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), (2005)

Extract

---

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), (2005)

HOUSE

OF LORDS

SESSION 2005-06

[2005] UKHL 57

on appeal from: [2004] EWCA Civ 527

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)

(Conjoined

Appeals)

Appellate

Committee

Lord Bingham of Cornhill

Lord Nicholls of Birkenhead

Lord Hoffmann

Lord Hope of Craighead

Baroness Hale of Richmond

Counsel

Secretary

of State for Foreign and Commonwealth Affairs:

Jonathan Crow

Daniel Beard

(Instructed by Treasury Solicitor)

Quark

Fishing Limited:

David Vaughan QC

Fergus Randolph

(Instructed by Thomas Cooper and Stibbard)

Hearing dates:

11 and

12 july 2005

on

Thursday

13 OCTOBER 2005

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)

(Conjoined Appeals)

[2005] UKHL 57

LORD BINGHAM OF CORNHILL

My Lords,

1.  To fish for Patagonian toothfish in the Maritime Zone adjacent to South Georgia and the South Sandwich Islands ("SGSSI") it is necessary to hold an annual licence. Licences are granted by the Director of Fisheries of SGSSI. They are a valuable commercial asset, since the fishing is very profitable. Quark Fishing Limited, a Falkland Islands company, obtained such a licence for its motor vessel Jacqueline in each year from 1997-2000. In 2001 it applied again. But the Secretary of State for Foreign and Commonwealth Affairs on 7 June 2001 formally instructed the Commissioner of SGSSI to direct the Director of Fisheries of SGSSI to allocate licences for the 2001 season in a way which precluded the grant of a licence to Quark for Jacqueline. The instruction was followed and the licence withheld. Quark challenged the lawfulness of the Secretary of State's instruction on conventional public law grounds, and succeeded both in the High Court and on appeal: [2001] EWHC Admin 1174; [2002] EWCA Civ 1409. There is no further appeal on that aspect of the case. But an issue remains whether Quark is entitled to damages. On that issue, raised by an application to strike out, decisions adverse to Quark have been made by Collins J at first instance ([2003] EWHC 1743 (Admin)) and the Court of Appeal (Pill, Thomas and Jacob LJJ, [2004] EWCA Civ 527, [2005] QB 93). It is now accepted that Quark can recover damages against the Secretary of State only if it can show that his admittedly unlawful instruction violated its rights under article 1 of the First Protocol to the European Convention on Human Rights so as to render him liable in damages under sections 6 and 7 of the Human Rights Act 1998. But an anterior question has been raised, whether the Secretary of State, when giving his unlawful instruction, was acting for Her Majesty the Queen in right of the United Kingdom (as Quark argues) or in right of SGSSI (as the Secretary of State now argues). Collins J decided both questions against Quark. The Court of Appeal disagreed on the anterior issue, holding that the instruction had been given by the Secretary of State on behalf of Her Majesty in right of the United Kingdom, and the Secretary of State challenges that ruling before the House. But the Court of Appeal agreed with the judge that no claim could lie under the 1998 Act and the First Protocol, and Quark challenges that ruling.

SGSSI

2.  SGSSI was acquired by the Crown by settlement. Its government was established under the British Settlements Acts 1887 and 1945. From 1908 until 18 April 1985 it was a British Dependent Territory and a Dependency of the Falkland Islands. But on the latter date, when the South Georgia and South Sandwich Islands Order 1985 (SI 1985/449) came into effect, it ceased to be a Dependency. It is now a British Overseas Territory as defined in the British Overseas Territories Act 2002, and its constitution is governed by the 1985 Order as amended.

3.  Under section 4 of the 1985 Order as amended there is a Commissioner for the Territories appointed by Her Majesty. His powers and duties are laid down in section 5(1):

"The Commissioner shall have such powers a...

See the full content of this document

---