Scottish Court of Session Decisions

LORD ROSS'S OPINION.—In this action the pursuer, as tutrix and administratrix-at-law of her three pupil children and as an individual, seeks certain declarators and an interdict against Her Majesty's Secretary of State for the Home Department. The Lord Advocate is the defender as representing the Secretary of State for the Home Department. The action arises out of the rules relating to immigration in the United Kingdom, and raises sharply the question of whether the provisions of the European Convention of Human Rights are directly enforceable in the Scottish Courts.

There is a fairly complicated background to the action, and I now set forth the basic background in fact as contained in the parties' pleadings. In or about August 1970, Joga Singh entered the United Kingdom illegally using the passport of his cousin. In September 1970, he pleaded guilty to a charge of making a false representation and was recommended for deportation. On or about 23rd November 1970, the Secretary of State for the Home Department signed a deportation order against Joga Singh. It appears that thereafter Joga Singh disappeared and that the authorities could not find him.

On or about 25th December 1974, the second pursuer Surjit Kaur came to the United Kingdom from India and was admitted as the fiancée of Joga Singh for a period of three months. The second pursuer avers that she is the wife of Joga Singh, and the defender avers that the second pursuer married Joga Singh on or about 21st January 1975. At the end of the three-month period, the second pursuer did not apply for an extension of the period, but it appears that she continued to reside in the United Kingdom illegally. Three children are said to have been born to the second pursuer and Joga Singh, namely Parmjit Kaur who was born on 2nd October 1975, Manjit Kaur who was born on 9th September 1976 and Malkit Singh who was born on 28th August 1977.

On or about 2nd December 1976, Joga Singh was detained at Glasgow Airport by immigration officers acting under the Immigration Act 1971 (cap. 77). On or about 17th February 1977, the second pursuer was served with notice of intention to deport on the ground of her overstaying the period for which she had been admitted to the United Kingdom. She appealed against this notice to the adjudicator, but her appeal was dismissed on 30th May 1977. She then appealed to the Immigration Appeal Tribunal which dismissed her appeal on 28th November 1977. On 18th December 1977, the Home Secretary signed a deportation order against the second pursuer. In or about February 1978, Joga Singh was deported in pursuance of the deportation order of 23rd November 1970. In or about June 1978, the second pursuer was deported in pursuance of the deportation order made against her. She and the three children then left the United Kingdom, and she and they now reside in India whence she had come to the United Kingdom in 1974.

It is next necessary to consider certain provisions of the Immigration Act 1971. Section 1 deals with general principles. Section 1 (1) provides "all those who are in this Act expressed to have the right to abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person." Section 1 (2) provides "Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; and indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there (and not exempt under this Act from the provisions relating to leave to enter or remain)."

Section 2 of the Act of 1971 defines those persons who have a right of abode, and provides that such persons are to be known as "patrials." Section 2 (1) (a) of the Act of 1971, which governs the situation of the pursuer's children is in the following terms:—

"2 (1) A person is under this Act to have the right of abode in the United Kingdom if—(a) he is a citizen of the United Kingdom and Colonies who has that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands …"

The circumstances under which a woman is to have the right of abode in the United Kingdom are set out in section 2 (2). Section 2 (6) enacts that "In the following provisions of this Act the word ‘patrial’ is used of persons having the right of abode in the United Kingdom."

Section 3 of the Act of 1971 contains general provisions for the regulation and control of non-patrials. Section 3 (1) provides as follows:—

"3 (1) Except as otherwise provided by or under this Act, where a person is not patrial: (a) he shall not enter the United Kingdom unless given leave to do so in accordance with this Act; (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period; (c) if he is given a limited leave to enter or remain in the United Kingdom, it may be given subject to conditions restricting his employment or occupation in the United Kingdom, or requiring him to register with the police, or both."

It appears to have been under this provision that the second pursuer was admitted to the United Kingdom as the fiancée of Joga Singh for a period of three months.

Section 3 (2) of the Act empowers the Secretary of State to lay down rules to be followed in the administration of the Act and lay them before Parliament, and I was informed that such rules had been laid before Parliament on 25th January 1973.

Section 3 (3) provides as follows:—

"(3) In the case of a limited leave to enter or remain in the United Kingdom: (a) a person's leave may be varied, whether by restricting, enlarging or removing the limit of its duration, or by adding, varying or revoking conditions, but if the limit on its duration is removed, any conditions attached to the leave shall cease to apply; and (b) the limitation on any condition attached to a person's leave may be imposed (whether originally or on a variation) so that they will, if not superseded, apply also to any subsequent leave he may obtain after an absence from the United Kingdom within the period limited for the duration of the earlier leave."

It is clear from the pleadings that the second pursuer never applied for the duration of her limited leave to enter the United Kingdom to be extended. It follows that after the duration of the limited leave had expired, the second pursuer was in the United Kingdom illegally. This rendered her liable to deportation under section 3 (5) of the Act which provides:—

"(5) A person who is not patrial shall be liable to deportation from the United Kingdom: (a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; or (b) if the Secretary of State deems his deportation to be conducive to the public good; or (c) if another person to whose family he belongs is or has been ordered to be deported."

Section 15 of the Act of 1971 contains provisions for appeals to an adjudicator in respect of deportation orders and section 20 provides for appeals to an appeal tribunal from a determination of an adjudicator. It was under these statutory provisions that the second pursuer made her unsuccessful appeals prior to her being deported.

As was pointed out on behalf of the defender, the second pursuer has not averred that she was not liable to be deported, nor that Joga Singh was not liable to be deported; nor has the second pursuer averred that the deportation was anything other than legal under the provisions of the Act of 1971.

The terms of the declarators make it clear that the second pursuer is maintaining that the deportation order made by the Home Secretary on the second pursuer is a violation of the human rights of the three children and of the second pursuer. The three declaratory conclusions are in the following terms:—

"(1) For declarator that the deportation order made by the Home Secretary on the second pursuer on 18th December 1977 was a violation of the human rights of the said Parmjit Kaur, Manjit Kaur and Malkit Singh conferred upon them by article 8 of the European Convention of Human Rights signed on 4th November 1950, and ratified by the United Kingdom on 8th March 1951 which entered into force on 3rd September 1953. (2) For declarator that the deportation order made by the Home Secretary on the second pursuer on 18th December 1977 was a violation of the human rights of the said Parmjit Kaur, Manjit Kaur and Malkit Singh conferred upon them by article 3 of the Fourth Protocol to the European Convention of Human Rights signed on 16th September 1963, which entered into force on 2nd May 1968. (3) For declarator that the deportation order made by the Home Secretary on the second pursuer on 18th December 1977 was a violation of the human rights conferred upon the second pursuer by article 8 of the European Convention of Human Rights aforesaid and of article 3 of the Fourth Protocol to the said Convention."

The pursuers also have a fourth conclusion concluding for interdict against the Home Secretary or anyone acting on his behalf from deporting the second pursuer furth of the United Kingdom in exercise of the deportation order of 18th December 1977 or otherwise, and also for interim interdict. On 4th May 1978, Lord Kincraig refused a motion for interim interdict in terms of this conclusion as incompetent. At the hearing before me, the learned Dean of Faculty who led for the pursuer accepted that the fourth conclusion was incompetent. Accordingly it is the three declaratory conclusions only which arise for consideration at this stage.

Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms signed on 4th November 1950 is in the following terms:—

"Article 8. (1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or for the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The Fourth Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms which is expressed as "securing certain rights and freedoms other than those already included in the Convention and in the first protocol thereto" was signed on 16th September 1963. Article 3 thereof is in the following terms:—

"Article 3. (1) No one shall be expelled, by means either of an indivuidal or of a collective measure, from the territory of the State of which he is a national. (2) No one shall be deprived of the right to enter the territory of the State of which he is a national."

It is a matter of agreement between the parties that the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention") was signed on 4th November 1950 and was ratified by the United Kingdom on 8th March 1951; and that it entered into force on 3rd September 1953.

As regards the fourth protocol, which was signed on 16th September 1963, the pursuers aver that it entered into force on 2nd May 1968. This is denied by the defender, and both parties are agreed that the fourth protocol has not been ratified by the United Kingdom Government. On behalf of the Lord Advocate it was argued that since the fourth protocol has not been ratified, it cannot have entered into force. "… ratification is essential to bring the treaty into force." (M'Nair—Law of Treaties p. 130). I am inclined to think that this argument for the Lord Advocate is well-founded but meantime I shall proceed to examine the broader question as though both the Convention and the protocol had been ratified.

It will thus be seen that the principal issue in this case is whether the pursuer's children have rights under the Convention and the fourth protocol which are recognised by the law of Scotland and which are enforceable in the Scottish Courts.

On behalf of the defender, it was contended that the Convention was not part of the law of Scotland. The first submission of the pursuers' counsel on the other hand was that the Convention did have to be taken into account in the Scottish Courts and was to some extent at least part of the law of Scotland. Both parties relied on a number of English authorities and sought to deduce certain principles therefrom. Reference was also made to three text-book writers.

In my opinion the Convention cannot be regarded in any way as part of the municipal law of Scotland. I accept that the Convention sets forth a number of very important principles relating to human rights, but the provisions of the Convention have never entered into the law of Scotland. As I understand it, the law of Scotland is to be found partly in enactments by a body with legislative power and partly in the common law. A Treaty or a Convention is not part of the law of Scotland unless and until Parliament has passed legislation giving effect to the Treaty provisions.

I was referred to three text-books, all English. The authors all appear to be agreed that the Convention is not part of the law of England. In his Constitutional and Administrative Law (6th edition), Professor Hood Phillips states "The United Kingdom ratified the Convention in 1951, and although it is not part of English Law the Convention has begun to exert so strong an influence on the way civil rights are regarded in this country that it is appropriate to include here some account of the contents of the Convention and the machinery for its enforcement" (p. 440). Subsequently he states "Judges in the House of Lords and the Court of Appeal, while conceding that it is not part of our domestic law, have looked at the European Convention as an aid in the construction of statutes" (p. 444). Later again he states "No decision of the British Courts has actually been based on the European Convention" (p. 446).

In Fawcett, The Application of the European Convention on Human Rights at p. 17, the learned author says this, "United Kingdom. Ratified on 22nd February 1951, the Convention has not been given statutory form, either directly or by reference, in the United Kingdom. Since the ratification of the Convention is plainly not an exercise by the Crown of its prerogative rights to conduct war and make peace, and since its provisions have not been incorporated in a United Kingdom Statute, they are not justiciable in any Court in the United Kingdom."

In A. H. Robertson's Human Rights in Europe, the author draws attention to the fact that article 1 of the Convention reads as follows:—

"the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of this Convention"

(Article 8 appears in section 1). Mr Robertson points out that article 1 contains an immediate obligation on the contracting parties to secure the rights and freedoms guaranteed, and not merely an undertaking to do so at some future date, and he observes that in earlier drafts of the Convention, article 1 had read "the High Contracting Parties undertake to secure …" However, that language was altered and the words "undertake to secure" were deleted, and for these words there were substituted the words "shall secure." (As he points out the amendment is even clearer in the French text where the original words were "les Hautes Parties Contractantes s'engagent à reconnaître …," and the amended words were "Les Hautes Parties Contractantes reconnaissent …" Mr Robertson proceeds to suggest that a state which is a party to a treaty is under an obligation to ensure that its national law conforms to its international obligations, but that individual states may secure the conformity in various ways. "In fact national practice varies considerably in this respect. In some countries the treaty itself has no effect on municipal law unless the legislature passes a law for the purpose. This is the case in the United Kingdom, Ireland and the Scandinavian countries." (p. 27).

So far as the text-book writers are concerned there thus appears to be agreement that the Convention does not form part of the municipal law of the United Kingdom.

I was also referred to various English cases. This is a field of law where it would be proper to seek assistance from reported decisions in the English Courts although these decisions are not binding in Scotland. In a matter of this kind, a decision of the Court in England is entitled to respect and the reasoning of the judges may provide help to the Scottish Courts when they are faced with a similar question.

A number of authorities in England were referred to in the hearing in procedure roll, and I now summarise the conclusions which I draw from these cases. (1) In England, it is accepted that Conventions such as the European Convention on Human Rights are not part of the municipal law of England. "There are many cases in which it has been said, as plainly as can be, that a treaty does not become part of our English law except and in so far as it is made so by Parliament." (R. v. Secretary of State for Home Affairs, ex parte Bhajan Singh [1976] Q.B. 198 per Lord Denning M.R. p. 207). That case concerned the Convention. In a later case, concerning the Chicago Convention and the Bermuda Agreement 1946, (which relate to International Air Traffic), Lord Denning M.R. said "Now I would like to say at the outset that in my judgment this Bermuda Agreement forms no part of the municipal law of this country" (Pan-American World Airways Inc. v. Department of Trade [1976] 1 Lloyd's Rep. 257 at p. 260). Later Lord Denning M.R. said "I cannot for myself think that the Bermuda Agreement forms part of our municipal law."

R. v. Chief Immigration Officer, Heathrow Airport, ex parte, Salomat Bibi [1976] 3 All E.R. 843, was another case concerning article 8 of the Convention. It was there argued for the applicant that every person was given by article 8 a right which the Courts must recognise and enforce, but Lord Denning M.R. declined to accept that submission under reference to the two authorities last cited. He said "But I would dispute altogether that the Convention is part of our law. Treaties and declarations do not become part of our law until they are made law by Parliament." (p. 847). He also observed of article 8 of the Convention "It is so wide as to be incapable of practical application." (p. 848) Similar views to those of Lord Denning M.R. were also expressed by Roskill L.J. (as he then was) at p. 848, where he said "Suffice to say that a treaty does not become part of the municipal law of this country unless and until it is the subject of legislation in the ordinary way. That is axiomatic; it has been laid down for many years," and by Geoffrey Lane L.J. (as he then was) at p. 850 where he said "Nevertheless the Convention, not having been enacted by Parliament as a statute, does not have the effect of law in this country."

In Ahmad v. Inner London Education Authority [1978] Q.B. 36, Lord Denning M.R. at p. 41 said of the Convention "The Convention is not part of our English law, but, as I have often said, we will always have regard to it."

In Malone v. Metropolitan Police Commissioner [1979] 2 W.L.R. 700 at p. 720, Sir Robert Megarry, v.c. said "The Convention is plainly not of itself law in this country, however much it may fall to be considered as indicating what the law of this country should be, or should be construed as being." This case is direct authority for the proposition that the rights claimed under article 8 of the Convention are not legal or equitable rights under the law of England.

Although these English authorities are not binding on me, they appear to support my opinion that the Convention is not in any way part of the municipal law of Scotland.

(2) The second conclusion which may be drawn from the English authorities is that if there is any ambiguity in a United Kingdom Statute, the Court in England may look at and have regard to the Convention as an aid to construction. Lord Denning M.R. said as much in Birdi v. Secretary of State for Home Affairs (1975) 119 Sol. J. 322. He repeated it in R. v. Secretary of State for the Home Department, ex parte Bhajan Singh, supra, at p. 207 "What is the position of the Convention in our English law? I would not depart in the least from what I said in the recent case of Birdi v. Secretary of State for Home Affairs . The Court can and should take the Convention into account. They should take it into account whenever interpreting a statute which affects the rights and liberties of the individual. It is to be assumed that the Crown, in taking its part in legislation, would do nothing which is in conflict with treaties. So the Court should now construe the Immigration Act 1971 as to be in conformity with a Convention and not against it."

In R. v. Secretary of State for the Home Department, ex parte Phansopkar [1976] Q.B. 606, Scarman L.J. (as he then was) said at p. 626 "This hallowed principle of our law is now reinforced by the European Convention for the Protection of Human Rights 1950 to which it is now the duty of our public authorities in administering the law, including the Immigration Act 1971, and of our Courts in interpreting and applying the law, including the Act, to have regard: see R. v. Secretary of State for Home Affairs, ex parte Bhajan Singh in this Court."

In Pan-American World Airways Inc. v. Department of Trade, supra, Scarman L.J. (as he then was) referred to Salomon v. Commissioners of Customs and Excise [1967] 2 Q.B. 116 and observed that in certain circumstances "it does become the duty of our Courts to look at the International Convention and to interpret the law or the words of the statute under consideration in the light of the Convention." Later he said "If statutory words have to be construed or a legal principle formulated in an area of the law where Her Majesty has accepted international obligations, our Courts—who, of course, take notice of the acts of Her Majesty done in the exercise of her sovereign power—will have regard to the Convention as part of the full content or background of the law. Such a Convention, especially a multilateral one, should then be considered by Courts even though no statute expressly or impliedly incorporates it into our law. See recent decisions of this Court interpreting the Immigration Act 1971 in the light of the European Convention on Human Rights 1950 (Bhajan Singh: Phansopkar)."

In R. v. Chief Immigration Officer, Heathrow Airport, ex parte Salomot Bibi, supra, Lord Denning M.R. said (p. 847) "The position, as I understand it, is that if there is any ambiguity in our statutes or uncertainty in our law, then these Courts can look to the Convention as an aid to clear up the ambiguity and uncertainty, seeking always to bring them into harmony with it. Furthermore, when Parliament is enacting a statute or the Secretary of State is framing rules, the Court will assume that they had regard to the provisions of the Convention and intended to make the enactment accord with the Convention, and will interpret them accordingly." In the same case, Roskill L.J. (as he then was) commenting on the dicta of Scarman L.J. in the Pan-American and Phansopkar cases, stated that these dictawere too widely expressed and might call for reconsideration.

As already observed, in Ahmad v. Inner London Education Authority, supra, Lord Denning M.R. expressed the view that the Court would always have regard to the Convention, and he added (p. 41) "We will do our best to see that our decisions are in conformity with it." Scarman L.J. (as he then was) stated (p. 48) "Further, it is no longer possible to argue that because the International Treaty obligations of the United Kingdom do not become law unless enacted by Parliament our Courts pay no regard to our international obligations. They pay very serious regard to them; in particular, they will interpret statutory language and apply common law principles, wherever possible, so as to reach a conclusion consistent with our international obligations: see Salomon v. Commissioners of Customs and Excise (particularly Diplock L.J.); Post Office v. Estuary Radio Ltd. [1968] 2 Q.B. 740."

In Salomon v. Commissioners of Customs and Excise, supra, Lord Denning M.R. said under reference to an International Convention (p. 141) "I think we are entitled to look at it, because it is an instrument which is binding in international law: and we ought always to interpret our statutes so as to be in conformity with international law. Our statute does not in terms incorporate the Convention, nor refer to it. But that does not matter. We can look at it." On the other hand, Diplock L.J. (as he then was) said (p. 143) "Where by a treaty Her Majesty's Government undertakes either to introduce domestic legislation to achieve a specified result in the United Kingdom or to secure a specified result which can only be achieved by legislation, the treaty, since in English law it is not self-operating, remains irrelevant to any issue in the English Courts until Her Majesty's Government has taken steps by way of legislation to fulfil its treaty obligations." Diplock L.J. then went on to say that once the Government has legislated, then if the terms of the legislation are not clear the terms of the treaty become relevant to enable the Court to resolve the ambiguity.

With all respect to the distinguished judges in England who have said that the Courts should look to an International Convention such as the European Convention on Human Rights for the purpose of interpreting a United Kingdom Statute, I find such a concept extremely difficult to comprehend. If the Convention does not form part of the municipal law, I do not see why the Court should have regard to it at all. It was His Majesty's Government in 1950 which was a High Contracting Party to the Convention. The Convention has been ratified by the United Kingdom, but, although this probably means, as counsel pointed out, that the Convention had been laid before both Houses of Parliament before it was ratified (the Ponsonby Rule) (Hood Phillips, supra, p. 288), its provisions cannot be regarded as having the force of law. I respectfully agree with what Lord Diplock said in Salomon's case cited above. Under our constitution, it is the Queen in Parliament who legislates and not Her Majesty's Government, and the Court does not require to have regard to acts of Her Majesty's Government when interpreting the law. It is significant that in article 6 of the Condescendence the pursuers aver "the Government of the United Kingdom is bound by the terms of the said Convention." The government may be so bound, but I do not see how or why the Courts should be bound by the Convention.

For myself, I find myself in agreement with Professor Hood Phillips, supra, at p. 446 where he points out that to use the Convention as an aid to construction is "potentially dangerous," because the Court is then challenging the well-settled principle that the Executive by itself cannot make law. As he says "Indeed, one might argue that the fact that Parliament has hitherto refrained from incorporating the European Convention into our law indicates an intention that its provisions should not be taken into account by the Courts, so that the Convention ought not to be cited by counsel or looked at by the judges."

None of the authorities cited above is, of course, binding in Scotland. A reference was made in the course of the hearing to Mortensen v. Peters (1906) 8F. (J) 93, but that case merely emphasised that the Court must give effect to the clear terms of a statute whether or not it accords with the principles of international law. Indeed, Mortensen v. Peters is consistent with Collco Dealings Ltd. v. Inland Revenue Commissioners [1962] A.C. 1 and with what is said in Maxwell on Interpretation of Statutes (11th edition) p. 183.

So far as Scotland is concerned, I am of opinion that the Court is not entitled to have regard to the Convention either as an aid to construction or otherwise. I respectfully share the view expressed by Diplock L.J. (as he then was) in Salomon's case to the effect that a Convention is irrelevant in legal proceedings unless and until its provisions have been incorporated or given effect to in legislation. To suggest otherwise is to confer upon a Convention concluded by the Executive an effect which only an Act of the legislature can achieve.

I should, however, add that, in the instant case, junior counsel for the pursuers conceded that there was no conflict or ambiguity in the Act of 1971, and therefore no room for the application of the principle which I have rejected to the effect that the Convention can be used as an aid to construction.

Faced with the difficulty of contending that the Convention had become part of our law without any legislation, counsel for the pursuers next suggested that the pursuers' rights under the Convention should be recognised because of the failure of the Government in its obligation to pass legislation so as to make the Convention part of the law of the United Kingdom on the principle quod fieri debet infectum valet. I accept that in certain circumstances what ought to be done avails although not done, but I do not consider that the principle has any application here. Counsel cited the case of M'Kellar v. Livingston & Co. (1861) 23D. 1269. That was a case concerning bankruptcy, and appears to have raised an issue akin to personal bar. In the instant case, no issue of personal bar arises, and even if the Government had failed in an obligation placed on it under the Convention, I do not see how that could create in favour of the pursuers a right which only Parliament, and not the British Government, could give them.

At the end of the day, I understood the Dean of Faculty for the pursuers to appreciate that the dicta in the English cases only took him so far, and he contended that the situation in Scotland was different from that in England because of the application of the principle quod fieri debet infectum valet, and because Scots law unlike English law recognises a ius quaesitum tertio. I have already dealt with the argument so far as based on the brocard quod fieri debet infectum valet. Although I do not profess to know the law of England, it certainly appears that the law of England does not recognise that a third party may acquire rights under a contract between two other parties. In Dunlop Pneumatic Tyre Co. Ltd. v. Selfridge & Co. Ltd. [1915] AC 847, Lord Haldane said (at p. 853) "Our law knows nothing of a ius quaesitum tertio arising by way of contract." See too Scruttons Ltd. v. Midland Silicones Ltd. [1962] AC 446.

Counsel for the pursuers submitted that this was a clear case of two parties contracting to confer a right on others; it was understandable that this argument should never have been raised in England since the law regarding ius quaesitum tertio was different there; the law in Scotland does recognise a ius quaesitum tertio where it is shown that the object of the contracting parties was to advance the interests of a third party; where there is a ius quaesitum tertio the tertius is entitled to sue.

This argument on behalf of the pursuers is superficially attractive, but I have reached the conclusion that the argument is not well-founded. In the first place, it is well-settled that whether or not there is a ius quaesitum tertio depends upon the intention of the contracting parties. The United Kingdom Government as a High Contracting Party cannot have intended to create a ius quaesitum tertio in favour of persons under English law (because the law of England does not recognise such a principle), and I cannot believe that it was at the same time the government's intention to create a ius quaesitum tertio in favour of persons subject to the law of Scotland. In the second place, it is doubtful whether a valid ius quaesitum tertio can be treated in favour of the public at large (Finnie v. Glasgow and South Western Railway Company (1857) 3 Macq. 75 per Lord Chancellor at p. 88). In the third place, although it is reasonable to conclude that the intention of the High Contracting Parties was to confer benefits upon persons within the jurisdiction of the High Contracting Parties, I am of opinion that the Convention does not create enforceable rights in favour of third parties; what it does is to impose obligations upon the High Contracting Parties to secure rights. In terms of article 1 of the Convention, the High Contracting Parties "shall secure to everyone within their jurisdiction the rights and freedoms defined …" In my opinion, such a provision does not create rights in favour of everyone within the jurisdiction, but merely imposes on the High Contracting Parties an obligation or duty to secure those rights for everyone. In the fourth place, so far as the United Kingdom is concerned, the High Contracting Party was the Government, i.e., the Executive. As I have already observed, it is not within the power of the Executive to make laws conferring such rights upon those within the jurisdiction that is the function of the legislature. Accordingly, even if the Convention is regarded as a contract which intended to confer rights on third parties, it was not within the power of one of the contracting parties (Her Majesty's Government) to confer any such rights which the Courts could and should recognise.

Apart from any specialty of community law, I therefore conclude that no good grounds exist for contending that the Convention is enforceable by persons such as the pursuers in an action before the Courts of Scotland. This does not, of course, leave the pursuers without any remedy. In my opinion, the pursuers would have a remedy under article 25 of the Convention, which provides inter alia:—

"(1) The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the Rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right."

The pursuers drew attention to the terms of article 26 of the Convention which provides:—

"The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken."

Robertson, supra, observes (p. 162) "If no domestic remedies are available, then clearly there is no need to have recourse to them before the applicant can address himself to the competent international organ." Fawcett, supra, observes (p. 299) "It may be inferred in general that, where there is a reasonable doubt as to whether a remedy is available under domestic law, an applicant cannot be regarded as having complied with the rule in article 26 unless he has taken proceedings in which that doubt can be resolved."

Once a decision has been given in the present action, then if the decision is against the pursuers, it will be clear that any domestic remedy has been exhausted, and the way will then be open to the pursuers, if so advised, to present a petition to the European Commission of Human Rights.

Counsel for the pursuers, however, contended further and in any event that the Convention was enforceable as part of Community law. Counsel referred to the European Communities Act 1972 (c. 68), and drew attention to the wide terms of section 2 (1) of the Act which deals inter alia with the enforceability of all rights "created or arising by or under the Treaties." The "Treaties" are defined in section 1 of Schedule 1 to the Act and include the Treaty of Rome. Counsel also submitted that the Court of Justice of the European Communities (hereinafter referred to as "the European Court") had already expressed the view that the Convention was part of the law which has to be enforced under the Treaties and that this Court was obliged to follow that ruling and to enforce the Convention as part of Community law. Alternatively, if the matter was in doubt counsel for the pursuers submitted that I should refer the matter to the European Court.

Counsel for the pursuer relied in particular upon the judgment of the European Court in Firma J. Nold K.G. v. E.C. Commission [1974] 2 C.M.L.R. 338. Counsel contended that, standing that judgment of the European Court, the provisions of the Convention and of the fourth protocol had to be fulfilled even though the latter had never been ratified by the United Kingdom Government.

Counsel contended that the present case fell directly under the decision in the case Nold and that the law of Scotland must be regarded as including those principles referred to in Nold because they were part of European law. Alternatively, if the matter were in doubt counsel contended that a reference should be made to the European Court. In this connection counsel relied upon dicta in H. P. Bulmer Ltd. v. J. Bollinger S.A. [1974] Ch 401. Counsel pointed out that any reference to the European Court would be under article 177 of the Treaty of Rome, and that this Court has a complete discretion as to whether or not it should refer a question to the European Court. Moreover, this Court should refer a matter to the European Court "if it considers that a decision on the question is necessary to enable it to give judgment" (Article 177 (2)). Counsel contended that I should exercise my discretion in favour of a reference, and that a reference was necessary to enable the Court to give judgment.

Counsel for the Lord Advocate contended that a reference was unnecessary, and they opposed any reference at this stage. They contended that even if a reference would be helpful it should not be made at this stage but that a decision should be made in this Court leaving it to the dissatisfied party to reclaim, if so advised. It would then be open to the Inner House to refer to the European Court if that should be necessary.

I was referred by both parties to a number of reported decisions in the European Court. It seems clear that for some purposes at least the European Court does enforce the principles contained in the Convention. There are a number of cases where the European Court has emphasised that it must ensure that the fundamental rights of individuals contained in the general principles of the law of the Community are enforced. Thus in Stauder v. City of Ulm [1970] C.M.L.R. 112, in the judgment it is stated "Thus interpreted, the decision in question does not contain any element that might jeopardise the fundamental rights of the individual contained in the general principles of the law of the Community of which the Court must ensure the observance." In Internationale Handelsgesellschaft m.b.H. v. Einfuhr & Vorratsstelle für Getreide & Futtermittel [1972] CMLR 255, in the judgment at p. 283 it is stated "For respect for fundamental rights has an integral part in the general principles of law of which the Court of Justice ensures respect. The protection of such rights, while inspired by the constitutional principles common to the Member States must be ensured within the framework of the Communities structure and objectives."

In Firma J. Nold K.G. v. E.C. Commission, supra, in the submission of the Advocate General at p. 347 it is stated "The submission of violation of fundamental rights, put forward by the applicant, must be considered in so far as the right invoked is protected by the system. As emerges from the case law of this Court, the fundamental rights generally recognised by the Member States form an integral part of our Community system, which, by drawing inspiration from the common traditions of the Member States, guarantees respect for these rights within the limits of the powers conferred on the Community and in accordance with the objectives assigned to it." In the judgment at p. 354 it is stated "As this Court has already held, fundamental rights form an integral part of the general principles of law which it enforces. In assuring the protection of such rights, this Court is required to base itself on the constitutional traditions common to the Member States and therefore could not allow measures which are incompatible with the fundamental rights recognised and guaranteed by the constitutions of such states. The International Treaties on the protection of human rights in which the Member States have co-operated or to which they have adhered can also supply indications which may be taken into account within the framework of Community law. It is in the light of these principles that the complaints raised by the applicant should be assessed."

Counsel for the pursuers relied strongly on such cases and contended that it followed that the rights conferred by the Convention were directly enforceable by the pursuers as part of the law of the Community. Counsel for the Lord Advocate, on the other hand, challenged that contention.

Having carefully considered the submissions made I have reached the conclusion that the argument on behalf of the pursuers is not well-founded. What the pursuers rely upon are generalities or statements of general principle but I agree with Lord M'Cluskey that the European Court does not deal with fundamental rights as such in the abstract; it only deals with them if they arise under Treaties and have a bearing on Community Law questions. An examination of a number of decisions appears to me to bear this out.

In The State v. Watson and Belmann [1976] 2 C.M.L.R. 552, in the opinion of the Advocate General at p. 561, there is a passage in the following terms:

"The first question is whether, in the present case, it is possible to discern an infringement of the right to privacy or of respect for private and family life which is guaranteed under Article 8 of the European Convention of Human Rights and must be regarded as part of the totality of fundamental rights which are protected under the Community system as well."

Subsequently at p. 563 after referring to a judgment of the Court in Rutili v. Minister of the Interior [1976] 1 C.M.L.R. 140, the Advocate General said "On the basis of this analogy between rules of Community law and rules of international law accepted by all the Member States, some learned writers have felt justified in concluding that the provisions of the said Convention must be treated as forming an integral part of the Community legal order, whereas it seems clear to me that the spirit of the judgment did not involve any substantive reference to the provisions themselves but merely a reference to the general principles of which, like the Community rules with which the judgment drew an analogy, they are a specific expression. In fact, in that judgment, the Court substantially reaffirmed the principle which had already emerged from its previous decisions that the fundamental human rights recognised under the constitutions of the Member States are also an integral part of the Community legal order. The extra-Community instruments under which those States have undertaken international obligations in order to ensure better protection for those rights can, without any question of their being incorporated as such in the Community order, be used to establish principles which are common to the States themselves. On the other hand, what is really new in the said reference to fundamental rights made in the Rutili judgment is the context to which it relates, namely, a situation the essential feature of which was that there existed a right to freedom enshrined in the Community system and a discretionary act by a State severely restricting that right. The conclusion can be drawn that respect for the fundamental principles governing the protection of the rights of man as they have been embodied in international instruments binding all the Member States of the Community as well as in the constitutions of the countries concerned may, within the sphere of application of Community law, also be of importance in determining the legality of a State's conduct in relation to a freedom which the Treaty accords to individuals."

In re Royer [1976] ECR 497 there is a passage in the Opinion of the Advocate General at p. 525 where he states "Although the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4th November 1950, cannot be regarded as a Community measure whose direct application must be ensured by the national courts, under the supervision of this Court, it should be noted that Article 5 (1) (f) serves, if it were necessary, to confirm the conclusion which I think is inescapable."

In Benedetti v. Munari F.lli, Sas [1977] E.C.R. 163, the European Court stressed that it is not for the European Court to interpret national law.

In Allgemeine Gold- und Silberscheideanstalt v. Commissioners of Customs and Excise [1978] 2 C.M.L.R. 292, Donaldson J. (as he then was), observed that although fundamental rights enshrined in the Convention are relevant to a consideration of the rights and duties of the Community Institution and may be a background against which the express provisions of the E.E.C. Treaty have to be interpreted, they do not form an implied, unexpressed part of the Treaty itself. (Donaldson J. rejected a request to refer the question to the European Court under article 177.)

In concluding that the pursuers' argument is not well-founded, I am also influenced by the fact that the issue raised in the present case has no Community law content at all. The pursuers here are not seeking to protect some economic right, but merely to assert a right alleged to be conferred on them by the Convention. In all the cases in the European Court relied on by the pursuers there was present some economic feature—thus in Stauder the plaintiff was in receipt of war victims benefit and alleged that in that capacity he was discriminated against; in Internationale Handelsgesellschaft the issue was whether it was lawful to impose a condition on an export licence; and Noldconcerned the rights of coal wholesalers.

No economic feature is present in the instant case, and that too means that the present case is not one to which the laws of the Community apply. In H. P. Bulmer Ltd. v. J. Bollinger S.A., supra, Lord Denning said at p. 418 "The first and fundamental point is that the Treaty concerns only those matters which have a European element, that is to say, matters which affect people or property in the nine countries of the Common Market besides ourselves. The Treaty does not touch any of the matters which concern solely England and the people in it. These are still governed by English law. They are not affected by the Treaty. But when we come to matters with a European element, the Treaty is like an incoming tide."

In The State v. Watson, supra, at p. 564 the Advocate General said "Of course, in contrast to what happens in the case of acts of the Community executive, the acts of the States are subject to review by their own national courts which, together with the European Court of Human Rights, already provide effective protection for fundamental rights. However, without impinging upon the jurisdiction of other courts, this Court, too, can look into an infringement of a fundamental right by a State body, if not to the same extent to which it could do so in reviewing the validity of Community acts, at least to the extent to which the fundamental right alleged to have been infringed may involve the protection of an economic right which is among the specific objects of the Treaty." In R. v. Saunders [1979] 2 All E.R. 267, the European Court in its judgment (p. 277) indicated that the provisions of the Treaty could not be applied to situations where there was no factor connecting them to any of the situations envisaged by Community law.

In R. v. Bouchereau [1978] QB 732 at p. 735, the Advocate General, J.-P. Warner, under reference to liability to deportation under section 3 (5) of the Immigration Act 1971, stated "Manifestly that subsection has to be read subject to considerable modification in the case of a national of another Member State of the Community." This appears to me to be a clear indication that the laws of the Community apply only where there is some Community element in the case. I would add that in the instant case, none of the pursuers are nationals of another Member State of the Community; three are patrials and the one non-patrial is not averred to have any connection at all with any other E.E.C. country.

There is an additional reason for concluding that the pursuers have no rights under Community law. The pursuers have averred (article 9 of the Condescendence) that the rights conferred under article 8 of the Convention and article 3 of the Fourth Protocol are enforceable under the Treaties and they subsequently refer to Article 177 of the Treaty of Rome and sections 2 and 3 of the European Communities Act 1972.

Section 2 (1) of the Act of 1972 provides as follows "All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression ‘enforceable Community right’ and similar expressions shall be read as referring to one to which this subsection applies." Section 3 (1) of the said Act provides "For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court)." The pursuers have not relevantly averred that the rights upon which they rely arise by or under the Treaties. By or under which of the Treaties defined in section 1 of and Schedule 1 to the Act do the rights arise? Upon which article of any particular Treaty do the pursuers rely? If the pursuers are intending to rely on particular provisions of the Treaty of Rome, they have not averred that they rely on that Treaty nor have they specified the articles upon which they rely.

The pursuers have also referred in article 9 of the Condescendence to article 177 of the Treaty. That is the article dealing with the jurisdiction of the European Court. It says:—

"The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of this treaty;

(b) the validity and interpretation of Acts of the institutions of the Community;

(c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide. Where such a question is raised before any court or tribunal of a Member State, the court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State, against whose decisions there is no judicial remedy under national law, the court or tribunal shall bring the matter before the Court of Justice."

The present case could not fall under paragraph (b) or (c), and there are no averments to support the view that it falls under (a). In my opinion this means that a reference to the European Court would be incompetent, which is an added reason for rejecting the pursuers' submission. In Vandeweghe v. Berufsgenossenschaft für die chemische Industrie [1973] E.C.R. 1329 at p. 1333 in the judgment it is stated "The Court has no jurisdiction under Article 177 of the E.E.C. Treaty to give a ruling on the interpretation of provisions of international law which bind Member States outside the framework of Community law."

For all these reasons, I am of opinion that the pursuers have not averred that they have any right under Community law. It follows that the pursuers' case is irrelevant and incompetent since they are seeking declarator of a right which they do not have either under the municipal law of Scotland nor under Community law. The action therefore falls to be dismissed.

I have not found it necessary in this opinion to deal in greater detail with the facts averred by the pursuers and in particular with the question of whether there are relevant averments supporting the proposition that the children's freedem to live in the United Kingdom has been prejudiced by the deportation of their mother. The children themselves were not deported or expelled from the United Kingdom. Their father apparently lives in India, and the 1971 Act does envisage the splitting of families in certain circumstances (section 3 (5)). The Social Work (Scotland) Act 1968 (c. 49) section 15 (1) and section 23 (2) also recognise that families may be split. Having regard to what the pursuers aver in this action I have some doubt as to whether they have relevantly averred that their family life has been disturbed and that they have been forced by the action of the Home Secretary to leave the United Kingdom. The fact that they have left the United Kingdom appears to make it possible for them and their mother to live in family with the father. Having regard, however, to the views which I have formed on the legal arguments raised before me it has not been necessary for me to reach any concluded opinion upon the question of whether the facts averred by the pursuers are capable of supporting the proposition that the family has been forced by the action of the Home Secretary to live either apart or furth of the United Kingdom.

I would only add that if I had thought that the pursuers had made out a prima facie case to the effect that they had a right under Community law and that the issue arose under the Treaty, then I would have been inclined to exercise my discretion so as to make a reference to the European Court at this stage on the ground that a reference at this stage was both necessary and desirable (Löwenbräu München v. Grünhalle Lager International Ltd. [1974] 1 C.M.L.R. 1; Van Duyn v. Home Office [1974] 1 C.M.L.R. 347, also [1974] 3 All E.R. 178; H. P. Bulmer Ltd. v. J. Bollinger S.A. [1974] Ch 401).

For the reasons outlined above, however, I shall sustain the first and second pleas in law for the defender and shall dismiss the action.