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)
81. The second issue in the appeal is whether the Court of Appeal was correct to conclude that the instruction was incapable of giving rise to a claim of damages under section 7 of the Human Rights Act 1998. It assumes, as Mr Vaughan put it when he was presenting his oral argument, that this is a domestic case which raises the question whether the United Kingdom is answerable under the European Convention on Human Rights before the European Court in Strasbourg for acts done in the United Kingdom which have effects in a territory for whose external relations the United Kingdom is responsible. He conceded that if the first issue was decided against it Quark could not on any view succeed in its claim for a remedy under the Human Rights Act, although he said that this would not prevent it from seeking a remedy in Strasbourg.
82. Notwithstanding Mr Vaughan's concession it is, I think, necessary to explain more fully why a decision against Quark on the first issue deprives it of the possibility of a remedy under the Human Rights Act 1998. The point was fully argued on both sides, and it is a point of some general interest and importance.
83. The Court of Appeal approached this issue on three assumptions: first, that the instruction was given in right of the United Kingdom, secondly, that it is arguable that there has been a breach of article 1 of the First Protocol and, thirdly, that the instruction has affected property rights in a British Overseas Territory to which the First Protocol has not been extended under article 4 of the Protocol:  QB 93, per Pill LJ at p 113, para 52. The first of these assumptions is no longer tenable in view of the answer that is to be given by the majority of your Lordships on the first issue. But the second and third assumptions remain. Their importance is demonstrated by the Court of Appeal's finding that the fact that the First Protocol has not been extended to SGSSI was fatal to Quark's claim: per Pill LJ at p 114, para 56.
84. Mr Vaughan said that it was sufficient for Quark to succeed in Strasbourg that there was a decision taken or act done in the United Kingdom whose external effects were in violation of its right under article 1 of the First Protocol, and that this in its turn was sufficient for it to succeed in its claim under the Human Rights Act 1998 for a domestic remedy. He submitted that it was not essential to his case that he should be able to show that the Secretary of State was acting in right of the United Kingdom when he was giving the instruction on behalf of Her Majesty. While his primary case was that the Secretary of State was acting throughout in his capacity as a member of the United Kingdom government, the matter did not end there. He said that Quark could still maintain that the Secretary of State was acting to protect the interests of the United Kingdom rather than those of SGSSI and that, as a Secretary of State as part of the government of the United Kingdom is a public authority, he has acted here in a way that is made unlawful by section 6(1) of the 1998 Act.
85. Section 6(3) of the 1998 Act does not attempt to provide an exhaustive definition of what is meant by the expression "public authority". It proceeds on the basis that there are certain bodies that so obviously have the character of a public authority that it is not necessary to mention them. These are bodies which, because of the governmental functions that they perform, are public authorities through and through and are, as it is sometimes put, "core" public authorities: see Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank  1 AC 546, paras 6-7, 34-35. It is plain that a Secretary of State, when performing the functions of his office, is a core public authority. Mr Vaughan's alternative approach to Quark's claim is based on the assertion that the Secretary of State was acting in the United Kingdom's interests when he was giving the instruction. I am far from being persuaded that this is a correct way of describing what he was doing under section 5(1) of the 1985 Order. But it is difficult to separate out completely the functions that he performs for Her Majesty under the constitution of SGSSI, whose government is a subordinate one, from those that he performs as Secretary of State for Foreign and Commonwealth Affairs in the government of the United Kingdom to which it is subordinate. I am content to examine this issue on the assumption that we are dealing here with an act which was done by him, in part at least, in the United Kingdom in his capacity as a public authority.
86. The critical question then is whether Quark can show that the act of which it complains was incompatible with any of its Convention rights. The only Convention right that is in issue is the right to the protection of property under article 1 of the First Protocol. So the question comes to be whether Quark can show that the right under article 1 of the First Protocol is one of the Convention rights within the meaning of section 6 of the 1998 Act. This depends upon the proper interpretation of the 1998 Act, as Lord Nicholls of Birkenhead said in In re McKerr  1 WLR 807, para 25.
87. Section 1(1) of the 1998 Act provides that the expression "the Convention rights" means the rights and fundamental freedoms set out in, among other articles, articles 1 to 3 of the First Protocol. But section 7(1) provides that a person may claim that a person has acted in a way that is made unlawful by section 6(1) only if he is (or would be) a victim of the unlawful act, and section 7(7) provides that, for the purposes of that section, 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 right. These provisions must be read in conjunction with the definition of the words "the Convention" in section 21(1), which is in these terms:
The words "as it has effect for the time being in relation to the United Kingdom" do not appear in the definition of the words "the First Protocol". But article 4 of the First Protocol provides that a declaration made in accordance with that article shall be deemed to have been made in accordance with article 56(1) of the Convention, and article 5 provides that the provisions of articles 1, 2 and 3 and 4 shall be regarded as additional articles of the Convention and that all the provisions of the Convention shall apply accordingly. The qualification that is added to the definition of "the Convention" applies, by implication, equally to the definition of the First Protocol.
88. These provisions show that a person cannot claim that an act of a public authority is made unlawful by section 6 of the 1998 Act unless the Convention right is one for which the United Kingdom would be answerable in Strasbourg. Article 1 of the Convention provides that the High Contracting Parties shall secure to everyone "within their jurisdiction" the rights and freedoms defined in section 1 of the Convention. Article 56 of the Convention provides that any State may declare by notification addressed to the Council of Europe's Secretary General that it is to extend to all or any of the territories for whose international relations it is responsible. A separate notification is needed under article 4 of the First Protocol to extend the provisions of the Protocol to those territories. The Convention was extended to the Falkland Islands and its dependencies on 23 October 1953. But the First Protocol was not extended to them. So SGSSI is not one of the territories for which the United Kingdom is answerable in Strasbourg for a breach of article 1 of the First Protocol. Quark could not claim in Strasbourg that, because of the effects of the Secretary of State's act on its property rights in SGSSI, it was a victim of a breach of that article. It follows that it cannot claim in domestic law that it was the victim of an act of a public authority made unlawful by section 6(1) of the 1998 Act.
89. Mr Vaughan then said that it would be enough for him in Strasbourg to show that an act was done in the United Kingdom which had external effects in a way that violated article 1 of the First Protocol. It is indeed the case that the jurisdiction of the European Court is not limited to the national territory of the High Contracting Parties. In Drozd and Janousek v France and Spain (1992) 14 EHRR 745, para 91, the Court said that their responsibility can be involved because of acts of their authorities producing effects outside their own territory. But in Bankovic v Belgium (2001) 11 BHRC 435, para 80, the Court made it clear that, subject to article 56, the Convention was essentially territorial in its application and that it was not designed to be applied throughout the world, even in respect of the conduct of contracting states. Its jurisprudence shows that the scope of the obligations under the Convention of a contracting state in relation to a territory for whose international relations it is responsible has always depended on notification under article 56 or, as the case may be, under article 4 of the First Protocol.
90. In X v Belgium (1961) 4 YB 260, the applicants complained of actions taken by the Belgian Government which affected their assets in the Belgian Congo. The Commission said at p 268 that the specific object of article 63 (now article 56) of the Convention and article 4 of the First Protocol was to lay down for everyone the territorial field of application of the two instruments, and that this part of the complaint did not come within the competence of the Commission ratione loci. In Gillow v United Kingdom (1986) 11 EHRR 335 the applicants who owned a house in Guernsey were refused permission to occupy it under a law which restricted the right of residence there so they claimed that there had been a violation of their rights under article 1 of the First Protocol. The island of Guernsey is a territory for the international relations of which the United Kingdom is responsible, but no declaration had been made under article 4 extending to it the provisions of the First Protocol. The Court said in para 62 that it had concluded that it had no jurisdiction to entertain the complaints. In Bui van Thanh v United Kingdom (Application No 16137/90) (unreported), 12 March 1990, in which Vietnamese "boat people" complained that their removal from Hong Kong to Vietnam would be a violation by the United Kingdom in Hong Kong of their Convention rights, the Commission declared:
91. A declaration in similar terms is to be found in the Court's decision in Yonghong v Portugal, Reports of Judgments and Decisions 1999 - IX, pp 385, 392, where the issue was whether the applicant's extradition from Macao to China was a violation by Portugal in Macao of his Convention rights. Its decision in Soering v United Kingdom (1989) 11 EHRR 439 is not incompatible with the territorial principle that this line of authority demonstrates, as the applicant was still in the territory of the contracting state and his complaint was of what might happen to him if he was removed by the contracting state from its own territory. On these authorities the conclusion that I would reach is that this alternative argument would not succeed in Strasbourg.
92. It is plain from the definition of "the Convention" in section 21(1) of the 1998 Act, which limits the scope of that expression to the Convention as it has effect for the time being in relation to the United Kingdom, that the scope of the liability of public authorities for acts made unlawful by section 6(1) having effects in a territory for whose international relations the United Kingdom is responsible depends on notification under article 56 of the Convention and article 4 of the First Protocol. It is not the purpose of the 1998 Act to impose liability on a public authority where the complaint would not be within the jurisdiction of the European Court in Strasbourg. Despite Mr Vaughan's persuasive submissions to the contrary, I see no escape from the conclusion that, even if he had succeeded on the first issue, it would not have been open to Quark to claim that it was the victim of an act that was made unlawful by section 6(1) of the 1998 Act.
93. For these reasons, and for those given by my noble and learned friend Lord Nicholls of Birkenhead in his discussion of this issue with which I am in full agreement, I would hold the instruction of 7 June 2001 is incapable of giving rise to a claim of damages under section 7 of the Human Rights Act 1998. I would dismiss Quark's cross-appeal.
BARONESS HALE OF RICHMOND
94. There is an air of complete unreality about this case. A British career diplomat, for the time being Governor of the Falklands Islands and Commissioner for South Georgia and the South Sandwich Islands, would be minded to grant a licence to a company registered in the Falkland Islands to continue to fish for Patagonian toothfish in the territorial waters of South Georgia and the South Sandwich Islands. He knows that there was local discontent when the Islands ceased to be a Falkland Islands dependency following the 1982 war to regain the Falkland Islands from Argentina. He wishes to take into account the company's loyalty to the fishery as well as local sensitivities in granting the company a licence to fish. But he is instructed by the Foreign and Commonwealth Office in London not to grant the licence. The Foreign Office is relying instead on more strategic concerns for the management of fish stocks in the region and the maintenance of good relations with the other States which have interests there. South Georgia and the South Sandwich Islands have no permanent inhabitants other than the wildlife. They would probably not need a government at all were it not for the valuable fishing rights which surround them. Their government consists of the Commissioner and the Director of Fisheries, both of whom have other jobs in the Falklands Islands, and will no doubt go on to other jobs for the Foreign and Commonwealth Office in years to come. The Secretary of State who advises Her Majesty on the exercise of her powers in relation to the Islands is the Secretary of State for Foreign and Commonwealth Affairs in the government of the United Kingdom. The legality of his actions can be challenged in the courts of the United Kingdom. To the extent that he is in any way democratically accountable for the instructions which he advises Her Majesty to give to the Commissioner, it is to the Parliament of the United Kingdom.
95. In those circumstances, to maintain the strict separation between Her Majesty as Queen of the United Kingdom of Great Britain and Northern Ireland and Her Majesty as Queen of South Georgia and the South Sandwich Islands does indeed, as the Court of Appeal said, look like the "abject surrender of substance to form". I recognise that imperial law has had to draw that distinction, at least since the colonies began to attain full independence in the latter half of the 19th century. But, despite what was said by Kerr LJ in R v Secretary of State for Foreign and Commonwealth Affairs, Ex p Indian Association of Alberta  QB 892, 927, the distinction may have less validity in the case of territories which are in reality governed by and from the United Kingdom. The few modern authorities relied upon by the Secretary of State could be distinguished. The passport granted by the Governor of Mauritius in R v Secretary of State for the Home Department, Ex p Bhurosah  1 QB 266 clearly did not fall within the definition of a United Kingdom passport in section 1(3) of the Commonwealth Immigrants Act 1962. The act complained of in Tito v Waddell (No 2)  Ch 106 was the act of the local official, whereas the act complained of here is the act of the Secretary of State. While I see the force of the imperial constitutional argument, therefore, I would prefer to decide this case on the basis of whether the Human Rights Act 1998 affords a remedy on these facts.
96. The fact that our courts were able to strike down the Secretary of State's instruction as wrong in law is not enough. Our law does not recognise a right to claim damages for losses caused by unlawful administrative action (although compensation may sometimes be available to the victims of maladministration). There has to be a distinct cause of action in tort or under the Human Rights Act 1998. No-one suggests that there is an action in tort here. The question is whether a claim for damages may be made under the Human Rights Act 1998. Under section 6(1) of that Act it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Under section 8(1) of the Act the court may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate in relation to any act of a public authority which the court finds unlawful. There is, for the reasons already given, a respectable argument that the Secretary of State for Foreign and Commonwealth Affairs, when advising Her Majesty on the conduct of government in South Georgia, is not a public authority within the meaning of the 1998 Act.
97. But there is an even stronger argument that the Convention rights covered by section 6(1) do not include the rights which Quark are claiming here. By section 1 of the 1998 Act, the Convention rights mean the rights and fundamental freedoms set out in the listed articles of the Convention and its First and Sixth Protocols. But by section 21(1) "the Convention" means the "Convention for the Protection of Human Rights and Fundamental Freedoms . . . as it has effect for the time being in relation to the United Kingdom". The Convention itself, in article 56 and in article 4 of the First Protocol, contemplates that Member States will have a choice about extending the effect of the Convention to territories which are not part of the territory of the Member State but for whose foreign relations the Member State is responsible. The United Kingdom extended the Convention to the Falkland Islands and its dependencies but neglected to extend the First Protocol to them. We have no idea whether this was deliberate or an oversight. But the fact remains that the First Protocol does not have "effect in relation to the United Kingdom" in respect of the deprivation of possessions in South Georgia and the South Sandwich Islands. The choice permitted to Member States by article 4 of the First Protocol would be meaningless if it did.
98. For that reason alone, I would hold that Quark do not have a right to claim damages under the 1998 Act in this case. We are told that if they lose in the courts of the United Kingdom, they plan to apply to the European Court of Human Rights. I have a great deal of sympathy for Quark and the way in which they have been treated. But I find it difficult to understand how they can succeed there in vindicating a right which has not been extended to the territory in which the right (if right there be) has been violated. I would prefer to leave open what the position might be if the violated right were one which had been extended to South Georgia and the South Sandwich Islands, such as the right not to be tortured or deprived of one's liberty save in accordance with article 5. The domestic law of South Georgia and the South Sandwich Islands would supply a remedy for breaches of the Convention rights which are also breaches of the common law (and perhaps the revenue from fishing licences would be enough to pay the damages). There would also be a remedy in Strasbourg should that domestic law be insufficient to protect those Convention rights. But both of these might be hollow victories. If the real culprit were to be the government of the United Kingdom, I would prefer to keep an open mind about whether there might also be a real remedy here.