Judgments - Holland v. Lampen-Wolfe

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    In view of the shortness of the period which will elapse before the Human Rights Act comes into force, it would be wrong to dispose of these submissions on the ground that the Convention is not yet given effect in our law. If they were likely to be determinative in her favour, we should have to consider whether to adjourn the hearing for further argument after 2 October. Before dealing with them, however, it is necessary to consider the logically anterior question whether the present proceedings are covered by state immunity at all. Dr. Holland submits that they are not. This question must be examined both under the Act of 1978 and at common law.

The Doctrine of State Immunity

    It is an established rule of customary international law that one state cannot be sued in the courts of another for acts performed iure imperii. The immunity does not derive from the authority or dignity of sovereign states or the need to protect the integrity of their governmental functions. It derives from the sovereign nature of the exercise of the state's adjudicative powers and the basic principle of international law that all states are equal. The rule is "par in parem non habet imperium": see I Congreso del Partido [1983] 1 A.C. 244 at p. 262 per Lord Wilberforce. As I explained in Reg. v. Bow Street Magistrate, Ex parte Pinochet (No. 3) [2000] 1 A.C. 147 at p. 269, it is a subject-matter immunity. It operates to prevent the official and governmental acts of one state from being called into question in proceedings before the courts of another. The existence of the doctrine is confirmed by the European Convention on State Immunity 1972, the relevant provisions of which are generally regarded as reflecting customary international law. In according immunity from suit before the English courts to foreign states the State Immunity Act 1978 and the common law give effect to the international obligations of the United Kingdom.

    Where the immunity applies, it covers an official of the state in respect of acts performed by him in an official capacity. In the present case, it is common ground that at all material times the respondent acted in his capacity as an official of the United States Department of Defense, being the department responsible for the armed forces of the United States present in the United Kingdom. The United States has asserted immunity on behalf of the respondent. Dr. Holland has not challenged the proposition that, if the United States is entitled to the immunity it claims, that immunity bars the present proceedings.

The State Immunity Act 1978

    The background to the State Immunity Act 1978 is well known. It is described at length in the speech of Lord Wilberforce in I Congreso and I need not repeat it in any detail. Until 1975 England, almost alone of the major trading nations, continued to adhere to a pure, absolute doctrine of state immunity. In the 1970's, mainly under the influence of Lord Denning M.R., we abandoned that position and adopted the so-called restrictive theory of state immunity under which acts of a commercial nature do not attract state immunity even if done for governmental or political reasons. This development of the common law was confirmed by your Lordships' House in I Congreso in relation to acts committed before the passing of the Act of 1978.

    In the meantime Parliament enacted the Act of 1978, which gave statutory force to a restrictive theory of state immunity. It did this by means of a number of statutory exceptions to a general rule of state immunity. Thus section 1 states the general rule: a state is immune from proceedings in the United Kingdom except as provided in the provisions of the Act which follow. Part I of the Act contains detailed exceptions to the rule; these are cases where a state enjoys no immunity. There is no exception in respect of actions for defamation. The exceptions relied upon in the present case are contained in section 3, which is concerned with commercial transactions and contracts to be performed in the United Kingdom. It provides:

    "3(1) A state is not immune as respects proceedings relating to—

    (a) a commercial transaction entered into by the state; or

    (b)an obligation of the state which by virtue of a contract (whether a commercial transaction or not) falls to be performed wholly or partly in the United Kingdom . . .

    . . .

    (3) In this section "commercial transaction" means

      (a) any contract for the supply of goods or services;

      (b) any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such transaction or of any other financial obligation; and

      (c) any other transaction or activity (whether of a commercial, industrial, financial, professional or other similar character) into which a state enters or in which it engages otherwise than in the exercise of sovereign authority;

    but neither paragraph of subsection (1) above applies to a contract of employment between a state and an individual."

    Section 16 excludes certain matters from the operation of Part I of the Act. Section 16(2) provides:

    "(2) This Part of this Act does not apply to proceedings relating to anything done by or in relation to the armed forces of a state whilst present in the United Kingdom and, in particular, has effect subject to the Visiting Forces Act 1952."

This is a somewhat curious provision. It evidently owes its origin to article 31 of the 1972 Convention, which provides that:

    "nothing in the Convention shall affect any immunities or privileges enjoyed by a contracting state in respect of anything done or omitted to be done by or in relation to its armed forces when on the territory of another contracting state."

Section 9 of the Act of 1952 confers powers on the Secretary of State for Defence to make arrangements for the settlement of claims against members of visiting forces. One might have supposed that the purpose of section 16(2) was to disapply the exceptions in Part I, so that anything done by or in relation to visiting forces should enjoy the statutory immunity conferred by section 1 and be dealt with exclusively under arrangements to be made by the Secretary of State under the Act of 1952. But the subsection disapplies the whole of section 1, so that it disapplies the statutory immunity and leaves the position of visiting forces in the United Kingdom to be governed by the common law. I doubt that this was Parliament's intention. It may merely be the result of mistakenly employing the drafting technique adopted by article 31 of the Convention; but whereas the 1952 Convention operated to restrict state immunity ("a contracting state cannot claim immunity"), section 1 of the 1978 Act gives positive statutory force to the doctrine of state immunity. The effect of the formula in the one case is to disapply the exceptions, in the other to disapply the immunity. But it may be that Parliament assumed that any proceedings falling within section 16(2) would necessarily be covered by immunity at common law. It seems unlikely that Parliament contemplated that proceedings might be brought against members of visiting forces in circumstances in which it would not be possible to bring them against state officials who were not members of a visiting force.

    However this may be, the respondent must either (i) bring the present proceedings within section 16(2) and show that they would attract immunity at common law or (ii) show that they fall outside both section 16(2) and the exceptions contained in section 3.

Section 16(2).

    The Court of Appeal held that the proceedings brought by Dr. Holland fall within section 16(2) because they relate to something done "by" the armed forces of the United States. I am inclined to agree. The proceedings relate to the writing and publication of a memorandum which Dr. Holland alleges to be defamatory of her. The memorandum was written and published by the respondent, who was employed by the United States Department of Defense. He wrote and published it in the course of his official duties as education services officer at Menwith Hill. As the respondent observed, the armed forces of a state can act only through individuals, but those individuals need not themselves be military personnel. I think that he was a member of a civilian component of the armed forces of the United States and that he was acting in that capacity. The fact that he was not within the statutory definition in the Act of 1952, and so was not a member of a civilian component of those forces for the purposes of that Act, is immaterial if he was such a member in fact.

    But it is not necessary to decide this, because I am satisfied that the writing and publication of the memorandum were acts done "in relation to" the armed forces of the United States. The memorandum was concerned with the quality of educational services supplied to members of the armed forces and was written and published by the respondent in the course of his duties to supervise and monitor the supply of those services.

Immunity at Common Law

    It follows that the respondent's claim to immunity falls to be dealt with under the common law. Accordingly the question is whether, in accordance with the law laid down in I Congreso, the act complained of was iure imperii or iure gestionis. This must be judged against the background of the whole context in which the claim is made. The question is not an altogether easy one, but I have come to the conclusion that the Court of Appeal were correct to designate the act complained of as being iure imperii.

    In Littrell v. United States of America (No. 2) [1995] 1 W.L.R. 82 the plaintiff claimed damages for personal injuries arising from medical treatment which he had received at a United States military hospital in the United Kingdom while a serving member of the United States Air Force. It was conceded that section 16(2) applied, so that the case fell to be decided at common law. The Court of Appeal held that the proceedings were barred by state immunity. Hoffmann L.J. said at pp. 94-95:

    "The context in which the act took place was the maintenance by the United States of a unit of the United States Air Force in the United Kingdom. This looks about as imperial an activity as could be imagined. But it would be facile to regard this context as determinative of the question. Acts done within that context range from arrangements concerning the flights of the bombers - plainly jure imperii - to ordering milk for the base from a local dairy or careless driving by off-duty airmen on the roads of Suffolk. Both of the latter would seem to me to be jure gestionis, fairly within an area of private law activity. I do not think that there is a single test or 'bright line' by which cases on either side can be distinguished. Rather, there are a number of factors which may characterise the act as nearer to or further from the central military activity . . . Some acts are wholly military in character, some almost entirely private or commercial and some in between."

In a careful review of the facts, Hoffmann L.J. observed that the acts complained of took place at a military hospital within the control of the United States Air Force. They involved only United States personnel. The operation of a military hospital, although no doubt requiring much the same skills as the operation of a civilian hospital, is a recognised military operation. He concluded that the standard of medical care which the United States should afford its own servicemen was a matter within its own sovereign authority

    The Court of Appeal could find no material distinction between the medical treatment provided in that case and the educational services provided in the present one. I agree with them that the provision of education for members of the armed forces and their families is, in modern conditions, as much a normal and necessary part of the overall activity of maintaining those forces as is the provision of medical treatment.

    Dr. Holland places much reliance on the facts that she is not a member of the armed forces or a government employee but a civilian employed by the University; that her services were provided under a commercial contract between the University and the United States Government; that while her students were mainly members of the armed forces they also included their families and other civilian personnel; and that the educational programmes which were provided were not directly related to military training or education but were similar in all respects to those provided to civilian students in Alabama.

    These are relevant considerations, but I am not persuaded that they are critical. I do not think that the case can be regarded in the same light as a suit for defamation in respect of a letter of complaint about the quality of milk or entertainment supplied to the base by local contractors. The fact that the services in question were bought in rather than provided internally is not decisive. Of greater significance are the facts that they were provided at United States military bases and involved only citizens of the United States. The courses were provided by and to United States citizens and were designed to complement military programmes and assist (inter alia) in the assessment of candidates for promotion. In today's conditions the education and training of military personnel so as to make them fit for promotion or service overseas or to ease their transition to civilian life on retirement from active service is a normal and necessary part of the maintenance of a nation's armed forces. In my opinion the standard of education which the United States affords its own servicemen and their families is as much a matter within its own sovereign authority as is the standard of medical care which it affords them. Neither ought to be subjected to the supervision or jurisdiction of another state.

    It is, of course, true that the action is an action for defamation, not for the negligent provision of professional services. Littrell is clearly distinguishable on this ground. But I do not regard the distinction as material. The respondent was responsible for supervising the provision of educational services to members of the United States armed forces in the United Kingdom and their families. He published the material alleged to be defamatory in the course of his duties. If the provision of the services in question was an official or governmental act of the United States, then so was its supervision by the respondent. I would hold that he was acting as an official of the United States in the course of the performance of its sovereign function of maintaining its armed forces in this country.

Section 3

    This makes it strictly unnecessary to decide whether, if the Act of 1978 were not disapplied by section 16(2), the present proceedings would fall within the exceptions to state immunity contained in section 3. As the matter has been fully argued, however, I will state shortly my reasons for thinking that they would not.

    In my opinion, section 3(1)(a) is not satisfied because, although the contract between the University and the United States Government is a contract for the supply of services and therefore a commercial contract within the meaning of the section by virtue of section 3(3)(a), the present proceedings do not relate to that contract. They are not about the contract, but about the memorandum. The fact that the memorandum complains of the quality of the services supplied under the contract means that the memorandum relates to the contract (which is why section 16(2) is satisfied.) But it does not follow that the proceedings relate to the contract, which is what section 3(1)(a) requires. In my opinion the words "proceedings relating to" a transaction refer to claims arising out of the transaction, usually contractual claims, and not tortious claims arising independently of the transaction but in the course of its performance.

    For the same reason I doubt that the writing and publication of the memorandum constituted an "activity" of an official character in which the United States engaged through the medium of the respondent, so as to bring the proceedings within section 3(3)(c). The context strongly suggests a commercial relationship akin to but falling short of contract (perhaps because gratuitous) rather than a unilateral tortious act. But even if the respondent's acts of writing and publishing the memorandum can be brought within the opening words section 3(3)(c), they are excluded by the concluding words of the subsection since, for the reasons I have given, they were performed in the exercise of sovereign authority.

State Immunity and the European Convention

    Article 6 of the Convention affords to everyone the right to a fair trial for the determination of his civil rights and obligations. This reflects the principle of English law to which Sir Thomas Bingham M.R. gave utterance in his celebrated and much quoted observation that the policy which has first claim on the loyalty of the law is that wrongs should be remedied: see X v. Bedfordshire County Council [1995] 2 A.C. 633 at p. 663.

    At first sight this may appear to be inconsistent with a doctrine of comprehensive and unqualified state immunity in those cases where it is applicable. But in fact there is no inconsistency. This is not because the right guaranteed by article 6 is not absolute but subject to limitations, nor is it because the doctrine of state immunity serves a legitimate aim. It is because article 6 forbids a contracting state from denying individuals the benefit of its powers of adjudication; it does not extend the scope of those powers.

    Article 6 requires contracting states to maintain fair and public judicial processes and forbids them to deny individuals access to those processes for the determination of their civil rights. It presupposes that the contracting states have the powers of adjudication necessary to resolve the issues in dispute. But it does not confer on contracting states adjudicative powers which they do not possess. State immunity, as I have explained, is a creature of customary international law and derives from the equality of sovereign states. It is not a self-imposed restriction on the jurisdiction of its courts which the United Kingdom has chosen to adopt. It is a limitation imposed from without upon the sovereignty of the United Kingdom itself.

    The immunity in question in the present case belongs to the United States. The United States has not waived its immunity. It is not a party to the Convention. The Convention derives its binding force from the consent of the contracting states. The United Kingdom cannot, by its own act of acceding to the Convention and without the consent of the United States, obtain a power of adjudication over the United States which international law denies it.

    Numerous cases were cited to us in which the European Court of Human Rights has examined the circumstances in which an individual has been denied access to the courts of a contracting state and has held that the denial was not unlawful because it pursued a legitimate aim and was proportionate. It is a reasonable inference that, if this had not been the case, the court would have found that there was an infringement of Convention rights. But in those cases the extent of the jurisdiction of the state party was not in question. Where it is, it must be determined first, for if the state party has no jurisdiction to exercise, questions of legitimate aim and proportionality do not arise.

    Dr. Holland cited three cases presently pending before the European Court of Human Rights in which, she submitted, the compatibility of state immunity with article 6 is being challenged. The cases are Fogarty v. United Kingdom (Application no. 37112/97); Al-Adsani v. United Kingdom (Application no. 35763/97); and McElhinney v. Ireland (Application no. 31253/96). In all three cases the applications have been declared admissible as being "not manifestly unfounded." In each of the cases, however, the applicant is arguing that the immunity in question goes further than international law requires.

    In the end Dr. Holland was compelled to concede that, unless our domestic law accords immunity in circumstances where it is not obliged to do so by international law, recourse to the Convention does not assist her. She did not suggest, nor could it, I think, be suggested that the immunity claimed by the United States in the present case goes further than required by international law. Instead, she reminded us that, when it takes effect, the Human Rights Act will oblige us to decide all cases before us, whether under statute or at common law, compatibly with Convention rights unless prevented from doing so by primary or other legislation which cannot be read compatibly with the Convention. We will also be required to interpret existing and future legislation in conformity with the Convention wherever it is possible to do so. From next October, she submits, we will be obliged to construe the Act of 1978 and give effect to any residual immunity at common law in conformity with article 6; and if this will require us to reach a decision in her favour which we should not otherwise reach, we should consider adjourning the hearing until next term.

    The problem with this submission is that the applicable law is clear. Any difficulty lies in the characterisation of the facts for the purpose of applying the law to them. In carrying out that exercise the court has no discretion or margin of appreciation. It may have to draw inferences or make nice distinctions; but in doing so it must act impartially. In finding and characterising the facts it has no right to favour one litigant over another. The court must act judicially. It must be indifferent to the result. The issue may be finely balanced. But that makes no difference. Either the proceedings relate to something done by or in relation to the armed forces of the United States or they do not. Either the writing and publication of the memorandum sued upon were acts of the United States iure imperii or they were not. The court cannot reach a particular conclusion because it prefers the right of access to justice which the Convention affords to Dr. Holland to the immunity from suit which international law affords to the United States. The United States has rights too, and the court is bound to respect them. It claims immunity from the present suit. In my opinion its claim is well founded. Where the immunity is available, then for the reasons I have endeavoured to give it prevails over the Convention rights contained in article 6. I would dismiss the appeal with costs.

 
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