Al Rawi and Others, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs and Another: CA 12 Oct 2006

The claimants sought that the defendant should issue a request to the US authorities for their release from detention at Guantanamo Bay.
Held: The courts would not be able to intervene by judicial review, and would be reluctant to intervene in the respondent’s conduct of foreign relations, but the claimants now asserted severe infringement of their human rights, including saying that they had been tortured. The US had declared them to be enemy combatants. The applicants were not British Nationals.
Laws LJ said: ‘If the British Government owed a duty to intercede in case of torture, it would no doubt have to arrive at a judgment, after inquiry as appropriate, as to the likely truth of the allegation; although it is to be noted that the European Court of Human Rights accepts a rule in respect of allegations of violations of article 3 under the European Convention on Human Rights that they have to be established beyond reasonable doubt.’ and
‘This case has involved issues touching both the Government’s conduct of foreign relations, and national security: pre-eminently the former. In those areas the common law assigns the duty of decision upon the merits to the elected arm of government; all the more so if they combine in the same case. This is the law for constitutional as well as pragmatic reasons . .’
. . And ‘Reasonableness and proportionality are not formal legal standards. They are substantive virtues, upon which, it may be thought, lawyers do not have the only voice: nor necessarily the wisest. Accordingly, the ascertainment of the weight to be given to the primary decision-maker’s view (very often that of central government) can be elusive and problematic . . The courts have a special responsibility in the field of human rights. It arises in part from the impetus of the Human Rights Act 1998, in part from the common law’s jealousy in seeing that intrusive state power is always strictly justified. The elected government has a special responsibility in what may be called strategic fields of policy, such as the conduct of foreign relations and matters of national security. It arises in part from considerations of competence, in part from the constitutional imperative of electoral accountability . . The court’s role is to see that the Government strictly complies with all formal requirements, and rationally considers the matters it has to confront. Here, because of the subject matter, the law accords to the executive an especially broad margin of discretion.’


Brooke LJ VP, Laws LJ, Smith LJ


[2006] EWCA Civ 1279, Times 18-Oct-2006, [2007] 2 WLR 1219, [2008] QB 289




England and Wales


CitedRegina (Abbasi) v Secretary of State for Foreign Affairs CA 6-Nov-2002
There is no authority in law to support the imposition of an enforceable duty on the state to protect the citizen, and although the court was able to intervene, in limited ways, in the way in which the Foreign and Commonwealth Office used its . .
Appeal fromAl Rawi and Others, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs and Another Admn 4-May-2006
‘This claim arises out of the continued detention in Guantanamo Bay of the first three named claimants by the United States authorities. None of them are British nationals, but each has been a long term resident of the United Kingdom in . .

Cited by:

CitedCorner House Research and Campaign Against Arms Trade, Regina (on the Application of) v Director of the Serious Fraud Office and Another Admn 10-Apr-2008
The defendant had had responsibility to investigate and if necessary prosecute a company suspected of serious offences of bribery and corruption in the conduct of contract negotiations. The investigation had been stopped, alledgedly at the . .
CitedMohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
CitedSecretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
CitedLord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
CitedYoussef v Secretary of State for Foreign and Commonwealth Affairs SC 27-Jan-2016
An Egyptian national, had lived here since 1994. He challenged a decision by the Secretary of State,as a member of the committee of the United Nations Security Council, known as the Resolution 1267 Committee or Sanctions Committee. The committee . .
CitedYoussef v Secretary of State for Foreign and Commonwealth Affairs CA 29-Oct-2013
The claimant appealed from rejection of his judicial review of a decision that he be placed on a list of persons subject to sanctions and therefore without access to money save with the consent of the government.
Held: The Secretary of State . .
Lists of cited by and citing cases may be incomplete.

Administrative, Human Rights, International, Constitutional

Updated: 07 July 2022; Ref: scu.245326