State immunity and foreign act of state defences dismissed in Government appeal

These appeals concerned the alleged complicity of the UK in torts including unlawful detention and torture allegedly committed by other states, considering the defences of state immunity and the doctrine of foreign act of state, as well as the inter-relationship with ECHR, art 6. The Supreme Court unanimously dismissed both of the Government’s appeals.

The pleas of state immunity fail, as the interests or activities covered by the UN Convention on Jurisdictional Immunities of States and their Property 2004, art 6(2)(b) do not include reputational damage suffered by foreign states if it is proven that foreign officials acted contrary to their own laws.

Lord Mance’s judgment considers there to be three types of foreign act of state rule: one of private international law; one precluding domestic courts from questioning the validity of a foreign state’s sovereign act in respect of property in its jurisdiction; and domestic courts will treat some categories of sovereign act by a foreign state as non-justiciable. According to Lord Neuberger these are qualified by a public policy exception. Lord Sumption emphasised that the doctrine does not apply merely because the subject matter discloses that a state acted unlawfully, and there are further public policy exceptions under fundamental human rights and fundamental norms from which no derogation is permitted.

The Court considers on the facts that the Government failed to show any entitlement to rely on the doctrine of foreign act of state to defeat the proceedings.

As such, the dismissal of the appeals means both cases will now return to the High Court for trial.

Edward Craven, Richard Hermer QC and Phillippa Kaufmann QC were involved in this case.