(back to preceding text)

    33.  Since I conclude that no claim by any of the claimants will lie in this country under the Act, I do not think it useful to discuss the violation issue. For all these reasons I would dismiss the claimants' appeal, allow the Secretary of State's cross-appeal against the Court of Appeal's ruling on the applicability of the HRA to Mr Mousa's case and set aside the order for remission of Colonel Mousa's claim, which must be dismissed. I would invite the parties to make written submissions on costs within 14 days.

My Lords,

    34.  The claimants in these six cases are all relatives of Iraqi citizens who were killed in southern Iraq between 4 August and 10 November 2003. Except in the case of the third appellant, the Secretary of State for Defence accepts that the relatives were killed by members of the British forces. In February 2004 the representative of the appellants wrote to the Secretary of State asking him to hold a public inquiry into their relatives' deaths. By letter dated 26 March 2004 the Secretary of State indicated that he would not hold such an inquiry. The claimants seek judicial review of that decision on the ground that it was unlawful in terms of section 6 of the Human Rights Act 1998 ("the 1998 Act") since it was incompatible with the claimants' article 2 "Convention right" as set out in the Schedule to the Act. For his part, the Secretary of State says that his decision was lawful since the 1998 Act does not apply in the circumstances of these cases. In particular, he argues, first, that the 1998 Act does not apply outside the territory of the United Kingdom and, secondly, that, in any event, with the exception of the relative of the sixth appellant, the deceased were not within the jurisdiction of the United Kingdom in terms of article 1 of the European Convention when they were killed.

    35.  It is obvious, but nevertheless worth mentioning, that, depending on the facts, the appellants may have various other rights, such as a right to damages in tort, under English law. The appellants accept that. What they really want, however, is a public inquiry into the circumstances of the deaths of their relatives. That is why they have brought these particular proceedings which focus on what they claim is their article 2 Convention right to such an inquiry under the domestic law of the United Kingdom.

    36.  As was explained in In re McKerr [2004] 1 WLR 807, the Convention right of a relative under article 2 to insist on an inquiry being held where a death has been caused by agents of the state is procedural or adjectival. In domestic law it arises only where the killing itself could be unlawful under section 6 of the 1998 Act by reason of being incompatible with article 2 as set out in the Schedule. For that reason, the key question in these appeals is whether the killing of these individuals by British forces in Iraq could be unlawful under section 6 of the Act.

    37.  Section 6(1) provides:

"It is unlawful for a public authority to act in a way which is incompatible with a Convention right."

The words are quite general and, on its face, the provision contains no geographical limitation - hence the issue between the parties about its proper scope. The Secretary of State points out that Parliament has not chosen to use the kind of specific wording that would show that it was intended to apply outside the United Kingdom. That comment is, of course, correct, but it does not really go anywhere since the Secretary of State is merely drawing attention to a defining feature of any case where the issue is whether a statute is to be construed as applying, by implication, to conduct outside the United Kingdom.

    38.  The Secretary of State submits that, when interpreting sections 6 and 7 of the Act, courts must bear in mind the rule of construction which Bennion, Statutory Interpretation (4th edition, 2002), p 282, formulates in these terms:

"Unless the contrary intention appears, Parliament is taken to intend an Act to extend to each territory of the United Kingdom but not to any territory outside the United Kingdom."

As the heading, "Presumption of United Kingdom extent", shows, however, this statement is simply concerned with the extent of legislation. In the case of the 1998 Act, in accordance with the usual, slightly puzzling, practice, section 22(6) provides specifically that it extends to Northern Ireland. On the accepted rule of interpretation which Bennion states in this passage, the Act therefore extends to the United Kingdom as a whole. In itself, this merely means that the Act forms part of the law of the United Kingdom and does not form part of the law of any other territory for which Parliament could have legislated: Lawson v Serco Ltd [2006] ICR 250, 253, para 1, per Lord Hoffmann.

    39.  Section 22(7) is also concerned with extent:

"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."

Section 21(5) provides that any liability under the three statutes to suffer death for an offence is replaced by a liability to imprisonment for life or any lesser punishment authorised by those Acts. The Acts are to have effect with the necessary modifications.

    40.  On behalf of the Secretary of State, Mr Sales QC placed considerable emphasis on his submission that, since section 22(7) contained an express provision extending section 21(5) to places outside the United Kingdom, this showed that the other provisions in the Act did not apply outside the United Kingdom. That submission mixes up two matters which must be kept distinct.

    41.  As section 22(6) makes clear, the 1998 Act forms part of the law of the United Kingdom but only of the United Kingdom. So, if section 22(7) had not been included, section 21(5) would have formed part of the law of the United Kingdom only. But the three Acts mentioned in section 21(5), including the provisions making offenders liable to the death penalty, extend beyond the United Kingdom. Take the Air Force Act 1955, for example: by virtue of section 214, for instance, it extends to the Channel Islands and to the Isle of Man. In other words it forms part of the laws of the Channel Islands and of the Isle of Man. Section 22(7) was therefore necessary in order to make section 21(5) a part of those laws too and so to give effect to the change in penalty in the relevant provisions of the Air Force Act, as they form part of the laws of the Channel Islands and of the Isle of Man. Mutatis mutandis, the same applies to the other two Acts and to all three Acts as they extend to other territories.

    42.  No such provision is necessary, however, to permit a provision in a statute to have extra-territorial effect. An Act which extends, say, to England and Wales only may contain a provision that quite specifically applies to conduct outside the United Kingdom. That is the case, for instance, with section 72 of the Sexual Offences Act 2003, an Act which, in terms of section 142(1), extends to England and Wales only. Similarly, section 11 of the Criminal Procedure (Scotland) Act 1995 applies to offences committed outside the United Kingdom, even though section 309(3) shows that, with the exception of a few provisions, the Act extends to Scotland only. So, here, the fact that the 1998 Act extends to the United Kingdom only, and forms part of the law of the United Kingdom only, is neutral. It is entirely consistent with section 6 applying to an act of a public authority outside the territory of the United Kingdom. If section 6 did apply in that way, the effect would simply be that an act of the public authority outside the United Kingdom would give rise to consequences under the law of the United Kingdom. Putting section 22(6) and (7) on one side, therefore, the House has to decide whether section 6 is intended to apply in that way.

    43.  In turning to that question, I am, of course, aware that, before the 1998 Act was passed, Government rhetoric referred to "bringing rights home" and to the advantages that would result for "the British people". In reality, the Act also applies to anyone who lives here and, indeed, to anyone who is within the territory of the United Kingdom. Immigrants and asylum-seekers, for whom the United Kingdom has never been "home", can invoke the provisions of the 1998 Act. The Government rhetoric was not an accurate guide to the application of the Act within the United Kingdom. In these circumstances, in deciding the geographical reach of section 6, I attach no importance to the language of the White Paper ("Rights Brought Home: The Human Rights Bill", (October 1997, Cm 3782)). The passages from Hansard to which we were referred also contained nothing on which it would be safe to rely. Nor did I find anything in the minutiae of the language of the Act which told in favour of any particular view of its geographical reach.

    44.  So far as the application of statutes is concerned, there is a general rule that legislation does not apply to persons and matters outside the territory to which it extends: Bennion, Statutory Interpretation, p 306. But the cases show that the concept of the territoriality of legislation is quite subtle - "slippery" is how Lord Nicholls of Birkenhead described it in R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2006] 1 AC 529, 545, para 32.

    45.  Behind the various rules of construction, a number of different policies can be seen at work. For example, every statute is interpreted, "so far as its language permits, so as not to be inconsistent with the comity of nations or the established rules of international law": Maxwell on The Interpretation of Statutes (12th edition, 1969), p 183. It would usually be both objectionable in terms of international comity and futile in practice for Parliament to assert its authority over the subjects of another sovereign who are not within the United Kingdom. So, in the absence of any indication to the contrary, a court will interpret legislation as not being intended to affect such people. They do not fall within "the legislative grasp, or intendment," of Parliament's legislation, to use Lord Wilberforce's expression in Clark v Oceanic Contractors Inc [1983] 2 AC 130, 152C-D. In Ex p Blain (1879) 12 Ch D 522 the question was whether the court had jurisdiction, by virtue of the Bankruptcy Act 1869, to make an adjudication of bankruptcy against a foreigner, domiciled and resident abroad, who had never been in England. James LJ said, at p 526:

"But, if a foreigner remains abroad, if he has never come into this country at all, it seems to me impossible to imagine that the English legislature could have ever intended to make such a man subject to particular English legislation."

On this general approach, for instance, there can be no doubt that, despite the lack of any qualifying words, section 6(1) of the 1998 applies only to United Kingdom public authorities and not to the public authorities of any other state.

    46.  Subjects of the Crown, British citizens, are in a different boat. International law does not prevent a state from exercising jurisdiction over its nationals travelling or residing abroad, since they remain under its personal authority: Oppenheim's International Law (ninth edition, 1992), vol 1, para 138. So there can be no objection in principle to Parliament legislating for British citizens outside the United Kingdom, provided that the particular legislation does not offend against the sovereignty of other states. In Ex p Blain (1879) 12 Ch D 522, 531-532, Cotton LJ explained the position in this way:

"All we have to do is to interpret an Act of Parliament which uses a general word, and we have to say how that word is to be limited, when of necessity there must be some limitation. I take it the limitation is this, that all laws of the English Parliament must be territorial - territorial in this sense, that they apply to and bind all subjects of the Crown who come within the fair interpretation of them, and also all aliens who come to this country, and who, during the time they are here, do any act which, on a fair interpretation of the statute as regards them, comes within its provision.... As regards an Englishman, a subject of the British Crown, it is not necessary that he should be here, if he has done that which the Act of Parliament says shall give jurisdiction, because he is bound by the Act by reason of his being a British subject, though, of course, in the case of a British subject not resident here, it may be a question on the construction of the Act of Parliament whether that which, if he had been resident here, would have brought him within the Act, has that effect when he is not resident here."

Restating the position in the language of the 1980s, in Clark v Oceanic Contractors Inc [1983] 2 AC 130, 145D-E, Lord Scarman said that the general principle is simply that:

"unless the contrary is expressly enacted or so plainly implied that the courts must give effect to it, United Kingdom legislation is applicable only to British subjects or to foreigners who by coming to the United Kingdom, whether for a short or a long time, have made themselves subject to British jurisdiction."

    47.  The cases indicate, therefore, that British individuals or firms or companies or other organisations readily fall within the legislative grasp of statutes passed by Parliament. So far as they are concerned, the question is whether, on a fair interpretation, the statute in question is intended to apply to them only in the United Kingdom or also, to some extent at least, beyond the territorial limits of the United Kingdom. Here, there is no doubt that section 6 applies to public authorities such as the armed forces within the United Kingdom: the only question is whether, on a fair interpretation, it is confined to the United Kingdom.

    48.  Even in the case of British citizens, a court may readily infer that legislation is not intended to apply to them outside the United Kingdom. See Maxwell on The Interpretation of Statutes, p 171:

"In the absence of an intention clearly expressed or to be inferred either from its language, or from the object or subject-matter or history of the enactment, the presumption is that Parliament does not design its statutes to operate on its subjects beyond the territorial limits of the United Kingdom."

In Tomalin v S Pearson & Son Ltd [1909] 2 KB 61, 64, Cozens-Hardy MR approved an earlier version of this statement. The court held that the Workmen's Compensation Act 1906 did not apply where a workman, employed by a British company, had been killed in the course of his employment in Malta. Leaving aside the rule of construction, various provisions of the Act indicated that it was only intended to apply in certain specific circumstances outside the United Kingdom.

    49.  Again, this rule of construction has to be seen against the background of international law. One state is bound to respect the territorial sovereignty of another state. So, usually, Parliament will not mean to interfere by legislating to regulate the conduct of its citizens in another state. Such legislation would usually be unnecessary and would often be, in any event, ineffective. But sometimes Parliament has a legitimate interest in regulating their conduct and so does indeed intend its legislation to affect the position of British citizens in other states. For example, section 72 of the Sexual Offences Act 2003 makes certain nasty sexual conduct in other countries an offence under English law. So, if the words of a statute are open to more than one interpretation, whether or not it binds British citizens abroad "seems to depend ... entirely on the nature of the statute": Maxwell on The Interpretation of Statutes, p 169.

    50.  The books therefore contain examples of cases where, because of its nature, legislation has been held to apply to British subjects outside the United Kingdom. In Howgate v Bagnall [1951] 1 KB 265, for instance, in 1944 a passenger had died due to asphyxiation in a fire which occurred when an aircraft belonging to His Majesty tried to land on an airfield at Karachi, then in India. His executor sued the captain and second pilot of the aircraft for damages. They defended the action on the basis that the deceased's injuries were "war injuries" and so, under section 3(1) of the Personal Injuries (Emergency Provisions) Act 1939, no damages were payable at common law. While excluding the right to damages for such injuries, the Act made provision for a pension to be paid to victims. Barry J held that, in the circumstances, the deceased's injuries did not fall within the definition of "war injuries" in the Act and the plaintiff was, accordingly, entitled to recover damages. But he would have resolved the prior question of the applicability of the United Kingdom statute to the events in India in favour of the defendants.

    51.  Referring to Tomalin v S Pearson & Son Ltd and other cases on the Workmen's Compensation legislation, Barry J pointed out, at p 274, that they had no direct bearing on the construction of the 1939 Act, and continued:

"Were it material to the decision of the present case, I should have felt bound to accede to the submission of counsel for the defendants that the general scheme of the Act of 1939 and the conditions of universal war which existed, or seemed likely to exist, at the time when it was passed, all tend to show that its application is not to be confined to the narrow territorial limits of the United Kingdom. I think that the Act applies to all British subjects who suffer 'war injuries' within the meaning of the definition, in any part of the globe. Counsel for the plaintiff pointed out that this construction of the Act might enable a British subject resident in the United States of America to recover compensation if he were injured by the impact of an American aircraft. If this were so, it would perhaps throw some doubt on the construction that I have indicated; but in my judgment Parliament provided against such absurdities by enabling the Minister to specify in his scheme the classes of persons entitled to benefit under it."

    52.  The defendants were relying on section 3 of the 1939 Act as a defence. But, in considering the territorial scope of the Act - in other words, who were within the legislative grasp of the legislation - the court had regard to its overall purpose of giving people who suffered "war injuries" the right to a pension in lieu of damages. In the same way, when considering the application of the 1998 Act, it is necessary to have regard to its overall nature and purpose.

    53.  In the first place, the burden of the legislation falls on public authorities, rather than on private individuals or companies. Most of the functions of United Kingdom public authorities relate to this country and will therefore be carried out here. Moreover, exercising their functions abroad would often mean that the public authorities were encroaching on the sovereignty of another state. Nevertheless, where a public authority has power to operate outside of the United Kingdom and does so legitimately - for example, with the consent of the other state - in the absence of any indication to the contrary, when construing any relevant legislation, it would only be sensible to treat the public authority, so far as possible, in the same way as when it operates at home.

    54.  The purpose of the 1998 Act is to provide remedies in our domestic law to those whose human rights are violated by a United Kingdom public authority. Making such remedies available for acts of a United Kingdom authority on the territory of another state would not be offensive to the sovereignty of the other state. There is therefore nothing in the wider context of international law which points to the need to confine sections 6 and 7 of the 1998 Act to the territory of the United Kingdom.

    55.  One possible reason for confining their application in that way would, however, be if their scope would otherwise be unlimited and they would, potentially at least, confer rights on people all over the world with little or no real connexion with the United Kingdom. There is, however, no such danger in this case since the 1998 Act has a built-in limitation. By section 7(1) and (7), only those who would be victims for the purposes of article 34 of the Convention in proceedings in the Strasbourg Court can take proceedings under the 1998 Act. Before they could sue, claimants would therefore have to be "within the jurisdiction" of the United Kingdom in terms of article 1 of the Convention. Whatever the precise boundaries of that limitation, it blunts the objection that a narrow construction of the territorial application of the Act is the only way to prevent it having extravagant effects which could never have been intended. The requirement for a claimant to be within the jurisdiction of the United Kingdom is a further assurance that, if the Act were interpreted and applied in that way, the courts in this country would not be interfering with the sovereignty or integrity of another state.

    56.  By this somewhat circuitous route, I arrive at what is surely the crucial argument in favour of the wider interpretation of section 6. The Secretary of State accepts that "the central purpose" of Parliament in enacting sections 6 and 7 was "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, per Lord Hope of Craighead. In other words, claimants were to be able to obtain remedies in United Kingdom courts, rather than having to go to Strasbourg. The Secretary of State also accepts that, while the jurisdiction of states for the purposes of article 1 of the Convention is essentially territorial, in exceptional cases, "acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of article 1 of the convention": Bankovic v Belgium (2001) 11 BHRC 435, 450, para 67. Nevertheless, the Secretary of State says that sections 6 and 7 are to be interpreted in such a way that, in these exceptional cases, a victim is left remediless in the British courts. Contrary to the central policy of the Act, the victim must resort to Strasbourg.

    57.  My Lords, I am unable to accept that submission. It involves reading into sections 6 and 7 a qualification which the words do not contain and which runs counter to the central purpose of the Act. That would be to offend against the most elementary canons of statutory construction which indicate that, in case of doubt, the Act should be read so as to promote, not so as to defeat or impair, its central purpose. If anything, this approach is even more desirable in interpreting human rights legislation. As Lord Brown of Eaton-under-Heywood points out, this interpretation also ensures that, in these exceptional cases, the United Kingdom is not in breach of its article 13 obligation to afford an effective remedy before its courts to anyone whose human rights have been violated within its jurisdiction.

    58.  The speech of Lord Nicholls of Birkenhead in R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2006] 1 AC 529, 546, para 34, provides powerful support for that approach:

"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."

Lord Nicholls confirms that, in interpreting the rights in the Schedule, courts must take account of the territorial scope of the relevant right under the Convention. In the present case, that means having regard to those exceptional situations where article 2 would apply outside the territory of the United Kingdom. In other words, on a fair interpretation, article 2 in the Schedule to the Act must be read as applying wherever the United Kingdom has jurisdiction in terms of article 1 of the Convention. The corollary is that section 6 must also be interpreted as applying in the same circumstances.

    59.  For these reasons, section 6 should be interpreted as applying not only when a public authority acts within the United Kingdom but also when it acts within the jurisdiction of the United Kingdom for purposes of article 1 of the Convention, but outside the territory of the United Kingdom.

    60.  The Secretary of State's cross appeal must therefore be dismissed. I go on to consider whether, on the known facts, the appellants' relatives could have been within the jurisdiction of the United Kingdom when they were killed.

    61.  In the case of the sixth appellant, the deceased, Mr Baha Mousa, was taken to a detention unit in a British military base in Basra where, it is said, he was so brutally beaten by British troops that he died of his injuries. The Secretary of State accepts that, since the events occurred in the British detention unit, Mr Mousa met his death "within the jurisdiction" of the United Kingdom for purposes of article 1 of the Convention. In these circumstances the parties are agreed that, because of certain factual developments since the decision of the Court of Appeal, the sixth appellant's case should be remitted to the Divisional Court.