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|Judgments - Holland v. Lampen-Wolfe
HOUSE OF LORDS
Lord Hope of Craighead Lord Cooke of Thorndon Lord Clyde Lord Hobhouse of Woodborough Lord Millett
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
ON 20 JULY 2000
LORD HOPE OF CRAIGHEAD
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)  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.  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  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  111 I.L.R. 154 where the Commission held the application inadmissible on the ground, among others, that article 6 should be interpreted with due regard to parliamentary and diplomatic immunities as traditionally recognised. In the absence of any directly relevant authority to the contrary, I would hold that article 6 of the Convention does not preclude a state from granting immunity to a foreign state in accordance with its international law obligations in respect of acts which can properly be characterised as iure imperii.
I would dismiss the appeal.
LORD COOKE OF THORNDON
Having had the advantage of reading in draft the speech of my noble and learned friend Lord Millett, I agree with it in substance and would dismiss the appeal; but I add some brief observations.
The provision by a state for its military service personnel of general educational courses leading to a university degree and enhancing their career prospects both within and outside the service has probably not been traditionally regarded as activity jure imperii. The question whether it attracts sovereign immunity does not appear to have arisen in litigation before the present case. The activity is incidental to or collateral with the performance of traditional sovereign functions regarding a state's armed forces. Nothing was cited in argument to suggest that it has hitherto been treated as within the scope of those functions.
Accordingly there is some ground for saying that to deny sovereign immunity would not be obnoxious to any established principle of either international law or English law. Moreover, denial could be seen as appropriate to give effect to the ever-growing recognition of human rights: in particular the right of access to an impartial court for the determination of one's civil rights and obligations. Lord Lester of Herne Hill Q.C. for the appellant was on sounder ground, I think, in the later phase of his argument when he invoked human rights more generally than at the stage when he focused on the European Convention, to which the United States is not a party.
But an answer to that possible approach lies in the very fact that the boundaries of state immunity are not permanently fixed. There is some flexibility. I Congreso del Partido  1 A.C. 244 finally established in English law the restrictive theory of immunity, whereby the trading or commercial activities of states are not protected. Just as that case and others in the line have brought about a development of a restrictive kind, so changing concepts and circumstances may call on occasion for some extension of the field of the doctrine. At the present day, I think, a state may reasonably claim to have welfare and educational responsibilities towards the members of its armed forces. In turn the quality and efficiency of the forces may be strengthened if the state discharges those responsibilities. In their discharge the state may reasonably claim that it should not be subject to interference by other states or their courts. This is such a case. The government of the United States having reasonably claimed the immunity, I agree that it should be upheld as a modern application of the principle of par in parem to which Lord Wilberforce referred in I Congreso.
I have no difficulty in holding that the present case falls to be resolved at common law and not under the State Immunity Act 1978. It would not be unreasonable to hold that the sending of the memorandum was done, to quote the terms of section 16(2), "by . . . the armed forces of a state while present in the United Kingdom". It is matter of agreement that the respondent wrote the memorandum in his capacity as education services officer. But in any event it seems to me plain that the memorandum was sent "in relation to the armed forces", which is the alternative phrase in section 16(2). I am conscious that in so holding I am adopting a relatively broad construction of the words "relating to", but I consider that such an approach is correct. If on the other hand a narrow approach is adopted, so that the relationship has to be something of a more direct or immediate nature, then I should have thought that the same phrase, "proceedings relating to", which appears in section 3(1) would also require to be given a correspondingly narrow construction. The result then would be that even if the appellant succeeded under section 16, so that Part I was not disapplied, she would fail to escape the exclusion from immunity provided by section 3. On the broader approach which I have preferred, that is that the proceedings in question were at least "in relation to the armed forces" for the purposes of section 16 of the Act, Part I of the Act is disapplied, the statutory immunity conferred by section 1 is not available, and the question has to be resolved by reference to the common law.
In relation to the common law as it has now developed the distinction has to be made between claims arising out of acts done in the exercise of a State's sovereign authority and claims not so arising, that is typically claims arising out of commercial transactions such as might be undertaken by private individuals. Expressed in the traditional Latin labels, which are convenient as words of reference but do not assist significantly in the application of the distinction, the distinction is between matters jure imperii and matters jure gestionis. The "restrictive" theory which through the decisions in The Philippine Admiral  A.C. 373 and I Congreso del Partido  1 A.C. 244 has been adopted into the laws of the United Kingdom calls for this distinction to be made, but it is one which in some cases may be subtle and delicate to define and has indeed been criticised as one which may not be workable (Lady Hazel Fox, "State Immunity; The House of Lords' Decision in I Congreso Del Partido" (1982) 98 LQR 94). Indeed Professor Lauterpacht (The Problem of Jurisdictional Immunities of Foreign States (1951) 98 B.Y.I.L. 220, 222) refers to the difficulty of defining the distinction as the main argument in favour of an absolute immunity from jurisdiction. In the same article Professor Lauterpacht suggests that the immunity of foreign states may have derived from the traditional immunity of a sovereign state from suit in its own courts, a principle which has more recently been so diminished as to question the validity of the principle which has been derived from it. But that is not an analysis which has been taken up in the leading cases. It has been recognised that there is an international principle that sovereign states cannot claim jurisdiction over each other. In I Congreso Lord Wilberforce was content to find the basis for this in the (albeit analytical) maxim par in parem non habet imperium. More generally, as can be seen from the speeches in Compania Naviera Vascongado v. SS Cristina  A.C. 485, the principle has been attributed not only to that maxim but to such ideas as comity or reciprocity, the practicability of enforcement, or the respect for the dignity of other states. As matters stand I consider that we have to proceed upon the assumption that the eventual basis for the principle is to be found in such international considerations. But however the principle may have come about in the international context, the recognition that in practice states may engage in activities which do not truly rank as acts of sovereign power has encouraged exceptions to be made from an absolute immunity for all acts. But that course has given rise to the difficulties of classification already noticed. Transactions of a trading or commercial character may be seen as descriptive of the broad category where the exceptions will be found, but even that will not provide a precise definition of them. However we are not called upon in the present case to question the distinction. Indeed to innovate upon it in the domestic context would require the work of Parliament, and Parliament has already sought to formulate a distinction in the Act of 1978. Difficult as the distinction may be at common law, we have to do the best we can to apply it.
The solution in any particular case where the question of state immunity arises at common law has to be one of the analysis of the particular facts against the whole context in which they have occurred. There is little if anything to be gained by trying to fit the case into a particular precedent or to devise categories of situations which may or may not fall on the one side of the line or the other. It is the nature and character of the activity on which the claim is based which has to be studied, rather than the motive or purpose of it. The solution will turn upon an assessment of the particular facts. The line between sovereign and non-sovereign state activities may sometimes be clear, but in other cases may well be difficult to draw. In some cases, as was noticed in United States v. Public Service Alliance of Canada 94 I.L.R. 264, 283, even when the relevant activity has been identified it may have a double aspect, being at once sovereign and commercial, so that it may then have to be determined precisely to which aspect the proceedings in question relate.
I turn then to the facts of the present case. As regards the context, while it is true that the appellant was a civilian, employed by Troy State University in the United States of America, the performance of her teaching obligations under the contract between the University and the American Government involved the public function of the state in the provision of instruction to the American forces and their families. The supervisory functions required of the respondent were correspondingly involved in that same enterprise. The teaching was being done at a U.S military base and it involved only citizens of that country. It was part of the operations carried on at that base. In United States v. Public Service Alliance, La Forest J. at p. 283 observed:
The teaching was not of matters of technical military knowledge but at least indirectly would benefit the military personnel in assisting in their prospects of promotion or enhancing their general education in the interest of their future careers in the service of the state. The respondent was an American official and was engaged in the supervision of the appellant in her teaching function. It was in the course of his supervisory work that he came to write and send the memorandum which is the immediate subject of the appellant's claim. Investigation of the claim would involve a consideration of the appellant's performance of her duties and so inevitably of the nature and substance of the educational service which the State was providing for its armed forces and their families. I have come to the conclusion that the Court of Appeal was correct in holding that this is a case which is covered by state immunity.
The appellant put much stress on her right of freedom of access to the courts, invoking in particular article 6 of the European Convention on Human Rights and Fundamental Freedoms. The argument is certainly attractive, fortified as it was by the fact that certain applications to the Court of Human Rights raising issues of state immunity have been admitted for consideration by that court. But it seems to me that, at least under reference to the Convention where the rights in question are essentially rights open to an individual against the state, the present case is concerned with a distinct situation where, as matter of the international relations between states, the domestic courts in the United Kingdom lack any jurisdiction to provide any remedy. In so far as a right of access in an international context by a citizen of one state to the courts of another state is concerned, such a right would require to be measured against the demands of policy, comity and international law. At least in the circumstances of the present case I do not consider that the application of the established immunity would be unreasonable or disproportionate.
I would dismiss the appeal.
LORD HOBHOUSE OF WOODBOROUGH
For the reasons already given and those to be given by my noble and learned friend Lord Millett whose speech I have read in draft, with which I substantially agree, I too would dismiss this appeal.
The appellant Dr. Holland is a citizen of the United States of America. She is a Professor of International Relations at Troy State University, an independent public university in Alabama. Under a commercial agreement with the United States Government the University provides educational courses leading to a Master's Degree in International Relations for military personnel at United States bases in Europe and Asia. These bases include R.A.F. Menwith Hill in North Yorkshire. Menwith Hill is one of a number of military bases in the United Kingdom operated and maintained by the United States of America as a member of the North Atlantic Treaty Organisation. The unit at Menwith Hill is responsible for the co-ordination of education and training programmes for United States military personnel in the United Kingdom, Denmark and Norway and associated civilian personnel in the United Kingdom.
Overall responsibility for the administration of the courses which the University provides is undertaken by its European office which is situated at a United States Air Force base in Germany. In 1997, as part of her employment by the University, Dr. Holland was seconded to Menwith Hill where she gave courses in International Relations. She enjoyed the status of a technical representative under arrangements made between the United Kingdom and the United States regarding United States forces in the United Kingdom. This entitled her to enter the United Kingdom and work here without having to comply with the normal immigration and work permit requirements. She also enjoyed various privileges extended to members of the United States armed forces in the United Kingdom.
The respondent Mr. Lampen-Wolfe is also a citizen of the United States of America. He is a civilian employee of the United States Department of Defense and is engaged as the education services officer at Menwith Hill. At the material time he was responsible for the planning, development and implementation of the education and training programmes provided by the base. He was also responsible for the inspection and acceptance of the financial arrangements in respect of the courses which the University provided at Menwith Hill. His passport did not, at least at that time, contain the entry and note of recognition which by paragraphs (b) and (c) of section 10(1) of the Visiting Forces Act 1952 are required to make him a member of a civilian component of a visiting force for the purposes of that Act.
In March 1997, in his capacity as education services officer at Menwith Hill, the respondent wrote a memorandum to the University's European Programme Director at its regional office in Germany. The memorandum was headed "Unacceptable Instructor Performance." In it the respondent reported serious criticisms made by her students of Dr. Holland's performance and questioned her professional competence. He concluded with an official request that another instructor be assigned to complete the courses which her classes were currently taking.
Dr. Holland contends that the memorandum is untrue and seriously defamatory of her. She issued a writ claiming damages for defamation. The respondent applied to have the writ set aside on the ground that the proceedings implead a foreign sovereign state and are covered by state immunity both at common law and under the State Immunity Act 1978. His application was successful before the Master, who granted the relief sought and dismissed the action with costs. Dr. Holland's successive appeals to the Judge and the Court of Appeal (Nourse and Hutchison L.JJ. and Sir John Balcombe) 1 W.L.R. 188 were dismissed. In the circumstances, the respondent has served no defence. Should he be called upon to do so, we are told that Dr. Holland will wish to counter any defence of qualified privilege which may be raised with a plea of malice.
Before your Lordships Dr. Holland has invoked the European Convention on Human Rights and Fundamental Freedoms to which the Human Rights Act 1998 will give effect in our domestic law, and in particular article 6 which guarantees access to justice. The main provisions of the Act of 1998 are due to come into force on 2 October next. Dr. Holland claims that her case raises issues of general importance about the scope of the individual's right of access to the English Courts, her right to an effective remedy for the infringement of her civil rights, and the extent of the limitation imposed upon those fundamental rights by a claim of state immunity.
She contends that her proceedings for defamation do not touch the sovereign authority or dignity of the United States and cannot affect the exercise of any of its governmental functions. She acknowledges that the doctrine of state immunity pursues a legitimate aim in protecting the dignity and sovereign functions of sovereign states. But she observes that the immunity claimed by the respondent and upheld by the Court of Appeal is comprehensive and unqualified. It deprives her of due process of law and of any effective remedy irrespective of the gravity of the wrong done to her, the seriousness of the injury she has suffered and the amount of her loss, and without any inquiry whether her claim would harm or threaten any compelling interest of the United States. Accordingly, she submits, the application of the doctrine of state immunity to deprive her of her civil rights is disproportionate to the legitimate aim of the doctrine of state immunity and is incompatible with her Convention rights.