Ponnusamy & Ors v Secretary of State for Foreign and Commonwealth Affairs [2015] EWHC 1760 (QB)

Case No HQ12X02663[2015] EWHC 1760 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/03/2015
Before
THE HONOURABLE MR JUSTICE BLAKE
Between
WAYTHA MOORTHY PONNUSAMY and sixClaimantothersClaimantSECRETARY OF STATE FOR FOREIGN ANDDefendantCOMMONWEALTH AFFAIRSDefendant
Martin Chamberlain QC (instructed by Treasury Solicitors) for DefendantsJoel Bennathan QC (instructed by Imran Khan) for ClaimantsHearing Hearing dates: 30 March 2015
JudgmentTHE HONOURABLE MR JUSTICE BLAKE:Introduction
[1]This is an application made by the defendant Secretary of State to strike out the Particulars of Claim (POC) and enter judgment for the Defendant pursuant to CPR 3(4) because they disclose no reasonable grounds for bringing the claim. In the alternative, summary judgment on the whole claim is sought pursuant to CPR 24 (2) on the grounds that the claimants have no real prospect of succeeding and there is no compelling reason why the case should be disposed of at trial. In either case it common ground that real prospects of success mean something more than merely arguable.[2]The claim is question is a part 7 claim that was issued on 2 July 2012 and POC were served in April 2013. I shall for the purpose of these proceedings assume that the facts set out in those particulars are true.[3]The pleadings have been supplemented by three witness statements from Mr Ponnusamy for the claimants and two from Mr Todd of the Asia Pacific Directorate of the FCO.[4]The seven claimants were all born in what is now Malaysia on various dates between May 1950 and July 1966. I use the term Malaysia although from the nineteenth century to date there have been many changes in the constitutional status of that nation, its territory and name. An instructive history of how a patchwork of separate territories came to be governed after 1858 when the East India Company ceded its possessions to the British Crown is to be found in Fransman’s Nationality Law (3rd edition) 2011 at section B.132.[5]In respect of the lead up to the events with which this claim is concerned it can be noted:- i) In 1946 the Malayan Union was created consisting of nine Malay states that were British protectorates with traditional rulers who were also Islamic religious leaders, and the crown colonies of Penang and Malacca. ii) In 1948 the Union was replaced by Federation of Malaya that was created with its own local citizenship and constitutional arrangements for governance with elected representatives. iii) In August 1957 the Federation of Malaya became an independent country within the Commonwealth but those who were CUKCs by reason of their connection with Penang and Malacca were permitted to keep that status. iv) In 1963 the former dominions of Singapore, North Borneo and Sarawak joined the Federation and the new state of Malaysia was created, but Singapore with its predominantly Chinese population was expelled from Malaysia and became an independent state in 1965.[6]The POC do not reveal the nationality of the claimants but I was informed that the first six claimants are Malaysian but the seventh claimant has difficulty in proving her entitlement to Malaysian nationality because of the absence of a birth certificate for her mother. The particulars state that ethnically they are all south Indian in origin and some/all are Hindu by faith. Their ancestors all came to Malaysia in the nineteenth or early twentieth century as indentured labour to serve the Malaysian economy at a time when both the economy and the institutions of government were dominated by the British.[7]The essence of the particulars is that the interests of the Indian (mainly Tamil speaking) population of Malaysia were ignored during the period 1944 to 1957 when independence was agreed with a constitution that provided for an entrenched privileged position for the ethnically Malay community. It is contended that the community of mainly Tamil indentured labourers worked on British owned estates and mines. They did not speak the Malay language and many were illiterate and undocumented. They either did not have the right to vote in the emerging democracy after the Second World War or were not registered to vote and in any event were not politically organised or represented. As British subjects or protected persons before the coming in to force of the British Nationality Act 1948, and because the British government were aware of their vulnerable status it is contended that they were entitled to the special protection of the colonial power to safeguard their interests when sovereignty was ceded. It is then contended that this duty of protection was not property discharged, leaving them in a vulnerable position after independence from which each of the claimants has suffered with respect to access to higher education, employment in government, ownership of land, conducting business, the security of Hindu religious land and cemeteries and personal status with respect to registration of marriage and acquisition of citizenship.

Malaysian independence

[8]Although I have concluded that the resolution of this application turns on legal principles relating to the law of tort, by way of background to the application of these principles, I will attempt a very brief and necessarily selective summary of some of the events and issues that led to Malaysian independence in August 1957. In doing so I have drawn from Mr Todd’s first witness statement; extracts from the national archives quoted in the witness statements of Mr Ponnusamy (the first claimant) and an article he exhibits by Geoff Wade in the Asia Pacific Journal ‘The origins and evolution of ethnocracy in Malaysia’ (undated but written after March 2008).[9]Following the ending of the Second World War and the Japanese occupation of the Malay peninsula there was discussion as to the political future of the region. There were three broad ethnic groups in the country: Malay (or Bumiputra), Chinese and Indian. In 1951 a Cabinet minutes estimated the population of the Federation of Malaya as 2.5 million Malays, 2 million Chinese, 500,000 Indians and 70,000 others.[10]It seems that British policy favoured the creation of a single state within the Commonwealth of all the permanent inhabitants of the Federation under a common citizenship but recognised that the traditional rulers and the predominant strands of Malay political opinion favoured a political entity based on the historic religion, language and respect for the special status of the Malay people that had characterised some of the provisions of the treaties with the nine Malaya states by which British protection came to be afforded.[11]A Colonial Office memo of July 1944 cited by Mr Wade in his article referred to: ‘participation in the government by all the communities in Malaya is to be promoted subject to the special recognition of the political economic and social interests of the Malay race’.[12]This prompted the then Supreme Commander of Allied Forces in South East Asia, based in Ceylon, Lord Louis Mountbatten to comment “I cannot help feeling that in the long run nothing could perhaps to do more to perpetuate sectional antagonism ….than the giving of special recognition to ne race…I feel that our objectives should be to break down racial sectionalism in every way open to us, politically, economically and social and to endeavour to substitute for it the idea of Malayan citizenship”.[13]The response from the Colonial Office stated:
“The Malays are, by general consent, not at present capable of competing on equal terms economically with the ‘immigrant’ races- Chinese and Indian. From the beginning of our relations with the States we have pursued in the Malay States the policy of taking positive measures to prevent the submergence of the Malays in the public services and in the ownership of the land by the more energetic , competent and resourceful Chinese. The most damaging criticism of new policy will be precisely on these grounds, since we are endeavouring to admit non-Malay communities to a political equality with the Malays in the State territories. We shall make certain of estranging the Malays unless we can assure them of measures not only in the political and social field which will prevent such ‘equality’ inevitably resulting in their submergence, but also in such matters as the reservation of Malay lands.”
[14]Lord Mountbatten was un-persuaded but in substance these two view points are reflected in the subsequent debates that led to the passage of the independence legislation and the adoption of 1957 Constitution that is the focus of these claims.[15]The Malay Union lasted from 1946 to 1948 and was based on a single citizenship. It was opposed by the United Malays National Organisation (UMNO) because they feared Malay dominance would be diluted. It was short lived and replaced in 1948 by the Federation of Malaya that created an additional local Malay citizenship that was to be basis of eligibility for the franchise and included the Malay subjects of the princely rulers of the nine states, those born in the territories of the Malay states who habitually speak the Malay language and conform to Malay custom. British subjects born locally who have resided there for fifteen years.[16]In 1949 the Malayan Chinese Association was founded representing moderate Chinese political opinion. At this time there was an armed insurgency by the Chinese dominated Malayan Communist party.[17]An alliance of the MCA and UMNO was formed that won electoral victories between 1952 and 1955. In 1954 the Malayan Indian Congress the largest Indian political party joined the Alliance. Mr Ponnusamy states that this organisation was not primarily concerned with the plight of indentured labourers on estates. The Alliance won 226 of the 268 seats nationwide in 1954 and negotiations for independence began.[18]In early 1956 a constitutional conference was held in London where it was proposed that an independent commission chaired by Lord Reid should be set up to draft a constitution.[19]The terms of reference included at point v) ‘the safeguarding of the special position of the Malaya and the legitimate interest of other communities’. The Reid Commission itself noted the tension between a common nationality of an united Malayan nation enjoying equality before the law irrespective of race creed and culture and the terms of reference safeguarding the special position of the Malays. It recorded the fact that representatives of the Alliance parties and the rulers of the Malay states that these arrangements should not be indefinite and should in time yield to the principle of equal treatment (paragraph 163). It explored the origins of the special arrangements in the original treaties, the 1948 Federation agreement, and in the four areas where special arrangements operated at the time. It noted:
“We found little opposition in any quarter to the continuance of the present system for a time, but there was great opposition in some quarters to any increase in the present preferences and to their being continued for any prolonged period. We are of opinion in the present circumstances it is necessary to continue these preferences. The Malays would be at serious and unfair disadvantage compared with other communities if they were suddenly withdrawn. But with the integration of the various communities into a common nationality which we trust will gradually come about, the need for these preferences will gradually disappear. Our recommendations are made on the footing that the Malays should be assured that the present position will continue for a substantial period, but that in due course the present preferences should be reduced and should ultimately cease so that there should be no discrimination between races or communities.”
[20]The draft constitution produced by this group recommended a 15 year time limit on preferential treatment for the Malay community in respect of four areas of concern: land, admission to public services, business quotas and educational benefits.[21]The draft was considered by a working committee of representatives of the traditional Malay rulers, the Alliance government and the High Commissioner and other officials. The end result was that the 15 year limit to the special arrangements was removed and other provisions safeguarding the rights of the non-Malay peoples of the Federation diluted.[22]The claimants are critical of the British administration in permitting these amendments to take place, and rely on the passages in the Reid Report indicating that they had the consent of the Alliance party and it’s Chief Minister Tunku Abdul Rahman. I note, however, that Mr Wade quotes the memoirs of Tunku Rahman in his article to the effect that:
“it was , of course, not a perfect constitution …But we knew that we were going to be in power with an overwhelming majority and if any changes appeared necessary we would amend the constitution …So why waste time haggling over it at that stage?”
[23]The claimants further are critical of the fact that British defence and economic interest in the Federation are mentioned as relevant factors in the memoranda abstracted from public records but not the welfare of the Indian labourers.[24]Mr Todd points out :
‘the Working Committee’s task was one of political negotiation with a view to accommodating as many competing interests and viewpoints as possible. The aim was to settle a document which would command assent from as many as possible of the citizens of Malaya and enable the States to move to independence in peace’
. Mr Ponnusamy disputes that the process of making a constitution was or should have been a compromise, but his statements are a matter of political contention rather than disputes as to the primary facts. I have no doubt that the reaching of an agreement was the outcome of a process whereby competing interests were accommodated as far as possible.

The Independence Legislation

[25]The Federation of Malaya Independence Act (FMIA) received the Royal Assent 31 July 1957[26]Section 1 reads as follows: Provision for establishment of the Federation as an independent sovereign country.E+W+S+N.I.(1) Subject to the provisions of this section, the approval of Parliament is hereby given to the conclusion between Her Majesty and the Rulers of the Malay States of such agreement as appears to Her Majesty to be expedient for the establishment of the Federation of Malaya as an independent sovereign country within the Commonwealth.(2) Any such agreement as aforesaid may make provision— (a) for the formation of the Malay States and of the Settlements of Penang and Malacca into a new independent Federation of States under a Federal Constitution specified in the agreement and for the application to those Settlements, as States of the new Federation, of State Constitutions so specified; (b) for the termination of Her Majesty’s sovereignty and jurisdiction in respect of the said Settlements, and of all other Her power and jurisdiction in and in respect of the Malay States or the Federation as a whole, and the revocation or modification of all or any of the provisions of the Federation of Malaya Agreement, 1948, and of any other agreements in force between Her Majesty and the Rulers of the Malay States.(3) Any such agreement shall be conditional upon the approval of the new Federal Constitution by enactments of the existing Federal Legislature and of each of the Malay States; and upon such approval being given Her Majesty by Order in Council may direct that the said Federal and State Constitutions shall have the force of law within the said Settlements, and, so far as She has jurisdiction in that behalf, elsewhere within the Federation, and may make such other provision as appears to Her to be necessary for giving effect to the agreement.(4) Any Order in Council under this section shall be laid before Parliament after being made.(5) In this Act “the appointed day” means such day as may be specified by Order in Council under this section as the day from which the said Federal Constitution has the force of law as aforesaid.[27]The Act thus permits: i) Her Majesty to reach such agreement as appears expedient for the establishment of an independent state. ii) Such agreement shall be conditional on the approval of a new federal constitution by enactments of the federal legislature and each of the Malay states and iii) On such approval being reached Her Majesty by direct by Order in Council that the new constitution takes effect.[28]The process of agreement must have been concluded by the time of the passage of the Act although the new constitution is not scheduled to the Act but to the subsequent agreement reached on 5 August 1957.[29]Article 89 of the Constitution made provisions for the continuation of Malaya land reservations and 89(2) enabled new such reservations to be created subject to certain conditions.[30]The following provisions of the Constitution are of potential relevance to these proceedings Article 3(1) Islam is the religion of he Federation; but other Religions of the religions may be practised in peace and harmony in any part of the Federation. Article 8 (1) All persons are equal before the law and entitled Equality to the equal protection of the law;(2) Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent or place of birth in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.(3) There shall be no discrimination in favour of any person on the ground that he is a subject of the Ruler of any State.(4) No public authority shall discriminate against any person on the ground that he is resident or carrying on business in any part of the Federation outside the jurisdiction of the authority.(5) This Article does not invalidate or prohibit:- (a) any provision regulating personal law, (b) any provision or practice restricting office or employment connected with the affairs of any religion , or of an institution managed by a group professing any religion to persons professing that religion; (c) any provision for the protection, wellbeing or advancement of the aboriginal people of the Federation (including the reservation of land) or the reservation to aborigine of a reasonable proportion of suitable positions in the public service; (d) any provision prescribing residence in a State or part of a State as a qualification for election or appointment to any authority having jurisdiction only in that State or part or for voting in such an election; (e) any provision of a Constitution of a State, being or corresponding to a provision in force immediately before Merdeka Day (f) Any provision restricting enlistment in the Malay Regiment to Malays Article 153 (1) It shall be the responsibility of the Yang di-Pertuan Agon to safeguard the special position of the Malays and the legitimate interests of other communities in accordance with the provisions of this Article. (2) Notwithstanding anything in this Constitution, but subject to the provisions of Article 40 and of this Article, the Yang di-Pertuan Agong shall exercise his functions under this constitution and federal law in such manner as may be necessary to safeguard the special position of the Malays and to ensure the reservation for Malays of such proportions as he may deem reasonable of positions in the public service (other than the public service of a State) and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal government and when any permit or licence for the operation of any trade or business is required by federal law, then, subject to the provisions of that law and this Article, or such permits and licences. (3) The Yang di-Pertuan Agong may in order to ensure in accordance with clause (2) the reservation of Malays of positions in the public service and of scholarships, exhibitions and other educational or training privileges or special facilities, given such general directions as may be required for that purpose to any commission to which Part X applies or to any authority charged with responsibility for the grant of such scholarships, exhibitions or other educational or training privileges or special facilities, and the Commission or Authority shall duly comply with the directions. (4) In exercising his functions under this constitution and federal law in accordance with clauses (1) to (3) the Yange di-Peruan Agong shall not deprive any person of any public office held by him or the continuance of any scholarship exhibition or other educational) or training privileges or special facilities enjoyed by him (5) This Article does not derogate from the provisions of Article 136.(6) Where by existing federal law a permit or licence is required of the operation of any trade or business the Yang di-Pertuan may exercise his functions under the law in such manner, or give such general directions to any authority charged under that law with the grant of such permits or licences, as may be required to ensure the reservations of such proportion of such permits or licences for Malays as the Yang di-Pertuan Agong may deem reasonable; and the authority shall duly comply with the directions.(7) Nothing in this Article shall operate to deprive or authorise the deprivation of any person of any right, privilege, permit or licence accrued to or enjoyed or held by him or to authorise a refusal to renew to any person any such permit or licence or a refusal to grant to the heirs successors or assigns of a person any permit or licence when the renewal or grant might reasonably be expected in the ordinary course of events.(8) Notwithstanding anything in this Constitution, whereby any federal law any permit or licence is required for the operation of any trade or business, that law may provide for the reservation of a proportion of such permits or licences for Malays; but no such law shall for the purpose of ensuring such a reservation –a. Deprive or authorise the deprivation of any person of any right, privilege, permit or licence accrued to or enjoyed or held by him; orb. Authorise a refusal to renew to any person any such permit or licence or a refusal to grant to the heirs, successors or assigns of any person any permit or licence when the renewal or grant might in accordance with the other provisions of the law reasonably be expected in the ordinary course of events, or prevent any person from transferring together with his business any transferable licence to operate that business: orc. Where no permit licence was previously required for the operation of the trade or business, authorise a refusal to grant a permit or licence to any person for the operation of any trade or business which immediately before the coming into force of the law he had been bona-fide carrying on, or authorise a refusal subsequently to renew to any such person any permit or licence, or a refusal to grant to their heirs, successors or assigns of any such person any such permit or licence when the renewal or grant might in accordance with the other provisions of that law reasonably be expected in the ordinary course of events.(9) Nothing in this Article shall empower Parliament to restrict business or trade solely for the purpose of reservations for Malays.(10) The Constitution for the State of any Ruler may make provision corresponding (with the necessary modifications) to the provisions of this Article. Article 159 (1) Subject to the following provisions of this Article the provisions of this Constitution may be amended by federal law. (2) No amendments to this Constitution shall be made before Parliament is constituted in accordance with Part IV, except such as the Legislative Council may deem necessary to remove any difficulties in the transition from the constitutional arrangements in operation immediately before Merdeka Day to those provided for by this Constitution; but any law made in pursuance of this clause shall, unless sooner repeal, cease to have effect at the expiration of a period of twelve months beginning with the day on which Parliament first meets. (3) A Bill for making any amendment to the Constitution (other than an amendment excepted for the provisions of this clause) shall be be passed in either House of Parliament unless it be supported on the Second and third Readings by the votes of not less than two-thirds of the total number of members of that House. (4) The following amendments are excepted from the provisions of clause (3), that is to say- a. any amendment to the Second, Sixth or Seventh Schedule; b. any amendment incidental to the consequential on the exercise of any power to make law conferred on Parliament by any provision of this Constitution other than Articles 74 and 76; and c. Any amendment incidental to or consequential on the repeal of the law made under clause (2) or consequential on an amendment made under paragraph (a) (5) A law making an amendment to Article 38, 70, 71 (1) or 153 shall not be passed without the consent of the Conference of Rulers. (6) In this Article “amendment” includes addition and repeal.[31]The constitution is decreed by Article 4 to be the supreme law of the Federation. There is constitutional protection in the cases of deprivation of liberty, the prohibition on slavery, forced labour, retrospective penalties, freedom of movement, freedom of speech and access to education in Articles 5, 6, 7, 9, 10 and 12. Some of the rights provided and entrenched were more advanced than common law of England and Wales at the time, although the provisions on discrimination were subject to the special protection of the Malay people which would not be the case in a common law principle of equality although a proportionate measure of positive discrimination might well have been accepted for a reasonable period.[32]Following political agreement the Constitution came into force in August 1957 Since 1958 Mr Todd explains that there have been no fewer than 57 amendments to the constitution.

The Particulars of claim

[33]The POC at [16] to [18] state that the defendant owed the claimants a duty of care to take all reasonable and necessary steps to prevent the systemic use of the colonial administration of discrimination or unfair treatment on the grounds of face religion or ethnicity because of its responsibility for the discharge of Her Majesty’s duty of protection towards her subjects. They contend that the defendant should have ensured that the claimants would not be subject to treatment that violated the ECHR and assumed a specific responsibility to the forebears of the claimants by reason of its knowledge of the likely losses they would suffer.[34]The particulars of negligence assert that in breach of that duty the defendant failed to prevent Article 153 of the Constitution becoming law and failed to ensure that the laws of the Federation complied with the ECHR that had been signed in 1950 and ratified in 1953, or otherwise provided special protection for persons of the claimants’ community.[35]The liability contended for is based on the defendants’ ability to control the decisions of the working party in drafting the constitution.[36]The POC assert that as a result of these breaches of duty, each of the claimants has suffered discriminatory treatment in connection with university education, registration of marriage, holding of property and citizenship. Although no details are provided, by inference it is clear that the acts complained of were encountered over the age of 18 and in general the less favourable treatment is said to be continuing.[37]Mr Ponnusamy’s witness statement gives some broad picture of the difficulties and the social and economic discrimination suffered by those who were indentured labourers both in colonial times and more pertinently for this claim since independence in 1957.

The application to strike out

[38]The claimants’ pleaded case for a duty of care in the formation of constitutional legislation is a novel and unprecedented one and if well founded will lead to a significant development in the legal relations between the executive and all persons within the protection of the state.[39]Mr Bennathan QC for the claimants submits although the duty of care contended for is a new step in the law tort it is possible that incremental development once the facts have been fully established may lead to liability and reminds me of the jurisprudence that indicates great caution should be and reminds me of the jurisprudence that indicates great caution should be exercised before striking out a claim without full factual investigation even if it appears to be weak: see Barrett v Enfield LBC [2001] 2 AC 550 per Lord Browne-Wilkinson at p. 557 D; Phelps v Hillingdon LBC [2001] 2 AC 619 at 644 D and Anyanwu v South Bank Student Union [2001] ICR 391 2/13 a decision concerned itself with an allegation of race discrimination.[40]It is of central importance at the outset to recognise that:-(i) This is not an application brought for judicial review of a decision of a public authority;(ii) Nor is it a claim for relief brought under the human rights act or any common law duty to act compatibly with the ECHR in 1957.(iii) It is not a claim for damages for breach of a tort of assault, trespass or false imprisonment arising out of an independence movement as was the case in claim in Mutua v Foreign and Commonwealth Office [2012] EWHC 2678 (QB) .[41]A claim for damages could not be brought against the Crown before the passage of the Crown Proceedings Act 1947 and any such claim that can now be brought under s. 2 must comply with the statutory scheme of that Act. In particular s. 40 (2) (b) provides: Except as therein otherwise expressly provided, nothing in this Act shall:— (b) authorise proceedings to be taken against the Crown under or in accordance with this Act in respect of any alleged liability of the Crown arising otherwise than in respect of His Majesty’s Government in the United Kingdom or affect proceedings against the Crown in respect of any such alleged liability as aforesaid.[42]Mr Chamberlain QC for the defendant, contends that these claims fail at this preliminary hurdle since every allegation made in the particulars of claim is done other than in respect of Her Majesty government in the United Kingdom but by right of Her Majesty in the former Federation of Malaya.[43]In addition he submits that there are no reasonable grounds for bringing a claim and no reasonable prospects of success for at least four distinct reasons, any one of which would be fatal to the continuation of these proceedings:(i) There was no duty of care owed in respect of acts preparatory to legislation;(ii) Even if there arguably might have been, there is no evidence of a breach of duty, that is say that had the defendant insisted on a time limit to the s.153 or a removal of the clause from the draft constitution this is what would have taken place.(iii) Even if the first two propositions were right the claimants have not shown any causal link between the breach of duty in 1957 and the discrimination suffered today.(iv) Finally it is contended that for the claimants to succeed in proving the damage they allege they have suffered in recent years they would have to show that the acts done by an independent foreign sovereign were in breach of the principles of international law but such assertion would involve a breach of the non-justiciability principle with respect to the acts of a foreign state.[44]I make no decision in respect to this last ground of the application that indeed was not pursued by Mr Chamberlain at the hearing. I accept that an investigation into allegations gross violations of human rights on the territory of another sovereign state may be required in the course of civil litigation and this is an emerging exception to the sovereign immunity principles see the judgment of Lloyd-Jones LJ in Belhaj v Straw [2014] EWCA Civ 1394 at 114- 121. It is possible that evidence of overt racial discrimination in the treatment of social and economic rights are concerned may be constitute evidence of treatment is inhuman and degrading and of a character prohibited both by Article 3 ECHR and other general provisions of international law (see Case 25781/94 Cyprus v Turkey Grand Chamber of the ECtHR 10 May 2001 at paragraphs 302 to 311.[45]However, the other submissions are different in nature. In my judgment they can be examined without a consideration of the evidence.

Issue 1: Is the defendant sued in right of HMG in the UK

[46]Here the defendant relies on the case of R v Secretary of State for Foreign and Commonwealth Affairs ex p Quark Fisheries [2005] UKHL57 [2006] 1 AC 529. This was a challenge to an instruction issued by the defendant to the Director Fisheries of South Georgia, a dependent territory of the Crown where there was no permanent population. There were two issues determined by the Appellate Committee: first, whether the instruction was given in right of HM as sovereign of South Georgia and dependencies (SGSSI) or the UK; second whether Article 1 of Protocol 1 to the ECHR applied to SGSSI .[47]Lord Bingham reviewed the authorities at [12] to [16] and concluded at [19]:. “Collins J, before whom this question was not (it seems) very fully argued, concluded in para 34 of his judgment that "there is no question but that in acting pursuant to the 1985 Ordinance, the [Secretary of State] was acting on behalf of the Crown in right of government of SGSSI." The Court of Appeal reached a different view. In doing so, it observed (para 48) that under the 1985 Order there "is a very considerable reservation of powers to the Secretary of State". But this is not so. There is a considerable reservation of powers to Her Majesty, as Queen of SGSSI, but none to the Secretary of State. It went on to suggest (para 50), borrowing the language of Laws LJ in Bancoult, that "it would be an abject surrender of substance to form to treat the instruction given by the Secretary of State on behalf of Her Majesty as one given in right of [SGSSI]". But I do not think the issue is properly to be regarded as a contest between substance and form: it turns on identifying the correct constitutional principle. While the court accepted (para 51) that the reason why a particular decision is taken cannot be determinative of the construction of the instruction, it held that the instruction had nevertheless to be construed in the context of a factual matrix which included the political and diplomatic context of the instruction. Here, there is no issue of construction. What is in issue is the constitutional standing of the instruction. The factual matrix might, I accept, be relevant if there were in a given territory no government, or no government worthy of the name, other than the United Kingdom Government. There would then be no government other than that of the United Kingdom Government on whose behalf an exercise of executive power could be made, no other government in right of which the Queen could act. But that is not this case. Here, there is nothing to displace the initial inference that the instruction was given by Her Majesty, through the Secretary of State, in right of the government of SGSSI.” "there is no question but that in acting pursuant to the 1985 Ordinance, the [Secretary of State] was acting on behalf of the Crown in right of government of SGSSI."[48]Lord Hoffman concurring said at [64]:
“The test for whether someone exercising statutory powers was exercising them as a United Kingdom public authority is in my opinion whether they were exercised under the law of the United Kingdom. In this case they were not. The acts of the Secretary of State in advising Her Majesty and communicating her instructions to the Commissioner had legal effect only by virtue of the Order, which is the constitution of SGSSI and not part of the law of the United Kingdom. The court is neither concerned nor equipped to decide in whose interests the act was done. That this would also be the approach of the Strasbourg authorities is shown by the decision of the Commission in Bui Van Thanh v United Kingdom (1990) (Application No 16137/90).”
[49]The position was different from Bancoult v SSFCA [2001] QB 1067 where an Order in Council in respect of the dependent territory of Diego Garcia was challenged by way of judicial review because the jurisdiction to issue judicial review was not necessarily ousted because it related to overseas territories see Laws LJ at [27].[50]In my judgment the position in the present case is considerably stronger than in Quark because in 1957 there was evidently a functioning elected federation government of Malaya that negotiated independence in London. The negotiations were with both the sovereign rulers of the Malay states and the federation government and what was being negotiated was the termination of Her Majesty’s authority over the territory of the Federation of Malaya.[51]Mr Bennathan submits: that Quark is distinguished because the 1957 Act was passed by the Westminster Parliament, but that is in substance no different from stating that Orders in Council are passed by Her Majesty’s Privy Council sitting in Westminster. In my judgment it is clear from the terms of the agreement that constitutional authority being exercised was in respect of the affairs of the Federation of Malaya.[52]The very substance of s 1 (2)(b) FMIA and the agreement that implements the constitution is the termination of the treaties and the other bases of jurisdiction that once governed the exercise of the Crown’s authority in the Federation and the transfer of sovereignty to the independent state that subsequently became Malaysia. Thus Article 167 of the Constitution makes plain that on independence day all rights in respect of the government of the Federation shall cease.[53]On this ground alone, this application to strike out these proceedings must succeed as the claim does not comply with the requirements of the CPA 1947. I nevertheless will go on to consider the other three points canvassed in argument. I will propose to deal the existence of a duty of care last and address breach of duty and causation first as they are closely related to the fact that after August 1957, Her Majesty’s authority in Malaysia ceased.

Breach and causation

[54]Assuming for present purpose that the defendant owed the claimants a duty of care in the negotiations that led to the independence constitution, the harm suffered and the loss for which they sue did not occur until after independence and the new sovereign government had taken power. Although the POC are silent about when the loss occurred by implication it is after each of the claimants had achieved the age of majority and is within the limitation period for negligence.[55]In my judgment it is impossible for the defendant to be responsible for treatment alleged to be severely discriminatory suffered under the laws and practices of Malaysia as they are presently said to be constituted.[56]First, whatever view is taken of the nature of the Article 153 special treatment clause, in its terms it is designed to preserve special arrangements for one ethnic group and not disenfranchise or cause ill treatment of another group.[57]If indentured labours of Indian tamil origin were discriminated against in the ways alleged by the claim form, this was as a result of the application of laws and the development of practices permitted by the government of Malaysia after independence pursuant to its responsibilities under article 167.[58]The claimants point to the views of Mr Wade that the present situation in Malaysia where ethnic Malays holds position in the judiciary public administration police defence forces and universities out of proportion to their present numbers 65% of the population as opposed 26% Chinese 8% Indian, can all be attributed to maintenance of the special position in 1948 and 1957. As a matter of academic opinion that may be a perfectly reputable view to take, but it is does not amount to an assessment of legal responsibility for any discrimination and causation of damage.[59]The point is best illustrated if we assume that the claimants’ core contention that the recommendations of the Reid Commission that the Article 153 be confined to a further 15 years had survived into the federation constitution. This would have meant that in 1972 or thereabouts it would cease to exist. However if a two third majority of the Malay legislature wanted it to continue it would have been open to amend the constitution as had been done on some 57 occasions. This merely makes the point that legislative responsibility after 1957 rests with the government of Malaysia and it is in consequence of the legislative or other decisions taken after 1972 that the claimant claims to have suffered loss.[60]Mr Bennathan submits that the extent to which the FCO controlled the proceedings of the constitutional conference and the working party is an evidence based issue that should be determined at trial; further, the influential role of the British Government can be said to have been at least a material contributory factor to the institutionalised discrimination in favour of Malays[61]I accept that it may it is easier to continue such a provision where there is no built in sunset clause in the constitution , but that does not mean that as a matter of law, whatever principle of causation is applied, the defendant is responsible for choices made by an independent state. I find that no assistance is provided by application by analogy with the rescue case of Knightly v John [1982] 1 WLR 349 where it was held that the acts of the rescuer did not break the chain of causation of the loss occasioned by the original tortfeasor.[62]So even if at trial the claimants could have shown that it was more probable than not that if the British government had vetoed any attempt to water down the Reid Commission proposals a constitution would have been adopted with the special position of Malays limited to 15 years, there would still not be reasonable prospect of success in establishing liability for negligence for the loss and injury claimed

Duty of Care

[63]It is common ground that the law of negligence develops incrementally applying the three fold test derived from Caparo Industries v Dickman [1990] 2 AC 605 whether there is a relationship of proximity, whether there is foreseeability of the loss suffered and whether in all the circumstances it is fair just and equitable to impose such a duty.[64]As the duty of care is said to arise in respect of the exercise of a public law discretion exercised pursuant to statute, it is first necessary for the claimants to demonstrate that the exercise of the power was irrational or otherwise outwith the power concerned: see X v Bedfordshire [1995] 2 AC 633 at 736.[65]For good measure, Mr Chamberlain drew my attention to Misick v SSFCA [2009] EWCA Civ 1549 where an Order in Council suspending provisions of the Turks and Caicos constitution was challenged. The enabling power under the West Indies Act 1962 was similar to that under the FMIA (see paragraph 6 of the judgment) and Laws LJ demonstrated at [17] and [18] that the width of the power in a constitutional statute made a judicial review challenge of irrationality very difficult to mount.[66]I accept that the Article 153 provision was controversial in 1957 during the constitutional commission, the subsequent working party and in Parliament during the debates essentially for the reasons reflected in the views of Lord Mountbatten.[67]I further accept that its indefinite survival in a constitution, long after a reasonable time has expired for one community to catch up in any perceived disadvantage in educational qualifications and experience of administration, as Mr Wade suggests is now the case, would be unlikely to withstand challenge in any judicial tribunal applying Article 14 ECHR or similar provision of international law or indeed the equality clause of the Malaysian constitution shorn of its proviso.[68]However, I reject Mr Bennathan’s comparison of this article alone or with the other articles complained of with the apartheid system, or the Nuremburg laws of the Nazis. By the standards in 1957, given the history and the political situation briefly described in the earlier part of this judgment, it would not be possible to argue that the existence of some such provision was perverse irrational or outwith the breadth of the statutory authority to achieve an agreement for independence.[69]It is significant that Lord Reid himself, a very distinguished judge of the Appellate Committee of the House of Lords, considered there to be no real opposition for its continuation for a time limited period despite the objectionable implications of which he was well aware.[70]Irrationality is a necessary but not sufficient condition for such a duty, but within the broad discretionary area of action for what is deemed expedient for the good order of the federation, I do not think that there are reasonable prospects of success in the claimants being able to demonstrate that the failure of the FCO to insist on the Reid proposals being adopted was irrational[71]Mr Chamberlain in his oral submissions drew attention to the pertinent jurisprudence of the CA in three cases deciding on the existence of the duty of care where public law powers were being exercised.[72]Carty v Croydon [2005] EWCA Civ 19; [2005] 1 WLR 2312 where a child sued for negligence in the provision of a statement of special educational needs. Dyson LJ as he then was said; Liability of public authorities in negligence: the general approach 21. Certain decisions are simply not justiciable at all. Thus where the decision involves the weighing of competing public interests or is dictated by considerations which the courts are not fitted to assess, they will be likely to hold that the issue is non-justiciable: see, for example, per Lord Hutton in Barrett at p 583D. These cases are comparatively rare. The present case clearly does not fall into this category, and I shall say no more about it. I should interpolate that it is also well established that, where no private law claim will lie for breach of statutory duty, a claim in negligence will rarely, if ever, lie where the carelessness relied on is merely the failure to perform the statutory duty: see, for example, Gorringe. …….. 24. Lord Browne-Wilkinson adopted the same approach when he dealt with the three education cases in X v Bedfordshire CC. At p 761A he said:
"Although it is very improbable, it may be that the exercise of the statutory discretions involved in operating the special needs machinery of the Act of 1981 involved policy decisions. The decision as to what should be included in the statement and what provision should be made is, by statute, a decision conferred on the defendant authority. Therefore, even if such decisions were made carelessly, the claim will fail unless the plaintiff can show that the decisions were so careless that no reasonable education authority could have reached them."
But "discretion" is a somewhat protean word. It connotes the exercise of judgment in making choices. In a sense, most decisions involve the exercise of discretion. The decision of a public authority to build a school on one site rather than another involves an exercise of discretion, but, as has often been said, there can also be discretion even in the hammering of a nail: see per Lord Slynn in Barrett at p 571C-E. A claim based on the allegation that it was negligent to decide to build a school on site A rather than site B would almost certainly be struck out as non-justiciable. This is because it concerns the exercise of a particular kind of discretion, involving the choice of allocation of resources and policy questions of what is in the public interest on which the court is not equipped to adjudicate. The greater the element of policy involved, the wider the area of discretion accorded by the court.”[73]Rowley v SS Work and Pensions [2007] EWCA Civ 598 [2007] 1 WLR 281 concerned tortuous liability for egregious failures of the Child Support Agency to secure that the claimant received child support. It was accepted that the loss suffered was foreseeable and that in the circumstances of the statutory scheme that there was a relationship of proximity. Dyson LJ said 22. There are many cases where it is inappropriate to decide the question whether a public authority owes a common law duty of care without a full consideration of the facts which can only be undertaken at a trial. But there are some cases where it is possible to decide the question without a trial. Such a case is one where it is clear that, even if it is assumed in the claimant's favour that all the facts that he or she alleges are true, the claim must fail: see the approach to this issue taken by Lord Rodger of Earlsferry in D v East Berkshire Community NHS Trust [2005] UKHL 23, [2005] 2 AC 373 at para 99. The Secretary of State submits that this is such a case.23. An important feature of this case is that the claimants do not rely on any particular facts in support of their case that the Secretary of State owed them a common law duty of care in discharging his functions under the 1991 Act. Their case is that the duty of care arose from the performance of those functions alone. They do not say that a relationship was created between the Secretary of State and themselves other than one which arises in every case from the very performance of his statutory duties and exercise of his statutory powers. In these circumstances, I do not see how findings of fact made at a trial would assist in determining whether a duty of care was owed to the claimants. During the course of argument, Mr ter Haar suggested that a trial is necessary to enable the court to have a proper appreciation of the extent to which other remedies to compensate victims of the CSA's incompetence are effective. He referred to the Parliamentary Commissioner for Administration ("the Ombudsman") and the ex gratia compensation scheme which is described in the policy document known as "Financial Redress for Maladministration Guide" ("FRMG") for persons who have suffered financial loss as a result of maladministration by the CSA. He submitted that this could be a relevant factor in deciding whether a duty of care was owed by the Secretary of State.24. In my judgment, however, the efficacy of these alternative remedies (in so far as it is relevant at all) should be judged by what they purport to provide rather than how effectively they work in practice. The existence of a duty of care cannot depend on the vagaries of how effective an alternative remedy may be from time to time.25. In my view, this is a case which is suitable for a strike-out application. There is no area of factual enquiry which needs to be undertaken before the question of law raised by this appeal can be decided. I turn, therefore, to consider that question of law. ……. 61. In deciding whether it is fair, just and reasonable to impose a duty of care on a public authority in the carrying out of its statutory functions, it is necessary to consider whether such a duty would be inconsistent with the statutory framework in which it is acting. It may be said that this is better considered as a free-standing question, rather than as an aspect of the third limb of the Caparo test. In A v Essex County Council [2003] EWCA Civ 1848, [2004] 1 WLR 1881 at para 33, Hale LJ considered the question whether to impose a common law duty of care would be inconsistent with the statutory framework as an aspect of justifiability, rather than as an aspect of the third limb of the Caparo test. But she acknowledged that "the considerations relevant to each of these issues overlap and it is not always possible to draw hard and fast lines between them." Perhaps the classification does not matter. The important point is that a duty of care must not be inconsistent with the presumed intention of Parliament.[74]Connor v Surrey [2010] EWCA Civ 286 [2011] 1 QB 429, was a case where a head teacher succeeded in establishing a duty to prevent injury to health by the local authority who failed to exercise their statutory powers to remove a governing body in a school where relations had become dysfunctional Laws LJ engaged in a valuable and instructive survey of the authorities before standing back and distilling some conclusions from the general picture: 103. But the learning largely leaves aside our case, in which the prospective defendant owes the claimant a duty of care arising independently of the impact of action or inaction under statute. The authorities show that where there is no such separate and independent duty of care the court's task is to see whether an affected person may after all enjoy a right, created by the attribution of a duty of care in the particular context, to sue in respect of injuries suffered by him which in fact flow from action or inaction under the statute. These following states of affairs may be discerned in the succession of authority.(1) Where it is sought to impugn, as the cause of the injury, a pure choice of policy under a statute which provides for such a choice to be made, the court will not ascribe a duty of care to the policy-maker. So much is owed to the authority of Parliament and in that sense to the rule of law.(2) If a decision, albeit a choice of policy, is so unreasonable that it cannot be said to have been taken under the statute, it will (for the purpose of the law of negligence) lose the protection of the statute. While this must, I think, point to the same kind of case as does the Wednesbury rule (since only a Wednesbury perverse decision will be outwith the statute), Wednesbury is not made a touchstone of liability for negligence in such cases: the immunity arising in (1) is lost, but the claimant must still show a self-standing case for the imposition of a duty of care along Caparo lines and he may be unable to do so.(3) There will be a mix of cases involving policy and practice, or operations, where the court's conclusion as to duty of care will be sensitive to the particular facts: "the greater the element of policy involved, the wider the area of discretion accorded, the more likely it is that the matter is not justiciable so that no action in negligence can be brought" (per Lord Slynn in Barrett). This is likely to be a large class of instances.(4) There will be purely operational cases, like that of the bus driver on the school trip, where liability for negligence is likely to attach without controversy.[75]Mr Bennathan points out:(i) It is entirely foreseeable that if there was no sunset clause on Article 153, the Malay politicians who had a majority in any legislative assembly would want to perpetuate it for their own political advantage with their communities.(ii) The duty of care here is owed by reason of allegiance as British nationals within the meaning of the BNA 1948 and the apprehension of future harm without constitutional protection.[76]In my judgment, none of the three Caparo criteria are made out in this claim.

Proximity

[77]There was no special relationship between the defendant and the claimant’s or their ancestors owed in 1957. The relationship was simply a public law one governed by the emerging principles of judicial review and any relevant provisions of the law of the Federation at the time. There was no statutory responsibility to promote the interest of the Indian minority in constitutional negotiations and there was no promise or undertaking to do so.[78]Generally governments are there to promote laws and governance in the interest of all the community majority and minority rather than any special interest group. The fact that one group obtained special mention under the constitution did not of itself impose some special duty to provide for the interests of others. As a matter of public law, of course the impact of any laws on a particular community would have been a relevant circumstance, but there was nothing to indicate here that any special representations had been made on behalf of the Indians or that their circumstances were such as to require some pre eminent protection.[79]A relationship of proximity in the law of tort is based on some special connection between the claimant and the defendant whether by contract, or quasi contract, control of the location of injury, statutory responsibility for the welfare of children or collection of child maintenance. The broader the class claimed the less likely is the relationship to have the qualities that make it proximate in the eyes of the law. The class claimed by the claimants is very large indeed, and effectively merges public law relevant considerations and private law responsibilities.[80]It is not sufficient that some harm or disadvantage can be foreseen if no action is taken. The three elements of the Caparo tests are distinct and cumulative and not merely repetitious. Here the context is reaching agreement on the terms of a constitution where the issues under consideration are at their broadest and most policy driven. In the absence of some special feature which is neither pleaded in the nor substantiated in the supporting data, there is nothing to suggest some special relationship that would arguable establish proximity in the present context see Lord Roskill in Caparo 628 F-E; Lord Oliver 633 E-635F and see also Dyson LJ in Rowley at 51 to 55.

Foresight of injury

[81]I am prepared to accept that it was foreseeable that future Malay politicians may not be willing to let the special status lapse in the future and therefore a real risk that it would become indefinite whatever was said to Lord Reid’s commission.[82]That is not the same as foresight of damage resulting from serious discrimination against these claimants in the field of education, employment and such like. Quotas reserved for Malays are not the same as exclusive access. The treatment complained of was not mandated by the 1957 constitution, even if it did not provide sufficient means to prevent it. Thus I do not see how on the material before me the defendant in 1957 would be expected to foresee that the 7th claimant would have difficulties in establishing her nationality status because her mother did not have a birth certificate or that a Hindu temple or cemetery could not establish title to the premises. These issues did not loom large in the negotiations and are very specific problems part from the general provisions of the constitution.[83]The claimants here seek to expand the supposed duty from resisting the dilution of the Reid Commissions’ proposals to the building in of a series of measures to protect the existing social pre 1957 position of Tamil Indians. But in the absence of a special duty of inquiry and protection, these would not be obvious consequences of general measures.

Fair just and equitable

[84]Even if there were reasonable prospects of success the two previous issues, I have no doubt that it would not be fair just and equitable to impose a private law duty of care in negligence on the SSHD. The reasons have largely been identified in the preceding passages of this judgment but may be summarised :(i) Negotiating an independence constitution is a broad public duty function requiring agreement with political actors who have their own distinct aspirations. It is impossible to see how such a function can be discharged against a risk of a damages claim by a party whose claims that their interest were insufficiently pressed in the negotiations. Such a duty is therefore in consistent with the statutory scheme of the FMIA.(ii) There is a proper remedy by way of judicial review on established public law principles in the event that relevant considerations are not taken into account. Those principles now include human rights norms whether directly under the HRA or indirectly as reflecting the rationality standards of the common law world. Damages do not follow as matter of course for successful challenges in judicial review and only moderate just satisfaction are awarded in vindication of human rights claims. The existence of an alternative remedy is relevant to whether it is fair to impose a duty of care see Rowley at [71] to [73].(iii) Although it appears that the ECHR had been ratified and extended to Federation of Malaya by 1953, this is not a claim based on a breach of human rights and could not be so given the time of the relevant events.(iv) The proposed duty would be very far reaching and impose a liability for damages for events long after the legislation is passed , where the use made of the legislation by third parties cannot be known in absence and where the adverse consequences suffered by the claimant will not be readily foreseen or predictably prevented.

Conclusions

[85]For all these reasons I have no doubt that once the true legal context of the claim has been identified there no reasonable grounds for bringing the claim the particulars should be struck out under CPR 3 (4)(2)(a) and judgment entered for the defendants under CPR 3(4)(3).[86]If the claimants’ grievances about their treatment in Malaysia they need to pursue them in the institutions of that country or by any other relevant international means.