|Judgments - Al-Skeini and others (Respondents)
Secretary of State for Defence (Appellant)
Al-Skeini and others (Appellants)
Secretary of State for Defence (Respondent)
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Al-Skeini and others (Respondents) v. Secretary of State for Defence (Appellant)
Al-Skeini and others (Appellants) v. Secretary of State for Defence (Respondent)
 UKHL 26
LORD BINGHAM OF CORNHILL
Mr Hazim Jum'aa Gatteh Al-Skeini was shot dead on 4 August 2003 by a member of a British military patrol in Basra. The claimant is his brother. Very different accounts of the incident have been given by the claimant and his witnesses on one side and British military witnesses on the other.
Mr Muhammad Abdul Ridha Salim was fatally wounded on 6 November 2003 when British troops raided a house in Basra where he was. He received medical attention but died on 7 November 2003. The claimant is his widow. There is again a radical divergence between the respective parties' accounts of this incident.
Mrs Hannan Mahaibas Sadde Shmailawi was shot and fatally wounded on 10 November 2003 in the Institute of Education in Basra. On the British military account she was shot unintentionally during an exchange of fire between a British patrol and a number of gunmen. The claimant is the widower of the deceased, who accepts that the shooting of his wife was not intentional. It appears that she may have been a very unfortunate bystander, and the Secretary of State does not accept that the fatal shot was fired by a British soldier rather than a gunman.Case 4
Mr Waleed Sayay Muzban was shot and fatally injured on the night of 24 August 2003 in Basra. He was driving a people-carrier when he was shot, and he died the next day. The shooting occurred when a British military patrol was, on its account, carrying out a perimeter check and the vehicle, having initially stopped, was driven away and appeared to present a threat. The claimant is the brother of the deceased.
Mr Raid Hadi Sabir Al Musawi was shot and fatally wounded by a member of a British military patrol in Basra on 26 August 2003. He died nine weeks later, on 6 November 2003. The claimant is his mother. The parties' respective accounts of what happened, as in the first case (which, on the facts, it resembles), are radically divergent.
Mr Baha Mousa was employed as a receptionist at a hotel in Basra and was working there on the morning of 14 September 2003 when British troops entered the hotel. He was seized and detained and taken to a British military base in Basra. At the base he was brutally beaten by British troops. He died of the injuries so inflicted during the night of 15 September 2003. The claimant is the father of the deceased, and is a colonel in the Basra police. This deceased, unlike the others, was killed by British troops when held as a prisoner in a British military detention unit. This is the limited basis upon which the Divisional Court held that this case falls within the scope of the Convention, and this is the basis upon which the Secretary of State accepts that finding.
A. Does the HRA apply to acts done outside the territory of the UK?
The focus of this opinion, at this stage of the enquiry, is on the extent of the rights arising under the Act, not those arising under the Convention. Hence the need for careful consideration, in the first instance, of the Act.
In section 128 of the same work, p 306, the learned author adds:
In Tomalin v S Pearson & Son Limited  2 KB 61, Cozens-Hardy MR, with the concurrence of Fletcher Moulton and Farwell LJJ, endorsed a statement to similar effect in Maxwell on The Interpretation of Statutes, pp 212-213:
Earlier authority for that proposition was to be found in cases such as Ex p Blain (1879) 12 Ch D 522, 526, per James LJ, and R v Jameson  2 QB 425, 430, per Lord Russell of Killowen CJ. Later authority is plentiful: see, for example, Attorney-General for Alberta v Huggard Assets Limited  AC 420, 441, per Lord Asquith of Bishopstone for the Privy Council; Clark (Inspector of Taxes) v Oceanic Contractors Inc  2 AC 130, 145, per Lord Scarman; Al Sabah v Grupo Torras SA  UKPC 1,  2 AC 333, para 13, per Lord Walker of Gestingthorpe for the Privy Council; Lawson v Serco Limited  UKHL 3,  ICR 250, para 6, per Lord Hoffmann; Agassi v Robinson (Inspector of Taxes)  UKHL 23,  1 WLR 1380, paras 16, 20, per Lord Scott of Foscote and Lord Walker of Gestingthorpe. That there is such a presumption is not, I think, in doubt. It appears (per Lord Walker in Al Sabah, above) to have become stronger over the years.
In the present case, the Secretary of State contends that the meaning of the HRA is clear and that its terms are not reasonably capable of more than one meaning. But even if he is wrong, this presumption gives the claimants little if any help since the UK undertook no international law obligation to incorporate the Convention into domestic law. It was so held by the Strasbourg court in James v United Kingdom (1987) 8 EHRR 123, para 84, Observer and The Guardian v United Kingdom (1991) 14 EHRR 153, para 76, and McCann v United Kingdom (1995) 21 EHRR 97, para 153. It was also recognised by Brooke LJ in the Court of Appeal (paragraph 144) when he acknowledged that the UK was not obliged to incorporate the Convention into its national law, either in whole or in part. This is, I think, correct. The UK was not in breach of any obligation binding in international law when it omitted, from 1953 to 1998, to give the Convention any direct effect in domestic law. In 1997-1998 it had a policy choice, whether to give effect to the Convention in domestic law at all, and if so to what extent. A decision to give no directly enforceable domestic right to persons claiming to be victims of violations of Convention rights by UK authorities outside the UK, leaving such persons to pursue any such claim against the UK in Strasbourg, would have involved no breach of any obligation binding on the UK in international law. In argument before the House, the claimants did not seek to attach great weight to this presumption.
(1) Section 1(4). This subsection empowers the Secretary of State to make such amendments to the Act as he considers necessary "to reflect the effect, in relation to the United Kingdom, of a protocol". The claimants submit, obviously correctly, that this is a reference to the UK as a contracting state and a juridical entity in international law, not as a territorial area. The same is true of section 1(5)(a) and (b). This, they argue, is significant, since the definition of "the Convention" in section 21(1) is to that instrument "as it has effect for the time being in relation to the United Kingdom", and section 1(6) makes reference to a protocol in force "in relation to the United Kingdom". These references should, according to accepted canons of draftsmanship, be read in the same way. This may be so, but I find the use of words such as "in relation to" to be a weak indication from which to draw an inference of extra-territorial application. It is perhaps noteworthy that Jersey, Guernsey and the Isle of Man, seeking to give domestic effect to the Convention, provided (following the language of the Act) that it should have effect "in relation to" "the Island" or "Guernsey". In these instances the reference can only have been territorial since Jersey, Guernsey and the Isle of Man were not contracting states.
(2) Section 3. The claimants contended, and the Divisional Court accepted (in paragraphs 291 and 301 of its judgment), that the interpretative obligation in section 3 of the Act could be applied to interpretation of the Act itself. This is not an argument which the Court of Appeal expressly accepted. In my opinion it was right not to do so. Section 3 provides an important tool to be used where it is necessary and possible to modify domestic legislation to avoid incompatibility with the Convention rights protected by the Act, but it cannot be used to determine the content or extent of the rights which are to be protected. It is in my view plain that section 3 was not intended to be used in construing the Act itself.
(3) Section 6. It is common ground that the public authorities referred to in section 6 are, and are only, UK public authorities (and the courts referred to in section 4(5) and section 7 are all UK courts). But these provisions assist neither party. The claimants only seek a remedy under the Act against the Secretary of State, who is of course a UK public authority, and they seek this remedy in a UK court. Section 11, authorising remedial action where domestic legislation has been found to be incompatible with a Convention right, does not advance the argument.
(4) Section 21(5) and section 22(7). Section 21(5), anticipating article 1 of the Sixth Protocol to the Convention (to which the UK had not acceded when the Act was passed) provided that the death penalty, which could still be imposed under the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957, should be replaced by a liability to life imprisonment or any lesser punishment authorised by those Acts. This subsection, unlike most of the Act, was to take effect on royal assent to the Act being given. The three service Acts have extra-territorial effect in relation to those to whom they apply (see the reference to section 70 of the Army Act, briefly quoted in paragraph 13 above), and it might have been thought that the amendment effected by section 21(5) would similarly apply extra-territorially. Section 22(7) of the HRA, however, provides:
It may be questionable whether, as a question of drafting technique, section 22(7) is strictly necessary. But in my opinion it does point, as the Secretary of State contends, towards an assumption by the draftsman that the Act as a whole does not apply to acts committed outside the United Kingdom.
(5) Section 22(6). This subsection provides that the Act extends to Northern Ireland. This is the conventional means of indicating that the Act is to have effect throughout the United Kingdom (see Bennion, op. cit., p 284), and the Divisional Court were wrong to suggest (judgment, para 301) that the Act does not apply to Scotland. But this provision is not significant for present purposes. It makes clear that the Act forms part of the domestic law of each of the three jurisdictions of the UK.
These conclusions are plainly very helpful to the claimants. In reaching them, however, the court relied strongly on section 3 of the Act which is not in my opinion, as indicated above, a tool which can be used to determine the extent of the rights which are protected by the Act.
This clearly supports the claimants' contention that the territorial scope of the Act was intended to be co-extensive with that of the Convention. But Lord Nicholls went on to say, in paragraph 36:
It is not, I think, clear that these observations of Lord Nicholls commanded majority support. I myself observed (para 25) that "The territorial focus of the Act is clearly shown by the definition of 'the Convention' in section 21 to mean the European Convention 'as it has effect for the time being in relation to the United Kingdom'". Lord Hoffmann, in paragraph 57, stated: "The 1998 Act is United Kingdom legislation; it does not purport to have extraterritorial application". The decision of the House in Quark was not directed to the present issue, and I do not think it can be treated as reliable authority on the point.
Thus the Divisional Court found the Act to have extra-territorial application (para 306) to "allow of the narrow exception which we have framed and applied in the case of the sixth claimant". Brooke LJ similarly confined the extra-territorial effect of the Act by limiting it (para 147) to cases "where a public authority is found to have exercised extra-territorial jurisdiction on the application of [state agent authority] principles". I think, with respect, that there is a certain danger in this line of reasoning. It is one thing to say (if there is ground for doing so) that Parliament intended the Act to have the same extra-territorial effect as the Convention. It is another to base that conclusion on the finding that the exceptions to the territoriality principle recognised by Strasbourg were minor, unless it could be assumed that the Strasbourg court would recognise no other or wider exceptions in future. In this connection it is pertinent to recall Resolution 1386, adopted by the Parliamentary Assembly of the Council of Europe on 24 June 2004, paragraph 18 of which, quoted by the Court of Appeal, said:
B. The extra-territorial scope of the Convention
There could scarcely be a more fundamental question, nor one more obviously suitable for resolution (in a doubtful case) by a supranational rather than a national court. While a national court can and must interpret its own legislation, it must be slow to rule on the scope of an international treaty when its ruling, if correct, would apply to contracting states other than itself, and when the treaty has established a court with authority to give such rulings.
This is an important statement, since it is for the Strasbourg court to define the exceptions and evaluate the grounds for departing from the general rule. In paragraph 62 of its judgment, p 449, the court pertinently observed, with reference to state practice as a guide to interpretation:
So it does not appear that military action abroad has generally been regarded as giving rise to an exception.
The other basis (Bankovic, p 450, para 70) was
This exception was largely developed in relation to the occupation by one contracting state (Turkey) of the territory of another (Cyprus) in Europe. Neither of these bases of exception can be described as clear-cut, and the application of either of them to the situation of British troops operating in Iraq must, in my opinion, be regarded as problematical.
The Court of Appeal (para 108) upheld this decision but on the basis that
The difference between these two formulations would not appear, on the facts here, to be significant, but in other cases it could be so.
LORD RODGER OF EARLSFERRY
The words are quite general and, on its face, the provision contains no geographical limitation - hence the issue between the parties about its proper scope. The Secretary of State points out that Parliament has not chosen to use the kind of specific wording that would show that it was intended to apply outside the United Kingdom. That comment is, of course, correct, but it does not really go anywhere since the Secretary of State is merely drawing attention to a defining feature of any case where the issue is whether a statute is to be construed as applying, by implication, to conduct outside the United Kingdom.
As the heading, "Presumption of United Kingdom extent", shows, however, this statement is simply concerned with the extent of legislation. In the case of the 1998 Act, in accordance with the usual, slightly puzzling, practice, section 22(6) provides specifically that it extends to Northern Ireland. On the accepted rule of interpretation which Bennion states in this passage, the Act therefore extends to the United Kingdom as a whole. In itself, this merely means that the Act forms part of the law of the United Kingdom and does not form part of the law of any other territory for which Parliament could have legislated: Lawson v Serco Ltd  ICR 250, 253, para 1, per Lord Hoffmann.
Section 21(5) provides that any liability under the three statutes to suffer death for an offence is replaced by a liability to imprisonment for life or any lesser punishment authorised by those Acts. The Acts are to have effect with the necessary modifications.
On this general approach, for instance, there can be no doubt that, despite the lack of any qualifying words, section 6(1) of the 1998 applies only to United Kingdom public authorities and not to the public authorities of any other state.
Restating the position in the language of the 1980s, in Clark v Oceanic Contractors Inc  2 AC 130, 145D-E, Lord Scarman said that the general principle is simply that:
In Tomalin v S Pearson & Son Ltd  2 KB 61, 64, Cozens-Hardy MR approved an earlier version of this statement. The court held that the Workmen's Compensation Act 1906 did not apply where a workman, employed by a British company, had been killed in the course of his employment in Malta. Leaving aside the rule of construction, various provisions of the Act indicated that it was only intended to apply in certain specific circumstances outside the United Kingdom.
Lord Nicholls confirms that, in interpreting the rights in the Schedule, courts must take account of the territorial scope of the relevant right under the Convention. In the present case, that means having regard to those exceptional situations where article 2 would apply outside the territory of the United Kingdom. In other words, on a fair interpretation, article 2 in the Schedule to the Act must be read as applying wherever the United Kingdom has jurisdiction in terms of article 1 of the Convention. The corollary is that section 6 must also be interpreted as applying in the same circumstances.
The Court went on, at para 72, to say that it must ascertain whether the deceased "were under the authority and/or effective control, and therefore within the jurisdiction, of the respondent state" as a result of its extra-territorial acts. The Court did not exclude the possibility, at para 74, that, as a consequence of military operations over a six-week period, Turkey could be considered to have exercised, temporarily, effective overall control of a particular portion of the territory of northern Iraq. The Court concluded:
Having examined the available evidence, however, the court held that the applicants had failed to prove that the troops had been in the area in question. On that basis, it was not satisfied that the shepherds had been within the jurisdiction of Turkey in terms of article 1.
In each case Mr Christian Tomuschat entered an individual opinion, rejecting that reasoning on the ground that article 5 could not be used to extend the jurisdiction of the Covenant: it was simply designed to prevent any rules of the Covenant being used to justify actions which ran counter to its purposes and general spirit.
BARONESS HALE OF RICHMOND
LORD BROWN OF EATON-UNDER-HEYWOOD
Article 1 - the reach of the Convention
(1) Article 1 reflects an "essentially territorial notion of jurisdiction" (a phrase repeated several times in the Court's judgment), "other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case" (para 61). The Convention operates, subject to article 56, "in an essentially regional context and notably in the legal space (espace juridique) of the contracting states" (para 80) (ie within the area of the Council of Europe countries).
(2) The Court recognises article 1 jurisdiction to avoid a "vacuum in human rights' protection" when the territory "would normally be covered by the Convention" (para 80) (ie in a Council of Europe country) where otherwise (as in Northern Cyprus) the inhabitants "would have found themselves excluded from the benefits of the Convention safeguards and system which they had previously enjoyed" (para 80).
(3) The rights and freedoms defined in the Convention cannot be "divided and tailored" (para 75).
(4) The circumstances in which the Court has exceptionally recognised the extra-territorial exercise of jurisdiction by a state include:
(i) Where the 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 the government of that territory, exercises all or some of the public powers normally to be exercised by [the government of that territory]" (para 71) (ie when otherwise there would be a vacuum within a Council of Europe country, the government of that country itself being unable "to fulfil the obligations it had undertaken under the Convention" (para 80) (as in Northern Cyprus).
(ii) "Cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state [where] customary international law and treaty provisions have recognised the extra-territorial exercise of jurisdiction" (para 73).
(iii) Certain other cases where a state's responsibility "could, in principle, be engaged because of acts which produced effects or were performed outside their own territory" (para 69). Drozd v France (1992) 14 EHRR 745 (at para 91) is the only authority specifically referred to in Bankovic as exemplifying this class of exception to the general rule. Drozd, however, contemplated no more than that, if a French judge exercised jurisdiction extra-territorially in Andorra in his capacity as a French judge,then anyone complaining of a violation of his Convention rights by that judge would be regarded as being within France's jurisdiction.
(iv) The Soering v United Kingdom (1989) 11 EHRR 439 line of cases, the Court pointed out, involves action by the state whilst the person concerned is "on its territory, clearly within its jurisdiction" (para 68) and not, therefore, the exercise of the state's jurisdiction abroad.
There is, on the face of it, nothing in Bankovic which gives the least support to the appellants' arguments.
The post-Bankovic cases
Whatever view one takes of the majority's approach, however, it cannot avail the appellants here: there was simply no question of Moldova exercising any form of extra-territorial jurisdiction.
The reach of the Human Rights Act
It was accordingly there decided that section 94(1) of the Employment Rights Act 1996which provides that: "An employee has the right not to be unfairly dismissed by his employer""must have implied territorial limits". Recognising the difficulty of saying exactly what those limits are and that "the question of territorial scope is not straightforward", Lord Hoffmann said that in principle the question is always one of construction. As to this he cited Lord Wilberforce's speech in Clark v Oceanic Contractors Inc  2 AC 130, 152, saying that the question "requires an inquiry to be made as to the person with respect to whom Parliament is presumed, in the particular case, to be legislating. Who, it is to be asked, is within the legislative grasp, or intendment, of the statute under consideration?"