Last week, the English Court of Appeal gave judgment in R (Noor Khan) v Secretary of State for Foreign and Commonwealth Affairs (full text). The claim was brought in an attempt to establish that the reported policy and practice of the UK Government – to provide “locational intelligence” to the US authorities for use in drone strikes – is unlawful (paragraphs 2, 7). The claimant said that this policy and practice gave rise to a risk that GCHQ officials who provide locational intelligence to the US are committing offences, contrary to sections 44-46 of the Serious Crime Act 2007 (paragraph 20). The thrust of the claimant’s case was to try to convince the Court of Appeal that they could adjudicate on the issue without making a finding about US officials or their guilt of criminal offences in US law. Thus, the claimant asserted that, pursuant to his interpretation of the 2007 Act, the Court did not need to find that any US official has committed an offence falling within the jurisdiction of the English court (paragraphs 15-16). The Court of Appeal rejected the claim on the basis of one of the UK Government’s “threshold objections”, i.e. that it would be a wrong exercise of discretion for the court to grant relief which would “necessarily entail a condemnation of the activities of the United States” (paragraph 8). The Court of Appeal was in no doubt whatsoever that this would be the effect of acceding to the Claimant’s claim (see paragraphs 36-38; 51; 53) and that, therefore, the foreign act of state doctrine precluded any adjudication of the claim. The claim was dismissed.
The case is interesting for the following two key reasons:
First, the case provides a vivid illustration of the limits of the Human Rights Act 1998 (the HRA) and the European Convention on Human Rights (the ECHR). The judgment does not refer to the HRA and the claimant does not appear to have relied on it. That is not a surprise: it would be stretching ECHR jurisprudence on Article 1 jurisdiction and attribution to assert that the drone strike in this case engaged the UK’s responsibility under the ECHR. That is not to say that claims regarding drone strikes may not properly be brought pursuant to the HRA and the ECHR. Rather, that they are likely to need a greater connection with the UK Government before they constitute a serious challenge.
Secondly, perhaps the most striking feature of the judgment is the fact that the Court only briefly identifies the exceptions to the foreign act of state doctrine and even more briefly dismisses those exceptions as not being engaged by the facts of the claim. As the judgment notes, the exceptions to the foreign act of state doctrine include “foreign acts of state which are in breach of clearly established rules of international law or are contrary to English principles of public policy, as well as where there is a grave infringement of human rights” (paragraph 28). The conclusion is that “[t]here are no such exceptional circumstances here” (paragraph 53). Lest it be forgotten this was a case where more than 40 people lost their lives as a result of a drone attack – more than 40 people lost their basic human right: the right to life (paragraph 1). Seen in the light of that rather polarising fact, the Court’s conclusion is puzzling to say the least. It is even more puzzling that the claimant does not seem to have advanced an argument (even in the alternative) relying on such an exception to the foreign act of state doctrine – as noted above, the claimant focussed on trying to convince the Court of Appeal that their consideration of the issue would not condemn acts of the US. Of course, reliance on an exception to the foreign act of state doctrine would have posed a direct challenge to the legitimacy of US acts. It is also likely (if the UK Government’s stance in other cases is anything to go by) to have involved a raft of complex legal arguments including, no doubt, about whether human rights law is displaced by international humanitarian law in such situations. However, invocation of one of the exceptions would have had the merit of requiring the court to confront the question of whether such drone strikes do violate human rights law. That is an undeniably timely and important question. Consideration of that question, regardless of its actual outcome in this case, would have made a welcome contribution to the embryonic jurisprudence in this area. As it is, the Court of Appeal was presented with a relatively simple consequentialist question (did the claimant’s case entail adjudication on US acts or not?). Their answer is not surprising; it is regrettable that it is not illuminating.