A. Justiciability and Jurisdiction

An issue is considered to be justiciable in a particular forum if it is capable of being decided in that legal forum and it is considered appropriate to do so. Such a description has elements of circularity. If an issue is suitable for judicial determination it is said to be justicibable. If it is not so suitable it is said to be non-justiciable. However, conceptions of capability, foraFootnote ¹⁴ and appropriateness may change over time.Footnote ¹⁵ It is arguable that justiciability is neither a concept nor a principle, but merely a category of argument into which a number of specific arguments fit. In the language used by courts and commentators, it is often unclear whether the principle of justiciability is distinct from that of jurisdiction (the court has no competence or there is another more competent court).Footnote ¹⁶ If a legal decision-maker does not have jurisdiction to make determinations then the justiciability or otherwise of the issues should be irrelevant. However, the distinction between jurisdiction and justiciability is not that simple. The threshold question of whether a UK court has jurisdiction is answered by the court applying common law rules. Justiciability may be a consideration of policy that goes to whether or not a court considers that it has jurisdiction at all. The weight of that policy may vary from context to context. Justiciability may also be a consideration of law about whether or not it exercises that jurisdiction. Sometimes the terms jurisdiction and justiciability appear to be used interchangeably.Footnote ¹⁷ In the context of private international law a rule that has long-been stated as a rule of jurisdiction is now suggested to be not a rule of jurisdiction at all but rather one which goes to the justiciability or admissibility of the claim.Footnote ¹⁸

B. Justiciability as a Judicial Doctrine

Justiciability is a judicial doctrine and therefore subject to judicial evolution. It can also be directed or displaced if a constitution or a legislative body expressly directs that particular provisions are justiciable or non-justiciable. If the constitution or the legislative body has directed the judicial forum to examine particular issues then they may see less need to resort to conceptions of justiciability. The Human Rights Act (1998) specifically gives to the UK courts the power to make decisions on the compatibility with European Convention on Human Rights (ECHR) of legislation and the acts of public authorities, though it does not technically make the ECHR rights ‘justiciable’ in the different sense of creating a cause of action or providing a defence.Footnote ¹⁹ Issues of justiciability are an element of the debate on a British Bill of Rights and Responsibilities, particularly with respect to the incorporation of economic, social and cultural rights and their subsequent interpretation by the courts.Footnote ²⁰ Conversely, article 45 of the Irish Constitution provides for ‘Directive Principles of Social Policy’ which are, ‘intended for the general guidance of Parliament. The application of those principles in the making of laws shall be the care of Parliament exclusively, and shall not be cognisable by any Court under any of the provisions of this Constitution.’Footnote ²¹

It has been judicially asserted that justiciability engages rules of law rather than purely discretionary considerations.Footnote ²² It reflects rules that the, ‘courts have imposed upon themselves in recognition of the limits of judicial expertise and of the proper demarcation between the role of the courts and the responsibilities of the executive under our constitutional settlement’.Footnote ²³ However, it is always necessary to consider the context in which judicial pronouncements have been made. In the Buttes Case Lord Wilberforce described the non-justiciability principle as, ‘not one of discretion, but … inherent in the very nature of the judicial process’.Footnote ²⁴ However, the context of that case was one of foreign sovereign acts and disputed questions of public international law. In other cases the non-justiciability may be for more substantive reasons, for example, that the appropriate allocation of government resources cannot be judged by the courts. Lord Wilberforce also observed that, the ultimate question of ‘what issues are capable, and what are incapable, of judicial determination must be answered in closely similar terms in whatever country they arise, depending, as they must, upon an appreciation of the nature and limits of the judicial function.’Footnote ²⁵ To the extent that this is true it makes decisions based on justiciability of wider comparative interest.Footnote ²⁶

C. Rationales for Justiciability

Justiciability can be rationalized from procedural, institutional or substantive perspectives or a mixture of them.Footnote ²⁷ From a procedural perspective it can encompass elements of jurisdiction, standing, mootness, ripeness, admissibility of evidence and even the appropriateness of remedies.Footnote ²⁸ From an institutional perspective it can encompass elements of democracy and of the separation of powersFootnote ²⁹ and relative institutional competence within a particular constitutional system.Footnote ³⁰ Doctrines of justiciability commonly appear as attempts to determine the limits of judicial or quasi-judicial functions and to distinguish them from ‘political’ functions and processes.Footnote ³¹ As such resort to justiciability can expressly or implicitly reveal the decision-makers' perception of the nature and limits of their role and function. In the CND case, considered below, the Court asked itself, ‘How could our assumption of jurisdiction here be regarded around the world as anything other than an exorbitant arrogation of adjudicative power?’Footnote ³² From a substantive perspective justiciability can encompass the complex or polycentric legal, political or policy nature of the right, interest, decisions or questions at issue.Footnote ³³ Cross-cutting elements within these three perspectives are whether the court has ‘judicial or manageable standards’Footnote ³⁴ or the requisite ‘expertise’ to judge the issues,Footnote ³⁵ whether there would be embarrassment in foreign relations and the national or international ramifications of making a particular decision.Footnote ³⁶ The normative weight of a particular factor towards non-justiciability will vary from context to context. Procedural aspects will tend to be of lesser weight than substantive or institutional ones.

D. The Effects of Non-Justiciability

As a threshold matter justiciability is often decided at the striking out stage or determined as a preliminary issue.Footnote ³⁷ Justiciability may be resorted to in response to the arguments of parties before the court or sometimes on the court's own volition. When the justiciability principle is applied the effect is that the decision maker will not make a determination on a particular issue.Footnote ³⁸ Hence in a US context the language sometimes used is ‘issue preclusion’.Footnote ³⁹ The effects of the non-determination of a particular issue will depend on the circumstances of the case. First, the effect may be that the court considers that the whole case cannot be determined at all because the central issues are non-justiciable.Footnote ⁴⁰ Secondly, it may be that only certain issues in the case are non-justiciable. This is the situation where the courts consider that they cannot make determinations of the legal validity of the acts of sovereigns within their own jurisdiction. The effect is that such acts and laws are treated as valid and the courts decision is then made on that basis.Footnote ⁴¹ If, exceptionally, the court does make a determination on the validity of the acts or laws of sovereigns within their own jurisdiction, and determines them invalid, it then proceeds to make a decision on that basis.Footnote ⁴² Thirdly, it may be that the courts make no determination of the validity or otherwise of the acts or laws of the foreign sovereign but will not allow themselves to be used to assist the enforcement of particular acts or laws of foreign States outside of their own jurisdiction. This is the case when the UK courts will not enforce, for example, the revenue or penal laws of another State.Footnote ⁴³

E. Focus on Substance and Suitability

In contemporary UK jurisprudence on justiciability there has been an increasing concentration on substance and subject matter rather than source or form. Justiciability depends, ‘not on general principle, but on subject matter and suitability in the particular case’.Footnote ⁴⁴ Thus aspects of prerogative powers in the UK are now viewed as justiciable whereas previously they were not.Footnote ⁴⁵ The ambit of what had previously been considered as ‘forbidden areas’ is not immutable.Footnote ⁴⁶ One of the considerations which determine which prerogative powers, or more precisely, which aspects of them lay within the jurisdiction of the courts is whether or not it is justiciable. Non-justiciability may arise for any or more of the reasons discussed in the previous section. Even the involvement of a high-level strategic policy document will not as such preclude judicial intervention if the promise that has allegedly been broken has also been made at the highest level, for example, in a Government White Paper.Footnote ⁴⁷

Many applications will not succeed but this will not be because of their being completely precluded from judicial consideration and analysis. Rather it is because, for example, the policy or foreign affairs nature of some issues means that the courts will afford substantial deference to political decisions. In some cases non-justiciability just reappears at a later stage but with a different face.Footnote ⁴⁸ Moreover, a national court may avoid the term justiciability even though it applies the essence of the doctrine.Footnote ⁴⁹

F. Legal and Factual Characterizations

It is necessary to identify (in accordance with English law), the substance of the claim sought to be enforced rather than focus on the cause of action or the form of the claim.Footnote ⁵⁰ The views of the executive on the requirements of national security may be viewed as non-justiciable or as justiciable but falling within an area where substantial deference is afforded to the view of the executive. The end result may be the same but the latter approach leaves open the possibility that there may be circumstances where the courts will ultimately decide not to defer. The factual and legal characterization of issues by the decision-maker can be crucial. The most controversial new measures in the UK's Anti-terrorism, Crime and Security Act 2001 (ATCSA) were those in Part 4, titled ‘Immigration and Asylum’, permitting indefinite detention for foreign nationals suspected of being international terrorists.Footnote ⁵¹ The UK government described the measures as ‘exceptional immigration powers’. However, the House of Lords did not accept this classification. Rather they viewed the issue as one of security. This looked even less promising for the applicants. The threshold question was whether there was a ‘Public Emergency’. In A and others v Secretary of State for the Home Department (Belmarsh Detainees)Footnote ⁵² all but one member of the House of Lords rejected a challenge to the Government's determination of the existence of a public emergency.Footnote ⁵³ One of the three reasons for this given by Lord Bingham concerned the distinction between judicial and political questions and the ‘relative institutional competence’ to deal with them. He regarded the question as being very much at the ‘political end of the spectrum’.Footnote ⁵⁴ The House of Lords then proceeded to characterize the substantive detention issue as one of discrimination based on national origin. It regarded discrimination as a matter over which it could appropriately make a determination and it proceeded to do so. Once that issue was characterized as one of discrimination it was viewed as justiciable.Footnote ⁵⁵

G. International Jurisprudence on Justiciability

Unsurprisingly, parallel issues of justiciability have arisen with respect to international legal forums. For example, it has been central to debates on the nature and enforcement of international human rights, particularly economic, social and cultural rights,Footnote ⁵⁶ and on affording jurisdiction to international courts or other forums over certain kinds of political issues. This has been the case, for example, with respect to a proposed optional protocol on individual petitions under the International Covenant on Economic, Social and Cultural Rights (finally adopted in 2008).Footnote ⁵⁷ However, once jurisdiction is granted to an international forum then claims of non-justiciability of international law issues in international courts or tribunals, for example because of their political nature, or the absence of applicable legal norms, are normally rejected.Footnote ⁵⁸ Their focus tends to be on questions of jurisdiction and immunities, which are always seen as justiciable issues.

A. Political Decisions

The courts may consider that an issue is non-justiciable or virtually non-justiciable because it is unwilling to substitute its judgment for that of a political body and so considers that the appropriate accountability is in the political rather than the legal sphere.Footnote ⁵⁹ In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs Footnote ⁶⁰ the House of Lords considered the legislative powers that were traditionally conferred on the legislature of a colony with the requirement that laws had to be made for the ‘peace, order and good government’ of the territory. Although their Lordships were unanimous that prerogative legislation should be subject to review on ordinary principles of legality, rationality and procedural impropriety in the same way as any other executive action,Footnote ⁶¹ by a 3-2 majority it was held that the critical words had never been construed as words limiting the power of a legislature.Footnote ⁶² They had always been treated as apt to confer plenary law-making authority. The courts would not inquire into whether legislation within the territorial scope of the power was in fact for the ‘peace, order and good government’ or otherwise for the benefit of the inhabitants of the territory.Footnote ⁶³

For Lord Rodger it was not open to the courts to hold that legislation enacted under a power described in those terms did not, in fact, conduce to the peace, order and good government of the territory. Equally, it could not be open to the courts to substitute their judgment for that of the Secretary of State advising Her Majesty as to what could properly be said to conduce to the peace, order and good government of British Indian Ocean Territory (BIOT). This was simply because such questions were not justiciable. They were for the determination of the responsible ministers rather than judges. The sanction for inappropriate use of the legislative power was political, not judicial.Footnote ⁶⁴ However, judgments as to what is a political decision for which there should only be political accountability differ. In Bancoult itself, one High Court judge, three members of the Court of Appeal and the two dissenting members of the House of Lords, all considered that they could judicially determine the issues.Footnote ⁶⁵ The issues both fell within the court's jurisdiction and were justiciable.

The subject-matter, nature and context of an issue may be considered to place it in the realm of politics, not of the courts, and so be non-justiciable. In R (Wheeler) v Office of the Prime Minister Footnote ⁶⁶ the Court doubted whether the correctness of an assessment by the government of the differences between two treaties, the Treaty establishing a Constitution for Europe (2004) and the Treaty of Lisbon (2007), was a ‘justiciable issue at all’.Footnote ⁶⁷ At best, it was a matter to be approached on a Wednesbury basis,Footnote ⁶⁸ and on that basis the Court was far from persuaded that the assessment was an unreasonable one. There was proper scope for a different assessment in relation to the Lisbon Treaty.Footnote ⁶⁹ Even if there had been a promise to hold a referendum in respect of the Lisbon Treaty, it would not have given rise to a legitimate expectation enforceable in public law, such that the courts could intervene to prevent the expectation being defeated by a change of mind concerning the holding of a referendum. This was because the ‘subject-matter, nature and context of a promise of this kind place it in the realm of politics, not of the courts, and the question whether the government should be held to such a promise is a political rather than a legal matter’.Footnote ⁷⁰

As to the extent to which a decision to ratify a treaty was amenable to judicial review at all, the court did not have to reach a decision. Such a decision was not altogether outside the scope of judicial review as it was conceded by the Secretary of State that a decision to ratify the Lisbon Treaty without parliamentary approval would be amenable to review. This was because section 12 of the European Parliamentary Elections Act 2002 made statutory approval a condition precedent to the ratification of any treaty which provided for an increase in the powers of the European Parliament. The Court noted that the challenge in this case related to the procedure followed in reaching the decision to ratify rather than to any potentially sensitive issue of policy involved in the decision itself. Nevertheless, it considered that the limits of reviewability should be determined on a case by case basis if and when the need arose.Footnote ⁷¹ That is, there was jurisdiction because of the 2002 Act and whether the question might be justiciable was dependent on the circumstances.

B. The Acts and Transactions of Foreign States

There is a long-established ‘general principle’ that issues which require courts to adjudicate upon the acts and transactions of foreign sovereign States are non-justiciable.Footnote ⁷² The impediment arises from judicial self-restraint and is a principle of English law.Footnote ⁷³ The central rationales are that ‘the principles of law applicable to such transactions is not the domestic law (including private international law) of England, the courts in England could not compel observance of their orders outside England and any attempt to do so might cause embarrassment to the United Kingdom in the conduct of its foreign affairs’.Footnote ⁷⁴ When it applies the principle of justiciability cannot be ousted by the consent of parties to the domestic litigation.Footnote ⁷⁵ In this context the principle of non-justiciability seeks to ‘distinguish disputes involving sovereign authority which can only be resolved on a State to State level from disputes which can be resolved by judicial means’.Footnote ⁷⁶ The application of this principle may mean that the issues in a particular case are non-justiciable. In Buttes Gas Footnote ⁷⁷ the pleadings in private litigation raised issues involving the court in reviewing transactions in which four sovereign States were concerned and being asked to find at least part of those transactions unlawful under international law.Footnote ⁷⁸ In R (Gentle) v Prime Minister,Footnote ⁷⁹ the issue of the legality under international law of the invasion of Iraq in 2003 was similarly described as belonging to the area of relations between States. It was not part of domestic law reviewable either in the UK or in the European Court at Strasbourg.Footnote ⁸⁰

In R (Al-Haq) v Secretary of State for Foreign & Commonwealth Affairs Footnote ⁸¹ the applicant, a foreign non-governmental organization, sought a declaration that the UK Government was responsible for a breach of the UK's international obligations and for a mandatory order that the Government use its best endeavours to meet those obligations. The obligations were said to be under customary international law in respect of the Government of Israel's actions in the course of Operation Cast Lead in Gaza since 27 December 2008. Permission to apply for judicial review was refused on the basis that it was not arguable that the claimant would obtain the relief sought. The controlling factor was subject matter and here that was the conduct of Israel and whether Israel was in breach of its international law obligations. For the courts to decide whether Israel was in breach of its international obligations and, if so, the extent and nature of the breach or breaches, was beyond their competence.Footnote ⁸² Here justiciability went to the subject-matter with which the court was unwilling to deal.Footnote ⁸³

C. Flagrant Violation of Rules of International Law of Fundamental Importance

The Buttes case established a principle, not a ‘categorical rule’.Footnote ⁸⁴ In very exceptional cases the UK courts will not give effect to a foreign law because it considers that it constitutes a flagrant violation of rules of public international law of fundamental importance. Oppenheimer v Cattermole Footnote ⁸⁵ is explicable on this basis. A November 1941 Nazi Government decree purported to deprive German Jews of their German nationality. It was treated as ineffective by the House of Lords because it constituted so ‘grave an infringement of human rights that the courts of this country ought to refuse to recognize it as a law at all’.Footnote ⁸⁶ The House of Lords accepted that the UK courts should be very slow to refuse to give effect to the legislation of a foreign State in any sphere in which, according to accepted principles of international law, the foreign State had jurisdiction.Footnote ⁸⁷ The comity of nations normally required our courts to recognize the jurisdiction of a foreign State over all its own nationals and all assets situated within its own territories. Ordinarily, if the UK courts were to refuse to recognize legislation by a sovereign State relating to assets situated within its own territories or to the status of its own nationals on the ground that the legislation was utterly immoral and unjust, this could obviously embarrass the Crown in its relations with a sovereign State whose independence it recognized and with whom it had and hoped to maintain normal friendly relations. However, it could not be regarded as embarrassing to the government in its relationship with any other sovereign State or contrary to international comity or to any legal principles hitherto enunciated for the UK courts to decide that the 1941 decree was so great an offence against human rights that they would have nothing to do with it.Footnote ⁸⁸ The judgment referred to human rights at a very abstract level. There was no indication of which international instruments or customary norms were violated or at what time, that is, whether it was in 1941 or at some subsequent date.

Following Iraq's invasion of Kuwait in 1990, the Iraqi government had passed Resolution 369 by which it purported to dissolve Kuwait Airways Corporation and transfer its assets to Iraqi Airways Co. In Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5)Footnote ⁸⁹ the House of Lords held that Resolution 369 had amounted to a gross breach of the established rules of international law and accordingly, as a matter of public policy, that it would decline to recognize it.Footnote ⁹⁰ As the standard being applied by the court was clear and manageable it was legitimate for an English court to have regard to the content of international law in deciding whether to recognize a foreign law. The acceptability of a provision of foreign law had to be judged by contemporary standards. Resolution 369 had been adopted as part of Iraq's attempt to destroy Kuwait as a separate State. It followed that to enforce or recognize the Resolution would be contrary to public policy and would, furthermore, be contrary to the obligations of the United Kingdom under the UN Charter.Footnote ⁹¹ As a matter of public policy a national court could decline to give effect to legislation or the acts of a foreign State where that State was in flagrant violation of rules of international law of fundamental importance.Footnote ⁹²

The Iraqi Airways decision stands as an exception to the normal rule that the UK courts will not adjudicate upon the transactions of a foreign State.Footnote ⁹³ Its exceptional nature cannot be over-stressed. It is founded on a public policy rule as a matter of English law. The rule does not extend to any violation of international law generally or of human rights in particular. Lord Steyn reserved his position as to whether every breach of international law would necessarily ‘trigger the public policy exception’ and he emphasized the flagrancy of the breach in question and degree of international consensus about it.Footnote ⁹⁴ The breach was described as ‘plain’ and ‘acknowledged’ and the standard being applied by the court was considered to be ‘clear and manageable’.Footnote ⁹⁵ So too in Abassi (concerning arbitrary detention in Guantanamo Bay) where the breach was ‘clear to the court’.Footnote ⁹⁶ Subsequent cases have referred to the need for a ‘flagrant breach of international law’Footnote ⁹⁷ or ‘very grave breaches of fundamental universal human rights’.Footnote ⁹⁸ In Al-Haq,Footnote ⁹⁹ concerning alleged violations of fundamental humanitarian rules by Israel, the Iraqi Airways case was distinguished because the breach of international law in the latter was plain and acknowledged.Footnote ¹⁰⁰ In Meletios Apostolides v Orams and Orams Footnote ¹⁰¹ no ‘plain breach of international law’ had been committed by the courts of Cyprus in rendering decisions relating to property located in Northern Cyprus and it was not manifestly contrary to public policy in the UK to enforce the obligation under EU law to recognize and enforce the judgments of those courts. It is doubtful if UK courts would ever decline to give effect to legislation or the acts of the UK in pursuit of foreign policy decisions even where they were, arguably, in flagrant violation of rules of international law of fundamental importance, for example, with respect to the Iraq War in 2003.Footnote ¹⁰²

The UK courts should not refuse to give effect to the national laws of another State merely on the grounds that they are incompatible with international obligations undertaken by the UK.Footnote ¹⁰³ In Al Jedda (2) it was emphasized that a foreign law whose purpose was to ensure that basic human liberties are protected could not be an affront to fundamental principles of fairness and justice.Footnote ¹⁰⁴

D. Interpretation of International Law

The acts and transaction of States and other international legal persons are often formalized in international instruments. The operation of the principle that such acts and transactions are non-justiciable (sections B–C above) is reduced to the extent that the instruments formalising the acts and transactions may, to some extent, be justiciable.Footnote ¹⁰⁵ Consistent with the general principle, the UK courts will not declare the meaning of an international instrument operating purely on the plane of international law unless it is has been incorporated into domestic law or it is necessary to do so in order to determine rights and obligations under domestic law (that is, there is a sufficient domestic foothold).Footnote ¹⁰⁶ The spirit of cooperation and respect between sovereign States, that is comity, precludes any such determination.Footnote ¹⁰⁷ In The Campaign for Nuclear Disarmament v The Prime Minister of the United Kingdom and Others Footnote ¹⁰⁸ CND sought an advisory declaration as to the true meaning of Security Council Resolution 1441 (2002) (the ultimatum in respect of disarmament) particularly as to whether it authorized States to take military action in the event of non-compliance by Iraq with its terms. The Court held that it had ‘no jurisdiction’ to declare the true interpretation of an international instrument that had not been incorporated into English domestic law and which it was unnecessary to interpret for the purposes of determining a person's rights or duties under domestic law.Footnote ¹⁰⁹ The domestic courts were for the surety of the lawful exercise of public power only with regard to domestic law. They were not charged with policing the United Kingdom's conduct on the international plane.Footnote ¹¹⁰ Deciding questions as to the State's obligations under unincorporated international law is generally viewed as undesirable, particularly where the Contracting Parties to a convention have chosen not to provide for the resolution of disputed questions of construction by an international court but rather by creating continuing processes through which it was hoped a consensus view would emerge.Footnote ¹¹¹ For a national court to itself assume the role of determining such a question (with whatever damaging consequences that may have for the State in its own attempts to influence the emerging consensus) was not to be countenanced save for compelling reasons.Footnote ¹¹²

Although the courts will not adjudicate on the transactions of foreign States and will not declare the meaning of an international instrument operating purely on the international plane, the conclusion of an international treaty and its terms are matters of fact and a treaty may be referred to where it is necessary to do so as part of the factual background against which a particular issue arisesFootnote ¹¹³ and a degree of interpretation may be necessary to determine rights and obligations under domestic law. The treaty itself may give direct rights. As Mance LJ stressed in Republic of Ecuador v Occidental Exploration & Production Co,Footnote ¹¹⁴ ‘Context is always important.’ It is notable that here it was the private investor (Occidental), rather than the State (Ecuador), that was arguing that the claim was non-justiciable. The Court held that it had had jurisdiction to interpret an international instrument which had not been incorporated into English law where it was necessary to do so in order to determine a person's rights and duties under domestic law. In determining whether such interpretation was necessary, account had to be taken of the special character of a bilateral investment treaty and the agreement to arbitrate which was recognized under English private international law and which, because London was the place of arbitration, was subject to the Arbitration Act 1996. The Court considered that it was the intention of the signatories to the bilateral investment treaty to create rights in favour of private investors capable of enforcement in consensual arbitration against one or other of the signatory States. National courts should aspire to give effect to that aim because it had been agreed by States at an international level. There was no good reason why any arbitration held pursuant to the arbitration agreement should be categorized as being concerned with transactions between States so as to invoke the principle of non-justiciability.Footnote ¹¹⁵ Where the States party to the treaty deliberately chose to provide for a mechanism for dispute resolution which invoked consensual arbitration, with its domestic legal connotations, this was a factor which should make the English court hesitate long about subjecting such arbitration proceedings to ‘special principles of judicial restraint developed in relation to international transactions or treaties lacking any foundation or incorporation in domestic law’.Footnote ¹¹⁶

The approach in the Ecuador Case was followed in The Republic of Serbia v Images at International NV Footnote ¹¹⁷ to reject the argument that whether Serbia was the successor or a continuator State was a non-justiciable issue before an English court considering a challenge under the Arbitration Act 1967. The Court pointed to a number of cases in which the courts had made a determination about whether a government or a State existed. Otherwise there would have been a significant gap in the court's supervisory powers: the non-justiciability of the issue would mean the court would not be in a position either to uphold the challenge and set aside the Award or to conclude that the challenge is not well founded. The arbitrator's provisional determination would thus be deprived of substance and rendered illusory. In addition, it would be wrong to allow a State to escape liability under a commercial contract merely by pronouncing that it was not an original party to the contract, and then sheltering behind a cloak of non-justiciability in order to prevent an arbitration or adjudication based on the true legal position.Footnote ¹¹⁸ However, had the context of the case not been an arbitration on a commercial contract, the question would have been non-justiciable in the absence of clear standards of international law from which a domestic court could conclude that there was a principle of customary international law on the matter.Footnote ¹¹⁹

The courts may go to some lengths to find a ‘domestic foothold’. In AY Bank Ltd v Bosnia and Herzegovina and Others Footnote ¹²⁰ it was held that Security Council Resolution 1022 (1995) inviting the domestic courts of the relevant States to make provisions under their domestic law for resolving competing claims between States and by or against States and third parties could not, of itself, provide an exception to the principle of non-justiciability. It imposed no obligation and was, to some extent, superseded by the entry into force of an International Agreement on Succession Issues (ASI) (2004). It did though form part of the ‘context’, as did the conduct and actions of the relevant States. The Court held that the ASI could not have been intended to have effect only on the plane of international law. The provisions which specified the respective percentages of foreign financial assets of the successor States was an essential element in a successor State's proof of title in domestic law to the percentage of a foreign exchange account. If the relevant committee constituted under the ASI invited or directed successor States to submit proofs, and they did so, then the domestic court should not be hampered in its ability to deal with disputes arising out of them. In addition, the principle of non-justiciability had no application because the dispute now involved the enforcement of private law rights. The resolution of the remaining issues involved the interpretation and enforcement of the ASI as between the successor States rather than its recognition and implementation as envisaged by the ASI itself and as encouraged by UN Security Council Resolution 1022. The issues which affected the amount of the debt due by the Bank were issues of private law because they affected the rights of the Bank and other unsecured creditors. The other issues did not involve the interpretation or enforcement of the ASI or interference with the dispute resolution procedure set up by the ASI but the application of rules of English law, including where appropriate principles of private international law. For the judge it did not matter whether it was described as an exception to the general principle of non-justiciability or, as he preferred, an example of an area to which such principle did not extend.Footnote ¹²¹ Either way the nature of the issues arising in the liquidation and the evident intention behind both the ASI and the UN Resolution all went to show that all such issues were justiciable.Footnote ¹²²

The AY case is also authority for the proposition that even where the English courts will not adjudicate upon the merits of a dispute between foreign States, they may nonetheless grant protective measures so as to preserve the status quo pending the outcome of such disputes provided that it does nothing to determine the issue on the merits.Footnote ¹²³ The principle was applied in Republic of Croatia v Republic of Serbia Footnote ¹²⁴ holding that Croatia had a sufficient interest in a property to enable it to be entered in the Land Registry. The judge considered that to apply the non-justiciability principle in a way which would preclude English law from recognizing or taking account of such an agreement, whether stated in the ASI or determined as a result of the agreed principles and machinery of the ASI, would amount to a ‘slavish application of the rule without regard either to its proper purpose, or to the exceptions to it which have been identified …’.Footnote ¹²⁵

Finally, the principle of non-justiciability of unincorporated international instruments may not apply in the exceptional circumstances where the UK is required to respect international obligations imposed by a resolution of the Security Council under Chapter VII of the UN Charter.Footnote ¹²⁶ However, while domestic implementing measures are open to challenge, the legitimacy of such Resolutions are not as such justiciable at the domestic level.Footnote ¹²⁷

E. Foreign Affairs and International Relations

Foreign affairs and international relations remains as one of the areas which is generally forbidden in terms of justiciability.Footnote ¹²⁸ Institutional competence and separation of powers are important rationales.Footnote ¹²⁹ However, the courts seem intent on asserting at least a limited scope for judicial review. In R (Abbasi & Anor) v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for the Home Department Footnote ¹³⁰ it was submitted that Abbasi, a British national detained by the United States in Guantanamo Bay, was subject to a violation by the US of one of his fundamental human rights and that, in those circumstances, the Foreign Secretary owed him a duty under English public law to take positive steps to redress the position, or at least to give a reasoned response to his request for assistance. It was submitted that the increased regard paid to human rights in both international and domestic law required that such a duty should be recognized.Footnote ¹³¹

The Secretary of State submitted that the there were two insuperable barriers to the relief claimed: (1) the English court would not examine the legitimacy of action taken by a foreign sovereign State; (2) the English court would not adjudicate upon actions taken by the executive in the conduct of foreign relations.Footnote ¹³² However, the Court of Appeal found that it was not possible to approach the claim for judicial review other than on the basis that, ‘in apparent contravention of fundamental principles recognized by both jurisdictions and by international law, Mr Abbasi is at present arbitrarily detained in a “legal black-hole”’.Footnote ¹³³ It was ‘objectionable’ that Mr Abbasi had no opportunity to challenge the legitimacy of his detention before any court or tribunal.Footnote ¹³⁴ The facts of the case brought it within the class of exceptional cases where the court was then willing make a judgment on the legality of the actions of a foreign State in its own territory.Footnote ¹³⁵

Three considerations led the Court to reject the proposition that there was no scope for judicial review of a refusal to render diplomatic assistance to a British subject who was suffering violation of a fundamental human right as the result of the conduct of the authorities of a foreign State.Footnote ¹³⁶ First, the development of the law of judicial review in relation to (i) the doctrine of legitimate expectation and (ii) the invasion of areas previously immune from review, such as the exercise of the prerogative.Footnote ¹³⁷ Secondly, to a degree, the FCO had promulgated a policy which was capable of giving rise to a legitimate expectation. The policy was that where there was evidence of miscarriage or denial of justice the ‘UK Government would … consider making direct representations to third governments on behalf of British citizens where we believe that they were in breach of their international obligations’.Footnote ¹³⁸ Thirdly, in the light of that policy it must be a ‘normal expectation of every citizen’ that, if subjected abroad to a violation of a fundamental right, the British Government would not simply wash their hands of the matter and abandon him to his fate.Footnote ¹³⁹

The Court stressed that the British nationals' expectation was of a very limited nature. Where certain criteria were satisfied, the government would ‘consider’ making representations.Footnote ¹⁴⁰ Whether to make any representations in a particular case, and if so in what form, was left entirely to the discretion of the Secretary of State who was free to give full weight to foreign policy considerations, which were not justiciable. The alleged nature and extent of the injustice was a vital factor but even where there had been a gross miscarriage of justice, there could be overriding reasons of foreign policy which might lead the Secretary of State to decline to intervene.Footnote ¹⁴¹ Although decisions affecting foreign policy remained a ‘forbidden area’,Footnote ¹⁴² that did not mean that the whole process was immune from judicial scrutiny. The citizen's legitimate expectation was that his request would be ‘considered’ and that in that consideration all relevant factors would be thrown into the balance.Footnote ¹⁴³ An obligation to consider the position of a particular British citizen and consider the extent to which some action might be taken on his behalf, seemed unlikely itself to impinge on any forbidden area.

On the facts the Court held that Abassi was not entitled to relief.Footnote ¹⁴⁴ First, the FCO had considered his request for assistance. Secondly, on no view would it be appropriate to order the Secretary of State to make any specific representations to the US, even in the face of what appeared to be a clear breach of a fundamental human right, as it was obvious that this would have an impact on the conduct of foreign policy, and an impact on such policy at a particularly delicate time. Thirdly, the position of detainees at Guantanamo Bay was to be considered further by the appellate courts in the United States.Footnote ¹⁴⁵ Fourthly, the Inter-American Commission on Human Rights had taken up the case of the detainees and it was unclear what the result of the Commission's intervention would be. What was particularly interesting about Abassi was the length the Court went to find a sliver of scope for justiciability to operate in an area the courts had traditionally considered non-justiciable.Footnote ¹⁴⁶ It pushed the ‘imposition of the rule of law on the executive as far as it can be pushed’.Footnote ¹⁴⁷ To even countenance a mandatory order against a Foreign Secretary was quite a step forward.Footnote ¹⁴⁸

If the decision in Abassi was interesting in terms of judicial scrutiny, the detailed consideration in R (Al-Rawi and others) v Secretary of State for Foreign and Commonwealth Affairs Footnote ¹⁴⁹ was even more striking. Al Rawi concerned the position of three individuals detained at Guantanamo Bay who were long-term residents in the UK, but not British nationals. The detainees claimed that in addition to the underlying arbitrary nature of the detention, which in itself breached their fundamental human rights, the conditions of detention amounted to breaches of the United Nations Convention on Torture (1984), and article 3 of the ECHR, or at the very least gave rise to a real risk of their being exposed to such breaches.Footnote ¹⁵⁰ Their first claim was that their connection with the UK was such that they had a legitimate expectation that the British government would make a formal and unequivocal request for their return to this country, in the same way as it did in relation to British nationals, who were returned after such requests in March 2004, and January 2005. The second and third applicants were refugees and it was argued that refugees should be afforded diplomatic protection by the State that had accepted that status.

Given the limited decision in Abassi it might be thought that the application would be given short shrift. Yet the CA itself asked the question: ‘What has been the engine of so painstaking a review in an area which in recent years was thought barely apt for judicial review at all?’Footnote ¹⁵¹ Its answer was that it was, ‘legal and ethical muscle of human rights and refugee status’.Footnote ¹⁵²

The High Court dismissed the application on the basis that the Foreign Secretary had no duty either in domestic or international law to accord the same rights to the three claimants as non-nationals as to nationals such as Abbasi.Footnote ¹⁵³ After emphasizing that decisions affecting foreign policy was a context in which the courts had consistently trod cautiously,Footnote ¹⁵⁴ it concluded that it could not require the first defendant to make a formal request. That would be an interference in the relationship between sovereign States which could only be justified if a clear duty in domestic or international law had been identified.Footnote ¹⁵⁵ The real problem was the UK's judgment that any formal request as claimed would be ineffective and counter productive. Such judgments were ‘taken in the context of a foreign policy decision which the court simply does not have the tools to evaluate'.Footnote ¹⁵⁶

The Court of Appeal rejected the appeal in Al-Rawi on a number of grounds.Footnote ¹⁵⁷ First, the applicants did not really confront the Foreign Secretary's central factual position, namely that any formal representations to the United States on behalf of the detainee claimants would be ineffective and counterproductive.Footnote ¹⁵⁸ Secondly, the appellants submissions fell foul of two principles: (1) they invited the court to enter into what in Abbasi was described as a ‘forbidden area’ that is, the conduct of foreign relations; (2) what was and what was not a relevant consideration for a public decision-maker to have in mind was (absent a statutory code of compulsory considerations) for the decision-maker, not the court, to decide.Footnote ¹⁵⁹ The court was a judge of the legality of the government's action. To think that it was making a judgment on the wisdom of the government's action was an elementary mistake.Footnote ¹⁶⁰ In the area of the government's responsibility to make decisions touching the conduct of foreign relations, the class of factors which were neither compulsory nor forbidden, but which it was open to the decision-maker to treat as relevant or not, had to be particularly wide. The claims of fundamental human rights and refugee status had not transformed the, ‘constitutional nature of judicial review of the government's conduct of foreign relations’.Footnote ¹⁶¹

Finally the Court indicated that it had approached the issues in Al Rawi on the basis that the courts had a special responsibility in the field of human rights. It arose in part from the impetus of the HRA, in part from the common law's jealousy in seeing that intrusive State power was always strictly justified. The elected government has a special responsibility in what may be called strategic fields of policy, such as the conduct of foreign relations and matters of national security. It arose in part from considerations of competence, in part from the constitutional imperative of electoral accountability.Footnote ¹⁶² In support of this approach it cited Lord Hoffman's view in Rehman on the need for democratic legitimacy.Footnote ¹⁶³ The case involved issues touching on both the government's conduct of foreign relations and national security, though pre-eminently the former. In these areas the common law assigned the duty of decision upon the merits to the elected arm of government—all the more so if they combined in the same case. This was the law for constitutional as well as pragmatic reasons. But it was the Court's duty to decide where lay the legal edge between the executive and judicial functions.Footnote ¹⁶⁴

It now seems clear that Abassi and Al-Rawi represent a very limited extension of the courts review in the area of foreign affairs. In R (Al-Haq) v Secretary of State for Foreign & Commonwealth Affairs Footnote ¹⁶⁵ the applicant sought a declaration that the UK Government was responsible for a breach of the UK's international obligations and for a mandatory order that the Government use its best endeavours to meet those obligations. The Court considered that the subject matter was in one of the forbidden areas identified in Abbasi, namely decisions affecting foreign policy. The Government was aware of its international obligations and it was for the Government, and not the courts, to decide what actions were appropriate to comply with those obligations. The object of the claim was to compel a change in government foreign policy. The ‘toe-hold’ established in Abbasi did not entitle the court to declare or direct what action the Government was to take upon this assumed breach of international law by Israel.Footnote ¹⁶⁶ This case was readily distinguishable from those in which a claimant was asserting a readily identifiable right, such as a right in certain circumstances to claim asylum or the right to a fair trial. Constitutionally, the conduct of foreign affairs was exclusively within the sphere of the executive.Footnote ¹⁶⁷ While there might, exceptionally, be situations in which the court would intervene in foreign policy issues, this case was far from being one of them. The nature of the underlying claim, condemnation of Israel, and the nature of the claim against the Government, a direction or declaration as to what foreign policy it should follow, operated together to demonstrate that the court should not be prepared to consider it.Footnote ¹⁶⁸ It was beyond their competence for the courts to decide whether Israel was in breach of its international obligations and, if so, the extent and nature of the breach or breaches.Footnote ¹⁶⁹ That was so whether or not Israel were to decide to contest the allegations before the court. Unlike the Iraqi Airways Case, this was not a case in which the breach of international law was plain and acknowledged or where it was, as in Abbasi, clear to the court.Footnote ¹⁷⁰ There had been no authoritative judgment upon the Israeli military operation which could have served as a starting point for the court's consideration of whether to act.Footnote ¹⁷¹ The application failed because it was not arguably justiciable. The claim trespassed onto matters of ‘high policy’ and had no domestic ‘foothold’.Footnote ¹⁷² No domestic foothold had been created by Parliament (as in the Wheeler Case) or by the executive creating a legitimate expectation (as in the Abassi case).

The courts will decline to embark upon the determination of an issue if to do so would be damaging to the public interest in the field of international relations.Footnote ¹⁷³ Whether such judicial abstinence was properly to be regarded as a matter of discretion or a matter of jurisdiction was considered immaterial by the court in the CND Case. Either way the substantive question raised was non-justiciable.Footnote ¹⁷⁴ Foreign policy and the deployment of armed forces remained ‘non-justiciable’. They were ‘forbidden areas’ even if their ambit was not immutable and had been reduced.Footnote ¹⁷⁵ For Richards J the objections on grounds of non-justiciability provided a separate and additional reason for declining to entertain the CND's claim.Footnote ¹⁷⁶

Diplomatic material is a crucial part of foreign policy and international relations. A court will not make an irrevocable order preventing a Secretary of State from disclosing material to a foreign State in any circumstances in advance of the Secretary seeing that material, because of the impact of such an order on the UK's diplomatic relations.Footnote ¹⁷⁷ Diplomatic assurances contained in Memoranda of Understanding do not give rise to points of law and are beyond review by the courts.Footnote ¹⁷⁸

Reference is made to the risk of embarrassment in inter-state relations in a number of the justiciability categories and it is an important part of the context.Footnote ¹⁷⁹ The assessment of risk is made by the courts.Footnote ¹⁸⁰ They do not seek guidance from the executive as to whether there is actually any risk of embarrassment in any particular case. Moreover, there is no general rule that if an allegation might embarrass a foreign sovereign it follows that that will also embarrass diplomatic relations with the UK and that such embarrassing issues are non-justiciable.Footnote ¹⁸¹ Where, in a commercial context, allegations were made against the State, not in relation to some sovereign act carried out in its own jurisdiction but in relation to acts which affected the rights of a party under a commercial contract, the court should not exercise restraint to the extent of not being prepared to decide the same, at least without some indication from the executive that a decision would embarrass the diplomatic relations between the UK and that State.Footnote ¹⁸² A case may be firmly in the commercial sphere even if it involves borrowing by a sovereign borrower. In NML Capital Ltd v Argentina Footnote ¹⁸³ a claim was for the enforcement of a judgment debt did not require the English court to consider, or express a view upon, the appropriateness of the state's acts leading up to its debt restructuring, or on the restructuring itself.Footnote ¹⁸⁴

F. Defence

As noted, the courts will decline to embark upon the determination of an issue if to do so would be damaging to the public interest in the field of defence or national security.Footnote ¹⁸⁵ In Council of Civil Service Unions v Minister for the Civil Service Footnote ¹⁸⁶ defence was one of a number of executive acts which by its nature and subject matter was considered to be either not justiciable in public law or at most was justiciable only on narrow grounds.Footnote ¹⁸⁷ Where it applies it is obviously a more substantive category for non-justiciability. The courts are not the place to determine whether the armed forces should be disposed in a particular manner.Footnote ¹⁸⁸ The disposition of armed forces and the defence of the realm, whether exercised insideFootnote ¹⁸⁹ or outside of the UK, remain areas which are generally forbidden in terms of justiciability.Footnote ¹⁹⁰ In R v Jones (Margaret) Footnote ¹⁹¹ the House of Lords reaffirmed that it would be very slow to review the exercise of prerogative powers in relation to the conduct of foreign affairs and the deployment of the armed services,Footnote ¹⁹² and slow to adjudicate on rights arising out of transactions entered into between sovereign States on the plane of international law.Footnote ¹⁹³ The discretionary nature or non-justiciability of the prerogative power to wage war was one of the reasons why aggression was not a crime in domestic law.Footnote ¹⁹⁴

The non-justiciability of the disposition of armed forces extends to their contribution to and activities as part of multinational forces if they are regarded as an act of state.Footnote ¹⁹⁵ Where it applies, the effect is that the act in question is not cognisable in the English courts. It is irrelevant that the substantive law of the claim may be a foreign law. The rule only has application to acts done outside the jurisdiction. This was exemplified in R (Al-Jedda) v Secretary of State for Defence Footnote ¹⁹⁶(Al-Jedda 1). Al-Jedda (J), who had both Iraqi and British nationality, had been held in custody by British troops at a detention facility in Iraq. In 2007 the House of Lords dismissed J's claims regarding the legality of his detention holding that he had been detained pursuant to a duty under international law which overrode any obligation under the European Convention on Human Rights 1950, and that any claim in tort in relation to J's detention was governed by Iraqi law. In the subsequent proceedings, Hilal Abdul-Razzaq Al Jedda v Secretary of State for Defence Footnote ¹⁹⁷(Al-Jedda 2) J claimed that even if Iraqi law was applicable, his detention was unlawful under that law. The case raised a number of complex issues, two of which are of interest for our purposes. First, the High Court rejected an argument that it should refuse to rule on J's challenge to the validity of a Coalition Provisional Authority memorandum, according to which his detention was lawful, having regard to rules of comity and the absence of judicial or manageable standards by reference to which the court could determine the lawfulness of J's detention. Considerations of comity did not prevent the court from determining issues that were necessary for the resolution of a valid claim over which it had unquestioned jurisdiction. Such a state of affairs would be particularly unsatisfactory if, as the Secretary of State claimed, he enjoyed immunity in the courts of Iraq. Also, there were judicial or manageable standards. Indeed, there was no conceptual difficulty about applying the Iraqi law.Footnote ¹⁹⁸ The CA agreed:Footnote ¹⁹⁹ the provisions of the Iraqi Constitution provided judicial and manageable standards.Footnote ²⁰⁰ English courts were familiar with constitutional interpretation, and the issues did not involve a challenge to the validity of the Constitution of Iraq.Footnote ²⁰¹ That Iraq was another sovereign State did not preclude the court from adjudicating on Al-J's claim. The issue of interpretation only came in incidentally in proceedings in which the court plainly had jurisdiction. The ruling had no effect on the courts of Iraq. Nor did it infringe comity for the court to hear the claim.

Secondly, it was submitted that J's detention was an act of State and so the court had no jurisdiction to consider it. The High Court held that not every act of policy done by the Crown abroad was an act of State. Rather, the rule was confined to acts of a character such that it would be, ‘wrong in principle for the court to seek to adjudicate on them’.Footnote ²⁰² Although the decision in the leading case of Attorney-General v Nissan Footnote ²⁰³ was not considered to provide an easily applicable criterion for identifying the boundary between justiciable and non-justiciable, the decision to contribute British forces to the multinational force (MNF) was considered to be ‘plainly an act of state’.Footnote ²⁰⁴ It was quintessentially a policy decision in the field of foreign affairs. 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, once it accepted the invitation to contribute to the MNF, internment where necessary for imperative reasons of security constituted a positive obligation on the UK. Although the act of State rule might apply even in the absence of such an obligation, its justification was clearer in such a case. Individual acts of internment, such as that of J, were done either in performance of the decision to contribute forces or had a sufficiently close link with that decision.Footnote ²⁰⁵ They were thus an act of State and non-justiciable. An argument that J's individual internment was not a necessary part of the MNF's operations was rejected on the basis that internment was an essential part of the obligations undertaken. Battlefield operations were generally regarded as the paradigm of an act of State and that although the decision whether to destroy or occupy this or that building or to bomb this or that facility would necessarily be discretionary, it could not for that reason become justiciable.Footnote ²⁰⁶ For the High Court, if the acts done by the Crown abroad in the conduct of foreign relations were of their nature not cognisable in the English courts, there was no reason in principle why the position should be any different where the person injured happened to be a British citizen.Footnote ²⁰⁷ The nature of the act was the same. In conclusion, even if J's detention was unlawful as a matter of Iraqi law it was non-justiciable in the English courts. However, the Court was anxious to put limits on the issues that were non-justiciability. In particular it was stressed that the reasoning would not prevent the English court adjudicating on any claim, for example, that the requirements of the relevant Regulations of the CPA were not satisfied or that British forces were guilty of ill-treatment in the course of J's detention.Footnote ²⁰⁸ The line between unlawful detention and ill-treatment in detention is obviously rather a thin one.

In the Court of Appeal, Arden and Elias LLJ agreed that internment could qualify as an act of state.Footnote ²⁰⁹ Whether the defence could be invoked against a British nationalFootnote ²¹⁰ was more complex.Footnote ²¹¹ For Arden LJ the normal rule would be that it could not. However, the act here was distinguishable because it was done abroad as part of a general policy of internment carried out under the authority of the UN for imperative reasons of security.Footnote ²¹² If courts held States liable in damages when they comply with resolutions of the UN designed to secure international peace and security, the likelihood was that States would be less ready to assist the UN to achieve this task and this would be detrimental to the long-term interests of states.Footnote ²¹³ Elias LJ considered that the decision in the Nissan case was not decisive either way.Footnote ²¹⁴ However, since Nissan there had been striking developments which had fundamentally altered the relationship between the courts and the executive. One was the development of sophisticated principles of administrative law. Another was the growing importance given to the protection of human rights. Acts of State were akin to prerogative powers. If a claim of act of State was successful it removed the power of the courts to consider the issue. The legality of the act was immaterial because the court had no jurisdiction to consider the issue. This was not because the nature of the act rendered control inappropriate although sometimes that might be the case.

One reason for the courts deferring to the executive even in areas where the issue in dispute would be amenable to judicial process was that courts and crown should speak with one voice. Whatever the merits of that principle in a case where the act in question was a high act of policy, it ought not to carry much weight in a case where the act in question was specifically directed at a particular individual and deprived him of his liberty. It was difficult to see how even the interests of State can justify the arbitrary and uncontrolled internment of a British subject. A vital role of the courts has been to protect the individual against the State, as Lord Reid's judgment in Nissan recognized. The courts ought to scrutinize the act to ensure that the rights of the individual have been properly protected. The courts would be failing in their constitutional duty if they were to leave the executive with unfettered powers to intern British citizens merely because there the act of internment occurred abroad. The shield of Entick v Carrington ought to protect a British citizen at least in a case of this nature, where his personal liberty was at stake, even if foreign nationals would not be similarly protected. Accordingly, the courts ought not to defer to the executive in a case of this nature. Elias LJ also suggested that an alternative approach might be for the court to question the way in which that power was exercised as with any other exercise of prerogative power. The court could, for example, satisfy itself that detention was proportionate to the risks at stake, and ensure at least elementary principles of fairness in the detention process.Footnote ²¹⁵

G. National Security

National security can encompass defence but it is a broader category. One context will shade into another.Footnote ²¹⁶ There is a distinction between a deportation decision affecting a specific individual (as in Rehman)Footnote ²¹⁷ and a decision of defence policy (such as those concerning the continued maintenance of Trident nuclear weapons),Footnote ²¹⁸ though both involved matters of national security.Footnote ²¹⁹ Matters of defence policy are, within the constitutional framework, for the government to decide. In Marchiori an argument that the defence policy was justiciable because production and maintenance of nuclear weapons violated humanitarian law and was repugnant to the law of nations was rejected on the basis that this was not the proper reading of the Advisory Opinion in the Nuclear Weapons Case.Footnote ²²⁰ A court's willingness to intervene would very much depend on the nature of the material which it was sought to disclose.Footnote ²²¹ The disclosure of documents bearing a high security classification and where there was apparently credible unchallenged evidence that disclosure was liable to lead to the identification of agents or the compromise of informers was at one end of the spectrum. The disclosure of the material that may cause embarrassment or arouse criticism, but would not damage any security or intelligence interest would be at the other.Footnote ²²²

The modern cases evidence an assumption of jurisdiction and focus on the appropriate level of the intensity of judicial review. This depends on the domestic or international context of the particular case and how the courts choose to categorize the issues. In Secretary of State for the Home Department v Rehman Footnote ²²³ the issue before the House of Lords was the proper approach of the Special Immigration Appeals Commission (SIAC) to the determination of whether the presence in the UK of a foreign national was likely to be a threat to national security. The opinions made clear that although SIAC had powers of review, due weight had to be given to the assessment and conclusions of the Secretary of State in the light of his responsibilities, the means at his disposal of being informed of and his understanding of the problems. He was in the best position to judge what national security required.Footnote ²²⁴ As Lord Hoffmann explained, under the UK constitution issues of national security were issues of judgement and policy for the executive branch of the State and were not for judicial decision. A court should not therefore differ from the opinion of the Secretary of State on such an issue, provided there was an evidential basis for that opinion.Footnote ²²⁵ This approach may have been overtaken by the less deferential approach adopted under the Human Rights Act (1998). In A and Others v Secretary of State for the Home Department Footnote ²²⁶ Lord Hoffman was the only dissentient on the critical issue of whether there was a public emergency. In R (Corner House Research) v Director of the Serious Fraud Office Footnote ²²⁷ it was again emphasized that the duty of decision in relation to an assessment of the public interest/national security context lay with the executive. Their Lordships considered that D was a prosecutor with no access to representatives of the relevant foreign state (Saudi Arabia). He was obliged and entitled to rely on the expert assessment of others.Footnote ²²⁸ There was also the discussion in Corner House of whether national and international security was a permissible consideration under article 5 of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (1997) and whether it would have been proper for the court to adjudicate on that question.Footnote ²²⁹

Other cases illustrate the difficulty of determining whether a national security case should effectively be categorized as non-justiciable. The Bancoult caseFootnote ²³⁰ considered above, concerned the banishment of the inhabitants from the British Indian Ocean Territory. The claimant (B) sought a declaration that the British Indian Ocean Territory (Constitution) Order 2004 and the British Indian Ocean Territory (Immigration) Order 2004, made by the Queen by Order in Council, acting upon the advice of the Secretary of State, were unlawful. B, a member of the Ilois population living in the British Indian Ocean Territory, had been exiled from the territory to Mauritius. The applicants succeeded before the High Court which considered that challenge to the orders in the instant case did not involve government policy of the kind envisaged in the CCSU decision, nor did it involve matters on which the court could not adjudicate. They also succeeded before the Court of Appeal which considered that there was nothing in the Orders in Council or in the nature of the claim for judicial review which made the issues non-justiciable on the grounds of subject matter.Footnote ²³¹ No such claim was even made by counsel. However, a majority of three to two in the House of Lords held that the courts could not inquire into whether legislation within the territorial scope of the power was in fact for the ‘peace, order and good government’ or otherwise for the benefit of the inhabitants of the territory.Footnote ²³² Such ‘questions are not justiciable. The law cannot resolve them: they are for the determination of the responsible ministers rather than judges’.Footnote ²³³

More striking in terms of judicial willingness to treat determinations of national security by the executive as justiciable was the Binyam Mohammed Case.Footnote ²³⁴ In February 2009 the High Court held that there was no basis on which the judgment of the Foreign Secretary as to the danger to national security posed by a real risk of loss of intelligence could properly be questioned in the circumstances. However, the rule of law required that the determination of where the balance of the public interest lay was ultimately for the decision of the court. At that time it concluded that the balance was served by maintaining the redaction of certain paragraphs from an earlier judgment of the court which dealt with the treatment of BM by US authorities while he was held in Pakistan. The redacted paragraphs summarized accounts given by the US intelligence services to the British security services about the treatment of B whilst he was in custody and about an interview by a member of British security. The paragraphs were highly material to an allegation by B that he had been subjected to torture and cruel, inhuman or degrading treatment and to the commission of criminal offences. However, in October 2009 the High Court concluded that, in the light of further information and developments, the public interest in making the paragraphs public was overwhelming, and as the risk to national security judged objectively on the evidence was not a serious one, it should restore the redacted paragraphs to its first judgment.Footnote ²³⁵ The Court specifically rejected the Foreign Secretary's opinion that there was a serious risk to intelligence sharing between the US and the UK. It also concluded that a statement made by US Secretary of State Clinton that intelligence sharing would be affected was made without a proper analysis or understanding of what the paragraphs contained. The judgment of October 2009 was itself in redacted form because the executive maintained its view that placing the paragraphs in the public domain would give rise to damage to national security and wished to ensure that the Secretary of State's position on appeal was not prejudiced.

After the High Court reached its decision, a US court found as a matter of public record, in proceedings brought by B in the US, that B had been subjected to torture. The Secretary of State contended that publication of the paragraphs would be contrary to the control principle, namely that if the US intelligence services disclosed confidential information to the UK intelligence services, or vice versa, the confidentiality of the information was vested in the country which disclosed the information. Publication would inevitably lead to a review of the intelligence sharing between the US and the UK that might lead to a less productive intelligence-sharing regime that would be contrary to the public interest in national security.

The Secretary of State's appeal was dismissed.Footnote ²³⁶ The executive, not the judiciary, was responsible for national security and public protection and safety from terrorist activity. The judiciary would defer to it on those issues, unless it was acting unlawfully, or unless in the context of litigation the court concluded that the claim by the executive for public interest immunity was not justified. B had a personal interest in seeing the full reasoning of the High Court, and there was also, in particular in litigation between the executive and a citizen, a public interest in open justice, the rule of law, freedom of expression and democratic accountability. Whilst the publication of the redacted paragraphs would result in a review of intelligence-sharing arrangements, that review would only possibly produce a change. Whilst there was a clear risk that any review would culminate in new and, from the point of view of national security, disadvantageous arrangements, that risk was the inevitable concomitant of any occasion when a court decided to reject the claim to preserve confidentiality on public interest immunity grounds. Publication of the redacted paragraphs would not reveal information which would be of interest to a terrorist, or disclosure of which would be contrary to national security. Having regard to the US judgment, the information contained in the paragraphs was essentially already in the public domain. It was hard to conceive of a clearer case for the disapplication of the control principle. Its application would partially conceal the full reasons why the High Court had found that those for whom the UK executive was ultimately responsible were involved in or had facilitated wrongdoing in the context of the practice of torture.