I. INTRODUCTION
On 31 October 2012 the Supreme Court of England and Wales handed down its judgment in Rahmatullah v Secretary of State for Foreign Affairs and Secretary of State for Defence.Footnote 1 The case concerns whether a writ of habeas corpus was properly issued against the Secretaries of State with regard to a non-British citizen detained by the United States (US) authorities at Bagram airbase, Afghanistan.Footnote 2 Mr Rahmatullah (R) had been arrested by the United Kingdom (UK) armed forces in Iraq in 2003 and was subsequently transferred to US custody pursuant to a Memorandum of Understanding (MoU) between the UK and the US.Footnote 3 The Court held unanimously that there was sufficient uncertainty as to whether the UK retained control over R's detention for the court properly to issue the writ and that there was no reason to believe, at the time the writ was issued, that it would not be effective. However the majorityFootnote 4 held that the Secretaries of State had fulfilled their duties pursuant to the writ by providing evidence of the US's refusal to return R upon their request.
The writ of habeas corpus sits at the heart of constitutional law.Footnote 5 It is fundamental to protect the liberty of the individual from the unlawful use of executive power.Footnote 6 If the detention of a person cannot be legally justified, they have the right to be released. The court has no discretion to consider matters of public policy.Footnote 7 In the words of Lord Carnwath and Lady Hale in this case, ‘[t]he strength of habeas corpus is its simplicity’.Footnote 8 As Lord Kerr explained in the leading judgment, it is a flexible remedy that has developed over the centuries so that it may be directed not only to the authority that has actual physical custody of the detainee but also to the person or authority that has a reasonable prospect of securing control over the detainee or his production to the court.Footnote 9 This principle applies whether the detainee is within the jurisdiction of the court or has been unlawfully taken out of the jurisdiction.Footnote 10 In cases where it is not certain whether the authority does have the means of securing the detainee's release, a writ of habeas corpus may be issued in order for this uncertainty to be clarified.Footnote 11 The respondent authority will be required by the order to take sufficient steps to secure the detainee's release.
It is rare that the courts are asked to examine the situation where the individual is held outside the UK's jurisdiction by a foreign government. The last occasion appears to be Secretary of State for Home Affairs v O'Brien,Footnote 12 nearly 90 years ago. However, in the wake of the UK's involvement in the Iraq and Afghanistan conflicts and the ‘war on terror’ it may be that cases similar to Rahmatullah will follow.
The importance of this case is threefold. First, it accentuates the strength of habeas corpus as a remedy that has extraterritorial application where it can be shown that the UK has either de facto or de jure control over the detainee. Second, it shows the limited extent to which the Executive can hide behind the principle that the courts should not interfere with the conduct of foreign affairs where it is under a legal obligation to act and has failed to do so. Third, it raises fundamental issues concerning the responsibility of States acting in coalition for breaches of international law where there is a lack of consensus between them on the content of their legal obligations.
Before turning to the judgment and analysis of the case it is first necessary to consider the facts of the case.
II. FACTUAL BACKGROUND
R, a Pakistani citizen, was arrested and detained in Iraq by UK armed forces in February 2004. At that time the UK and the US were occupying powers in Iraq, having announced the end of major combat operations on 1 May 2003.Footnote 13 On 16 October 2003 the UN Security Council adopted Resolution 1511 (2003) that authorized ‘a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq’.Footnote 14 In accordance with the terms of a MoU agreed between the UK, the US and Australia on 23 March 2003 (2003 MoU),Footnote 15 the UK transferred R into US custody. The 2003 MoU provides, inter alia, that it is to be implemented in accordance with the Geneva Convention Relative to the Treatment of Prisoners of War (GC3),Footnote 16 the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC4)Footnote 17 and customary international law.Footnote 18 Clause 4 of the 2003 MoU provides that,
Any prisoners of war, civilian internees, and civilian detainees transferred by a Detaining Power [the UK] will be returned by the Accepting Power [the US] to the Detaining Power without delay upon request by the Detaining Power.Footnote 19
Clause 5 of the 2003 MoU provides that,
The release or repatriation or removal to territories outside Iraq of transferred prisoners of war, civilian internees, and civilian detainees will only be made upon the mutual arrangement of the detaining power and the accepting power.Footnote 20
The Supreme Court observed that this provision was likely to have been included because of the need to comply with Article 45 GC4 which states that protected persons may only be transferred to a power that is a party to the Convention and after the detaining power has satisfied itself that the transferee power is willing and able to apply the Convention.Footnote 21
A short time after R had been transferred into US custody he was taken from Iraq to Afghanistan, where he was detained at the now infamous Bagram airbase.Footnote 22 It appears that the UK authorities were made aware of the intention to transfer R from Iraq to Afghanistan but were not informed of the transfer before it took place.Footnote 23 UK officials were aware of the transfer by June 2004.Footnote 24
According to the Ministry of Defence it was considered important to obtain the MoU because of ‘the known US position on the application of the Geneva Conventions’, namely that the Conventions do not apply to members of al-Qaeda.Footnote 25 In this case the US authorities believe that R is a member of Lashkar-e-Taiba, a group they say is affiliated to al-Qaeda,Footnote 26 and have designated him as an ‘unlawful enemy combatant’.Footnote 27 The US's position, not shared by the UK, is that R does not benefit from protection under the Geneva Conventions.Footnote 28
The agreement between the US and the UK concerning the transfer of detainees changed in 2008. A revised MoU (2008 MoU) did not contain a provision equivalent to clause 4 2003 MoU providing for the return of any detainee transferred to the US upon request by the UK government.Footnote 29 The UK remained, however, under a continuing obligation pursuant to GC4 to ensure that transferred detainees were treated in accordance with the Convention and to demand their return if they were not.Footnote 30 In any event the Court dismissed the Secretary of State's claim that the 2008 MoU replaced and superceded the 2003 MoU and decided the case on the basis that the 2003 MoU continued to apply to pre-2008 MoU detainees.Footnote 31
On 5 June 2010 a Detainee Review BoardFootnote 32 hearing conducted by the US authorities at Bagram airbase determined that R's continued detention was ‘not necessary to mitigate the threat he poses’ and recommended his transfer to Pakistan for release. The recommendation was approved by the relevant US military authority on 15 June 2010. However, the recommendation had not been put into effect. The US's stated position is that before a detainee may be transferred for release the US authorities will seek ‘appropriate security assurances’ that, generally, require the receiving country to take measures to ensure the detainee will not pose a threat to the receiving country or the US.Footnote 33 It appears that these assurances were yet to be received.
The Administrative Court refused R's application for a writ on the ground that it was clear that the respondent did not have sufficient control over R's detention. Relying heavily on the evidence of the respondent that attempts to enforce the 2003 MoU would be futile, the court held that it was apparent from the arrangements between the US and the UK that all the respondent could do would be to request R's return, a request which may or may not be acceded to.Footnote 34 Neither the terms of the 2003 MoU nor the Geneva Conventions appear to have assisted the court. The Court of Appeal's judgment, rejecting the decision of the Administrative Court and issuing a writ of habeas corpus, is markedly different.Footnote 35 The Court of Appeal held that it was justified in issuing a writ of habeas corpus to test the claim of a respondent that it no longer had control over a detainee.Footnote 36 In light of the 2003 MoU and the UK and US's obligations pursuant to the Geneva Conventions there was sufficient evidence that the US would accede to a request by the UK to return or release R.Footnote 37
In response to the writ the Secretaries of State provided a letter from the US Department of Defense stating, in essence, that R would not be returned to the UK as the US had already received a request from the Government of Pakistan for his repatriation and the US considered that it may be more appropriate to discuss his transfer with Pakistan rather than the UK.Footnote 38 Emphasizing that the order of the writ was not a pointless exercise,Footnote 39 the Court of Appeal found that there was nothing more that the UK could do to seek R's return, thus concluding the matter.Footnote 40
The Secretaries of State appealed against the decision of the Court of Appeal to issue the writ. The crux of their case was that the matter fell within the conduct of foreign affairs, ‘an area which the courts should scrupulously avoid’.Footnote 41 R cross-appealed against the Court of Appeal's determination that the Secretaries of State had taken sufficient steps to seek his return and that the Secretaries of State had fulfilled their obligations under the writ.
III. THE JUDGMENT
The Supreme Court unanimously upheld the Court of Appeal's decision to issue the writ, affirming the general principle that actual physical custody of the detainee by the respondent to a writ is not essential to the effectiveness of that writ.Footnote 42 A writ of habeas corpus may be issued where there are reasonable grounds to believe that the UK has the means to procure the release of the detainee.Footnote 43 Most importantly, the Court emphasized that an individual is entitled to the remedy as of right. It is not a discretionary remedy.Footnote 44 Matters of public policy are not relevant considerations. As Lord Kerr explained, if the detention cannot be legally justified the detainee is entitled, without more, to have their detention brought to an end.Footnote 45
A. Legality of Detention
The central issues were the UK's control over R's detention and the State's ability to procure his release. There was no criticism of the legality of the UK's detention of R or his transfer and this was not in issue in the courts below and, initially, in the Supreme Court. As Lord Neuberger said in the Court of Appeal, summarizing the submissions of the applicant which had not been challenged by the Secretaries of State,Footnote 46
it is a fundamental principle of English law that, where an individual is detained against his will, it is for the detainer to show that the detention is lawful, not for the detainee to show that his detention is unlawful.Footnote 47
However, in response to a question from the then President of the CourtFootnote 48 during the course of oral submissions, the Supreme Court did hear submissions on legality. The Secretaries of State relied upon the opinion of the US assistant attorney general that al-Qaeda operatives are excluded from ‘protected person’ status provided by GC4,Footnote 49 it appears in order to support the contention, that R's continued detention can be justified under US law. Nevertheless, central to the issue of legality, they submitted, was the application of the Geneva Conventions and ‘not an examination of the legal basis that the US might claim to justify [R's] detention’.Footnote 50 The Court held that GC4 applied to R.Footnote 51 This determination was made against the background of the Report of the UK Intelligence and Security Committee on the Handling of Detainees by the UK intelligence personnel in Afghanistan, Guantánamo Bay and IraqFootnote 52 which states that ‘the UK regards all personnel captured in Afghanistan as protected by the Geneva Conventions’.Footnote 53 The Court found that it was not open to the Secretaries of State to suggest, in accordance with the position posited by the US assistant attorney general, that GC4 does not apply.Footnote 54 To adopt the US position would be to undermine the UK's sovereignty by paying deference to another State's opinion of the application of international law in clear contradiction to the UK government's own policy.
After careful consideration the Court held that the ‘presumably forcible’ transfer of R from Iraq to Afghanistan was at least a prima facie breach of article 49 GC4Footnote 55 and that his continued detention after the end of hostilities in Iraq is contrary to Articles 132 and 133 GC4.Footnote 56 It follows that there was clear prima facie evidence that R was being detained unlawfully and that the UK was under an obligation, after becoming aware of any failure by the US to comply with GC4, to correct the situation or request R's return pursuant to Article 45 GC4.Footnote 57
B. Control and Continuing Obligations under International Humanitarian Law
The Court held that ‘[t]he existence of the 2003 MoU and, in particular clause 4 of that document, provided more than sufficient reason to conclude that the UK government could expect that, if it asked for it, R's return by US forces would occur’.Footnote 58
The UK government's claim that any request to the US for the return of R would be futile was firmly rejected as a ground for refusal of the application.Footnote 59 Referring to Othman v United Kingdom (8139/09)Footnote 60 and Ahmad v Government of the United States of America Footnote 61 in which the respondent governments had relied upon MoUsFootnote 62 in order to support cases for extradition, the Court held that it does not follow from the fact that MoUs are not legally binding that they are not de facto enforceable.Footnote 63 The 2003 MoU was a means by which the UK government ensured it met its obligations under international law,Footnote 64 particularly in light of the US's known position on the application of the Geneva Conventions to members of al-Qaeda.Footnote 65 As Lord Kerr said,
Put plainly, the UK needed to have in place an agreement which it could point to as showing that it had effectively ensured that the Geneva Conventions would be complied with in relation to those prisoners that it had handed over to the US.Footnote 66
The 2003 MoU is an express recognition by the UK of its obligations towards detainees under international law. But it appears to have been treated more as a shield against litigation than an agreement of substance. Yet the Court has treated the 2003 MoU as a quasi-legal instrument, binding on the parties as a solemn undertaking would be.Footnote 67 This is notwithstanding evidence undermining the government's previous assertions that MoUs are ‘a well-established and much used tool of international relations’Footnote 68 and that to criticize an MoU because it is not legally binding ‘was to betray a lack of an appreciation as to how MOUs worked in practice between states’.Footnote 69 The Court has left a clear message that MoUs are not insignificant, holding the government to its previous contentions. But future failures by UK government to ensure an MoU's terms are upheld may have legal consequences.Footnote 70
C. The ‘Unexplored Issue’
In separate, concurring judgments Lord Phillips and Lord Reed raised what Lord Phillips termed the ‘unexplored issue’.Footnote 71 This unexplored issue turned on the fact that there was no challenge to the legality of R's detention or transfer by the UK. Lord Phillips questioned whether R could invoke the UK's obligations pursuant to the Geneva Conventions in domestic proceedings, and if so whether judicial review based on the doctrine of legitimate expectation would be a more appropriate cause of action than habeas corpus. His Lordship expressed his concern that this case should not be deemed to have resolved these questions in R's favour.Footnote 72
But this ‘unexplored issue’ has little bearing on the case. As explained above, the lack of challenge to the legality of the original arrest and detention or transfer into the custody of another StateFootnote 73 does not preclude an application for habeas corpus. As Lord Carnwath and Lady Hale said in a separate judgment (dissenting on the cross-appeal),
habeas corpus is equally applicable where detention, originally lawful, later becomes unlawful. It is true also that in this case the illegality of the detention arose through the actions of the US, rather than the UK, and at a time the UK no longer had actual custody. However, it is difficult to see why this should make a difference in principle. Since illegality of detention is presumed in favour of the applicant, it should not be a defence for the UK to say that it arose from someone else's actions, if the UK has the practical ability to bring it to an end.Footnote 74
D. Pushing the Boundaries of ‘Forbidden Territory’?
The focus of the Secretaries of States' submissions, and therefore much of the argument in the Supreme Court and in the courts below, turned on the issue whether by issuing the writ the Court of Appeal strayed into the ‘forbidden territory’—the conduct of foreign affairs. This was an important consideration both with regard to the question of the extent of the UK's control over R's detention and whether the Secretaries of State had done all they could to seek his return. These two questions are examined below in turn.
The Court firmly rejected the submissions of the Secretaries of State that by issuing the writ of habeas corpus the court strayed into the ‘forbidden territory’ of foreign affairs.Footnote 75 It held that the writ was not an instruction to the Government to demand R's return, but to show whether or not de facto control by the UK existed.Footnote 76 As Lord Kerr explained, the Court of Appeal's decision to issue the writ ‘merely reflects the court's conclusion that there were sufficient grounds for believing that the UK Government had the means of obtaining control over the custody of Mr Rahmatullah’.Footnote 77
The Court did not overrule the principle that ‘the court cannot enter the forbidden areas, including decisions affecting foreign policy’.Footnote 78 The previous case of R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs,Footnote 79 in which the Court of Appeal had held that it did not have the jurisdiction to order the Secretary of State to bring a claim on behalf of a British citizen detained at Guantánamo Bay, was distinguished. First, in this case the Court was not requiring the Secretary of State to take a particular foreign policy stance by issuing the writ.Footnote 80 The writ merely required the Secretary of State to demonstrate to the Court whether it is in fact in control of R's detention or whether to provide evidence of why it is not.Footnote 81 Second, the principal issues in Abbasi were the extent to which the court could examine whether a foreign state is in breach of its international obligations and the extent to which decisions of the Executive in the field of foreign relations are justiciable.Footnote 82 Neither of these issues arose in the present case.Footnote 83 The legality of R's detention by the US was not in issue; rather, the issue was the lawfulness of the UK's failure to seek his return.Footnote 84
However, considerations of ‘forbidden territory’ were inherent in the question whether the UK had taken sufficient steps to comply with the writ of habeas corpus. The majority in the Supreme Court accepted the Court of Appeal's reasoning that the letter from the US Department of Defense ought to be interpreted through the eyes of the world of international relations and in the way proffered by the Foreign and Commonwealth Office (FCO).Footnote 85 The Court of Appeal had received evidence from the Director of National Security in the FCO that the letter should be read as an unequivocal refusal to return R. Demonstrating the reluctance of the Court to stray into areas concerning foreign affairs, Lord Neuberger had said in the Court of Appeal, ‘it would be very doubtful whether a domestic court should start dictating to the FCO or the MoD as to how to communicate with a foreign government, and in particular how a letter relating to a potentially sensitive diplomatic issue should be expressed. Doing so would risk trespassing into the forbidden areas referred to in our earlier judgments.’Footnote 86 This position was reinforced in the Supreme Court. Giving judgment on behalf of the majority Lord Kerr reasoned,
A diplomatic silence on that question [whether the US agreed that the UK retained control] does not necessarily indicate a lack of interest on the subject. It is at least as consistent with a profound disagreement with the view that the UK could assert entitlement to control but that this, in the interests of diplomacy, was better left unexpressed.Footnote 87
Lady Hale and Lord Carnwath rejected the reasoning of the majority, determining that the UK government should have sought to clarify the US government's opinion whether the UK retains an interest in the matter by virtue of the MoU or GC4.Footnote 88 In their view, ‘[w]here liberty is at stake, it is not the court's job to speculate as to the political sensitivities which may be in play’.Footnote 89 The court should not be satisfied with the government's response and should require the UK government to resubmit the request, relying on the UK's obligations under the MoU and GC4. They concluded, ‘[t]he governing consideration for the court should be that the applicant remains in detention in Afghanistan, many years after the conflict in Iraq ceased, and after GC4 (as seen through British eyes) required him to be released’.Footnote 90
IV. COMMENTARY
A. Liberty, Jealously Guarded
It is usually in times of war and national emergency that the Executive seeks to restrict the power of the courts to review the detention of individuals who are deemed to pose a threat to the nation.Footnote 91 In Rahmatullah the UK courts have shown a determination to protect the hallowed principle of habeas corpus.
In the decade since President George W Bush declared the ‘war on terror’ in his speech to Congress on 20 September 2001Footnote 92 the US military, law enforcement and intelligence services, either acting alone or as part of multinational military operations, have detained citizens and non-citizens without charge in a number of locations around the world, the most notorious being Guantánamo Bay Naval Base, Cuba, and Bagram airbase, Afghanistan. Consequently, the US government and the US courts have engaged in a protracted battle over the extent of an individual's right to freedom from indefinite detention and the jurisdiction of the courts to review the detention of non-citizens held abroad. Two important issues have arisen. First, whether a government has a duty to seek the return of citizens detained without trial abroad and second, whether foreign citizens detained abroad may invoke habeas corpus. By its decision in Rahmatullah, the UK Supreme Court has extended the reach of habeas corpus beyond that currently accepted by the US courts.
Like the UK courts, the US Supreme Court has been resolute in upholding the principle of habeas corpus. In Rasul v Bush,Footnote 93 the US Supreme Court reinforced the principle that the Executive cannot remove a detainee from the territorial jurisdiction of the courts in order to evade the reach of habeas corpus. Attempts by Congress to override the Supreme Court and preclude the courts from exercising jurisdiction over detainees at Guantánamo Bay by enacting the Military Commissions Act 2006Footnote 94 were declared unconstitutional in the landmark decision Boumediene v Bush.Footnote 95 In the case of Munaf v Geren,Footnote 96 the Supreme Court held that US federal courts had jurisdiction to consider an application for habeas corpus brought by US citizens detained overseas by US forces operating subject to a US chain of command and acting as part of a multinational force.Footnote 97 The Court held that, according to US statutory provisions, an individual is in the custody of the US when the US official has ‘the power to produce’ him.Footnote 98
However, any hopes that Boumediene and Munaf may have opened the possibility of the US courts accepting jurisdiction over all persons detained by the US but outside of the State's territorial jurisdiction were short-lived.Footnote 99 In Al Maqaleh v Gates Footnote 100 the District Court of Appeals held that the constitutional right to habeas corpus did not, in this case, extend to non-citizens detained on foreign territory in an active theatre of military combat. The petitioners all claimed to have been captured outside Afghanistan and were being detained at Bagram airbase. The Court of Appeals distinguished Bagram from Guantánamo Bay on the bases that the US had neither de jure nor de facto sovereignty over the territory where Bagram is located, and Bagram continued to be exposed to the vagaries of armed conflict. In doing so the Court of Appeals applied the dicta in Boumediene that ‘[w]hile obligated to abide by the terms of the lease, the United States is, for all practical purposes, answerable to no other sovereign for its acts on the base. Were that not the case, or if the detention facility were located in an active theater of war, arguments that issuing the writ would be ‘impractical or anomalous' would have more weight’.Footnote 101
It is here that UK and US jurisprudence clearly diverge. The issue in Boumediene and Al Maqaleh was whether the US had de jure or de facto jurisdiction and control over the territory where the detention centre is located. In Rahmatullah, applying Ex parte O'Brien, the issue is whether the UK has control over the detainee himself. Critical to the petitioner's case in Al Maqaleh was the fact that Bagram airbase was located in a place where an armed conflict was taking place and that this created a practical obstacle to ‘resolving the prisoner's right’ to habeas corpus.Footnote 102Rahmatullah confirmed that the location of detention is not fatal to the availability of habeas corpus. In Rahmatullah the operation of the Geneva Conventions in relation to the armed conflict in Iraq was pivotal to the court's findings. The UK's (and the US) obligations pursuant to the 2003 MoU that reflected Article 45 GC4 created the necessary nexus to raise the issue of control. The location of detention was only relevant insofar as R's physical detention by a foreign authority in a foreign state impacted on the Secretary of States' ability to secure his release or production in court in response to the writ, rather than R's right to remedy.
B. Selling the Pass?
The question remains whether persons detained by a foreign state as part of the war on terror will have a cause of action on the sole basis of the UK's continuing international obligations under the Geneva Conventions.Footnote 103 In addition the question whether there would be a cause of action by judicial review against the UK for the failure to seek the return of R, in breach of its obligations under GC4 remains unresolved. But as Lord Kerr said, there are two obstacles to any such action: first, the non-justiciability of decisions of the Executive in the field of foreign affairs; and second, the possible defence that the decision not to seek his return was justified in order to preserve good relations with an ally.Footnote 104
Moreover, there is little reason to conclude that the UK Supreme Court would go as far as the Federal Court of Australia to open up the possibility that detainees held by a foreign authority in Guantánamo Bay or elsewhere could apply for habeas corpus by virtue of their British citizenship alone. In Hicks v Ruddock Footnote 105 the Federal Court of Australia held that a writ to test the Australian government's ability to secure Hicks' release from Guantánamo Bay would be properly issued. The nexus in that case was Hicks' Australian citizenship. The ground-breaking nature of Hicks is highlighted by Lord Phillips' comment in Rahmatullah that, although acknowledging Hicks, he knew ‘of no case in this jurisdiction where habeas corpus has issued in respect of a person, British or alien, held unlawfully outside the jurisdiction by a foreign state, on the simple ground that the United Kingdom was, or might be, in a position to prevail upon the foreign state to release him’.Footnote 106 R's case is distinguishable by the fact that he had originally been detained by the UK and this triggered the UK's obligations towards him under the 2003 MoU and international law. These obligations provide the grounds for presuming that the UK has the means of securing his release. Detention by another State without ever having been in the custody of the UK would not trigger these obligations. Without more, there would be no legal or factual basis to suggest the UK had the necessary control over the detainee to support a writ of habeas corpus.
Despite rejecting the Secretaries of State's argument that the issues in this case concern the conduct of foreign affairs and are therefore non-justiciable, the Court was careful not to interfere with the Executive. The lawfulness of detention was examined on the basis of the law applicable to the UK. By carefully crafting its judgment in terms of the UK's obligations under the 2003 MoU and, ultimately, the Geneva Conventions, and by accepting the government's evidence that, as a matter of diplomacy, it must accept the refusal of the US to return R, the Court firmly reinforced the principle of judicial restraint. This is a cause for concern. The rule of law will be undermined in the event that the government continues to cooperate with foreign states despite apparent knowledge of the futility of attempting to enforce the terms of a MoU. The bleak reality is that even persons detained in a foreign jurisdiction who have a right to remedy in the UK courts may be beyond the reach of any effective legal remedy because of the exigencies of foreign policy. This reality, and the limits of habeas corpus, is illustrated by Lord Neuberger's remarks in the Court of Appeal,
[t]he melancholy truth is that the events since we handed down judgments appear to establish that (i) when the UK defence forces handed over the applicant to the US authorities in questionable circumstances in 2004 … they most unfortunately appear to have sold the pass with regard to their ability to protect him in the future, and (ii) Mr Parmenter of the MoD turns out to have been right when he said that he thought that the issue of a writ of habeas corpus would, in terms of its practical outcome for the applicant, be a ‘futile course of action’.Footnote 107
This case raises a further question, namely, whether the UK would be subject to judicial review should it enter into similar agreements to the 2003 MoU in the future, knowing that any attempt to enforce their provisions may be futile. The Court clearly affords the significant weight to the terms of MoUs it has been asked to by the government in previous cases. This is despite, it seems, the admission by the Secretaries of State that these arrangements may not be worth the paper they are written on. As a consequence the government cannot rely on the fact that MoUs are not legally binding to escape the scrutiny of the courts with regard to its efforts to ensure their enforcement. Futility of diplomatic efforts to enforce an agreement may have relieved the Secretaries of State of their duties pursuant to the writ in this case but a presumption of ineffectiveness can be no justification for inaction.
