R (American Federation of Musicians & Ors) v Secretary of State for Science, Innovation & Technology
[2026] EWHC 91 (Admin)
21 Jan 2026
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The Divisional Court has today handed down a judgment in judicial review proceedings related to the rights of US performers under UK law to be paid when their sound recordings are broadcast or played in public. The judgment dismissed the claim for judicial review largely on the basis that the issues were non-justiciable and refused permission to introduce a new ground raised shortly before the hearing. It constitutes a further high-profile analysis of the principle of non-justiciability of international law issues in the context of public law claims.
The Claimants were mostly labour unions and collective management organisations representing US performers, and trustees of a fund which collects and distributes money to US performers who are members of those labour unions. They alleged that domestic law was incompatible with the UK's international obligations under (1) the Rome Convention, (2) the WIPO Performances and Phonograms Treaty (“WIPO”) and (3) the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”). It was common ground that under UK domestic law US performers on US sound recordings, including those represented by the claimants, were not entitled to equitable remuneration when the sound recordings on which they have performed are broadcast or otherwise played to the public in the UK. This was as a result of a policy choice that foreign performers will only be eligible for equitable remuneration where their home state offers reciprocal rights to UK performers. US performers do not receive such remuneration because US law does not provide equivalent rights to UK performers.
Lord Justice Males (with whom Mr Justice Bourne agreed) dismissed the challenge. At paragraphs 74-131, the Court surveyed the key cases and principles on justiciability, concluding that Grounds 1 to 4 of the claim were non-justiciable because they would require the Court to interpret and give effect to unincorporated international treaties in the absence of any domestic foothold which would enable it to do so. A separate ultra vires challenge (Ground 5) was rejected on the merits. The Claimants were refused permission to amend their claim to introduce a further challenge to the consultation process that had taken place prior to recent changes to UK law (Ground 6).
The full judgment can be found here.
Ravi Mehta and Will Bordell appeared (as part of a wider team) on behalf of the Defendant, the Secretary of State for Science, Innovation and Technology.
Mark Vinall appeared on behalf of BPI (British Recorded Music Industry) Limited.
Tom Cleaver appeared on behalf of Phonographic Performance Limited.
