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)
48. I recognise of course that in other contexts, that is, contexts other than the scope of the Human Rights Act, the capacity in which a minister of the Crown was acting may be all-important. An instance of this can be found in R v Secretary of State for Foreign and Commonwealth Affairs, Ex p Indian Association of Alberta  QB 892. There the issue was whether the obligations of the Crown to the Indian peoples of Canada were obligations of the Crown in right of Canada or obligations in right of the United Kingdom and as such a liability 'in respect of Her Majesty's Government in the United Kingdom' within section 40(2)(b) of the Crown Proceedings Act 1947. In contexts such as these it may be necessary to characterise, for this or that purpose, the capacity in which the Crown acted in a particular transaction. But in the present case that is not so. For this reason I would set aside the declaration made by the Court of Appeal, and in that respect allow the appeal of the Secretary of State, but not substitute any other form of declaration.
49. South Georgia and the South Sandwich Islands (SGSSI), which consists of land and sea areas in Antarctica, is a British Overseas Territory. It is not part of the United Kingdom but the sovereign is Her Majesty the Queen. Its constitution is the South Georgia and South Sandwich Islands Order 1985 (SI 1985/449) ("the Order") as amended. The Order was made by Her Majesty in Council under powers conferred by the British Settlements Acts 1887 and 1945. The executive and legislative powers in SGSSI, referred to in the Order as "the Territories", are exercised on behalf of Her Majesty by a Commissioner. Section 5(1) of the Order confers executive authority:
50. Section 9(1) confers plenary legislative authority:
51. Paragraph 1 of the Annex to the Order provides that laws made by the Commissioner are to be styled Ordinances.
52. Pursuant to his legislative powers, the Commissioner made the Fisheries (Conservation and Management) Ordinance 2000. This provided for the appointment of a Director of Fisheries. Fishing in the territorial waters of SGSSI was to require a licence from the Director. The Director was required by section 4(2) to perform his duties (including the granting of licences) subject to the directions of the Commissioner.
53. In January 2001 Quark Fishing Ltd ("Quark"), owners of the MV Jacqueline, applied to the Director for a licence to fish for Patagonian Toothfish during the 2001 Antarctic winter season. The Secretary of State, pursuant to section 5(1) of the Order, instructed the Commissioner to direct the Director pursuant to section 4(2) of the Ordinance to refuse the application.
54. In judicial review proceedings brought in the High Court against the Secretary of State, Scott Baker J quashed the Secretary of State's instruction on administrative law grounds. His decision was upheld by the Court of Appeal. Quark was granted a licence for the 2002 and subsequent seasons but missed the 2001 season. They claim that they have thereby lost a catch worth £2.5 million.
55. After their success in the Court of Appeal, Quark made a claim against the Secretary of State for damages for breach of section 6(1) of the Human Rights Act 1998, which provides that it is unlawful for a "public authority" to act in a way which is incompatible with Convention rights. Quark claim that in giving the instruction under section 5(1) of the Order, the Secretary of State acted as a public authority and that his action was incompatible with Quark's Convention right under article 1 of Protocol 1 to the peaceful enjoyment of its possessions, which are alleged to include the legitimate expectation of being given a licence.
56. The Secretary of State applied to strike out the claim on two grounds. First, he said that Quark had no Convention rights as defined in the 1998 Act. "Convention rights" mean rights under the Convention "as it has effect for the time being in relation to the United Kingdom". It does not include such Convention rights, if any, as may exist under the law of SGSSI. As it happens, there are no Convention rights in the domestic law of SGSSI. The United Kingdom has by a declaration under article 56 of the Convention extended its application to SGSSI but, for two reasons, that is no help to Quark. One is that the declaration operates only in international law the other is that the extension does not include Protocol 1.
57. Secondly the Secretary of State says that in giving the instruction, he did not act as a public authority for the purposes of section 6(1). The 1998 Act is United Kingdom legislation; it does not purport to have extra-territorial application. A "public authority" is defined to include "any person certain of whose functions are functions of a public nature". That must mean United Kingdom functions. In giving the instruction under section 5(1) of the Order, the Secretary of State was acting on behalf of Her Majesty exercising Her powers as sovereign of SGSSI, not the United Kingdom.
58. In my opinion these objections are unanswerable but I must consider how Mr Vaughan QC, who appeared for Quark, tried to answer them. First, he said although the "possessions" which he claims the right to enjoy were in SGSSI, the Secretary of State interfered with them by an act done in the United Kingdom, namely the despatch of the instruction to the Commissioner. Mr Vaughan submitted that the Convention, even as it has effect in relation to the United Kingdom, can have an extra-territorial application. An act done by a public authority in the United Kingdom which interfered with property rights in another country could be a breach of convention rights.
59. There are cases in Strasbourg which support the proposition that the Convention can have an exceptional extra-territorial application when authorised agents of a Member State are exercising authority over persons or property outside its territory: for a recent discussion of this doctrine, see the judgment of the Court of Appeal in R (B) v Secretary of State for Foreign and Commonwealth Affairs  2 WLR 618. Thus the Convention may have extra-territorial application to persons or property within an area under military occupation by a Member State (Cyprus v Turkey (2001) 35 EHRR 731) or in its embassy in a foreign country (M v Denmark (1992) 73 DR 193. But the present case comes nowhere near falling within such an exceptional category. The United Kingdom government exercises no authority over the waters of SGSSI. That authority is vested in the Commissioner and the Director.
60. Mr Vaughan's argument is that as a matter of real politik, the United Kingdom is able, through the powers reserved to Her Majesty and exercisable on the advice of the Secretary of State, to impose its authority on SGSSI. But the Strasbourg jurisprudence says clearly that this is not a sufficient ground for giving the Convention extra-territorial application to dependent territories outside the United Kingdom. To do so would be inconsistent with the scheme of article 56 of the Convention, which provides that a State may declare that the Convention shall extend to "all or any of the territories for whose international relations it is responsible". If there is no such declaration, then the Convention does not so extend. It would not be consistent to hold that, merely because the territory was dependent on the United Kingdom and its government could exercise reserved powers, the Convention's application to the United Kingdom extended extra-territorially to acts done under the law of that territory.
61. So, for example, in Gillow v United Kingdom (1986) 11 EHRR 335 the applicants complained of an infringement of their rights under article 1 of Protocol 1 when the housing authority in Guernsey refused to allow them to occupy the house they owned there. The United Kingdom had not made a declaration extending the Protocol to Guernsey and the Court held that it had no jurisdiction to deal with the complaint. In Bui Van Thanh v United Kingdom (1990) (Application No 16137/90) the Commission reached a similar conclusion about a complaint of infringement of Convention rights by the government of Hong Kong, to which the Convention had not been extended at all. The applicant's argument was similar to that of Mr Vaughan in this case: he said that the alleged infringing acts by the Hong Kong authorities had been "based on United Kingdom policy" and relied upon cases on extra-territoriality. But the Commission rejected the argument, saying that it would conflict with an "essential part of the scheme" of the Convention.
62. The Court of Appeal decided that Quark could not complain of infringement of a Convention right because Protocol 1 had not been extended to SGSSI. As Gillow v United Kingdom shows, that would have been the reasoning and conclusion if the case had been in Strasbourg. As a matter of international law, the Strasbourg court would have been concerned with whether the United Kingdom government had, by a declaration of extension under article 4 of Protocol 1, applied the Convention to SGSSI and accepted responsibility for its infringement by the government of SGSSI. But for the purposes of the 1998 Act, it does not matter whether the Protocol has been extended to SGSSI or not. The Act is concerned only with the Convention as it applies to the United Kingdom and not by extension to other territories.
63. Mr Vaughan's answer to the Secretary of State's other objection was much the same as the answer to the first. He said that although the acts of Her Majesty in respect of Her government of the SGSSI were in theory not acts of a United Kingdom public authority, Her instructions to the Commissioner in this case had been given on the advice of the Secretary of State and in what were perceived to be the interests of the United Kingdom in its diplomatic relations with other states fishing in Antarctic waters. Therefore they were acts of the Secretary of State in his capacity as a United Kingdom public authority.
64. This argument failed before Collins J but succeeded in the Court of Appeal. In my opinion Collins J was right. 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).
65. It is not in my opinion inconsistent with this construction of the 1998 Act that the Secretary of State conceded the jurisdiction of the High Court to quash the instruction by judicial review. There is authority both ancient and modern for the High Court's exercise of jurisdiction, first by prerogative writ and then by judicial review, over all Her Majesty's territories: see R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs  QB 1067. But that does not mean that the acts in question are acts of United Kingdom public authorities. On the contrary, the jurisdiction exists whether the act is one of a United Kingdom public authority or not.
66. I would therefore allow the appeal of Secretary of State and (although for reasons not quite the same as those of the Court of Appeal) dismiss Quark's cross-appeal.LORD HOPE OF CRAIGHEAD
67. One of the functions of government in the British Overseas Territory of South Georgia and the South Sandwich Islands ("SGSSI") is the regulation of fisheries in the maritime zone within which exclusive jurisdiction over commercial fisheries, among other matters, is vested in the government of the territory. It has become increasing clear in recent years that careful regulation is needed for the conservation of fish stocks in the Southern Oceans and the way in which fishing is conducted there. Among the species of fish that attract commercial fishing to the area is the Patagonian toothfish, which commands very high prices in the Asian markets and is regarded as especially valuable. There is an obvious risk to the survival of the species unless effective steps are taken to prevent stocks being reduced below the level at which the species can regenerate itself. This is not the only problem. Long line fishing, which is the method used for the taking of toothfish, attracts the attention of birds which roam these oceans in search of food such as the Black-browed Albatross. The mortality rate of these birds when caught on the long lines is so high that the survival of this species too is now at risk.
68. The need to conserve species in the area of sea in which SGSSI lies has been recognised internationally. The United Nations Food and Agriculture Organisation has divided the Southern Oceans into areas and sub-areas, and the Commission for the Conservation of Antarctic Marine Living Resources ("the CCAMLR") which was established under the Antarctic Treaty System meets at regular intervals to determine the total allowable catch of toothfish for the fishing season in each sub-area. Her Majesty's Government in the United Kingdom is internationally responsible for the external affairs of the British Overseas Territories. Among its responsibilities is ensuring that international treaties and international obligations are complied with. This includes the need to maintain the efficient and effective operation of the CCAMLR in the maritime zone for which the government of SGSSI is responsible. The government of SGSSI, for its part, supports the operation of the CCAMLR by maintaining a licensing system by which vessels are prohibited from fishing for toothfish unless this has been authorised by a licence for the season granted by the Director of Fisheries.
69. At its 19th meeting the CCAMLR set the total allowable catch for toothfish in the SGSSI's sub-area for the 2001 fishing season at 4,500 tonnes. The way the allowable tonnage was to be distributed among those interested in fishing for toothfish raised further questions in relation to the external affairs of SGSSI. Only about a dozen people live on South Georgia, most of whom are research scientists, and the South Sandwich Islands are uninhabited. Vessels equipped for fishing for toothfish are registered elsewhere. The Secretary of State shares responsibility with the government of SGSSI for the maintenance of good relations between SGSSI and neighbouring states, and good relations in the matter of fishing depends on the equitable distribution of licences. On 7 June 2001 the Secretary of State, in the exercise of a power given to Her Majesty by the South Georgia and South Sandwich Islands Order 1985 (SI 1985/449), issued an instruction to the Commissioner for the SGSSI not to grant a licence to fish for toothfish during the 2001 fishing season to any UK or UK overseas flagged vessels other than two vessels named in his instruction. In previous seasons a licence had been issued to MV Jacqueline, a vessel owned and operated by Quark Fishing Limited ("Quark"). But this was not one of the two vessels named in the instruction. The question which has given rise to these proceedings is whether Quark is entitled to damages.
The first issue
70. On 6 May 2004 the Court of Appeal made a declaration in these terms:
71. The first issue in this appeal is whether the Court of Appeal was correct to hold, as its declaration records, that the instruction of 7 June 2001 was issued by Her Majesty in right of the United Kingdom. My noble and learned friend Lord Bingham of Cornhill has described the statutory background in the light of which this instruction was issued through the Secretary of State to the Commissioner, and I gratefully adopt what he has said about this. The question, in simple terms, is whether the instruction was issued by Her Majesty the Queen as Head of State of the United Kingdom (Mr Vaughan QC referred throughout his speech to Her Majesty as Queen of England, but the State of which she is the Head is the United Kingdom) or by Her Majesty the Queen as Head of State of SGSSI.
72. The starting point for an examination of this question, in my opinion, is the date of the coming into operation, on the date appointed for the coming into operation of the Constitution of the Falkland Islands, of the South Georgia and South Sandwich Islands Order 1985 ("the 1985 Order") which established a separate government for SGSSI. Its government is, in a variety of ways, subordinate to the government of the United Kingdom. But from this date forward SGSSI ceased to be a dependency of the Falkland Islands. It now has its own government. In Tito v Waddell (No 2)  Ch 106, 254, the Vice-Chancellor (Sir Robert Megarry) said that a government did not cease to be a government because it was subordinate. In R v Secretary of State for Foreign and Commonwealth Affairs, Ex p Indian Association of Alberta  QB 892, 927, Kerr LJ emphasised that the question whether the situs of rights and obligations of the Crown is to be found in right, or in respect of, the United Kingdom or of other governments within the Commonwealth of which Her Majesty is Head of State has nothing to do with whether those governments are independent or not. At p 927 he said:
73. The constitution of SGSSI is contained in the 1985 Order, as amended by the Order of 1995 (SI 1995/1621), and the powers and duties of the Commissioner are set out in section 5. It provides that he is to have such powers and duties as are conferred or imposed upon him by or under the Order or any other law
The reference to Her Majesty in this part of this section is plainly a reference to Her Majesty as Head of State and Queen of SGSSI. Mr Vaughan did not seek to suggest otherwise. The section then provides as follows:
74. It was the reference to a Secretary of State in these concluding words that led the Court of Appeal to accept Mr Vaughan's argument that the instruction of 7 June 2001 was given by Her Majesty in right of the United Kingdom. As Pill LJ, with whom Thomas and Jacob LJJ agreed, explained, the court approached the issue as one of construction. He said that it was to be determined on a construction of the 1985 Order:  QB 93, 111 - 112, paras 47-49. Having construed the Order, his conclusion was that the instruction was given to the Commissioner by Her Majesty in right of the United Kingdom. He explained his reasoning in this way:
In para 50 he said 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 South Georgia.
75. In my opinion this construction places too much weight on the references in section 5 and elsewhere in the 1985 Order to the Secretary of State and too little weight on the references to Her Majesty. And the conclusion that it led to overlooks the constitutional reality. It was the constitution of SGSSI that provided the vehicle for the instruction. And it was the constitution of SGSSI that established the legal framework within which the instruction was given and which required the Commissioner to give effect to it.
76. If one approaches the 1985 Order, as one should, as an instrument which sets out the constitution of SGSSI, the references that it makes to Her Majesty fall to be read as references to Her Majesty in the exercise of her rights as Head of State and Queen of the territory unless that there is a clear indication to the contrary. As I have already said, that is the meaning that one would give to the first reference that is made to Her Majesty in section 5(1). I can see no good reason for altering the meaning of the phrase when she is referred to again in the same subsection or elsewhere in the 1985 Order just because the references on these occasions are to her giving instructions through a Secretary of State. These references reflect the constitutional reality that the government of SGSSI is subordinate to that of the United Kingdom. It is subject to instruction from time to time as to what it can and cannot do. But the constitutional reality is that, although the government of SGSSI is a subordinate government, it is nevertheless the government of the territory. The Secretary of State is not acting, when Her Majesty gives instructions under section 5(1), on behalf of Her Majesty as Head of State of the United Kingdom. What he is doing is providing the vehicle by which, according to the constitution of SGSSI, instructions are given and other acts done by Her Majesty as its Head of State.
77. Mr Vaughan accepted that section 5(1) was open to this interpretation. But he submitted that the question was not simply how the 1985 Order ought to be construed. It was, he said, necessary to look at the particular facts and circumstances and at the context in which the instruction was given to the Commissioner. In this case the instruction was out of the ordinary. It was clear from the correspondence that the factors on which it was based owed nothing to the local circumstances in South Georgia or elsewhere in SGSSI. It had nothing to do with the population there, such as it was, or to local politics as they did not exist. The reasons of policy that lay behind it were founded exclusively on what was in the best interests of the United Kingdom's foreign policy, not that of SGSSI.
78. If this approach was sound, it would mean that an examination would need to be undertaken in each case to determine in right of which of the various sovereign positions which she occupies the instruction was given by Her Majesty. An instruction of the kind that was given in this case could have its origin in a variety of policy reasons or motives. Some of these might be said to be domestic to SGSSI and the maritime zone for which it is responsible. Some might be said to be concerned with its external relations or with the external relations of other governments with legitimate interests in its territory. Some might be said to be concerned exclusively with aspects of the United Kingdom's foreign policy. An examination of the question where the balance lay, whether the interests were as clear cut as they were said to be and as to which of these interests, if any, was predominant would be something for which a court is not at all well suited. I would not go so far as to say that the question was not justiciable. But if it was open to a court to consider the question this could give rise to difficulty in predicting the consequences of the instruction and to a situation of great uncertainty. I do not believe that the constitution was intended to work in that way.
79. But there is an underlying and, as I see it, an irremediable flaw in the argument. The reasons of policy that led to the giving of the instruction, or the motives that lay behind it, are irrelevant. The question is simply in what capacity was the instruction given by Her Majesty. The constitutional machinery provides the answer to it. It was that machinery that was being used to give the instruction. So it was in right of her position as Head of State of SGSSI that it was given by Her Majesty.
80. I would therefore allow the Secretary of State's appeal and set aside the Court of Appeal's declaration.
The second issue