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Act of State as a Defence Against a British Subject

Published online by Cambridge University Press:  16 January 2009

J. G. Collier
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Extract

The law surrounding the doctrine of act of state is perhaps one of the most confusing parts of constitutional law, for both its meaning and application are susceptible of several different interpretations. In particular the rule that act of state can be no defence against an action by a British subject, or, to put it more precisely, that there can be no act of state between the Crown and a British subject is one whose limits are not entirely clear. The recent case of Naim Nissan v. Attorney-General has brought the matter to the fore in what is thought to be a novel situation, wherein the question arose whether act of state can be a defence to an action by a British subject if the act has been executed by the Crown outside the Crown's dominions. The case gave rise to a difference of opinion between the judge at first instance and the Court of Appeal, and now that leave to appeal has been granted to the House of Lords, there arises an opportunity to examine act of state in several of its aspects.

In this discussion it will be argued that the law as it appears now to stand is not necessarily a correct interpretation of the precedents, and that if it is, occasion now presents itself for a fresh formulation of the rules upon a more logical and up-to-date basis.

It is first proposed to explain what is meant by the term “act of state” in this context, to try to establish its relationship with the prerogative, and to examine two aspects of it, that is (i) where a claimant is attempting to use an act of state as the foundation of his action, and (ii) where the Crown is attempting to defeat an action by an individual by the plea of act of state.

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The Cambridge Law Journal , Volume 26 , Issue 1 , April 1968 , pp. 102 - 130
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Copyright © Cambridge Law Journal and Contributors 1968

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References

1 [1967] 3 W.L.R. 109, 1044, C.A.; see the note by Mr. Adrian Taylor at p. 1, supra.

2 Potter v. Broken Hill Propty. Co. (1906) 3 C.L.R. 479 at 491.Google Scholar

3 As, for example, in Luther v. Sagor [1921] 1 K.B. 456Google Scholar; 3 K.B. 532, C.A.; and see Banco Nacional de Cuba v. Sabbatino (1964) 376 U.S. 398Google Scholar; [1964] 22 C.L.J. 182.

4 [1932] A.C. 14.

5 “Act of State in English Law” (1934) 15 British Yearbook of International Law, p. 98 at p. 103.Google Scholar

6 3rd ed. (1954), Vol. 7, p. 279, para. 593.

7 [1967] 3 W.L.R. at 134, 1064, per John Stephenson J. and Winn J.

8 Warrington, L.J. in Re Ferdinand, ex-Tsar of Bulgaria [1921] 1 Ch. 107, 139Google Scholar doubted whether acts of state were done by virtue of the prerogative, for in his view prerogative properly connotes only acts done by the Crown in relation to its own subjects and not in relation to persons owing no allegiance. But the majority of textwriters agree that acts of state are acts done by virtue of the prerogative: see Holdsworth, “The History of Act of State in English Law” (1941) 41 Columbia Law Review at p. 1330; see also Wade, loc. cit., pp. 101–102, and Ridges, Constitutional Law, 8th ed. (1950), pp. 220–221. In Rustomjee v. The Queen, Blackburn J. remarked that the making of a treaty was done by the Queen “in the exercise of one of the highest branches of her prerogative.” And Lord Coleridge C.J. said the same about the power to make war and peace; (1876) L.R. 1 Q.B.D. 487 at p. 493, 2 Q.B.D. 69 at p. 74 and see John Stephenson J. in [1967] 3 W.L.R. at p. 134.

9 McNair, and Watts, , Legal Effects of War, 4th ed. (1966), p. 95.Google Scholar

10 [1906] 1 K.B. 613 at pp. 639–641.

11 For a striking example of this see Ghosh v. D'Rozario [1963] 1 Q.B. 106.Google Scholar

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13 Dobree v. Napier (1836) 2 Bing.(N.C.) 781; Carr v. Fracis Times [1902] A.C. 176.Google Scholar

14 R. v. Lesley (1860) Bell C.C. 220.

15 e.g., Cook v. Sprigg [1899] A.C. 572; Rustomjee v. The Queen (1876) L.R. 1 Q.B.D. 487; 2 Q.B.D. 69.

16 Buron v. Denman (1848) 2 Exch. 167.

17 The English cases have been applied in South African courts: Postmaster-General v. Taute [1905] Trans.L.R.(S.C) 582Google Scholar; Vereeniging Municipality v. Vereeniging Estates Ltd. [1919] S.A.L.R.(T.P.D.) 159Google Scholar; Shingler v. Union Government (Minister of Mines) [1925] S.A.L.R.(A.D.) 556Google Scholar and in India: see O'Connell, , State Succession in Municipal and International Law (1967), Vol. I, pp. 258–260Google Scholar; Agrawala (1963) 12 International and Comparative Law Quarterly 1399.

18 [1906] 1 K.B. 613.

19 (1872) L.R. 7 Ex. 365.

20 (1851) 3 H.L.C. 449.

21 (1876) L.R. 2 Q.B.D. 69.

22 [1932] A.C. 14.

23 (1876) L.R. 2 Q.B.D. at p. 74.

24 [1932] A.C. 14.

25 Loc. cit. at p. 1329.

26 [1906] 1 K.B. 613 at 640–641.

27 Op. cit., pp. 254–255 and see (1952) 26 Australian Law Journal 201.

28 [1921] 2 A.C. 399 at p. 407.

29 [1941] A.C. 356.

30 [1941] A.C. 308.

31 [1899] A.C. 572.

32 [1957] 1 W.L.R. 878.

33 At p. 880.

34 (1924) L.R. 51 Ind.App. 357 at p. 360.

35 [1941] A.C. 308.

36 See Asrar Ahmed v. Dungah Committee, Ajmer, Annual Digest of International Law Cases, Vol. XIII, Case No. 17; a general declaration would not apparently suffice as a basis for an enforceable claim: (1924) L.R. 51 Ind.App. 357.

37 (1851) 3 H.L.C. 449; see also Vilander Concessions Syndicate v. Cape of Good Hope Government [1907] A.C. 186.Google Scholar

38 14 Geo. 6, c. 12.

39 See the writings cited at n. 17, above.

40 (1876) L.R. 1 Q.B.D. 487; 2 Q.B.D. 69.

41 [1932] A.C. 14.

42 [1905] 2 K.B. 391.

43 At p. 399.

44 It is not thought that the acquisition of the island of Rockall in 1956 raises any problems of the kind under discussion.

45 For an account of the Foreign Compensation Commission see Lillich, International Claims: Postwar British Practice (1967) and see Anisminic v. Foreign Compensation Commission [1967] 3 W.L.R. 382.Google Scholar

46 See Agrawala, loc. cit.

47 Stephen, History of the Criminal Law (1883), Vol. II, p. 61.

48 It may be asked whether an act of state includes injuries inflicted by any agent of the Crown upon an alien. The learned editors of Winfield on Tort, 8th ed. (1967), p. 715 state: “On principle it ought to be immaterial whether the official is high or low in degree. But in Johnstone v. Pedlar Lord Cave and Lord Sumner at pp. 277, 290 doubted whether seizure by a person so low in the official hierarchy as a police officer of money found upon the plaintiff could properly be described as an act of state.” The view of the editors seems to be justified. A police officer is clearly for certain purposes a person holding office under the Crown, and he would certainly be regarded as an officer of the state for the purpose of state responsibility at international law.

49 The authority may in some cases be presumed: The Rolla (1807) 6 C.Rob. 305; The Franciska (1855) 2 Ecc. & Adm. 113.

50 (1848) 2 Exch. 167.

51 Winfield on Tort, p. 713. Parke B. seems to have felt some doubt whether subsequent ratification would suffice (1848) 2 Exch. at p. 188.

52 It would probably be a good defence against an alien who was seeking to enter, or against one who had arrived here surreptitiously with intent to commit a criminal act. The Crown it seems has the right to refuse admission to an alien: Musgrove v. Toy [1891] A.C. 272. See Poll v. Lord Advocate (1899) 1 F.(Ct.Sess.) 823; 5 Scots L.T. 167. Suggestions made in that case that act of state would be a good defence against an alien within the dominions were controverted in Johnstone v. Pedlar [1921] 2 A.C. 262, 271, 289.Google Scholar It is conceivable that Scots law differs on this point, but unlikely: see Mitchell, Constitutional Law (1964), p. 149.

53 (1765) 19 St.Tr. 1030; see Walker v. Baird [1892] A.C. 491 as interpreted in Johnstone v. Pedlar [1921] 2 A.C. 262.Google Scholar

54 Keir and Lawson, Cases on Constitutional Law, 5th ed. (1967), p. 307.

55 [1921] 2 A.C. 262.

56 [1958] 1 Q.B. 476. In that case the plaintiff was at London airport only for the purpose of changing planes. He had once been deported and would not have been granted permission to enter.

57 De lager v. Attorney-General for Natal [1907] A.C. 326.Google Scholar

58 Williams, Glanville, “The Correlation of Allegiance and Protection” [1948] 10 C.L.J. 54.Google Scholar The learned writer describes this as “the law abidingness of the sovereign and his officers with respect to the individual subject. Protection in this sense means in English law the exclusion of the defence of act of state.”

59 [1921] 2 A.C. 262 at 293.

60 At p. 284, per Lord Atkinson.

61 The present rules are contained in the Aliens Order 1953 (S.I. 1953 No. 1671) as amended. See generally, Thornberry (1963) 12 International and Comparative Law Quarterly at pp. 414 et seq.

62 [1921] 2 A.C. 262.

63 [1925] 1 K.B. 271 at 290, 297.

64 Loc. cit., p. 99.

65 McNair and Watts, op. cit., p. 73, n. 5.

66 Loc. cit., pp. 64–65.

67 [1921] 2 A.C. 262.

68 History of English Law, Vol. IX, p. 98.

69 In Feather v. The Queen (1865) 6 B. & S. 257 at 296.

70 (1848) 2 Exch. 167.

71 [1921] 2 A.C. at p. 278.

72 Mann, “The Sacrosanctity of the Foreign Act of State” (1943) 59 L.Q.R. at pp. 45–46, esp. p. 46, n. 16, where the learned author refers to the speech of Maugham, Lord in The Cristina [1938] A.C. 485 at p. 515Google Scholar: “In these days and in the present state of the world, diplomatic representations made to a good many states afford an uncertain remedy to the unfortunate persons who may have been injured by the foreign Government.” It should be added, however, that the situation may have improved at the present time, in view of the existence of the European Convention on Human Rights and the machinery created to enforce its provisions. The United Kingdom is a party to the Convention and has accepted the compulsory jurisdiction of the European Court of Human Rights and has agreed that individuals may petition the Commission in case they have complaints.

73 Glanville Williams, loc. cit.

74 [1921] 2 A.C. 262.

75 R. v. Bottrill, ex p. Kuechenmeister [1947] 1 K.B. 41Google Scholar.

76 Netz v. Ede [1946] Ch. 224.Google Scholar

77 See Winfield on Tort, pp. 714–715.

78 Glanville Williams, loc. cit.

79 Buron v. Denman (1848) 2 Exch. 167.

80 [1967] 3 W.L.R. 109; 1044.

81 History of English Law, Vol. IX, p. 98, n. 2; and see 41 Col.L.R. at 1321. This seems to be implicit in dicta in Johnstone v. Pedlar and is supported by most commentators.

82 British Nationality Act 1948, s. 1.

83 Constitutional Law, 7th ed. (1965), p. 267.Google Scholar

84 [1921] A.C. 262.

85 Jones, British Nationality Law (revised ed. 1947), p. 93.

86 Ibid.

87 Ibid.

88 For a discussion of the position of the Crown in the Commonwealth see O'Connell (1957) 6 International and Comparative Law Quarterly 103. See also Fawcett: The British Commonwealth in International Law (1963), p. 79.

89 [1921] 2 A.C. 262.

90 [1946] A.C. 347. See, however, Public Prosecutor v. Koi [1958] 1 All E.R. 419.Google Scholar

91 Glanville Williams, loc. cit., p. 65.

92 Ibid. p. 68.

93 Ibid. pp. 68–72; Wade and Phillips, op. cit., p. 427; Phillips, Hood, Constitutional and Administrative Law, 4th ed. (1967), p. 263.Google Scholar

94 R. v. Crewe, ex p. Sekgome [1910] 2 K.B. 576Google Scholar; Sobhuza II v. Miller [1926] A.C. 518.Google Scholar

95 For a full modern discussion see Polack (1963) 26 M.L.R. 138; Ex p. Mwenya [1960] 1 Q.B. 241.Google Scholar

96 In addition to the cases mentioned see also: Secretary of State for India v. Kamachee Boye Sahaba (1859) 7 Moo.Ind.App. 476; Ex-Rajah of Coorg v. The East India Company (1860) 29 Bevan 300; Sirdar Bhagwan Singh v. Secretary of State for India (1874) L.R. 2 Ind.App. 38; Doss v. Secretary of State for India (1875) L.R. 19 Eq. 509.

97 (1791) 1 Ves.Jun. 371; (1793) 2 Ves.Jun. 56.

98 (1793) 2 Ves.Jun. at p. 60.

99 (1830) Knapp P.C. 316.

1 At p. 360.

2 (1876) L.R. 2 Q.B.D. 74.

3 Vajesingji Joravarsingji v. Secretary of State for India (1924) L.R. 51 Ind.App. 357 at p. 360.Google Scholar

4 This cannot ex hypothesi occur if as a result of the transaction one of the states ceases to exist.

5 [1899] A.C. 572.

6 Johnstone v. Pedlar [1921] 2 A.C. 262 at p. 281.Google Scholar

7 [1967] 3 W.L.R. at p. 134; and at p. 1054, per Lord Denning M.R.

8 Dicey and Morris, Conflict of Laws, 8th ed. (1967), p. 164; see also Moore, W. Harrison, Act of State in English Law, pp. 40–41Google Scholar; Keir and Lawson, op. cit., p. 155.

9 Moore, Harrison, loc. cit.Google Scholar

10 For a cognate situation see Dickinson v. Del Solar [1930] 1 K.B. 376.Google Scholar

11 (1848) 2 Exch. 167.

12 Some support may be found for this theory in the judgment of Willes J. in Phillips v. Eyre (1870) L.R. 6 Q.B. 1 at 23, 24.

13 [1921] 2 A.C. 262 at 290; see also Keir and Lawson, op. cit., p. 156; Dicey and Morris, loc. cit.; Salmond on Torts, 14th ed. (1965), p. 607.Google Scholar

14 (1941) 41 Col.L.R. 1314.

15 (1872) L.R. Ind.App.Supp., Vol. 10.

16 (1879) 5 App.Cas. 102 at 113.

17 [1892] A.C. 491.

18 [1921] 2 A.C. 262.

19 [1967] 3 W.L.R. 1044.

20 Keir and Lawson, op. cit., p. 156.

21 Compare also the attitude of the courts to claims of parliamentary privilege: Stockdale v. Hansard (1839) 9 A. & E. 1.

22 [1967] 3 W.L.R. 109, 1044 and see note by Mr. Adrian Taylor, supra, p. 1.

23 [1965] A.C. 75.

24 p. 104, supra.

25 [1967] 3 W.L.R. at p. 133.

26 (1876) L.R. 2 Q.B.D. 69.

27 [1932] A.C. 14.

28 [1967] 3 W.L.R. at p. 1055.

29 At p. 1059.

30 At p. 1062.

31 At p. 1063.

32 At p. 1055.

33 At p. 141.

34 (1848) 2 Exch. 167.

35 [1893] A.C. 602.

36 [1965] A.C. 75. It seems fairly clear that Parliament intended to overrule this case in the War Damage Act 1965. But that only prevents claims arising out of “war.”

37 In fact, Winn L.J. clearly states this at [1967] 3 W.L.R. 1065.

38 Ibid.

39 At p. 1057.

40 At pp. 1066–1067.

41 For a discussion of the decision see Goodhart in (1966) 82 L.Q.R. 99.

42 Cf. the Lex Rhodia de Iactu, Buckland, Textbook of Roman Law, 2nd ed. (1963), p. 506.

43 [1967] 3 W.L.R. 109; 1044.

44 [1931] A.C. 662 at p. 670.

45 (1765) 19 St.Tr. 1030.

46 [1892] A.C. 491.

47 See The Parlement Belge (1879) 4 P.D. 129 and Republic of Italy v. Hambros Bank [1950] Ch. 314.

48 The Case of Proclamations (1611) 12 Co.Rep. 74.

49 [1965] A.C. 75.

50 [1921] 2 A.C. 262.

51 [1892] A.C. 491.

52 [1946] A.C. 347 see p. 117, supra.

53 Administrative Law, 2nd ed. (1967), pp. 270–272.Google Scholar