Judgments - Al-Skeini and others (Respondents) v. Secretary of State for Defence (Appellant) Al-Skeini and others (Appellants) v. Secretary of State for Defence (Respondent) (Consolidated Appeals)

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    15.  The parties directed much detailed argument to the language of the Act, seeking to derive support for their competing interpretations.

(1)  Section 1(4). This subsection empowers the Secretary of State to make such amendments to the Act as he considers necessary "to reflect the effect, in relation to the United Kingdom, of a protocol". The claimants submit, obviously correctly, that this is a reference to the UK as a contracting state and a juridical entity in international law, not as a territorial area. The same is true of section 1(5)(a) and (b). This, they argue, is significant, since the definition of "the Convention" in section 21(1) is to that instrument "as it has effect for the time being in relation to the United Kingdom", and section 1(6) makes reference to a protocol in force "in relation to the United Kingdom". These references should, according to accepted canons of draftsmanship, be read in the same way. This may be so, but I find the use of words such as "in relation to" to be a weak indication from which to draw an inference of extra-territorial application. It is perhaps noteworthy that Jersey, Guernsey and the Isle of Man, seeking to give domestic effect to the Convention, provided (following the language of the Act) that it should have effect "in relation to" "the Island" or "Guernsey". In these instances the reference can only have been territorial since Jersey, Guernsey and the Isle of Man were not contracting states.

(2)  Section 3. The claimants contended, and the Divisional Court accepted (in paragraphs 291 and 301 of its judgment), that the interpretative obligation in section 3 of the Act could be applied to interpretation of the Act itself. This is not an argument which the Court of Appeal expressly accepted. In my opinion it was right not to do so. Section 3 provides an important tool to be used where it is necessary and possible to modify domestic legislation to avoid incompatibility with the Convention rights protected by the Act, but it cannot be used to determine the content or extent of the rights which are to be protected. It is in my view plain that section 3 was not intended to be used in construing the Act itself.

(3)  Section 6. It is common ground that the public authorities referred to in section 6 are, and are only, UK public authorities (and the courts referred to in section 4(5) and section 7 are all UK courts). But these provisions assist neither party. The claimants only seek a remedy under the Act against the Secretary of State, who is of course a UK public authority, and they seek this remedy in a UK court. Section 11, authorising remedial action where domestic legislation has been found to be incompatible with a Convention right, does not advance the argument.

(4)  Section 21(5) and section 22(7). Section 21(5), anticipating article 1 of the Sixth Protocol to the Convention (to which the UK had not acceded when the Act was passed) provided that the death penalty, which could still be imposed under the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957, should be replaced by a liability to life imprisonment or any lesser punishment authorised by those Acts. This subsection, unlike most of the Act, was to take effect on royal assent to the Act being given. The three service Acts have extra-territorial effect in relation to those to whom they apply (see the reference to section 70 of the Army Act, briefly quoted in paragraph 13 above), and it might have been thought that the amendment effected by section 21(5) would similarly apply extra-territorially. Section 22(7) of the HRA, however, provides:

    "Section 21(5), so far as it relates to any provision contained in the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957, extends to any place to which that provision extends".

It may be questionable whether, as a question of drafting technique, section 22(7) is strictly necessary. But in my opinion it does point, as the Secretary of State contends, towards an assumption by the draftsman that the Act as a whole does not apply to acts committed outside the United Kingdom.

(5)  Section 22(6). This subsection provides that the Act extends to Northern Ireland. This is the conventional means of indicating that the Act is to have effect throughout the United Kingdom (see Bennion, op. cit., p 284), and the Divisional Court were wrong to suggest (judgment, para 301) that the Act does not apply to Scotland. But this provision is not significant for present purposes. It makes clear that the Act forms part of the domestic law of each of the three jurisdictions of the UK.

    16.  I do not, overall, find these textual indications very compelling in favour of one side or the other, although they give some slight support to the Secretary of State's contention. More compelling in his favour is the absence of any clear pointer in the claimants' favour, for it is on the Act itself that they must primarily rely to rebut the presumption of territoriality discussed in paragraph 11 above.

    17.  The claimants rely on two domestic decisions in support of their interpretation. The first of these is the decision of the Court of Appeal (Lord Phillips of Worth Matravers MR, Chadwick LJ and Lord Slynn of Hadley) in R (B and others) v Secretary of State for Foreign and Commonwealth Affairs [2004] EWCA Civ 1344, [2005] QB 643. The claimants in this case complained of breaches of articles 3 and 5 of the Convention, seeking permission to apply for judicial review. Their complaint was based on the conduct of British consular officials in Melbourne, for whom the Secretary of State was in principle responsible. The Court of Appeal granted permission to apply (which Moses J and Sullivan J had refused) but dismissed the claim. One of the issues which arose was whether a claim would lie against the Secretary of State under the Act for acts done or not done outside the UK: see paragraph 25 of the judgment. The claimants contended that jurisdiction under the Act was co-extensive with that under the Convention, the Secretary of State that the claimants could not rely on the Convention rights set out in the Act because they were not within the territory of the UK (see pp 646-648 of the report and paras 67-77 of the judgment). Having surveyed the Strasbourg jurisprudence as it then stood and a body of domestic material, the court resolved this issue in the claimants' favour, ruling in paragraphs 78 and 79:

    "78.  … It seems to us that we are under a duty, if possible, to interpret the Human Rights Act 1998 in a way that is compatible with the Convention rights, as those rights have been identified by the Strasbourg court. This duty precludes the application of any presumption that the Human Rights Act 1998 applies within the territorial jurisdiction of the United Kingdom, rather than the somewhat wider jurisdiction of the United Kingdom that the Strasbourg court has held to govern the duties of the United Kingdom under the Convention.

    79.  For these reasons we have reached the conclusion that the Human Rights Act 1998 requires public authorities of the United Kingdom to secure those Convention rights defined in section 1 of the Act within the jurisdiction of the United Kingdom as that jurisdiction has been identified by the Strasbourg court. It follows that the Human Rights Act 1998 was capable of applying to the actions of the diplomatic and consular officials in Melbourne. It remains to consider whether those actions infringed the Convention and the Act."

These conclusions are plainly very helpful to the claimants. In reaching them, however, the court relied strongly on section 3 of the Act which is not in my opinion, as indicated above, a tool which can be used to determine the extent of the rights which are protected by the Act.

    18.  The second authority relied on is R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57, [2006] 1 AC 529. The claimant in this case sought judicial review of a decision refusing a licence to fish in the waters of South Georgia and the South Sandwich Islands ("SGSSI"). The refusal was said to violate article 1 of the First Protocol to the Convention. It was common ground that although Her Majesty's Government had extended the Convention to SGSSI under article 63 (now 56) of the Convention it had not so extended article 1 of the First Protocol. It was also clear that the licence had been refused to the claimant on the instruction of the Secretary of State, although there was an issue whether, in issuing the instruction, he had acted in right of Her Majesty as Queen of the United Kingdom or of SGSSI.

    19.  The first issue agreed by the parties for decision by the House was whether (as the Court of Appeal, reversing the judge, had held) the instruction had been issued through the Secretary of State by Her Majesty in right of the United Kingdom, it being assumed that the claimant could not succeed if the instruction had been given in right of SGSSI. My own opinion, shared by Lord Hoffmann and Lord Hope of Craighead, was that it had been issued in right of SGSSI: paras 19, 63-64, 75-80. It was also held (in various opinions) that the claimant could not succeed in a claim under the Act unless he could succeed in Strasbourg, that he could not succeed under the Act since article 1 of the First Protocol had not been extended to SGSSI and that the Secretary of State, acting in right of Her Majesty as Queen of SGSSI was not a UK public authority: see my own opinion at paras 24-25; that of Lord Nicholls of Birkenhead at para 44; that of Lord Hoffmann at paras 56-64; that of Lord Hope at paras 86-92; and Baroness Hale of Richmond at paras 97-98.

    20.  In support of their argument on the extra-territorial scope of the Act, the claimants relied in particular on paragraph 34 of Lord Nicholls' opinion, a passage cited by the Court of Appeal in paragraphs 45 and 146 of the judgment under appeal. In paragraph 34 Lord Nicholls said:

    "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 [2004] 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."

This clearly supports the claimants' contention that the territorial scope of the Act was intended to be co-extensive with that of the Convention. But Lord Nicholls went on to say, in paragraph 36:

    "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."

It is not, I think, clear that these observations of Lord Nicholls commanded majority support. I myself observed (para 25) that "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'". Lord Hoffmann, in paragraph 57, stated: "The 1998 Act is United Kingdom legislation; it does not purport to have extraterritorial application". The decision of the House in Quark was not directed to the present issue, and I do not think it can be treated as reliable authority on the point.

    21.  No assistance is in my opinion to be derived from R (European Roma Rights Centre) v Immigration Office at Prague Airport (United Nations High Commissioner for Refugees intervening) [2004] UKHL 55, [2005] 2 AC 1 and R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37, [2006] 1 AC 173. In the first of these cases no argument on extra-territoriality was raised. The second concerned the application of regulations expressly providing for the payment of social security benefits to persons resident abroad.

    22.  Relying in particular on Lord Nicholls' observations in Quark, the claimants submitted that the object of the Act was to give the specified Convention rights the same protection in domestic law as they enjoyed under the Convention, so that the two systems of protection should essentially correspond. That was borne out by the Act's provisions relating to damages in section 8(3) and (4) of the Act. The Secretary of State responded that in some instances the Act clearly did not aim to achieve such correspondence. The decision of the House in In re McKerr [2004] 1 WLR 807, established that a claimant could not base his claim under the Act on a breach of Convention right where the act complained of took place before section 7 of the Act came into force, even though (irrespective of the date) a good claim might lie against the UK at Strasbourg. The decision of the House in McKerr was, however, based on its construction of section 22(4) of the Act, which specifically addressed the issue of retrospectivity, and this greatly weakens the force of this response, there being no express provision of the Act directed to territorial scope. Some of the opinions in Quark (paras 25, 64) suggest that a claimant may have a good claim against the UK at Strasbourg without having a good claim under the Act, but that was a point which did not fall for decision in that case. I do not find these pointers very persuasive.

    23.  Attention was drawn by the Secretary of State in argument to statements in the White Paper Rights Brought Home: The Human Rights Bill (Cm 3782, October 1997) and to statements made during the passage of the Bill through Parliament. The claimants questioned the admissibility and value of this material. I see force in these objections. For domestic political reasons it was natural for those promoting the Bill to emphasise in the White Paper its value to the people of the UK. The claims of those who might wish to rely on it in foreign countries far away might not have had the same appeal. In any event, the issue of extra-territorial application was never squarely addressed. Nor was it, I think, in either House. Thus this material does not strengthen the Secretary of State's argument. But nor, perhaps more significantly, does it give any help to the claimants in seeking to rebut the presumption of territorial application.

    24.  In the course of its careful consideration of this question the Divisional Court observed (in paragraph 304 of its judgment): "It is intuitively difficult to think that Parliament intended to legislate for foreign lands". In similar vein, Brooke LJ in the Court of Appeal said (para 3): "It may seem surprising that an Act of the UK Parliament and a European Convention on Human Rights can arguably be said to confer rights upon citizens of Iraq which are enforceable against a UK governmental authority in the courts of England and Wales". I do not think this sense of surprise, which I share, is irrelevant to the court's task of interpretation. It cannot of course be supposed that in 1997-1998 Parliament foresaw the prospect of British forces being engaged in peacekeeping duties in Iraq. But there can be relatively few, if any, years between 1953 and 1997 in which British forces were not engaged in hostilities or peacekeeping activities in some part of the world, and it must have been appreciated that such involvement would recur. This makes it the more unlikely, in my opinion, that Parliament could, without any express provision to that effect, have intended to rebut the presumption of territorial application so as to authorise the bringing of claims, under the Act, based on the conduct of British forces outside the UK and outside any other contracting state. Differing from the courts below, I regard the statutory presumption of territorial application as a strong one, which has not been rebutted.

    25.  The Divisional Court based its finding of extra-territorial application in part on its understanding of the modest extent to which the Strasbourg court had recognised the Convention itself as having extra-territorial application. In paragraph 301 of its judgment it said:

    "Whatever may have been the position if our conclusion, or Strasbourg jurisprudence, had been that article 1 of the Convention was founded on some form of broad personal jurisdiction, nevertheless where on the contrary, for the reasons which we have described above, article 1 should be and has been given an essentially territorial effect, it is counter-intuitive to expect to find a parliamentary intention that there should be gaps between the scope of the Convention and an Act which was designed to bring rights home, that is to say as we understand that metaphor to enable at any rate domestic or British claimants to sue in the domestic courts rather than in Strasbourg."

Thus the Divisional Court found the Act to have extra-territorial application (para 306) to "allow of the narrow exception which we have framed and applied in the case of the sixth claimant". Brooke LJ similarly confined the extra-territorial effect of the Act by limiting it (para 147) to cases "where a public authority is found to have exercised extra-territorial jurisdiction on the application of [state agent authority] principles". I think, with respect, that there is a certain danger in this line of reasoning. It is one thing to say (if there is ground for doing so) that Parliament intended the Act to have the same extra-territorial effect as the Convention. It is another to base that conclusion on the finding that the exceptions to the territoriality principle recognised by Strasbourg were minor, unless it could be assumed that the Strasbourg court would recognise no other or wider exceptions in future. In this connection it is pertinent to recall Resolution 1386, adopted by the Parliamentary Assembly of the Council of Europe on 24 June 2004, paragraph 18 of which, quoted by the Court of Appeal, said:

    "The Assembly calls upon those of its member states that are engaged in the [Multi-National Force] to accept the full applicability of the European Convention on Human Rights to the activities of their forces in Iraq, in so far as those forces exercised effective control over the areas in which they operated."

    26.  I would accordingly hold that the HRA has no extra-territorial application. A claim under the Act will not lie against the Secretary of State based on acts or omissions of British forces outside the United Kingdom. This does not mean that members of the British armed forces serving abroad are free to murder, rape and pillage with impunity. They are triable and punishable for any crimes they commit under the three service discipline Acts already mentioned, no matter where the crime is committed or who the victim may be. They are triable for genocide, crimes against humanity and war crimes under the International Criminal Court Act 2001. The UK itself is bound, in a situation such as prevailed in Iraq, to comply with The Hague Convention of 1907 and the Regulations made under it. The Convention provides (in article 3) that a belligerent state is responsible for all acts committed by members of its armed forces, being obliged to pay compensation if it violates the provisions of the Regulations and if the case demands it. By article 1 of the Geneva IV Convention the UK is bound to ensure respect for that convention in all circumstances and (article 3) to prohibit (among other things) murder and cruel treatment of persons taking no active part in hostilities. Additional obligations are placed on contracting states by protocol 1 to Geneva IV. An action in tort may, on appropriate facts, be brought in this country against the Secretary of State: see Bici v Ministry of Defence [2004] EWHC 786 (QB). What cannot, it would seem, be obtained by persons such as the present claimants is the remedy they primarily seek: a full, open, independent enquiry into the facts giving rise to their complaints, such as articles 2 and 3 of the Convention have been held by the Strasbourg court to require. But there are real practical difficulties in mounting such an enquiry.

B.  The extra-territorial scope of the Convention

    27.  Consistently with their conclusion that the extra-territorial scope of the HRA matched that of the Convention, it was necessary for the courts below to rule (following the Strasbourg jurisprudence) what the extra-territorial scope of the Convention was, in order to decide whether the six claims now in issue fall within it. Had I concluded that the extra-territorial scope of the Act and the Convention were co-extensive, I should similarly have felt constrained to follow that course. But I have reached a different conclusion. I think it not only unnecessary but unwise to express an opinion whether cases 1-5 fall within the jurisdiction of the UK under article 1 of the Convention, or on what precise basis case 6 should be held to do so. I reach this conclusion with regret and a sense of ingratitude having regard to the extensive, erudite and interesting argument directed to the question, but for what I regard as important reasons.

    28.  The Grand Chamber of the Strasbourg court has described the scope of article 1, in Bankovic v Belgium and others (2001) 11 BHRC 435, p 449, para 65, as

    "determinative of the very scope of the contracting parties' positive obligations and, as such, of the scope and reach of the entire convention system of human rights' protection…".

There could scarcely be a more fundamental question, nor one more obviously suitable for resolution (in a doubtful case) by a supranational rather than a national court. While a national court can and must interpret its own legislation, it must be slow to rule on the scope of an international treaty when its ruling, if correct, would apply to contracting states other than itself, and when the treaty has established a court with authority to give such rulings.

    29.  The Strasbourg court held in Bankovic, p 448, para 61, that

    "article 1 of the convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case …".

This is an important statement, since it is for the Strasbourg court to define the exceptions and evaluate the grounds for departing from the general rule. In paragraph 62 of its judgment, p 449, the court pertinently observed, with reference to state practice as a guide to interpretation:

    "Although there have been a number of military missions involving contracting states acting extra-territorially since their ratification of the convention (inter alia, in the Gulf, in Bosnia and Herzegovina and in the FRY), no state has indicated a belief that its extra-territorial actions involved an exercise of jurisdiction within the meaning of article 1 of the convention by making a derogation pursuant to article 15 of the convention."

So it does not appear that military action abroad has generally been regarded as giving rise to an exception.

    30.  The claimants advanced alternative bases on which, they submitted, cases 1-5 fell within the jurisdiction of the UK. One, their preferred basis, rested by analogy on an exception which (as described in Bankovic, p 451, para 73) included

    "cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state".

The other basis (Bankovic, p 450, para 70) was

    "when as a consequence of military action (lawful or unlawful) [a contracting state] exercised effective control of an area outside its national territory".

This exception was largely developed in relation to the occupation by one contracting state (Turkey) of the territory of another (Cyprus) in Europe. Neither of these bases of exception can be described as clear-cut, and the application of either of them to the situation of British troops operating in Iraq must, in my opinion, be regarded as problematical.

    31.  The Divisional Court held (para 287) that Mr Mousa's case fell within article 1 because

    "a British military prison, operating in Iraq with the consent of the Iraqi sovereign authorities, and containing arrested suspects, falls within even a narrowly limited exception exemplified by embassies, consulates, vessels and aircraft, and in Hess v United Kingdom 2 DR 72, a prison".

The Court of Appeal (para 108) upheld this decision but on the basis that

    "Mr Mousa came within the control and authority of the UK from the time he was arrested at the hotel and thereby lost his freedom at the hands of British troops".

The difference between these two formulations would not appear, on the facts here, to be significant, but in other cases it could be so.

    32.  If any of these claimants pursues an application against the UK at Strasbourg, as it is of course open to them to do, the court there will rule on the admissibility of the applications. I do not think that any useful purpose is served by seeking to predict what its decision will be or to suggest what it should be.


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