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

The Patagonian Toothfish (Dissostichus Eleginoides) is a valuable fish which sells for up to $9,000 a tonne on the quay. It inhabits, as its common name perhaps indicates, waters around the Antarctic Continent including the South Atlantic. Since it is so valuable, there is considerable competition to fish for it and measures have been taken by international agreement to regulate the annual tonnage which can be caught by means of licensing requirements imposed by the various States in whose territorial waters the toothfish are found.

The international agreement in question is the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), to which the United Kingdom is a signatory. CCAMLR sets annual total allowable catches and divides the relevant waters into designated blocks of ocean. This case concerns the territorial waters of South Georgia and the South Sandwich Islands (SGSSI). The claimants had expected to be granted a licence to catch up to 400 tonnes of toothfish (worth some £2.5 million) for the 2001 season (the season runs between May and August: it seems that the fish can only be caught when it is dark). The boats they used included the M.V. Jacqueline. It had been granted licences for the seasons since 1997 and had not, save in one relatively minor respect, been found to have breached any applicable conservation measures.

Licensing is controlled by the Director of Fisheries for SGSSI. SGSSI was, until 1985, a dependency of the Falkland Islands. Since then by virtue of the SGSSI Order 1985 (1985 No.449) it has been a distinct territory and is now designated a British Overseas Territory (B.O.T.): see British Overseas Territories Act 2002 s.1(3). Formerly, it was known as a British Dependent Territory. It is administered by a Commissioner (1985 Order Article 4). Article 5(1) of the Order reads as follows: -

“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”.

Article 7 of the Order empowers the Commissioner to appoint persons to ‘such offices for the Territories as may lawfully be constituted by Her Majesty’ and the Director of Fisheries was appointed pursuant to those powers by means of the Fisheries (Conservation and Management) Ordinance 1993 the effect of which was to prohibit fishing in a maritime zone extending 200 nautical miles from SGSSI without a licence.

For the 2001 season, 4,500 tonnes was the limit laid down pursuant to the arrangements agreed under CCAMLR. 3,900 tonnes were allocated to long lining and it was proposed that ten licences should be awarded, nine for 400 and one for 300 tonnes. The director of Fisheries was intending to allocate four out of the ten to U.K. or B.O.T. registered vessels of which the M.V. Jacqueline would have been one. He sought comments from the FCO in London. It was said that it was a British foreign policy objective to maintain the smooth operation of the Antarctic Treaty System of which CCAMLR was an important constituent. Thus there must be an avoidance of action which might lead to concerns among other signatories to CCAMLR that the allocation of licences was not being carried out on an equitable basis and that too many of the limited number of licences were being allocated to United Kingdom or B.O.T. registered vessels. Problems of sovereignty still exist. Accordingly, the Director was advised that he should reduce the allocation to U.K. or B.O.T. registered vessels from four to two. Certain criteria were to be applied to identify those two.

On 14 March 2001 the list of vessels to be licensed was published: it did not include the M.V. Jacqueline. Believing that the criteria had been improperly applied, the claimants sought judicial review of that decision. This claim succeeded before the Chief Justice of SGSSI (Wood CJ) on 1 June 2001 and the decision of the Director of Fisheries was quashed. He had not applied his mind properly to the relevant considerations largely because he believed that the advice from Whitehall had to be followed as if it were a direction. That was an error. Wood CJ did consider whether he would have intervened if a direction had been given. In his judgment (at p.40 of the bundle before me) he said this,

“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”.

For the purpose of these proceedings, it is not necessary to decide whether Wood CJ was right to say he would have had no jurisdiction. However, I am by no means persuaded that he was correct since he would have had to decide whether the actions of the Director were lawful. If the direction under which he acted was itself unlawful, the Director could not in my view rely upon it to justify what he had done. It seems to me that, for reasons which will become clearer in the course of this judgment, there would be jurisdiction both in the court of SGSSI and in the High Court in London to give relief against an unlawful direction or its implementation. However, it might well be in such a case that proceedings in London would be more convenient.

There was no appeal against Wood CJ’s decision. Instead, the defendant issued a direction in these terms: -

“… in the exercise of my powers under Section 5(1) of the SGSSI 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 United Kingdom or United Kingdom Overseas Territories flagged vessels other than the Argos Georgia and the Argos Helena”.

This led to an immediate judicial review claim in this Court. It was lodged on 11 June 2001. It sought an order to quash the defendant’s direction and a declaration that the policy which excluded the claimant was unlawful and that they were or should have been entitled to a licence. Damages were claimed “for breach of statutory duty” and it was stated in the Claim Form that the claim did not include any issues arising from the Human Rights Act 1998. On 5 December 2001 Scott Baker J found in the claimants’ favour and quashed the direction. He ordered that ‘the question of damages be adjourned generally with liberty to restore’. The order in relation to the damages claim was made by consent since the parties had very sensibly agreed (although only in November 2001) that any such claim should await the decision on judicial review. Scott Baker J gave leave to appeal and on 30 October 2002, the defendant’s appeal was dismissed. The court directed that the claim for damages should be remitted to the Administrative Court and that a Case Management Conference be convened as soon as possible for the management of the damages claim.

On 13 March 2003, the defendant served an application to strike the claim out. This led to an application by the claimants to amend their particulars to claim damages under the Human Rights Act 1998 on the ground that their rights under Article 1 of the First Protocol to the European Convention on Human Rights had been breached and under common law in addition to the claim for breach of statutory duty. There was also added a claim for exemplary damages but it was not and is not alleged that the actions of the defendant amounted to misfeasance. The matter came before me on 17 March 2003. I allowed the application to amend but directed that the defendant should be entitled to raise in the context of any application to strike out the amended particulars (which I was informed would be made) issues of limitation. On 19 March 2003 an application to strike out the particulars was made and it is that application which has been argued before me. It is made under CPR 3.4(2)(a) and/or the inherent jurisdiction of the court on the ground that they disclose no reasonable cause of action. In the alternative, summary judgment under CPR 24.2(a)(i) is sought on the ground that the claim has no reasonable prospect of success.

In Three Rivers D.C. v Bank of England (No3) [2003] 2 ALL ER 513, Lord Hope at p.541g said that the difference between a test which asks the question ‘is the claim bound to fail?’ and one which asks ‘does the claim have a real prospect of success’ is not easy to determine. Counsel have accepted that for purposes of this case the tests are not different. However, under CPR 3.4(2)(a) there can be no evidence put before the court: the decision must be made on the assumption that what is alleged in the claim form is accepted. But evidence can be produced for an application under CPR 24.2(a)(i). Nevertheless, that distinction is normally illusory since the court will not decide issues of fact on such an application and so will only consider evidence which is uncontroversial or which cannot be gainsaid. In this case, the defendant did at an unacceptably late stage put in evidence from one Helen Mulvein, a senior legal assistant in the FCO. That evidence, as Mr. Vaughan Q.C. on behalf of the claimant accepted, is largely uncontroversial in that it explains the relationship between the U.K. and SGSSI, producing copies of the relevant orders. More importantly, it deals with the application of the ECHR to SGSSI. Article 56(1) of the ECHR provides: -

“Any State may … declare by notification addressed to the Secretary General of the Council of Europe that the present Convention shall, subject to Paragraph 4 of this Article, extend to all or any of the territories for whose international relations it is responsible”.

Paragraph 4 deals with individual applications to the Court.

On 23 October 1953 the United Kingdom extended the ECHR to the Falkland Islands and its dependencies by declaration under what was then Article 63 (now renumbered as Article 56). In 1985, the right of individual petition was extended to SGSSI. Thus the ECHR is applied in SGSSI, although the population numbers some 12 people. The First Protocol was ratified by the U.K. on 3 November 1952. Article 4 of that Protocol provides: -

“Any High Contracting Party may … communicate to the Secretary general of the Council of Europe a declaration stating the extent to which it undertakes that the provisions of the present Protocol shall apply to such of the territories for the international relations of which it is responsible as are named therein …

A declaration made in accordance with this Article shall be deemed to have been made in accordance with Paragraph 1 of Article 56 of the Convention”.

No such declaration has been made and so the First Protocol has not been extended to SGSSI

It was suggested in the claimants’ skeleton argument that, since Article 5 of the Protocol provided as follows: -

“As between the High Contracting Parties the provisions of Articles 1, 2, 3 and 4 of this Protocol shall be regarded as additional articles to the Convention and all the provisions of the Convention shall apply accordingly”.

a formal declaration under Article 4 was unnecessary. Article 56 of the Convention was applied by Article 5 of the Protocol and so the declaration thereunder served to apply the Protocol. That assertion cannot be accepted. It renders Article 4 of the Protocol superfluous. In Gillow v United Kingdom (Case No.13/1984/85/132) the ECtHR was concerned with a claim alleging inter alia a breach of Article 1 of the First Protocol in relation to Guernsey. It transpired that no declaration had been made under Article 4 of the Protocol extending it to Guernsey. At Paragraph 64 of the judgment the Court said: -

“It was … established that the island of Guernsey should be regarded as a ‘territory for the international relations of which the U.K. 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 [56]). 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”.

There is no suggestion that it could apply without such an express declaration. Mr. Vaughan has in the circumstances accepted that he cannot dispute Helen Mulvein’s evidence that the First Protocol has not been extended to SGSSI.

I have had my attention drawn to the principles which apply to strike out or summary judgment applications such as this. It must be clear and obvious that the claim cannot succeed even if the most favourable view of the facts is taken. Furthermore, if long and detailed arguments are needed, normally the application should not be entertained unless the judge is satisfied that the necessity for a trial will be obviated or the burden of preparing for trial or of the trial itself will be substantially reduced. Similarly, while the law is unsettled but in a state of development, it is usually inappropriate to decide novel questions on hypothetical facts: see per Lord Browne-Wilkinson in X(Minors)v Bedfordshire CC [1995] 2 A.C.633 at 740H. The question here is whether there is a right of action for damages, whether under the Human Rights Act or otherwise. The relevant facts are not in issue. The question therefore depends upon the construction of the relevant section of the Human Rights Act and the application of well established principles of statutory construction or common law. Lord Browne-Wilkinson at p.741A of X’s case said this: -

“But I agree with Sir Thomas Bingham M.R. … that there is nothing inappropriate in deciding on these applications whether the statutes in question confer private law rights of action for damages: the answer to that question depends upon the construction of the statutes alone”.

In the circumstances, I was not persuaded that it was wrong for me to hear and decide on the application. If it succeeds, there will be no trial and it is appropriate to deal with it before further expense is incurred in preparing for trial and, in particular, in giving discovery. I am aware that the claimants are suspicious of the defendant’s attitude to disclosure of relevant material and there is no doubt that during the judicial review proceedings there was a failure to disclose material which was potentially adverse to the defendant’s case until a very late stage. In the Court of Appeal, Laws LJ, who gave the only reasoned judgment, in dealing with disclosures by the defendant observed at Paragraph 55: -

“… I am constrained to say that the Secretary of State in this case has fallen short of those high standards of candour which are routinely adhered to by government departments faced with proceedings for judicial review”.

Such a rebuke from one who has the experience that Laws LJ has of litigation by government departments is indeed serious. However, I cannot assume that there may be some documents which will change the whole complexion of the case and which have not been disclosed and Mr. Vaughan accepts that such speculation cannot properly prevent this application from proceeding.

English law does not provide a remedy in damages for a breach of a public law right. There must exist a private law cause of action, which may be for breach of statutory duty or at common law. Misfeasance in public office is not relevant here since it is not relied on by the claimants and rightly so since there is no evidence to show that the defendant has acted in bad faith. Thus success in obtaining an order quashing the defendant’s decision does not lead to automatic compensation. The claimants say that the defendant’s decision was unlawful and that cannot now be disputed. They further say that but for that unlawful decision they would have obtained a licence for the 2001 season. That licence would have cost £223,000 and the potential gross take would have been some £2.5 million. Thus there would have been a substantial net profit of which they have been deprived. Causation is not accepted by the defendant and that together with quantum would be in issue at a trial.

It is therefore necessary for the claimants to identify a cause of action. While they have pleaded breach of statutory duty and common law rights, Mr. Vaughan recognised that these were unlikely to succeed and did not pursue any arguments in relation to them beyond those set out in his skeleton argument. He recognised that his claim depended on establishing that compensation could be awarded under the Human Rights Act 1998. He relies on section 7 of that Act which, so far as material, provides: -

“(1)

A person who claims that a public authority has acted … in a way which is made unlawful by section 6(1) may –

(a)

bring proceedings against the authority under this Act in the appropriate court …

but only if he is … a victim of the unlawful act…

(5)

proceedings under subsection(1)(a) must be brought before the end of –

(a)

the period of one year beginning with the date on which the act complained of took place; or

(b)

such longer period as the court … considers equitable having regard to all the circumstances …

(7)

For the purposes of this 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 ECtHR in respect of that act”.

Section 6(1) makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. Article 34 of the Convention provides for the right of a person ‘claiming to be the victim of a violation of the rights set forth in the Convention or the Protocols thereto’ to apply to the ECtHR.

The claimants’ case is beguilingly simple. They say that it does not matter that the First Protocol has not been extended to SGSSI because the defendant was a public authority acting in London. The judicial review proceedings were properly, as the defendant conceded, brought in London. The decision made by the defendant is subject to English law. Furthermore, although it was made in relation to SGSSI, in reality it was motivated by a concern about matters which affected the foreign relations of the U.K. rather than SGSSI. Even if the decision may have benefited SGSSI, it reflected the interests of the U.K. Accordingly, the claimants are indeed the victims of a decision which breached their rights under Article 1 of the First Protocol and they could have made an application to the ECtHR under Article 34 of the Convention. It follows that they are entitled to make a claim for damages under s.7 of the 1998 Act.

The defendant submits that the claimants’ argument is superficial and that it is necessary to look far more closely at the relevant circumstances. In particular, Article 1 of the Convention must be considered. This provides:-

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention”.

Article 1 is not included in the Schedule to the 1998 Act, but the principle of territoriality which it establishes is nevertheless applicable. The purpose of the 1998 Act is to give further effect to rights and freedoms guaranteed under the ECHR and there is nothing in the Act to suggest that Parliament intended that it should confer the benefits of the Convention more widely than the terms of the Convention indicate. The reference in s.7(7) to Article 34 in the definition of a victim is consistent only with this approach. In R(Ullah) v Special Adjudicator [2002] EWCA Civ. 1856, Lord Phillips, M.R., giving the judgment of the Court, said at Paragraph 17:-

“Article 1 of the Convention requires the Contracting States to secure to everyone within their jurisdiction the Convention rights and freedoms. Section 6 of the H.R.A. provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. The courts of this country have proceeded on the basis that the obligation imposed by Section 6 is subject to the same limitation as that which results from the words that we have emphasised in Article 1 of the Convention. It applies only to persons within the jurisdiction of the United Kingdom. So far as we are aware, this interpretation of section 6 has never been challenged, and certainly neither Mr. Blake nor Mr. Gill has challenged it in the present case”.

Mr. Crow points out that the claimants’ submissions, if accepted, would have the result that an act done by the Crown in right of an overseas territory which affects only a person whose commercial activities are carried on outside the jurisdiction of the United Kingdom and whose effect is felt only outside that jurisdiction will have a right to claim damages under U.K. domestic legislation even though the relevant provisions of the Convention, which are said to produce that right, are not extended to the territory in question. The starting point of his submissions is that the 1998 Act was intended to give effect in domestic law to rights under the Convention and only where such rights could have been enforced by means of individual petition under Article 34: see preamble to the Act and s.7(1) and (7). As I have already indicated, that is undoubtedly correct. The ECtHR has considered the territorial scope of the Convention in a number of cases. Bankovic & Others v Belgium & Others (2001) 11 BHRC 435 concerned applications by citizens of the Federal Republic of Yugoslavia arising out of the NATO bombing in Kosovo in the course of which it was alleged their Convention rights had been breached. The main ground upon which the various governments resisted the claims was that the applicants did not come within Article 1 because they were not within the jurisdiction of the States in question. It is, I think, helpful to cite the relevant paragraphs of the Court’s judgment on the meaning of the words ‘within the jurisdiction’ in Article 1. These are Paragraphs 59 to 66. which read as follows:-

“59.

As to the “ordinary meaning” of the relevant term in Article 1 of the Convention, the Court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a State is primarily territorial. While international law does not exclude a State’s exercise of jurisdiction extra-territorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant States (Mann, “The Doctrine of Jurisdiction in International Law”, RdC, 1964, Vol. 1; Mann, “The Doctrine of Jurisdiction in International Law, Twenty Years Later”, RdC, 1984, Vol.1:Bernhardt, Encyclopaedia of Public International Law, Edition 1997, Vol.3, planning permission. 55-59 “Jurisdiction of States” and Edition 1995, Vol.2, planning permission.337-343 “Extra-territorial Effects of Administrative, Judicial and Legislative Acts”; Oppenheim’s International Law 9^th Edition 1992 (Jennings and Watts), Vol.1 & 137; P.M. Dupuy, Droit International Public, 4^th Edition 1998, p.61; and Brownlie, Principles of International Law, 5^th Edition 1998, pp.287, 301 and 312-314).

60.

Accordingly, for example, a State’s competence to exercise jurisdiction over its own nationals abroad is subordinate to that State’s and other States’ territorial competence (Higgins, Problems and process (1994), at p.73; and Nguyen Quoc Dinh, Droit International Public, 6^th Edition 1999 (Dailler and Pellet), p.500). In addition, a State may not actually exercise jurisdiction on the territory of another without the latter’s consent, invitation or acquiescence, unless the former is an occupying State in which case it can be found to exercise jurisdiction in that territory, at least in certain respects (Bernhardt, cited above, Vol.3 at p.59 and Vol.2 at pp.64-65; Brownlie, cited above, at p.313; Cassese, International Law, 2001, p.89; and, most recently, the “report on the Preferential Treatment of National minorities by their Kin-States” adopted by the Venice Commission at its 48^th Plenary meeting, Venice, 19-20 October 2001).

61.

The Court is of the view, therefore, that Article 1 of the Convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case (see, mutates mutandis and in general, Select Committee of Experts on Extraterritorial Criminal Jurisdiction, European Committee on Crime Problems, Council of Europe, “Extraterritorial Criminal Jurisdiction” report published in 1990, at pp. 8-30).

62.

The Court finds State practice in the application of the Convention since its ratification to be indicative of a lack of any apprehension on the part of the Contracting States of their extra-territorial responsibility in contexts similar to the present case. Although there have been a number of military missions involving Contracting states acting extra-terrorially since their ratification of the Convention (inter alia, in the Gulf, in Bosnia and Herzegovina and in the FRY), no State has indicated a belief that its extra-territorial actions involved an exercise of jurisdiction within the meaning of Article 1 of the Convention by making a derogation pursuant to Article 15 of the Convention. The existing derogations were lodged by Turkey and the United Kingdom in respect of certain internal conflicts (in south-east Turkey and Northern Ireland, respectively) and the Court does not find any basis upon which to accept the applicants’ suggestion that Article 15 covers all “war” and “public emergency” situations generally, whether obtaining inside or outside the territory of the Contracting State. Indeed, Article 15 itself is to be read subject to the “jurisdiction” limitation enumerated in Article 1 of the Convention.

63.

Finally, the Court finds clear confirmation of this essentially territorial notion of jurisdiction in the travaux preparatoires which demonstrate that the Expert Intergovernmental Committee replaced the words “all persons residing within their territories” with a reference to persons “within their jurisdiction” with a view to expanding the Convention’s application to others who may not reside, in a legal sense, but who are, nevertheless, on the territory of the Contracting States.

64.

It is true that the notion of the Convention being a living instrument to be interpreted in light of present-day conditions is firmly rooted in the Court’s case-law. The Court has applied that approach not only to the Convention’s substantive provisions (for example, the Soering judgment cited above, at Paragraph 102; the Dudgeon v United Kingdom judgment of 22 October 1981, Series A no.45; the X, Y and Z v United Kingdom [GC], no.24888/94, Paragraph 39 E.C.H.R. 1991-I) but more relevantly to its interpretation of former Articles 25 and 46 concerning the recognition by a Contracting State of the competence of the Convention organs (the above-cited Loizidou judgment (preliminary objections), at Paragraph 71). The Court concluded in the latter judgment that former Articles 25 and 46 of the Convention could not be interpreted solely in accordance with the intentions of their authors expressed more than forty years previously to the extent that, even if it had been established that the restrictions at issue were considered permissible under Articles 25 and 46 when the Convention was adopted by a minority of the then Contracting Parties, such evidence “could not be decisive”.

65.

However, the scope of Article 1, at issue in the present case, is determinative of the very scope of the Contracting Parties’ positive obligations and, as such, of the scope and reach of the entire Convention system of human rights’ protection as opposed to the question, under discussion in the Loizidou case (preliminary objections), of the competence of the Convention organs to examine a case. In any event, the extracts from the travaux preparatoires detailed above constitute a clear indication of the intended meaning of Article 1 of the Convention which cannot be ignored. The Court would emphasise that it is not interpreting Article 1 “solely” in accordance with the travaux preparatoires or finding those travaux “decisive”; rather this preparatory material constitutes clear confirmatory evidence of the ordinary meaning of Article 1 of the Convention as already identified by the Court (Article 32 of the Vienna Convention 1969).

66.

Accordingly, and as the Court stated in the Soering case:

“Article 1 sets a limit, notably territorial, on the reach of the Convention. In particular, the engagement undertaken by a Contracting State is confined to ‘securing’ (‘reconnaitre’ in the French text) the listed rights and freedoms to persons within its own ‘jurisdiction’. Further, the Convention does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States”.

This establishes the territorial reach of the Convention. But it can extend beyond the territory of a State where extra-territorial jurisdiction is effected over an individual, (although that is uncertain since Ocalan v Turkey was a decision on admissibility in which jurisdiction was not fully considered) or where the State exercises effective control over a territory whether by invitation or conquest. In Paragraph 71 of Bankovic the Court said:-

“In sum, the case law of the Court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a Contracting State is exceptional: it has done so when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of Government of that territory, exercises all or some of the public powers normally to be exercised by that Government”.

Finally, in Paragraph 80, this is said:-

“In short, the Convention is a multilateral treaty operating, subject to Article 56, in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States … 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”.

That last sentence is important since it suggests that it is only when (for example in relation to Cyprus) the Convention would otherwise have applied can a Contracting State be said to ‘export’ the rights under the Convention. Thus, for example, the actions of British occupying forces in Iraq may not fall within the effective control extension. But the whole tenor of the Court’s judgment in Bankovic is to underline the territorial limits of the Convention and the express reference to Article 56 indicates 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.

The principle that, absent an Article 56 extension, the rights conferred by the Convention cannot avail persons in another territory has been confirmed in a number of cases concerned with territories which fall within the scope of Article 56. Gillow v Guernsey, already cited, is one such. The most recent is Yonghong v Portugal (App No 50887/99 decided on 25 November 1999). This was a decision on admissibility of a complaint by a Chinese national that his extradition from Macao to China included breaches of Article 1 of Protocol 6 to the Convention (abolition of death penalty) and of Articles 3 and 6 of the Convention. Neither the Convention nor Protocol 6 had been extended to Macao by declarations under Article 56 of the Convention or Article 5 of the Protocol. The Court said this, repeating what it had earlier said in other cases (at p.4 of the report in the bundle):-

“It observes … 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”.

Mr. Vaughan seeks to distinguish these cases on the ground that in them the complaint was made in relation to actions by the authorities of the dependent territory. Here, the action is that of the defendant who was at least taking account of matters of U.K. rather that solely SGSSI interest. It is obvious that, if the U.K. has responsibility for the international relations of a dependent territory, it will from time to time take direct action to impose or enforce a course of action which it regards as necessary or desirable. The citation from Yonghong makes it clear that a declaration under Article 56 is needed to apply the Convention to acts of the domestic or the Contracting Party’s authority.

The claimants submit that X v Belgium (1961) 4 YB 260 is consistent with this submission. That decision of the Commission concerned the admissibility of claims by Belgian nationals who were long standing residents of the Belgian Congo and who had suffered as a result of the upheavals at the time of independence. One of their claims was based upon their exclusion, albeit Belgian nationals, from participation in the elections held in Belgium (in particular in 1958). The balance related to actions in the Congo both before and after independence. The Commission described Article 63 (now 56) as a so-called ‘colonial’ clause, recognising that when the Convention was first brought into effect, some of the signatories had colonies, but that ‘in contemporary practice, [such clauses had] undergone a rapid and distinct change parallel with the change in the legal position of the territories concerned’. Thus Article 56 represents ‘an effort to facilitate, although without rendering it compulsory, the application of the more important international treaties to territories, the status of which is as varied as it is changeable but without assigning a final degree of importance to any one such status’. On p.268 of the report, the Commission said this:-

“Whereas the applicants point out, in the second place, that their own status as Belgian citizens was sufficient to make them eligible for protection under Articles 1 and 4 of the Convention;

Whereas the Commission is however unable to accept this view; whereas, although under the said Articles, the Contracting States guarantee to every person coming under their jurisdiction, without distinction, the rights and freedoms defined in Section 1 of the Convention, nevertheless the said guarantee is valid only within the limits of time and space recognised by those States; whereas the specific object of Article 63 of the Convention and Article 4 of the Protocol was to lay down, for everyone, the territorial field of application of the two instruments but without conferring any special privileges on nationals of the Contracting States; whereas also such privileges, far from flowing from Article 14 of the Convention, would be directly contrary to its provisions”.

However, the claim in relation to elections in Belgium was within the ambit of the Convention since it arose from matters affecting the applicants’ rights as Belgian nationals in Belgium. It was rejected for other reasons. This case does not in any way assist the claimants’ argument.

The defendant placed some reliance on Drozd and Janousek v France & Spain (1992) 12 E.H.R.R. 745. That case concerned convictions of the applicants in Andorra. The court decided that it had no jurisdiction ratione loci because Andorra was an independent state and was not a signatory to the Convention. The fact that its co-princes were the President of France and the Bishop of Urgel (which is in Spain) was nothing to the point nor was the fact that judges from France and Spain sat in the courts of Andorra. They did not act in their capacity as French or Spanish officials and the President of France was exercising a role which was personal and had originally been exercised by the kings of France. As it was put, he embodied ‘a duality in his person’. The case is, of course, distinguishable on its facts, but it does make the point that an official of a Contracting State may act in a different role when dealing with the affairs of another territory.

This is consistent with the position in domestic law that the Crown is divisible in relation to the various territories which were colonies or protectorates. In R v Secretary of State for Foreign and Commonwealth Affairs ex p. Indian Association of Alberta [1982] QB 892, the Court of Appeal was concerned with an application for judicial review seeking 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 U.K. The claim failed on the ground that the Crown was not single and indivisible but separate in respect of each self-governing territory within the Commonwealth. As Lord Denning put it at p.917:-

“Thenceforward [sc. After 1926] the Crown was no longer single and indivisible. It was separate and divisible for each self-governing dominion or province or territory”.

Kerr L.J. recognised that this principle applied as much to a colony as to a dominion. This was apparent from R v Secretary of State for the Home Department ex p. Bhurosah [1968] 1 QB 266, which concerned the issuing of passports in Mauritius, then still a colony. Lord Denning, M.R. said this at p.284E:-

“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”.

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.

The claimants have placed considerable reliance on R(Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067. That case concerned the removal of the inhabitants of the Chagos Archipelago in the Indian Ocean in 1971 to enable the Americans to establish a strategic military base. The applicant, who had been prevented from returning to live in the archipelago, sought judicial review of the provision which prevented his return. One issue raised was whether the High Court in London had jurisdiction. It was argued on behalf of the respondent that the relevant actions were taken by the Commissioner (the terms of his appointment being similar to those in issue here) acting on behalf of the Crown in right of government of the British Indian Ocean Territory (as the archipelago had been designated). The English High Court in London had nothing to do with it.

The Divisional Court rejected that argument. Between pp.1086 and 1092, Laws LJ gives a detailed review of the jurisdiction of the High Court to issue prerogative writ (or orders) ‘to any place notwithstanding the divisibility of the Crown vis-à-vis each territory where its sovereign writ runs’. In Paragraphs 26, 27 and 28 on pp. 1091-1092 Laws LJ concluded thus:-

“26.

It is plain that the court in Ex p. Mwenya [1960] 1 QB 241, and at least the majority (Vaughan Williams and Farwell LJJ) in Ex p. Sekgome [1910] 2 KB 576, saw nothing in earlier jurisprudence, thus including In re Mansergh 1 B & S 400, to inhibit them from concluding that the writ of habeas corpus might in a proper case issue beyond the seas, “to any place under the subjection of the Crown”. Indeed the weight of authority pointed firmly towards just such a conclusion. It seems to me that we should ourselves do injury to our rules of precedent if we were to hold that in the light of Mansergh the writ might not so issue. Here, of course, we are not concerned with habeas corpus but with an application for a certiorari. I can see no basis for distinguishing between one prerogative writ and another upon the question, what is the reach of this court’s jurisdiction? Lord Mansfield CJ stated expressly that all the prerogative writs may go to every dominion of the Crown of England: Sir Edward Coke was, I think, to the same effect in the short passage from Calvin’s Case 7 Co Rep 1, 20a set out by Lord Evershed MR in Ex p. Mwenya [1960] 1 QB 241, 293, which I have cited: the judgments in In re Mansergh 1 B & S 400, whatever, with respect, they in fact decide, draw no distinction between habeas corpus and the other prerogative writs in relation to jurisdiction: and lastly, no such distinction could in my judgment survive the glare of reason; habeas corpus is a high constitutional writ because it protects the individual from unlawful detention, but an order of certiorari, while not necessarily concerned to secure the freedom of the person, is just as surely provided as a remedy against arbitrary, capricious and oppressive conduct.

27.

If there is no absolute prohibition upon the court’s jurisdiction to issue certiorari to overseas territories subject to the Queen’s dominion, might there at least be a qualified or partial restriction, having effect in any case where there are established local courts themselves possessing the power to adjudicate upon the complaint put forward? This, as I have indicated, is Mr. Pannick’s true case. But such a position is in reality a paradigm of a familiar rule of discretion, namely that judicial review is a legal recourse of last resort and an applicant must exhaust any proper alternative remedy open to him before the judicial review court will consider his case. This, surely, is the category to which Mr. Pannick’s argument on jurisdiction truly belongs. There is no authority at all – none in In re Mansergh – for the proposition that the existence of effective local courts negatives the jurisdiction of the Queen’s Bench to issue certiorari extra-territorially. It may be that the reasoning in In re Mansergh, though undoubtedly deploying the language of jurisdiction, is in truth directed to this powerful principle of discretion. At all events one has in mind that in that case their Lordships found very strong reasons why the power to order certiorari, if on the facts they possessed it, should not be exercised.

28.

I conclude that this court owns ample jurisdiction to make the order sought in this case, if it be right to make it. That result is not contradicted by the ‘two elements’ in Mr. Pannick’s submission which I identified at Paragraph 21. 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 creature of those undertakings. If the applicant in these proceedings had sought to sue in the BIOT courts, the reply might have been that those courts had no authority to control the Secretary of State sitting in Whitehall, and it would have been a true reply”.

Particular emphasis is placed on Paragraph 28. It is said that the situation here is similar in that the defendant was acting qua Secretary of State for the United Kingdom, and various passages in the judgments of Wood CJ, Scott Baker J and the Court of Appeal were identified which were said to establish that he was concerned with U.K. interests in acting as he did.

I am bound to say that I do not think that the last sentence of Paragraph 28 is correct. There is no doubt that the High Court in England has jurisdiction to issue prerogative orders to control abuses of powers in any overseas territory subject to the Queen’s dominion. The older cases concern habeas corpus, but the jurisdiction applies equally to prerogative orders. But, as it seems to me, the local court would also have jurisdiction in relation to the implementation of the action required by the defendant by the local authority. The local court should not accept that the action in question was lawful merely because the relevant minister here decided that it should occur. In practice, it would no doubt be more convenient, particularly in relation to powers of discovery, to deal with such claims in London, but that is a matter of discretion and not of jurisdiction.

But Bancoult was concerned with public law and prerogative orders. So in this case, the judicial review was properly brought here. But it does not in the least follow that a private law action can be brought here. In any event, even if it could, the absence of any declaration under Article 4 of the First Protocol prevents the claimants from being a victim within the meaning of section 7. Whatever may have been his motives, there is no question but that in acting pursuant to the 1985 Ordinance, the defendant was acting on behalf of the Crown in right of government of SGSSI. Thus there can be no right to claim under the 1998 Act.

My conclusion that there is no claim under s.7 of the 1998 Act means that it is strictly speaking unnecessary to deal with the other grounds raised by the defendant. However, since they were fully argued and this case may go further, I should set out my conclusions on them. First, it is submitted that the claimants had no possession within the meaning of Article 1 of the First Protocol and so no breach of Article 1 could have occurred.

Article 1 so far as material reads:-

“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”.

In the amended Particulars, the claimants assert that the possession was “an entitlement to or a legitimate expectation of an entitlement to the licence in question”. There is no doubt that a licence to carry out some economic activity can amount to a possession for the purposes of Article 1 so that an unlawful removal of such a licence can constitute a breach of Article 1. A good example is to be found in Tre Traktörer Aktiebolag v Sweden (1989) 13 E.H.R.R. 309, which concerned the revocation of a licence to sell alcohol at a restaurant. In Paragraph 53 on p.323 the Court said:-

“The Government argued that a licence to serve alcoholic beverages could not be considered to be a ‘possession’ within the meaning of Article 1 of the Protocol. This provision was therefore, in their opinion, not applicable to the case.

Like the Commission, however, the Court takes the view that the economic interests connected with the running of Le Cardinal were ‘possessions’ for the purposes of Article 1 of the Protocol. Indeed, the Court has already found that the maintenance of the licence was one of the principal conditions for the carrying on of the applicant company’s business, and that its withdrawal had adverse effects on the goodwill and value of the restaurant.

Such withdrawal thus constitutes, in the circumstances of the case, an interference with TTA’s right to the ‘peaceful enjoyment of [its] possessions’.”

Generally speaking a possession must be an existing possession and is not extended to include a right to acquire a possession. Thus the licence must normally be an existing licence: see Marckx v Belgium (1979) 2 E.H.R.R. 320 at Paragraph 50 on p.359. The claimants rely on Pine Valley Developments Ltd v Ireland (1991) 12 E.H.R.R. 319 for the proposition that a legitimate expectation of obtaining a licence may constitute a possession. That case concerned the purchase of land by the applicants with an existing grant of outline planning permission which was subsequently and allegedly in breach of Article 1 stated by Irish Supreme Court to have been ultra vires and so a nullity ab initio. In Paragraph 51 on p.354 the Court said:-

“Bearing in mind that in the first Pine Valley Case the Supreme Court held that the outline planning permission granted to Mr. Thornton was a nullity ab initio, a first question that arises in this case is whether the applicants ever enjoyed a right to develop the land in question which could have been the subject of an interference.

Like the Commission, the Court considers that this question must be answered in the affirmative. When Pine Valley purchased the site, it did so in reliance on the permission which had been duly recorded in a public register kept for the purpose and which it was perfectly entitled to assume was valid. That permission amounted to a favourable decision as to the principle of the proposed development, which could not be re-opened by the planning authority. In these circumstances it would be unduly formalistic to hold the Supreme Court’s decision did not constitute an interference. Until it was rendered, the applicants had at least a legitimate expectation of being able to carry out their proposed development and this has to be regarded, for the purposes of Article 1 of Protocol No.1 as a component part of the property in question”.

The defendant submits that there was here no legitimate expectation since the claimants had never been led to believe that they would be granted a licence. No doubt they had very strong grounds for believing that they would be granted a licence: as Laws LJ put it in the Court of Appeal, ‘they must have thought they had a very fair wind, to put it at its lowest’ (Paragraph 21). But that does not amount to a legitimate expectation, certainly in terms of domestic law. I accept that it is 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. Much in such a case will depend on the facts which are established. If the refusal of a licence which has previously been granted has the effect of removing the economic viability of the possession of which the licence enables use to be made that may constitute a breach of Article 1. My attention has been drawn to the delightfully named Scottish case Catscratch Ltd v Glasgow Licensing Board 4.6.2001 in which Lord Johnston accepted that a failure to obtain the extension of a licence could not properly be distinguished from a removal of that licence (assuming appropriate facts) and so could constitute a breach of Article 1. I very much doubt whether the claimants will be able to establish the necessary factual basis to enable the court to decide that there was here a breach of Article 1, but I cannot rule out the possibility that they might. They have an arguable case and one which, on this point, it would be wrong to prevent from going to trial.

The second matter raised is delay. S.7(5)(a) of the 1998 Act requires that a claim be made within 12 months of the act complained of. The claim in the amended particulars was not made until March 2003, some 21 months after the decision of June 2001. In fact, the first intimation that a claim would be made under s.7 was given to the defendant in correspondence on 7 February 2003. The burden clearly rests on the claimants to establish that it would be equitable in all the circumstances to allow the claim to proceed. But the test set out in s.7(5)(b) gives the court a very wide discretion. Relevant considerations will be the reasons for the delay and whether any prejudice will be caused to the defendant if the claim is permitted to proceed.

In their skeleton the claimants sought to make the point that an amendment has effect from the date of the original statement. However, Mr. Vaughan recognised that this was a bad point since in giving leave to amend I had specifically left it open to the defendant to advance the limitation argument and so Mr. Vaughan very properly abandoned it. The reality was that the claimants were concentrating on the judicial review when the proceedings were commenced and, although a claim for damages was made, it was not particularised. I am bound to note that in the claim form it was said no human rights issues arose; this judgment shows that that was a correct view. Shortly before the hearing before Scott Baker J it was argued that damages should be considered after the judicial review and that approach continued to the Court of Appeal hearing. In these circumstances, the claimants’ advisers did not further consider the claim for damages and it was only when the judicial review was concluded that they applied their minds to it. It is submitted that it was only when the ‘full extent of the defendant’s unlawful behaviour was established that the claim under s.7 was regarded as properly arguable and that that extent was shown by the late discovery’. I am not particularly impressed by that submission since the potential of the s.7 claim should have been appreciated (if it was considered arguable) from the outset, although further particulars might have been relied on later.

It is clear that there is no prejudice to the defendant. He has known of the existence of a claim for damages from the outset and there is no question of the delay making it more difficult for him to present his defence properly. I can understand why the claimants’ advisors took their eyes off the ball. Errors by a claimants’ advisors will often not excuse delay, but I am just persuaded that it would have been equitable to allow their claim to proceed if I had considered that it was arguable. Accordingly, I would not have struck it out on the ground of delay.

I can deal very shortly with the remaining heads of claim for breach of statutory duty and at common law. The statutory duty relied on is that said to arise under Article 5 of the SGSSI Order 1985 in that any instructions given by the defendant had to be lawful and reasonable. It is trite law that a breach of a statutory duty cannot by itself give rise to a private law cause of action. It will only do so if it can be shown that as a matter of construction the duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private law right of action for breach of that duty: see per Lord Browne-Wilkinson in X(Minors) at p.731D. The action taken was to the detriment of the claimants, but the duty imposed is clearly a general one (and the smallness of the population of SGSSI cannot affect the principle). The logic of the claimants’ case is that any act of government which a court decides was unlawful in that it was in breach of a statutory duty will give rise to a claim if the act can be shown to have been directed at a limited class or indeed an individual. That is not the law. There is no doubt that this claim is not maintainable.

The claim for breach of common law rights is equally if not more hopeless. It is an attempt to elevate a claimed legitimate expectation to become a right at common law. The claimants describe it as a novel point. Indeed it is. Of course, novelty is not by itself a reason to reject a claim, but it may help to show that the claim is indeed unarguable. That is the position here.

It is accepted that the claim for exemplary damages is parasitic upon the claims which I have decided cannot proceed. It has no independent existence and so I do not need to consider whether it has any merit.

The defendant’s application must accordingly succeed. I reach this conclusion with some regret since the claimants have an apparently strong case that they have suffered loss as a result of unlawful acts by the defendant. It is perhaps some consolation that the claimants have been granted licences for 2002 and 2003 and I am told that it is believed that it is likely that their pursuit of and success in the claims for judicial review has assisted them to get those licences. The reality is that they are in the position that those who suffered loss as a result of unlawful action by a public body were in this country before the 1998 Act was brought into effect. But it seems to me that this case is yet another which shows that consideration should be given by Parliament to providing some possibility of a claim for damages for unlawful executive action which causes loss. It is clearly not something which can be done by the courts.