Act of State and the Limits of Adjudication

Although ancient prerogatives used to give the British Crown considerable freedom from judicial scrutiny, they have dwindled in number following the constitutional settlements of the seventeenth century. But even now the victim of a tort or human rights violation may find that they have no domestic remedy if the act which caused the wrong was undertaken in pursuance of the Crown’s foreign policy objectives or its overseas military endeavours. The destruction of the Burmah Oil Company’s oil fields by British forces during the Japanese invasion of Burma in 1942 was claimed to be an example of such an act. The Company’s argument was that, in some circumstances, the Crown had a duty to pay compensation to those who suffer damage at its hands, even when acting under the prerogative. In response, the Lord Advocate argued that there should be no remedy available in this situation because it is recognised under the constitution that the judiciary should not have a say in matters relating to the actions of Crown agents in foreign affairs or the conduct of British armed forces abroad, unless empowered to do so by statute. The House of Lords, he submitted, would have to pass judgment on these Crown Acts of State in determining his liability (as the Crown’s representative) and these Acts were non-justiciable. Even though the Lord Advocate (somewhat controversially ) lost the case, “the proposition that the executive [should] obey the law as a matter of grace and not as a matter of necessity” remains a possibility under English law regarding certain Governmental acts in foreign affairs.