismissed the appeals and held that neither state immunity nor the foreign act of state doctrine entitled the defendants to have the claims struck out. The Court treated the issues as questions of domestic law and disaggregated the foreign act of state concept into distinct strands: (i) recognition of foreign municipal legislation and its effect on property (a private international law rule), (ii) non‑challenge of executive sovereign acts affecting property within the foreign state, and (iii) a broader non‑justiciability or judicial‑abstention principle concerned with sovereign inter‑state transactions. The Court rejected any broad reading of state immunity since the relevant foreign states were not parties and their legal interests would not be affected by the claims.

Material grounds for deciding that the claims may proceed included:

• state immunity failed because the foreign states (Malaysia, Thailand, Libya, United States) were not impleaded and no legal interest of theirs would be directly affected;
• the second type of foreign act of state (if it exists) should be confined to sovereign acts seizing or affecting property within the foreign state’s jurisdiction; it should not be extended to personal torts;
• the third type (non‑justiciability/abstention) must be assessed case‑by‑case; its application will give weight to whether fundamental rights (eg liberty, access to justice, freedom from torture) are engaged;
• an important public policy qualification applies: allegations amounting to complicity in torture, arbitrary detention, enforced disappearance and rendition are not barred by the doctrine and are justiciable.

Background and parties: The appeals concerned claims by Mr Belhaj and Mrs Boudchar, and by Mr Rahmatullah, that United Kingdom officials and bodies had been complicit in unlawful detention, rendition and ill‑treatment (including torture) by foreign states (Malaysia, Thailand, Libya, United States) in 2004 and thereafter. The proceedings against UK ministers, intelligence services and departments raised defences of state immunity and of foreign act of state.

Procedural posture: Appeals to the Supreme Court from earlier decisions ([2014] EWCA Civ 1394 and [2014] EWHC 3846 (QB)). The issues were decided on preliminary applications (jurisdiction and strike out/dismissal applications), so the Court proceeded on the facts as pleaded.

Nature of the claims: Claims in tort (false imprisonment, trespass to the person, assault, conspiracy, misfeasance in public office, negligence), dependent in large part on establishing unlawful acts by foreign states or their agents and alleged UK complicity.

Issues for decision:

• Whether the claimants’ pleaded causes of action indirectly impleaded foreign states and were therefore barred by state immunity;
• How the doctrine of foreign act of state is to be structured and applied (the Court identified three types and analysed their scope);
• Whether article 6 ECHR or other international instruments required a different result.

Court’s reasoning (concise): The Court concluded state immunity did not bar the claims because no legal interests of the foreign states would be affected in law by judgments against the UK defendants. It disaggregated foreign act of state into three conceptually distinct strands and limited the second strand (acts within the foreign state affecting property) so that it should not be extended to personal torts. The third strand (non‑justiciability/abstention) is issue‑sensitive and must be judged case‑by‑case; where fundamental rights such as freedom from torture or indefinite detention without judicial recourse are engaged, public policy and international norms weigh strongly in favour of adjudication. The Court accordingly held that the pleaded allegations of rendition, arbitrary and prolonged detention and torture brought the claims outside any bar of foreign act of state, and the cases should proceed to trial.

Wider context: The Court emphasised caution in extending non‑justiciability doctrines so as not to create immunity everywhere for secondary participants in serious human‑rights abuses; it endorsed a careful, rights‑sensitive approach and recognised the rarity and gravity of any abstention from adjudication.

Appeals dismissed. The Supreme Court held that the defendants could not rely on state immunity because the foreign states were not impleaded and their legal interests would not be affected, and that the foreign act of state doctrine did not bar the claims as pleaded. The Court (i) disaggregated foreign act of state into three types and confined the second type to property within the foreign state’s jurisdiction, (ii) treated the third type (non‑justiciability) as issue‑sensitive and to be applied case‑by‑case, and (iii) held that allegations of complicity in torture, arbitrary detention, enforced disappearance and rendition engage fundamental rights and public policy and are not to be defeated by foreign act of state in these circumstances. The cases were therefore remitted to proceed to trial.

Appeals to the Supreme Court from the Court of Appeal and Queen's Bench Division: Belhaj appeals from [2014] EWCA Civ 1394; Rahmatullah from [2014] EWHC 3846 (QB). The Supreme Court heard the appeals and dismissed them, restoring the position that the claims proceed to trial.