Crown act of state and detention in Afghanistan
Jane M Rooney
The main authority for the characterisation of act of state as a principle of non-justiciability, in contrast to a defence in tort, is Secretary of State in Council of India v Kamachee Boye Sahaba. The East India Company had seized the Raj of Tanjore and the public and private property of the deceased Rajah of Tanjore in the absence of an heir. His widow brought a claim against seizure of the private property. The Privy Council held that the East India Company had ‘sovereign powers’ and that ‘acts done in execution of these Sovereign powers were not subject to the control of the Municipal Courts, either of India or Great Britain’. It was precisely because the actions of the East India Company had no legal basis that it was labelled an act of state, non-justiciable in the courts. Amanda Perreau-Saussine describes the case as one where ‘the Crown was held to have successfully delegated to the East India Company a non-justiciable “sovereign” power to act despotically’.
As described in my recent article in the Northern Ireland Legal Quarterly, in the Serdar Mohammed litigation, act of state was suddenly afforded contemporary significance. Serdar Mohammed was detained for 110 days without charge and without access to a court to determine the legality of his detention. Act of state was invoked as a British defence to Afghan tort law which permitted detention without charge for only up to 72 hours. In the ratio decidendi, the Supreme Court unanimously agreed that act of state could be invoked in cases of extraterritorial illegal detention to bar an action in tort and with the definition of act of state put forward by Lady Hale:
[Acts of state are] sovereign acts … the sorts of things that governments properly do; committed abroad; in the conduct of the foreign policy of the state; so closely connected to that policy to be necessary in pursuing it; and at least extending to the conduct of military operations which are themselves lawful in international law (which is not the same as saying that the acts themselves are necessarily authorised in international law).
Lady Hale’s definition emphasises that an action will be characterised as an act of state to bar the case, even when it is at odds with international law standards to do so. It cannot be a defence to torture, but otherwise the potential of act of state to grant immunity is extensive. Act of state is only a defence in tort and not a bar to the admissibility of an action under the Human Rights Act 1998 (HRA).
Obiter dicta, the judges could not agree on whether act of state should be characterised as a defence in tort or a principle of non-justiciability, with the majority opinion weighing in favour of the latter. Lord Mance argued that it was a principle of non-justiciability because there was no authority for act of state as a defence in tort. Lord Sumption claimed that ultimately it was a principle of non-justiciability, with whom Lord Clarke agreed. Lady Hale found that it was not applicable as a rule of non-justiciability in the present case but could be successfully invoked as a defence in tort, and Lord Wilson agreed. Lord Hughes and Lord Neuberger did not specify their position. The upshot of the contradictory judgments was that there was no sufficient authority to characterise act of state as a defence in tort and, conversely, that it would be at odds with multiple domestic and international legal frameworks to characterise alleged illegal detention as non-justiciable. Unfortunately, regardless of its uncertain legal foundation (defence in tort) as well as its inconsistency with domestic and public/private international law standards (non-justiciability), the Supreme Court decision solidifies the place of act of state in civil litigation regarding extraterritorial armed conflict.
It is concerning that the Supreme Court principally characterised act of state as a principle of non-justiciability. This characterisation originates in granting immunity to the ‘despotic’ actions of the East India Company; act of state falls far below the standard of ‘high-policy’ decisions accepted as non-justiciable today; it does not reflect the principle of non-justiciability in contemporary tort law; and it entrenches the court’s differential approach to executive scrutiny based upon whether you are within the territory of the UK or outside it, a national or a foreigner.
One may argue that act of state as a defence to a private law claim, but not a block to the public claim, is a reasonable outcome of limited significance. One can still claim under the HRA, albeit the damages may differ. Aside from rule of law concerns regarding the clarity and consistency between private and public law, there is a very real concern that act of state leaves no protection to extraterritorial applications in the common law absent the HRA, should the current administration replace the latter with a British Bill of Rights. Further, while the Supreme Court dealt with the private and public law claims separately, the HRA judgment mirrored the deference afforded in the tort law claim. Act of state signalled a change in judicial attitude towards extraterritorial adjudication both under tort law and the HRA. In the public law judgment, the Supreme Court departed from established human rights and international law standards on judicial review of extraterritorial detention in armed conflict to find illegality in very limited circumstances.
The Overseas Operations (Service Personnel and Veterans) Bill 2019–21, which at the time of writing has been voted through in its second reading in the parliamentary process, will radically reduce the extraterritorial accountability of illegal conduct by British military in both civil litigation and under the HRA. It introduces a six-year time limit maximum on both HRA and civil litigation claims. It requires courts to take into account factors that mitigate against allowing litigation after an initial three-year limitation period for civil litigation, including the effect the delay will have had on adducing evidence, and the impact of the proceedings on the mental health of witnesses who at the time were members of the armed forces.
At a time when the executive is introducing legislative measures to curtail extraterritorial scrutiny, the courts should be strengthening review, not undermining the rule of law by abdicating its accountability function.
 Secretary of State in Council of India v Kamachee Boye Sahaba (1859) 13 Moore PCC 22 (15 ER 9). See Amanda Perreau-Saussine, ‘British Acts of State in English Courts’ (2008) 78(1) British Yearbook of International Law 176, 192–193.
 Kamachee Boye Sahaba (n 1) 77.
 Perreau-Saussine (n 1) 194.
 Mohammed v Ministry of Defence  UKSC 1.
 Ibid para 37 Lady Hale.
 Serdar Mohammed v Secretary of State for Defence  EWHC 1369 (QB) paragraph 379; Serdar Mohammed v Secretary of State for Defence  EWCA Civ 843 paragraph 313.
 Mohammed (n 4) paragraph101 per Lord Mance.
 Ibid para 81 per Lord Sumption, paragraphs 107–109 per Lord Clarke.
 Ibid paragraph36 per Lady Hale.
 Jane M Rooney, ‘Crown Act of State and Detention in Afghanistan’ (2020) 71(2) Northern Ireland Legal Quarterly 109, 115–117.
 Ibid 117–119.
 Ibid 119–121.
 Ibid 121–124.
 See e.g. Alseran v Ministry of Defence  EWHC 3289 per Justice Leggatt paragraph 836.
 Mohammed v Ministry of Defence  UKSC 2; Rooney (n 10) 124–131.
 Overseas Operations (Service Personnel and Veterans) Bill 2019–21, clauses 8–11.