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

The House of Lords held that the Secretary of State's instruction of 7 June 2001 to the Commissioner for South Georgia and the South Sandwich Islands (SGSSI) was to be understood as an act given through the constitutional machinery of SGSSI — i.e. by Her Majesty in right of SGSSI — rather than as an act given in right of the United Kingdom. The court further held that Quark could not recover damages under sections 6 and 7 of the Human Rights Act 1998 because the remedial scheme of the Act is co-extensive with the United Kingdom's responsibility under the European Convention on Human Rights and its protocols; the First Protocol (article 1) had not been extended to SGSSI under article 56/article 4 of the Protocol and, therefore, there was no Convention right "as it has effect in relation to the United Kingdom" on which a domestic damages claim could be founded.

The decision applied Strasbourg jurisprudence (notably Bui van Thanh, Yonghong and Gillow) to exclude extra-territorial application of the First Protocol to dependent territories in the absence of a formal extension, and interpreted key provisions of the Human Rights Act (sections 1, 6, 7 and 21) consistently with that territorial limitation.

Background and facts:

• Quark Fishing Ltd, a Falkland Islands company, held annual licences to fish for Patagonian toothfish in the Maritime Zone adjacent to South Georgia and the South Sandwich Islands (SGSSI) from 1997 to 2000. For 2001 the Secretary of State for Foreign and Commonwealth Affairs instructed the Commissioner of SGSSI to direct the Director of Fisheries to allocate licences in a way that precluded renewal of Quark's licence for MV Jacqueline. The Commissioner and Director complied and Quark lost the 2001 season.
• Quark successfully challenged the lawfulness of the Secretary of State's instruction in judicial review (High Court and Court of Appeal). The remaining issue concerned whether Quark could recover damages under the Human Rights Act 1998 for breach of article 1 of the First Protocol (protection of property).

Procedural history:

• High Court (judicial review) and Court of Appeal: Quark succeeded in quashing the instruction. Subsequently, on the separate issue of damages, Collins J and the Court of Appeal made rulings adverse to Quark. The House of Lords heard the conjoined appeals.

Nature of the claim and issues framed by the House:

1. Whether the Secretary of State's instruction of 7 June 2001 was given by Her Majesty in right of the United Kingdom or in right of SGSSI.
2. If in right of the United Kingdom, whether the instruction could give rise to a claim for damages under sections 6 and 7 of the Human Rights Act 1998 based on an asserted breach of article 1 of the First Protocol.

Court's reasoning and disposition:

• On the first issue the House analysed the constitutional framework established by the South Georgia and South Sandwich Islands Order 1985 (as amended). The Order creates SGSSI's constitution, appoints a Commissioner and expressly provides for Her Majesty to give instructions to the Commissioner through a Secretary of State. The majority concluded that these provisions must be read as Her Majesty acting in her capacity as Head of State of SGSSI; therefore the instruction was given in right of SGSSI rather than in right of the United Kingdom. The House emphasised that the question is one of constitutional capacity determined by the constitutional instrument rather than by inquiry into ministerial motivation or political context.
• On the second issue the House held that, even if treated as an act of a United Kingdom public authority, Quark could not recover damages under the Human Rights Act. The Act gives domestic effect only to Convention rights "as they have effect in relation to the United Kingdom" (section 21). The First Protocol had not been extended to SGSSI by the United Kingdom under article 56 (and article 4 of the Protocol). Strasbourg authority shows that, in the absence of such an extension, the Contracting State is not answerable in respect of acts affecting territories for whose international relations it is responsible. Therefore Quark could not be a "victim" for the purposes of section 7(7) and article 34 and no domestic damages remedy under sections 6 and 7 arises.

Relief sought: Quark sought damages under the Human Rights Act 1998 for an alleged breach of article 1 of the First Protocol. The House dismissed that claim for the reasons above and allowed the Secretary of State's appeal in relation to the Court of Appeal's declaration.

The Secretary of State's appeal was allowed and Quark's cross-appeal dismissed. The instruction of 7 June 2001 was given by Her Majesty in right of SGSSI (not in right of the United Kingdom). In any event Quark could not recover damages under sections 6 and 7 of the Human Rights Act 1998 because the First Protocol had not been extended to SGSSI and therefore the Convention rights relied on did not have effect in relation to the United Kingdom as required by the Act.

High Court (judicial review) – Quark succeeded: [2001] EWHC Admin 1174. Court of Appeal – Quark's judicial review win upheld: [2002] EWCA Civ 1409. On damages, Collins J (strike-out/summary disposition adverse to Quark): [2003] EWHC 1743 (Admin). Court of Appeal (Pill, Thomas and Jacob LJJ) ruled against Quark on damages and made a declaration on the capacity issue: [2004] EWCA Civ 527; reported at [2005] QB 93. House of Lords (final appeal): [2005] UKHL 57.