Regina v. Secretary of State for Foreign and Commonwealth Affairs (Appellant) ex parte Quark Fishing Limited (Respondents) Regina v. Secretary of State for Foreign and Commonwealth Affairs (Respondents) ex parte Quark Fishing Limited (Appellants) (Conjoined Appeals)
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. Secretary of State for Foreign and Commonwealth Affairs (Appellant) ex parte Quark Fishing Limited (Respondents)
Regina v. Secretary of State for Foreign and Commonwealth Affairs (Respondent) ex parte Quark Fishing Limited (Appellants)
 UKHL 57
LORD BINGHAM OF CORNHILL
The instruction complained of in these proceedings was given under this subsection. The Commissioner has wide powers: to make laws for the peace, order and good government of the Territories (section 9(1)); to constitute offices and make appointments (section 7); to make grants of land (section 14); to establish courts of justice, including a Supreme Court (section 13); and to grant pardons and remit sentences (section 11). But in matters touching on defence and security the Commissioner must follow the advice of the officer commanding Her Majesty's Forces in the South Atlantic (section 5(2)), and the Commissioner's exercise of other powers is subject to the instructions and control of the Secretary of State. Thus the Commissioner holds office during Her Majesty's pleasure (section 4(1), as amended). His powers and duties are those assigned to him by Her Majesty, with whose instructions he is bound to comply (section 5(1), above). The Commissioner's power to make laws is subject to the instructions of Her Majesty through a Secretary of State; the Commissioner must so far as practicable observe the rules set out in an annex to the Order; and laws made by him may be disallowed by Her Majesty (sections 9(2), 10(1)). The power to constitute offices is limited to such offices as may be constituted by Her Majesty, subject to local laws and subject to any instructions given (section 7). The power to dispose of land is subject to local laws and any instructions given (section 14). Pardons and remissions of sentence are to be granted in Her Majesty's name and on her behalf (section 11). SGSSI is a legal entity. But the United Kingdom is responsible for its external relations and thus has the responsibility in international law for ensuring compliance with those international obligations which apply to it.
The regulation of fishing in SGSSI waters
This was echoed by Pill LJ in para 25 of the judgment under appeal:
This has not been challenged by the Secretary of State, and could not be challenged since it reflects the evidence which he adduced.
The first issue
Quark was unable satisfactorily to distinguish this authority.
Unusually, a five-member appeal committee of the House of Lords heard a petition for leave to appeal, and Lord Diplock gave reasons for dismissing it. He regarded the petitioners' contention as unarguable for the accumulated reasons given in the judgments of the Court of Appeal (see pp 937-938). These include the observations of Kerr LJ which I have quoted, and the express approval of the committee, including in Lord Diplock a notable authority in this area, must give them even greater weight.
The Court of Appeal reached a different view. In doing so, it observed (para 48) that under the 1985 Order there "is a very considerable reservation of powers to the Secretary of State". But this is not so. There is a considerable reservation of powers to Her Majesty, as Queen of SGSSI, but none to the Secretary of State. It went on to suggest (para 50), borrowing the language of Laws LJ in Bancoult, that "it would be an abject surrender of substance to form to treat the instruction given by the Secretary of State on behalf of Her Majesty as one given in right of [SGSSI]". But I do not think the issue is properly to be regarded as a contest between substance and form: it turns on identifying the correct constitutional principle. While the court accepted (para 51) that the reason why a particular decision is taken cannot be determinative of the construction of the instruction, it held that the instruction had nevertheless to be construed in the context of a factual matrix which included the political and diplomatic context of the instruction. Here, there is no issue of construction. What is in issue is the constitutional standing of the instruction. The factual matrix might, I accept, be relevant if there were in a given territory no government, or no government worthy of the name, other than the United Kingdom Government. There would then be no government other than that of the United Kingdom Government on whose behalf an exercise of executive power could be made, no other government in right of which the Queen could act. But that is not this case. Here, there is nothing to displace the initial inference that the instruction was given by Her Majesty, through the Secretary of State, in right of the government of SGSSI.
The second issue
Thus the parties assumed that no claim for damages under section 7 could lie if the instruction were held to have been given by Her Majesty in right of SGSSI.
LORD NICHOLLS OF BIRKENHEAD
The territorial scope of the Human Rights Act
The Human Rights Act and Article 56 extensions
A similar power of extension appears in successive Protocols: see, for instance, article 4 of the first Protocol.
The territorial scope of the Convention
The capacity in which the Secretary of State acted
LORD HOPE OF CRAIGHEAD
The first issue
The reference to Her Majesty in this part of this section is plainly a reference to Her Majesty as Head of State and Queen of SGSSI. Mr Vaughan did not seek to suggest otherwise. The section then provides as follows:
In para 50 he said that it would be an abject surrender of substance to form to treat the instruction given by the Secretary of State on behalf of Her Majesty as one given in right of South Georgia.
The second issue
The words "as it has effect for the time being in relation to the United Kingdom" do not appear in the definition of the words "the First Protocol". But article 4 of the First Protocol provides that a declaration made in accordance with that article shall be deemed to have been made in accordance with article 56(1) of the Convention, and article 5 provides that the provisions of articles 1, 2 and 3 and 4 shall be regarded as additional articles of the Convention and that all the provisions of the Convention shall apply accordingly. The qualification that is added to the definition of "the Convention" applies, by implication, equally to the definition of the First Protocol.
BARONESS HALE OF RICHMOND