On 30 October 2014 the UK Court of Appeal released a decision that is likely to send a frisson of fear down the spine of governments everywhere.
The Court allowed the appellants Abdul Hakim Belhaj and his wife Fatima Boudchar to sue the British Secret Intelligence Service and the Minister responsible for it at the material time, for a declaration of illegality and for damages.
The claim alleges that the respondents participated in the unlawful abduction, detention and rendition of Mr Belhaj and Ms Boudchar to Libya, where they were imprisoned and tortured.
No determination has yet been made on these allegations, but the Court of Appeal’s ruling permits the claim to go forward.
The respondents argued that the determination of these allegations would require the UK courts to rule on the legality of actions of other states- including the USA, Thailand, China, Libya and Malaysia – which took place outside Britain. They argued, among other things, the doctrine of act of state makes the claim non-justiciable.
The respondents also called authoritative evidence from a senior member of the Diplomatic Service and the UK National Security Director, to the effect that in order to determine the claims the UK courts would be required to investigate sensitive inter-state communications and intelligence sharing arrangements between the UK and other states which would result in permanent damage to Britain’s international relations and security interests, particularly its relationship with the USA.
In a lengthy and detailed judgment, the unanimous 3 panel Court held that neither the consideration of embarrassment of the executive nor the risk of displeasing allies or offending other states, could justify declining jurisdiction on the grounds of act of state.
The Court concluded that, given the grave violations of human rights alleged, the respondents who were current or former officers and officials of state in the UK should not have the “fortuitous benefit” of whatever immunity was conferred by the act of state doctrine, which was limited on public policy grounds.
Read a summary or the full decision here.
Leave to appeal to the UK Supreme Court has been granted .