English Law Governs UK’s Participation in the “War on Terror”
In a post published on 8 June 2023, I introduced Zubaydah v Foreign, Development and Commonwealth Office, a case heard by the UK Supreme Court on 14 and 15 June.
Abu Zubaydah, the claimant (respondent in the appeal), has brought a tort claim against the UK government (appellants in the appeal), alleging that MI5 and MI6 officers made requests, from their London offices, to their CIA counterparts to interrogate him in circumstances where they knew or ought to have known of his rendition, unlawful imprisonment and torture by the CIA. The central issue was the law applicable to the claim, specifically focusing on the disputed application of the escape clause from section 12 of the Private International Law (Miscellaneous Provisions) Act 1995. The facts of the case, the claim, the central issue and the parties’ arguments are presented in my post of 8 June.
On 20 December 2023, the court delivered its judgment, dismissing the appeal in a four to one decision (Lord Lloyd-Jones, Lord Kitchin, Lord Burrows and Lord Stephens; Lord Sales dissenting). The court held that English law governed the claim, and not the laws of Afghanistan, Lithuania, Morrocco, Poland and Thailand and the law in force in Guantanamo Bay (“Six Countries”).
Interestingly, the court found that both the High Court and the Court of Appeal had erred in their approaches to section 12. The Court of Appeal, in particular, erred by focusing solely on the defendants’ conduct said to have occurred in England. It should have also taken into account the CIA’s conduct ([80], [81]). Hence, the Supreme Court conducted its own choice-of-law analysis.
The connections between the torts and the Six Countries were held to be weak for five reasons. First, Zubaydah was involuntarily present in the Six Countries ([75], [93]). Second, the defendants were entirely indifferent to Zubaydah’s location ([76], [94]). Third, Zubaydah was rendered to and detained in de facto black legal holes ([77], [95]). Fourth, he was held in six such facilities in six countries ([96]). Fifth, his gaolers and torturers were not agents of the Six Countries, but of a third country, ie the US ([97]).
Conversely, the connections between the torts and England were deemed strong for three reasons. First, the defendant is the UK government ([99]). Second, the relevant events occurred partly in England and for the perceived benefit of the UK ([78], [100]). Third, the defendants acted “in their official capacity in the purported exercise of powers conferred under the law of England and Wales… The defendants are all emanations of the UK Government and were at all material times subject to the criminal and public law of England and Wales.” ([101]; similarly [78])
Considering all these factors, the court held that it was substantially more appropriate for the applicable law to be English law.
In my post of 8 June, I noted that this case holds importance for private international law for two reasons.
Firstly, it highlights the role of private international law in holding the executive accountable and vindicating fundamental rights, particularly in cases involving alleged wrongs arising out of the external exercise of British executive authority. In my book on the topic, Torts in UK Foreign Relations, I argue that there are no compelling theoretical justifications for the application of foreign law in general to tort claims arising out of the external exercise of British executive authority. I further argue that the English courts should apply English law to tort claims arising out of the external exercise of British executive authority and reserve the application of foreign law only for certain issues, such as the lawfulness of the relevant conduct. The main reason for advocating the application of English tort law is that, together with English criminal and public law, it is fine-tuned for assuring the accountability of British public authorities. Foreign tort law is unlikely to be able to substitute for English tort law.
The Supreme Court essentially adopts this argument by placing decisive weight on the connections between the torts and England. It reinforces this point in relation to the misfeasance claim by noting, at ([62]), that “there is scope for suggesting, for example, that on the presumed facts of this case, it is a constitutional imperative that the applicable law in relation to the tort of misfeasance in public office in relation to the acts and omissions of the UK Services should be the law of England and Wales”.
Secondly, the parties and the court relied on reasonable/legitimate expectations as important factors in the choice-of-law process. Zubaydah’s involuntary presence in the Six Countries meant that he did not have a reasonable expectation that his situation or activities might be governed by the local laws ([75], [93]). Furthermore, the defendants’ indifference to Zubaydah’s location meant that the defendants never expected or intended their conduct to be judged by reference to the local laws ([94]). It is by partial reliance on this fundamental principle underlying the application of foreign law that the court held that foreign laws did not apply.
The Supreme Court judgment is important for two more reasons. It clarifies that an appellate court can interfere with an evaluative judgment under sections 11 and 12 of the 1995 Act if there is shown to be a clear error of law or the judge has reached a conclusion not reasonably open to them ([57]). Furthermore, it sheds light on the handling of accessory liability claims in choice of law. Such claims involve a secondary wrongdoer defendant and a primary wrongdoer third party. The court held that the “factors which connect a tort or delict” with a country, which the courts should consider when applying the escape clause from section 12, cover not only the allegedly wrongful conduct of the secondary wrongdoer (UK Services) but also that of the primary wrongdoer (the CIA) ([80], [81]). Although this judgment was made in the context of the 1995 Act, these aspects of its reasoning can easily be extrapolated to other choice of law contexts.
Many thanks, Ugljesa. From a continental perspective, it is hard to understand why the UK Supreme Court struggled so hard with this question. Under German and Austrian law, and probably most other legal systems of the civil law, a state can only be liable under its own law. That is one of the reasons why the liability for “acta iure imperii” is expressly excluded from the scope of the Rome Regulations, see their Art 1(1). In the US, acts of foreign states are will not be assessed for liability and other purposes under the “act of state doctrine”. It is hard to imagine the UK government being liable, say, under the law of Afghanistan or Lithuania. The more interesting question for me was why English law applies, and not, for instance, Scots law. Is English law the default law of the UK? Best wishes, Matthias
Thank you for your comment, Matthias. The Zubaydah case is actually an outlier and that it why it is important. In all other tort claims arising out of the external exercise of British executive authority, English courts held that foreign law applied. Probably the best example is provided by Alseran v MoD [2017] EWHC 3289 (QB), where the High Court applied Iraqi law to the liability of the British government for wrongs committed in Iraq (some of which amounted to violations of international humanitarian and human rights law). However, I share your viewpoint that it is unusual to subject the existence and extent of state liability for the consequences of sovereign action to foreign law. I think that the Zubaydah case was correctly decided and also that it brings into question the approach of English courts in preceding case law (I write about this extensively in my book, which is referred to in the blog, and am currently writing a longer case note making this point; some of these issues were recently discussed in the EJIL Talk! symposium on my book: https://www.ejiltalk.org/book-discussion-on-ugljesa-grusics-torts-in-uk-foreign-relations/).
With respect to your question, although the starting point is that English law does not have a higher status in the United Kingdom than Scots law, there are three reasons for the application of English law in cases like Zubaydah. First, and probably the most important reason from a practical point of view, is that the parties essentially agreed that the choice was between English law and foreign laws. Second, all tort claims arising out of the external exercise of British executive authority since the adoption of the Crown Proceedings Act 1947, which enabled Crown tort liability (with the sole exception of Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75 (HL)), were brought in England, and English courts do not apply Scott law to claims against UK public authorities. Third, in the Zubaydah case, UK government officials acted from their London offices. There was no allegation that any of the relevant acts took place in Scotland.
Matthias. In the English legal landscape, I don’t think one can underestimate the importance of the Diceyan principle of equality, which has as its starting point the idea that the State’s liability in tort should be governed by the same rules as govern the liability of private actors. Would you also think it obvious that the liability of a foreign state actor for tortious acts committed overseas should be governed solely by its own law? Should a state ordered assassination or torture be treated differently for choice of law purposes than one ordered by an organised crime syndicate?
Thank you for your comment, Andrew. While I was generally satisfied with the UKSC judgment, because I feel it aligns with the overarching argument from my book, I was disappointed by the lack of explanation regarding the relevance of the principle of equality in this context.
All of the preceding tort claims arising out of the external exercise of British executive authority had two things in common. First, the claimants advanced various causes of action, including misfeasance in public office, trespass, negligence etc. Second, in all these cases, the parties agreed that the same choice of law approach should be adopted in relation to all claims. Consequently, if the court’s obiter remark in [62] is correct (‘there is scope for suggesting, for example, that on the presumed facts of this case, it is a constitutional imperative that the applicable law in relation to the tort of misfeasance in public office in relation to the acts and omissions of the UK Services should be the law of England and Wales’), the preceding case law, where the courts held that foreign laws applied, becomes questionable.
In particular, I find it challenging to reconcile the UKSC judgment in Zubaydah with the Court of Appeal judgment in Belhaj v Straw (https://www.bailii.org/ew/cases/EWCA/Civ/2014/1394.html). How can, on the similar facts in these two cases, requesting intelligence in Zubaydah lead to the application of English law, while sending intelligence in Belhaj lead to the application of foreign laws?
For this reason, the judgment feels intellectually underwhelming and the missing piece is a discussion of the relevance of the principle of equality.
In response to your question, I think there are two important considerations to highlight. First, it is possible that different considerations apply in relation to the tort liability of foreign state actors in English territory. In [134] of Shehabi v Bahrain (https://www.bailii.org/ew/cases/EWHC/KB/2023/89.html), for example, the Court of Appeal emphasised that violation of UK’s sovereignty over its territory was the main justification for the territorial tort exception in section 5 of the State Immunity Act 1978. The courts do not approach claims arising out of the external exercise of British executive authority with the same perspective – in none of the preceding case law (including cases concerning wrongs done by UK officers in Iraq) did the courts take into consideration the possibility that the territorial sovereignty of the foreign state was violated by British sovereign action overseas.
Second, even if we adopt a similar approach to the tort liability of British and foreign state actors, there is the public policy exception, which could provide quite relevant in the scenario you have in mind.