QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R(Quark Fishing Ltd.)
|Secretary of State for Foreign & Commonwealth Affairs
David VAUGHAN Q.C. & Fergus RANDOLPH (instructed by Thomas Cooper & Stibbard, Solicitors) for the Respondents/Claimants.
Hearing dates: 12 & 13 June 2003
HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
Crown Copyright ©
Mr. Justice Collins:
"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.
"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.
" 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".
"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.
"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
"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 ). 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.
"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".
" 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.
"(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".
"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  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".
"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 9th Edition 1992 (Jennings and Watts), Vol.1 & 137; P.M. Dupuy, Droit International Public, 4th Edition 1998, p.61; and Brownlie, Principles of International Law, 5th 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, 6th 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 48th 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".
"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".
"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".
"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".
"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".
"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".
"26. It is plain that the court in Ex p. Mwenya  1 QB 241, and at least the majority (Vaughan Williams and Farwell LJJ) in Ex p. Sekgome  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  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".
"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 Traktφrer Aktiebolag v Sweden (1989) 13 EHRR 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".