Holland v Lampen-Wolfe
| Jurisdiction | UK Non-devolved |
| Judge | LORD HOPE OF CRAIGHEAD |
| Judgment Date | 20 July 2000 |
| Judgment citation (vLex) | [2000] UKHL J0720-3 |
| Date | 20 July 2000 |
| Court | House of Lords |
[2000] UKHL J0720-3
Lord Hope of Craighead
Lord Cooke of Thorndon
Lord Clyde
Lord Hobhouse of Woodborough
Lord Millett
HOUSE OF LORDS
My Lords,
This case is concerned with the immunity of a foreign state from the jurisdiction of the English courts. The respondent is an official of the Department of Defense of the United States of America, of which country he is also a citizen. The United States of America has asserted immunity on his behalf in regard to proceedings which the appellant has brought against him in this country for damages. Her claim relates to a memorandum which the respondent wrote in his capacity as educational services officer at the United States base at Menwith Hill R.A.F. Station in North Yorkshire. She claims that it contained untrue statements about her and was defamatory.
The immunity which is accorded by English law to foreign states in civil proceedings is the subject of two separate regimes. The first is that laid down by Part I of the State Immunity Act 1978, by which a foreign state is immune from the jurisdiction of the United Kingdom courts unless one of a series of exceptions to immunity in sections 2 to 11 applies. The only exception on which the appellant seeks to rely in this case is that which is to be found in section 3 of the Act, which relates to commercial transactions and contracts to be performed in the United Kingdom. The second regime is that under the common law. It applies to all cases that fall outside the scope of Part I of the Act. It is also necessary in this case to consider section 16(2) of the State Immunity Act 1978, as this section disapplies Part I of that Act where the proceedings relate to "anything done by or in relation to the armed forces of a state while present in the United Kingdom."
For the reasons which have been explained by my noble and learned friend Lord Millett, whose speech I have had the advantage of reading in draft and with which I agree, I consider that these proceedings relate to something done "by or in relation to" the armed forces of the United States of America while present in the United Kingdom and that the question of immunity must be determined by reference to the common law.
It is clear that the expression "armed forces" in section 16(2) cannot be regarded as meaning only military personnel or servicemen and women who handle weapons and equipment and are in uniform. Regard must be had to the fact that it is a matter for each state to decide how best to organise its own armed forces and related services. We are concerned in this case with events that took place on a military base on which the United States of America maintains units of its armed forces by arrangement with her Majesty's Government. The organisation and support of armed forces on a military base overseas is a complex exercise. For a variety of reasons, not the least for reasons of security, it may be thought to be desirable for the base to be as self-contained as possible. This may involve the provision of services there which are not, in the strict sense, military in character. For example, services whose purpose is to sustain morale or to promote mental or physical well-being and efficiency may be seen as an essential part of the whole exercise. This may be regarded as crucial to the retention of trained personnel and to the process of equipping them for promotion or for their retirement. This is an activity on which the state is engaged in the exercise of its sovereign authority. So the approach which I would take to this matter is to regard decisions as to whether to rely solely on men and women in uniform or to employ others to provide these services for its armed forces as a matter which is at the discretion of each state in the exercise of that authority.
For these reasons I would hold that the question whether an individual is here as part of a state's armed forces for the purposes of section 16(2) must be determined by reference to the nature of the duties which he or she is here to perform. The base at Menwith Hill is a signals intelligence field site that supports U.S., U.K. and N.A.T.O communications and communications research interests. Units that are stationed there are also responsible for the co-ordination of education and training for U.S. military personnel in the United Kingdom, Denmark and Norway and for certain other U.S. personnel in the United Kingdom. The respondent's responsibilities as educational services officer included the planning, development and implementation of the educational programmes provided from Menwith Hill. He advised the Commander of the U.S. Forces stationed there on matters relating to education. Among the programmes for which he was responsible were the courses provided at Menwith Hill and at other U.S. bases in the United Kingdom by Troy State University. They included a Master of Science in International Relations Degree Program which was restricted primarily to holders of U.S. military identification cards and members of their families. According to the Program Description, the curriculum offered a variety of courses in political science, international relations and area studies and was designed to directly complement the professional military education programs of the various services.
In the light of these facts I consider that the respondent was acting as a member of the U.S. armed forces stationed at Menwith Hill when he wrote the memorandum to which these proceedings relate, and that in any event the writing of that memorandum was something done in relation to the armed forces stationed there. Section 16(2) applies, and the question of immunity must be determined according to the common law.
As to the position at common law, I agree with my noble and learned friends Lord Clyde and Lord Millett that the United States is entitled to invoke the immunity. The facts which I have outlined above are relevant to this issue also. As they have explained, it is the nature of the act that determines whether it is to be characterised as iure imperii or iure gestionis. The process of characterisation requires that the act must be considered in its context.
In the present case the context is all important. The overall context was that of the provision of educational services to military personnel and their families stationed on a U.S. base overseas. The maintenance of the base itself was plainly a sovereign activity. As Hoffmann L.J. (now Lord Hoffmann) said in Littrell v. United States of America (No.2) [1995] 1 W.L.R. 82, 95A-B, this looks about as imperial an activity as could be imagined. But that is not enough to determine the issue. At first sight, the writing of a memorandum by a civilian educational services officer in relation to an educational programme provided by civilian staff employed by a university seems far removed from the kind of act that would ordinarily be characterised as something done iure imperii. But regard must be had to the place where the programme was being provided and to the persons by whom it was being provided and who it was designed to benefit - where did it happen and whom did it involve? The provision of the programme on the base at Menwith Hill was designed to serve the needs of U.S. personnel on the base, and it was provided by U.S. citizens who were working there on behalf of a U.S. university. The whole activity was designed as part of the process of maintaining forces and associated civilians on the base by U.S. personnel to serve the needs of the U.S. military authorities. The memorandum was written on the base in response to complaints which are alleged to have been made by U.S. servicemen about the behaviour of the appellant, who is also a U.S. citizen, while she was working there. On these facts the acts of the respondent seem to me to fall well within the area of sovereign activity.
Lord Lester of Herne Hill Q.C. for the appellant laid much stress on the fact that the appellant had a fundamental right of access to the English courts under article 6 of the European Convention on Human Rights and Fundamental Freedoms and that the effect of applying the immunity was to deprive her of an effective remedy. He said that the heart of her case had not really been considered in the courts below. He invited us to regard this as an area of the common law which was uncertain and incomplete and in need of reform in conformity with the Convention: see Derbyshire County Council v. Times Newspapers Ltd. [1992] 1 Q.B. 770, 830B per Butler Sloss L.J. In my opinion however Mr. Greenwood Q.C. for the respondent was right to point out that this case concerns the immunity of a state, not the immunity of persons. The immunity is an attribute of the state itself under international law which all other states are obliged by international law to recognise. Cases such as Fayed v. United Kingdom (1994) 18 E.H.R.R. 393 and Osman v. United Kingdom (1999) 29 E.H.R.R. 245 can readily be distinguished as they were concerned with the granting of immunities under domestic law in circumstances that did not involve any international law obligation. Those cases may be contrasted with Waite v. Germany [1999] 6 B.H.R.C. 499, where the European Court of Human Rights held that the grant of immunity from the jurisdiction of the national court to an international organisation according to a long-standing practice essential for ensuring the proper functioning of these organisations free from unilateral interference by individual governments had a legitimate aim, measured up to the test of proportionality and did not involve a violation of article 6, and with N.C.F. and A.G. v. Italy [1995] 111 I.L.R. 154 where the Commission held the application inadmissible on the ground, among others, that...
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