Quark Fishing Ltd, R (on the application of) v Secretary of State for the Foreign & Commonwealth Affairs

This is an appeal from a decision of Collins J dated 22 July 2003 striking out a claim for damages under the Human Rights Act 1998 (“the 1998 Act”) by Quark Fishing Ltd (“the Appellants”) against the Secretary of State for Foreign and Commonwealth Affairs (“the Respondent”). The claim was made following a successful application by the Appellants before Scott Baker J for judicial review of a direction of the Respondent given on 7 June 2001 the effect of which was that the Appellants could not obtain a fishing licence, with respect to M V Jacqueline, for the 2001 Season. The direction was quashed by the Court.

The licence sought would have permitted fishing for Patagonian toothfish in the waters of South Georgia and the South Sandwich Islands, referred to collectively in this judgment as South Georgia or, where so described in documents quoted, as SGSSI, in the South Atlantic. Such licences are issued by the Director of Fisheries for South Georgia and are valuable assets. A licence for 400 tonnes would, if fully used, produce a cargo worth about £2.5m. Licences had been granted to the Appellants for the ship in preceding seasons and again in 2002.

The claim for damages is based on an alleged breach of Article 1 of the First Protocol to the European Convention on Human Rights (“the Convention”):

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The refusal of the licence is claimed to be a deprival of possession within the meaning of Article 1. By virtue of Section 1(1)(b) of the Human Rights Act 1998 (“the 1998 Act”), the right in the Article is a Convention right failure to respect which by a public authority may give rise to a claim for damages under Sections 7 and 8 of the 1998 Act.

The basis of the decision of Scott Baker J, which was affirmed by the Court of Appeal on 30 October 2002, was (paragraph 98) that there was “manifest unfairness in the process following the intervention of the Foreign and Commonwealth Office that led to the Jacqueline not being granted a licence”. The Respondent directed the Commissioner for South Georgia, who in turn directed the Director of Fisheries for that territory, not to grant the licence sought. Giving the leading judgment in the Court of Appeal, Laws LJ stated (paragraph 60) that the Respondent had shown no rational basis for disregarding a legitimate expectation that loyalty to the fishery would be taken into account, at least between the four British registered vessels, when allocating licences. Further (paragraph 61), the Respondent had failed to establish that the decisions he had reached were solidly and soundly based on clear objective facts. The Respondent’s instruction of 7 June 2001, (“the June instruction”) described by Scott Baker J as a direction, was unlawful and was quashed.

South Georgia is a British Overseas Territory, as defined in the British Overseas Territories Act 2002. It was formerly a dependency of the Falkland Islands (also a British Overseas Territory) under Letters Patent dated 21 July 1908 and 28 March 1917. The territory was acquired by settlement, rather than by cession or by conquest, and its government was established under the provisions of the British Settlements Act 1887 and 1945 which extended to settled colonies the Crown’s power to establish laws and institutions and to make provision for the peace, order and good government of Her Majesty’s subjects and others within the settlement. The Appellants are a Falkland Islands registered company and M V Jacqueline operates under the Falkland Islands’ flag.

The South Georgia and South Sandwich Islands Order 1985 (1985 No 449) (“the 1985 Order”) made in exercise of powers under the Acts of 1887 and 1945 made provision for the future administration of South Georgia. The territory became a separate Overseas Territory. The Order, as amended by the South Georgia and South Sandwich Islands (Amendment) Order 1995 (1995 No. 1621), provided that there shall be a Commissioner for the Territories who shall be appointed by Her Majesty and hold office during Her Majesty’s pleasure (Section 4 of the 1985 Order, as replaced in terms provided by the 1995 Order).

Section 3 of the 1985 Order defines the islands and territories coming within its scope. Section 5 provides:

“(1)

The Commissioner shall have such powers and duties as are conferred or imposed upon him by or under this Order or any other law and such other powers and duties as Her Majesty may from time to time be pleased to assign to him and, subject to the provisions of this Order and of any other law by which any such powers or duties are conferred or imposed, shall do and execute all things that belong to his office according to such instructions, if any, as Her Majesty may from time to time see fit to give him through a Secretary of State

(2)

The Commissioner shall consult with the Officer for the time being commanding Her Majesty’s Forces in the South Atlantic (hereinafter referred to as “the Force Commander”) before exercising any function which appears to the Commissioner to relate to defence or internal security (with the exception of the police) and shall act in accordance with the advice which the Forces Commander then tenders to him; and he shall likewise act in accordance with the advice of the Forces Commander on any matter on which the latter considers it necessary in the interests of defence or internal security (with the exception of the police) to give advice to the Commissioner:

Provided that the question whether the Commissioner has on any matter consulted with the Forces Commander or acted in accordance with his advice shall not be enquired into in any court of law.”

Section 7 provides:

“The Commissioner, in the name and on behalf of Her Majesty, may constitute such offices for the Territories as may lawfully be constituted by Her Majesty and, subject to the provisions of any law for the time being in force in the Territories and to such instructions as may from time to time be given to him by Her Majesty through a Secretary of State, the Commissioner may likewise –

a)

Make appointments, to be held during her Majesty’s pleasure to any office so constituted; and

b)

Dismiss any person so appointed or take such other disciplinary action in relation to him as the Commissioner may think fit.

Section 9 provides, insofar as is material:

“(1)

The Commissioner may make laws for the peace, order and good government of the Territories.

(2)

Subject to the provisions of any instructions from time to time give by Her Majesty through a Secretary of State, the Commissioner shall in the making of laws observe, so far as practicable, the rules set out in the Annex to this Order.”

The Annexe provides rules for the enactments of laws.

Section 12 keeps in force the laws in force immediately before the commencement of the Order with “such adaptations, modifications and exceptions as are necessary to bring them into conformity with the provisions of this Order” and Section 13 empowers the Commissioner “by a law made under Section 9 of this Order, [to] establish a Supreme Court and such other courts of justice (including a Court of Appeal) for the Territories as he may think fit …”

Section 14 provides:

“Subject to any law for the time being in force in the Territories and to any instructions from time to time given to the Commissioner by Her Majesty through a Secretary of State, the Commissioner, in Her Majesty’s name and on Her Majesty’s behalf, may make and execute grants and dispositions of any lands or other immovable property within the Territories that may be lawfully granted or disposed of by Her Majesty.”

Section 15 provides:

“There is reserved to Her Majesty full power to make laws from time to time for the peace, order and good government of the Territories including, without prejudice to the generality of the foregoing, laws amending or revoking this Order.”

By virtue of Section 2 of the Interpretation and General Clauses (Amendment) Ordinance 1978, the existing laws of South Georgia include the common law of England, save insofar as it is inconsistent with any express provisions of South Georgian law.

At paragraph 4 of her statement, Ms H J Mulvein, Senior Assistant Legal Adviser at the Foreign and Commonwealth Office (“FCO”), states:

“Her Majesty’s Government in the United Kingdom is internationally responsible for the external affairs of the BOTs [British Overseas Territories]. This means, inter alia, that HMG is entitled to speak on behalf of the BOTs at international fora, British Embassies abroad are entitled to protect the interests of BOTs and their inhabitants, HMG is responsible internationally for ensuring compliance by the BOTs with treaties and other international obligations which apply to them, and except where a specific delegation, known as an “entrustment”, has been given to a BOT, it is HMG which negotiates treaties on their behalf.”

The United Kingdom Parliament retains ultimate authority to legislate for British Overseas Territories (Madzimbamuto v Lardner-Burke & George [1969] 1 AC 645 at 722). Giving the judgment of the majority Lord Reid stated that: “It has never been doubted that, when a colony is acquired or annexed, following on conquest or settlement, the Sovereignty of the United Kingdom Parliament extends to that colony, and its powers over that colony are the same as its powers in the United Kingdom”.

The United Kingdom is responsible for the external relations of its Overseas Territories which means that, as a matter of international law, the United Kingdom has the responsibility for ensuring compliance by the Territory with those international obligations which apply to it. On occasions, Territories have been given delegated authority from the United Kingdom in the form of an “entrustment” to negotiate and conclude agreements with other states on its own behalf.

For this, and other reasons, British Overseas Territories have a separate legal identity. The powers granted by their constitutions have for many years varied and they continue to vary. In some territories, the local arrangements for government will be sophisticated; in others rudimentary. We are told that twelve people live on South Georgia, most of them research scientists.

On 23 October 1953 the United Kingdom extended the Convention to the Falkland Islands and its dependencies, which included South Georgia at that time, by notification under Article 63 (now Article 56) of the Convention which empowers a party to the Convention to “declare by notification addressed to the Secretary General of the Council of Europe that the present Convention shall extend to all or any of the territories for whose international relations it is responsible. ” The right of individual petition was granted on 21 September 1967. The First Protocol, which includes in Article 1 the right relied on by the Appellants, has a similar provision as to extension in its Article 4. The Protocol has not been extended to either Territory. No explanation for this has been offered. There is no equivalent in South Georgia of the 1998 Act or any provision similar to it.

In performance of his powers, the acting Commissioner for South Georgia enacted in June 2000 the Fisheries (Conservation and Management) Ordinance 2000 (No.2 of 2000). Clause 4 of the Ordinance required the Commissioner to appoint a person to be Director of Fisheries who shall administer the Ordinance and be responsible, amongst other things, for the conservation of fish stocks, the development and management of fisheries, the regulation of the conduct of fishing and “the issue, variation, suspension and revocation of licences for fishing and fishing related operations”. By virtue of Clause 3, the fishing waters of South Georgia comprise the internal waters, the territorial sea and the Maritime Zone, which is a zone of substantial area established by and defined in a Proclamation of the Commissioner dated 7 May 1993 (Proclamation No.1 of 1993). Save as to prosecutions, the Director of Fisheries in the performance of his duties under the Ordinance “shall be subject to the direction of the Commissioner” (Clause 4(2)).

On 14 March 2001 the Director of Fisheries refused the Appellants’ application under the Ordinance, with respect to M V Jacqueline, to fish for Patagonian toothfish during the 2001 season, the season lasting from 1 May to 31 August. The Appellants sought judicial review of that decision. The application was heard by the Chief Justice of South Georgia, Wood CJ, who quashed the Director’s decision on 1 June 2001. On 7 June 2001, the Respondent issued the June instruction to the Commissioner. There were 13 recitals to the instruction, several of them including several sub-clauses. Recital 2 provides:

“Whereas at the Nineteenth meeting of the Commission for the Conservation of Antarctic Marine Living Resources (“CCAMLR”) the Total Allowable Catch (“TAC”) for toothfish in United Nations Food and Agriculture Organisation sub-area 48.3 was set by Conservation Measure 196/XIX at 4,500 tonnes for the 2001 fishing season (“the Fishing Season”)”.

Other recitals set out in detail the procedure followed including the fact that the Secretary of State has regard “in particular to the need to maintain the efficient and effective operation of CCAMLR”. The decision of the Supreme Court of South Georgia is recited. The operative paragraph provides:

“Accordingly, in the exercise of my powers under section 5(1) of the South Georgia and South Sandwich Islands Order 1985, on behalf of Her Majesty, I hereby instruct the Commissioner, in the exercise of his powers under section 4(2) of the 2000 Ordinance, to direct the Director not to grant a licence to fish for toothfish during the Fishing Season to any UK or UK Overseas Territories flagged vessels other than the Argos Georgia and the Argos Helena.”

The Chief Justice had ruled on the basis that the Director was free to exercise his powers under the Ordinance. The Chief Justice went on to consider what the position would have been if “the Director was lawfully directed, ultimately by the Secretary of State, as to the issue of his decision, whether or not that direction would be open to examination by the Court”. His conclusion was:

“My view is that it would not. The role of the Commissioner, and indeed the Director of Fisheries, is a dual one. Both are members of the Diplomatic Service of the Foreign and Commonwealth Office, and indeed both occupy other roles unrelated to SGSSI. Quite separately from that however, the posts of Commissioner for SGSSI and the Director of Fisheries for that territory are quite distinct statutory roles created under the legislation set out above. Whilst the Government of SGSSI has its officers – namely the Commissioner and those appointed by him – it does not of course have any separate elected or external political control save for that derived under the legislation of the United Kingdom. In effect, Her Majesty the Queen acting through the Secretary of State for Foreign and Commonwealth Affairs of the Government of the United Kingdom has the ultimate control by power to direct (and indeed, in some circumstances, even to disallow legislation made by) the Commissioner. That such right exists at all is beyond challenge. The manner in which it is exercised however may well be open to scrutiny, but though the individual directed is an officer of the Government of South Georgia and the South Sandwich Islands, the direction emanates from the Secretary of State in London. It is my view that if such direction is open to scrutiny, then this must be a matter for the Courts of England and Wales. It is not for me to decide whether or not the Courts there have such jurisdiction but I am firmly of the view that the Court here does not.”

In his decision of 8 June 2001, the Commissioner stated that he had “received formal instructions dated 7 June 2001 from the Secretary of State for Foreign and Commonwealth Affairs in relation to the allocation of a licence to M V Jacqueline”. He stated:

“2.

Pursuant to section 5(1) of the South Georgia and South Sandwich Islands Order 1985, I am bound to act in accordance with the formal instructions issued by the Secretary of State. In accordance with the formal instructions issued to me on 7 June 2001 I hereby formally direct you pursuant to section 4(2) of the Fisheries (Conservation and Management) Ordinance 2000 (“the 2000 Ordinance) not to grant a licence pursuant to your powers under the 2000 Ordinance to any UK or UK Overseas Territories flagged vessels other than the Argos Georgia and the Argos Helena to fish for toothfish during the 2001 fishing season (as set under the Convention for the Conservation of Antarctic Marine Resources Conservation Measure 196/XIX).”

The statement, prepared for the judicial review proceedings, of Dr M G Richardson, head of the Polar Regions Section in the Overseas Territories Department of the FCO, considered in detail the diplomatic considerations involved in the allocation of licences in CCAMLR sub-area 48.3, which includes South Georgia. He stated (paragraph 74) that “the maintenance and smooth operation of the Antarctic Treaty System, including CCAMLR, is an important British foreign policy objective, as is the security and prosperity of the UK’s Overseas Territories in the region including [South Georgia].” Negotiations with Commission members “take place against a background of actual and potential disputes concerning Sovereignty outside the Antarctic Treaty area but nevertheless within the area regulated by CCAMLR that give such dealings a considerable degree of diplomatic sensitivity. … HMG is acutely aware of this sensitivity.”

Similar remarks had been made by Dr Richardson in his statement for the proceedings in South Georgia. Having referred to diplomatic sensitivity he added:

“HMG is acutely aware of this sensitivity and, since it is responsible for the conduct of foreign affairs in relation to its Overseas Territories, takes such matters into account when considering, for example, the allocation of licences by the Government of SGSSI to fish for Toothfish within the Maritime Zone. Were the UK or its Territories to act in a way perceived to be inequitable by certain CCAMLR Member States, this could undermine the UK’s ability to achieve a favourable consensus within CCAMLR on issues such as the setting of the TAC for sub-area 48.3. Undoubtedly, any sense of grievance amongst the UK’s CCAMLR partners could well be exploited by Argentina, both with a view to frustrating the immediate objectives of the UK within CCAMLR and also to advancing its wider contentions on sovereignty. Any disharmony of this nature could severely disrupt the proper operation of CCAMLR and, eventually, lead to the collapse of the cooperative system”

Dr Richardson concluded:

“HMG firmly believes that it is in the interests of the UK and its Overseas Territories that, in the allocation of licences, the expectations of other CCAMLR States are reasonably met and any such allocation can be defended as equitable. This assists the UK in its dealings with certain CCAMLR Member States”.

Thus there was a strong political and diplomatic motive for the intervention and instruction of the Respondent. As to the exercise of the Respondent’s powers, Dr Richardson stated, at paragraph 49:

“HMG is internationally responsible for all UK Overseas Territories including SGSSI. It is the UK, and not the Government of SGSSI, which is a signatory to CCAMLR. It is, therefore, HMG, through the Secretary of State for Foreign and Commonwealth Affairs and the Foreign and Commonwealth Office, which takes decisions in relation to international dealings which may affect SGSSI. This includes not only the conclusion and implementation of treaties but dealings with other states more generally. The Commissioner for SGSSI is, therefore dependent upon direction from HMG as to how to deal with SGSSI matters which may have an impact upon the dealings between the UK, including SGSSI, and other states.”

That motivation was recognised in this Court in the judicial review proceedings. Laws LJ stated, at paragraph 57: “The limitation of the number of licences to be issued to British-registered vessels to two, against the Director’s recommendation of four, was arrived at as a matter of judgment in the field of foreign policy”. Laws LJ regarded foreign policy issues as “an area of government decision-making”. Laws LJ also referred, at paragraph 60, to the requirement that the number of British-registered vessels to be licensed should be cut to two as “the foreign policy dimension”.

For the Appellants, Mr Vaughan QC submits first that the unlawful instruction, the June instruction, was an act taken in right of the United Kingdom. As such, it was an act of a public authority within the meaning of section 6 of the 1998 Act. It infringed the First Protocol to the Convention; it was a violation of the 1998 Act in the United Kingdom. Secondly, the fact that the Appellants are resident outside the United Kingdom does not exclude them from relief under the Act and it does not matter where the loss occurs. South Georgia is part of what Mr Vaughan describes as the espace juridique of the Convention. The Protocol applies because the instruction was given in right of the United Kingdom Government.

Mr Vaughan accepts that, since the 1998 Act is not part of the law of South Georgia, reliance could not be placed upon the Convention, including the First Protocol, in a court there. South Georgia has no indigenous human rights law and the First Protocol has not been extended to South Georgia. It is accepted that if property rights, which in the United Kingdom would be protected by Article 1 of the First Protocol, were taken away by the Government of South Georgia, that would not give rise to a claim in South Georgia or in an English Court or in the European Court of Human Rights.

What transforms the situation in this case, it is submitted, is the intervention of the United Kingdom Secretary of State as a public authority under section 6 of the Act. That is the critical factor. The public authority is within the jurisdiction where the First Protocol applies. The fact that it does not apply in South Georgia, where the victim resides, is irrelevant; the damage is caused by an act, the instruction, in the United Kingdom.

For the Respondent, Mr Crow submits that the June instruction was given pursuant to section 5(1) of the 1985 Order by Her Majesty the Queen, as Queen of South Georgia, acting through the Respondent, a Secretary of State identified in section 5(1) of the Order. In giving the instruction, the Respondent was acting as conduit of the instruction of Her Majesty the Queen as Queen of South Georgia. Mr Crow submits that the divisibility of the Crown is a fundamental principle of Commonwealth constitutional law and it follows that the Respondent was, in giving his instruction, acting in right of South Georgia. The June instruction was not an act of the government of the United Kingdom. Emphasis is placed on the different capacities in which the Crown acts in relation to different parts of the Commonwealth. The reasons or motivation for the instruction are, it is submitted, irrelevant to the legal capacity in which it was given. Secondly, and in any event, because the First Protocol has not been extended to South Georgia, the Appellants have no Convention rights capable of being infringed for the purposes of section 7 of the 1998 Act and there is no basis for a claim to damages under the Act.

The judge found in favour of the Respondent on both points. Dealing with the first point, he stated, at paragraph 29:

“There can be no question but that when acting in relation to SGSSI the Queen is acting as Queen of SGSSI. The Commissioner has full powers to make laws and to set up courts. He is subject to control by Her Majesty acting through the defendant, but in so acting the defendant will be representing Her Majesty in her capacity as Queen of SGSSI.”

At paragraph 34, the judge held that “there is no question but that in acting pursuant to the 1985 Ordinance, the [Respondent] was acting on behalf of the Crown in right of government of SGSSI.” As to the second point the judge held, at paragraph 21, that “unless there is a specific extension to another territory for whose international relations a Contracting State is responsible, actions affecting individuals in that territory will not be subject to the Convention.” There is no “unlawful act” capable of giving rise to a claim under section 7 of the 1998 Act by a “victim of the unlawful act”.

The Respondent sought to strike out the action on two other grounds. The first was that, even if the Appellants potentially had a claim based on sections 6 and 7 of the 1998 Act and Article 1 of the First Protocol, there was no claim on the facts because they had no relevant “possessions” within the meaning of Article 1 of the First Protocol. The second ground was that the proceedings had not been brought before the end of the period of one year beginning with the date on which the act complained of took place, as required by section 7(5)(a) of the 1998 Act. The judge declined to strike out on either of those grounds. By a respondent’s notice, the Respondent seeks to rely on them in this Court.

The first point

The Authorities

In support of the submission that the Respondent was acting in right of South Georgia, Mr Crow relies on the decision of this court in R v Secretary of State for Home Department and Others ex parte Bhurosah [1968] 1 QB 266. Citizens of Mauritius, then a dependent British Colony having its own internal government, claimed entry to the United Kingdom on the basis of passports issued at the passport office in Mauritius, the request for the laissez passer being by the Governor of Mauritius “in the name of Her Majesty”. All the pages of the passports were watermarked “United Kingdom of Great Britain and Northern Ireland” but this was dismissed as a copying error. It was held in this court that the passports were not United Kingdom passports. Lord Denning MR stated, at page 284:

“A passport is issued by virtue of the Royal prerogative. When it is issued in Mauritius it is issued by the Government of Mauritius on behalf of the Queen. We have looked at the ordinance which sets up the Government of Mauritius. It is set up by virtue of the Royal prerogative. It makes provision for the appointment of the legislative council, the judges and all the structure of government.

In Mauritius the Queen is the Queen of Mauritius. The government there is the Queen’s Government of Mauritius. When a passport is issued in Mauritius it is issued by the Government of Mauritius; it is not issued by the Government of the United Kingdom. In my opinion, therefore, these gentlemen do not hold United Kingdom passports within the meaning in the Commonwealth Immigrants Act.

Danckwerts LJ stated, at page 285:

“It is clear that these persons’ passports were not issued by the Government of the United Kingdom; they were issued in Mauritius by the Governor of Mauritius in the name of Her Majesty the Queen, as clearly appears from the words inside the cover of the passports. This was an exercise of the Royal prerogative; it was not in any way an executive act of the British Government.”

Reliance is also placed on R v Secretary of State for Foreign and Commonwealth Affairs ex parte Indian Association of Alberta & Others [1982] QB 892, where Bhurosah is cited. The British North America Act 1867 gave the Canadian Dominion Parliament the sole right to legislate for Indians and the lands reserved to them in Canada. After 1867, treaties between the Crown and the Indian peoples across Canada recognised the Indian peoples’ rights of enjoyment of the land reserved to them under the dominion of the Crown. In 1981, the Indian Association of Alberta sought a declaration that treaty obligations entered into by the Crown to the Indian peoples of Canada were still owed by Her Majesty in right of her government in the United Kingdom.

Lord Denning MR stated, at page 917, that the Crown was “separate and divisible for each self-governing dominion or province or territory”. Having referred to constitutional usage and practice during the first half of the twentieth century, Lord Denning stated:

“As a result of this important constitutional change, I am of the opinion that those obligations which were previously binding on the Crown simpliciter are now to be treated as divided. They are to be applied to the Dominion or Province or territory to which they relate: and confined to it.”

Obligations to which the Crown had bound itself are “now to be confined to the territories to which they related and binding only on the Crown in respect of those territories….. None of them is any longer binding on the Crown in respect of the United Kingdom”.

May LJ stated, at page 928 :

“Further the Crown is a constitutional monarchy and thus when one speaks today …… of the Crown “in right of Canada”, or of some other territory within the Commonwealth, this is only a short way of referring to the Crown acting through and on the advice of her Ministers in Canada or in that other territory within the Commonwealth”.

Kerr LJ stated, at page 922, that “in effect the situs of obligations on the part of the Crown is to be found only in that territory within the realm of the Crown where such obligations can be enforced against a local administration.” He added, at page 927:

“As shown by the basic constitutional principles discussed at the beginning of this judgment, it is perfectly clear that the question whether the situs of rights and obligations of the Crown is to be found in right or respect of the United Kingdom, or of other governments within those parts of the Commonwealth of which Her Majesty is the ultimate sovereign, has nothing whatever to do with the question whether those governments are wholly independent or not. The situs of such rights and obligations rests with the overseas governments within the realm of the Crown, and not with the Crown in right or respect of the United Kingdom, even though the powers of such governments fall a very long way below the level of independence. Indeed, independence, or the degree of independence, is wholly irrelevant to the issue, because it is clear that rights and obligations of the Crown will arise exclusively in right or respect of any government outside the bounds of the United Kingdom as soon as it can be seen that there is an established government of the Crown in the overseas territory in question. In relation to Canada this had clearly happened by 1867.”

When taking the unusual step of giving reasons for refusing leave to appeal, from the Court of Appeal to the House of Lords, Lord Diplock stated that “for the accumulated reasons given in the judgment of the Court of Appeal, it simply is not arguable that any obligations of the Crown in respect of the Indian peoples of Canada are still the responsibility of Her Majesty’s Government in the United Kingdom. They are the responsibility of Her Majesty’s Government in Canada and it is the Canadian Courts and not the English Courts that alone have jurisdiction to determine what those obligations are.”

The differing reasons given in the Court of Appeal for reaching the conclusion that the obligations in question were those of the Crown in right of Canada and not in right of the United Kingdom were analysed by Sir Robert Megarry V-C in Manuel v Attorney-General [1983] Ch 77 at 90-95. Mr Crow would rely particularly on the approach of Kerr LJ just cited. The Court of Appeal in Manuel did not consider it necessary to rule upon or even to comment upon that analysis but decided the case on a construction of the constitutional instruments in point. I propose to adopt the same approach in the present case.

Mr Crowe also relies on the decision of the European Court of Human Rights in Drozd & Janousek v France & Spain (1992) 14 EHRR 745. Andorra is not a member of the Council of Europe and neither France nor Spain had extended the Convention to Andorra. Nevertheless, the President of France is, with the Bishop of Urgel in Spain, the “Co-Prince” of Andorra and both French and Spanish Judges are seconded to sit in the courts of Andorra. The ECHR accepted the submission of the governments of France and Spain that, though the Principality of Andorra was under the personal Co-Suzerainty of the President of the French Republic and the Bishop of Urgel, it could not be held to be under the sovereignty of France and/or Spain.

The Court stated:

“110.

Nevertheless, it can be seen from the above description of the general situation and the French judicial decisions mentioned mainly by the French Government that, despite the active participation of certain judges and officials of the two states concerned in the work of the Andorran organs, particularly the judicial organ concerned in this case, these organs, and more specifically the Tribunal des Corts, function autonomously. The decision of these courts are not pronounced in the name of the French sovereign power any more than they are in the name of the Spanish sovereign power, but in the name of the Co-Princes of the Valleys of Andorra. The President of the French Republic does not act for France any more than the Bishop of Urgel acts for Spain when they exercise the functions of Co-Prince.

111.

Consequently, the Commission is obliged to conclude that neither France nor Spain can be held responsible by virtue of the Convention for the applicants’ conviction by the Tribunal des Corts….”

That reasoning accords with the reasoning of this Court in Bhurosah and Indian Association of Alberta. However, while asserting the autonomous functioning of Andorran organs, the Court did so upon a close analysis of the powers and obligations involved.

Mr Vaughan relies on the decision of this court in R (Bancoult) v The Secretary of State for Foreign and Commonwealth Affairs and Anr [2001] QB 1067. A separate colony called the “British Indian Ocean Territory” (“BIOT”) was recognised by virtue of the British Indian Ocean Territory Order 1965 (“the 1965 Order”). An Ordinance of 1971, purportedly made under that Order, provided for the compulsory removal of the whole of the existing civilian population of the territory to Mauritius. It also prohibited their return. The purpose of the 1965 Order and the 1971 Ordinance was to facilitate the establishment of a strategic United States military base in the territory pursuant to an agreement between governments of the United Kingdom and United States of America. A citizen of the territory requested the Commissioner, appointed under the 1965 Order, to declare the Ordinance unlawful and that request was denied.

On an application in England for judicial review, the High Court quashed section 4 of the 1971 Ordinance holding that the Queen’s Bench Division had jurisdiction to make such an order with respect to any place under the Crown’s subjection notwithstanding the existence of effective local courts. If it was right to make the order, the jurisdiction to do so existed. Laws LJ, with whom Gibbs J agreed, stated at paragraph 28:

“28.

…. Indeed, I have to say that the Crown’s reliance on the proposition that the Ordinance is a legal creature of the government of BIOT which must be taken to possess a separate and distinct sovereignty of its own, such that the Queen’s courts sitting here in London have nothing to do with the matter, represents in my judgment an abject surrender of substance to form. Nothing is plainer, from the history of events which I have recounted by reference to the contemporary documents, that the making of the Ordinance and its critical provision, section 4, were done on the orders or at the direction of Her Majesty’s ministers here, Her ministers in right of the government of the United Kingdom. That government had entered into obligations and understandings with the Americans not with the government of BIOT. The government of BIOT, indeed was itself a very creature of those understandings. If the applicant in these proceedings had sought to sue in the BIOT courts, the reply might have been that those courts had not authority to control the Secretary of State sitting in Whitehall, and it would have been a true reply.

29.

The question for this court is whether to quash an instrument, the Ordinance, whose making was wholly procured by the United Kingdom Government. If the suggestion that the court lacks the power to do so has a place in our legal tradition, it is not one which I recognise. I would hold that we possess ample jurisdiction to make the order sought.”

As to Bancoult, Mr Crow relies on the fact that the issue was different from that in the present case; whether the High Court in England had jurisdiction over an official in a British Overseas Territory in matters of judicial review. Laws LJ, he submits, did not reject the submission on behalf of the Respondent that “the Crown is divisible: that is, it falls to be treated as a separate sovereign entity vis-à-vis each territory where its sovereign writ runs”. All Laws LJ accepted, it is submitted, is that the court had jurisdiction to issue certiorari in overseas territories subject to the Queen’s dominion, that the existence of effective local courts did not negative the jurisdiction of the Queen’s Bench to issue certiorari extra-territorially, and that the power to do so should in the circumstances of that case be exercised.

I accept that the issue is different from that in Bancoult, but a finding that a writ could issue in England demonstrates the possibility, notwithstanding the principle that the Crown is divisible, of United Kingdom powers being exercised in an overseas territory where Her Majesty is Queen and where there are competent local authorities. The 1965 Order, like the 1985 Order for South Georgia, in Section 10 empowered the Commissioner to act in the name and on behalf of Her Majesty, subject, amongst other things, to “such instructions as may from time to time be given to him by Her Majesty through a Secretary of State”.

The divisibility of the Crown cannot for present purposes be in doubt. The fact that Her Majesty the Queen is Head of State in the United Kingdom does not stand in the way of governmental actions in other territories where Her Majesty is Head of State from being treated as actions of the entities concerned, whether the territories are independent, self-governing or dependencies. Both Bhurosah and Indian Association of Alberta illustrate that principle, both cases in a context in which powers were being exercised locally, the second with the complication that the effect of treaties and particular statutory provisions fell to be considered.

The divisibility of the Crown, described by Mr Crow as a basic principle of our constitutional law, does not in my judgment exclude an analysis, when deciding in what capacity powers are exercised, of the particular constitutional instruments involved. The present issue turns on the construction of the 1985 Order providing for the government of South Georgia and the categorisation of the June instruction given by the Secretary of State.

While there is clearly no constitutional impediment to the Queen acting in right of a dependent territory rather than in right of the United Kingdom, it does not follow that, upon the construction of a particular constitution, either Her Majesty the Queen or the Secretary of State are acting in right of the dependent territory. It is possible, as indeed Mr Crow accepted, for constitutional arrangements to be made whereby instructions are given to an official in a dependent territory by right of the United Kingdom.

Upon a consideration of the 1985 Order, that result appears to me to have been achieved in Section 5 of the 1985 Order, and in other sections, in the context of the Order as a whole. A similar power is conferred in Sections 7,9 and 10. There is a very considerable reservation of powers to the Secretary of State.

The Secretary of State identified in Section 5(1) and elsewhere in the Order is clearly Her Majesty’s Secretary of State in the United Kingdom. An instruction of Her Majesty through a United Kingdom Secretary of State would, on the face of it, be expected to be an instruction of Her Majesty as Queen of the United Kingdom. The Order appears to me to indicate in several sections an exercise of United Kingdom powers with respect to the governance of South Georgia. That is not surprising given the small size, population and resources (apart from fishing) of South Georgia and its dependence on the United Kingdom. The reservation of powers in Section 15 is in my view intended to be a reservation of powers to the government of the United Kingdom. The reference to Her Majesty in Section 5(2) is a reference to Her Majesty in her United Kingdom capacity because, in relation to her forces in the South Atlantic, it would not be realistic to treat her position as that of Queen of South Georgia.

I would, with respect, adopt, in the present context, the expression of Laws LJ in Bancoult in the context of the jurisdiction of the Courts of England and Wales. Having regard to the instruction given to the Commissioner, the circumstances in which and the reasons for which it was given, 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. The instruction was given by the Respondent in right of the United Kingdom Government or, to preserve constitutional proprieties and tradition, by the Respondent on behalf of Her Majesty and as Her Majesty’s Secretary of State in the United Kingdom. In acting through her United Kingdom Secretary of State, Her Majesty the Queen was acting as Queen of the United Kingdom.

To extend the principle that the Crown often acts by right of a territory where Her Majesty is Queen, other than the United Kingdom, to the present exercise of power would in my judgment be to misconstrue the 1985 Order, reflecting, as it does, the realities of South Georgia’s physical, social and economic characteristics. I find support for that conclusion in the decision in Bancoult that United Kingdom judicial powers may be exercised in a British Overseas Territory and also in the acceptance that the legality of the June instruction of the Respondent may be tested in the English Courts. As to the political and diplomatic context of the instruction, while I accept that the reason why a particular decision is taken cannot be determinative of the construction of a constitutional instrument, the instrument should be construed in the context of a factual matrix which is now illustrated by the sequence of events which has led to this application to the Courts, but was no different in 1985.

The second point

Submissions

If my conclusion on the first point is correct, the second point must be considered on the assumptions, first that the June instruction was given in right of the United Kingdom, secondly, that (subject to a point considered later) it is arguable that there has been a breach of Article 1 of Protocol 1 in South Georgia and, thirdly, that the instruction affects property rights in a British Overseas Territory to which the First Protocol has not been extended. Mr Vaughan correctly submits that none of the cases cited deal with this situation.

Reliance was placed by the Secretary of State on Drozd on the first point, as demonstrating an exercise of power in Andorra independently of powers in both France and Spain. He also relies on the case on the second point because Convention rights were held not to apply in Andorra in the absence of an extension of the Convention’s application to Andorra by France or Spain. Mr Vaughan seeks to distinguish Drozd on the basis that the Convention had not been extended at all to Andorra whereas it had been extended, apart from the First Protocol, to South Georgia, which was therefore within the espace juridique of the Convention.

Mr Vaughan extracts the expression espace juridique from the decision of the ECHR in Bankovic v Belgium (2001) 11 BHRC 435. The complaint arose out of the bombing of Belgrade in the Federal Republic of Yugoslavia (“FRY”) by parties to the Convention who were members of NATO. Holding that the impugned action of the respondent states did not engage their responsibility under the Convention, the Court stated, paragraph 80:

“In short, the Convention is a multi-lateral treaty operating, subject to Article 56 of the Convention, in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States. The FRY clearly does not fall within this legal space. The Convention was not designed to be applied throughout the world even in respect of the conduct of Contracting States. Accordingly, the desirability of avoiding a gap or vacuum in human rights’ protection has so far been relied on by the Court in favour of establishing jurisdiction only when the territory in question was one that, but for the specific circumstances, would normally be covered by the Convention.”

Having adopted the expression, Mr Vaughan submits that the extension of the Convention (apart from the Protocol) to South Georgia brings South Georgia within the espace juridique of the ECHR. That, together with the power of the United Kingdom government to control events in South Georgia, permits a claim under Section 7 of the 1998 Act for the breach of Article 1 of the First Protocol in South Georgia. In substance, the Appellants’ submission is that success on this point follows from success on the first. Failure to extend the Protocol to South Georgia is irrelevant to a finding that the unlawful instruction was given in right of the United Kingdom and accordingly the 1998 Act, which includes Protocol 1 rights, is activated, it is submitted.

The fact that the First Protocol has not been extended to South Georgia is in my judgment fatal to the Appellants’ claim. The First Protocol does not apply in South Georgia and there has been no breach of Convention rights capable of founding a claim under Section 7 of the 1998 Act. However complete the control exercised by the Convention State over the dependent territory, the Convention applies to the territory only if there has been a notification under Article 56 and, in the case of the Protocol, only if there has been notification under its Article 4. This principle is well established in the jurisprudence of the ECHR in Bui Ban Than v UK (Application no. 16137/90, decision 12.3.90) and Yonghong v Portugal (Application no. 50887/99, decision 25.11.99) with respect to the Convention and Gillow v UK (Application no. 9063/80, decision 23.11.86) with respect to the First Protocol.

In Gillow, the Convention had been extended to Guernsey by declaration under Article 63 (now Article 56) but no declaration had been made to extend the First Protocol under its Article 4. The ECHR stated, at paragraph 62:

“As to the applicability of Article 4 of Protocol No.1 to the Island of Guernsey, the Court has ascertained that a statement concerning the position of the Channel Islands in relation to treaties and international agreements applicable to the United Kingdom was issued on behalf of the Government of the United Kingdom on 16 October 1950 and communicated to all foreign Governments with whom the United Kingdom Government were in diplomatic relations, the United Nations and other international organisations concerned, inter alia, the Council of Europe. It was thereby established that the Island of Guernsey should be regarded as a territory for the international relations of which [the United Kingdom] is responsible for the purposes of treaty provisions in the terms of Article 4 of this Protocol; and this practice has been followed with regard to treaties concluded within the framework of the Council of Europe, including the Convention (Article 63). It thus clearly results from the text of Article 4 that an express declaration is required for the application of the Protocol to the island of Guernsey. According to the records of the Council of Europe, no such declaration extending the provisions of this Protocol to Guernsey has been communicated by the United Kingdom to the Secretary General of the Council of Europe.

In these circumstances, the Court concludes that Article 1 of Protocol No. 1 is not applicable in the present case and that it has no jurisdiction to entertain the complaints under this provision.”

In Yonghong a breach of the Convention by Portugal was alleged by reason of its then exercise of jurisdiction over the territory of Macao. The Court stated, at page 4:

“It observes, however, that Article 1 of the Convention must be read in the light of Article 56. The latter provision enables the States to lodge a declaration extending the Convention to territories for whose international relations they are responsible and thus to bring issues relating to such territories within the ambit of the Convention. An essential feature of the system established by Article 56 is that the Convention cannot apply to acts of the authorities of such territories, nor to the policies implemented by the Government of the Contracting Party concerned in the exercise of their responsibilities for those territories, unless a declaration extending the ambit of the Convention has been made.”

Thus control over the territory is insufficient; the declaration extending the ambit of the Convention (or the Protocol) must have been made. In respect to the Protocol, South Georgia does not fall within its legal space on the ground that the Convention applies there, or for any other reason, or because the June instruction was unlawful as contrary to the law of England and Wales. Resort to the expression espace juridique throws no light on the issue in my view and Bankovic is a reaffirmation of the territorial principle, subject to exceptions (Bankovic paragraph 70) which do not apply in the present case.

Mr Vaughan seeks to distinguish Gillow on the basis that it was concerned with domestic policies within the Island of Guernsey. The intervention of the United Kingdom Government in the present case (as so found) is a factual distinction but it does not undermine the principle that the relevant Convention (or Protocol) right can only exist in a territory such as South Georgia if there has been an appropriate declaration under the Convention (or Protocol). The intervention of the United Kingdom Government in the affairs of South Georgia, by way of the June instruction, does not create there a right which would not otherwise exist.

I would dismiss the appeal on that ground.

Having come to the conclusion that the appeal should be dismissed on that ground, I deal with the other grounds for strike out briefly. They are set out in paragraph 32 of this judgment.

The Appellants’ claim is based on the refusal of the licence and reliance is placed on Tre Traktörer Aktiebolag v Sweden (1989) 13 EHRR 309 where a licence to run a restaurant was withdrawn. On behalf of the Respondent, it is submitted that there was no possession of a licence or entitlement to a licence in this case and Article 1 of the First Protocol does not extend to a hope or expectation of receiving a licence.

The judge held that it was arguable that “to refuse a licence in circumstances where it has been awarded in past years and no relevant change of circumstances has occurred is to deprive the applicant of a possession”. The Appellants rely on their strong expectation that, but for the unlawful instruction, they would have received a licence.

I agree with the judge that it would be inappropriate to strike out on this ground.

Section 7 of the 1998 Act provides that a person who claims that a public authority has acted unlawfully under Section 6 of the Act must bring proceedings before the end of the period of one year beginning with the date on which the act complained of took place or such longer period as the court or tribunal considers equitable having regard to all the circumstances (Section 7(1) and (5)). There was no intimation of a claim until February 2003, or arguably March 2003, that is twenty-one months after the June instruction.

The judge stated that he was “just persuaded” that it would have been arguable to allow the claim to proceed if not struck out on other grounds. On behalf of the Respondent, it is submitted that the judge applied the wrong test by failing to have regard to all the factors set out in CPR 3.9.

The judge had regard to the reasons for the delay and to the lack of prejudice, as he saw it, to the Respondent. I would not be prepared to reverse his decision and strike out on this ground.

For the reasons given earlier, I would dismiss this appeal.

I agree

I also agree