R (Al-Haq) v Secretary of State for Foreign and Commonwealth Affairs
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan |
| Judgment Date | 25 February 2010 |
| Neutral Citation | [2010] EWCA Civ 237 |
| Docket Number | Case No: C1/2009/1662 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 February 2010 |
[2010] EWCA Civ 237
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(Lord Justice Pill and Mr Justice Cranston)
Before: Lord Justice Sullivan
Case No: C1/2009/1662
Mr M Fordham (instructed by Public Interest Lawyers) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Lord Justice Sullivan:
This is a renewed application for permission to appeal an order dated 27 July 2009 of the Divisional Court (Pill LJ and Cranston J) refusing the applicant's application for permission to apply for judicial review.
In those judicial review proceedings the applicant is seeking in effect a declaration that the United Kingdom Government is legally obliged to a) denounce and b) withdraw military and other support to Israel in response to what are said in the applicant's claim to be Israel's fundamental violation of human right standards in Gaza.
The application for permission to apply for judicial review was referred to in the Divisional Court by Collins J on the basis that it raised at least three issues of principle:
) Does the domestic court have jurisdiction to deal with this claim?
) If it does have jurisdiction, should they exercise it in the circumstances?
) Does the claimant have the necessary locus-standby?
Because of the detailed submissions that it had heard, the Divisional Court gave permission for its judgments to be cited. Those judgments are to be found at [2009] EWHC 1110 (Admin).
Permission to apply for judicial review was refused, essentially for three reasons. Firstly, the claim was not justiciable because although in form it was directed to a review of the lawfulness of the conduct of the United Kingdom Government, it was in substance asking the United Kingdom courts to decide whether or not the conduct of a foreign state, Israel, was in breach of international law. The Divisional Court acknowledged that there were circumstances in which the United Kingdom courts would consider whether a foreign state's conduct was in breach of international law, for example where the breach was plain or acknowledged, but said that this was not such a case.
Secondly, in so far as the proceedings were directed to a review of the conduct of the United Kingdom Government rather than the government of Israel, the claim trespassed into one of the “forbidden areas”, namely high policy in the context of the United Kingdom's conduct of foreign affairs, into which the courts would not venture in the absence of what Cranston J described as “a domestic foothold”; that is to say, some readily identifiable right under United Kingdom law, such as for example an individual's right not to be returned to a country where he or she would be at real risk of persecution or of torture or inhumane treatment.
That leads on to the third reason why the Divisional Court refused the application, lack of standing. An individual in the United Kingdom seeking to persuade the court that he should not be returned to face the risk of torture or inhumane treatment has a very clear and obvious interest in having that issue resolved in the United Kingdom courts even though in order to raise the issue the court will have to consider the conduct of...
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...in public or private law: R (Campaign for Nuclear Disarmament) v Prime Minister [2002] EWHC 2777 (Admin); R (Al-Haq) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 1910. As Cranston J put it in the latter case at para 60, there is no "domestic foothold". But the cour......