1. This application is nothing if not topical. Resolution 1441 was
unanimously adopted by the United Nations Security Council on 8 November 2002. It affords
Iraq "a final opportunity to comply with its disarmament obligations" (paragraph
2) and recalls that the Council "has repeatedly warned Iraq that it will face serious
consequences as a result of its continued violations of its obligations" (paragraph
13). Just ten days ago, pursuant to paragraph 3, Iraq provided the United Nations’
Monitoring Verification & Inspection Commission (UNMOVIC) and the International Atomic
Energy Agency (IAEA) with a twelve thousand page dossier by way of a "declaration of
all aspects of its programmes to develop chemical, biological and nuclear weapons".
UNMOVIC and IAEA are presently engaged in their inspection activities. All this is well
known, front-page and television news on a daily basis. It is a time of great
international tension.
2. What the applicants, Campaign for Nuclear Disarmament (CND), seek by
this judicial review application is solely declaratory relief, an advisory declaration as
to the true meaning of Resolution 1441 and more particularly as to whether it authorises
States to take military action in the event of non-compliance by Iraq with its terms. CND
submit it does not. In short, the court is being invited to declare that the UK Government
would be acting in breach of international law were it to take military action against
Iraq without a further Resolution. It is, to say the least, a novel and ambitious claim.
3. Before coming to examine it let me first set it in the context of
certain public statements made by the defendants upon which the applicants seek to rely.
Although many such are to be found in the documents before us, I shall quote just three,
each made by the Foreign Secretary, the second defendant:
i. 7 November 2002 (the day before Resolution 1441 was adopted), in
the House of Commons:
"I do not want to anticipate what will happen if there is a
breach, except to say that although we would much prefer decisions to be taken within the
Security Council, we have always made it clear that within international law we have to
reserve our right to take military action, if that is required, within the existing
Charter and the existing body of UN Security Council resolutions if, for example, a
subsequent resolution were to be vetoed. However, I do not believe it will come to
that."
ii. 10 November 2002, when interviewed on BBC Radio 4:
"Well, I think it’s pretty obvious what ‘serious
consequences’ means. Of course there were some negotiations over the text, but the
United States and the United Kingdom would not have voted for this text, indeed sponsored
the text, had we not been satisfied that it spelt out a very clear set of ultimata to
Saddam Hussein, gave the inspectors the best possible powers and also spelt out at the end
of the resolution what would happen if Saddam Hussein did not cooperate. It’s all
there. It’s very clear and, yes, military action is bound to follow if Saddam Hussein
does not cooperate fully with the terms of this resolution."
iii. 25 November 2002, in the House of Commons:
"I should make it clear to the House, as I did on 7 November, that
the preference of the British Government, in the event of a material breach, is that there
should be a second Resolution authorising military action. The faith now being placed in
the Security Council by all members of the United Nations, including the US, requires the
Council to show a corresponding level of responsibility. So far it has more than done so.
I believe it will do so in the future. But we must reserve our position in the event that
it does not."
4. As was indicated in the first of those statements and as, indeed,
has repeatedly been stated by the ministers throughout the whole course of events, the
government intends only to take action which is justified by international law. As the
first defendant said in Parliament on 24 September 2002:
"We will always act in accordance with international law."
5. There is no reason to doubt the government’s good faith in this
commitment and I do not understand the applicants to question it. On the contrary, it
forms the first plank of their argument for the declaration sought. What Mr Rabinder Singh
QC submits is that, the government having clearly stated that it would not wish to take
military action save in accordance with international law, "there is a great public
interest in ensuring that the government is adequately informed on this key question of
law; the government should have the benefit of judicial guidance as to what the law
is". I take this from the applicant’s written reply. In the same passage
"CND makes it clear that it does not invite the court to seek to influence the policy
decisions of the government in this area".
6. The applicant’s argument would appear to suggest that
government’s need of the court’s assistance in understanding the true position
in international law is evident from two things: first, CND’s contention that without
a second Security Council resolution military action against Iraq would be unlawful;
secondly, the government’s apparent belief to the contrary evidenced by the second of
the Foreign Secretary’s statements set out above (the evidential high-water mark of
the applicant’s case that the defendants have misdirected themselves in law on the
question), and perhaps also by the third of those statements in which, by
"reserv[ing]" the government’s position in the event that no second
resolution is adopted, Mr Straw is said to have implied that the UK government would
regard itself nevertheless as able to take military action. At the very least, it appears
to contemplate that possibility.
7. Essentially, therefore, it is CND’s case that they are bringing
this application solely to ensure that government do not at some future date embark upon
military action against Iraq in the mistaken belief that it is lawful to do so when in
fact it is not. Given CND’s avowed purpose, which is to campaign against war and in
favour of the peaceful resolution of conflict, some might think this disingenuous. Such
suspicions might be sharpened by seeing it asserted in CND’s skeleton argument that
"the Government is effectively saying that it wants the option of acting unlawfully
without the opprobrium of being seen to do so". For present purposes, however, I
propose to accept it at face value. The critical question nevertheless remains whether,
even assuming this to be so, the claim is one which the court should properly entertain
and determine. That is the issue presently before us. Pursuant to an order made by Maurice
Kay J on 29 November 2002, the application has been confined initially to the
determination of preliminary issues in the way of justiciability, prematurity and standing
- everything, in short, save for the substantive point of international law upon which the
applicants ultimately seek the court’s ruling.
8. Before, however, coming to these preliminary issues, it is I think
necessary to sketch in at least the framework of the argument which CND wish to advance on
the substantive question. For this purpose I must set out three further paragraphs of
Resolution 1441. By these paragraphs the Security Council:
"4. Decides that false statements or omissions in the declarations
submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply
with, and cooperate fully in the implementation of, this resolution shall constitute a
further material breach of Iraq’s obligations and will be reported to the Council for
assessment in accordance with paragraphs 11 and 12 below;
…
11. Directs the Executive Chairman of UNMOVIC and the Director-General
of the IAEA to report immediately to the Council any interference by Iraq with inspection
activities, as well as any failure by Iraq to comply with its disarmament obligations,
including its obligations regarding inspections under this resolution;
12. Decides to convene immediately upon receipt of a report in
accordance with paragraphs 4 or 11 above, in order to consider the situation and the need
for full compliance with all of the relevant Council resolutions in order to secure
international peace and security."
9. Following the adoption of Resolution 1441, public statements were
made by a number of the ambassadors to the United Nations from the Member States of the
Security Council. The UK’s ambassador stated:
"There is no ‘automaticity’ in this Resolution. If there
is a further Iraqi breach of its disarmament obligations, the matter will return to the
Council for discussion as required in operational paragraph 12."
10. CND point out that an earlier draft of the resolution had provided
not merely that non-compliance with its terms should constitute a further material breach
of Iraq’s obligations but also "that such breach authorises Member States to use
all necessary means to restore international peace and security in the area". The
phrase "all necessary means" is widely recognised to encompass the use of force
and indeed this form of words is to be found in Resolution 678 of 29 November 1990 by
which Member States were authorised to act following Iraq’s invasion of Kuwait. The
omission of that clause from Resolution 1441 as adopted is, suggest CND, striking and
significant. That consideration, they submit, coupled with ambassadorial statements
exemplified by that made by the UK ambassador and, most importantly of all, the express
text of the resolution by which any breaches must be reported back to the Council for it
to deal with as it may then think appropriate, makes good their contention that breach of
the resolution would not of itself authorise the taking of military action. Their case on
the true construction of the resolution, they submit, is not merely arguable but strong.
They further submit that it raises a sharp-edged question of law involving no
considerations of policy, no disputed areas of fact, no consideration of the developing
international situation. It is thus an issue upon which the court can and should decide.
Such, in a nutshell, is the applicant’s contention.
11. The defendants assert to the contrary that there are compelling
reasons for the court not to embark upon such an exercise, prominent amongst them
considerations of the national interest. It is in this connection that there is before the
court a statement dated 5 December 2002 made by Mr Ricketts, Director General for
Political Affairs at the Foreign and Commonwealth Office, who draws upon 28 years’
experience closely involved in the United Kingdom’s conduct of its international
relations and diplomatic negotiations with foreign States. I must set out the bulk of this
statement in full:
"3. The claimants have asked that the Government explain its
understanding of the legal position with regard to the interpretation of Security Council
Resolution 1441 (2002). In the judgment of the Secretary of State and the Foreign &
Commonwealth Office, and in my own opinion, however, it would be prejudicial to the
national interest and to the conduct of the Government's foreign policy if the Government
were to be constrained to make a definitive statement of its legal position under
international law in relation to issues concerning the international relations of the
United Kingdom. The short point is that it is an unavoidable feature of the conduct of
international relations that issues of law, politics and diplomacy are usually closely
bound up together. The assertion of arguments of international law by one state is in
practice regarded by other states as a political act, and they react accordingly. The
UK’s international alliances could be damaged by the incautious assertion of
arguments under international law which affect the position of those other states.
4. This is especially true in a situation which (like the present
situation covered by resolution 1441) is sensitive and where tension is high on all sides:
the assertion of arguments of international law by one state which are unpalatable to
other states may have the effect of increasing tension and diminishing the possibilities
for a diplomatic (and, it is hoped, peaceful) solution. It is also especially true where
the issue of international law to be considered is an issue which (like the interpretation
of resolution 1441) affects not just the United Kingdom, but many other states as well,
who will have their own strongly held views about the matter. It is frequently important
for the successful conduct of international affairs that matters should not be reduced to
simple black and white, but should be left as shades of grey and open for diplomatic
negotiation. Questions of international law often remain at large and may form part of the
wider debate between and within states.
5. Further, there are many and obvious examples of situations where the
disclosure of a legal position on the part of the Government would be prejudicial to the
national interest, as tending to indicate to other states the practical constraints
affecting the Government. To disclose the Government’s understanding of the legal
position under international law of an international negotiation (eg of an amendment to a
treaty, or of a resolution) could plainly be prejudicial to the success of the Government
in that negotiation – as a practical indication of the constraints under which the
Government may understand itself to be operating, and its legal "bottom line".
Where an international issue involves the possible use of force by the Government, the
advance discussion of legal advice as to the legality or otherwise of the use of force in
a variety of possible circumstances could be of immense value to the potential adversary,
allowing it to plan and adopt positions contrary to the interests of this country with
greater assurance than would otherwise be the case.
6. The practical experience of the Foreign & Commonwealth Office
shows, therefore, that the greatest care should be exercised and sensitive diplomatic
judgment be brought to bear before the Government commits itself to supporting arguments
in international law, which may prove controversial for friends and/or opponents and which
may compromise the Government’s own negotiating position as a tense international
situation develops."
21. Having then set out the Foreign Secretary’s statement in the
House of Commons on 25 November 2002 (see paragraph 3(iii) above), Mr Ricketts continues:
8. That statement is a considered position. The judgment of the
Secretary of State and of the Foreign & Commonwealth Office is that, in this sensitive
area and at this time, it would be detrimental to the national interest and the conduct of
this country’s international relations for the Government to go further or to commit
itself to any more definitive view. The question whether the Government’s views on
the legal position on this issue should be further disclosed is a political issue, a
decision on which would have consequences for our international relations. Any indication
of the constraints (including legal constraints) which may affect decisions by an
international coalition to use force to secure Iraqi compliance with its obligations
regarding weapons of mass destruction could well be detrimental to achieving that
objective.
9. Further, to make public the Government’s detailed understanding
of the legal position on the interpretation of SCR 1441(2002) in advance of any future
negotiation in the Security Council of a further resolution could well be detrimental to
the success of that negotiation.
10. It is also clear that the formulation of a legal position with
regard to a future Security Council resolution must be dependent upon the facts and the
circumstances prevailing at the time. To indicate now whether it is the Government’s
view that a resolution is or is not necessary, other than in abstract terms, would not be
possible in view of the impracticability of forecasting the developing situation in
detail, and would not be helpful in terms of arriving at a resolution of the situation in
the interests of the United Kingdom. Thus, in the House of Commons on 25 November, the
Foreign Secretary stated:
‘Paragraph 4 [of Security Council resolution 1441] therefore
defines in general terms what a material breach will consist of. As with any definition of
that type, it is never possible to give an exhaustive list of all conceivable behaviours
that it covers. That judgement has to be made against the real circumstances that
arise’"
13. I shall have to return later to the main thrust of that statement,
Mr Ricketts’s strongly expressed view that "it would be prejudicial to the
national interest and the conduct of the government’s foreign policy if the
government were to be constrained to make a definitive statement of its legal position
under international law", for the various reasons which he then explains. For the
moment I pause only to note the contention in paragraph 10 of the statement that the
substantive issue sought to be raised here is not the clear-cut question of construction
suggested by CND but rather is fact-sensitive and dependent upon the developing
international situation. Mr Sales argues that the developing facts could become relevant
in two main ways. First, the nature and extent of any non-compliance could affect the
question whether article 51 of the United Nations Charter (the self-defence provision)
provided an alternative basis of authorisation for military action. Secondly, the reaction
of states to the developing situation hereafter - how in future they act and what they say
with regard to the necessity or otherwise for a second resolution - may well, by virtue of
article 31.3(b) of the Vienna Convention on the Interpretation of Treaties, of itself
affect the true interpretation under international law of Resolution 1441.
14. Persuasive though for my part I find Mr Sales’ arguments on
these points, I am content for present purposes to assume in CND’s favour that the
point of international law upon which they wish this court to pronounce is indeed capable
of resolution without reference to the developing situation, without indeed there being
any need for factual judgment at all. Furthermore, given the nature of this preliminary
hearing, I shall naturally assume CND’s case on the true construction of Resolution
1441 to be at the very least a properly arguable one.
15. I come, therefore, to the preliminary issues now before us:
justiciability, prematurity and standing. The principal of these, of course, is
justiciability although the present question might perhaps best be formulated simply thus:
should the court in its discretion entertain this substantive application? It is not, of
course, a challenge: no decision is impugned, neither an existing decision nor even a
prospective decision. (CND must inevitably recognise that any future decision to take
military action would plainly be beyond the court’s purview). It is nakedly an
application for an advisory declaration. The court’s jurisdiction to grant relief in
this form, rarely though it is exercised, cannot be doubted. Should it, however, be
exercised here? That is the crucial question for determination on this preliminary
hearing.
16. I have already indicated the essential basis upon which Mr Singh
invites us to hear and determine this issue of international law. It involves, he says, a
pure question of interpretation and it is, he submits, of the first importance that the
court should resolve it lest the UK government, contrary to its stated intentions, embark
upon unlawful military action through an erroneous understanding of the true legal
position. Let me now set out the argument in a little more detail.
17. Its starting point, as I understand it, is that the prohibition on
the unlawful use of force is a peremptory norm of customary international law and as such
part of the common law of England in the absence of any contrary statutory duty. The use
of force is unlawful unless authorised. Non-compliance with Resolution 1441 would not of
itself provide such authorisation. An application, therefore, which is designed to avert a
possible breach of a peremptory norm of customary international law - more, a norm with
the character of jus cogens, thereby enjoying a higher status as one of the
fundamental standards of the international community - falls within the court’s
common law supervisory jurisdiction.
18. Mr Singh next submits that the court’s jurisdiction is not to
be regarded as ousted by the nature of the context within which this issue of law arises
for decision, that of threatened military action. A case is not to be treated as
non-justiciable simply because it relates to a sensitive field of executive action. There
are no longer any no-go areas for the courts whether on the ground that the source of the
power being exercised is the prerogative or because it is being exercised in relation to a
particularly sensitive part of public administration, here the defence of the realm. Lord
Roskill’s list of "excluded categories" - certain areas of decision making
under prerogative power, namely "those relating to the making of treaties, the
defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of
Parliament and the appointment of ministers", all said to be beyond the reach of
judicial review - see CCSU -v- Minister for Civil Service [1985] AC 374, 418 - now
lies in tatters. One by one the barriers have fallen: the immunity from review of the
exercise of prerogative power in CCSU itself; the refusal of a passport in R -v-
Secretary of State for Foreign & Commonwealth Affairs, ex parte Everett [1989] QB
811; the prerogative of mercy in R -v- Secretary of State for the Home Department, ex
parte Bentley [1994] QB 349.
19. In short, the class of case of itself provides no bar. What
matters, submits Mr Singh, is whether the particular issue sought to be litigated is or is
not one lying within the exclusive province of the Executive. In this regard he points to
Lord Hoffmann’s speech in Home Secretary -v- Rehman [2001] 3 WLR 877, 895:
"It is important neither to blur nor to exaggerate the area of
responsibility entrusted to the executive. The precise boundaries were analysed by Lord
Scarman, by reference to Chandler -v- DPP in [1964] AC 763 in his speech in CCSU
-v- Minister for the Civil Service [1985] AC 734, 406. His analysis shows that the
Commission [SIAC] serves at least three important functions which were shown to be
necessary by the decision in Chahal. First, the factual basis for the
executive’s opinion that deportation would be in the interests of national security
must be established by evidence. It is therefore open to the Commission to say that there
was no factual basis for the Home Secretary’s opinion that Mr Rehman was actively
supporting terrorism in Kashmir. In this respect the Commission’s ability to differ
from the Home Secretary’s evaluation may be limited, as I shall explain, by
considerations inherent in an appellate process but not by the principle of the separation
of powers. The effect of the latter principle is only, subject to the next point, to
prevent the Commission from saying that although the Home Secretary’s opinion that Mr
Rehman was actively supporting terrorism in Kashmir had a proper factual basis, it does
not accept that this was contrary to the interests of national security. Secondly, the
Commission may reject the Home Secretary’s opinion on the ground that it was
‘one which no reasonable minister advising the Crown could in the circumstances
reasonably have held’. Thirdly, an appeal to the Commission may turn upon issues
which at no point lie within the exclusive province of the executive. A good example is
the question, which arose in Chahal itself, as to whether deporting someone would
infringe his rights under Article 3 of the Convention because there was a substantial risk
that he would suffer torture or inhuman or degrading treatment. The European jurisprudence
makes it clear that whether the deportation is in the interests of national security is
irrelevant to rights under Article 3. If there is a danger of torture, the government must
find some other way of dealing with a threat to national security. Whether a sufficient
risk exists is a question of evaluation and prediction based on evidence. In answering
such a question, the executive enjoys no constitutional prerogative." (paragraph 54)
20. There, submits Mr Singh, in the third of SIAC’s functions, is
an illustration of where the courts can legitimately overturn an executive decision even
in the field of national security.
21. Mr Singh further relies upon passages in Laws LJ’s judgment in
Marchiori -v- The Environment Agency & Others [2002] EWCA Civ 03, notably the
following:
"38. [I]t seems to me, first, to be plain that the law of England
will not contemplate what may be called a merits review of any honest decision of
government on matters of national defence policy. Without going into other cases which a
full discussion might require, I consider that there is more than one reason for this. The
first, and most obvious, is that the court is unequipped to judge such merits or demerits.
The second touches more closely the relationship between the elected and unelected arms of
government. The graver a matter of State and the more widespread its possible effects, the
more respect will be given, within the framework of the constitution, to the democracy to
decide its outcome. The defence of the realm, which is the Crown’s first duty, is the
paradigm of so grave a matter. Potentially such a thing touches the security of everyone;
and everyone will look to the government they have elected for wise and effective
decisions. Of course they may or may not be satisfied, and their satisfaction or otherwise
will sound in the ballot-box. There is, and cannot be, any expectation that the unelected
judiciary will play any role in such questions, remotely comparable to that of government.
…
39. I recognise that the notion of so grave a matter of State lacks
sharp edges. But it is now a commonplace that the intensity of judicial review depends on
the context (see for example Daly [2001] 2 WLR 1622 per Lord Steyn at paragraph
28). One context will shade into another; there is for instance a distinction between a
deportation decision affecting a specific individual (as in Rehman) and a decision
of defence policy (such as Trident), though both involve matters of national
security.
40. Secondly, however, this primacy which the common law accords to
elected government in matters of defence is by no means the whole story. Democracy itself
requires that all public power be lawfully conferred and exercised, and of this the courts
are the surety. No matter how grave the policy issues involved, the courts will be alert
to see that no use of power exceeds its proper constitutional bounds. There is no conflict
between this and the fact that upon questions of national defence, the courts will
recognise that they are in no position to set limits upon the lawful exercise of
discretionary power in the name of reasonableness. …"
22. It is the applicants’ argument, founded on these and similar
dicta in other recent judgments - most notably in Abbasi -v- Secretary of State for
Foreign & Commonwealth Affairs [2002] EWCA Civ 1598 - that no longer are there any
forbidden areas of executive action into which the courts simply cannot look; there are
only aspects of decision making which the court must necessarily accept lie properly and
solely with the executive, for example questions of policy and the substantive merits of
factual decisions in sensitive fields like those of national security, defence and foreign
relations. These are fields in which "the court is unequipped to judge such merits or
demerits" and where in any event respect is properly due to the democratically
elected government which is answerable politically for its actions. This case, however,
runs the applicants’ argument, raises no such considerations. There are no issues
which CND seek to have decided here which touch on policy or the merits of any decision.
Rather they seek a ruling on a pure point of law in the field of customary international
law which is itself part of English common law. The courts should not refuse this
invitation. They cannot justifiably accord to the executive the exclusive right to
determine this question; on the contrary, it is a question altogether more appropriate for
decision by the court in the exercise of its conventional supervisory jurisdiction: to
ensure that those exercising public power have not erred in law in the classic sense of
misunderstanding their legal powers.
23. Skilfully and resourcefully though this argument was advanced it is
clearly not without its difficulties. The first is its invocation of the principle that
the common law encompasses also customary international law. Correct although this
undoubtedly is, I have difficulty in understanding how it avails the applicants here. To
engage in war without lawful justification is certainly contrary to the law of nations.
The issue which the applicants seek to have determined here, however, is whether in the
circumstances postulated war would be unlawful and that, of course, involves the
interpretation of Resolution 1441 itself, a specific international treaty which clearly is
not part of our domestic law. Ordinarily speaking, English courts will not rule
upon the true meaning and effect of international instruments which apply only at the
level of international law - see, most recently, R -v- Lyons [2002] 3 WLR 1562.
24. Recognising this difficulty, as many of Mr Singh’s submissions
appear to do, the applicants seek to distinguish Lyons and point to other recent
case law illustrating the court’s preparedness at least in certain circumstances to
rule upon the State’s obligations under international law. Pressed as to which
authorities come closest to supporting the applicants’ submission that the court
should assume the right to rule upon this issue of international law, Mr Singh relies most
heavily on two: R -v- Home Secretary, ex parte Adan [2001] 2 AC 477 and Abbasi.
Let me consider in turn each of these undoubtedly important cases.
25. A central issue raised in Adan was whether the courts of
this country should entertain a contention that the courts of France and Germany are
misapplying the Refugee Convention. The United Kingdom takes the view that the Convention
extends protection to asylum seekers in fear of non-State persecution if for any reason
the State cannot protect them against it. France and Germany interpret the Convention
differently, more narrowly. The House of Lords held that the Convention has one autonomous
meaning, namely that adopted by the United Kingdom. In so ruling, their Lordships rejected
an argument for the Secretary of State based on the principle of comity, the contention
that Parliament could not have intended either the Secretary of State or the courts of
this country to have to make a decision that an action by a foreign government or a ruling
by a foreign court was wrong in law. Their Lordships were concerned, as they explained,
with the United Kingdom’s obligation under the Convention as interpreted by the
United Kingdom and with the Secretary of State’s obligation under the Asylum and
Immigration Act 1996 pursuant to which he issued the relevant certificates. As Lord Steyn
put it at p518:
"[C]ounsel for the Secretary of State raised a matter which did
cause me concern at one stage, namely whether the view I have adopted contains an implicit
criticism of the judicial departments of Germany and France. I certainly intend no
criticism of the interpretations adopted in good faith in Germany and France. Unanimity on
all perplexing problems created by multilateral treaties is unachievable. National courts
can only do their best to minimise their disagreements. But ultimately they have no choice
but to apply what they consider to be the autonomous meaning. Here the difference is
fundamental and cannot be overcome by a form of words. The House is bound to take into
account the obligations of the United Kingdom government and to apply the terms of …
the 1996 Act."
26. Lord Phillips MR was later to say in Abbasi at paragraph 57:
"Although the statutory context in which Adan was decided
was highly material, the passage from Lord Cross’s speech in Cattermole
supports the view that, albeit that caution must be exercised by this court when faced
with an allegation that a foreign state is in breach of its international obligations,
this court does not need the statutory context in order to be free to express a view in
relation to what it conceives to be a clear breach of international law, particularly in
the context of human rights."
27. Oppenheim -v- Cattermole [1976] AC 249 (the other case to
which Lord Phillips was there referring) raised the issue whether a decree passed in
Germany in 1941, depriving Jews who had emigrated from Germany of their citizenship,
should be recognised by the English court. The House of Lords concluded not, Lord Cross
saying:
"To my mind a law of this sort constitutes so grave an
infringement of human rights that the courts of this country ought to refuse to recognise
this as a law at all."
28. Abbasi itself concerned a challenge by a British citizen
captured by United States forces in Afghanistan and held in Guantanamo Bay with regard to
the exercise of the Foreign Secretary’s powers of intervention on behalf of British
citizens abroad. Two central issues were identified: first, whether the English court will
examine the legitimacy of action taken by a foreign sovereign state; secondly, whether the
English court will adjudicate upon actions taken by the executive in the conduct of
foreign affairs. There is much that is illuminating of both those issues to be found in
the court’s judgment. By way of citation, however, I shall confine myself to the
court’s summary in paragraph 106 of its views as to what the authorities establish
and its main reasons expressed in paragraph 107 for rejecting the application:
"106. …
(i) It is not an answer to a claim for judicial review to say that the
source of the power of the Foreign Office is the prerogative. It is the subject matter
that is determinative.
(ii) Despite extensive citation of authority there is nothing which
supports the imposition of an enforceable duty to protect the citizen. The ECHR does not
impose any such duty. Its incorporation into the municipal law cannot therefore found a
sound basis on which to reconsider the authorities binding on this court.
(iii) However the Foreign Office has discretion whether to exercise the
right, which it undoubtedly has, to protect British citizens. It has indicated in the ways
explained what a British citizen may expect of it. The expectations are limited and the
discretion is a very wide one but there is no reason why its decision or inaction should
not be reviewable if it can be shown that the same were irrational or contrary to
legitimate expectations. But the court cannot enter the forbidden areas, including
decisions affecting foreign policy.
(iv) It is highly likely that any decision of the Foreign &
Commonwealth Office, as to whether to make representations on a diplomatic level, will be
intimately connected with decisions relating to this country’s foreign policy, but 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, would seem unlikely itself to
impinge on any forbidden area.
(v) The extent to which it may be possible to require more than that
the Foreign Secretary give due consideration to a request for assistance will depend on
the facts of the particular case. …
107. We have made clear our deep concerns that, in apparent
contravention of fundamental principles of law, Mr Abbasi may be subject to indefinite
detention in territory in which the United States has exclusive control with no
opportunity to challenge the legitimacy of his detention before any court or tribunal.
However, there are a number of reasons why we consider that the applicant’s claim for
relief must be rejected:
(i) It is quite clear from Mr Fry’s evidence that the Foreign
& Commonwealth Office have considered Mr Abbasi’s request for assistance. He has
also disclosed that the British detainees are the subject of discussions between this
country and the United States both at Secretary of State and lower official levels. We do
not consider that Mr Abbasi could reasonably expect more than this. In particular, if the
Foreign & Commonwealth Office were to make any statement as to its view of the
legality of the detention of the British prisoners, or any statement as to the nature of
discussions held with United States officials, this might well undermine those
discussions.
(ii) On no view would it be appropriate to order the Secretary of State
to make any specific representations to the United States, even in the face of what
appears to be a clear breach of a fundamental human right, as it is obvious that this
would have an impact on the conduct of foreign policy, and an impact on such policy at a
particularly delicate time."
29. The "apparent contravention of fundamental principles of
law" (paragraph 107) and "clear breach of a fundamental human right"
(paragraph 107(ii)) are a reference to the undisputed fact that Mr Abbasi was being denied
access to a court to challenge the legality of his detention. The Court of Appeal
carefully refrained from investigating, let alone expressing a view on, the legality of
the detention itself; that is clearly apparent from the judgment as a whole, not least the
final sentence of paragraph 107(i). That notwithstanding, it is Mr Singh’s submission
that the Court of Appeal can there be seen to have been prepared to state its view on an
issue of international law in a plainly sensitive area, namely the US
administration’s denial to detainees of any right akin to habeas corpus.
30. Before coming to consider the extent to which these authorities on
analysis truly assist the applicants, it is convenient first to note the main passages in
Lord Hoffmann’s speech in Lyons on which Mr Sales relies in response to this
part of CND’s argument and the way in which Mr Singh for his part suggests that Lyons
can be distinguished.
31. The appellants in Lyons, it will be remembered, were seeking
to overturn their convictions, secured before the Human Rights Act 1998 came into force,
in reliance on a ruling by the ECtHR that the admission of certain statements against them
had infringed their right to a fair trial under article 6. The following passages in Lord
Hoffmann’s speech are those most relevant to the present application:
"27. … [T]he Convention is an international treaty and the
ECHR is an international court with jurisdiction under international law to interpret and
apply it. But the question of whether the appellants’ convictions were unsafe is a
matter of English law. And it is firmly established that international treaties do not
form part of English law and that English courts have no jurisdiction to interpret or
apply them: J H Rayner (Mincing Lane) Limited -v- Department of Trade and Industry
[1990] 2 AC 418 (the International Tin Council case). Parliament may pass a law
which mirrors the terms of the treaty and in this sense incorporates the treaty into
English law. But even then, the metaphor of incorporation may be misleading. It is not the
treaty but the statute which forms part of English law. And English courts will not
(unless the statute expressly so provides) be bound to give effect to interpretations of
the treaty by an international court, even though the United Kingdom is bound by
international law to do so. …
40. The argument that the courts are an organ of state and therefore
obliged to give effect to the state’s international obligations is in my opinion a
fallacy. If the proposition were true, it would completely undermine the principle that
the courts apply domestic law and not international treaties. There would be no reason to
confine it to secondary obligations arising from breaches of the treaty. The truth of the
matter is that, in the present context, to describe the courts as an organ of the state is
significant only in international law. International law does not normally take account of
the internal distribution of powers within a state. It is the duty of the state to comply
with international law, whatever may be the organs which have the power to do so. And
likewise, a treaty may be infringed by the actions of the Crown, Parliament or the courts.
From the point of view of international law, it ordinarily does not matter. In domestic
law, however, the position is very different. The domestic constitution is based upon the
separation of powers. In domestic law the courts are obliged to give effect to the law as
en-acted by Parliament. This obligation is entirely unaffected by international law."
32. The applicants seek to distinguish that authority on two bases:
first, they submit that the appellants there had nothing but the treaty to rely upon, the
Convention at the relevant time not having been incorporated into English law; here by
contrast the applicants assert that their claim for a declaration is under customary
international law and therefore justiciable at common law. Secondly, it is suggested that
the appellants in Lyons were in any event confronted by an English statute
precluding their success unless the convictions were found to be unsafe as a matter of
English law, whereas here no such statute stands in the applicants’ path.
33. Before concluding this summary of the applicants’ case there
are just two further authorities to which I should briefly refer, R -v- Home Secretary
ex parte Launder[1997] 1 WLR 839 and R -v- Director of Public Prosecutions ex parte
Kebilene [2000] 2 AC 326. Each involved a challenge to an executive decision taken
under English law - in Launder a decision to extradite, in Kebilene a
decision to prosecute - at a time prior to the incorporation of ECHR. The decision in each
case had been taken by reference to an understanding of the UK’s international law
obligations under the Convention. A single citation from Lord Steyn’s speech in Kebilene
(itself referring to Lord Hope’s speech in Launder) sufficiently encapsulates
the principle for which Mr Singh cited these authorities and on which he seeks to rely:
"Lord Bingham of Cornhill CJ [in the Divisional Court below]
pointed out that in the present case the Director wished to know where he stood on the
issue of compatibility of the legislation. The Director sought and relied on legal advice
on that issue. Lord Bingham said that if the advice was wrong, the Director should have
the opportunity to reconsider the confirmation of his advice on a sound legal basis. As
Lord Bingham observed ‘… this approach is consistent with the judgment of Lord
Hope [in Launder at p867]:
‘If the applicant is to have an effective remedy against a
decision [on extradition] which is flawed because the decision-maker has misdirected
himself on the Convention which he himself took into account, it must surely be right to
examine the substance of the argument’
I respectfully agree. There was no infringement of the principle of
Parliamentary sovereignty."
34. In both those cases, submits Mr Singh, one finds the court
investigating and reaching a conclusion on the position under international law so as to
ensure that the executive decision maker has not misunderstood it and thereby misdirected
himself in law - or, it is perhaps more accurate to say, taken account of an immaterial
consideration. So too, he contends, should the court in the present case assume and
exercise jurisdiction to guard against a comparable misunderstanding by government as to
the legal effect of Resolution 1441.
35. I have, I hope, in the preceding pages fairly summarised the
applicants’ arguments and the principal authorities upon which they rely. The
defendants’ arguments I propose to deal with substantially more shortly. This is not
because they lacked anything in the way of thoroughness, but rather because to my mind
there are really only two of them which need to be considered, each, as I believe,
destructive of central aspects of the applicants’ case and in combination fatal to
its success. The first goes to the court’s jurisdiction to rule on matters of
international law unless in some way they are properly related to the court’s
determination of some domestic law right or interest. The second focuses on Mr
Ricketts’s statement and the sound reasons of national interest which he gives as to
why the court should not require the government publicly to declare its definitive view of
the position in international law and, by the same token, why the court for its part
should not embark upon the same exercise. Both arguments I find compelling. Let me take
them in turn.
36. Should the court declare the meaning of an international instrument
operating purely on the plane of international law? In my judgment the answer is plainly
no. All of the cases relied upon by the applicants in which the court has pronounced upon
some issue of international law are cases where it has been necessary to do so in order to
determine rights and obligations under domestic law. In Adan, as has been seen, the
English courts felt bound to consider the position under the Convention to determine
whether the Secretary of State had acted properly in issuing certificates under the
relevant statute. They had, indeed, "no choice but to apply what they considered to
be [the Convention’s] autonomous meaning" (per Lord Steyn - see paragraph 25
above). In Oppenheim -v- Cattermole a view had to be taken upon the legality of the
Nazi decree to decide whether or not "to recognise this as a law at all" (per
Lord Cross - see paragraph 27 above). True it is that in Abbasi the court
recognised the breach of fundamental human rights constituted by the denial to all
detainees of access to a court to challenge the legality of their detention. But as
already pointed out the court carefully refrained from considering the legality of the
detention itself and throughout it was concerned solely with Mr Abbasi’s rights under
domestic law, namely his right to have the Foreign Secretary properly exercise his
discretion whether, and if so how, to assist the applicant as a British citizen. Abbasi,
indeed, so far from affording support to the applicants’ argument, in my judgment
tends rather to undermine it. Launder and Kebilene likewise were cases in
which the courts were prepared to examine the position under an international convention
but only in the context of reviewing the legality of a decision under domestic law. As Mr
Sales points out, there is in the present case no point of reference in domestic law to
which the international law issue can be said to go; there is nothing here susceptible of
challenge in the way of the determination of rights, interests or duties under domestic
law to draw the court into the field of international law. Laws LJ’s dictum in
paragraph 40 of his judgment in Marchiori (see paragraph 21 above) that
"democracy itself requires that all public power be lawfully conferred and exercised,
and of this the courts are the surety", contrary to Mr Singh’s submission, is
not in point here: the domestic courts are the surety for the lawful exercise of public
power only with regard to domestic law; they are not charged with policing the United
Kingdom’s conduct on the international plane. That is for the International Court of
Justice. Mr Singh was quite unable to point to any case in which the domestic courts have
ruled on a matter of international law in no way bearing on to the application of domestic
law.
37. Lyons, again contrary to Mr Singh’s submission, is in
my judgment indistinguishable in principle from the present case. The courts there refused
to take account of the State’s duty in international law since it did not properly
sound in domestic law. No more does it here. The absence of any relevant statutory
provision here is nothing to the point. Nor, as I sought to explain in paragraph 23 above,
can the applicants escape the rule which Lyons exemplifies by seeking to invoke the
principle of customary international law. What is sought here is a ruling on the
interpretation of an international instrument, no more and no less. It is one thing, as in
cases like Kebilene and Launder, for our courts to consider the application
of an international treaty by reference to the facts of an individual case. (That, indeed,
would have been the position in Lyons itself had the courts been prepared to
undertake the exercise.) It is quite another thing to pronounce generally upon a
treaty’s true interpretation and effect. There is no distinction between the position
of the United Kingdom and that of all other States to whom Resolution 1441 applies. Why
should the English courts presume to give an authoritative ruling on its meaning? Plainly
such a ruling would not bind other States. How could our assumption of jurisdiction here
be regarded around the world as anything other than an exorbitant arrogation of
adjudicative power?
38. The general rule is that, in the interests of comity, domestic
courts do not rule on questions of international law which affect foreign sovereign
states. As Diplock LJ said in Buck -v- Attorney-General [1965] Chancery 745, 770:
"For the English court to pronounce upon the validity of a law of
a foreign sovereign state within its own territory, so that the validity of that law
became the res of the res judicata in the suit, would be to assert
jurisdiction over the internal affairs of that state. That would be a breach of the rules
of comity. In my view, this court has no jurisdiction so to do."
39. Twenty years later, Lord Diplock (as he had by then become)
returned to the theme in British Airways -v- Laker Airways [1985] AC 58, 85:
"The interpretation of treaties to which the United Kingdom is a party but the terms
of which have not either expressly or by reference been incorporated in English domestic
law by legislation is not a matter which falls within the interpretative jurisdiction of
an English court of law."
40. I would notice too in this connection the reference in paragraph 57
of the court’s judgment in Abbasi to the court exercising caution when faced
with an allegation that a foreign state is in breach of international law - see paragraph
26 above. Whilst the statutory context within which Adan was decided necessarily
defeated the Crown’s case on comity there, plainly that is not so here. Here there is
simply no foothold in domestic law for any ruling to be given on international law. There
would need to be compelling reason for the court to take the unprecedented step of
assuming jurisdiction here and no good reason not to. In fact, however, the opposite is
the case. I turn to the second of Mr Sales’s main arguments.
41. Mr Ricketts’s statement attests to two specific reasons why it
would be damaging to the national interest for the government to commit itself publicly to
a definitive view of the legal effect of Resolution 1441 and to parade its arguments in
support. First, it would adversely affect the conduct of our international relations with
regard to the Iraq situation. Secondly, it would tie the United Kingdom’s hands if
and when it has to re-enter the negotiating chamber. I have already set out the statement
in paragraphs 11 and 12 above and shall not attempt a paraphrase. Mr Ricketts’s
assertions, I have to say, appear to me not merely persuasive but in large part
self-evident. Much the same thinking plainly informs the Court of Appeal’s
observation in the last sentence of paragraph 107(i) of the judgment in Abbasi as
to the risk of discussions between States being undermined. Whatever particular position
the government were to adopt, how could it fail to antagonise some at least of our
international colleagues? Were the government, for example, to accept and assert publicly
the interpretation of the resolution contended for by CND, how could that not (a) damage
our relations with, say, the USA who may well take a different view of its effect, and (b)
give comfort to the Iraqis? If, at some future date, following a report under paragraphs 4
and/or 11 of the resolution, the Security Council were to consider the matter afresh under
paragraph 12, how could the United Kingdom, assuming it were to negotiate for a second
resolution, not be disadvantaged in that negotiation if it admitted that States would
otherwise be powerless to act?
42. All this surely is obvious. It is hardly surprising that the
Foreign Secretary expressed himself as he did on 25 November 2002 (see paragraph 3(iii)
above), carefully avoiding committing the government to a view, that statement being, as
Mr Ricketts observes, "a considered position". Even, however, were all this not
obvious, we would at the very least be bound to recognise Mr Ricketts’s experience
and expertise in these matters and that the executive is better placed than the court to
make these assessments of the national interest with regard to the conduct of foreign
relations in the field of national security and defence. We could not properly reject Mr
Ricketts’s views unless we thought them plainly wrong. Lord Steyn in Rehman,
albeit finding it "well established in the case law that issues of national security
do not fall beyond the competence of the courts", then added:
"It is, however, self-evidently right that national courts must
give great weight to the views of the executive on matters of national security."
43. Mr Ricketts’s statement, of course, is directed rather to the
reasons why the government for its part should not be required to state its position on
the meaning of Resolution 1441 than to why the court should not grant an advisory
declaration on the point. Clearly, however, the one follows from the other. The logic is
inescapable. On the international plane, as a matter of practical intern-ational politics,
other States do not make nice distinctions between legal assertions by government and
declarations of law by national courts. But, that aside, any declaration by the court
would as a matter of practical reality embarrass the government no less than were it to
state a definitive view itself. By constitutional convention the government will always
comply with decisions of the court. Whatever the court were to declare the instrument to
mean, the government could not ig-nore that ruling or assert some different meaning in its
dealings with other States. And, indeed, the objections go further still. Were the court
even to embark upon a hearing of the substantive issue the government would be placed in
an impossible position. In practice it would be forced to adopt and argue its position
before the court, the very thing that Mr Ricketts indicates would damage the conduct of
our international relations. The objection, in short, is not merely to the court ever
granting an advisory declaration, but in addition to the court even embarking on the
argument.
44. If follows from all this that in my judgment strong reasons exist
for the court to reject CND’s application at this preliminary stage without ever
proceeding to the hearing of the substantive issue. As already indicated, even assuming we
had jurisdiction to decide the question of international law upon which our ruling is
sought, there would need to be compelling reason to do so. The reason advanced by CND is,
as stated, to guard against the United Kingdom going to war under a mistake of law. How
real a risk is that, however? I am bound to say that for my part I think it no more than
fanciful. Plainly the government has access to the best advice not only from law officers
but also from a number of distinguished specialists in the field. Why should it be thought
that the advice obtained is likely to be wrong? CND’s answer to that is that various
statements made by ministers - most notably the Foreign Secretary’s statement on 10
November 2002 that "military action is bound to follow" if the terms of
Resolution 1441 are breached (see paragraph 3(ii) above) - suggest that the government
believes no second resolution to be necessary and that this is wrong. I find this argument
unconvincing. Quite apart from the fact that it begs the question as to the true
interpretation of Resolution 1441, I can find in the ministerial statements nothing to
indicate the government’s actual view. We simply do not know it.
45. How, then, does Mr Singh seek to meet the argument that any
declaration here could be damaging to the national interest. What he submits is that the
only proper course for government to take is to conduct its international relations openly
in accordance with whatever advice it has received. Government should not, he submits,
dissemble or bluff in its negotiations with other States. This appears to me to represent
a singularly utopian view of international affairs. For my part I cannot accept it. The
plain fact is that even to argue the substantive issue here, let alone to decide it, would
be contrary to the national interest.
46. I should say just a word or two at this stage about advisory
declarations. These, valuable tools though they can be in the exercise of the court’s
supervisory jurisdiction, should be sparingly used. Their essential purposes are, first,
to reduce the danger of administrative activities being declared illegal retrospectively,
and, secondly, to assist public authorities by giving advice on legal questions which is
then binding on all - see Zamir & Woolf: The Declaratory Judgment, 3rd
Edition, 2002 at p143. To make such a declaration here, however, would risk giving them a
bad name. The jurisdiction is being invoked for wholly impermissible reasons.
47. I would state my conclusions in summary form as follows:
i. The court has no jurisdiction to declare the true interpretation of
an international instrument which has not been incorporated into English domestic law and
which it is unnecessary to interpret for the purposes of determining a person’s
rights or duties under domestic law. That is the position here.
ii. The court will in any event 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, national security or defence. That too is the position
here. Whether as a matter of juridical theory such judicial abstinence is properly to be
regarded as a matter of discretion or a matter of jurisdiction seems to me for present
purposes immaterial. Either way I regard the substantive question raised by this
application to be non-justiciable.
iii. Even were this claim not barred by either of the above
considerations, I would still reject it on the ground that advisory declarations should
not be made save for demonstrably good reason. Here there is none. There is no sound basis
for believing the government to have been wrongly advised as to the true position in
international law. Nor, in any event, could there be any question here of declaring
illegal whatever decision or action may hereafter be taken in the light of the United
Kingdom’s understanding of its position in international law.
iv. Although in the ordinary way such fundamental objections to the
very nature of the claim would strongly militate against permission being granted to
advance it, because of the obvious importance of the issues before us and the skill and
cogency of Mr Singh’s arguments, I myself would propose that we grant permission and
then, for the reasons given, dismiss the substantive claim. This, one notes, was the
course adopted by the Court of Appeal in Abbasi. Frankly, it matters little which
of the two routes is taken; these days the possibilities of appeal are the same in either
case. Of one thing, however, I am sure: this application must fail and be dismissed at
this preliminary stage.
48. By way of footnote I add just these brief comments on prematurity
and standing, the other two issues separated out for consideration at this preliminary
stage. Were the applicants’ claim for an advisory declaration, contrary to my clear
conclusions, a sound one, it could not sensibly be regarded as premature. On the contrary
to postpone it would be to defeat its very purpose. As for standing, again, were the court
to regard it an appropriate exercise of its jurisdiction to advise government as it is
here invited to do, it would hardly be right to withhold that advice by reference to some
suggested deficiency in CND’s interest in the matter.
Mr Justice Maurice Kay :
49. I agree. The procedural position in this case is a little
obscure but, although there is no challenge to an existing decision and the only remedy
sought is a declaration of an advisory nature, the proceedings are wholly public law based
and were properly commenced under Part 54. In these circumstances, they can only proceed
with permission. The initial hurdle is in the preliminary issues which we have considered.
Although the case for CND has been formulated and presented with coherence and
intelligence it is, for the reasons given by Simon Brown LJ, fatally flawed. Nevertheless,
because it is an unusual case relating to matters of great public importance I take the
view that the appropriate course, and the expedient one in the light of the directions
that were given on 29 November, is to grant permission but to dismiss the application.
50. I propose to add a few observations about the conceptual basis of
this decision. In the course of submissions there was some debate over whether any
obstacle in the way of CND’s application is properly categorised as one of
jurisdiction, justiciability or discretion. It is clear from Council of Civil Service
Unions v. Minister for the Civil Service [1985] AC 374 that the controlling factor in
considering whether a particular exercise or, for present purposes, prospective exercise
of prerogative power is susceptible to judicial review is "not its source but its
subject matter" (Lord Scarman, at p 407). It is also clear from that milestone
authority that there are subject matters which are, in the language of Lord Phillips of
Worth Matravers MR in Abbasi, "forbidden areas" (para 106(iii)). The
first reason why the present application must fail is that its subject-matter is one of
those forbidden areas. In my judgment this is not because of an exercise of judicial
discretion. It is a matter of principle. If it were purely a matter of discretion there
would be circumstances in which the discretion could only be exercised after full
consideration of the substantive case. It is because it is a matter of principle that I
feel able to dismiss the present application on a preliminary issue without full
consideration of the substantive case. In the CCSU case (at p 398) Lord Fraser
spoke of
"many of the most important prerogative powers concerned with
control of the armed forces and with foreign policy and with matters which are unsuitable for
discussion or review in the Law Court."
In my judgment, this is most appropriately characterised as
justiciability. If authority were required for this proposition it is to be found in the CCSU
case, R v. Foreign Secretary, ex parte Everett [1989] 1 QB 811 (per Taylor LJ at p.
820) and R v. Criminal Injuries Compensation Board, ex parte P [1995] 1 All ER 870,
at pp 879-882, per Neil LJ, who explained the difference between jurisdiction and
justiciability in this context. I readily accept that the ambit of the "forbidden
areas" is not immutable and that cases such as Everett and Bentley
[2001] 1 Cr App 307 CA illustrate how the areas identified by Lord
Roskill in the CCSU case have been reduced. However, the
authorities provide no hint of retreat in relation to the subject- matter of the present
case. This is hardly surprising. Foreign policy and the deployment of the armed forces
remain non-justiciable. That is the first basis upon which I would refuse the present
application. I would also refuse it on the other grounds to which Simon Brown LJ has
referred and for the same reasons given by him. I agree that the "international
law" ground is more appropriately categorised as going to jurisdiction rather than
justiciability.
Notwithstanding the erudition with which it was advanced, this is an
unsustainable challenge.
Mr Justice Richards:
51. I agree with both judgments. Although I accept that permission
should be granted because of the importance of the matters raised, in my view the claim
should not be allowed to proceed beyond the preliminary issues since it would be wholly
inappropriate to entertain the substantive issues and the court would not countenance the
grant of the declaration sought. I would summarise my reasons as follows.
52. CND seeks an "advisory" declaration, before any decision
is taken on the use of armed force against Iraq and with a view to "informing"
the Government on the correct interpretation of Resolution 1441 as an input into any
decision that may be taken. There are undoubtedly cases where it may be appropriate for
the court to entertain a claim for a declaration in advance of a decision or even where
there is no decision in prospect. In London Borough of Islington v. Camp (20 July
1999, unreported), on which CND relies, I examined some of the relevant authorities and
principles and agreed to entertain a claim for purely declaratory relief, though expressly
avoiding the expression "advisory opinion". As the judgment made clear, however,
the circumstances of the case were highly unusual and it was in the public interest to
entertain the claim. The jurisdiction remains one to be exercised only in exceptional
circumstances. The circumstances of the present case, far from justifying that exceptional
course, tell very strongly against doing so.
53. The issue on which CND seeks a ruling is one on which the
Government has deliberately refrained from expressing any concluded or definitive view.
Its considered position, as set out in the Foreign Secretary’s statement to
Parliament on 25 November 2002, is to reserve its position in the event that there is a
material breach of Resolution 1441 and the Security Council does not adopt a further
resolution authorising military action. I do not accept that, merely because the
Government has not ruled out the use of force without a further resolution, there is an
inconsistency between its considered position and what CND contends to be the correct
interpretation of Resolution 1441. The considered position simply avoids any direction of
law one way or the other. Thus no misdirection in law would be established even if
CND’s interpretation of Resolution 1441 were upheld. Nor does the Foreign
Secretary’s radio interview on 10 November 2002, described as the evidential high
water-mark of CND’s case, involve any direction in law as to the interpretation of
Resolution 1441. Again it leaves the matter open.
54. The very fact that the Government has refrained from committing
itself to a position on the interpretation of Resolution 1441 militates against
entertaining the present claim. No doubt the Government has access to expert legal advice
and is able to form a reasoned judgment on the legal issue. It does not seek or need
advice from the court. There is no obvious reason why the court should "inform"
it or force a ruling upon it.
55. The case against intervention becomes overwhelmingly strong once
account is taken of the actual reasons for the Government’s stance, as set out in the
witness statement of Mr Ricketts. I refer in particular to the Government’s judgment
that "in this sensitive area and at this time, it would be detrimental to the
national interest and the conduct of this country’s international relations for the
Government to go further or to commit itself to any more definitive view". The court
must plainly respect and give weight to that judgment (cf. Home Secretary v. Rehman
[2001] 3 WLR 877 at paras 26, 31, 53-54). It follows, in my view, that to entertain the
present claim would inevitably be to act contrary to the national interest. If the
Government played an active part in the substantive proceedings, it would necessarily be
drawn beyond its considered position. If it played no such part, its position would
nonetheless be compromised by any judgment of the court. It could not ignore that judgment
without giving rise to an unprecedented situation and risking strain to the established
constitutional relationship between courts and executive. In any event I think it obvious
that a judgment of the court would be liable to cause damage of the same kind as, on the
evidence before the court, would be liable to be caused by a definitive statement of the
legal position by the Government itself. I accept that other states are not likely to draw
a clear distinction between the Government and a national court and that it would be very
difficult for the Government in practice to dissociate its own position from the judgment
of the court.
56. In marked contrast, therefore, with the case of London Borough
of Islington v. Camp, there are strong public interest grounds why the court should
not exercise its discretion to entertain the present claim or consider the grant of
declaratory relief.
57. I have dealt with the matter so far solely in terms of
discretionary considerations. I can add a number of other points also going to the
court’s discretion. In my view, even if this court were otherwise free to do so, it
would be undesirable for it to rule on the interpretation of Resolution 1441 as an
abstract legal question in advance of any decision and in circumstances where any
difference of view over the correct interpretation of that instrument might not be of any
relevance at the end of the day. In practice the point may not arise at all. If it does
arise, it will arise against a particular factual background and in circumstances where
the position adopted by other states may also be relevant and other rules of international
law may also be in play. I recognise the force of CND’s point that if one waits for a
decision it will be too late to raise the issue in the national court; but even leaving
aside the inappropriateness of entertaining such a claim when any ultimate decision would
be unreviewable (see below), I consider there to be real objections to examining a
question of this kind in isolation and on a contingent basis.
58. For those reasons I am satisfied that the claim should be rejected
on discretionary grounds. Far from justifying the exceptional exercise of the court’s
jurisdiction to grant an advisory declaration, the circumstances make such a course
inappropriate and contrary to the public interest.
59. I am also satisfied, however, that the objections to the claim go
deeper than that. First, the claim would take the court into areas of foreign affairs and
defence which are the exclusive responsibility of the executive Government - areas that
the court in R (on the application of Abbasi) v. Secretary of State for Foreign and
Commonwealth Affairs [2002] EWCA Civ 1598 described at paragraph 106(iii) as
"forbidden areas". Of course, the field of activity alone does not determine
whether something falls within a forbidden area: "justiciability depends, not on
general principle, but on subject matter and suitability in the particular case" (Abbasi,
paragraph 85). In the course of his excellent submissions, Mr Rabinder Singh QC took us
through the case-law of the last 20 years to show the evolution of the courts’
approach to that question and how far the courts have gone in identifying matters that can
properly be the subject of judicial determination even though they fall within fields of
activity once thought to be immune from review. He submitted that the subject matter of
the present claim was one plainly suitable for judicial determination, namely a clinical
point of law, and that to leave it within the exclusive province of the executive would be
contrary to the rule of law. But that neat attempt to isolate a purely judicial issue
ignores two important features of the present case:
i. According to Mr Ricketts’s evidence, the assertion of arguments
of international law is part and parcel of the conduct of international relations; it is
frequently important for the successful conduct of international affairs that matters
should not be reduced to simple black and white, but should be left as shades of grey and
open for diplomatic negotiation; and in relation specifically to Resolution 1441 it would
be detrimental to the conduct of this country’s international relations for the
Government to go further than its considered position. In the face of that evidence, it
seems to me clear that the legal issue cannot in practice be divorced from the conduct of
international relations and that by entertaining the present claim and ruling on the
interpretation of Resolution 1441 the court would be interfering with, indeed damaging,
the Government’s conduct of international relations. That would be to enter a
forbidden area. The situation is closely analogous to that considered in Abbasi at
paragraph 107(i), where the court evidently thought it impermissible to require the FCO to
make statements that might undermine discussions held with US officials.
ii. A plain purpose of the present claim is to discourage or inhibit
the Government from using armed force against Iraq without a further Security Council
resolution. Thus the claim is an attempt to limit the Government’s freedom of
movement in relation to the actual use of military force as well as in relation to the
exercise of diplomatic pressure in advance. That takes it squarely into the fields of
foreign affairs and defence. In my view it is unthinkable that the national courts would
entertain a challenge to a Government decision to declare war or to authorise the use of
armed force against a third country. That is a classic example of a non-justiciable
decision. I reject Mr Singh’s submission that it would be permissible in principle to
isolate and rule upon legal issues e.g. as to whether the decision was taken in breach of
international law. The nature and subject matter of such a decision require it to be
treated as an indivisible whole rather than breaking it down into legal, political,
military and other components and viewing those components in isolation for the purpose of
determining whether they are suited to judicial determination. The same objections of
principle apply to an attempt to isolate in advance a potential legal component of a
possible future decision with a view to limiting the Government’s freedom of movement
when taking the decision itself.
60. In the course of argument I suggested that justiciability might be
an aspect of discretion. The contrast drawn was with the court’s jurisdiction. Whilst
I adhere to the view that justiciability is not a jurisdictional concept, it seems to me
on reflection that it engages rules of law rather than purely discretionary
considerations. They are rules that, in this context at least, 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. The objections on grounds of non-justiciability therefore
provide a separate and additional reason for declining to entertain the claim.
61. A further objection to the claim is that it asks the national court
to declare the meaning and effect of an instrument of international law. The objection can
be analysed in this way:
i. The basic rule is that international treaties do not form part of
domestic law and that the national courts have no jurisdiction to interpret or apply them
(see e.g. R v. Lyons [2002] 3 WLR 1562 at paras 27 and 39). The same basic rule
must in my view apply to an instrument such as Resolution 1441 which has been made under
an international treaty and has been negotiated in the same way as a treaty.
ii. Mr Singh sought to avoid the application of that rule by contending
first that this case involves a principle of customary international law (indeed, a
principle having the status of "jus cogens") prohibiting the unauthorised use of
force and that customary international law forms part of domestic law. It seems to me,
however, that recourse to customary international law cannot assist the claimant since
what is directly in issue is not a principle of customary international law but the
meaning and effect of Resolution 1441, an international instrument not forming part of
customary international law.
iii. By way of exception to the basic rule, situations arise where the
national courts have to adjudicate upon the interpretation of international treaties e.g.
in determining private rights and obligations under domestic law and/or where statute
requires decisions to be taken in accordance with an international treaty; and in human
rights cases there may be a wider exception. Those examples feature in the discussion in Abbasi
at paras 51-57. None of them applies here.
iv. A further exception can arise where a decision-maker has expressly
taken into account an international treaty and the court thinks it appropriate to examine
the correctness of the self-direction or advice on which the decision is based: see R
v. Secretary of State for the Home Department, ex parte Launder [1997] 1 WLR 839,
867C-F and R v. Director of Public Prosecutions, ex parte Kebilene [2000] 2 AC 326,
341 and 367E-H, both of them cases where the court was willing to have regard to the
European Convention on Human Rights prior to the Human Rights Act 1998 coming into force.
Again, however, that is not this case. General statements by the Government that it will
act in accordance with international law do not amount to a direction in law and the
Government has in practice studiously avoided any direction on the interpretation of
Resolution 1441.
v. There may be other exceptional cases where the court can properly
rule on the interpretation of an international instrument, but none has been shown to be
applicable here.
vi. Thus the case falls foul of the basic rule against the
interpretation of international treaties by the national court.
62. I am less certain about the strength of the objections advanced by
reference to the implications of a ruling for other states:
i. A declaration as to the meaning and effect of Resolution 1441 would
certainly be of general application, in the sense that it would purport to interpret the
resolution as a matter of international law. Mr Sales submitted that the court would
thereby be ruling on the obligations of foreign states under an international instrument,
which it does not have jurisdiction to do. He cited British Airways v. Laker Airways
[1985] AC 58 at 85-86, where, in the context of a dispute between the UK and US
Governments about the latter’s compliance with its treaty obligations, Diplock LJ
observed that "[t]he interpretation of treaties to which the United Kingdom is a
party but the terms of which have not either expressly or by reference been incorporated
in English domestic law by legislation is not a matter that falls within the
interpretative jurisdiction of an English court of law". On the face of it, this is
simply an expression of the basic rule concerning the court’s jurisdiction to
interpret international treaties, which I have covered already. I doubt whether it
supports the additional objection advanced by Mr Sales or whether a declaration on the
meaning and effect of Resolution 1441 would amount to a ruling on the obligations of
foreign states.
ii. This leads into the related subject of comity upon which Mr Sales
also relied. As to that, I doubt whether a ruling by the national court on Resolution 1441
would itself involve any express or implied criticism of other states. On the other hand,
it might cause other states the same kind of problem as it would cause the UK Government
in terms of international negotiating position. It might also be used in support of
criticism of a state which took action on a basis inconsistent with the ruling. Thus I do
not think that one can dismiss the argument on comity, though the weight properly to be
given to it is hard to assess.
iii. The simple point, as it seems to me, is that the court should
steer away from these areas of potential difficulty in relation to other states unless
there are compelling reasons to confront them. There are no such reasons in this case.
63. In the light of my conclusions on the main issues I do not think it
necessary to deal with standing.
64. For those reasons I would grant permission but dismiss the claim on
the basis of the preliminary issues.
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L.I.S.G. Dossier "The Case Against War"