By an action for declaratory relief, a challenge was offered to the validity of the Order in Council giving effect to the 1961 Act.
Held: The appeal failed. As a matter of international comity an English court should not grant declarations which would amount to an unwarranted interference in the affairs of an independent member of the British Commonwealth. In proceedings for declarations brought against the Attorney General of England the court has no jurisdiction to make declarations as to the validity of the constitution of an independent sovereign state, in this case Sierra Leone.
Harman LJ: ‘These courts cannot, in my view, make a declaration impugning the validity of the constitution of a foreign or independent state, at any rate where that is the object of the action. This may be put as a matter of international comity, or upon the ground of effectiveness. No relief effective in this country or anywhere else is sought by the action. Any declaration which the court might make may be ignored with impunity by the independent country into whose affairs it pretends to pry, and I am of opinion that it would be not only improper, but contrary to law in those circumstances to make such a declaration as is here sought’.
Diplock LJ: ‘As a member of the family of nations, the Government of the United Kingdom (of which this court forms part of the judicial branch) observes the rules of comity, videlicet, the accepted rules of mutual conduct as between state and state which each state adopts in relation to other states to adopt in relation to itself. One of those rules is that it does not purport to exercise jurisdiction over the internal affairs of any other independent state, or to apply measures of coercion to it or to its property, except in accordance with the rules of public international law. One of the commonest applications of this rule by the judicial branch of the United Kingdom Government is the well-known doctrine of sovereign immunity. A foreign state cannot be impleaded in the English courts without its consent: see Duff Development Co. v. Kelantan Government. As was made clear in Rahimtoola v. Nizam of Hyderabad, the application of the doctrine of sovereign immunity does not depend upon the persons between whom the issue is joined, but upon the subject-matter of the issue. For the English court to pronounce upon the validity of a law of a foreign sovereign state within its own territory so that the validity of that law became the res of the res judicata in the suit, would be to assert jurisdiction over the internal affairs of that state. That would be a breach of the rules of comity’ and ‘The only subject-matter of this appeal is an issue as to the validity of a law of a foreign independent sovereign state, in fact, the basic law containing its constitution. The validity of this law does not come in question incidentally in proceedings in which the High Court has undoubted jurisdiction, as, for instance, the validity of a foreign law might come in question incidentally in an action upon a contract to be performed abroad. The validity of the foreign law is what this appeal is about; it is about nothing else. This is the subject-matter over which the English courts, in my view, have no jurisdiction.’ and
Diplock LJ continued: ‘Mr. Gardner [for the plaintiffs] urges, however, that there was a moment of time when the Order in Council purported to be in force before Sierra Leone became an independent sovereign state, while the Government of the United Kingdom was still the sovereign government of the colony of Sierra Leone. He submits that, during that period, the English court would have had jurisdiction to declare the Order in Council to be ultra vires, and that it does not lose that jurisdiction merely because Sierra Leone has subsequently become a foreign sovereign state.
I should in any event reject this argument. In applying the rules of comity, one looks to the substance of the issue, not to its form. The Order in Council was, on the face of it, intended to provide the constitution not of the colony of Sierra Leone, but of the new independent foreign state. The issue as to the validity of the Order in Council was thus, in substance, at the date of the writ, an issue as to the validity of the constitution of an independent sovereign state. But there is, I think, a technical answer also. As soon as Sierra Leone became independent, the Order in Council ceased to have any effect as an Order in Council, that is, as an exercise of the sovereign power of the United Kingdom Government represented by the Attorney-General of England. Whatever effect it then had was as part of the law of a foreign sovereign state, into the validity of which this court has no jurisdiction to enquire.’
Judges:
Diplock LJ, Harman LJ
Citations:
[1965] 1 Ch 745, [1965] 1 All ER 882
Statutes:
Sierra Leone Independence Act 1961, British Settlements Act 1887
Jurisdiction:
England and Wales
Citing:
Appeal from – Buck v Attorney General ChD 1965
The claimant challenged the validity of an order in council. The order used general enabling words, not expressly stating which power had been used for their creation.
Held: The result of those general enabling words was that the order was . .
Cited by:
Cited – Fitzgibbon v HM Attorney General ChD 9-Feb-2005
The claimant sought declarations that the government of Australia was not being conducted in accordance with the 1900 Act as it should be.
Held: Though the Act was an English Act, the Courts of England now have no jurisdiction over Australia: . .
Cited – Regina v Bartle and Commissioner of Police for the Metropolis and Others, ex parte Pinochet Ugarte; Regina v Evans and Similar (No 3) HL 24-Mar-1999
An application to extradite a former head of state for an offence which was not at the time an offence under English law would fail, but could proceed in respect of allegations of acts after that time. No immunity was intended for heads of state. . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte British Council of Turkish Cypriot Associations and Another Admn 19-Mar-1998
The applicants sought judicial review of the respondent’s decision to support the application for admission to the Eurorpean Community of Cyprus.
Held: Leave was refused: ‘the independence of Cyprus since 17th August 1960 forecloses any power . .
Cited – Regina (on the application of Abassi and Another) v Secretary of State for Foreign and Commonwealth Affairs and Another CA 6-Nov-2002
A British national had been captured in Afghanistan, and was being held without remedy by US forces. His family sought an order requiring the respondent to take greater steps to secure his release or provide other assistance.
Held: Such an . .
Cited – Manuel and Others v Attorney-General; Noltcho and Others v Attorney-General ChD 7-May-1982
The plaintiffs were Indian Chiefs from Canada. They complained that the 1982 Act which granted independence to Canada, had been passed without their consent, which they said was required. They feared the loss of rights embedded by historical . .
Cited – Vibixa Ltd, Polestar Jowetts Ltd v Komori UK Ltd and Another, Spectral Technology Ltd CA 9-May-2006
The claimants sought damages for damage to property alleging breach of statutory duty. The defendant said that the regulations were made under European not English law, and that the Secretary of State did not have power to make regulations under the . .
Cited – Kuwait Airways Corporation v Iraqi Airways Company (Conjoined Appeals 4 and 5) CA 10-Nov-2000
If a foreign made law was in breach of clearly established international law, then an English court should not recognise it. To do otherwise would be contrary to public policy. An interference with goods pursuant to such a law was actionable in . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.
Constitutional
Updated: 26 May 2022; Ref: scu.222627