I. INTRODUCTION
A discussion on justiciability in honour of Francis Mann must begin with the House of Lords decision in 1981 in Buttes Gas v Hammer and Occidental Oil (Nos 2 and 3). Footnote 1 In an article in 1983 entitled ‘Reflections on English Civil Justice and the Rule of Law’,Footnote 2 Francis Mann voiced, or perhaps one should say vented, various objections to House of Lords procedure. These ranged from complaints about the admittedly remarkable way in which permission to appeal had been granted, after being first refused, to complaints about the House's practice, in the era of Lord Diplock, of delivering a single opinion. He observed, not without justice, that:
nothing so much compels deep, clear and independent thought as the necessity of taking pen and paper and setting forth one's own thoughts. Merely to read someone else's essay induces superficiality and intellectual laziness.Footnote 3
It is a vice of which no one could accuse Francis. His article led to an exchange with Lord Roskill.Footnote 4 After reading the article, Lord Roskill wrote a four-page letter to Francis Mann, noting, mildly, that ‘you obviously feel aggrieved about Buttes’. Francis Mann's smouldering response was:
I do not think it is relevant whether ‘I feel aggrieved’. I have not said, nor would I think it proper to say, a single word about the merits of the decision.Footnote 5
This was not an attitude which it was in Dr Mann's character long to maintain. Three years later, he published his brilliant work Foreign Affairs in English Courts.Footnote 6 He described Buttes Gas as ‘the most puzzling pronouncement on justiciability which can be found in England’Footnote 7 and submitted ‘with great respect’ that the doctrine of ‘judicial restraint’ enunciated in Lord Wilberforce's speech in the case:
rests on so insecure a foundation as to render it impossible to derive any guidance for future cases from the decision and to treat it otherwise than as a freakish one without value as a precedent … .Footnote 8
Nor did this cool his indignation. As Lawrence Collins revealed in the 25th FA Mann lecture in 2001,Footnote 9 on re-reading Lord Wilberforce's words in his own copy of Foreign Affairs in English Courts, Francis Mann wrote against them in the margin: ‘It was the House of Lords that lacked “judicial restraint”!’
Francis Mann was a doyen among the German legal émigrés who so enriched this country's legal system for decades from the Second Word War, and his writings always command respect. In the author's view, Dr Mann was right to be sceptical about Lord Wilberforce's doctrine of judicial abstinence, and subsequent legal development has been in a direction Dr Mann would have approved.
This article shall in the main focus, like Dr Mann, on justiciability in the area of foreign relations, conducted under the Crown prerogative. But, even in purely domestic contexts, where foreign relations are not involved, issues which may be described as non-justiciable can arise. These include areas where the Crown prerogative is still relevant. The basic theme will be however that, in all relevant areas, the concept is today steadily and rightly diminished in significance. It is being replaced by a more nuanced and balanced understanding of the respective roles and competences of the executive and judiciary.
II. BUTTES GAS
The starting point for the discussion is foreign relations and Buttes Gas. The claim by Buttes was for slander, and need not be examined in detail.Footnote 10 The counterclaim was by Hammer and Occidental Oil against Buttes for damages for conspiracy to cheat Hammer out of an oil concession received from the Arab Emirate of ‘Umm Al Qaiwain (UAQ)’ on 10 November 1969. The concession was in the continental shelf nine miles off the island of Abu Musa, which was the subject of a territorial dispute between the Emirate of Sharjah and Iran. UAQ in granting it had relied on the uncertain effect of an agreement reached in 1964 with Sharjah showing only three-mile territorial waters around Abu Musa. However, on 29 December 1969 Sharjah purported to grant a competing concession to Buttes, on the basis that it had extended its territorial waters to 12 miles by a decree dated September 1969, ie two months before the UAQ concession. On that basis, even assuming that Abu Musa belonged to Sharjah, Hammer and Occidental's concession was questionable. Hammer and Occidental confronted this difficulty by a counterclaim which asserted that the Sharjah decree dated September 1969 had only been executed in March or April 1970, and backdated to undermine their concession.
The United Kingdom Government never took a position on the rights, wrongs or date of Sharjah's extension, but eventually intervened by force in May 1970 to turn back a drilling rig sent by Occidental to its concession. An agreement was in 1973 reached between Iran and Sharjah on 12-mile territorial waters around Abu Musa, and that Buttes should operate its concession from Sharjah, but share some of the profits with UAQ.
In his much-cited speech, Lord Wilberforce pointedFootnote 11 to the multiplicity of international legal issues which the counterclaim would involve, and went on:
They have only to be stated to compel the conclusion that these are not issues upon which a municipal court can pass. Leaving aside all possibility of embarrassment in our foreign relations (which can be said not to have been drawn to the attention of the court by the executive) there are … no judicial or manageable standards by which to judge these issues, or to adopt another phrase …, the court would be in a judicial no-man's land: the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force, and to say that at least part of these were ‘unlawful’ under international law.Footnote 12
The House therefore refused to adjudicate upon a civil counterclaim for conspiracy. It did so, because of the nature of the international and inter-State issues which adjudication would involve.Footnote 13 A refusal to adjudicate upon the merits of a civil claim is unusual. Domestic courts are there to adjudicate upon domestic rights and liabilities. Hence, Francis Mann's coruscating comment that it was the House that lacked restraint. However, as to what he would have expected the House to do, there is perhaps a paradox. In Foreign Affairs in the Courts Footnote 14 he said that the issue of ante-dating the Sharjah decree was a question of fact and that all the other questions posed by Lord Wilberforce would have been solved by the courts obtaining a Foreign Office certificate.Footnote 15 At the same time he accepted that if the Foreign Office had refused a certificate,Footnote 16 the courts could not have decided the case. One way or another, therefore, he was ready to accept that certain matters are non-justiciable, either because the executive's certificate is final or because, without any such certificate, a domestic court must refrain from adjudication.
III. DEFINING JUSTICIABILITY
What then do we mean by non-justiciability? If we are really only concerned with situations where there are ‘no judicial or manageable standards’, there is no diminution of the judicial role at all. Judges cannot be expected to do things which are not judicial or manageable. But, if we are concerned with true restraint, a self-imposed limitation of the ordinary judicial role, then we are into the realm of setting policy and criteria. In a recent case, Mohammed and Rahmatullah v Ministry of Defence,Footnote 17 Lord Sumption described ‘non-justiciability’ as a treacherous word, because of its lack of definition, and because it is commonly used as a portmanteau term encompassing a number of different legal principles with different incidents. In Shergill v Khaira,Footnote 18 the Supreme Court identified a category distinction between (1) issues with no domestic law basis and (2) issues upon which a domestic court will refrain from adjudicating for reasons associated with the separation of powers and executive competence. The second category often, though not always, relates to circumstances falling within the Crown's exercise of its prerogative, whether domestic or foreign. On a traditional view, the prerogative was immune from domestic law review—‘[i]t begins where legal rights end’. That phrase comes from de Freitas v Benny,Footnote 19 where the House, without calling on opposing counsel, rejected Mr Louis Blom-Cooper QC's submission that a prisoner on death row in Trinidad was at least entitled to see the basis on which clemency had been refused. As will appear, this is one of many areas where Privy Council jurisprudence on the death penalty has subsequently taken a turn for the better.
A. The Need for a Domestic Foothold
Taking the first category, cases with no domestic law basis: the role of domestic courts is to decide domestic law disputes. To describe as ‘non-justiciable’ an issue solely based on some moral or international legal principle is banal. But the emphasis is on ‘solely’. If there is some foothold in domestic law, making it necessary to refer to such a principle, domestic courts do so. Speaking generally, it is unusual for civil claims or defences to involve such a foothold. In contrast, public law claims for judicial review have proved increasingly to do so. Further, where an issue is within the United Kingdom's ‘jurisdiction’ in the broad sense that term has acquired under the European Convention on Human Rights (ECHR), the courts have quite often found themselves having to work out how ECHR principles relate to more general public international law.
After Buttes Gas it became not uncommon to argue that, although international law had a domestic foothold, the case was within the second category, upon which the court should refrain from adjudicating. Cases in the first category are therefore of interest in illuminating the boundaries of the second category. A prominent example in a civil claim is Kuwait Airways Corp v Iraqi Airways Co.Footnote 20 Iraqi Airways had taken over from Saddam Hussein the Kuwait Airways aviation fleet, by then in Iraq after the invasion of Kuwait. Iraqi Airways relied upon an Iraqi law passed by Saddam Hussein. Title to movables is normally determined by the law of their situs, but there is an exception where the foreign law is contrary to domestic public policy. The courts at all levels held that, as Saddam Hussein's law was in flagrant disregard of Security Council Resolutions and international law, it would be contrary to domestic public policy to recognize it.Footnote 21
In public law, if there is sufficient standing, there must still also be a domestic foothold, before the United Kingdom's international obligations are relevant. There was not even a toehold for an allegation that Israel was in breach of international law in military operations in and relating to the Gaza strip and that the United Kingdom should accordingly suspend supplies of military equipment and assistance to Israel: see R (Al Haq) v Secretary of State for Foreign and Commonwealth Affairs.Footnote 22 There was no basis for a claim for (in effect) an advisory declaration as to United Kingdom alleged involvement in acts said to amount to murder under domestic law or to unlawful killings outside the course of hostilities under international law in R (Khan) v Secretary of State for Foreign and Commonwealth Affairs.Footnote 23 In R (Gentle) v Prime Minister,Footnote 24 the claim by the mothers of two servicemen killed in Iraq sought to find a foothold, by reference to the ECHR. The House held that the Article 2 duty to protect individual life did not require domestic courts to rule on the legality of the use in Iraq of force which would or might create the risk of individual loss of life, or therefore to institute an inquiry into its legality. The restraint traditionally shown by courts in ruling on matters of high policy—peace and war, the making of treaties, the conduct of foreign relations—militated against any such interpretation. For that reason, there was again no enforceable domestic right.
In contrast, a limited domestic foothold may exist if the Government has by domestically announced policy created a legitimate expectation that it will give effect to a particular international obligation. The immigration sphere provides examples. So too does R (Abassi) v Secretary of State for the Foreign and Commonwealth Affairs,Footnote 25 where the Court of Appeal held that the Foreign Office had accepted a limited role in protecting the rights of British citizens abroad (in that case in Guantánamo) by making diplomatic representations to avoid an apparent miscarriage or denial of justice.Footnote 26 In R (Youssef) v Secretary of State for the Foreign and Commonwealth Affairs Footnote 27 the Supreme Court also held judicially reviewable the Foreign Secretary's decision to remove a hold placed on the designation of the applicant as a person whose assets were to be frozen under a Security Council Resolution, to which domestic law gave automatic effect.
Judicial review of the exercise of executive discretion is another area where the United Kingdom's international obligations may have no domestic foothold. It is not generally a ground of review that the person exercising discretion failed to take the United Kingdom's international obligations into account.Footnote 28 On the other hand, if a domestic law decision-maker does take international law into account, then judicial review lies to ensure that he understands and applies it correctly: see Abassi Footnote 29 and R v DPP, ex parte Kebilene.Footnote 30
B. Judicial Restraint
The second category—cases where there is a domestic issue, but the courts pull back from adjudication—will now be examined. In identifying this category, the House in Buttes Gas was influenced by United States case law, from which it drew its reference to a lack of ‘judicial or manageable standards’. In Baker v Carr,Footnote 31 Brennan J had spoken of ‘political questions’ as non-justiciable, giving six heavily overlapping alternative insignia.Footnote 32 These, including references to the respect due to co-ordinate branches of Government and the potentiality for embarrassment from multifarious pronouncements by ‘various departments’ as grounds of non-justiciability, could suggest a very muted view of the judicial role. In Goldwater v Carter,Footnote 33 Powell J suggested a more digestible synthesis: (i) whether the issue involved resolution of questions committed by the text of the Constitution to a co-ordinate branch of the Government, (ii) whether its resolution would demand that the court move beyond areas of judicial expertise and (iii) whether prudential considerations counsel against judicial intervention? The actual issue was whether the President had power to terminate a defence treaty with Taiwan without Congressional authorization—a sort of precursor to the recent case of Miller v Secretary of State for Exiting the European Union,Footnote 34 where it is worth noting, in passing, that arguments about non-justiciability did not survive to reach the Supreme Court. Again, it is clear that Powell J's criteria operate at different levels, and are not wholly replicable on the United Kingdom scene. We have no formal written Constitution, and we no longer regard even Crown prerogative as committed invariably to executive judgement. Lack of judicial expertise finds an echo in Buttes Gas. But ‘prudential’ considerations take us straight to policy, without giving us further guidance about what that policy might be. Neither this synthesis, nor, as Dr Mann pointed out, Buttes Gas itself, provide clear guidance about the reach of non-justiciability. What is required is a more ‘fine-grained’ or disaggregated approach, distinguishing particular instances.Footnote 35
C. The Royal Prerogative and ‘No-Go’ Areas
First the point just made about Crown prerogative must be amplified. In Council of Civil Service Unions v Minister for the Civil Service,Footnote 36 (‘the GCHQ case’), Mr Blom-Cooper, who had been counsel in de Freitas v Benny, had at least the satisfaction of persuading the House to discard an absolutist view of the immunity of the Crown prerogative decisions from judicial scrutiny.Footnote 37 The GCHQ case concerned the domestic use of the prerogative to vary, without prior consultation, GCHQ staff's terms of employment so as to forbid membership of a trade union, for reasons of national security. The prerogative was held reviewable, though the claim failed on the facts, because the court would not second-guess the ministerial assessment that prior consultation would have imperilled national security.
Nevertheless, the common law moves cautiously, and in a much quoted passage Lord Roskill suggested that there remained ‘many examples … of prerogative powers which as at present advised’ he did ‘not think could properly be made the subject of judicial review’:
Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process.Footnote 38
Subsequent history shows the law taking a more discriminating approach even in these areas. As to the making, or unmaking of treaties, I do not think we had cited to us, or the majority might have quoted in the Miller case, a passage in Foreign Affairs in the Courts, where Dr Mann notes the possibility of ‘extreme cases in which the Executive's right to conclude treaties comes into conflict with another principle of constitutional law which is of the highest significance’,Footnote 39 the principle in short that treaties cannot change domestic law. The discussion will come back to the prerogative of mercy itself below.
D. Foreign Relations
Continuing to focus on the area of foreign relations and the ambit of Buttes Gas, much of the relevant case law has in the past been grouped under the heading Act of State. That is another protean term. In Foreign Affairs in English Courts Footnote 40 Francis Mann said that
the doctrine of foreign act of State displays so much uncertainty and confusion and rested on so slippery a basis that its application becomes a matter of speculation,Footnote 41
although
The difficulty of identifying and defining a foreign act of state would probably be less aggravating if an established meaning could be attributed to the British [Crown] act of State. This, unfortunately, is not the case.Footnote 42
The Supreme Court has made some recent attempts at systematizing both doctrines in three cases: Mohammed and Rahmatullah v Ministry of Defence Footnote 43 and Belhaj v Straw Footnote 44 and Rahmatullah and Mohammed v Ministry of Defence (No 2). Footnote 45 Rereading these cases, the author is conscious that they too might be described as protean, even if it is likely that Dr Mann would generally have approved their result.Footnote 46
Although the different judgments may not be entirely consistent on the point, the author's view was and is that Act of State, where it exists as a response to otherwise maintainable claims, involves non-justiciability, rather than a substantive defence. It involves a refusal to adjudicate upon what would otherwise be an ordinary civil issue. There are two relevant types of Act of State for present purposes. Crown Act of State operates as a response to claims made in respect of the exercise of British sovereign power abroad. Foreign Act of State operates as a response to a claim which, although not against a foreign State (or that State would be able to rely on State immunity), involves adjudicating upon the conduct of that State. Crown Act of State was relied on by the British Government in Rahmatullah (No 2). The claimants there were detained as suspected insurgents in the course of the armed conflicts in Iraq and Afghanistan. They sued the United Kingdom in tort for alleged wrongful detention. The Government's reliance on Crown Act of State was upheld by the Supreme Court. We identified as its preconditions: (i) an exercise by the UK Government of sovereign power, (ii) outside the UK (iii) with the prior authority or subsequent ratification of the Crown and (iv) in the conduct of the Crown's relations with other States or their subjects. We left open whether such a response is only available to claims by aliens. We did not need to examine closely the parameters of sovereign power. The conduct of armed operations abroad is the classic instance of Crown Act of State, and we thought it clear that the detention of suspected insurgents in the course of armed conflict was likewise. But it is notable that there was no plea by the British Government of Crown Act of State in Belhaj v Straw.Footnote 47 The claim there was that the United Kingdom was party to the illegal rendition of Mr Belhaj and his wife to the care of Colonel Gaddafi's Libya. It was, presumably, felt that alleged involvement in kidnapping and forced deportation is not the sort of exercise of sovereign power which Crown Act of State contemplates.
In Rahmatullah and Mohammed (No 2)Footnote 48 we also held the doctrine of Crown Act of State to be consistent with the ECHR, citing the Strasbourg authority of Markovic v Italy.Footnote 49 There, the Italian Court of Cassation had had before it claims by relatives of persons killed in the NATO bombing of Belgrade, in which Italian forces had participated. Categorizing the impugned act as an act of war, the Italian Court of Cassation said that ‘since such acts were a manifestation of political decisions, no court possessed the power to review the manner in which that political function was carried out’.Footnote 50 The European Court of Human Rights (ECtHR) upheld this approach under the ECHR.Footnote 51
There was no suggestion in Markovic that the bombing of Belgrade involved an act within the jurisdiction of Italy in a sense making the ECHR applicable. Any such suggestion would have been inconsistent with the ECtHR's decision in Banković v Belgium Footnote 52 cited in Markovic.Footnote 53 The Strasbourg Court has in this area therefore arrived at a somewhat remarkable position regarding the applicability of the Convention. Taking Banković and the Court's later decision in Al-Skeini v United Kingdom Footnote 54 together, it appears that a victim in State A of bombing from the air by State B is not within the jurisdiction of State B. In contrast, a victim in State A of a shooting by soldiers on the ground from State B is within the jurisdiction of State B. In contrast to the position in Markovic v Italy,Footnote 55 military action towards Mr Rahmatullah and Mr Mohammed was on the ground. So, although their tort claims failed because of Crown Act of State, they remained able to pursue ECHR claims based on the same facts. On this basis, in Al-Waheed v Ministry of Defence,Footnote 56 Mr Mohammed had a measure of success. Here is another paradox. Just as the Supreme Court was finally confirming Crown Act of State as consistent with the Convention, at the same time it was acknowledging that the Convention provides a Convention cause of action, in any case affecting the right to life, ill-treatment or liberty. Convention law treads further than the common law would by itself go, albeit with a somewhat differing purpose and differing approaches to causation and damages. Managing and where possible integrating these competing legal strands is a continuing challenge for today's judiciary.
Foreign Act of State is discussed extensively in Belhaj v Straw.Footnote 57 The term has been used in three senses.Footnote 58 Only one is presently relevant and it was at the heart of the issues in Belhaj v Straw. Mr Belhaj's and his wife Ms Boudchar's claim was that they were in February/March 2004 unlawfully detained by Malaysian officials in Kuala Lumpur and by Thai officials and United States agents in Bangkok, before being put on board a US airplane which took them to Colonel Gaddafi's Libya, where they were further detained, in her case until June 2004, in his case until March 2010. While in the hands of United States and Libyan authorities, they were, they alleged, subjected to mistreatment amounting to torture. All this, they alleged, happened by common design which the United Kingdom arranged, assisted and/or encouraged. The United Kingdom Government argued that the claim fell within Buttes Gas and was incapable of adjudication in a United Kingdom court, because of the alleged involvement of the Malay, Thai and/or United States authorities. The Supreme Court accepted that some foreign State conduct outside the territory of the relevant foreign State might be non-justiciable —but not conduct of the nature alleged here. Illegal rendition would involve a fundamental violation of liberty (see Article 29 of the Magna Carta 1225) and torture had been illegal for centuries (see A v Secretary of State for the Home Department (No 2)).Footnote 59 The precise reasoning in the judgments differs, but there are common themes. There were judicial and manageable standards with which to address the issues. There had been no suggestion that some general policy advantage of cooperation with the United States or with Colonel Gaddafi's regime could justify a plea of Crown Act of State. Such evidence as there was of potential embarrassment to this country's relations with the United States did not justify a conclusion that United Kingdom courts should refrain from adjudicating upon them. The United States Government had in fact changed since the events. It has of course changed again since then—making any judicial attempt to appraise the likely effect on inter-State relations of a particular adjudication seem more than a little evanescent as an exercise. Dr Mann was incidentally scathing about any suggestion that it was a function of Foreign Act of State not only to avoid embarrassment to United Kingdom interests, but also ‘to eschew offence to foreign States, their institutions, laws or policies’Footnote 60—although no doubt there can be a connection.
Belhaj v Straw shows that any claim to invoke a doctrine of non-justiciability or judicial abstention requires close attention to the particular facts. As a contrasting example, we were cited the Court of Appeal's decision in R (Khan) v Secretary of State for Foreign and Commonwealth Affairs.Footnote 61 The son of a tribal elder killed in a United States drone strike in Pakistan claimed that the United Kingdom had been responsible for the relevant intelligence, that there was no armed conflict, or at any rate no international armed conflict on foot in Pakistan at the relevant time, and that the United Kingdom agents responsible for the intelligence had committed murder within the terms of sections 44–46 of the Serious Crime Act 2007. The Court of Appeal held that the matter was non-justiciable as a Foreign Act of State. The claimant was not seeking any relief save, in effect, an advisory opinion, but Leggatt J at first instance in Rahmatullah Footnote 62 suggested that, if the claimant had had some substantive claim for damages, eg for a dependency, it could have been justiciable. So long as Banković stands,Footnote 63 there would be no Convention claim in respect of such a death. One can understand the desire to invoke the common law in such a case. On the other hand, an issue regarding the lawfulness of the use of drones could depend upon determining whether there was an armed conflict in Pakistan and/or Afghanistan, whether any such conflict was international or non-international in nature and what rights of action or self-defence existed—all issues on which the policy and judgement of the executive and armed forces might be expected to prevail. If there is one core area of the prerogative which remains effectively immune from judicial scrutiny, as Lord Roskill suggested, one might expect it to be the defence of the realm, including by the engagement of the armed forces in warlike activity abroad or collaboration with the armed forces of another friendly State in mutual self-defence.
Finally, it seems logicalFootnote 64 to suppose that the threshold for treating an issue as non-justiciable on account of a Foreign Act of State is higher than it is for treating conduct of one's own State as non-justiciable on account of Crown Act of State. Putting the point the other way round, the impetus for judicial restraint is lower when all that can be said is that there are implications for, or for good relations with, a foreign State.
E. Other Areas Giving Rise to Non-Justiciability in Domestic Law
At this point let us turn away from the area of foreign relations, to consider other areas in which issues of non-justiciability may arise. The principal, but not the only, areas fall within the Crown prerogative and Lord Roskill's dictum. But first some other cases should be identified which appear to fall within the concept, even if it is not commonly applied to them:
1. State immunity, based on customary international law and now the State Immunity Act 1978, or diplomatic immunity. The court is precluded from adjudicating upon the merits, by a rule of immunity possessed by the State or person. Beyond the involvement of a foreign State, there need of course be no foreign relations element. Various important exceptions have of course developed, particularly in the commercial sphere, and most recently in the employment sphere.Footnote 65
2. Article 9 of the Bill of Rights 1689, prohibiting the impeaching or questioning in any court or place outside Parliament of any debates or proceedings in Parliament was identified as a statutorily based instance of non-justiciability in Shergill v Khaira,Footnote 66 citing Prebble v Television New Zealand Ltd.Footnote 67 In Prebble the television station's defence to a defamation action relied on statements by the plaintiff in Parliament which, it alleged, were calculated to mislead or improperly motivated. The Privy Council struck out that part of the defence, effectively as non-justiciable.Footnote 68
3. There are other rare situations in which all or part of the merits cannot be fairly tried: see eg Carnduff v Rock,Footnote 69 where a police informer's claim for remuneration allegedly promised was not justiciable, because its trial would require the police to disclose and the court to investigate and adjudicate upon information which should in the public interest remain confidential to the police; this principle is further discussed in Al Rawi v Security Service,Footnote 70 and could have provided a basis in Buttes Gas for dismissal of the claim, had it not been voluntarily withdrawn once the defence and counterclaim were held non-justiciable. A complaint by Mr Carnduff to the ECtHR was rejected as inadmissible.Footnote 71
4. The rule of illegality recognized by Lord Mansfield in Holman v Johnson Footnote 72 is in substance a principle of non-justiciability, whereby: ‘[no] court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act’. Lord Mansfield went on to make clear that the rule operated independently of the merits.Footnote 73 Since the Supreme Court's recent decision in Patel v Mirza,Footnote 74 it may be that this should no longer be seen as a kind of non-justiciability. Instead, the issue of illegality has been effectively subsumed within the merits of the claim. It is an additional factor in determining whether the claim or defence should succeed and in what sense.
5. Non-justiciability has also been identified as the basis on which a court will refuse to review or second-guess governmental policy decisions. This was how Viscount Radcliffe expressed himself in Chandler v DPP,Footnote 75 where CND activists entered an airfield used by United States airplanes which were kept there combat ready and on station alert, as part of NATO's nuclear deterrent. The aim was to immobilize the airfield by preventing aircraft taking off. The activists were charged with committing and conspiring to commit a prohibited act, namely entering the airfield ‘for a purpose prejudicial to the safety or interests of the State’. Their defence was that the country would be better off without nuclear weapons and that their reasonably held belief was that their conduct would be to its benefit, and they wanted—but were refused permission—to call evidence in support of that view. Viscount Radcliffe spoke of the non-justiciability of ‘the question whether it is in the true interests of this country to acquire, retain or house nuclear armaments’.Footnote 76 But Lord Devlin successfully demonstrated that it was unnecessary to resort to that rationale. In referring to the State's or any person's interests, the statute must be taken to be referring to those interests as they actually were, not as they might or ought to have been, and such interests were defined by the State's or person's policies at the time.Footnote 77 Contrast with this domestic statutory scheme that applicable under Article 15 of the ECHR, which required the House of Lords in A v Secretary of State for the Home Department Footnote 78 (‘the Belmarsh case’) to decide whether there was a threat to the life of the nation, justifying a derogation from the Convention. The House undertook the exercise, while giving great weight to the Home Secretary's judgment, and concluded (Lord Hoffmann dissenting) that there was such a threat, although the actual derogation was disproportionate and discriminatory.
Leaving aside the last head, it appears that some cases of non-justiciability in ordinary domestic law contexts are quite familiar. But each is ultimately the ad hoc result of policy decisions by Parliament or the common law as to the appropriate role of domestic courts. Turning back to the more general area of the royal prerogative, an examination of what has become of some of Lord Roskill's special categories must be undertaken. The making of treaties, presumably, includes the unmaking of treaties. But the Miller Footnote 79 case shows, as has been pointed out, that even here it is not always possible to exclude judicial review. Take the area of national security and defence of the realm, it will often be unnecessary to speak in terms of a no-go area. It may be, as it was in Chandler Footnote 80 and the GCHQ caseFootnote 81 be sufficient to recognize that the only authority which can define the United Kingdom's policies and interests is the United Kingdom executive. Even where a domestic court is obliged to undertake the role of assessing such interests for itself, as the ECHR obliged the House in the Belmarsh case,Footnote 82 the executive's expertise in and responsibility for these matters will militate strongly against successful judicial review. To take a third example, the question who is the appropriate recipient of an honour, or who should be appointed as a minister is of such intensely subjective a nature that no recognized ground of judicial review would ordinarily apply. Suppose, however, that it were shown that an honour had been procured by bribery? Is it clear that all possibility of judicial review could still be absolutely excluded? Usually, it will be possible and better to adopt a more refined approach, using conventional tools of judicial review, rather than the blanket approach of excluding all possibility of judicial review because of the subject matter.
F. The Prerogative of Mercy
Developments in relation to the prerogative of mercy offer a further case study of the shift towards justiciability. The position up to 2003 is examined valuably by Professor B V Harris in an article entitled ‘Judicial Review, Justiciability and the Prerogative of Mercy’.Footnote 83 Following the GCHQ case,Footnote 84 the English Divisional Court departed from the Privy Council's approach in de Freitas v Benny Footnote 85 in R v Secretary of State, ex parte Bentley.Footnote 86 The GCHQ case, it said:
made it clear that the powers of the court cannot be ousted merely by invoking the word ‘prerogative’. The question is simply whether the nature and subject matter of the decision is amenable to the judicial process. Are the courts qualified to deal with the matter or does the decision involve such questions of policy that they should not intrude because they are ill equipped to do so? Looked at in this way there must be cases in which the exercise of the Royal prerogative is reviewable in our judgment. If, for example, it was clear that the Home Secretary had refused to pardon someone solely on the grounds of their sex, race or religion, the courts would be expected to interfere and in our judgment would be entitled to do so.Footnote 87
Bentley had been hanged for murder despite the jury recommending leniency. The Home Secretary took the view that he should not have been hanged, but had refused to grant any pardon, not appreciating that he had power to substitute a posthumous conditional pardon to reflect the fact that a life sentence should have been substituted. The Divisional Court ordered the Home Secretary to reconsider his decision.
The Privy Council did not immediately change course.Footnote 88 But, in 2000, in one of many turns—usually for the better—in its death penalty jurisprudence, it held in Lewis v Attorney-General of Jamaica Footnote 89 that the decision whether or not to exercise the prorogation should be exercised by fair procedures. It established a series of requirements, designed to inform the prisoner, enable him to make representations and have them considered and to know the reasons for whatever decision was reached.Footnote 90 At that stage, the Board continued to assert that the merits of any decision whether or not to exercise the prerogative were not reviewable.
However, since 2003, the extent to which the prerogative of mercy may be reviewable on its merits has been further developed. In Pitman v The State,Footnote 91 the Board said that judicial review could lie to prevent the execution of a defendant who since conviction had developed significant mental abnormality. That postulates its availability on substance.
The prerogative of mercy is also available when the carrying out of a death sentence becomes unconstitutional due to delay. In Pratt v Attorney General of Jamaica,Footnote 92 the Board held that it would generally be cruel and unusual or inhuman punishment to carry out such a sentence after five years on death row. Some form of commutation was then required. The Board indicated that this could be achieved using the prerogative. In Lendore v Attorney General of Trinidad and Tobago,Footnote 93 the Privy Council affirmed this,Footnote 94 while accepting that, prior to any prerogative commutation, a prisoner might also apply to a court for constitutional relief to fix an appropriate alternative sentence. The existence of these alternative routes to commutation opens the possibility that an executive exercise of the prerogative should also be judicially reviewable to ensure general compatibility with the sort of commuted sentence that a court would have passed on a motion for constitutional relief. The Board also recognized that there might be cases where the use of the prerogative to preclude access to a court was reviewable, eg if it was deployed to forestall an appeal against sentence to the Court of Appeal.Footnote 95
IV. CONCLUSION
Drawing together the threads, the thesis of this article is that, for the most part, courts can and should adjudicate upon civil claims and public law claims, without it being necessary or appropriate to resort to a doctrine of non-justiciability. There are a few ad hoc situations where an international law principle, in the form of State immunity, or a domestic law principle, such as Article 9 of the Bill of Rights, debars the courts from fulfilling their ordinary function. But the nature of ordinary civil claims makes non-justiciability a very rare phenomenon. Judicial review can in contrast range wider, into areas which may potentially be thought to throw up problems of justiciability, but it is subject to other controls—such as standing, institutional competence, discretion—which commonly make it unnecessary to grasp at so blunt a response. The credibility of a common law principle of abstinence in areas involving the rights to life and liberty and freedom from ill-treatment is also diminished, when these are areas into which the ECHR now often requires domestic courts to enter.Footnote 96
It continues to be the area of foreign relations in which respect for institutional or constitutional competence may most easily tip over into outright non-justiciability. There can here be no single litmus test. The political question doctrine has faded from English common law thinking. But very often it will be unnecessary and inappropriate to accept the blunt argument of a no-go area. There is a continuing shift to a more nuanced recognition that each case must be approached on its own merits, weighing all relevant factors to decide whether the particular issue is really non-justiciable, or whether any relief by way of judicial review should as a matter of discretion be granted. This shift will be promoted by fuller recognition that the intensity of any judicial review should always reflect the respective institutional competence and expertise of the original decision-maker compared with that of any court asked to review the original decision. The four-stage test of proportionality identified in Bank Mellat v Her Majesty's Treasury Footnote 97 sometimes thought to require equivalently intrusive review in every case —must be read in this light. Elliott and Thomas's Public Law Footnote 98 makes the very pertinent comment that ‘justiciability and deference may be thought of as different points on a continuum’. It is preferable to speak not of ‘deference’ but of ‘respect for institutional or constitutional competence’, but otherwise the author entirely agrees; and the modern tendency is to give weight to institutional and constitutional competence, rather than grasp at the lock-out of non-justiciability.
That said, some specific no-go areas of foreign policy decision-making and activity are currently well-established. Decisions to make or unmake treaties are an example—save in a rare type of situation exemplified by the Miller case.Footnote 99 The conduct of armed operations overseas, whether by way of armed intervention or by way of self-defence against another State or against non-State actors targeted by Security Council Resolutions, is the conventional case of non-justiciable Crown Act of State. However, as Belhaj illustrates,Footnote 100 this is not carte blanche for alleged State involvement in acts of force against individuals, such as kidnapping, torture or inhuman treatment, whatever their motives. Such acts bear no resemblance to any conventional, or one may add acceptable, use of sovereign authority.
Finally, with particular reference to Foreign Act of State, any domestic court will naturally always think hard before reaching any decision which might be seen as inconsistent with and undermining of the policy and interests of its own Government at an international level, in a context where the judicial and executive branches should normally speak with one voice; that includes any decision which would inflict serious damage on this country's international relations with another State or States. It will no doubt also bear in mind the legitimate interests of any friendly foreign State. But such considerations alone cannot axiomatically lead to a conclusion of non-justiciability. The impulse towards recognizing non-justiciability in the form of Foreign Act of State is considerably less powerful than it is in respect of Crown Act of State. The modern focus on individual rights and freedoms, both at common law and under the ECHR, makes it increasingly difficult for domestic courts simply to withdraw from adjudication upon issues arising out of State activity on the international plane. In an era, when domestic recourse is in reality often the only practicable means by which an individual, as opposed to a State, may obtain redress for alleged misconduct on the international plane (as Belhaj v Straw Footnote 101 once again illustrates), the legal position as it is currently emerging seems on the whole desirable. Dr Mann, with his belief in, indeed enthusiasm for, domestic adjudication, would, the author believes, also welcome it.
