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

The divisibility of the Crown does not determine whether a Secretary of State acts in right of the United Kingdom or an overseas territory. That question depends on the relevant constitutional instrument and the character of the act. A Convention right does not arise in an overseas territory unless the Convention, or relevant Protocol, has been extended there by the required notification. United Kingdom control, or an act performed by its Secretary of State, cannot replace that notification. Since the First Protocol had not been extended to South Georgia, Article 1 could not found a damages claim under the Human Rights Act 1998.

Quark Fishing Ltd sought damages from the Secretary of State after a June 2001 instruction prevented it obtaining a South Georgian fishing licence for the vessel M V Jacqueline. The instruction followed successful judicial review proceedings in which the refusal of the licence had been quashed.

Collins J struck out the damages claim under Article 1 of the First Protocol and the Human Rights Act 1998, holding that the Secretary of State had acted in right of South Georgia and that the First Protocol had not been extended to that territory. The Respondent also relied on the absence of a relevant possession and delay. The central issues were the capacity in which the instruction was given and the territorial application of the First Protocol.

The appeal was dismissed. Lord Justice Pill gave the judgment, with Lord Justices Thomas and Jacob agreeing.

1. Capacity of the Crown. The divisibility of the Crown is a constitutional principle, but it does not answer in whose right a power was exercised. That question requires construction of the relevant constitutional instrument and characterisation of the act. The South Georgia and South Sandwich Islands Order 1985, particularly sections 5(1), 7, 9, 10 and 15, reserved substantial powers to the United Kingdom. The Secretary of State identified in section 5(1) was the United Kingdom Secretary of State. In context, the June instruction was therefore given in right of the United Kingdom. The political and diplomatic reasons for it supported that conclusion but were not themselves determinative.
2. Territorial application. The absence of an extension of the First Protocol to South Georgia was fatal. Article 56 of the Convention and Article 4 of the First Protocol require the relevant notification. The cases of Bui Ban Than, Gillow and Yonghong confirmed that control over a dependent territory is insufficient without the required declaration. The reference to the Convention’s espace juridique did not alter the territorial principle. Consequently, Article 1 of the First Protocol did not apply in South Georgia and there was no Convention right capable of founding a claim under sections 6 to 8 of the Human Rights Act 1998.
3. Alternative grounds. It was arguable that refusal of a licence previously granted, without a relevant change of circumstances, could amount to deprivation of a possession. The claim was not struck out on that ground. The Court also declined to reverse the decision not to strike out for delay. The judge had considered the reasons for delay and the absence of prejudice, within the discretion under section 7(5) of the Human Rights Act 1998.

1. Court of Appeal (Civil Division) dismissed the appeal on 29 April 2004. It held that the instruction was given in right of the United Kingdom but that the unextended First Protocol could not found the claim.
2. Queen’s Bench Division, Collins J, struck out the claim for damages on 22 July 2003.
3. Court of Appeal (Civil Division) had earlier affirmed the quashing of the licence direction in judicial review proceedings on 30 October 2002.
4. South Georgian court had quashed the Director of Fisheries’ refusal of the licence on 1 June 2001.