Mohamed v Breish & Ors

When Her Majesty’s Government unequivocally recognises a body as the government of a foreign state, an English court must treat that body as the government for all purposes. This constitutional rule applies equally to recognition of a de facto government. The court cannot conclude that the recognised government lacks sovereign status because it was unlawfully constituted under local law.

The principle does not prevent every challenge to an act of the recognised government. A challenge remains permissible where it accepts the body’s governmental status and alleges that a particular act was ineffective on another ground. It is precluded where its essential premise denies that the body is the government, or the sole executive authority, recognised by the United Kingdom executive.

Rival claimants asserted the chairmanship of the Libyan Investment Authority, whose English assets were held under receivership orders. Dr Mahmoud derived his appointment from a Board of Trustees constituted by Libya’s Government of National Accord. The Foreign and Commonwealth Office stated that Her Majesty’s Government supported and recognised that Government and its Presidency Council as Libya’s legitimate executive authorities.

Andrew Baker J held that the one voice principle precluded challenges alleging that the Government of National Accord lacked lawful executive authority because it had received no parliamentary vote of confidence, or because it shared executive power with the House of Representatives. He struck those arguments from the appellants’ position statements: [2019] EWHC 1765 (Comm).

The central issue was whether the one voice principle extended to those two challenges, notwithstanding that they were framed as questions about the validity of governmental acts under Libyan law.

1. Appeals dismissed. The Foreign and Commonwealth Office letters, considered with the United Kingdom Government’s public statements and conduct, unequivocally established that Her Majesty’s Government had recognised the Government of National Accord as Libya’s executive government since at least May 2017. The recognition encompassed its sole executive oversight of the Libyan Investment Authority: per Popplewell LJ, King and Males LJJ agreeing.

2. The one voice principle reflects the constitutional allocation of responsibility between the executive and judiciary. Recognition of foreign states and governments lies within the Crown’s executive prerogative. An executive statement of recognition is therefore not ordinary evidence. It conclusively determines governmental status for an English court, whether the question involves fact or law.

3. The principle applies equally to a government recognised de facto. Such recognition does not express a view that the government was constitutionally established under local law. Nevertheless, the court must treat the recognised body as a sovereign government and cannot impugn its acts on the ground that it is an unlawful or usurping government.

4. The principle does not bar every challenge to the validity of a recognised government’s acts under local law. A party may accept the body’s status as the government and contend that a particular act was ineffective on another ground, such as abuse of power. It may not advance an argument whose essential premise is that the recognised body never became the government or is not the sole executive authority.

5. The proposed vote-of-confidence challenge asserted that the Government of National Accord had never become Libya’s executive authority. The consultation and approval challenge asserted that it shared executive power with the House of Representatives. Each premise contradicted the executive recognition and would require the court to speak with a second voice. The arguments were therefore properly struck out.

6. The one voice principle is distinct from foreign act of state, sovereign immunity and non-justiciability. It determines whether the court must treat a body as a sovereign government. Any separate question about the justiciability or legal effect of that government’s acts arises only afterwards.

1. Court of Appeal (Civil Division): The appeals were dismissed. The court upheld the striking out of challenges which denied the status or exclusive executive authority of the Government of National Accord: [2020] EWCA Civ 637.

2. Commercial Court: Andrew Baker J struck the vote-of-confidence and consultation or approval arguments from the appellants’ position statements because they conflicted with the one voice principle: [2019] EWHC 1765 (Comm).

3. Commercial Court: Earlier judgments determined the preliminary government question and declined to add to the resulting declarations: [2019] EWHC 306 (Comm); [2019] EWHC 786 (Comm).