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JUSTICIABILITY

Published online by Cambridge University Press:  22 October 2018

Lord Mance
Lord Mance*
Affiliation:
Deputy President of the Supreme Court of the United Kingdom.
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Abstract

This article explores traditional conceptions of non-justiciability in British Courts in honour of Francis Mann. It highlights the move by domestic courts away from traditional ‘no-go’ areas towards a more nuanced and balanced understanding of the respective roles and competences of the executive and the judiciary; and sees this as a not unfavourable development in an era when domestic recourse is often the only practicable means by which an individual, as opposed to a State, may obtain redress for alleged misconduct on the international plane.

Keywords

Belhaj v StrawButtes GasCrown Act of Statedomestic footholdforeign relationsForeign Act of StateFrancis Mannjudicial restraintjusticiabilitypublic international lawRahmatullahRoyal Prerogative
Type
Articles
Information
International & Comparative Law Quarterly , Volume 67 , Issue 4 , October 2018 , pp. 739 - 757
Copyright
Copyright © British Institute of International and Comparative Law 2018 

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Footnotes

This article is based on the 40th annual FA Mann Lecture given by Lord Mance in Middle Temple Hall on 27 November 2017. The lecture was arranged by the partners of Herbert Smith Freehills and given under the auspices of the British Institute of International and Comparative Law.

References

1 [1982] AC 888.

2 (1983) CJQ 320.

3 ibid.

4 Correspondence between Francis Mann and Lord Roskill, which the author has by courtesy of the Humboldt University of Berlin and is kindly also permitted to use by Julian Roskill and his sisters as Lord Roskill's executors.

5 ibid.

6 Mann, FA, Foreign Affairs in English Courts (Oxford University Press 1986)CrossRefGoogle Scholar.

7 ibid 69.

8 ibid 70.

9 Published as ‘Foreign Relations and the Judiciary’ (2002) 51 ICLQ 485, 510Google Scholar.

10 Although it could have given rise to similar difficulties to those which, the House held, faced the counterclaim.

11 (n 1) 937.

12 (n 1) 938.

13 For good measure, it should be recorded that the House also indicated that it would also have had to consider whether it was fair to allow Buttes’ claim to proceed in these circumstances, had it not been withdrawn by consent.

14 (n 6) at 71, fn 29.

15 British courts have in the past applied to the executive branch of Government on matters such as the status of a foreign State or Government, diplomatic status and the existence of a state of war; see Shaw, M, International Law (7th edn, Cambridge University Press 2014) 139Google Scholar. Such matters have traditionally, though erroneously in the author's opinion, been described as ‘facts’.

16 As Lawrence Collins also suggests, in the article mentioned at (n 9) 507–8, there were contemporary Foreign Office comments, from which Lord Wilberforce may well have concluded that, if the case went to trial, the Foreign Office would refuse to express a view on the boundaries.

17 [2017] UKSC 1, [2017] AC 649 [79].

18 [2014] UKSC 33, [2015] AC 359.

19 [1976] AC 239, 247G.

20 [2002] UKHL 19, [2002] 2 AC 883.

21 A second example is provided by Republic of Ecuador v Occidental Exploration and Production Co [2005] EWCA Civ 1116, [2006] QB 432, where the scope of an arbitration commenced by Occidental against Ecuador depended necessarily on the meaning of the relevant Bilateral Investment Treaty by reference to which Ecuador had agreed to submit to arbitration. In Shergill v Khaira (n 18) the Supreme Court observed at [42] that ‘the boundaries of the category of “transactions” between States which will engage the doctrine [in Buttes Gas] are a good deal less clear today than they seemed 40 years ago’.

22 [2009] EWHC 1910 (Admin).

23 [2014] EWCA Civ 24, [2014] 1 WLR 872.

24 [2008] UKHL 20, [2008] 1 AC 1356.

25 [2002] EWCA Civ 1598.

26 A similar challenge, but on this occasion by former residents with indefinite leave to remain in the United Kingdom but without United Kingdom nationality, failed in R (Al Rawi) v Secretary of State for Foreign and Commonwealth Affairs [2006] EWCA Civ 1279, [2008] QB 289, for similar reasons: the Foreign Secretary's judgment that approaches to the US authorities would be ineffective and counterproductive could only be challenged if shown to be ‘frankly perverse’ [141]. More recently, in the sad case of Mrs Sandiford, still under pending sentence of death in Indonesia, the Supreme Court was asked to review the Foreign Secretary's refusal to provide her with a lawyer for an appeal: R (on the application of Sandiford) v The Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44, [2014] 1 WLR 2697. The refusal was pursuant to a formulated blanket policy, whereby the United Kingdom determined that its accepted international law role of providing consular assistance did not involve the provision of legal assistance. The Supreme Court was prepared to accept that such a policy could be reviewable, if irrational, because (unlike the position in Abbasi and Al Rawi) it did not raise any real issues of foreign policy. But the Foreign Office had in fact considered whether to make, and decided not to make, an exception for Mrs Sandiford, and any challenge to the policy must fail on that ground alone.

27 [2016] UKSC 3, [2016] AC 1457.

28 It is true that in R (Hurst) v London Northern District Coroner [2007] UKHL 13, [2007] 2 AC 189 the author expressed some doubts about this, and both Lord Steyn in the earlier case of Re McKerr [2004] UKHL 12, [2004] 1 WLR 807 [49]–[50] and Lord Kerr more recently in R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16, [2015] UKSC 1449 [235] and [254], went further by suggesting that the executive should be bound at the domestic level by human rights commitments undertaken at the international level. However, even Lord Kerr recognized that as in conflict with ‘constitutional orthodoxy’.

29 (n 25).

30 [2000] 2 AC 326, 341 and 367E-H.

31 369 US 186 (1962).

32 They were (i) a textually demonstrable constitutional commitment of the issue to another political branch; or (ii) a lack of judicially discoverable and manageable standards for resolving it, or (iii) a need to make an initial policy determination clearly for non-judicial discretion, or (iv) the impossibility of a court decision without expressing lack of respect due to co-ordinate branches of Government; or (v) an unusual need for unquestioning adherence to a political decision already made; or (vi) the potentiality for embarrassment from multifarious pronouncements by various departments on one question.

33 444 US 996, 998 (1979).

34 [2017] UKSC 5, [2017] 2 WLR 583.

35 Borrowing Professor Campbell McLachlan's phrases from a slightly different context: see Foreign Relations Law (Cambridge University Press 2014) para 12.129, cited in Belhaj v Straw and Rahmatullah and Mohammed v Ministry of Defence (No 2) [2017] UKSC 3, [2017] AC 964 [33].

36 [1985] AC 374.

37 In its later decision in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] 1 AC 453, the House affirmed that it also followed that the use of the prerogative to legislate for a British Overseas Territory was in principle judicially reviewable.

38 At 418.

39 (n 6) at 73.

40 (n 6).

41 ibid 164.

42 ibid 183.

43 (n 17).

44 (n 35).

45 (n 35).

46 Foreign Affairs in English Courts (n 6) 181, in particular appears as a precursor to Belhaj v Straw (n 35).

47 (n 35).

48 (n 35).

49 (2007) 44 EHRR 52.

50 At [106].

51 It said, at [114], that ‘the Court of Cassation's ruling … does not amount to recognition of an immunity but is merely indicative of the extent of the courts’ powers of review of acts of foreign policy such as acts of war. It comes to the conclusion that the applicants’ inability to sue the State was the result not of an immunity but of the principles governing the substantive right of action in domestic law.’

52 (2007) 44 EHRR SE5.

53 (n 49).

54 (2011) 53 EHRR 18.

55 (n 49).

56 [2017] UKSC 2, [2017] AC 821.

57 (n 35).

58 The other two senses which can in the present context be discarded are:

  1. (i)

    (i) cases where United Kingdom courts recognize foreign confiscatory or expropriatory decrees: these are not cases of non-justiciability and they are better not described as cases of Act of State. They reflect the ordinary private conflicts of law rule, that title to movables is normally determined by the law where the relevant movables are at the relevant time, the lex situs: see Luther v Sagor [1921] 3 KB 532; Princess Paley Olga v Weisz [1929] 1 KB 718; and Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] AC 368;

  2. (ii)

    (ii) the few, doubtful cases indicating that English courts will recognize a confiscatory or other act occurring not under, but contrary to, the lex situs. In Belhaj v Straw (n 37) [38] and [65–74], Lord Neuberger and I thought, with some support from a comment by Francis Mann in Foreign Affairs in the Courts (n 6) 179, as well as carefully reasoned decisions of the German courts, that, if there is any such rule, it is and should be confined to cases relating to property, and not extended to for example acts of violence against individuals. Any such extended rule is difficult to reconcile with authority which establishes that English courts are entitled to consider whether a foreign law is lawful under the constitution of the relevant foreign State: Buck v A-G [1965] Ch 745, 770; Belhaj v Straw, [73](iii). If they can do that, why cannot they examine whether a foreign executive act would be held illegal by the foreign domestic courts? If the country is one where the rule of law means anything, one might think that this should be possible.

59 [2005] UKL 71, [2006] 2 AC 221 [11] per Lord Bingham. Such conduct on British territory would therefore clearly be illegal, as Lord Hoffmann noted in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) (n 39) [35], where he observed that the idea that conduct on British territory, involving use of Diego Garcia as a base for two extraordinary renditions or of it or a ship in the waters around it ‘as a prison in which suspects have been tortured’, could be legitimated by executive fiat was ‘not something which I would find acceptable’. The issue in Belhaj v Straw (n 35) was, therefore, whether United Kingdom authorities could without judicial scrutiny be involved in such conduct abroad.

60 Foreign Affairs in English Courts (n 6) 182.

61 (n 23).

62 (n 35).

63 (n 52).

64 As I suggested in Rahmatullah No 2 (n 35) [52].

65 Reyes v Al-Malki [2017] UKSC 61, [2017] 3 WLR 923; Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62, [2017] 3 WLR 957.

66 (n 18) [42].

67 [1995] 1 AC 321.

68 While holding that sufficient of the defence of justification remained to enable a fair trial.

69 [2001] EWCA Civ 680, [2001] 1 WLR 1786.

70 [2011] UKSC 34, [2012] 1 AC 531 [15–17], [86], [108] and [157].

71 App No 18905/02, judgment of 10 February 2004 (unreported).

72 (1775) 1 Cowp 341, 343.

73 Stating: ‘if, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis.’

74 [2016] UKSC 42, [2017] AC 467.

75 [1964] AC 763.

76 ibid 798.

77 Lord Devlin added ‘even though judged sub specie eternitatis, that policy may be wrong’. In Chandler (n 75) the State's policy and so its interests were proved to have been to keep its airfields operational. No other evidence was relevant or therefore admissible. As to whether the defendants’ conduct was prejudicial to such interests, the facts spoke for themselves.

78 [2004] UKHL 56, [2005] 2 AC 68.

79 (n 34).

80 (n 75).

81 (n 59). Just the same can apply in a context which has nothing to do with the prerogative. Take R v Secretary of State for the Environment, ex parte Hammersmith and Fulham LBC [1991] 1 AC 521, where the House held that a Secretary of State's power to designate local authorities with ‘excessive budgets’ was incapable of judicial review, short of proof of bad faith, improper motive or manifest absurdity.

82 (n 59).

83 (2003) CLJ 631.

84 (n 36).

85 (n 37).

86 [1994] QB 349.

87 At 363.

88 It initially affirmed the non-justiciability of a refusal to grant a pardon in death penalty cases in Reckley v Minister of Public Safety (No 2) [1996] AC 527.

89 [2001] 2 AC 50.

90 More particularly: a) notice should be given to the prisoner when the process is to be operated; b) the notice should be sufficient to give him or his advisers due opportunity to prepare representations in writing (or orally if that is the local procedure); c) all documents which are to be before the relevant decision-maker should be made available to the prisoner, to enable the representations to be made regarding their content before any decision has been taken (even one subject to review) or any clear opinion has been formed; d) the relevant decision-maker is bound to give due consideration to any representations made; and e) the decision-maker should give full reasons for whatever decision is reached. A summary or gist will not suffice in this regard.

91 [2017] UKPC 6, [2017] 3 WLR 790.

92 [1993] UKPC 1, [1994] 2 AC 1.

93 [2017] UKPC 25, [2017] 1 WLR 3369.

94 However, the commuted sentences under consideration in Lendore (ibid) had been substituted by the President in batches, without offering any opportunity for individualized representations. This was procedurally irregular and the case was be remitted for the President to receive individual representations, with a view to setting substitute sentences in the light of all the circumstances [78–80].

95 (n 93). It said: ‘The Board would not altogether rule out the legal possibility that the exercise of the power of pardon and substitution of alternative sentence could in certain very limited circumstances infringe a prisoner's right under the Constitution to the protection of the law. One could theoretically envisage the purported exercise of the power of pardon and substitution in the case of a convicted prisoner who has a viable right of appeal against sentence to the Court of Appeal. Theoretically the position could arise in which the substituted sentence attached to a pardon was more severe than the one which the Court of Appeal might, if it allowed the appeal, order. In such a case, the power of pardon might indeed deprive the prisoner of an existing legal right to appeal and to the normal operation of the criminal justice system, and to that extent might deprive him of the protection of the law’ [34].

96 It is not without interest that, in Smith v Minister of Defence [2013] UKSC 41, [2014] AC 52, the majority conclusion that the Convention required domestic courts to adjudicate upon claims by the relatives of British soldiers killed in Iraq by allegedly inadequate vehicles or equipment was accompanied by a conclusion that the concept of combat immunity did not extend to this situation at common law either. One may perhaps wonder, if the only claim had been the common law claim for negligence, whether the same conclusion would have been so likely.

97 [2013] UKSC 39, [2014] AC 700 [74]. The four-stage test was: ‘(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter’.

98 (3rd edn, Oxford University Press 2017) 563.

99 (n 35).

100 (n 34).

101 (n 35).