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)(Conjoined Appeals) (HTML version)

The capacity in which the Crown exercises executive power in an overseas territory is determined principally by the territory’s constitutional machinery, not by the political motives underlying the act. An instruction given through a Secretary of State under the territory’s constitution was therefore given by the Crown in right of that territory.

Sections 6 and 7 of the Human Rights Act 1998 do not provide a remedy where the claimant could not establish the corresponding Convention violation in Strasbourg. A protocol not extended to an overseas territory under its territorial-extension provision does not protect possessions situated there. Exceptional extraterritorial jurisdiction cannot circumvent that territorial scheme.

Quark Fishing Ltd had previously received annual licences to fish for Patagonian toothfish in the maritime zone of South Georgia and the South Sandwich Islands. In 2001 the Secretary of State instructed the territory’s Commissioner, under section 5(1) of the South Georgia and South Sandwich Islands Order 1985, to procure the refusal of a further licence.

Quark successfully challenged the instruction on conventional public law grounds in proceedings culminating in [2002] EWCA Civ 1409. It then sought damages under sections 6 and 7 of the Human Rights Act 1998 for an alleged violation of article 1 of the First Protocol.

Collins J struck out the damages claim in [2003] EWHC 1743 (Admin). The Court of Appeal, in [2004] EWCA Civ 527, held that the instruction had been given by the Crown in right of the United Kingdom, but agreed that no damages claim lay. The conjoined appeals concerned the Crown’s relevant capacity and the territorial reach of the 1998 Act.

1. Disposition. The House allowed the Secretary of State’s appeal, set aside the Court of Appeal’s declaration, and dismissed Quark’s cross-appeal. All five Law Lords agreed that Quark could not recover damages, although the Crown-capacity issue divided the Committee.

2. The capacity of the Crown. Lord Bingham, Lord Hoffmann and Lord Hope held that the instruction was given by Her Majesty in right of South Georgia and the South Sandwich Islands. The Crown is not one and indivisible. The relevant capacity is identified from the constitutional system under which the executive power has legal effect. Section 5(1) of the South Georgia and South Sandwich Islands Order 1985 made the Secretary of State the medium through whom Her Majesty, as head of state of the territory, instructed the Commissioner. The territory’s subordinate status and the United Kingdom’s extensive supervisory powers did not make its government the Government of the United Kingdom.

   The political or diplomatic motives behind the instruction did not alter its constitutional character. Allocating an act between governments by examining predominant governmental interests would be hazardous, uncertain and unsuitable for judicial determination. Lord Nicholls regarded the capacity question as irrelevant to liability under the 1998 Act. Baroness Hale likewise preferred not to decide the case by maintaining a strict separation between the Crown’s capacities.

3. The Human Rights Act claim. Lord Nicholls, Lord Hope and Baroness Hale held that sections 6 and 7 of the Human Rights Act 1998 were intended to provide a domestic remedy matching, rather than enlarging, the United Kingdom’s liability under the Convention. Lord Bingham and Lord Hoffmann reached the same conclusion on the claim. A claimant unable to establish the corresponding violation against the United Kingdom in Strasbourg cannot obtain a domestic remedy under those sections.

4. Territorial extension. The Convention had been extended to the territory, but the First Protocol had not. Article 56 of the Convention and article 4 of the First Protocol establish a specific scheme for extending rights to territories for whose international relations a contracting state is responsible. Quark therefore could not complain in Strasbourg of interference with possessions in the territory under article 1 of the First Protocol. The fact that the instruction originated in London, reflected United Kingdom policy, or produced effects overseas did not circumvent that scheme.

5. Lord Bingham and Lord Hoffmann additionally held that a Secretary of State acting under the territory’s constitution in right of that territory was not performing a United Kingdom public function for section 6 purposes. Lord Nicholls considered that, had a Convention violation attributable to the United Kingdom been established, the Crown-capacity characterisation would not itself have provided a defence. Baroness Hale left open the position where the relevant right had in fact been extended to the territory.

1. House of Lords: In [2005] UKHL 57, allowed the Secretary of State’s appeal, set aside the declaration that the instruction was given by the Crown in right of the United Kingdom, and dismissed Quark’s cross-appeal on damages.
2. Court of Appeal: In [2004] EWCA Civ 527, reported at [2005] QB 93, held that the instruction was given in right of the United Kingdom but upheld the striking out of the claim under the Human Rights Act 1998.
3. High Court: Collins J, in [2003] EWHC 1743 (Admin), held that the instruction was given in right of the territory and struck out the damages claim.
4. Earlier judicial review: Quark established that the instruction was unlawful on conventional public law grounds in [2001] EWHC Admin 1174, affirmed in [2002] EWCA Civ 1409. That issue was not appealed to the House.