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)
16. Reliance was placed, finally, on the decision of the Queen's Bench Divisional Court in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs  QB 1067. In that case the applicant sought judicial review of an ordinance made by the commissioner for the British Indian Ocean Territory under powers similar to those conferred by the 1985 Order on the Commissioner for SGSSI. The Secretary of State and the commissioner were both respondents to the application, and an issue was raised whether the High Court in London had jurisdiction to entertain the proceedings and grant relief. In ruling that it had, Laws LJ (in para 28 of his judgment) said that "the Crown's reliance on the proposition that the Ordinance is a legal creature of the government of BIOT which must be taken to possess a separate and distinct sovereignty of its own, such that the Queen's courts sitting here in London have nothing to do with the matter, represents in my judgment an abject surrender of substance to form". He pointed out that the ordinance had been made on the orders or at the direction of Her Majesty's ministers here, in right of the Government of the United Kingdom. The court held that it had ample jurisdiction to quash an instrument the making of which had been wholly procured by Her Majesty's Government of the United Kingdom, and it did so. In the present case, the Secretary of State's instruction has been quashed, and there is no challenge to the court's jurisdiction to make that order. So the jurisdictional issue in Bancoult does not arise. It is however appropriate, in my opinion, to decide in this case whether the instruction given by Her Majesty through the Secretary of State was given in right of the Government of SGSSI or that of the United Kingdom. I do not understand the court in Bancoult to have ruled or found it necessary to rule, in order to resolve the jurisdictional issue, whether the ordinance had been made by Her Majesty in right of the Government of the BIOT or in right of the Government of the United Kingdom.
17. None of the authorities cited is directly in point, and they do not conclude the issue in the Secretary of State's favour or against him. But they do in my view assist him, because they show that the possession and exercise of powers by a paramount government does not preclude recognition of the acts of a subordinate government as acts of the Crown in right of that government. And in none of the cases was it thought necessary to examine facts pertaining to the motivation of the paramount government.
18. The extreme difficulty of exploring governmental motivation in a context such as this, and its unsuitability for judicial determination, reinforce the Secretary of State's argument. The present case illustrates the point. There were of course matters strictly relating to the conduct of fishing in the Maritime Zone which were, or should have been, considered. These may be regarded as pure SGSSI issues. But the wider political and diplomatic issues alluded to above, while of obvious importance to the United Kingdom as a power with extensive overseas interests, cannot be dismissed as irrelevant to the interests of SGSSI. Given that the continuing status of SGSSI as a British Overseas Territory is not accepted without question by some significant states in the region, the promotion of international harmony may well be seen to contribute to the security of SGSSI. To treat the allocation of motive as the basis for attributing an exercise of executive power to one government rather than another would, in my opinion, be hazardous and unreliable.
19. Collins J, before whom this question was not (it seems) very fully argued, concluded in para 34 of his judgment that
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.
20. I would accordingly answer this issue in the negative: the Court of Appeal was not correct to rule as it did.
The second issue
21. The second issue was agreed in terms which indicated that it arose only if the first issue were answered affirmatively:
Thus the parties assumed that no claim for damages under section 7 could lie if the instruction were held to have been given by Her Majesty in right of SGSSI.
22. In my opinion this was a wholly correct assumption. Since this conclusion is not, I think, in serious controversy I can give my reasons for reaching it very briefly.
23. To recover damages under section 7 of the 1998 Act, Quark must show that its rights under the European Convention have been violated by a public authority liable under the Act. So the essential stepping stones to success are a demonstrated breach of a Convention right and an answerable public authority.
24. The Convention right asserted is that under article 1 of the First Protocol to the European Convention. At this stage it is accepted, for purposes of argument, that denial of a fishing licence in 2001 may in the circumstances have amounted to deprivation of a possession within the meaning of article 1. But although it is common ground that the United Kingdom acted under article 63 (now 56) of the Convention to extend its coverage to SGSSI, it is also common ground that it has not taken similar action under article 4 of the First Protocol. That Protocol has not been extended to SGSSI. Thus a party complaining of conduct which would be a violation by SGSSI, for which the United Kingdom would be answerable, if the Protocol had been extended, would inevitably fail in an application to the Court of Human Rights at Strasbourg if (as is the case) the Protocol had not been extended. This principle is clearly established by Strasbourg authorities such as X v Belgium (1961) 4 YB 260, Gillow v United Kingdom (1986) 11 EHRR 335, Bui van Thanh v United Kingdom (Application No 16137/90, 12 March 1990, (unreported) and Yonghong v Portugal, Reports of Judgments and Decisions 1999 - IX, p 385.
25. A party unable to mount a successful claim in Strasbourg can never mount a successful claim under sections 6 and 7 of the 1998 Act. For the purpose of the 1998 Act was not to enlarge the field of application of the Convention but to enable those subject to the jurisdiction of the United Kingdom and able to establish violations by United Kingdom public authorities to present their claims in the domestic courts of this country and not only in Strasbourg. The territorial focus of the Act is clearly shown by the definition of "the Convention" in section 21 to mean the European Convention "as it has effect for the time being in relation to the United Kingdom". In any event, the Secretary of State acting on behalf of Her Majesty in right of SGSSI is not a United Kingdom public authority, and so falls outside the scope of section 6.
26. It may very well be, as the Court of Appeal held, that a claim by Quark would not lie under the 1998 Act even if the Secretary of State had given his instruction on behalf of Her Majesty in right of the United Kingdom. But it is unnecessary to decide that question, and I see no advantage in doing so.
27. For these reasons I would allow the Secretary of State's appeal and dismiss Quark's cross-appeal.
LORD NICHOLLS OF BIRKENHEAD
28. This appeal raises a question on the territorial reach of the Human Rights Act 1998. South Georgia and the South Sandwich Islands are in the remote south Atlantic. They are a British overseas territory as defined in the British Overseas Territories Act 2002, but they are not part of the United Kingdom. The question raised by this appeal is whether a direction given in London by the Secretary of State for Foreign and Commonwealth Affairs to the local government in South Georgia regarding property there is capable of being an act by a 'public authority' incompatible with a 'Convention right' within the meaning of the Human Rights Act and as such founding a claim for damages under section 7 of that Act.
29. Quark Fishing Ltd is a Falkland Islands company carrying on a business of fishing. For several years the company was licensed to fish for Patagonian toothfish with its vessel MV Jacqueline in the seas off the coast of South Georgia and the South Sandwich Islands, or South Georgia in short. On 7 June 2001 the Secretary of State for Foreign and Commonwealth Affairs instructed the Commissioner of South Georgia to direct the Director of Fisheries of South Georgia not to grant a new licence to the Jacqueline for the 2001 season. The Secretary of State gave his instruction pursuant to his powers under the South Georgia and South Sandwich Islands Order 1985. The Commissioner and the Director duly acted in accordance with the Secretary of State's instruction, as they were obliged to do. Quark's licence was not renewed for the 2001 season. Quark asserts it suffered substantial financial loss as a result.
30. In these judicial review proceedings Quark successfully challenged the lawfulness of the Secretary of State's instruction. This aspect of the dispute is no longer in contention. What remains in issue is whether, as Quark submits, it is entitled to pursue a damages claim pursuant to section 7 of the Human Rights Act. Quark claims it is the victim of an unlawful act of a public authority, namely the Secretary of State. The Secretary of State's instruction, Quark says, was incompatible with a Convention right. Accordingly it was an unlawful act within the meaning of section 6 of the Human Rights Act. The Convention right said to have been violated is article 1 of the First Protocol (protection of property). The property comprises Quark's fishery rights in the South Georgia maritime zone. These waters are thousands of miles away from the United Kingdom. Quark claims this matters not because the Secretary of State, who gave the impugned direction, is a public authority in this country.
31. The issue is thus a comparatively narrow one. There can of course be no doubt that, had the impugned instruction been given by the Secretary of State in respect of property within the United Kingdom, it would have been capable of giving rise to a damages claim under section 7. The question is whether the position is different if the instruction is given to the local government of an overseas territory in respect of a property right situated there.
The territorial scope of the Human Rights Act
32. In resolving this dispute the appropriate starting point is to consider whether, as asserted by Quark, the Secretary of State's instruction was incompatible with a Convention right within the meaning of that expression in sections 6 and 7 of the Human Rights Act. The Act does not attempt to define in express terms what may loosely be called its territorial scope. Wisely so, because 'territoriality' has many aspects. Questions on the application of this slippery concept can arise in many different contexts. This is especially true of a statute having such a wide range of application as the Human Rights Act. The only clues given by the Act lie in the definition of its subject-matter: section 1 defines the key concept of 'Convention rights' by reference to specified articles of the Convention and its protocols, section 21(1) defines 'the Convention' as the European Convention on Human Rights 'as it has effect for the time being in relation to the United Kingdom', and section 7(7) provides that a person is a victim of an unlawful act only if he would be a victim for the purposes of article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.
33. At first sight these unexceptional definitions might seem to be of little assistance. But that is not so. What is important is that they carry through the scheme underlying the whole Act. The purpose of the Act, as stated in its preamble, was 'to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights'. In colloquial terms, the Act was intended to 'bring rights home'. The Act was to provide a means whereby persons whose rights under the Convention were infringed by the United Kingdom could, in future, have an appropriate remedy available to them in the courts of this country. Persons who were victims of a violation of a Convention right within the meaning of article 34 of the Convention need no longer travel to Strasbourg to obtain redress.
34. To this end the obligations of public authorities under sections 6 and 7 mirror in domestic law the treaty obligations of the United Kingdom in respect of corresponding articles of the Convention and its protocols. That was the object of these sections. As my noble and learned friend Lord Hope of Craighead has said, the 'purpose of these sections is to provide a remedial structure in domestic law for the rights guaranteed by the Convention': Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank  1 AC 546, 564, para 44. Thus, and this is the important point for present purposes, the territorial scope of the obligations and rights created by sections 6 and 7 of the Act was intended to be co-extensive with the territorial scope of the obligations of the United Kingdom and the rights of victims under the Convention. The Act was intended to provide a domestic remedy where a remedy would have been available in Strasbourg. Conversely, the Act was not intended to provide a domestic remedy where a remedy would not have been available in Strasbourg. Accordingly, in order to identify the territorial scope of a 'Convention right' in sections 6 and 7 it is necessary to turn to Strasbourg and consider what, under the Convention, is the territorial scope of the relevant Convention right.
The Human Rights Act and Article 56 extensions
35. Before doing so I must mention one qualification, more apparent than real, in respect of this analysis of the Act. It is this: sections 6 and 7 of the Act are confined in their scope to Convention rights arising from obligations assumed by the United Kingdom under the Convention and its protocols other than the extended obligations assumed by the United Kingdom pursuant to a notification given by it under article 56 or equivalent provisions in the protocols. Article 1 of the Convention imposed on contracting states an obligation to secure to 'everyone within their jurisdiction' the rights and freedoms defined in section 1 of the Convention. In article 56 the Convention made provision for contracting states' colonies and the like. These were described in article 56(1) as 'territories for whose international relations [a state] is responsible':
A similar power of extension appears in successive Protocols: see, for instance, article 4 of the first Protocol.
36. The Human Rights Act is a United Kingdom statute. The Act is expressed to apply to Northern Ireland: section 22(6). It is not expressed to apply elsewhere in any relevant respect. What, then, of Convention obligations assumed by the United Kingdom in respect of its overseas territories by making a declaration under article 56? In my view the rights brought home by the Act do not include Convention rights arising from these extended obligations assumed by the United Kingdom in respect of its overseas territories. I can see no warrant for interpreting the Act as having such an extended territorial reach. If the United Kingdom notifies the Secretary General of the European Council that the Convention shall apply to one of its overseas territories, the United Kingdom thenceforth assumes in respect of that territory a treaty obligation in respect of the rights and freedoms set out in the Convention. But such a notification does not extend the reach of sections 6 and 7 of the Act. The position is the same in respect of protocols.
37. The qualification just described is not in point in the present case. South Georgia is a territory for whose international relations the United Kingdom is responsible. In respect of South Georgia the United Kingdom has made a declaration in respect of the Convention. It has not made a similar declaration in respect of the first Protocol.
The territorial scope of the Convention
38. The responsibility of contracting states under the Convention for acts done outside their boundaries arises in a variety of contexts. The present case concerns, and concerns only, the responsibility of a contracting state for acts done in relation to a territory for whose international relations it is responsible but in respect of which the contracting state has not made a declaration under article 56 or the corresponding article in a protocol. In this opinion I confine my remarks to this question.
39. I turn then to the Strasbourg jurisprudence on this question. The question has been considered by the European Court of Human Rights and the Commission on several occasions. Most relevant to the present case are two admissibility decisions. The case of Bui Van Thanh v United Kingdom (application no 16137/90) concerned Vietnamese 'boat people' who were refused entry to Hong Kong. The applicants complained, among other matters, that their forcible return to Vietnam would be contrary to article 3 of the Convention. At that time the United Kingdom was still responsible for the international relations of Hong Kong but it had made no declaration under article 56 in respect of Hong Kong. The applicants said that, even so, the complaint was admissible because the policy of forcible repatriation of Vietnamese refugees was in reality a policy of the United Kingdom and the Hong Kong authorities exercised their functions on the basis of decisions taken in the United Kingdom. The Commission rejected this submission:
40. This reasoning was adopted by the Court in Yonghong v Portugal, Reports of Judgments and Decisions 1999 - IX, p 385, a case concerning the proposed extradition of Mr Yonghong from Macao to China to face criminal charges. The court recognised that 'jurisdiction' under article 1 is not limited to the national territory of contracting states. Their responsibility can be involved because acts of their authorities produce effects outside their own territory: Drozd and Janousek v France and Spain (1992) 14 EHRR 745, para 91. But article 1 of the Convention must be read in the light of article 56.
41. The reasoning of these two decisions is clear and cogent. In my view this reasoning leads ineluctably to the conclusion that Quark would have no standing to make a complaint in Strasbourg against the United Kingdom in respect of the impugned instruction given by the Secretary of State. There can be no rational distinction between the local government giving effect to policies of the contracting state, as in the Bui Van Thanh case, and the local government giving effect to a direction from the contracting state. In neither case is the responsibility of the contracting state under the Convention engaged in the absence of a declaration under article 56 or the relevant protocol in respect of the territory in question.
42. Nor, in such cases, can the responsibility of the contracting state depend upon whether, in formulating its policies or deciding to give a binding direction, the contracting state government attached weight primarily or solely to the interests of the contracting state as distinct from the interests of its overseas territory. These interests will often march hand-in-hand. Even where they do not, the liability of the contracting state under the Convention in cases of this type cannot depend on political considerations or motivations of this character.
43. In the present case the local government of South Georgia is comparatively undeveloped. It could hardly be otherwise, given there is no indigenous population and the inhabitants are largely confined to a handful of transient research scientists. But there is a genuine if simple form of local government, headed by a Commissioner having legislative and executive authority. He is resident in the Falklands Islands. The territory has its own laws. I can see no reason to suppose the European Court of Human Rights would disregard the existence of this governmental structure when considering the application of the Convention in this case.
44. This being the position under the Convention, it follows in my view there has been no violation of Quark's Convention rights within the meaning of sections 6 and 7 of the Human Rights Act. To afford Quark a remedy in this case would be to afford Quark a remedy under United Kingdom law when it has no remedy against the United Kingdom under the Convention. As already indicated, that would be to extend the Human Rights Act beyond its intended reach. On this ground I would dismiss Quark's appeal.
The capacity in which the Secretary of State acted
45. With great respect to your Lordships who consider otherwise, I would not base my decision on the outcome of the argument concerning the capacity in which the Secretary of State acted when giving his instruction to the Commissioner of South Georgia. In my view this line of argument is misdirected in the present context. In the present context this is a non-issue. Quark's claim fails for a different reason. It fails because the Secretary of State's instruction was not incompatible with a Convention right within the meaning of the Human Rights Act. Had the instruction been incompatible, the capacity in which the Secretary of State gave his instruction would not have afforded him a defence. Clearly, when he gave his instruction the Secretary of State was exercising the powers of the Crown under section 5 of the South Georgia and South Sandwich Islands Order 1985: 'The Commissioner shall do and execute all things that belong to his office according to such instructions, if any, as Her Majesty may from time to time see fit to give him through a Secretary of State'. But characterising the instruction the Secretary of State gave in this case as an instruction issued by Her Majesty 'in right of South Georgia', as distinct from 'in right of the United Kingdom', leads nowhere. It does not provide an answer to the question raised in the present proceedings. Far from being an anterior question, in this context it is an irrelevant question. It does not provide the answer, either way.
46. Test the matter this way. Suppose it were the case that the Strasbourg jurisprudence was to the opposite effect of what was decided in the Bui Van Thanh case. Suppose it were the case that, under the Convention, a contracting state is liable for the consequences in a dependent state of an instruction given by it to the dependent government. If that were the law in respect of the Convention there could really be no doubt that sections 6 and 7 of the Human Rights Act would be applicable in the present case even though the Secretary of State was acting 'in right of' South Georgia when giving the impugned instruction. Otherwise the Act would fail to achieve its intended purpose of affording a domestic remedy matching the Strasbourg remedy.
47. This example illustrates that, as I have said, what matters in the present case is not the capacity in which the Secretary of State gave his instruction. What matters is whether his instruction violated a Convention right. In the Act the undefined expression 'public authority' is, in short, a reference to those bodies for whose acts or omissions the United Kingdom is answerable before the European Court of Human Rights: see the Aston Cantlow case  1 AC 546, 554, para 6. If the Secretary of State's instruction was incompatible with a Convention right and the United Kingdom was therefore liable under the Convention, the Secretary of State would be liable accordingly under the Act. He would be liable as a public authority even though he was acting in right of South Georgia.