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)

 
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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 and duties as are conferred or imposed upon him by or under this Order or any other law and such other powers and duties as Her Majesty may from time to time be pleased to assign to him and, subject to the provisions of this Order and of any other law by which any such powers or duties are conferred or imposed, shall do and execute all things that belong to his office according to such instructions, if any, as Her Majesty may from time to time see fit to give him through a Secretary of State."

    The instruction complained of in these proceedings was given under this subsection. The Commissioner has wide powers: to make laws for the peace, order and good government of the Territories (section 9(1)); to constitute offices and make appointments (section 7); to make grants of land (section 14); to establish courts of justice, including a Supreme Court (section 13); and to grant pardons and remit sentences (section 11). But in matters touching on defence and security the Commissioner must follow the advice of the officer commanding Her Majesty's Forces in the South Atlantic (section 5(2)), and the Commissioner's exercise of other powers is subject to the instructions and control of the Secretary of State. Thus the Commissioner holds office during Her Majesty's pleasure (section 4(1), as amended). His powers and duties are those assigned to him by Her Majesty, with whose instructions he is bound to comply (section 5(1), above). The Commissioner's power to make laws is subject to the instructions of Her Majesty through a Secretary of State; the Commissioner must so far as practicable observe the rules set out in an annex to the Order; and laws made by him may be disallowed by Her Majesty (sections 9(2), 10(1)). The power to constitute offices is limited to such offices as may be constituted by Her Majesty, subject to local laws and subject to any instructions given (section 7). The power to dispose of land is subject to local laws and any instructions given (section 14). Pardons and remissions of sentence are to be granted in Her Majesty's name and on her behalf (section 11). SGSSI is a legal entity. But the United Kingdom is responsible for its external relations and thus has the responsibility in international law for ensuring compliance with those international obligations which apply to it.

  4. SGSSI is a remote territory, far to the south of the Falkland Islands, close to the Antarctic Circle, and it has no inhabitants other than a transient population of about 12 scientists. Thus it is no surprise that it lacks the institutions (representative assembly, legislative council, courts and so on) ordinarily to be expected in a British Overseas Territory.

    The regulation of fishing in SGSSI waters

  5. In May 1993 the then Commissioner of SGSSI declared a Maritime Zone extending some 200 nautical miles from SGSSI, within which the government of SGSSI was to have exclusive jurisdiction over fisheries. Pursuant to powers conferred on him by the 1985 Order, the Commissioner enacted The Fisheries (Conservation and Management) Ordinance 1993 which, with the Fishing (Maritime Zone) Order 1993, controlled fishing within the Maritime Zone by introducing a licensing regime. Despite revocation and replacement of the first-mentioned Ordinance in 2000, the regime has remained in force. The Commissioner was required to appoint a Director of Fisheries who should administer the Ordinance and be responsible, among other things, for the conservation of fish stocks, the development and management of fisheries, the regulation of the conduct of fishing and "the issue, variation, suspension and revocation of licences for fishing and fishing - related operations". Save in relation to prosecutions, the Director is under the direction of the Commissioner: section 4(2) of the 2000 Ordinance.

  6. By section 4(5) of the 2000 Ordinance the Director is required when discharging his duties to have regard to the provisions of the Convention on the Conservation of Antarctic Marine Living Resources ("the Conservation Convention"). This was adopted in 1980 and came into force 2 years later. It was negotiated to address, among other things, the threat of over-exploitation of fin-fish in the Southern Ocean. It forms part of the Antarctic Treaty System, a body of treaties, agreements and regulations that provide for the orderly governance of Antarctica. The evidence shows that the United Kingdom is committed to the Antarctic Treaty System as the means by which the political and environmental security of the area can best be maintained. The United Kingdom was an original signatory of the Conservation Convention, whose members now include 23 states and the European Commission including the United Kingdom but not SGSSI.

  7. The evidence makes plain that the control of fishing in Antarctic waters raises questions much wider than those of conservation and management. In the original judicial review proceedings, Laws LJ (in para 57 of his judgment) observed:

    The limitation of the number of licences to be issued to British-registered vessels to two, against the Director's recommendation of four, was arrived at as a matter of judgment in the field of foreign policy.

    This was echoed by Pill LJ in para 25 of the judgment under appeal:

    Thus there was a strong political and diplomatic motive for the intervention and instruction of the Secretary of State.

    This has not been challenged by the Secretary of State, and could not be challenged since it reflects the evidence which he adduced.

    The first...

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