Sultan of Pahang, R (on the application of) v Secretary of State for the Home Department [2011] EWCA Civ 616

[2011] EWCA Civ 616Case No C1/2010/1728
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION,
ADMINISTRATIVE COURT (Mr Justice Nicol)
REF NO: CO28452010
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/05/2011
Before
LORD JUSTICE MAURICE KAY,Vice President of the Court of Appeal, Civil DivisionLADY JUSTICE SMITHLORD JUSTICE MOORE-BICK
Between
THE QUEEN ON THE APPLICATION OF HRH SULTAN OF PAHANGAppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Mr Ian Macdonald QC and Ms Aileen McColgan (instructed by Messrs Grange & Castle) for AppellantMr Steven Kovats QC (instructed by the Treasury Solicitor) for RespondentHearing Hearing date : 21 March 2011
Judgment
[1]The issue in this case is whether His Royal Highness the Sultan of Pahang (the Sultan), is subject to the immigration control laws of the United Kingdom. His case is that, by reason of state immunity, he is not. He seeks to challenge a decision contained in a letter written on behalf of the Secretary of State dated 2 December 2009 to the effect that he is. His claim was rejected in the Administrative Court on 8 July 2010, [2010] EWHC 2024 (Admin), when Nicol J refused him permission to apply for judicial review, as had Sales J on an earlier consideration of the papers.[2]Pahang is one of nine Sultanates within the Federation of Malaysia. The Sultan is “the Sovereign” of Pahang pursuant to Articles 2 and 3 of the Laws of the Constitution of Pahang. Complex provisions in the Constitution of Malaysia have the effect that the position of the Supreme Head of the Federation of Malaysia rotates between the rulers of the nine Sultanates. The Sultan was the Supreme Head of the Federation in the years 1979 – 1984. He has not been the Supreme Head since that time. Nevertheless, his case is that he is beyond the reach of United Kingdom immigration control by reason of state immunity either pursuant to statute or at common law. Nicol J rejected the statutory claim as a matter of construction and further held that common law no longer accommodates such a claim. I shall shortly explain why I consider that, within the four corners of its legal analysis, the judgment of Nicol J was correct. There is, however, another and more fundamental reason why I consider that the Sultan’s case is misconceived. It is that, ultimately, the question of who is a Head of State such as to attract state immunity is a matter for the Secretary of State for Foreign and Commonwealth Affairs and not for this Court.

The statutory argument

[3]The case for the Sultan is that he falls outside immigration control by reason of section 20(1) and possibly (5) of the State Immunity Act 1978 (the SIA). However, it is first necessary to set out the route to that conclusion.[4]Section 8(3) of the Immigration Act 1971 now provides:
“… the provisions of this Act relating to those who are not British citizens shall not apply to any person so long as he is a member of a mission (within the meaning of the Diplomatic Privileges Act 1964), a person who is a member of the family and forms part of the household of such a member, or a person otherwise entitled to the like immunity from jurisdiction as is conferred by that Act on a diplomatic agent.”
It is not suggested that the Sultan falls within that provision standing alone. Rather that he does so by way of its relationship with common law.[5]The SIA is primarily concerned with civil proceedings in the United Kingdom by or against other states. However, Part III, headed “Miscellaneous and Supplementary”, begins with section 20, the material parts of which provide: “(1) Subject to the provisions of this section and to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to –(a) a sovereign or other Head of State;(b) members of his family forming part of his household; and(c) his private servants, as it applies to the head of a diplomatic mission, to members of his family forming part of his household and to his private servants … (3) Subject to any direction to the contrary by the Secretary of State, a person on whom immunities and privileges are conferred by virtue of subsection (1) above shall be entitled to the exemption conferred by section 8(3) of the Immigration Act 1971 … (5) This section applies to the sovereign or other head of any State on which immunities and privileges are conferred by Part I of this Act and is without prejudice to the application of that Part to any such sovereign or head of State in his public capacity.” (a) a sovereign or other Head of State; (b) members of his family forming part of his household; and (c) his private servants, as it applies to the head of a diplomatic mission, to members of his family forming part of his household and to his private servants …[6]Thus, the head of any state which enjoys immunities and privileges under Part I is equiparated with the head of a diplomatic mission and takes the benefit of, inter alia, section 8(3) of the Immigration Act 1971. The Sultan claims to be such a person. Moreover, I have included the references to families, households and servants because we are told that the Sultan’s interest in these proceedings is mainly on behalf of his entourage and his wish that they enjoy the immunity. A claim by some of them to this effect has previously been rejected by the Asylum and Immigration Tribunal on 11 February 2009,[7]Section 21 of the SIA provides:
“A certificate by or on behalf of the Secretary of State shall be conclusive evidence on any question – (a) whether any country is a State for the purposes of Part I of this Act, whether any territory is a constituent territory of a federal State for those purposes or as to the person or persons to be regarded for those purposes as the head of government of a State …” (a) whether any country is a State for the purposes of Part I of this Act, whether any territory is a constituent territory of a federal State for those purposes or as to the person or persons to be regarded for those purposes as the head of government of a State …”
[8]In the present case, there is a certificate, signed by the Director of Protocol at the FCO on 10 November 2008, in the following terms:
“Under the authority of Her Majesty’s Principal Secretary of State for Foreign and Commonwealth Affairs conferred upon me and in accordance with Section 4 of the Diplomatic Privileges Act 1964 as applied by section 20(1) of the State Immunity Act 1978, I … hereby certify that: Pahang is a constituent territory of Malaysia which is a federal state. [The Sultan] is the Sultan of the territory of Pahang and is not the Head of State of Malaysia. His Majesty Al-Wathiqu Billah Tuanku Mizan Zainal Abidin Al-Marhum Sultan Mahmud Al-Muktafi Billah Shahis the Head of State of Malaysia.”
[9]“Constituent territories of a federal State” also receive attention in section 14(5) of the SIA which, having provided that section 12 (Service process and judgments in default of appearance) applies to such constituent territories, then provides more generally:
“Her Majesty may by Order in Council provide for the other provisions of this Part of this Act to apply to any such constituent territory specified in the Order as they apply to a State.”
The Sultan requested the making of such an Order in relation to Pahang but this was declined by the Secretary of State in a letter dated 7 December 2009.[10]In these circumstances, it is difficult to see how the SIA could support the Sultan’s case. It was held in Pocket Kings Ltd v Safenames [2010] Ch 438, correctly in my view, that the concepts of “constituent territory” and “state” are mutually exclusive for the purposes of the Act. Nicol J analysed the position as follows (at paragraph 11-12):
“It is to be inferred from the Secretary of State’s certificate … that Pahang is not a State for the purposes of the 1978 Act. That being so, in accordance with section 20(5), Pahang is not a State upon which immunities and privileges are conferred by Part I of the Act. On its face section 20(5) would then lead to the conclusion that the claimant is not the sovereign or other Head of State on which immunities and privileges are conferred by Part I of the Act and therefore the extension of section 8(3) of the Immigration Act 1971 to those persons referred to in section 20 of the 1978 Act cannot assist him.”
I respectfully agree with this analysis.[11]On behalf of the Sultan, Mr Ian Macdonald QC seeks to circumvent it by submitting that the power of the Secretary of State to certify, although set out in section 21 which is in Part III of the SIA, is a power to certify only for the purposes of Part I, which does not include section 20. I disagree. Section 21 contains no such limitation and section 20(5) incorporates, for the purposes of section 20, the concept of a state on which immunities and privileges are conferred by Part I. I do not see how a territory which is not a state on which immunities and privileges are conferred by Part I may nevertheless be a state, the head of which can avail himself of the provisions of section 20.[12]Mr Macdonald’s alternative argument is that, notwithstanding the provisions of the SIA, there is still room for state immunity to be established at common law. The SIA is not all-embracing. Section 16 provides that Part I does not apply in a number of circumstances, including criminal proceedings. The immunity of a head of state in such circumstances continues to be governed by customary international law and this is recognised by common law: see Fox, The Law of State Immunity, 2nd edition, p.249. Mr Macdonald makes a number of submissions aimed at justifying the proposition that immigration control, because it rests on a complex of administrative, civil and criminal controls and sanctions, is still susceptible to a residue of state immunity outside the SIA. I do not accept this submission. Immigration control is not excluded as such by section 16, although the exclusion of criminal proceedings would of course apply to a criminal prosecution for an immigration offence. It is plain from section 20(3) that, in other respects, immigration control comes within the SIA. I respectfully agree with Nicol J that there is no room for some residual common law category of a person who is not a head of state as defined by the SIA but who would otherwise be recognised as a head of state by the common law for the purposes of, inter alia, immigration control. Holland v Lampen-Wolfe [2000] 1 WLR 1573, upon which Mr Macdonald seeks to rely, does not assist his submission because it was concerned with circumstances which fell, at least to some extent, within the express exclusion of section 16, namely “proceedings relating to everything done by or in relation to the armed forces of a state while present in the United Kingdom”: (section 16(2)).[13]For all these reasons, I consider that Nicol J was right to conclude that there is no scope for state immunity in the present case, deriving from either the SIA or the common law.

The fundamental misconception

[14]I now return to what I described at the beginning of this judgment as the fundamental misconception. It relates to the role of the Court. In The Arantzazu Mendi [1939] AC 256, Lord Atkin said (at page 264):
“Our State cannot speak with two voices on such a matter [viz state sovereignty and matters deriving from it], the judiciary saying one thing, the executive another. Our Sovereign has to decide whom he will recognise as a fellow sovereign in the family of States; and the relations of the foreign State with ours in the matter of State immunities must flow from that decision alone.”
See also Lord Russell of Killowen (at page 267) and Lord Wright (at pages 267-268). Where there is no or insufficient evidence of the view of the executive, it is appropriate for the Court to adjourn so that it can be ascertained. This is what occurred in the High Court in The Arantzazu Mendi.[15]On this basis, the question arises as to the role of this Court in relation to the issue of any immunity enjoyed by the Sultan. We have the certificate dated 10 November 2008. In stating that Pahang is a constituent territory in Malaysia which is a federal state, that the Sultan is not the head of state of Malaysia, and that another specified person is, the certificate is conclusive in the respects referred to in section 21. In these circumstances, is there any scope for this Court to reach the conclusion that the Sultan enjoys state immunity? In my judgment, there is not. At various stages in his submissions, Mr Macdonald seeks to rely on a line of authorities of which Duff Development Co Ltd v Kelantan [1924] AC 797 is the best known but on this issue it has to be viewed in the context of The Arantzazu Mendi, in which Lord Atkin expressly disagreed with the passage in the speech of Lord Sumner upon which Mr Macdonald seeks to rely. Nor do I consider it possible to consign The Arantzazu Mendi to history. Its continuing authority was clearly acknowledged in Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883, where Brooke LJ, giving the judgment of the Court, said (at paragraph 349):
“Her Majesty’s Government has never given up the right to inform the courts as to its recognition or non-recognition of states, and the public policy need for the courts to follow that information, spoken to by Lord Atkin and others, remains.”
This is so, notwithstanding changes in the approach of the British Government to such matters, recognised in Kuwait Airways (at paragraph 341).[16]Mr Macdonald submits that the expansion of judicial review into previously no-go areas in recent times should now lead to a more interventionist approach. In his words, “the time has come”. I am entirely satisfied that it has not. There is no basis for judicial encroachment into an area which was identified in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, per Lord Fraser of Tullybelton, at page 398 (“foreign policy … and … other matters which are unsuitable for discussion or review in the law courts”) as being an aspect of prerogative power beyond the reach of judicial review. I of course accept that other exercises of prerogative power have now fallen under judicial scrutiny. Indeed that was the ratio of the CSSU case itself and things have not stood still since then: see for example, ex parteBentley [1994] QB 349 (prerogative of mercy); R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] QB 365 (prerogative power of colonial governance). However, the important determining factor is context and I find nothing in the present context to justify a departure from established principle.[17]That leaves the simple question: is the certificate in this case sufficiently clear and unequivocal to be determinative of State immunity? If it is not, the appropriate course would be to adjourn to enable clarity to be achieved, as per The Arantzazu Mendi. The matter is complicated by the fact that, as he makes clear to us, Mr Steven Kovats QC is instructed not on behalf of the Secretary of State for Foreign and Commonwealth Affairs but on behalf of the Secretary of State for the Home Department who has no authority in relation to certification and such matters. Mr Kovats has been scrupulous to observe the proprieties. For my part, however, on the basis of the wording of the certificate and the information that Mr Kovats has been able to impart to us, it would be extremely pedantic to conclude that the certificate is unclear or that adjournment is necessary to achieve clarity. I observe that a certificate in very similar terms was held to be sufficient in R (Alamieyeseigha) v Crown Prosecution Service [2005] EWHC 2704 (Admin), which was concerned with a constituent territory of the Federal Republic of Nigeria (see paragraphs 39-40). In my view the same is true in the present case. Thus, the primary reason why the Sultan cannot establish state immunity is that the certificate is conclusive against it.

Conclusion

[18]We have heard this case prior to determination of permission to appeal. In my view, for the reasons I have given, an appeal never had a real prospect of success. Nevertheless, the case raises an important issue. I would grant permission to appeal on the “some other compelling reason” basis. However, for the above reasons and those set out in the judgment of Moore-Bick LJ, I would dismiss this appeal.[19]I have read the judgments of Maurice Kay and Moore-Bick LJJ in draft and, for the reasons contained in them, I too would dismiss the appeal.[20]I agree that the appeal should be dismissed for substantially the same reasons as Maurice Kay LJ., but in view of the importance of this matter to the Sultan himself and in deference to the arguments of Mr. Macdonald QC, who appeared on his behalf, I propose to state my reasons for reaching that conclusion in my own words.[21]The facts giving rise to the appeal have been described by Maurice Kay LJ., whose account I gratefully adopt. At the root of Mr. Macdonald’s argument that the Sultan and his private servants are entitled to exemption from the law governing the right to enter and remain in the United Kingdom lies the proposition that the State Immunity Act 1978 has not displaced the common law rules relating to sovereign immunity for all purposes and that those rules continue to apply to all cases not covered by the Act itself. That much is not controversial, as is clear from section 16, which excludes certain matters from the scope of the Act, and the decision of the House of Lords in Holland v Lampen-Wolfe [2000] 1 W.L.R. 1573.[22]The next step in the argument is more difficult, however, since it depends on the proposition that a person may be a head of state at common law although not recognised as a head of state for the purposes of Part I of the Act. The issue arises because section 21 of the Act provides that a certificate made by or on behalf of the Secretary of State is conclusive evidence in relation to the question whether any country is a state for the purposes of Part I and, if so, who is to be regarded for those purposes as the head of state. In the present case a certificate has been made by the Director of Protocol at the Foreign and Commonwealth Office on behalf of the Secretary of State to the effect that Pahang is a constituent territory of Malaysia, which is a federal state, and that a person other than the Sultan of Pahang is head of state of Malaysia. I agree with Maurice Kay LJ. that this leaves no room for doubt that Her Majesty’s Government does not recognise Pahang as a state or the Sultan as a head of state, at any rate for the purposes of Part I of the Act. Accordingly, it is necessary for the Sultan to argue, as he does, that the certificate is conclusive only as to his status for the purposes of Part I of the Act, leaving open the position at common law.[23]The final step in the argument falls into two alternative parts. One rests on section 20(1) of the Act which provides:
“Subject to the provisions of this section and to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to— (a) a sovereign or other head of State; (b) members of his family forming part of his household; and (c) his private servants, as it applies to the head of a diplomatic mission, to members of his family forming part of his household and to his private servants.”
The other rests on section 8(3) of the Immigration Act 1971, which provides as follows:
“Subject to subsection (3A) below, the provisions of this Act relating to those who are not British citizens shall not apply to any person so long as he is a member of a mission (within the meaning of the Diplomatic Privileges Act 1964), a person who is a member of the family and forms part of the household of such a member, or a person otherwise entitled to the like immunity from jurisdiction as is conferred by that Act on a diplomatic agent.” (Emphasis added.)
[24]As to the first of those arguments, Mr. Macdonald submitted that section 20(1) is worded in unrestricted terms and is therefore capable of applying to a person who is a head of state at common law. Subsection (5), which provides that “this section applies to the sovereign or other head of State on which immunities and privileges are conferred by Part I of this Act”, should not be read as restricting the operation of subsection (1) to heads of state falling within Part I, but as providing such persons with protection in their private as well as their public capacities. Accordingly, subsection (1) is apt to apply to the Sultan who is therefore entitled to the immunity for which it provides and to the exemption conferred by section 8(3) of the Immigration Act 1971 for which section 20(3) provides. As to the second, he submitted that the Sultan is “a person otherwise entitled to the like immunity from jurisdiction as is conferred by that Act on a diplomatic agent” within the meaning of section 8(3) by virtue of the fact that he enjoys sovereign immunity at common law. I can leave aside the question whether those words are apt to extend to the Sultan’s private servants, even if they are apt to refer to the Sultan himself, and concentrate on the main ground of Mr. Macdonald’s submissions.[25]The common law principles of sovereign immunity are derived from customary international law and as such capable of development over time in accordance with changes in international law. One of the main purposes of the State Immunity Act 1978 was to clarify and give statutory force to the developments in customary international law and treaty law relating to the commercial activities of sovereign states. The law relating to such matters is now contained in Part I of the Act.[26]Mr. Macdonald drew our attention to a series of decisions in which the status of various overseas territories has been considered with a view to deciding whether they constituted sovereign states, notwithstanding that some attributes of absolute sovereignty had been restricted by agreement with, or even ceded to, others. They included Duff Development Co Ltd v Government of Kelantan [1924] A.C. 797, Sultan of Johore v Abubakar Tunku Aris Bendahar [1952] 2 AC 318 (PC) and Sayce v Ameer Ruler of Bahawalpur [1952] 2 Q.B. 390. On the basis of these authorities he submitted that even though Pahang has become a part of the federal state of Malaysia, it retains a sufficient degree of internal independence for it to be regarded as a state at common law and for the Sultan to be regarded as a foreign sovereign. Before reaching that submission, however, it is necessary to consider whether it is possible for a person who is not recognised as a head of state for the purposes of Part I of the State Immunity Act to be recognised as a head of state at common law; and if so, by reference to what principles the decision is to be made.[27]In my view it is not possible for a person who is not a head of state for the purposes of Part I of the Act to be a head of state at common law, although, as the authorities show, that is, strictly speaking, a matter of fact which is not for the courts to decide otherwise than in accordance with the advice of Her Majesty’s Government. Whether a territory is a state for these purposes depends on whether it is recognised as such by Her Majesty’s Government and the purpose of a certificate under section 21 is to declare whether that is so or not. Either a territory is recognised as a state and its head of state as a sovereign (or the equivalent) or it is not. It is not possible for a territory to be a state, in the sense in which that expression is used in this context, for some purposes and not for others. The reason emerges clearly from the speech of Lord Atkin in Government of theRepublic of Spain v S.S. Arantzazu Mendi [1939] AC 256.[28]The ‘Arantzazu Mendi’ concerned a claim by the Republican Government of Spain to a ship that had been requisitioned by the Nationalist Government of Spain and gave rise to the question whether the Nationalist Government was entitled to sovereign immunity. It had long been the practice when an issue of that kind arose in legal proceedings for the court to seek the advice of Her Majesty’s Government on whether the territory concerned was a state or its government a sovereign. In Duff Development Co Ltd v Government of Kelantan, however, Lord Sumner had suggested that in the absence of a clear statement of the position from the Government, the court might be entitled to decide the matter for itself on the basis of the evidence before it.[29]In The ‘Arantzazu Mendi’ Lord Atkin, with whom the other members of the House agreed, was firmly of the view that the question was one of fact on which the courts were bound to accept the view of the Government. He described the position as follows:
“The question is whether the Nationalist Government of Spain represent a foreign sovereign State in the sense that entitles them to immunity from being impleaded in these Courts, and, if so, whether they are impleaded in the action by reason of being in possession of the ship in question. I state the question in that form as being sufficient to dispose of the present case. . . . On the question whether the Nationalist Government of Spain was a foreign sovereign State, Bucknill J. took the correct course of directing a letter, dated May 25, 1938, to be written by the Admiralty Registrar to the Secretary of State for Foreign Affairs, asking whether the Nationalist Government of Spain is recognized by His Majesty’s Government as a foreign sovereign State. I pause here to say that not only is this the correct procedure, but that it is the only procedure by which the Court can inform itself of the material fact whether the party sought to be impleaded, or whose property is sought to be affected, is a foreign sovereign State. This, I think, is made clear by the judgments in this House in the Kelantan case. With great respect I do not accept the opinion implied in the speech of Lord Sumner in that case that recourse to His Majesty’s Government is only one way in which the judge can ascertain the relevant fact. The reason is, I think, obvious. Our State cannot speak with two voices on such a matter, the judiciary saying one thing, the executive another. Our Sovereign has to decide whom he will recognize as a fellow sovereign in the family of States; and the relations of the foreign State with ours in the matter of State immunities must flow from that decision alone.”
[30]That statement of the position at common law, which still applies insofar as the common law has any part to play, is now reflected in section 21 of the State Immunity Act in relation to the provisions of Part I. However, the underlying principle, namely, (to adapt the words of Lord Atkin) that it is for Her Majesty’s Government to decide which territories it will recognise as belonging to the international family of states, remains the same. Either the Government recognises Pahang as a state and the Sultan as its sovereign or it does not. That does not depend on the nature of the issues to which the proceedings give rise, but upon the application of the principles of customary international law as interpreted by the Government.[31]In Kuwait Airways Corp v Iraqi Airways (Nos 4 & 5)[2002] UKHL 19, [2002] 2 AC 883 there is reference in paragraph 341 of the judgment of this court to a change in the practice of Her Majesty’s Government in 1980 under which it decided no longer to accord recognition to governments, as opposed to states. However, according to the statement from the Foreign and Commonwealth Office which is quoted at length in the judgment, that change in practice did not affect the Government’s approach to the recognition of states in accordance with common international doctrine. As the court said in paragraph 349:
“Her Majesty’s Government has never given up the right to inform the courts as to its recognition or non-recognition of states, and the public policy need for the courts to follow that information, spoken to by Lord Atkin and others, remains.”
[32]I agree with Maurice Kay LJ. that this court should not encroach on the power of the Crown in a matter of this kind, involving, as it does, matters of foreign policy and the relations between this country and other states and territories.[33]In view of what the court said on that occasion about the continuing importance of accepting the information provided by Her Majesty’s Government in matters of this kind, it is perhaps surprising that the passages in the judgment in Kuwait Airways Corp v Iraqi Airways (Nos 4 & 5) to which I have referred appear not to have been drawn to the attention of the Divisional Court in R (Alamieyeseigha) v Crown Prosecution Service[2005] EWHC 2704 (Admin), in which the question for decision was whether the Governor of Byelsa State, a constituent territory of the Federal Republic of Nigeria, was entitled to immunity from prosecution in this country. In that case the Foreign Office had issued a certificate under section 21 of the State Immunity Act 1978 to the effect that Byelsa was a constituent territory of the Federal Republic of Nigeria. Having referred to The ‘Arantzazu Mendi’, Silber J., who gave the leading judgment, on two occasions described the Foreign Office certificate as being “of decisive importance”, but that did not stop the court hearing a considerable amount of evidence and argument relating to the constitutional status of Byelsa within the Republic of Nigeria, the degree of its internal autonomy and its capacity to enter into international relations, all of which, in my view, was ultimately irrelevant. In paragraph 32 of his judgment Silber J. recognised that it would be strange if a certificate were conclusive for civil proceedings but not for criminal proceedings and indeed, for the reasons I have given, I do not think that such that a result is possible. In the event the court held that the applicant was not entitled to immunity. It is not entirely clear to what extent the court’s decision rested on the certificate, but in my view its existence was sufficient to determine the outcome of the case.[34]One other authority to which reference was made in the Sultan’s written arguments deserves mention, because it is a case in which the court decided without the benefit of advice from Her Majesty’s Government that a foreign territory was a state and might thus be said to be inconsistent with the principles to be drawn from The ‘Arantzazu Mendi’ and earlier authorities. That authority is Mellenger v New Brunswick Development Corporation [1971] 1 W.L.R. 604. The question in that case was whether the defendant was an arm of the Government of the Province of New Brunswick which was itself a state and therefore entitled to immunity from suit. Lord Denning MR, with whom the other members of the court agreed, explained the position as follows:
“It was suggested by Mr. Kempster that the Province of New Brunswick does not qualify as a sovereign state so as to invoke the doctrine of sovereign immunity. But the authorities show decisively the contrary. The British North America Act 1867 gave Canada a federal constitution. Under it the powers of government were divided between the dominion government and the provincial governments. Some of those powers were vested in the dominion government. The rest remained with the provincial governments. Each provincial government, within its own sphere, retained its independence and autonomy directly under the Crown. The Crown is sovereign in New Brunswick for provincial powers, just as it is sovereign in Canada for dominion powers: see Liquidators of the Maritime Bank of Canada v Receiver-General of New Brunswick [1892] AC 437. It follows that the Province of New Brunswick is a sovereign state in its own right, and entitled, if it so wishes, to claim sovereign immunity.”
[35]The British North America Act 1867 is an act of the Westminster Parliament and thus susceptible of interpretation by the courts of this country. In Liquidators of the Maritime Bank of Canada v Receiver-General of New Brunswick [1892] AC 437 the Privy Council held that the relationship between the Crown and the individual provinces of Canada, including New Brunswick, survived the creation of the Dominion and accordingly that in a liquidation the Province, as a state of which Her Majesty was sovereign, was entitled to priority in right of the Crown. The was decision, although not binding on the Court of Appeal, was of high persuasive authority and accepted by the court as correct. It can be seen that the question which the court had to decide in that case was therefore rather different in nature from that which ordinarily arises when a person or body claims state immunity, since there was no question whether the Crown recognised New Brunswick as a state or itself as head of state under customary international law. The case therefore provides no authority for the proposition that the court is entitled to reach its own decision on the status of a foreign territory without seeking advice from Her Majesty’s Government.[36]In my view, therefore, the position as it now stands is that a certificate of the Secretary of State is conclusive evidence of the status of a territory for the purposes of Part I of the Act and is the only proper means by which the court can inform itself of a territory’s status and of the identity of the head of state for the purposes of the common law, where that continues to apply. As I have said, the certificate issued by the Director of Protocol in this case leaves no room for doubt that Her Majesty’s Government does not recognise Pahang as a state and in the face of that certificate the Sultan’s claim to sovereign immunity, whether under section 20 of the State Immunity Act or section 8 of the Immigration Act, must fail.[37]In these circumstances it is unnecessary to consider any of the other arguments advanced on his behalf and I would dismiss the appeal.

Cited in 8 later judgments