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|Session 2005 - 06|
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Regina v. Secretary of State for Foreign and Commonwealth Affairs (Appellant) ex parte Quark Fishing Limited (Respondents) Regina v. Secretary of State for Foreign and Commonwealth Affairs (Respondent) ex parte Quark Fishing Limited (Appellants) (Conjoined Appeals)
LORD BINGHAM OF CORNHILL
1. To fish for Patagonian toothfish in the Maritime Zone adjacent to South Georgia and the South Sandwich Islands ("SGSSI") it is necessary to hold an annual licence. Licences are granted by the Director of Fisheries of SGSSI. They are a valuable commercial asset, since the fishing is very profitable. Quark Fishing Limited, a Falkland Islands company, obtained such a licence for its motor vessel Jacqueline in each year from 1997-2000. In 2001 it applied again. But the Secretary of State for Foreign and Commonwealth Affairs on 7 June 2001 formally instructed the Commissioner of SGSSI to direct the Director of Fisheries of SGSSI to allocate licences for the 2001 season in a way which precluded the grant of a licence to Quark for Jacqueline. The instruction was followed and the licence withheld. Quark challenged the lawfulness of the Secretary of State's instruction on conventional public law grounds, and succeeded both in the High Court and on appeal:  EWHC Admin 1174;  EWCA Civ 1409. There is no further appeal on that aspect of the case. But an issue remains whether Quark is entitled to damages. On that issue, raised by an application to strike out, decisions adverse to Quark have been made by Collins J at first instance ( EWHC 1743 (Admin)) and the Court of Appeal (Pill, Thomas and Jacob LJJ,  EWCA Civ 527,  QB 93). It is now accepted that Quark can recover damages against the Secretary of State only if it can show that his admittedly unlawful instruction violated its rights under article 1 of the First Protocol to the European Convention on Human Rights so as to render him liable in damages under sections 6 and 7 of the Human Rights Act 1998. But an anterior question has been raised, whether the Secretary of State, when giving his unlawful instruction, was acting for Her Majesty the Queen in right of the United Kingdom (as Quark argues) or in right of SGSSI (as the Secretary of State now argues). Collins J decided both questions against Quark. The Court of Appeal disagreed on the anterior issue, holding that the instruction had been given by the Secretary of State on behalf of Her Majesty in right of the United Kingdom, and the Secretary of State challenges that ruling before the House. But the Court of Appeal agreed with the judge that no claim could lie under the 1998 Act and the First Protocol, and Quark challenges that ruling.
2. SGSSI was acquired by the Crown by settlement. Its government was established under the British Settlements Acts 1887 and 1945. From 1908 until 18 April 1985 it was a British Dependent Territory and a Dependency of the Falkland Islands. But on the latter date, when the South Georgia and South Sandwich Islands Order 1985 (SI 1985/449) came into effect, it ceased to be a Dependency. It is now a British Overseas Territory as defined in the British Overseas Territories Act 2002, and its constitution is governed by the 1985 Order as amended.
3. Under section 4 of the 1985 Order as amended there is a Commissioner for the Territories appointed by Her Majesty. His powers and duties are laid down in section 5(1):
The instruction complained of in these proceedings was given under this subsection. The Commissioner has wide powers: to make laws for the peace, order and good government of the Territories (section 9(1)); to constitute offices and make appointments (section 7); to make grants of land (section 14); to establish courts of justice, including a Supreme Court (section 13); and to grant pardons and remit sentences (section 11). But in matters touching on defence and security the Commissioner must follow the advice of the officer commanding Her Majesty's Forces in the South Atlantic (section 5(2)), and the Commissioner's exercise of other powers is subject to the instructions and control of the Secretary of State. Thus the Commissioner holds office during Her Majesty's pleasure (section 4(1), as amended). His powers and duties are those assigned to him by Her Majesty, with whose instructions he is bound to comply (section 5(1), above). The Commissioner's power to make laws is subject to the instructions of Her Majesty through a Secretary of State; the Commissioner must so far as practicable observe the rules set out in an annex to the Order; and laws made by him may be disallowed by Her Majesty (sections 9(2), 10(1)). The power to constitute offices is limited to such offices as may be constituted by Her Majesty, subject to local laws and subject to any instructions given (section 7). The power to dispose of land is subject to local laws and any instructions given (section 14). Pardons and remissions of sentence are to be granted in Her Majesty's name and on her behalf (section 11). SGSSI is a legal entity. But the United Kingdom is responsible for its external relations and thus has the responsibility in international law for ensuring compliance with those international obligations which apply to it.
4. SGSSI is a remote territory, far to the south of the Falkland Islands, close to the Antarctic Circle, and it has no inhabitants other than a transient population of about 12 scientists. Thus it is no surprise that it lacks the institutions (representative assembly, legislative council, courts and so on) ordinarily to be expected in a British Overseas Territory.
The regulation of fishing in SGSSI waters
5. In May 1993 the then Commissioner of SGSSI declared a Maritime Zone extending some 200 nautical miles from SGSSI, within which the government of SGSSI was to have exclusive jurisdiction over fisheries. Pursuant to powers conferred on him by the 1985 Order, the Commissioner enacted The Fisheries (Conservation and Management) Ordinance 1993 which, with the Fishing (Maritime Zone) Order 1993, controlled fishing within the Maritime Zone by introducing a licensing regime. Despite revocation and replacement of the first-mentioned Ordinance in 2000, the regime has remained in force. The Commissioner was required to appoint a Director of Fisheries who should administer the Ordinance and be responsible, among other things, for the conservation of fish stocks, the development and management of fisheries, the regulation of the conduct of fishing and "the issue, variation, suspension and revocation of licences for fishing and fishing - related operations". Save in relation to prosecutions, the Director is under the direction of the Commissioner: section 4(2) of the 2000 Ordinance.
6. By section 4(5) of the 2000 Ordinance the Director is required when discharging his duties to have regard to the provisions of the Convention on the Conservation of Antarctic Marine Living Resources ("the Conservation Convention"). This was adopted in 1980 and came into force 2 years later. It was negotiated to address, among other things, the threat of over-exploitation of fin-fish in the Southern Ocean. It forms part of the Antarctic Treaty System, a body of treaties, agreements and regulations that provide for the orderly governance of Antarctica. The evidence shows that the United Kingdom is committed to the Antarctic Treaty System as the means by which the political and environmental security of the area can best be maintained. The United Kingdom was an original signatory of the Conservation Convention, whose members now include 23 states and the European Commission including the United Kingdom but not SGSSI.
7. The evidence makes plain that the control of fishing in Antarctic waters raises questions much wider than those of conservation and management. In the original judicial review proceedings, Laws LJ (in para 57 of his judgment) observed:
This was echoed by Pill LJ in para 25 of the judgment under appeal:
This has not been challenged by the Secretary of State, and could not be challenged since it reflects the evidence which he adduced.
The first issue
8. The first issue, raised by the Secretary of State's appeal, is agreed by the parties to be:
9. The instruction in issue in this case was given to the Commissioner (who was required to direct the Director) by the Secretary of State. He was not of course acting on his own behalf but on behalf of the Crown, from which his authority derived. But it is now clear, whatever may once have been thought, that the Crown is not one and indivisible: R v Secretary of State for Foreign and Commonwealth Affairs, Ex p Indian Association of Alberta  QB 892, 911, 916-917, 920-921, 928. The Queen is as much the Queen of New South Wales (In re Bateman's Trust (1873) 15 Eq 355, 361) and Mauritius (R v Secretary of State for the Home Department, Ex p Bhurosah  1 QB 266, 284) and other territories acknowledging her as head of state as she is of England and Wales, Scotland, Northern Ireland or the United Kingdom. Thus the Secretary of State as a servant of the Crown exercises executive power on behalf of the Crown in whatever is, for purposes of that exercise of executive power, the relevant capacity of the Crown. The question which divides the parties is: by what test is the relevant capacity of the Crown to be ascertained?
10. The Secretary of State through Mr Crow submits, in very brief summary, that the answer is found by identifying the system of government within which the particular exercise of executive power takes place. Here the relevant system of government is that established by the 1985 Order as amended, which contains the constitution of SGSSI. It makes plain that the Queen is the head of state and the source of authority in the state. Those who hold office locally do so during her pleasure and subject to her instructions and control. While instructions may be transmitted to the Commissioner by the Secretary of State he does so, in constitutional theory, as her mouthpiece or medium. He is passing on her instructions as Queen of SGSSI, not acting as Secretary of State for Foreign and Commonwealth Affairs of the United Kingdom.
11. Mr Vaughan QC for Quark contends that the answer is found not in an analysis of the relevant constitutional arrangements, or not in them alone, but in an evaluation of the facts underlying the exercise of power which is subject to challenge. Here, he says, the decision to instruct the Commissioner was animated by concern for the wider interests of the United Kingdom and not solely by concern for the particular interests of SGSSI. He places reliance on the political and diplomatic motivation of the Secretary of State's instruction to suggest that this was, in truth, an exercise of power on behalf of Her Majesty's Government of the United Kingdom, not Her Majesty's Government of SGSSI.
12. Any constitution, whether of a state, a trade union, a college, a club or other institution seeks to lay down and define, in greater or lesser detail, the main offices in which authority is vested and the powers which may be exercised (and not exercised) by the holders of those offices. Thus if a question arises on what authority or pursuant to what power an act is done, it is to the constitution that one would turn to find the answer. Here, it is plain that the Secretary of State for Foreign and Commonwealth Affairs of the United Kingdom has no power or authority under the constitution of SGSSI (the 1985 Order, as amended) to instruct the Commissioner. Such power and authority can be exercised only by the Queen, who in this context is (and is only) the Queen of SGSSI. It is in my view correct in constitutional theory to regard the Secretary of State as her mouthpiece and medium. This analysis points, in my view strongly, to the correctness of the Secretary of State's submission, but it is necessary to examine the authorities to see if they suggest a different answer.
13. From The Queen in Right of Alberta v Canadian Transport Commission (1977) 75 DLR (3d) 257, 259, is derived the proposition, which cannot I think be doubted, that the Crown in right of Alberta may be equated with the Government of Alberta. Thus it is the Government of SGSSI with which the House is here concerned. Little help is gained from Bhurosah, above: the appellants claimed to be holders of United Kingdom passports, but the definition of that expression in section 1(3) of the Commonwealth Immigrants Act 1962, quoted at p 283 of the report, made that contention, on the facts, all but unarguable.
14. In Tito v Waddell (No 2)  Ch 106, an issue arose, in relation to what was called "the 1931 transaction", whether the acts of which the claimants complained were done on behalf of the Government of the Gilbert and Ellice Islands Colony (in which case no claim lay against the Crown, because excluded by section 40(2)(b) of the Crown Proceedings Act 1947) or the Government of the United Kingdom (in which case, if a claim lay, it was not excluded). Sir Robert Megarry V-C (at p 254) accepted that the colonial government was plainly a subordinate government, all important decisions being referred to London, and the Crown, on the advice of the United Kingdom Government, having important powers that could be used to override acts of the colonial government. But the Vice-Chancellor concluded (at p 255):
Quark was unable satisfactorily to distinguish this authority.
15. In Ex p Indian Association of Alberta, above, the issue (see p 909) was whether obligations which the applicants sought to enforce were owed by "Her Majesty in right of Her Government in the United Kingdom". It was argued on their behalf, presumably to establish their claim, that Canada still did not enjoy full independence from the United Kingdom since there remained an ultimate power to deny Royal Assent to Canadian legislation. Both Lord Denning MR and May LJ concluded that any obligations were now owed by the Crown in respect or right of Canada, not the United Kingdom (at pp 919, 937). But Kerr LJ addressed the argument more directly and said (at p 927).
Unusually, a five-member appeal committee of the House of Lords heard a petition for leave to appeal, and Lord Diplock gave reasons for dismissing it. He regarded the petitioners' contention as unarguable for the accumulated reasons given in the judgments of the Court of Appeal (see pp 937-938). These include the observations of Kerr LJ which I have quoted, and the express approval of the committee, including in Lord Diplock a notable authority in this area, must give them even greater weight.