Rahmatullah (No 2) v Ministry of Defence & Anor [2017] UKSC 1

Foreign nationals detained by British forces in Iraq and Afghanistan sued the UK Government in tort under local law. The Supreme Court held that the doctrine of Crown act of state barred such claims where detention was carried out as inherently governmental acts pursuant to UK foreign policy during military operations.

Facts

The appeals concerned tort claims brought against the Ministry of Defence and Foreign and Commonwealth Office by foreign nationals detained by British forces during military operations abroad. Mr Rahmatullah, a Pakistani national, was captured by British forces in Iraq on 28 February 2004, transferred to US custody, and held in Afghanistan until 15 May 2014. A group of Iraqi civilians (represented by XYZ, ZMS and HTF) made similar claims regarding detention and transfer to US authorities. Mr Serdar Mohammed, an Afghan national, was captured during an ISAF operation on 7 April 2010, detained by British troops, then transferred to Afghan custody where he was convicted of insurgency offences.

The claimants sued in tort under Iraqi or Afghan law (as applicable under the Private International Law (Miscellaneous Provisions) Act 1995) and under the Human Rights Act 1998. The UK Government raised the doctrine of Crown act of state as a defence to the tort claims.

Issues

The Court identified the following issues:

• Whether the doctrine of Crown act of state is limited to a non-justiciability rule or also encompasses a tort defence;
• If a tort defence exists, what its scope is;
• Whether the test should be, by analogy with section 14(3)(a) of the Private International Law (Miscellaneous Provisions) Act 1995, whether there are compelling grounds of public policy to refuse to give effect to local tort law;
• Whether any such defence was extinguished by the Crown Proceedings Act 1947;
• Whether it is incompatible with article 6 ECHR.

Arguments

The Government

The Government contended that Crown act of state encompasses two principles: (i) a non-justiciability rule covering certain sovereign acts (e.g. making war, treaties, annexations) which are inherently unsuitable for adjudication; and (ii) a tort defence preventing foreigners from suing the Government in respect of certain acts committed abroad pursuant to deliberate UK foreign policy. The Government argued the doctrine survived the 1947 Act and was compatible with article 6, being substantive rather than procedural.

The Claimants

The claimants argued that only the narrow non-justiciability rule existed, applicable to high policy decisions but not to individual detention decisions, which were quintessentially suitable for judicial determination. They contended that any wider tort defence had been abolished by the Crown Proceedings Act 1947 and was incompatible with article 6 ECHR.

Judgment

The Supreme Court unanimously allowed the Government’s appeal, though members differed in their characterisation of the doctrine.

Lady Hale (with Lord Wilson and Lord Hughes)

Lady Hale identified a narrow doctrine of Crown act of state applicable to a limited class of acts: sovereign acts, inherently governmental in nature, committed abroad, in the conduct of foreign policy, so closely connected to that policy as to be necessary, and extending at least to military operations lawful in international law. The doctrine does not apply to torture or maltreatment of prisoners, nor generally to expropriation of property. She reviewed authorities including Buron v Denman (1848), Johnstone v Pedlar [1921] 2 AC 262, Secretary of State in Council of India v Kamachee Boye Sahaba (1859), and Nissan v Attorney General [1970] AC 179.

Lord Mance (with Lord Hughes)

Lord Mance considered there is a single doctrine based on non-justiciability, or preferably abstention or restraint. The rule in Buron v Denman is a corollary of the principle of non-justiciability protecting Crown servants where the Crown itself would be protected. The criteria are: (i) an exercise of sovereign power, inherently governmental in nature; (ii) done outside the UK; (iii) with prior authority or subsequent ratification of the Crown; (iv) in the conduct of the Crown’s relations with other states or their subjects.

Lord Sumption

Lord Sumption agreed Crown act of state is a rule of substantive law defining the scope of legal rights, rather than a jurisdictional bar. He emphasised the rationale as one of consistency: it would be incoherent for the law to acknowledge the Crown’s power to deploy armed force while treating acts inherent in that exercise as civil wrongs. Crown act of state differs from foreign act of state in this respect.

Lord Neuberger (with Lord Hughes) and Lord Clarke

Lord Neuberger considered the term “non-justiciable” potentially misleading. Lord Clarke noted that whether characterised as one principle or two, the question is not discretionary—the defendant either has a legal right to rely on the doctrine or does not.

Crown Proceedings Act 1947 and Article 6

The Court held that section 2(1) of the 1947 Act did not abrogate the doctrine; the proviso preserved the existing law concerning the liability of Crown servants. The doctrine is a substantive rule (akin to that considered in Markovic v Italy 44 EHRR 52), not a procedural bar, and is therefore compatible with article 6 ECHR.

Application

The detention of the claimants and their transfers to US or Afghan custody were Crown acts of state—deliberate policy steps taken against persons (none owing allegiance to the Crown) reasonably suspected to be insurgents or terrorists during foreign military operations in armed conflict.

Implications

The judgment confirms that Crown act of state remains a constitutionally significant, though narrowly confined, doctrine of the common law. The decision provides authoritative guidance on its scope after a century of judicial uncertainty.

Key principles emerging from the decision include:

• The doctrine applies only to a narrow class of inherently sovereign acts done abroad with Crown authority or ratification, in the conduct of foreign relations, closely connected to and necessary for the implementation of foreign policy, at least in the context of lawful military operations;
• It does not apply to torture or maltreatment of detainees—Lady Hale considered such acts not inherently governmental, while Lord Sumption considered that authorisation of torture could not be a lawful exercise of the prerogative;
• The doctrine bars tort claims under foreign law but not claims under the Human Rights Act 1998, which proceed independently;
• The Court left open whether the doctrine could be pleaded against British citizens, and whether it extends beyond military operations.

The decision is significant for claimants seeking redress under foreign tort law for harms suffered during UK military operations abroad: such claims face a substantive bar where the acts complained of are inherently governmental and authorised pursuant to UK foreign policy. However, human rights claims and claims involving maltreatment remain unaffected. The judgment also reflects modern constitutional thinking, post-GCHQ [1985] AC 374, that justiciability turns on subject-matter rather than the source of executive power.

Verdict: The Supreme Court unanimously allowed the Government’s appeal. A declaration was to be substituted to the effect that, in proceedings in tort governed by foreign law, the Government may rely on the doctrine of Crown act of state to preclude the court passing judgment on the claim where the acts in question are sovereign, inherently governmental acts committed abroad with the prior authority or subsequent ratification of the Crown, in the conduct of the Crown’s relations with other states or their subjects, at least in the context of lawful military operations. Further submissions were invited on the precise form of declaration in each case.

Source: Rahmatullah (No 2) v Ministry of Defence & Anor [2017] UKSC 1