R (Abbasi) v Foreign Secretary [2002] EWCA Civ 1598

Key point
  • In exceptional circumstances the court would review the exercise of prerogative powers relating to the field of foreign affairs
  • In exercising the prerogative powers in the field of foreign affairs, it is for the executive to exercise its discretion in weighing and balancing competing factors, however, in doing so, it must have account to all relevant considerations
Facts
  • Mr Abassi was a British national who was detained by the US in Guantanamo Bay
  • Abassi argued that he was being subject to arbitrary detention in violation of habeas corpus and sought by judicial review to compel the British Foreign Office to either make representations on his behalf to the US Government or at least explain why they had taken no action in relation to his case.
  • One of the obstacles to the argument being made by the applicant was that the exercise of prerogative powers in the field of foreign affairs was nonjusticiable,by reference to Lord Roskill’s excluded categories as stated in GCHQ.
Held (Court of Appeal)
  • Appeal dismissed, the Foreign and Commonwealth office have considered Mr Abbasi’s request and he could not reasonably expect more than that.
Lord Phillips

Justiciability

  • ‘The extreme case where judicial review would arise in relation to diplomatic protection would be if the Foreign Office were to refuse to consider whether to make diplomatic representations on behalf of a subject whose fundamental rights were being threatened. In such unlikely circumstances, we would consider that it would be appropriate for the court to make an order for the Foreign Secretary to give consideration to the applicant’s case.’: [104]
  • ‘It is not an answer to a claim for judicial review to say that the source of the power of the Foreign Office is the prerogative. It is the subject matter that is determinative.’
  • ‘The expectations [of the citizen] are limited and the discretion is a very wide one but there is no reason why its decision or inaction should not be reviewable if it can be shown that the same were irrational or contrary to legitimate expectation; but the court cannot enter the forbidden areas, including decisions affecting foreign policy’: [106]

Relevant considerations

  • ‘it must be a “normal expectation of every citizen” that, if subjected abroad to a violation of a fundamental right, the British Government will not simply wash their hands of the matter and abandon him to his fate’: [98]
  • ‘Whether to make any representations in a particular case, and if so in what form, is left entirely to the discretion of the Secretary of State. That gives free play to the “balance” to which Lord Diplock referred in GCHQ. The Secretary of State must be free to give full weight to foreign policy considerations, which are not justiciable. However, that does not mean the whole process is immune from judicial scrutiny. The citizen’s legitimate expectation is that his request will be “considered”, and that in that consideration all relevant factors will be thrown into the balance.’: [99]
  • ‘One vital factor, as the policy recognises, is the nature and extent of the injustice, which he claims to have suffered. Even where there has been a gross miscarriage of justice, there may perhaps be overriding reasons of foreign policy which may lead the Secretary of State to decline to intervene. However, unless and until he has formed some judgment as to the gravity of the miscarriage, it is impossible for that balance to be properly conducted.’: [100]

Current case

  • In the instant case, the Foreign and Commonwealth Office had considered Abbasi’s request for assistance and that Abassi could not reasonably expect more than that.
Commentary
  • This case is an important indication of the expanding power of judicial review
  • This case holds that there could be exceptional circumstances where judicial review could be successfully undertaken in previously non-justiciable areas of prerogative power that were held to be excluded by Lord Scarman in Council of Civil Service Unions
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