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Quark Fishing Ltd, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs
Factual and Procedural Background
Company A, incorporated in The Region, had held annual licences to fish for Patagonian toothfish in the Maritime Zone surrounding The Territory between 1997 and 2000. For the 2001 season the Defendant formally instructed the Territory’s Commissioner to prevent the Territory’s Director of Fisheries from issuing a licence to Company A’s vessel. The instruction was later quashed on public-law grounds by the High Court and the Court of Appeal. The Defendant appealed on a constitutional point, while Company A cross-appealed seeking damages under the Human Rights Act 1998 (“HRA”). The House of Lords (now Supreme Court) delivered the present opinion on both issues.
Legal Issues Presented
- Whether the Defendant, when issuing the impugned instruction, acted on behalf of Her Majesty in right of the United Kingdom or in right of The Territory.
- If the instruction were given in right of the United Kingdom, whether Company A could claim damages under sections 6 and 7 HRA by alleging a violation of Article 1 of the First Protocol to the European Convention on Human Rights.
Arguments of the Parties
Company A’s Arguments
- The Defendant acted for Her Majesty in right of the United Kingdom because the motivation for the instruction was United Kingdom foreign-policy and diplomatic considerations, not purely local concerns of The Territory.
- Denying the licence interfered with a valuable commercial asset and therefore violated Article 1 of the First Protocol, entitling Company A to damages under the HRA.
Defendant’s Arguments
- Constitutionally, instructions to the Territory’s Commissioner are given by Her Majesty in right of The Territory; the Defendant merely transmits those instructions.
- The First Protocol has never been extended to The Territory under Article 4 of that Protocol, so no Convention right capable of grounding a domestic damages claim exists.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Secretary of State for Foreign and Commonwealth Affairs, Ex p Indian Association of Alberta [1982] QB 892 | The Crown is not indivisible; obligations may be in different “rights.” | Supported the view that acts can be in right of a subordinate government. |
| The Queen in Right of Alberta v Canadian Transport Commission (1977) 75 DLR (3d) 257 | Crown in right of a territory equates to that territory’s government. | Used to reinforce that the relevant government was that of The Territory. |
| Tito v Waddell (No 2) [1977] Ch 106 | Acts of a colonial government remain acts of that government, even if subordinate. | Relied on to distinguish between United Kingdom and Territory action. |
| R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067 | Courts have jurisdiction to review instruments procured by United Kingdom ministers. | Cited but distinguished; jurisdiction was not disputed here, the constitutional capacity was. |
| X v Belgium (1961) 4 YB 260; Gillow v United Kingdom (1986) 11 EHRR 335; Bui van Thanh v United Kingdom (App No 16137/90); Yonghong v Portugal (1999) IX | Where a Convention article or Protocol has not been extended to an overseas territory, Strasbourg jurisdiction is absent. | Grounded the conclusion that Company A lacked a Convention right under the First Protocol. |
| Bankovic v Belgium (2001) 11 BHRC 435 | Convention is essentially territorial unless Article 56 extension applies. | Confirmed that extraterritorial effects did not create liability in this case. |
| Aston Cantlow v Wallbank [2004] 1 AC 546; In re McKerr [2004] 1 WLR 807 | Purpose of the HRA is to mirror, not enlarge, Strasbourg rights. | Used to show HRA cannot confer a domestic remedy where none exists in Strasbourg. |
Court's Reasoning and Analysis
1. On constitutional capacity, the majority held that the 1985 constitutional Order governing The Territory vests executive power in the Territory’s Commissioner subject to instructions issued by Her Majesty “through a Secretary of State.” This meant the instruction was an act of the Crown in right of The Territory, not of the United Kingdom. Motivation or political advantage to the United Kingdom was held irrelevant; the decisive factor was the legal source of the power exercised.
2. Because the act was attributable to The Territory, the Defendant was not a “public authority” for the purposes of section 6 HRA in relation to this act.
3. Even had the act been in right of the United Kingdom, the First Protocol had never been extended to The Territory. Strasbourg jurisprudence establishes that, without such extension, no individual can be a “victim” of a Protocol 1 breach for events occurring there. As the HRA only provides domestic remedies that mirror Strasbourg rights, Company A could not invoke Article 1 of the First Protocol in the United Kingdom courts.
Holding and Implications
Held: The Defendant’s appeal was allowed and Company A’s cross-appeal dismissed. The instruction was issued by Her Majesty in right of The Territory, and no damages claim lies under the Human Rights Act 1998.
Implications: The decision clarifies that (i) Crown acts must be attributed according to the constitutional instrument governing each overseas territory, not the political motives of United Kingdom ministers; and (ii) the Human Rights Act affords no remedy for alleged breaches of Convention rights occurring in territories to which the relevant Convention provisions have not been extended. No new precedent was set on damages, but the ruling limits the territorial reach of the HRA.
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