Al Jedda v Secretary of State for Defence

The Claimant is aged 52. He was originally a national of Iraq. He came to this country in 1992 as a refugee from the regime of Saddam Hussein and was in 2000 granted British nationality. In September 2004 he travelled to Iraq from England. On 10^th October 2004 he was arrested in Baghdad on suspicion of being a member of a terrorist group involved in weapons smuggling and explosive attacks in Iraq. He was taken to a detention facility in Basra, where he remained in the custody of British forces for over three years on the basis that his internment was “necessary for imperative reasons of security”. He was released without charge on 30^th December 2007. Although his detention was subject to review procedures which I shall describe in due course, it was not authorised by any kind of judicial process. Shortly before his release the Home Secretary made a decision to deprive him of his nationality and to exclude him from entry to the United Kingdom: that decision is currently the subject of an appeal to the Special Immigration Appeals Commission (“SIAC”). He is at present living in Turkey.

In March 2005 the Claimant brought proceedings in this country seeking judicial review of the lawfulness of his detention. His primary complaint was that it infringed his rights under article 5 (1) of the European Convention on Human Rights, as given effect to by the Human Rights Act 1998; but he also claimed that he was being wrongfully imprisoned as a matter of common law. Those claims were dismissed by a Queen’s Bench Divisional Court on 12^th August 2005 ([2005] EWHC 1809 (Admin), [2005] HRLR 39); and his subsequent appeals to the Court of Appeal and the House of Lords were dismissed on 29^th March 2006 and 12^th December 2007 respectively ([2006] EWCA Civ 327, [2007] QB 621; and [2007] UKHL 58, [2008] 1 AC 322). I will refer to those proceedings as Al-Jedda 1.

The claim under the 1998 Act was dismissed on the basis that the Claimant had been detained pursuant to a duty under international law which overrode any obligation under the Convention: I deal with this in more detail at para. 69 below. As for the claim at common law, by virtue of section 11 of the Private International Law (Miscellaneous Provisions) Act 1995 (“the 1995 Act”), the applicable law was prima facie that of Iraq as the lex situs. By virtue of section 12 it was open to the Court to disapply that general rule on the basis that it was substantially more appropriate for English law to apply; but the Court of Appeal concluded that that was not the case. The House of Lords declined to interfere with that assessment. In the House of Lords the Claimant sought for the first time to contend that, even if Iraqi law were the applicable law, his detention was unlawful under that law; but it was held that it was too late for him to raise that issue in those proceedings (see para. 4 of the speech of Lord Bingham, at p. 338 D-E).

The present action was commenced in August 2006 seeking a claim for a declaration that the Claimant was entitled to have a Court determine the validity of the factual basis for his detention; but it has, following the decision of the House of Lords in Al-Jedda 1, been converted into a vehicle for advancing the claim under Iraqi law which the House declined to entertain in that case. This is the trial of that claim. The Claimant has been represented before me by Mr. Richard Hermer and Mr. Tom Hickman and the Secretary of State by Mr. Jonathan Swift and Mr. Ben Olbourne. Both Mr. Hermer and Mr. Swift appeared, albeit led, at all stages of Al-Jedda 1; and I have been much assisted by their mastery both of the history of the matter and of the relevant issues.

The issues raised by the claim are essentially issues of law (subject to the point that, strictly speaking, questions of foreign law are characterised as questions of fact), and I need therefore say nothing more about the factual background to the Claimant’s detention: if required, more details can be found in the various judgments in Al-Jedda 1.

There is also before me an application for permission to re-amend the Particulars of Claim in order to introduce further claims arising out of the Claimant’s detention. I deal with that separately at the end of this judgment: see paras. 88-96.

In order to explain the issues which I have to determine it is necessary that I first set out in outline the history of constitutional developments in Iraq following the invasion of March 2003, with particular reference to the role of British forces.

The invasion and subsequent occupation. Coalition forces invaded Iraq in March 2003. Major combat operations were declared to have been concluded in May 2003, although hostilities continued in some parts of Iraq thereafter. The coalition forces became occupying powers in Iraq and exercised the powers of belligerent occupation recognised in Section III of the Hague Regulations on the Laws and Customs of War on Land (1907) and the Fourth Geneva Convention on the Protection of Civilian Persons in Time of War (1949) (“Geneva 4”).

The CPA. The coalition powers established the Coalition Provisional Authority (“CPA”) to exercise the functions of government during the period of occupation. By CPA Regulation no. 1, dated 16^th May 2003, the CPA assumed “all executive, legislative and judicial authorities necessary to achieve its objectives, to be exercised under relevant UN Security Council resolutions … and the laws and usages of war”. On 22^nd May 2003 the United Nations Security Council, acting under Chapter VII of the Charter, adopted resolution 1483 which, among other things, recognised the CPA and called upon it “to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability”. Regulation no. 1 provided (see sections 3 and 4) that CPA legislation would take the form of Regulations and Orders, to be supplemented by “Memoranda in relation to the interpretation and application of any Regulation or Order”: it was common ground before me that Memoranda as well as Regulations and Orders had the force of law.

Resolution 1511. In July 2003, the Iraqi Governing Council (“IGC”) was established to serve as the interim administration in Iraq. On 16^th October 2003, the Security Council adopted resolution 1511, again acting under Chapter VII of the UN Charter. This recognised the IGC as the principal body of the Iraqi interim administration. Resolution 1511 also authorised the establishment of a multinational force (“the MNF”) under unified command “to take all necessary measures to contribute to the maintenance of security and stability in Iraq”: the British military authorities responsible for the Claimant’s detention form part of that force.

Replacement of the CPA by the Iraqi Transitional Government - the TAL. With effect from 28^th June 2004 the occupation of Iraq formally came to an end. The CPA was dissolved and authority passed to an Iraqi Interim Government, in accordance with a Transitional Administrative Law (“the TAL” - sometimes, though not in the text itself, referred to as an “interim constitution”) which had been promulgated by the IGC in March 2004. The TAL was intended to provide a temporary legal framework for the governance of Iraq during the transitional period until the formation of a government elected pursuant to the terms of a permanent constitution. The transitional period would be in two phases – the first lasting until the holding of elections and the formation of a Transitional Government. Article 26 (C) of the TAL (which I set out in full at para. 44 below) provided that all CPA legislation would remain in force.

Resolution 1546. On 8^th June 2004, the Security Council, again acting under Chapter VII of the U.N. Charter, adopted resolution 1546, which welcomed the anticipated transfer of power to the Interim Government and provided for the extension of the mandate of the MNF: I give more details at para. 17 below. The resolution was passed in response to letters dated 5^th June 2004 to the President of the Security Council from the Prime Minister (or perhaps, strictly, the Prime Minister designate) of the Iraqi Interim Government, Dr. Ayad Allawi, and from the United States Secretary of State, Colin Powell: I shall refer to the terms of those letters in more detail in due course. From 28^th June the MNF’s presence and operations in Iraq were at the request of the Iraqi Government and pursuant to Security Council resolution.

Resolution 1637. On 11^th November 2005 the Security Council adopted resolution 1637 extending the role of the MNF as stated in resolution 1546 until 31^st December 2006. The resolution was passed following an exchange of letters between the Iraqi Prime Minister and the US Secretary of State (dated 27^th and 29^th October 2005 respectively) in broadly similar terms to those which preceded the passing of resolution 1546 and referring back to the earlier exchange.

The Constitution of Iraq. On 20 May 2006 the transitional period provided for in the TAL came to an end and a permanent Constitution came into force. The TAL ceased to have effect.

The role of the MNF: resolution 1723. The presence and operations of the MNF continued following the coming into force of the Constitution at the request of the Iraqi Government. On 28^th November 2006 the Security Council adopted resolution 1723 extending the role of the MNF as stated in resolution 1546 until 31^st December 2007: again, the resolution followed an exchange of letters between the Prime Minister and the Secretary of State (dated 11^th and 17^th November 2006 respectively) referring back to the original exchange.

On 18^th June 2003 the Administrator of the CPA promulgated its Memorandum no. 3 entitled “Criminal Procedures” (“CPA 3” (Footnote: ¹)). The Memorandum specifies a number of procedures to be followed “in relation to all persons detained by the Coalition Forces on security grounds” (“security internees”). I need not set these out, but it is important to note that both section 7 and the recital to the Memorandum refer to, and purport to apply, the requirements of Geneva 4 in relation to detainees, and specifically Article 78. Article 78 of Geneva 4 provides (so far as material):

It was clearly intended by both the Interim Government and the countries contributing to the MNF that the powers of detention granted by CPA 3 should continue to be available following the transfer of power from the CPA at the end of June 2004, notwithstanding that Iraq would not from that point be under occupation. In his letter to the President of the Security Council dated 5^th June 2004 (referred to at para. 12 above) the US Secretary of State referred to the Prime Minister’s request for continuing security assistance and declared the intention of the MNF to reach agreement “on the full range of fundamental security and policy issues”. He continued:

Although, for whatever reason, the only explicit reference to internment appears in the text of the letter from the US Secretary of State, and it is not expressly referred to either in the letter from the Prime Minister or in the resolution itself, I am bound to accept that the effect of the resolution was not only to authorise but in fact to oblige the MNF to exercise the powers of security detention referred to in the Secretary of State’s letter where it was necessary to do so for imperative reasons of security. That was expressly decided by the House of Lords in Al-Jedda 1. The House held that that followed from the terms of articles 25 and 103 of the UN Charter.

Although, by reason of article 26 (C) of the TAL (referred to at para. 11 above), CPA 3 would have remained in force following the transfer of sovereignty to the Interim Government, its terms nevertheless required modification in order to reflect the new situation which would obtain as from that date. Accordingly on 28^th June 2004 a revised version of the Memorandum was promulgated. The recital referred to the fact that the Administrator was “acting pursuant to the mandate for the Multinational Force set out in UN Security Council Resolutions 1511 (2003) and 1546 (2004)”. It also continued to refer to Geneva 4, but in language which recognised that – since Iraq was no longer occupied – it had no direct application but, rather, “constitute[d] an appropriate framework consistent with [the MNF’s] mandate”.

Section 6 of the revised version of CPA 3 is headed “MNF Security Internee Process” and replaces the provisions of section 7 of the original. So far as material, it provides as follows:

It was in accordance with the provisions of section 6 of CPA 3 (as revised) that the Claimant was detained on 10^th October 2004. It is, to anticipate, the Secretary of State’s case that those provisions remained in effect for the entirety of the period of his detention. The Claimant accepts that they remained in force until the coming into effect of the new Iraqi Constitution on 20^th May 2006; but it is his case that they ceased to have effect as from that date.

As regards detentions by the British Army, the reviews required by section 6 (3) of CPA 3 were conducted by a body known as the Divisional Internment Review Committee (“DIRC”). The details of how this operated changed over the period with which I am concerned, but the following is a sufficient summary for present purposes. The DIRC comprised the General Officer Commanding (Multinational Division (South East)) (“GOC”); the Chief of Staff of the Division; the Policy Adviser to the GOC; the “Chief J2”, being a Lieutenant Colonel in the Intelligence Corps; and the “Commander Legal”, being a Lieutenant Colonel in the Army Legal Service. All save the Policy Adviser were senior serving officers. The Committee met at approximately monthly intervals. Its role as defined in its original terms of reference was to review all available evidence, intelligence and other paperwork associated with an internee’s original detention, as well as any subsequently-obtained information and any representations from the internee, in order to assess whether his continued internment was necessary “for imperative reasons of security in Iraq together with UK government policy and all other relevant circumstances”. From a date which is not entirely clear from the evidence but was no later than July 2006 the words from “together with” were omitted. Initially the role of the DIRC was to make recommendations to the GOC, who retained the power of decision; but from the same date as the revision of the terms of reference the decision became that of the Committee itself.

With the restoration of Iraqi sovereignty on 28^th June 2004 and the coming into force of CPA 3, a further procedure was put in place. As appears from section 6 (6) of CPA 3 (as revised), no security internee could remain in detention for longer than 18 months without the approval of a body known as the Joint Detention Committee (“JDC”). The JDC was established by CPA Order no. 99, issued on 27^th June 2004. Section 2 provides (so far as material) as follows:

The IIG shall be represented by the Prime Minister, the Minister of Defence, Interior, Justice, Finance, and the Director General of the Iraqi National Intelligence Service.

The MNF shall be represented by the Commander MNF-I, his Chief of Staff, the Deputy Chiefs of Staff for Operations, Intelligence and Logistics, the Staff Judge Advocate and the senior Theatre Commanders for the Military Police and the United States Corps of Engineers.

The task of considering particular cases under the 18-month rule provided for in section 6 (6) was delegated to a sub-committee called the Joint Detention Review Committee (“the JDRC”), whose function was specified to be “to review each application for continued detention of internees approaching their eighteen-month limit and recommend that the application be approved or denied”. The JDRC comprised six representatives of the Iraqi Government (one each from the Ministries of Interior, Human Rights and Defence and from the Office of the Prime Minister and two from the Ministry of Justice), together with three senior officers from the MNF.

In mid-2006, i.e. from about the time that the new Constitution came into force (though it is not suggested that there was any direct connection), a further body known as the Combined Review and Release Board (“the CRRB”) was established in order to address a concern expressed by the Prime Minister of Iraq that there was no direct Iraqi involvement in the DIRC process. The CRRB comprised six representatives of the Iraqi Ministries of Justice, the Interior and Human Rights and three British officers. It did not, however, have access to the full intelligence available to the DIRC and accordingly it was empowered only to make recommendations, which were put to the DIRC for consideration and ultimate decision.

None of the bodies described above operated a procedure under which an internee had a right to a hearing. Each, however, would entertain written representations from internees or matters raised by them with representatives of the Army legal branch, who paid regular visits to detention facilities.

The Claimant’s detention was the subject of regular monthly reviews by DIRC throughout the period until his release at the end of 2007. On 2^nd June 2006 the JDC, by its co-chairs (the Prime Minister of Iraq and General Casey), authorised his internment for a further period of eighteen months: presumably, although I have no express evidence to this effect, this reflected a recommendation by the JDRC. At a meeting of the CRRB in December 2006 a majority (comprising the Iraqi members) voted to recommend the Claimant’s release, but that recommendation was not accepted by the DIRC at its next meeting. A meeting of the CRRB in March 2007 (and possibly a further meeting in August 2007) unanimously recommended the Claimant’s continued detention.

At an early stage of the occupation the CPA promulgated Order no. 17, entitled “Status of the Coalition Provisional Authority MNF – Iraq, Certain Missions and Personnel in Iraq”, which provided, inter alia, for the MNF to enjoy immunity “from Iraqi legal process”. I do not have this Order in its original form; but, like CPA 3, it was revised immediately before, and in anticipation of, the resumption of Iraqi sovereignty on 28^th June 2004. Section 2 of CPA 17 (revised) provides (so far as material) as follows:

It is the Secretary of State’s case, and was common ground between the parties in Al-Jedda 1, that as a result of CPA 17 the Claimant is unable to bring any proceedings in the Iraqi courts against the British military authorities arising out of his detention.

The fundamental claim made by the Claimant is that his detention following the coming into force of the Iraqi Constitution on 20^th May 2006 was unlawful as a matter of Iraqi law. He contends that under the provisions of the Constitution any detention without judicial process was prohibited. The Secretary of State asserts that I should not be prepared to consider any issue as to the effect of the Iraqi Constitution, and he further contends that even if the Claimant is correct in his basic contention there are a number of other bases on which the claim must fail: see para. 32 below. Subject to those points, however, it is his contention that the Claimant’s detention was at all material times lawful under Iraqi law by reason of the provisions of section 6 of CPA 3. The Claimant accepts that that was the case prior to the coming into force of the Iraqi Constitution; but it is his case that CPA 3 lapsed as at that date, alternatively that in so far as it purportedly remained in force it was in fact inconsistent with the provisions of the Iraqi Constitution and was accordingly of no effect.

I should emphasise that the Claimant does not in these proceedings seek to impugn the exercise by the relevant authorities of their powers under CPA 3 if they existed. Specifically, while he strongly maintains that he is not in fact guilty of any of the suspected conduct which led to his detention, he nevertheless does not in these proceedings challenge the assessment of the DIRC, or the decision of the JDC, that his detention was “necessary for imperative reasons of security”; nor does he suggest that there was any failure properly to follow the procedures outlined at paras. 22-23 above. This is important. I am, as any Court would be, very concerned at a situation in which a British citizen – or indeed anyone – has been detained for over three years by British forces without charge or trial. But the issue before me is not whether such detention was in the case of the Claimant justified on the particular facts of his case but whether, as a matter of Iraqi law, it was capable of being lawful at all.

The further answers advanced by the Secretary of State can be summarised as follows. He contends:

Logically, there might be something to be said for dealing first with the points identified at para. 32, since as a matter of strict analysis they mostly go to jurisdiction rather than being defences in the strict sense. However, there is a degree of overlap between some of them and the substantive issue, and it will in practice be more convenient to consider that first. But, I ought at least to consider as a preliminary the Secretary of State’s point as to justiciability, since if it is correct I positively ought not to proceed to consider at all the position under Iraqi law. I will accordingly deal with the issues in the following order: (A) the justiciability of the position in Iraqi law; (B) the Claimant’s challenges to the validity of CPA 3; and (C) - the remaining issues outlined in para. 32 above.

JUSTICIABILITY

Mr. Swift submitted that there were two reasons why I ought to refuse to rule on the Claimant’s challenge to the validity of CPA 3 as summarised at para. 30 above. First, he submitted, to do so would involve a breach of the rules of comity. Secondly, the task would in any event be impossible because there existed no manageable standard by reference to which I could judge questions as to the meaning or effect of the Constitution of Iraq.

As regards the first ground, Mr. Swift relied principally on the decision of the Court of Appeal in Buck v Attorney General [1965] Ch 745. That was a case in which a number of citizens of Sierra Leone, which had in 1961 been granted independence from the United Kingdom by Order in Council, sought a series of declarations the effect of which was, as summarised by Harman LJ in the Court of Appeal (see at p. 767E), “that the Constitution of Sierra Leone … propounded by the statutory instrument is, insofar as the plaintiffs and their followers are concerned, void and of no legal validity”. Not surprisingly, the Court of Appeal refused to entertain the claim. Harman LJ said, at p. 768E:

I do not believe that the decision in Buck has any application to the present case. The issues which the Claimant seeks to have determined arise as part of a substantive claim for damages for what would be, if established, a very serious infringement of his rights. That is of course wholly different from the situation in Buck. All three members of the Court in that case acknowledged that the position would or might be different if the question as to the validity of the Constitution of Sierra Leone arose in the context of proceedings for substantive relief: see in particular the first paragraph of the passage from the judgment of Diplock LJ which I have set out above. I do not believe that considerations of comity prevent me from determining issues that are necessary for the resolution of a valid claim over which this court has unquestioned jurisdiction. Such a state of affairs would be particularly unsatisfactory if, as the Secretary of State claims, he enjoys an immunity in the courts of Iraq.

As regards the contention that there was no manageable standard by reference to which I could determine the issues raised by the Claimant, Mr. Swift relied principally on the speech of Lord Wilberforce in Buttes Gas and Oil Co. v Hammer (nos. 2 and 3) [1982] AC 888. At p. 937 Lord Wilberforce drew attention to a number of complex “inter-state issues and/or issues of international law” raised or implicitly raised by the pleadings – including, for example, the location of the boundary of the continental shelf as between three countries bordering the Persian Gulf, the lawfulness, as a matter of international law, of certain dealings between those governments and the UK Government and the motivations of the Ruler of Sharjah in entering into certain treaty obligations. He continued (at p. 938 A-C):

DID CPA 3 REMAIN LAW AFTER 20^TH MAY 2006 ?

The issues raised under this head depend on the meaning and effect of the Constitution of Iraq. I have been shown an interesting article reviewing in detail some aspects of the process by which the Constitution was drafted - Deeks and Burton Iraq’s Constitution: a Drafting History Cornell International Law Journal vol. 40, p. 1: the authors were legal advisers in the US Department of State and working in the US Embassy in Baghdad at the relevant time. But for present purposes I need only note that the drafting was primarily the responsibility of a Constitutional Committee, which produced a first published draft in June 2005; and that a final version was substantially settled, subject to approval by referendum, in October of the same year. The Committee was entirely Iraqi in its constitution, but it had a great deal of assistance from a variety of bodies and international experts, including experts in comparative constitutional law. The constitution is of course written in Arabic (though I understand that there is a parallel text in Kurdish). No official version in English exists, but I have been supplied with a translation published by the United Nations. (Footnote: ²)

Both parties adduced expert evidence as to the meaning and effect of the provisions of the Constitution which are in issue before me. The Claimant relied on a report from Dr. Jorg Fedtke, who is at present Professor of Comparative Law and Director of the Institute of Global Law at University College London (though he is about to take up a chair at Tulane University in New Orleans). He supplemented his report in oral evidence and was cross-examined. Prof. Fedtke is a very highly-qualified expert in comparative constitutional law, with (so far as relevant for present purposes) a particular specialist interest in the constitutional protection of human rights. He was among the experts who gave advice to the Constitutional Committee, under the auspices of the Office of Constitutional Support (which is part of the United Nations Assistance Mission for Iraq (“UNAMI”)). He has also served on a number of occasions as a legal expert for UN and EU funded projects on various aspects of constitutionalism in the Arab region. He was a careful and frank witness, and both his written report and his oral evidence were admirably clear and succinct. The Claimant also put in evidence shortly before the hearing (without objection) two declarations from Zyad Saeed, a practising Iraqi lawyer with international law qualifications: these were largely concerned with other issues but one of them bore tangentially on the issue of the status of CPA 3.

The Secretary of State relied on evidence from two experts. The first, Dr. Jonathan Morrow, is not an academic or practising lawyer: indeed his doctorate is not in law. He is however qualified as a legal practitioner of the Supreme Court of New South Wales and he gained experience in constitutional drafting as one of the legal advisers to the United Nations Transitional Administrator in East Timor. With the benefit of that experience, he also acted as an adviser to the Judicial Reform Commission of the Government of Afghanistan on constitutional questions and to the Kurdistan Regional Government in connection with the negotiation of TAL. In 2005 and 2006 he advised the US Congressional think-tank, the United States Institute of Peace, on issues arising out of the drafting of the Iraqi Constitution; and in that capacity he spent most of the summer of 2005 in Baghdad and had considerable contact with the Constitutional Committee and its advisers. He too gave oral evidence before me. He is not an academic lawyer of the eminence of Prof. Fedtke; but he clearly had relevant expertise and I found his evidence useful. Dr. Morrow annexed to his report a short opinion addressed to the present issue from a second expert Sermid Al-Sarraf, who is a lawyer with both Iraqi and US qualifications.

I have found the expert evidence helpful; but the actual issues which I have to consider are such that I need not be as wholly dependent on it as an English judge generally is when having to decide issues of foreign law. No doubt as a result of the substantial input of comparative lawyers, the concepts (particularly in those aspects relating to human rights) and drafting techniques used in the Constitution of Iraq are not unfamiliar to an English lawyer, particularly since the incorporation into our law of the European Convention on Human Rights, and do not require a uniquely Iraqi perspective in order to be understood. Nor in any event were either Prof. Fedtke or Dr. Morrow experts in Iraqi law as such. I do however remind myself that I must consider the provisions of the Constitution as an aspect of Iraqi law and as they would fall to be interpreted by an Iraqi court.

The structure of the Constitution can be briefly summarised as follows:

The Claimant’s case under this head is threefold:

He submits that all CPA legislation lapsed on the coming into effect of the Constitution.

He refers to the provisions of the Constitution prohibiting detention without judicial process and submits that, although article 46 permits a degree of derogation from the rights and liberties protected by the relevant section of the Constitution, no such derogation is possible where it would “violate the essence of the right”.

He submits that CPA 3 has its origin in Security Council Resolution 1546 but that that constituted an international agreement which required to be, and was not, ratified by the Council of Representatives.

THE TRANSITIONAL PROVISIONS IN THE CONSTITUTION

Article 130 of the Constitution of Iraq reads as follows:

I do not accept that submission. If article 130 is read by itself its terms seem to me clear. Laws promulgated by the CPA are “existing laws”, notwithstanding their special origin. I accept that if it is read alongside article 26 of the TAL the difference in the drafting inevitably raises the question whether a difference in effect may have been intended. But I see no reason why that exercise should be undertaken. A Constitution – of all documents – should be treated as free-standing and not require to be construed by reference to its predecessors. Perhaps if there were a patent ambiguity in its terms it might be appropriate to have regard to the language of the TAL; but there is no such ambiguity here. In those circumstances I can see no justification for trying to cast doubt on the straightforward language of article 130 by reference to the different drafting approach taken in another piece of legislation. I would add that even if the exercise were legitimate it is not the case that the only possible reason for the difference in drafting between article 130 of the Constitution and article 26 of the TAL is an intention that CPA legislation should cease to have effect. The TAL was produced by a different body in different circumstances (Dr. Morrow’s evidence was that the TAL was largely drafted by American lawyers) and it is not safe to infer that those responsible for the drafting were consciously using similar techniques. There would be nothing inherently surprising in the drafters of the TAL having thought it appropriate to make specific provision for CPA law, for the avoidance of doubt, while those drafting the Constitution were content with a single comprehensive reference to existing law.

My conclusion on this point is reinforced by consideration of the practical consequences of the Claimant’s submission. It was the undisputed evidence of Dr. Morrow and Mr. Al-Sarraf that Orders were promulgated by the CPA covering a wide range of matters requiring regulation for which no alternative provision was made either by the Interim Government or in the Constitution. These included: legal immunity for the MNF and other foreign personnel (CPA 17); the criminal court system (CPA 13); “investment law” (CPA 39); the regulation of companies (CPA 64); the structure of local government (CPA 71); and the system of public financial management (CPA 95). It cannot have been the intention that those Orders should simply lapse with effect from 20^th May 2006, leaving the areas in question bereft of legal regulation. And in fact Dr. Morrow and Mr. Al-Sharraf gave a number of specific examples of legislation enacted since the coming into force of the Constitution which expressly repeals or amends CPA legislation: that only makes sense on the basis that the legislation in question remained in force until repealed. They also referred to examples of decisions of the Iraqi Federal Court of Cassation following 20^th May 2006 which have proceeded on the basis that CPA legislation remains in force. I do not regard these points as decisive, since it is clear that there is a still a fair amount of confusion in the Iraqi legal system, and it may also be among legislators, about the changes of the last few years; and the ultimate question must be what the law would be held to be by the Supreme Court of Iraq. But the examples given by Dr. Morrow and Mr. Al-Sharraf illustrate the difficulty of the situation that would obtain if the Constitution had effected the wholesale abolition of all CPA legislation. (Footnote: ³)

I am also interested to observe that it appears to be the view of Deeks and Burton that the “existing laws” validated by article 130 of the Constitution included those promulgated by the CPA (see p. 27 of their article referred to above, in the particular context of the de-Ba’athification legislation) and that a Congressional Research Committee reached the same view in the context of the immunities granted by CPA 17.

DOES CPA 3 VIOLATE THE ESSENCE OF THE CLAIMANT’S CONSTITUTIONAL RIGHTS ?

The Claimant relies on two provisions forming part of Section 2 of the Constitution. These are as follows:

There is clearly a substantial degree of overlap between those provisions, but I need not try to analyse the rationale for such differences as there may be: it is common ground that on the face of it the Constitution prohibits detention without judicial process. The real question is the extent, if any, to which that right is derogable. So far as that is concerned, the relevant provision is article 46, which reads as follows:

In view of my conclusion on the first issue, the restriction on the Claimant’s right not to be detained without judicial process is plainly effected by law, namely CPA 3 and CPA 99. The question therefore is whether detention in accordance with the regime established under that law, as implemented after 20^th May 2006, “violates the essence of the right”. As to that, the competing contentions of the parties can be summarised as follows:

I have to decide which of those submissions represents Iraqi law. Neither of the Iraqi lawyers from whom I have opinions expresses a view on that issue. The evidence of Prof. Fedtke and Dr. Morrow is avowedly from a comparative law perspective; but in fact neither of them seeks to support their argument by direct reference to any relevant judicial decisions or academic commentary on the effect of similar provisions appearing in other constitutions or bills of rights, and their views are based essentially on arguments that do not require any comparative law expertise. I should add that I was told that nothing in the nature of travaux preparatoires survives. I was given, particularly in the evidence of Dr. Morrow, a certain amount of material about episodes in the drafting history which might reflect on the intentions of some of those involved in the drafting process; but it is clear that the drafting process was highly complex, with many different political interests involved and many compromises required, and I accept Prof. Fedtke’s contention that it is unsafe to try to ascertain some common intention on the part of the draftsman from extraneous evidence of this kind.

I have not found this question easy, but on balance I believe that Mr. Swift’s submissions are to be preferred. As a matter of purely verbal analysis, the argument for the approach taken by Prof. Fedtke, and in reliance on him by Mr. Hermer, is powerful. But a purely verbal approach may not be appropriate. In the first place, I must bear in mind that I am dealing with a translation: I do not know if the phrase “the essence of the right” has quite the same meaning as the original Arabic. That objection may have less force if, as Prof. Fedtke says, the drafters were consciously adopting a provision found in other constitutions (Footnote: ⁴); but some caution is nevertheless necessary. In any event, even if the translation is accurate, bills of rights of this character are often interpreted by the spirit as much as by the letter, and I regard Mr. Swift’s approach, treating the “essence” of a right as requiring to be established by reference to its underlying purpose rather than by verbal analysis, as perfectly arguable. I think that it is more likely to be the correct approach in the present context, for the following reasons:

I regard it as inherently unlikely that the Constitution was intended absolutely to outlaw detention without judicial process, whatever the circumstances. It is, I believe, generally accepted in modern states which recognise the rule of law that in certain exceptional circumstances justifying the adoption of emergency powers such detention may be legitimate. The 1996 Constitution of South Africa, for example – to which Prof. Fedtke referred as a particularly well-respected modern constitution – provides (at article 37) for the declaration of a state of emergency in circumstances where “the life of the nation is threatened by … general insurrection [or] disorder”. In such a case the rights provided for in the bill of rights which forms part of the Constitution may be suspended, save for certain specified rights which are non-derogable: those rights do not include the right not to be detained without judicial process. There are essentially similar provisions in the Constitution of East Timor: see section 25. The most familiar example to an English lawyer is article 15 (1) of the European Convention of Human Rights, which provides that:

It is in my view particularly unlikely that the Constitution of Iraq was intended absolutely to outlaw detention without judicial process given the circumstances prevailing at the time of its adoption. The security situation remained grave. Terrorism was a serious threat to the lives and security of Iraqi citizens, and the obligation of the state to combat it was expressly recognised in article 7 (2) of the Constitution. The MNF had been specifically invited to “undertake a broad range of tasks to contribute to the maintenance of security … [including] internment where this is necessary for imperative reasons of security” (see the exchange of correspondence referred to at para. 17 above), and that invitation had been endorsed by para. 10 of Security Council Resolution 1546: “internment” connotes detention without judicial process, and in any event the MNF was known to be applying procedures based on Geneva 4. It would be surprising if the Constitution were intended to undermine what was at that time, and was likely to continue to be, regarded by the Government as a necessary weapon in the fight against terrorism, and, more specifically, one whose use had been requested by the Iraqi Government and endorsed by the Security Council.

Article 46 appears to be the only provision which confers a power of derogation which could potentially permit non-judicial detention, whether by the MNF or by any other duly authorised body. Article 61 (9) provides for the declaration by the Council of Representatives of a state of emergency, under which the Prime Minister shall enjoy “the necessary powers … to manage the affairs of the country during … the period of the state of emergency” in a manner “regulated by a law in a way which does not contradict the Constitution”; but – unlike, for example, the equivalent provisions of the South African Constitution - it does not specifically address the question of derogable and non-derogable rights in the case of such an emergency.

I should mention another argument which I canvassed with Prof. Fedtke in the course of his evidence. He appeared to accept that art. 46 recognised a power of derogation from the rights and liberties granted in section 2, provided that the essence of the right were not violated. Yet if his approach were correct there would be no room for any such “non-essential aspects” of the right not to be detained without judicial process, and the power of derogation would be without content. He accepted that that was the case as regards these particular rights: as he put it in a picturesque metaphor, they had no “courtyard” and were all core. But he said that that was not the case for all the rights contained in section 2. I think that must be correct: without condescending to particulars, it is possible to identify at least some “section 2 rights” whose apparently absolute terms could be qualified without directly contradicting their explicit language. But in the course of argument he acknowledged that an “essential content” provision of the type under consideration is “difficult and challenging to apply”. That was in my view a characteristically fair recognition that distinguishing between what is and is not “essential” requires an exercise of judgment such that different answers might be given by the courts of different countries. That gives me some reassurance that the importance which I attach to the circumstances prevailing in Iraq at the time of the adoption of the Constitution is not inappropriate.

I have thus far addressed only the question whether the Constitution imposes an absolute prohibition on detention without judicial process. The question whether the particular regime applied to the Claimant over the relevant period – i.e. the regime provided for by CPA 3, as modified by CPA 99 - sufficiently respects the essence of the underlying right is analytically distinct. But I believe that the answer to that question follows from the reasoning which I have adopted in answering the first. The regime in question is essentially the regime endorsed by resolution 1546. It reflects international standards as prescribed by Geneva 4: those standards are of course framed for war-time conditions, but it is not unreasonable, if internment is to be permitted at all, to apply them by analogy in a situation of insurrection or other serious civil unrest. Although there was no judicial process, the decision to detain the Claimant was the subject of regular reviews by an appropriate committee, with, from July 2006, the endorsement of the co-chairs of the JDC, the involvement of the CRRB and subject to an eighteen-month limit. I do not believe that an Iraqi Court which had held that there was a power to detain without judicial process would have found the particular form of process adopted inadequate to protect the “essence” of the constitutional rights.

I have in the foregoing paragraphs referred to the power to declare a state of emergency. I should make it clear that my reasoning does not depend as such on whether a state of emergency was at the material times in place in Iraq. I was told in the course of the oral evidence that that was in fact the case, but none of the expert evidence relied on it and I was given no details. The question is relevant only in so far as it establishes that there is nothing surprising in a modern constitution permitting detention without judicial process.

RATIFICATION

Articles 61 (4) and 73 (2) of the Constitution of Iraq contain provision for the ratification of “international treaties and agreements”. Their relationship and effect is not entirely clear, but it is clear at least that such ratification requires the enactment of a “law” passed by the Council of Representatives. That was not the position under the TAL, which gave the Transitional Government “power to conclude binding international agreements”. It is the Claimant’s contention:

that Security Council resolutions constitute international agreements within the meaning of those articles;

that, while Security Council resolutions 1546 and 1637 may have been binding because they were concluded prior to the coming into force of the Constitution, resolution 1723 did not receive the necessary ratification; and

that since CPA 3 derives its force from the Security Council resolutions it ceased to have the force of law from November 2006, being the date that resolution 1723 replaced 1637.

It is clear that no law was passed by the Council of Representatives purporting to ratify Security Council 1723 (Footnote: ⁵), and element (b) in the Claimant’s case is thus plainly satisfied. But I do not believe that either element (a) or element (c) withstands examination. Specifically:

I accordingly conclude that CPA 3 (revised), as modified by CPA 99, remained effective as part of Iraqi law throughout the period of the Claimant’s detention; and it follows that the claim falls to be dismissed. Strictly, I need not consider the further answers relied on by the Secretary of State. I should nevertheless do so in case the matter goes further.

Postscript. Following the conclusion of argument, the Divisional Court decided the case of R (Al-Saadoon) v Secretary of State for Defence and its decision was upheld, on an expedited appeal, by the Court of Appeal ([2008] EWHC 3098 (Admin) and [2009] EWCA Civ 7). I received a letter from the Treasury Solicitor advising me that questions about the effect of CPA 3 and CPA 17 had been raised in the course of submissions in Al-Saadoon and that the judgment of the Court of Appeal might contain material of relevance to the issues before me: I had in fact by that time completed the drafting of this part of the judgment. The judgment of the Court was handed down on 21^st January 2009. I have read it with care, but in the event it contains nothing which bears on my reasoning or on which I have felt it necessary to call for further submissions. Although the question whether CPA 3 and CPA 17 remained in force after May 2006 was raised in the Divisional Court, it was held that it was unnecessary to determine it; and in the Court of Appeal the case proceeded on the basis that they did without any argument to the contrary. (This conclusion is in accordance with the submissions in a letter to me from the Claimant’s solicitors dated 3^rd February 2009, but I had in fact already reached it before receiving that letter.)

THE SECRETARY OF STATE’S FURTHER ANSWERS

As identified at para. 32 above, the Secretary of State advances three other answers to the claim. I will consider them in the following order – (1) the effect of the immunity granted by CPA 17; (2) public policy; and (3) act of state.

THE EFFECT OF IMMUNITY

As noted at para. 28 above, CPA 17 purports to render the MNF “immune from Iraqi legal process”. The Claimant contends that that immunity has lapsed as from 20^th May 2006, for essentially the same reasons that he contends that CPA 3 is no longer effective. I have already rejected that argument. In my judgment CPA 17 has at all material times remained in force and the Secretary of State would be immune from suit if the present claim were brought against him in an Iraqi Court.

It is the Secretary of State’s case that it follows that the present proceedings must fail. He relies on section 9 (4) of the 1995 Act, which provides that:

The starting-point is that section 2 (1) of CPA 17 does not say that members of the MNF shall be immune from all liability: it says only that they shall be immune “from Iraqi legal process”. What is more, sub-sections (2) and (3) provide that they shall respect relevant Iraqi laws and be “subject to the exclusive jurisdiction of their Sending States”. While the latter provision cannot as such create a jurisdiction which would not otherwise exist, it reflects a clear intention that liability for any wrong shall not be extinguished but simply that it cannot be enforced in Iraq. That is what one would expect. It was entirely legitimate for the CPA to be concerned that members of the MNF (and the other categories of person to whom the Order applied) should not have to face prosecution or civil suit in the Iraqi courts. Quite apart from the risk of ill-intentioned or harassing proceedings, it could readily be perceived as wrong that they should be exposed to proceedings in a system with which they had no familiarity and in which they might have little faith: members of an armed force operating pursuant to a UN mandate are not in the same position as ordinary visitors who must expect to be the subject of the jurisdiction of a foreign country whose territory they enter. But that legitimate concern does not justify a blanket exclusion from liability even in their home courts.

If, therefore, CPA 17 is indeed intended only to create immunity from suit in the courts of Iraq and not a total immunity – what Mr. Saeed described as “a procedural bar to prosecution” - can a wrongful act to which it applies properly be described as an “actionable tort” within the meaning of section 9 (4) ? The question does not appear to be the subject of any authority, and it is not altogether straightforward. I see no difficulty in describing a wrongful act for which the wrongdoer can be sued in jurisdiction A but not jurisdiction B as a tort, even if jurisdiction B is the jurisdiction whose law is the applicable law: a wrong is a wrong, even if there are limitations on how a remedy may be sought. But the word “actionable” is more problematic: it might be thought that it was used precisely in order to specify that the alleged wrongdoer should be capable of being sued in the jurisdiction whose law applies. On balance, however, I think that that is to read too much into it. There is nothing in the statutory context, or – so far as I am aware – in the legislative history, to suggest that Parliament had the present situation in mind (Footnote: ⁷). I can see no reason of policy why the victim of a prima facie wrong should be deprived of the chance to pursue a remedy in a case of this kind: indeed on the face of it, it would be a plain injustice, and I should be reluctant to adopt a construction which had that effect. (The position would of course be different where, unlike in the present case, the immunity in question were plainly intended to effect a total immunity from liability.) In my view it is legitimate to read the phrase “actionable tort” as meaning a tort on which the claimant could bring an action, without specific reference to an action in the jurisdiction from which the applicable law derives.

Mr. Swift submitted that the distinction on which Mr. Hermer relied was too subtle, and that there was no difference in substance between “no liability” and “no right to bring proceedings”. That would be a good point if the intended effect of the immunity in question were to extinguish the right to bring proceedings in any jurisdiction; but the peculiar feature of the present situation is that that is not, as I find it, the intended effect of CPA 17.

I reach this conclusion without reluctance. If Mr. Swift’s submission were correct the result would be that persons injured even by the plainest wrongful action on the part of members of the British Army, as part of the MNF, could have no remedy even in the courts of this country. That would be seriously unjust. It was clearly the understanding of the Court of Appeal in Al-Jedda 1 that the English Courts would be entitled to decide whether the Claimant’s detention was unlawful as a matter of Iraqi law and to grant an appropriate remedy. At para. 108 of his judgment Brooke LJ said (at p. 657 D-E):

Mr. Hermer in fact went further and sought to demonstrate that in R (Al-Skeini) v Secretary of State for Defence [2008] 1 AC 153 the Secretary of State had in his submissions both to the Court of Appeal and to the House of Lords positively asserted that a claim in tort against members of the British Army, arising out of their actions as part of the MNF, could be brought in the English courts; and that both the Court and the House had expressly accepted that contention. But the present issue had not arisen, and I do not consider it profitable to seek to unpick the precise nature of the submissions made or their implications.

INCONSISTENCY WITH INTERNATIONAL LAW

Section 14 (3) of the 1995 Act provides (so far as material) as follows:

The foundation of Mr. Swift’s argument on this issue was that, as noted at para. 3 above, the House of Lords has held in Al-Jedda 1 that the detention of persons for imperative reasons of security, and specifically of the Claimant if such reasons applied in his case, represented a positive obligation of the United Kingdom as a matter of international law. The fullest reasoning on that aspect of the decision appears in the speech of Lord Bingham at paras. 31-35 (pp. 351-3); but for present purposes it is sufficient if I quote the more summary reasoning of Lord Brown. Having dealt with a separate argument with which we need not be concerned, he said (at p. 383 C-G):

Mr. Swift submitted that it followed that to apply Iraqi law so as to render the Secretary of State liable for the Claimant’s detention would conflict with principles of public policy, within the meaning of section 14 (3) (a) (i). He submitted that it was self-evidently contrary to public policy for the Government to be held liable for acts which constituted the discharge of its international law obligations. He relied on the Kuwait Airways case (above), where the House of Lords refused to recognise a provision of (as it happens) Iraqi law permitting the expropriation of the assets of Kuwait Airways – “resolution 369” – following the Iraqi invasion of Kuwait in 1990. The House held that since the annexation of Kuwait was a clear breach of international law it would be contrary to public policy to recognise legislation deriving from it: see, in addition, to the passage from the speech of Lord Nicholls cited at para. 37 above, the speeches of Lord Steyn at para. 114 (pp. 1101-3) and Lord Hope at paras. 135-140 (pp. 1108-9). Lord Steyn concluded his discussion by saying (at p. 1103 B-D):

In my view that submission is well-founded. I recognise that the circumstances in the Kuwait Airways case were far from identical to those of the present case. If – as I must assume at this stage of the argument – the coming into force of the Iraqi Constitution rendered unlawful the exercise of the powers of detention without judicial process previously exercised under CPA 3, that is not a flagrant breach of international law in any way comparable to the invasion of Kuwait: indeed it could be said to be a restoration of internationally-recognised principles of the rule of law. Lord Steyn at least was careful to reserve his position as to whether every breach of international law would necessarily “trigger the public policy exception” (see at p. 1102 F); and he emphasised the flagrancy of the breach in question and degree of international consensus about it. This consideration may be balanced by the fact that, as appears from the discussion under head (B) above, there is on any view considerable uncertainty as to whether the Constitution on its true construction has the effect for which the Claimant contends. But in the end the inescapable fact is that if the Claimant’s case under Iraqi law is well-founded the Secretary of State will be liable for carrying out an act which, as the House of Lords has held, constituted an obligation of the United Kingdom as a matter of international law. I do not see how such a result can be consistent with public policy.

Mr. Hermer submitted that there was no real inconsistency between the position as he claimed it to be under the Iraqi Constitution and the United Kingdom’s obligations under the Security Council resolutions, since the resolutions did not as such require the MNF to dispense with judicial process. I do not accept that. It is perfectly plain that the “internment where … necessary for imperative reasons of security” referred to in the letter from the US Secretary of State annexed to resolution no. 1546 means detention without judicial process. The House of Lords in Al-Jedda 1 proceeded on that basis: if it had not, it could not have held that article 5 (1) of the Convention was over-ridden by the United Kingdom’s obligations under the UN Charter.

Mr. Hermer also contended that it was not open to the Secretary of State to seek to rely on section 14 (3) (a) (i) when it had been his case in Al-Jedda 1 that Iraqi law was the applicable law, and that case had been accepted by both the Court of Appeal and the House of Lords: his argument under this head effectively contradicted that stance and it was an abuse of process for him to pursue it. I do not agree. The only issue argued in Al-Jedda 1 (on this aspect) was whether the general rule in section 11 of the 1995 Act was displaced by section 12 so as to entitle the Claimant to maintain his claim in English law. The decision was that it was not. By taking the stance that section 12 did not apply the Secretary of State cannot be taken to have abandoned such other points as might be open to him if Iraqi law were prima facie the applicable law. However Mr. Hermer’s underlying submission was that the House of Lords would have been troubled if it had appreciated that the effect of its decision was to leave the Claimant with no potential recourse against the Secretary of State arising out of his detention. But that assumes that it is axiomatic that the Claimant should be entitled to relief in the English courts under Iraqi law if English law does not apply. That is not necessarily the case. On the contrary, if the Secretary of State was indeed acting pursuant to an international law obligation it would be prima facie surprising if the English court was obliged to find him liable. (Footnote: ⁸) Whether that is the case depends on a consideration of the act of state rule, to which I therefore turn.

ACT OF STATE

The fullest discussion of the concept of “act of state” is to be found in the decision of the House of Lords in Attorney-General v. Nissan [1970] AC 179. The speeches emphasise that the phrase is often used loosely and in different contexts, and while the members of the House were critical of definitions to be found in the authorities they were reluctant to propound any alternative definition. For present purposes the most useful starting-point is a passage from the speech of Lord Wilberforce (at p. 231 A-G):

As for how far the rule goes, it is clear that, despite the width of the phrase “in the sphere of foreign affairs” (or of Prof. Wade’s earlier “definition” quoted by Lord Wilberforce “in the course of [the Crown’s] relations with another state”), not every act of policy done by the Crown abroad is an act of state. On the contrary, the rule is confined to acts of a character such that it would be wrong in principle for the court to seek to adjudicate on them. That appears from the decision in Nissan itself, though the decision is less helpful in providing an easily applicable criterion for identifying the boundary between justiciable and non-justiciable. In Nissan British forces taking part (pursuant to treaty obligations) in a peace-keeping operation in Cyprus at the request of the Government of Cyprus took over a hotel near Nicosia belonging to the plaintiff to use as a base. The majority of the House held that that act was not of such a character as to attract the operation of the rule. Although the reasoning in the various speeches is broadly the same, it is not identically expressed, and I think I should set out the relevant passages in full. Lord Morris said at pp. 216-7:

I start from the position that the decision to contribute British forces to the MNF was plainly an act of state. It is true that it was not undertaken pursuant to a specific prior treaty obligation, but, as Lord Pearson points out, that is not of the essence: it was quintessentially a policy decision in the field of foreign affairs. The question thus is whether the Claimant’s internment by those forces had, in Lord Wilberforce’s phrase, a sufficiently close “link” with that act. The answer to that seems to me to be inescapable. Internment was a specific part of the task which the MNF was invited by the Government of Iraq, and mandated by the Security Council, to undertake. Indeed, as discussed above, internment where necessary for imperative reasons of security constituted a positive obligation on the United Kingdom (once it accepted the invitation to contribute to the MNF): although the act of state rule might apply even in the absence of such an obligation, its justification is clearer in such a case. In my judgment it must follow that individual acts of internment were, in Lord Morris’s phrase, done “in performance of” the original decision to contribute forces, or, in Lord Wilberforce’s, had a sufficiently “close” link with that decision. In Lord Pearce’s language, acts of internment were not a “subsidiary matter”, any more than straightforward military operations were: they were part of the obligation which the United Kingdom government had accepted. Put as simply as possible, it had been asked by the Iraqi government (and the United Nations) to intern people on its territory in certain specified circumstances.

It is true that while there might be a general obligation to exercise powers of internment there was no specific explicit obligation to intern the Claimant, and I note the observations in the speeches – most notably in that of Lord Wilberforce – about the inappropriateness of characterising as acts of state a plethora of individual discretionary decisions undertaken by military personnel. But the context of those observations was different. What the House was concerned with in Nissan was the procuring of shelter and accommodation for troops. Such facilities do not require to be obtained in a manner which infringes the rights of individuals - see in particular the speech of Lord Pearson – and any such infringement cannot therefore be said to be a necessary part of the operations. (Footnote: ⁹) Internment is a different matter. It necessarily involves an infringement of the rights of others; and it was, as I have said, an essential part of the obligations undertaken. In that context the fact that the detention of the Claimant was, inevitably, the result of an individual decision makes no difference. Suppose I had been concerned with judgments about battlefield operations, which are generally regarded as the paradigm of an act of state (at least of the kind with which we are concerned here): the decision whether to destroy or occupy this or that building or to bomb this or that facility will necessarily be “discretionary”, but it cannot for that reason become justiciable.

I turn to the second area of uncertainty identified by Lord Wilberforce, namely whether the act of state defence is available in a claim brought by a UK citizen as a result of acts done by the Crown outside the jurisdiction. It was common ground before me that this is a point on which there is no decisive authority. It was fully argued in Nissan because the plaintiff, i.e. the owner of the hotel, was a British subject. Lord Reid, who was alone in holding that the acts complained of had, or might have, the character of acts of state, nevertheless concurred with the majority as to the result because he held, after a very full review of the authorities (see pp. 207-213) that “a British subject … can never be deprived of his legal right to redress by any assertion by the Crown or decision of the court that the acts of which he complains were acts of state” (p. 213 C-D). But that was a minority ratio, and although all the other members of the House considered the point, in varying degrees of depth, they explicitly declined to decide it. Further, Lord Morris and Lord Pearson at least drew attention to some real difficulties with the proposition accepted by Lord Reid (see at pp. 221 C-E and 240 D-G); and Lord Wilberforce, after an equally full review of the authorities (see pp. 231-5), said (at p. 235 D-F):

The only textbook authority on the point to which I was referred was Wade and Forsyth on Administrative Law (9^th ed.), at pp. 838-840. The authors express the view that, in a case where the defence is genuinely available, it should be available even against a British subject. They say, at p. 840):

I am therefore in the invidious position of having to choose between opposite views of the law held by, on the one hand, Lord Reid and, on the other, Lord Wilberforce. Important as the point is, I see no value in my setting out in extenso in this judgment the passages containing their reasoning, and still less in reviewing the many cases or expressions of publicist opinion which they considered but which they agreed did not constitute binding authority. I have come to the conclusion that Lord Wilberforce’s view is to be preferred. My essential reason is that, if the true basis of the rule with which we are concerned is that acts done by the Crown abroad in the conduct of foreign relations are of their nature not cognisable in the English courts, I can see no reason of principle why the position should be any different where the person injured happens to be a British citizen: the nature of the act is the same. As Lord Pearson pointed out (see p. 240 E) there would be remarkable anomalies if the same act had fundamentally different consequences depending on the accident of the nationality of the person injured:

I of course see the attraction of the robust statements in the authorities relied on by Lord Reid, such as that quoted from the speech of Lord Cave in Johnstone v. Pedlar [1921] 2 AC 262 (at p. 295) that “between Her Majesty and one of her subjects there can be no such thing as an act of state”. But those statements were made in the context of cases where the present issue did not arise. Like Wade and Forsyth, I see a fundamental difference between acts done within the jurisdiction of the Crown, where the subject is indeed entitled to expect to be protected by the Courts of this country against unlawful executive action, and the position as regards acts abroad, where no such expectation arises. This point was made, albeit in somewhat cautious terms, by Lord Wilberforce at p. 235 B-D in his speech in Nissan, where he said this:

Mr. Hermer raised a number of counter-arguments. Some are addressed in the reasons which I have given above. I deal with the remainder as follows.

First, he submitted that it would be an abuse for the Secretary of State to be able to rely on the defence of act of state. It had not been pleaded in Al-Jedda 1. Nor was it pleaded in Al-Skeini (above), which concerned whether the families of Iraqis killed in the course of operations by British forces in Iraq in the course of 2003 were entitled to an inquiry under article 2 of the Convention. I agree that it could have been raised in Al-Jedda 1, though not necessarily in Al-Skeini, but I cannot see that the fact that it was not gives rise to any injustice.

Secondly, he submitted that since the Claimant was being held by British forces in a detention facility which was at all material times within British control he was in fact within the jurisdiction of the English courts, with the result that the act of state doctrine did not apply. He relied on the decisions in R v Secretary of State for Home Affairs (ex p. O’Brien) [1923] 1 KB 361 and Al-Skeini. In O’Brien the applicant for a writ of habeas corpus had been unlawfully arrested in England and transported to a prison in Ireland, which had by that date become an independent sovereign state. The Court of Appeal held that there was sufficient evidence that the Home Secretary might be able to procure his return by a request to the Irish authorities to justify the issue of the writ: although the applicant was not in his actual custody he had a degree of de facto control. That is of course very different from a finding that Ireland was within the jurisdiction of the English courts. In Al-Skeini it was conceded that art. 1 of the Convention imposed obligations on member states to observe the terms of the Convention not only within their territories but, exceptionally, in places outside those territories where they enjoyed a degree of control broadly equivalent to full governmental rights, which included military detention units. The House of Lords accepted the concession as correct, and on that basis the family of one of the deceased who had been killed at such a unit was held to be entitled to bring proceedings under the Convention: this was the shocking case of Baha Mousa. (Footnote: ¹⁰) I will assume, since the contrary was not argued before me, that the same concession should apply to the period with which I am here concerned, notwithstanding the restoration of Iraqi sovereignty, though I am not in fact sure that that is the case. But even on that basis Al-Skeini is, of its nature, concerned only with the specific question of the territorial reach of the Convention (to which the reach of the 1998 Act was held to correspond). It does not alter the position in any other respect. There is no rule at common law that the fact that British forces in the course of their operations abroad may on a temporary basis gain de facto control of a particular location brings that location within the jurisdiction of the Crown or of the English courts.

Thirdly, he submitted that it would be “quite extraordinary” if a British citizen detained by British forces abroad “could not claim in the English courts that his detention was unlawful”; and that such a conclusion would have “very worrying implications for the accountability of the British military acting overseas in peace time”. I believe that this overstates the effect of the Secretary of State’s submission. If the act of state rule applies it would mean that the Claimant, or other British citizens in his position, would not be entitled to complain of security detention effected in accordance with Security Council resolution 1546. But it would not prevent any claim based on an allegation of wrongdoing otherwise than as so required - for example, where the procedures under Geneva 4 were not observed or where the claimant was ill-treated. I was not addressed on the limits of the act of state defence in cases of the use of force (other than detention) by British military personnel; but it would plainly be unavailable in cases of wanton or unjustified violence. I thus do not think that the spectre of unaccountability can fairly be invoked. In his speech in Al-Skeini (at para. 26), Lord Bingham, having held that the Human Rights Act 1998 (and thus the Convention) had no application (Footnote: ¹¹), continued

Fourthly, Mr. Hermer sought to rely on article 6 of the Convention. He submitted that if the defence of act of state were recognised the Claimant would be denied access to any court for the determination of his civil rights. He referred to Al-Adsani v. United Kingdom (2002) 34 EHRR 11 and Al-Moayad v. Germany (2007) 44 EHRR SE22. I will again assume that the Convention, and thus the 1998 Act, extend to the Claimant’s detention notwithstanding that it occurred in Iraq. Mr. Swift submitted that the effect of the act of state rule was not to restrict the Claimant’s right of access to a Court but to prevent any right accruing as a matter of substantive law and that accordingly article 6 could have no application. Mr. Hermer responded that since the rule operated by rendering certain acts non-justiciable it could not be characterised as affecting the substantive law. I doubt if that is correct. I am not sure that there is an analogy between the non-justiciability recognised by Lord Wilberforce’s “second rule” and the rule or practice of sovereign immunity which was under consideration in Al-Adsani. I think that the effect of the act of state rule can properly be regarded as defining the extent of substantive rights rather than granting an immunity or imposing a procedural bar. But in any event it seems to me that the reasoning of the House of Lords in Al-Jedda 1 discussed at para. 69 above applies equally, albeit by extension, to the present case. If the Claimant’s detention was effected pursuant to an international obligation I do not see how it can be a breach of article 6 to deny him access to the courts to complain of that detention: the basis of the decision in Al-Adsani was that the sovereign immunity rule was justifiable because it reflected generally recognised rules of public international law (see para. 56).

For the reasons given above I would hold that even if the Claimant’s detention was unlawful as a matter of Iraqi law it is non-justiciable in the English courts. Either of the arguments advanced under heads (2) and (3) would suffice for the Secretary of State’s purposes, though there is in fact a considerable overlap between them. I repeat, in order to avoid any possible misunderstanding, that I am concerned here only with the challenge to the lawfulness of the Claimant’s detention as such. My reasoning would not prevent the English court adjudicating on any claim, for example, that the requirements of CPA 3 or CPA 99 were not satisfied or that British forces were guilty of ill-treatment in the course of his detention.

By an application dated 3^rd December 2008 the Claimant applied for permission to re-amend the Particulars of Claim in two quite distinct respects. The first was to plead certain arguments about the validity of CPA 3 derived from the evidence of Prof. Fedtke. The Secretary of State did not oppose the amendments in question, and I have dealt with the issues raised by them in the course of my judgment above.

The more significant and substantial proposed re-amendment sought to introduce a claim for damages, under s. 7 (1) of the Human Rights Act 1998 and/or under Iraqi law, for mistreatment said to have been suffered by the Claimant in the course of his detention. This case is trailed at para. 2(A) of the draft Re-Amended Particulars of Claim and pleaded substantively at paras. 6(A) to 6(J). Para. 6(A) begins as follows:

During his detention, the Claimant suffered inhuman and degrading treatment in breach of Article 3 of the European Convention.

There follow nine paragraphs of Particulars, extending over 10 pages. I need not set them out in full. They can be summarised as follows:

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Para. 6(A).1 pleads that between 10^th October and 6^th November 2004 the Claimant was held in solitary confinement in a cell measuring approximately 2m by 1.5m; that in the cell he was exposed to extremes of heat, the cell having no proper ventilation; that his sleep was repeatedly and deliberately interrupted; that his guards played pornographic material very loudly outside his cell, in a deliberate attempt to humiliate him; that he was denied communication with his family; that he was denied exercise and treatment for an injured knee; that he was given inadequate food, and only warm water to drink; that he was subject to humiliating procedures for using the toilet; that the conditions of his detention were unsanitary and unhygienic; that he was subjected to unnecessarily intrusive body searches; and that he was refused access to a lawyer. It is pleaded at para. 6(A).2 that these conditions caused him to lose over 10kg in weight over a few weeks. Para. 6(A).3 pleads that he was deliberately subjected to these conditions in order to coerce him into providing intelligence.

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Para. 6(A).4 pleads that during the last eight months or so of his detention the detention facility in which he was held was the subject of constant bombardment.

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Para. 6(A).5 is closely related to para. 6(A).1. It complains of the way in which the interrogation of the Claimant by MI5 officers, in late October and early November 2004, was conducted. I need not set out the details. It includes allegations that he was interrogated when he was short of sleep and in poor health; that the interrogations took place in rooms which were extremely hot; that he was “spun round” by guards prior to interrogation in order to disorientate him; that he was sometimes forced to stand during interrogation; that he was refused access to a lawyer; that he was threatened that letters which he had written to his children would not be sent unless he co-operated; and, generally, that the interrogations were carried out in an intimidating and aggressive manner. The conduct of the interrogation is said at para. 6(A).6 to have led to the Claimant giving answers that he did not mean.

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At para. 6(A).7 it is pleaded that the Claimant is unable to sleep properly unless he takes valium.

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Para. 6(A).8 pleads that “the conditions of the Claimant’s detention improved in November 2004”, and in particular that he was no longer held in solitary confinement. But he complains of a further period of intensive interrogation between 4^th and 8^th June 2005: the complaints which he makes about the conduct of this interrogation are broadly similar to those made in relation to the earlier period.

Para. 6(B) pleads that in consequence of the acts pleaded in para. 6(A) the Claimant has developed post traumatic stress disorder and a severe depression, evidenced by a medical report from a Dr Yüksel dated 10^th October 2008. At paras. 6(C) to 6(F) the matters pleaded are alleged to constitute breaches of article 3, article 8 and article 9 of the European Convention of Human Rights and accordingly to be actionable under the 1998 Act. Paras. 6(G) to 6(I) claim that the same acts were unlawful as a matter of Iraqi law. Finally, para. 6(J) pleads that the Claimant intends to rely as similar fact evidence on the evidence to be called in two other cases at present proceeding in the High Court, namely R (Kammash) v Secretary of State for Defence and Al-Fartoosi v Secretary of State for Defence.

A draft of the proposed Re-Amended Particulars of Claim (with the exception of para. 6(J)) was first served on the Treasury Solicitor on 17^th October 2008, although some of the matters pleaded in it had already been raised in connection with the SIAC proceedings and the Treasury Solicitor had been notified by letter dated 8^th September 2008 that it was intended to rely on them for the purpose of a claim under the 1998 Act.

The Secretary of State does not oppose permission to re-amend insofar as the Claimant relies on Iraqi law. But he opposes the re-amendment insofar as it seeks to raise a cause of action under the 1998 Act. Any such claim would of course be brought under s. 7 (1) (a) of the Act. The Secretary of State relies on s. 7 (5), which reads (so far as material) as follows:

Proceedings under subsection (1) (a) must be brought before the end of –

(a)

the period of one year beginning with the date on which the act complained of took place; or

(b)

such longer period as the court or tribunal considers equitable having regard to all the circumstances… .

Virtually all of the acts complained of occurred more than one year before the making of the present application. They are essentially concerned with the Claimant’s treatment in October/November 2004 and in June 2005. The only claim which is, to a small extent, within time is the claim that the Claimant was being held in a facility which was subject to bombardment; but the claim would plainly not be being pursued on that basis alone.

The question for me is thus whether the introduction of the pleaded claim under the 1998 Act would be equitable having regard to all the circumstances. Mr Hermer submits that it would be. He says that the one-year time limit under the 1998 Act should, in the circumstances of the present case, be treated as running from the date of the Claimant’s release from detention on 30^th December 2007. He relies principally on a witness statement from the Claimant’s solicitor Mr Philip Shiner dated 3^rd December 2008. This makes the following points:

Although his firm was first instructed by the Claimant in June 2005, and was allowed weekly telephone access to him thereafter, both his focus and the Claimant’s was on obtaining his release from detention (or, in the later period, on preventing him being released in a way which would leave him vulnerable to attack from hostile elements within Iraq). Although at some point – Mr Shiner does not specify when, and it may have been only after the Claimant’s release – they learnt of some of the ill-treatment which the Claimant claims to have suffered, that inevitably had a much lesser priority.

It was not reasonable to expect the Claimant to have volunteered details of his ill-treatment to his solicitors while he remained in detention. The complaints in question were extremely distressing, and some of them were also personal (for example, the exposure to pornographic material), and it was not realistic to expect that he should have discussed them on the telephone with people whom he had never met, particularly when most of the contact was with a female solicitor. Mr Shiner says that it is “well documented in the Human Rights literature that individuals who have been abused will frequently not speak out in respect of that abuse whilst they are still being held by their captors”. He also says that, even if a lawyer may suspect ill-treatment, eliciting information about it is delicate and sensitive and should not even be attempted otherwise than in a face-to-face meeting except in the most urgent circumstances.

It was thus only after the Claimant’s release from detention that it became possible to explore these matters with him. He was visited in Istanbul over three days in August 2008. The primary purpose of that visit was to obtain instructions and evidence in relation to the SIAC proceedings; but, since the content of the Claimant’s interrogations in 2004 and 2005 was central to those proceedings, the details of the mistreatment now sought to be relied on inevitably emerged.

The allegations in question were of “overwhelming public importance”, inasmuch as, when taken with similar allegations made by other detainees, they appeared to show that the United Kingdom Government has gone back on assurances given to the European Court of Human Rights in the 1970s following proceedings brought by the Irish Government complaining of the treatment of detainees in Northern Ireland.

Mr Swift in response made the point by way of preliminary that I had no evidence from the Claimant himself as to the reasons for his delay in raising the claim under the 1998 Act. It was, he submitted, unsatisfactory that the only evidence which I should have was that of Mr Shiner. Beyond that, his submissions were essentially twofold. First, he did not accept that the reasons advanced for the Claimant not having raised the claims in question during the period of his detention were cogent. The acts complained of were comparatively recent – some of them very recent – when his solicitors were first instructed in June 2005. He had every opportunity to raise those complaints with them at that point or at any stage over the following two-and-a-half-years: most of them could have been raised without difficulty with a female solicitor, but if the Claimant had felt any delicacy on that score he could have asked to speak to Mr Shiner or another male colleague. While it was understandable that there was a focus on obtaining his release, that was not inconsistent with raising complaints about his past treatment. But secondly, even if the delay in advancing the allegations until after the Claimant’s release could be justified, there was no possible justification for the further delay of over eight months in notifying the Secretary of State of the intention to bring such a claim and over nine months in providing properly pleaded details of it. Following his release, there was no impediment to full and free communication between the Claimant and his solicitors, and he was in fact actively involved with them in the first part of 2008: for example, he lodged a witness statement in the SIAC proceedings in May 2008. More particularly, Mr. Swift drew attention to the fact that the original version of the Particulars of Claim in these proceedings, which was served on 29^th February 2008, contained a claim for aggravated damages, in connection with which many of the allegations now sought to be relied on were pleaded, albeit in outline form. The particulars in question read as follows:

a.

He was held in very poor conditions including periods of solitary confinement.

b.

He was refused proper access to his family. For example, he was initially refused regular telephone access to his children and thereafter all conversations were [sic] limited to once a month, were monitored by the defendant officials and conducted in English with his children sitting in a solicitor’s office;

c.

For periods of time the Claimant was held in facilities that were regularly under attack thereby placing him in fear for his life.

d.

He was in fear of being transferred to the Iraqi authorities and thereby the risk of torture and/or death.

e.

He was placed for periods in solitary confinement.

f.

He was denied any effective means of challenging the factual basis of his detention that would have been compatible with his rights protected by Article 5(4) of Schedule 1 to the 1998 Act.

Thus the complaints of poor conditions, solitary confinement, denial of access to his family and the risk of injury from attacks on the detention facility, all of which feature prominently in para. 6(A) of the proposed re-amendment, had already been raised by the Claimant with his solicitors by the end of February 2008. They could have, so far as necessary, been further investigated at that stage and a decision taken to make them the subject of a free-standing claim under the 1998 Act. There was, Mr Swift submitted, no real evidence of why that was not done or of why a face-to-face meeting between the Claimant and his solicitors, assuming that to be necessary, did not occur until August 2008.

Neither party referred me to any authority on the proper approach to s. 7 (5) (1) (b) of the 1998 Act. Mr Swift, however, submitted that there was a close analogy with s. 68 (6) of the Race Relations Act 1976 and referred me to the decision of the Court of Appeal in Robertson v Bexley Community Centre [2003] IRLR 434. I am not sure that the observations in that case are directly applicable in the present context, since some emphasis is placed on the practice of applying time limits with particular strictness in the employment tribunal. However, I accept Mr. Swift’s submission, based on Robertson, that Parliament plainly intended that the primary time limit of one year provided for in the statute should represent the norm and that it was for a claimant to show that there were particular circumstances in any given case rendering it equitable for that limit to be disapplied. I also accept Mr. Swift’s submission that it is necessary in principle that a claimant should be able to discharge that burden in respect of the whole of the period of any delay that has occurred.

In my judgment it would be equitable to entertain the Claimant’s proposed claim under the 1998 Act notwithstanding that most of the acts complained of occurred two or three years prior to the making of the present application. My reasons are as follows:

While it is unsatisfactory that the Claimant has not himself given evidence about the reasons why no such case was advanced during the period of his detention, I do not believe that I can ignore the reasons advanced by Mr Shiner. In the light of his witness statement, I regard it as understandable and excusable that the Claimant and his lawyers focused exclusively during that period on the issue of securing his release; and that he did not volunteer, nor did his lawyers elicit, the allegations of ill-treatment now relied on. I do not have to accept the truth of those allegations, nor form any view as to the Claimant’s precise mental condition, to conclude that the circumstances of his detention must have made it difficult for him to seek and obtain comprehensive legal advice.

The allegations at para. 7 of the Particulars of Claim as originally drafted do indeed show that the Claimant must have raised with his solicitors the substance of at least some of the matters now relied on promptly on his release (if he had not already done so). I regard it as acceptable, however, that those matters should not have been made the basis of a free-standing claim under the 1998 Act until the Claimant’s solicitors had had the opportunity of a face-to-face discussion with him. Allegations of what amounts to torture should never be made lightly, and it was reasonable for the Claimant’s solicitors to wish to go over them with him carefully, both in order to satisfy themselves that they should properly be pleaded and so that the implications of doing so could be fully discussed. The Claimant could not come to this country for that purpose. There is force in Mr Swift’s criticism that Mr Shiner does not properly explain why it took over seven months for arrangements to be made for his firm to visit the Claimant in Turkey; but I think I can legitimately infer from the papers which I have that the timetable was largely driven by the progress of the SIAC proceedings, and it made sense for all matters to be dealt with on a single occasion.

Mr. Swift did not suggest that the Secretary of State had suffered any serious prejudice by the delay. That was no doubt realistic on his part. Courts regularly have to decide disputed issues of fact going back some years, and there is no reason to suppose that it will be impossible to have a fair trial of matters which were said to have occurred in late 2004 or early 2005. (Indeed, as I understand it, many of the allegations would have had to be considered in any event in the pending SIAC proceedings.) The absence of prejudice is not by itself a sufficient reason for disapplying the normal time limit, but it is a relevant factor.

The Secretary of State does not, as I have said, oppose the re-amendment insofar as it relies on Iraqi law. Mr Swift made it clear that he might hereafter seek to raise defences which would, if successful, mean that the Claimant’s factual allegations would not have to be considered (Footnote: ¹³); but he did not rely on any such matters before me, and I must therefore proceed on the basis that it is likely that the allegations sought to be relied on for the purpose of the 1998 Act claim will in any event be in issue. That might be thought to cut both ways: if the Claimant can have his claim ventilated as a matter of Iraqi law, why does he need to do so under the 1998 Act ? But it seems to me unsatisfactory that a Court should have to struggle with the additional complication of hearing a claim under foreign law when a more straightforward domestic-law alternative is available.

Although the allegations of breaches of, in particular, article 3, are less grave than those made in the other cases referred to in Mr Shiner’s witness statement, any allegation of mistreatment of a detainee by British forces is a serious matter, for which a remedy should not be lightly denied. It is inherently more serious, for example, than allegations of breaches of privacy or infringement of rights of property. That cannot by itself justify the grant of an extension of time, but it is, again, a relevant matter for me to take into account.

For those reasons I am prepared to extend time pursuant to s. 7 (5) (b) and to permit the proposed re-amendments accordingly.