HOUSE OF LORDS
SESSION 2006-07 [2007] UKHL 26
on appeal from: [2005] EWCA Civ 1609
OPINIONS
OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE
Al-Skeini and others (Respondents)
v.
Secretary of State for Defence (Appellant) Al-Skeini and others (Appellants)
v.
Secretary of State for Defence (Respondent) (Consolidated Appeals)
Appellate Committee
Lord Bingham of Cornhill Lord Rodger of Earlsferry Baroness Hale of Richmond Lord Carswell Lord Brown of Eaton-under-Heywood
Counsel
Appellants Rabinder Singh QC Michael Fordham QC Shaheed Fatima Christine Chinkin (Instructed by Public Interest Lawyers, Birmingham)
Respondents Christopher Greenwood QC Philip Sales QC Cecilia Ivimy (Instructed by Treasury Solicitor)
Interveners Keir Starmer QC Richard Hermer Charles Banner (Instructed by Bhatt Murphy)
Hearing dates: 17, 18, 19, 23 and 24 April 2007
ON
WEDNESDAY 13 JUNE 2007
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Al-Skeini and others (Respondents) v. Secretary of State for Defence
(Appellant)
Al-Skeini and others (Appellants) v. Secretary of State for Defence
(Respondent) (Consolidated Appeals)
[2007] UKHL 26
LORD BINGHAM OF CORNHILL
My Lords,
3. First, the claimant must show that his complaint falls within the scope of the Convention. This is an essential step, since it is clear that a claim cannot fall within the HRA if it does not fall within the Convention. In the ordinary run of claims under the Act, this condition gives rise to no difficulty: the claim relates to conduct within the borders of a contracting state such as the United Kingdom, and the question is whether a claimant’s Convention right has been violated and if so by whom. But here the substantial violations alleged did not take place within the borders of a contracting state. They took place in Iraq, which is not part of the UK and not a contracting state. This is an important fact, since the focus of the Convention is primarily on what is done or not done within the borders of contracting states and not outside. To this rule, however, there are certain limited exceptions, recognised in the jurisprudence of the European Court of Human Rights in Strasbourg, the court vested by the Convention with the duty of interpreting and applying it. The claimants say that in each of their cases, because of the special circumstances in which British troops were operating in Basra, the conduct complained of, although taking place outside the borders of the UK (and, for that matter, any other contracting state), falls within the exceptions recognised by the Strasbourg jurisprudence, which the English court must take into account (section 2(1) of the Act). The Secretary of State originally contended in these proceedings that none of the claimants’ complaints fell within the limited extra-territorial exceptions recognised by the Strasbourg court. But the Queen’s Bench Divisional Court (Rix LJ and Forbes J, [2004] EWHC 2911 (Admin), [2007] QB 140) held that although the first five of the present claims fell outside the scope of the Convention the sixth, that of Colonel Mousa, did not. That is a ruling which the Secretary of State now accepts. So the first major issue between the parties is whether, as the first five claimants (strongly supported by the Interveners) contend, and the Secretary of State denies, their claims (or, at the very least, some of them) fall within the scope of the Convention. If the Secretary of State is right, their claims must fail. The Court of Appeal (Brooke, Sedley and Richards LJJ, [2006] EWCA Civ 1609, [2007] QB 140) held, although on grounds somewhat differing from those of the Divisional Court, that the first five claims do fall outside the scope of the Convention, accepting that the sixth falls within it. The Secretary of State supports that conclusion, although criticising the basis upon which the Court of Appeal held the sixth case to fall within the Convention.
4. Even if the claimants succeed on that first issue, they must satisfy a second condition: of showing that their claims, although falling within the scope of the Convention, also fall within the scope of the HRA. This again is an essential condition, for while a claim cannot succeed under the Act unless it falls within the scope of the Convention the converse is not true: a claim may in some circumstances fall within the scope of the Convention but not within the scope of the Act. Here the parties are in radical disagreement. The Secretary of State contends that the HRA has no application to acts of public authorities outside the borders of the UK. The Act has, in legal parlance, no extra-territorial application. Therefore, he submits, the claim of Colonel Mousa in the sixth case, and those of the other five claimants, cannot succeed under the Act. The claimants say that the Act does extend to cover the conduct of the British forces in Basra, given the special circumstances in which they were operating and what they did. Neither of the courts below accepted the full breadth of either party’s submissions. They both held that Colonel Mousa’s claim falls within the scope of the Act, a conclusion which the Secretary of State challenges. They both held that the first five claims fall outside the scope of the Act, a conclusion which those claimants challenge. If the claimants are wholly correct on the first issue (paragraph 3 above) but the Secretary of State is wholly correct on this issue, the claimants may have a claim which would succeed against the UK at Strasbourg but they have none against the Secretary of State under the Act.
5. If, and to the extent that, the claimants can satisfy these first two conditions, the success of their claims depends on their satisfying a third condition: that a Convention right has, in each case, been violated. The violation alleged consists primarily of a failure to investigate a violent death caused, or allegedly caused, by agents of the state, as the Convention has been held to require. The Divisional Court found such a violation in the case of Mr Mousa and would have found violations in the other five cases had they fallen within the scope of the Convention and the Act. The Court of Appeal agreed with the latter conclusion. But in Mr Mousa’s case there had been factual developments of potential significance since the date of the Divisional Court’s judgment, and the Court of Appeal concluded that this question should, in his case, be remitted to the Divisional Court. It is common ground that that order should stand, if the first two issues are resolved in Colonel Mousa’s favour. But the Secretary of State resists the finding of violation, provisional though it has so far been, in the first five cases. Thus claimants 1-5 appeal against the dismissal of their claims and the Secretary of State cross-appeals against the ruling that Mr Mousa’s case falls within the scope of the HRA.
The cases
6. The facts of the six cases, so far as they are now known, are rehearsed at some length in the judgments of the Divisional Court (paragraphs 56-89) and the Court of Appeal (paragraphs 22-29), to which reference may be made. The barest summary will suffice for present purposes.
Case 1
Mr Hazim Jum’aa Gatteh Al-Skeini was shot dead on 4 August 2003 by a member of a British military patrol in Basra. The claimant is his brother. Very different accounts of the incident have been given by the claimant and his witnesses on one side and British military witnesses on the other.
Case 2
Mr Muhammad Abdul Ridha Salim was fatally wounded on 6 November 2003 when British troops raided a house in Basra where he was. He received medical attention but died on 7 November 2003. The claimant is his widow. There is again a radical divergence between the respective parties’ accounts of this incident.
Case 3
Mrs Hannan Mahaibas Sadde Shmailawi was shot and fatally wounded on 10 November 2003 in the Institute of Education in Basra. On the British military account she was shot unintentionally during an exchange of fire between a British patrol and a number of gunmen. The claimant is the widower of the deceased, who accepts that the shooting of his wife was not intentional. It appears that she may have been a very unfortunate bystander, and the Secretary of State does not accept that the fatal shot was fired by a British soldier rather than a gunman.
Case 4
Mr Waleed Sayay Muzban was shot and fatally injured on the night of 24 August 2003 in Basra. He was driving a people-carrier when he was shot, and he died the next day. The shooting occurred when a British military patrol was, on its account, carrying out a perimeter check and the vehicle, having initially stopped, was driven away and appeared to present a threat. The claimant is the brother of the deceased.
Case 5
Mr Raid Hadi Sabir Al Musawi was shot and fatally wounded by a member of a British military patrol in Basra on 26 August 2003. He died nine weeks later, on 6 November 2003. The claimant is his mother. The parties’ respective accounts of what happened, as in the first case (which, on the facts, it resembles), are radically divergent.
Case 6
Mr Baha Mousa was employed as a receptionist at a hotel in Basra and was working there on the morning of 14 September 2003 when British troops entered the hotel. He was seized and detained and taken to a British military base in Basra. At the base he was brutally beaten by British troops. He died of the injuries so inflicted during the night of 15 September 2003. The claimant is the father of the deceased, and is a colonel in the Basra police. This deceased, unlike the others, was killed by British troops when held as a prisoner in a British military detention unit. This is the limited basis upon which the Divisional Court held that this case falls within the scope of the Convention, and this is the basis upon which the Secretary of State accepts that finding.
A. Does the HRA apply to acts done outside the territory of the UK?
“These two sets of rights now exist side by side. But there are significant differences between them. The former existed before the enactment of the 1998 Act and they continue to exist. They are not as such part of this country’s law because the Convention does not form part of this country’s law. That is still the position. These rights, arising under the Convention, are to be contrasted with rights created by the 1998 Act. The latter came into existence for the first time on 2 October 2000. They are part of this country’s law. The extent of these rights, created as they were by the 1998 Act, depends upon the proper interpretation of that Act …”
The focus of this opinion, at this stage of the enquiry, is on the extent of the rights arising under the Act, not those arising under the Convention. Hence the need for careful consideration, in the first instance, of the Act.
11. In resisting the interpretation, upheld by the courts below, that the HRA has extra-territorial application, the Secretary of State places heavy reliance on what he describes as “a general and well established principle of statutory construction”. This is (see Bennion, Statutory Interpretation, 4th ed (2002), p 282, section 106) that
“Unless the contrary intention appears, Parliament is taken to intend an Act to extend to each territory of the United Kingdom but not to any territory outside the United Kingdom.”
In section 128 of the same work, p 306, the learned author adds:
“Unless the contrary intention appears . an enactment applies to all persons and matters within the territory to which it extends, but not to any other persons and matters.”
In Tomalin v S Pearson & Son Limited [1909] 2 KB 61, Cozens-Hardy MR, with the concurrence of Fletcher Moulton and Farwell LJJ, endorsed a statement to similar effect in Maxwell on The Interpretation of Statutes, pp 212-213:
“In the absence of an intention clearly expressed or to be inferred either from its language, or from the object or subject-matter or history of the enactment, the presumption is that Parliament does not design its statutes to operate [on its subjects] beyond the territorial limits of the United Kingdom”.
Earlier authority for that proposition was to be found in cases such as Ex p Blain (1879) 12 Ch D 522, 526, per James LJ, and R v Jameson [1896] 2 QB 425, 430, per Lord Russell of Killowen CJ. Later authority is plentiful: see, for example, Attorney-General for Alberta v Huggard Assets Limited [1953] AC 420, 441, per Lord Asquith of Bishopstone for the Privy Council; Clark (Inspector of Taxes) v Oceanic Contractors Inc [1983] 2 AC 130, 145, per Lord Scarman; Al Sabah v Grupo Torras SA [2005] UKPC 1, [2005] 2 AC 333, para 13, per Lord Walker of Gestingthorpe for the Privy Council; Lawson v Serco Limited [2006] UKHL 3, [2006] ICR 250, para 6, per Lord Hoffmann; Agassi v Robinson (Inspector of Taxes) [2006] UKHL 23, [2006] 1 WLR 1380, paras 16, 20, per Lord Scott of Foscote and Lord Walker of Gestingthorpe. That there is such a presumption is not, I think, in doubt. It appears (per Lord Walker in Al Sabah, above) to have become stronger over the years.
12. In argument before the courts below, the claimants relied on another presumption of statutory interpretation: that, as put by the Divisional Court in paragraph 301 of its judgment, “a domestic statute enacting international treaty obligations will be compatible with those obligations”. The Divisional Court appears to have given some weight to this presumption, and in the Court of Appeal Sedley LJ appears to have accepted (paragraph 186) that “absent some clear indication to the contrary, domestic legislation is to be taken to have been intended to cohere with the state’s international obligations”. The classic exposition of the presumption in question is, however, that given by Diplock LJ in Salomon v Commissioners of Customs and Excise [1967] 2 QB 116, 143-144:
“Where, by a treaty, Her Majesty’s Government undertakes either to introduce domestic legislation to achieve a specified result in the United Kingdom or to secure a specified result which can only be achieved by legislation, the treaty, since in English law it is not self- operating, remains irrelevant to any issue in the English courts until Her Majesty’s Government has taken steps by way of legislation to fulfil its treaty obligations. Once the Government has legislated, which it may do in anticipation of the coming into effect of the treaty, as it did in this case, the court must in the first instance construe the legislation, for that is what the court has to apply. If the terms of the legislation are clear and unambiguous, they must be given effect to, whether or not they carry out Her Majesty’s treaty obligations, for the sovereign power of the Queen in Parliament extends to breaking treaties (see Ellerman Lines v Murray; White Star Line and US Mail Steamers Oceanic Steam Navigation Co Ltd v Comerford), and any remedy for such a breach of an international obligation lies in a forum other than Her Majesty’s own courts. But if the terms of the legislation are not clear but are reasonably capable of more than one meaning, the treaty itself becomes relevant, for there is a prima facie presumption that Parliament does not intend to act in breach of international law, including therein specific treaty obligations; and if one of the meanings which can reasonably be ascribed to the legislation is consonant with the treaty obligations and another or others are not, the meaning which is consonant is to be preferred. Thus, in case of lack of clarity in the words used in the legislation, the terms of the treaty are relevant to enable the court to make its choice between the possible meanings of these words by applying this presumption.”
In the present case, the Secretary of State contends that the meaning of the HRA is clear and that its terms are not reasonably capable of more than one meaning. But even if he is wrong, this presumption gives the claimants little if any help since the UK undertook no international law obligation to incorporate the Convention into domestic law. It was so held by the Strasbourg court in James v United Kingdom (1987) 8 EHRR 123, para 84, Observer and The Guardian v United Kingdom (1991) 14 EHRR 153, para 76, and McCann v United Kingdom (1995) 21 EHRR 97, para 153. It was also recognised by Brooke LJ in the Court of Appeal (paragraph 144) when he acknowledged that the UK was not obliged to incorporate the Convention into its national law, either in whole or in part. This is, I think, correct. The UK was not in breach of any obligation binding in international law when it omitted, from 1953 to 1998, to give the Convention any direct effect in domestic law. In 1997-1998 it had a policy choice, whether to give effect to the Convention in domestic law at all, and if so to what extent. A decision to give no directly enforceable domestic right to persons claiming to be victims of violations of Convention rights by UK authorities outside the UK, leaving such persons to pursue any such claim against the UK in Strasbourg, would have involved no breach of any obligation binding on the UK in international law. In argument before the House, the claimants di d not seek to attach great weight to this presumption.
15. The parties directed much detailed argument to the language of the Act, seeking to derive support for their competing interpretations.
(1) Section 1(4). This subsection empowers the Secretary of State to make such amendments to the Act as he considers necessary “to reflect the effect, in relation to the United Kingdom, of a protocol”. The claimants submit, obviously correctly, that this is a reference to the UK as a contracting state and a juridical entity in international law, not as a territorial area. The same is true of section 1(5)(a) and (b). This, they argue, is significant, since the definition of “the Convention” in section 21(1) is to that instrument “as it has effect for the time being in relation to the United Kingdom”, and section 1(6) makes reference to a protocol in force “in relation to the United Kingdom”. These references should, according to accepted canons of draftsmanship, be read in the same way. This may be so, but I find the use of words such as “in relation to” to be a weak indication from which to draw an inference of extra-territorial application. It is perhaps noteworthy that Jersey, Guernsey and the Isle of Man, seeking to give domestic effect to the Convention, provided (following the language of the Act) that it should have effect “in relation to” “the Island” or “Guernsey”. In these instances the reference can only have been territorial since Jersey, Guernsey and the Isle of Man were not contracting states.
(2) Section 3. The claimants contended, and the Divisional Court accepted (in paragraphs 291 and 301 of its judgment), that the interpretative obligation in section 3 of the Act could be applied to interpretation of the Act itself. This is not an argument which the Court of Appeal expressly accepted. In my opinion it was right not to do so. Section 3 provides an important tool to be used where it is necessary and possible to modify domestic legislation to avoid incompatibility with the Convention rights protected by the Act, but it cannot be used to determine the content or extent of the rights which are to be protected. It is in my view plain that section 3 was not intended to be used in construing the Act itself.
(3) Section 6. It is common ground that the public authorities referred to in section 6 are, and are only, UK public authorities (and the courts referred to in section 4(5) and section 7 are all UK courts). But these provisions assist neither party. The claimants only seek a remedy under the Act against the Secretary of State, who is of course a UK public authority, and they seek this remedy in a UK court. Section 11, authorising remedial action where domestic legislation has been found to be incompatible with a Convention right, does not advance the argument.
(4) Section 21(5) and section 22(7). Section 21(5), anticipating article 1 of the Sixth Protocol to the Convention (to which the UK had not acceded when the Act was passed) provided that the death penalty, which could still be imposed under the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957, should be replaced by a liability to life imprisonment or any lesser punishment authorised by those Acts. This subsection, unlike most of the Act, was to take effect on royal assent to the Act being given. The three service Acts have extra-territorial effect in relation to those to whom they apply (see the reference to section 70 of the Army Act, briefly quoted in paragraph 13 above), and it might have been thought that the amendment effected by section 21(5) would similarly apply extra-territorially. Section 22(7) of the HRA, however, provides:
“Section 21(5), so far as it relates to any provision contained in the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957, extends to any place to which that provision extends”.
It may be questionable whether, as a question of drafting technique, section 22(7) is strictly necessary. But in my opinion it does point, as the Secretary of State contends, towards an assumption by the draftsman that the Act as a whole does not apply to acts committed outside the United Kingdom.
(5) Section 22(6). This subsection provides that the Act extends to Northern Ireland. This is the conventional means of indicating that the Act is to have effect throughout the United Kingdom (see Bennion, op. cit., p 284), and the Divisional Court were wrong to suggest (judgment, para 301) that the Act does not apply to Scotland. But this provision is not significant for present purposes.
It makes clear that the Act forms part of the domestic law of each of the three jurisdictions of the UK.
’78. … It seems to us that we are under a duty, if possible, to interpret the Human Rights Act 1998 in a way that is compatible with the Convention rights, as those rights have been identified by the Strasbourg court. This duty precludes the application of any presumption that the Human Rights Act 1998 applies within the territorial jurisdiction of the United Kingdom, rather than the somewhat wider jurisdiction of the United Kingdom that the Strasbourg court has held to govern the duties of the United Kingdom under the Convention.
79. For these reasons we have reached the conclusion that the Human Rights Act 1998 requires public authorities of the United Kingdom to secure those Convention rights defined in section 1 of the Act within the jurisdiction of the United Kingdom as that jurisdiction has been identified by the Strasbourg court. It follows that the Human Rights Act 1998 was capable of applying to the actions of the diplomatic and consular officials in Melbourne. It remains to consider whether those actions infringed the Convention and the Act.”
These conclusions are plainly very helpful to the claimants. In reaching them, however, the court relied strongly on section 3 of the Act which is not in my opinion, as indicated above, a tool which can be used to determine the extent of the rights which are protected by the Act.
Nicholls of Birkenhead at para 44; that of Lord Hoffmann at paras 5664; that of Lord Hope at paras 86-92; and Baroness Hale of Richmond at paras 97-98.
20. In support of their argument on the extra-territorial scope of the Act, the claimants relied in particular on paragraph 34 of Lord Nicholls’ opinion, a passage cited by the Court of Appeal in paragraphs 45 and 146 of the judgment under appeal. In paragraph 34 Lord Nicholls said:
“34. To this end the obligations of public authorities under sections 6 and 7 mirror in domestic law the treaty obligations of the United Kingdom in respect of corresponding articles of the Convention and its protocols. That was the object of these sections. As my noble and learned friend, Lord Hope of Craighead, has said, the ‘purpose of these sections is to provide a remedial structure in domestic law for the rights guaranteed by the Convention’: Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2004] 1 AC 546, 564, para 44. Thus, and this is the important point for present purposes, the territorial scope of the obligations and rights created by sections 6 and 7 of the Act was intended to be co-extensive with the territorial scope of the obligations of the United Kingdom and the rights of victims under the Convention. The Act was intended to provide a domestic remedy where a remedy would have been available in Strasbourg. Conversely, the Act was not intended to provide a domestic remedy where a remedy would not have been available in Strasbourg. Accordingly, in order to identify the territorial scope of a ‘Convention right’ in sections 6 and 7 it is necessary to turn to Strasbourg and consider what, under the Convention, is the territorial scope of the relevant Convention right.”
This clearly supports the claimants’ contention that the territorial scope
of the Act was intended to be co-extensive with that of the Convention.
But Lord Nicholls went on to say, in paragraph 36:
“36. The Human Rights Act is a United Kingdom statute. The Act is expressed to apply to Northern Ireland: section 22(6). It is not expressed to apply elsewhere in
any relevant respect. What, then, of Convention obligations assumed by the United Kingdom in respect of its overseas territories by making a declaration under article 56? In my view the rights brought home by the Act do not include Convention rights arising from these extended obligations assumed by the United Kingdom in respect of its overseas territories. I can see no warrant for interpreting the Act as having such an extended territorial reach. If the United Kingdom notifies the Secretary General of the European Council that the Convention shall apply to one of its overseas territories, the United Kingdom thenceforth assumes in respect of that territory a treaty obligation in respect of the rights and freedoms set out in the Convention. But such a notification does not extend the reach of sections 6 and 7 of the Act. The position is the same in respect of protocols.”
It is not, I think, clear that these observations of Lord Nicholls commanded majority support. I myself observed (para 25) that “The territorial focus of the Act is clearly shown by the definition of ‘the Convention’ in section 21 to mean the European Convention ‘as it has effect for the time being in relation to the United Kingdom'”. Lord Hoffmann, in paragraph 57, stated: “The 1998 Act is United Kingdom legislation; it does not purport to have extraterritorial application”. The decision of the House in Quark was not directed to the present issue, and I do not think it can be treated as reliable authority on the point.
25. The Divisional Court based its finding of extra-territorial application in part on its understanding of the modest extent to which the Strasbourg court had recognised the Convention itself as having extra-territorial application. In paragraph 301 of its judgment it said:
“Whatever may have been the position if our conclusion, or Strasbourg jurisprudence, had been that article 1 of the Convention was founded on some form of broad personal jurisdiction, nevertheless where on the contrary, for the reasons which we have described above, article 1 should be and has been given an essentially territorial effect, it is counter-intuitive to expect to find a parliamentary intention that there should be gaps between the scope of the Convention and an Act which was designed to bring rights home, that is to say as we understand that metaphor to enable at any rate domestic or British claimants to sue in the domestic courts rather than in Strasbourg.”
Thus the Divisional Court found the Act to have extra-territorial application (para 306) to “allow of the narrow exception which we have framed and applied in the case of the sixth claimant”. Brooke LJ similarly confined the extra-territorial effect of the Act by limiting it (para 147) to cases “where a public authority is found to have exercised extra-territorial jurisdiction on the application of [state agent authority] principles”. I think, with respect, that there is a certain danger in this line of reasoning. It is one thing to say (if there is ground for doing so) that Parliament intended the Act to have the same extra-territorial effect as the Convention. It is another to base that conclusion on the finding that the exceptions to the territoriality principle recognised by Strasbourg were minor, unless it could be assumed that the Strasbourg court would recognise no other or wider exceptions in future. In this connection it is pertinent to recall Resolution 1386, adopted by the Parliamentary Assembly of the Council of Europe on 24 June 2004, paragraph 18 of which, quoted by the Court of Appeal, said:
“The Assembly calls upon those of its member states that are engaged in the [Multi-National Force] to accept the full applicability of the European Convention on Human Rights to the activities of their forces in Iraq, in so far as those forces exercised effective control over the areas in which they operated.”
B. The extra-territorial scope of the Convention
28. The Grand Chamber of the Strasbourg court has described the scope of article 1, in Bankovic v Belgium and others (2001) 11 BHRC 435, p 449, para 65, as
“determinative of the very scope of the contracting parties’ positive obligations and, as such, of the scope and reach of the entire convention system of human rights’ protection…”.
There could scarcely be a more fundamental question, nor one more obviously suitable for resolution (in a doubtful case) by a supranational rather than a national court. While a national court can and must interpret its own legislation, it must be slow to rule on the scope of an international treaty when its ruling, if correct, would apply to contracting states other than itself, and when the treaty has established a court with authority to give such rulings.
29. The Strasbourg court held in Bankovic, p 448, para 61, that
“article 1 of the convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case .”.
This is an important statement, since it is for the Strasbourg court to define the exceptions and evaluate the grounds for departing from the general rule. In paragraph 62 of its judgment, p 449, the court pertinently observed, with reference to state practice as a guide to interpretation:
“Although there have been a number of military missions involving contracting states acting extra-territorially since their ratification of the convention (inter alia, in the Gulf, in Bosnia and Herzegovina and in the FRY), no state has indicated a belief that its extra-territorial actions involved an exercise of jurisdiction within the meaning of article 1 of the convention by making a derogation pursuant to article 15 of the convention.”
So it does not appear that military action abroad has generally been regarded as giving rise to an exception.
30. The claimants advanced alternative bases on which, they submitted, cases 1-5 fell within the jurisdiction of the UK. One, their preferred basis, rested by analogy on an exception which (as described in Bankovic, p 451, para 73) included
“cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state”.
The other basis (Bankovic, p 450, para 70) was
“when as a consequence of military action (lawful or unlawful) [a contracting state] exercised effective control of an area outside its national territory”.
This exception was largely developed in relation to the occupation by one contracting state (Turkey) of the territory of another (Cyprus) in Europe. Neither of these bases of exception can be described as clear- cut, and the application of either of them to the situation of British troops operating in Iraq must, in my opinion, be regarded as problematical.
31. The Divisional Court held (para 287) that Mr Mousa’s case fell within article 1 because
“a British military prison, operating in Iraq with the consent of the Iraqi sovereign authorities, and containing arrested suspects, falls within even a narrowly limited exception exemplified by embassies, consulates, vessels and aircraft, and in Hess v United Kingdom 2 DR 72, a prison”.
The Court of Appeal (para 108) upheld this decision but on the basis that
“Mr Mousa came within the control and authority of the UK from the time he was arrested at the hotel and thereby lost his freedom at the hands of British troops”.
The difference between these two formulations would not appear, on the facts here, to be significant, but in other cases it could be so.
32. If any of these claimants pursues an application against the UK at Strasbourg, as it is of course open to them to do, the court there will rule on the admissibility of the applications. I do not think that any useful purpose is served by seeking to predict what its decision will be or to suggest what it should be.
Conclusion
33. Since I conclude that no claim by any of the claimants will lie in this country under the Act, I do not think it useful to discuss the violation issue. For all these reasons I would dismiss the claimants’ appeal, allow the Secretary of State’s cross-appeal against the Court of Appeal’s ruling on the applicability of the HRA to Mr Mousa’s case and set aside the order for remission of Colonel Mousa’s claim, which must be dismissed. I would invite the parties to make written submissions on costs within 14 days.
LORD RODGER OF EARLSFERRY
My Lords,
37. Section 6(1) provides:
“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
The words are quite general and, on its face, the provision contains no geographical limitation – hence the issue between the parties about its proper scope. The Secretary of State points out that Parliament has not chosen to use the kind of specific wording that would show that it was intended to apply outside the United Kingdom. That comment is, of course, correct, but it does not really go anywhere since the Secretary of State is merely drawing attention to a defining feature of any case where the issue is whether a statute is to be construed as applying, by implication, to conduct outside the United Kingdom.
38. The Secretary of State submits that, when interpreting sections 6 and 7 of the Act, courts must bear in mind the rule of construction which Bennion, Statutory Interpretation (4th edition, 2002), p 282, formulates in these terms:
“Unless the contrary intention appears, Parliament is taken to intend an Act to extend to each territory of the United Kingdom but not to any territory outside the United Kingdom.”
As the heading, “Presumption of United Kingdom extent”, shows, however, this statement is simply concerned with the extent of legislation. In the case of the 1998 Act, in accordance with the usual, slightly puzzling, practice, section 22(6) provides specifically that it extends to Northern Ireland. On the accepted rule of interpretation which Bennion states in this passage, the Act therefore extends to the United Kingdom as a whole. In itself, this merely means that the Act forms part of the law of the United Kingdom and does not form part of the law of any other territory for which Parliament could have legislated: Lawson v Serco Ltd [2006] ICR 250, 253, para 1, per Lord Hoffmann.
39. Section 22(7) is also concerned with extent:
“Section 21(5), so far as it relates to any provision contained in the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957, extends to any place to which that provision extends.”
Section 21(5) provides that any liability under the three statutes to suffer death for an offence is replaced by a liability to imprisonment for life or any lesser punishment authorised by those Acts. The Acts are to have effect with the necessary modifications.
42. No such provision is necessary, however, to permit a provision in a statute to have extra-territorial effect. An Act which extends, say, to England and Wales only may contain a provision that quite specifically applies to conduct outside the United Kingdom. That is the case, for instance, with section 72 of the Sexual Offences Act 2003, an Act which, in terms of section 142(1), extends to England and Wales only. Similarly, section 11 of the Criminal Procedure (Scotland) Act 1995 applies to offences committed outside the United Kingdo m, even though section 309(3) shows that, with the exception of a few provisions, the
Act extends to Scotland only. So, here, the fact that the 1998 Act extends to the United Kingdom only, and forms part of the law of the United Kingdom only, is neutral. It is entirely consistent with section 6 applying to an act of a public authority outside the territory of the United Kingdom. If section 6 did apply in that way, the effect would simply be that an act of the public authority outside the United Kingdom would give rise to consequences under the law of the United Kingdom. Putting section 22(6) and (7) on one side, therefore, the House has to decide whether section 6 is intended to apply in that way.
“But, if a foreigner remains abroad, if he has never come into this country at all, it seems to me impossible to imagine that the English legislature could have ever intended to make such a man subject to particular English legislation.”
On this general approach, for instance, there can be no doubt that, despite the lack of any qualifying words, section 6(1) of the 1998 applies only to United Kingdom public authorities and not to the public authorities of any other state.
46. Subjects of the Crown, British citizens, are in a different boat. International law does not prevent a state from exercising jurisdiction over its nationals travelling or residing abroad, since they remain under its personal authority: Oppenheim’s International Law (ninth edition, 1992), vol 1, para 138. So there can be no objection in principle to Parliament legislating for British citizens outside the United Kingdom, provided that the particular legislation does not offend against the sovereignty of other states. In Ex p Blain (1879) 12 Ch D 522, 531-532, Cotton LJ explained the position in this way:
“All we have to do is to interpret an Act of Parliament which uses a general word, and we have to say how that word is to be limited, when of necessity there must be some limitation. I take it the limitation is this, that all laws of the English Parliament must be territorial – territorial in this sense, that they apply to and bind all subjects of the Crown who come within the fair interpretation of them, and also all aliens who come to this country, and who, during the time they are here, do any act which, on a fair interpretation of the statute as regards them, comes within its provision…. As regards an Englishman, a subject of the
British Crown, it is not necessary that he should be here, if he has done that which the Act of Parliament says shall give jurisdiction, because he is bound by the Act by reason of his being a British subject, though, of course, in the case of a British subject not resident here, it may be a question on the construction of the Act of Parliament whether that which, if he had been resident here, would have brought him within the Act, has that effect when he is not resident here.”
Restating the position in the language of the 1980s, in Clark v Oceanic Contractors Inc [1983] 2 AC 130, 145D-E, Lord Scarman said that the general principle is simply that:
“unless the contrary is expressly enacted or so plainly implied that the courts must give effect to it, United Kingdom legislation is applicable only to British subjects or to foreigners who by coming to the United Kingdom, whether for a short or a long time, have made themselves subject to British jurisdiction.”
“In the absence of an intention clearly expressed or to be inferred either from its language, or from the object or subject-matter or history of the enactment, the presumption is that Parliament does not design its statutes to operate on its subjects beyond the territorial limits of the United Kingdom.”
In Tomalin v S Pearson & Son Ltd [1909] 2 KB 61, 64, Cozens-Hardy MR approved an earlier version of this statement. The court held that the Workmen’s Compensation Act 1906 did not apply where a workman, employed by a British company, had been killed in the course of his employment in Malta. Leaving aside the rule of construction, various provisions of the Act indicated that it was only intended to apply in certain specific circumstances outside the United Kingdom.
50, if the words of a statute are open to more than one interpretation, whether or not it binds British citizens abroad “seems to depend … entirely on the nature of the statute”: Maxwell on The Interpretation of Statutes, p 169.
50. The books therefore contain examples of cases where, because of its nature, legislation has been held to apply to British subjects outside the United Kingdom. In How gate v Bagnall [1951] 1 KB 265, for instance, in 1944 a passenger had died due to asphyxiation in a fire which occurred when an aircraft belonging to His Majesty tried to land on an airfield at Karachi, then in India. His executor sued the captain and second pilot of the aircraft for damages. They defended the action on the basis that the deceased’s injuries were “war injuries” and so, under section 3(1) of the Personal Injuries (Emergency Provisions) Act 1939, no damages were payable at common law. While excluding the right to damages for such injuries, the Act made provision for a pension to be paid to victims. Barry J held that, in the circumstances, the deceased’s injuries did not fall within the definition of “war injuries” in the Act and the plaintiff was, accordingly, entitled to recover damages. But he would have resolved the prior question of the applicability of the United Kingdom statute to the events in India in favour of the defendants.
51. Referring to Tomalin v S Pearson & Son Ltd and other cases on the Workmen’s Compensation legislation, Barry J pointed out, at p 274, that they had no direct bearing on the construction of the 1939 Act, and continued:
“Were it material to the decision of the present case, I should have felt bound to accede to the submission of counsel for the defendants that the general scheme of the Act of 1939 and the conditions of universal war which existed, or seemed likely to exist, at the time when it was passed, all tend to show that its application is not to be confined to the narrow territorial limits of the United Kingdom. I think that the Act applies to all British subjects who suffer ‘war injuries’ within the meaning of the definition, in any part of the globe. Counsel for the plaintiff pointed out that this construction of the Act might enable a British subject resident in the United States of America to recover compensation if he were injured by the impact of an American aircraft. If this were so, it would perhaps throw some doubt on the construction that I have indicated; but in my judgment Parliament provided against such absurdities by enabling the Minister to specify in his scheme the classes of persons entitled to benefit under it.”
56. By this somewhat circuitous route, I arrive at what is surely the crucial argument in favour of the wider interpretation of section 6. The Secretary of State accepts that “the central purpose” of Parliament in enacting sections 6 and 7 was “to provide a remedial structure in domestic law for the rights guaranteed by the Convention”: Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2004] 1 AC 546, 564, para 44, per Lord Hope of Craighead. In other words, claimants were to be able to obtain remedies in United Kingdom courts, rather than having to go to Strasbourg. The Secretary of State also accepts that, while the jurisdiction of states for the purposes of article 1 of the Convention is essentially territorial, in exceptional cases, “acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of article 1 of the convention”: Bankovic v Belgium (2001) 11 BHRC 435, 450, para 67. Nevertheless, the Secretary of State says that sections 6 and 7 are to be interpreted in such a way that, in these exceptional cases, a victim is left remediless in the British courts. Contrary to the central policy of the Act, the victim must resort to Strasbourg.
“To this end the obligations of public authorities under sections 6 and 7 mirror in domestic law the treaty obligations of the United Kingdom in respect of corresponding articles of the Convention and its protocols. That was the object of these sections. As my noble and learned friend, Lord Hope of Craighead, has said, the ‘purpose of these sections is to provide a remedial structure in domestic law for the rights guaranteed by the Convention’: Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2004] 1 AC 546, 564, para 44. Thus, and this is the important point for present purposes, the territorial scope of the obligations and rights created by sections 6 and 7 of the Act was intended to be co-extensive with the territorial scope of the obligations of the United Kingdom and the rights of victims under the Convention. The Act was intended to provide a domestic remedy where a remedy would have been available in Strasbourg. Conversely, the Act was not intended to provide a domestic remedy where a remedy would not have been available in Strasbourg. Accordingly, in order to identify the territorial scope of a ‘Convention right’ in sections 6 and 7 it is necessary to turn to Strasbourg and consider what, under the Convention, is the territorial scope of the relevant Convention right.”
Lord Nicholls confirms that, in interpreting the rights in the Schedule, courts must take account of the territorial scope of the relevant right under the Convention. In the present case, that means having regard to those exceptional situations where article 2 would apply outside the territory of the United Kingdom. In other words, on a fair interpretation, article 2 in the Schedule to the Act must be read as applying wherever the United Kingdom has jurisdiction in terms of article 1 of the Convention. The corollary is that section 6 must also be interpreted as applying in the same circumstances.
62. So far as the other appellants are concerned, the relevant facts are carefully described in the judgment of the Divisional Court, [2007] QB 140, 160-165, paras 55-80. I gratefully adopt that account. I have also had the privilege of considering what Lord Brown is going to say about the question of jurisdiction under the Convention. In all essentials I agree with him. In these circumstances, especially where the issues have also been exhaustively analysed in the Divisional Court and Court of Appeal, nothing would be gained by me going over all of the same ground. I therefore add only some additional observations on the issues raised.
63. The European Convention is a treaty under international law. Somewhat unusually, it confers rights on individuals against the contracting parties. While the Geneva Conventions on the Protection of War Victims 1949 apply “in all circumstances”, the geographical scope of the rights under the European Convention is more limited: under article 1, the States Parties are bound to “secure to everyone within their jurisdiction the rights and freedoms defined in Section 1” of the Convention.
72. All this would be quite straightforward if it were not for the reasoning of the European Court in Issa v Turkey (2004) 41 EHRR 567. The case concerned the deaths of a number of shepherds in a particular area of Northern Iraq. The applicants contended that the shepherds had been killed by Turkish troops operating in that area. Turkey denied that the shepherds had ever been within its jurisdiction. At para 71 of its decision, the European Court said this:
“Moreover, a state may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another state but who are found to be under the former state’s authority and control through its agents operating – whether lawfully or unlawfully in the latter state…. Accountability in such situations stems from the fact that article 1 of the Convention cannot be interpreted so as to allow a state party to perpetrate violations of the Convention on the territory of another state, which it could not perpetrate on its own territory.”
The Court went on, at para 72, to say that it must ascertain whether the deceased “were under the authority and/or effective control, and therefore within the jurisdiction, of the respondent state” as a result of its extra-territorial acts. The Court did not exclude the possibility, at para 74, that, as a consequence of military operations over a six-week period, Turkey could be considered to have exercised, temporarily, effective overall control of a particular portion of the territory of northern Iraq. The Court concluded:
“Accordingly, if there is a sufficient factual basis for holding that, at the relevant time, the victims were within that specific area, it would follow logically that they were within the jurisdiction of Turkey (and not that of Iraq, which is not a contracting state and clearly does not fall within the legal space (espace juridique) of the contracting states..)”
Having examined the available evidence, however, the court held that the applicants had failed to prove that the troops had been in the area in question. On that basis, it was not satisfied that the shepherds had been within the jurisdiction of Turkey in terms of article 1.
73. The actual decision in Issa is therefore of no assistance to the appellants, but they can and do point to the very broad proposition in the last sentence of the passage from para 71 of the court’s decision which I have quoted in the previous paragraph. In reproducing the passage I have omitted the citations, but, as authority for its approach in the final sentence, the European Court cited the views of the United Nations Human Rights Committee in Lopez v Uruguay (29 July 1981) 68 ILR 29 and in Celiberti de Casariego v Uruguay (29 July 1981) 68 ILR 41. In each of these cases the allegation was that a citizen of Uruguay had been seized on the territory of another State with the co-operation or connivance of officials of that other state, taken back to Uruguay and detained there. For purposes of the European Convention, cases of that kind would fit easily into the same category as the decisions of the Commission in Freda v Italy (1980) 21 DR 250 and Sanchez Ramirez v France (1996) 86-A DR 155. These both involved officers of the respondent state, with the co-operation of officials of the state where the applicant was, removing him and taking him back to the respondent state for trial. Ocalan v Turkey (2005) 41 EHRR 985 seems to fall into the same category. The applicant, who thought that a Kenyan official was driving him to Nairobi airport to fly to the Netherlands, was actually taken by a special route to the international transit area of the airport where he was handed over to Turkish officials, taken on board a Turkish aircraft and arrested. The court did not have to rule on jurisdiction, since it was common ground that the applicant was within the jurisdiction of Turkey in terms of article 1 from the moment he was handed over to the Turkish officials: 41 EHRR 985, 1018, para 91.
74. What causes the difficulty, therefore, is not the idea that the Convention would apply extra-territorially in cases which resembled Lopez v Uruguay and Celiberti de Casariego v Uruguay. Rather, it is the weight which the European Court appears to have attached to the particular basis on which the Human Rights Committee considered that it had jurisdiction. Article 2 of the International Covenant on Civil and Political Rights refers to “individuals subject to [the] jurisdiction” of the state concerned. Referring to article 5 of the Covenant, which is broadly similar to article 17 of the European Convention, the Human Rights Committee held, at paras 12.3 and 10.3 respectively of its two decisions, that:
“In line with this, it would be unconscionable to so interpret the responsibility under Article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.”
In each case Mr Christian Tomuschat entered an individual opinion, rejecting that reasoning on the ground that article 5 could not be used to extend the jurisdiction of the Covenant: it was simply designed to prevent any rules of the Covenant being used to justify actions which ran counter to its purposes and general spirit.
75. Although in Issa the European Court cited the proposition from the Human Rights Committee, it did not explain how that proposition fitted into its own existing jurisprudence, especially as analysed in Bankovic. Notably – and surely correctly – the court did not justify its approach by reference to article 17. Moreover, the proposition appears to focus on the activity of the contracting state, rather than on the requirement that the victim should be within its jurisdiction. Without further guidance from the European Court, I am unable to reconcile this approach with the reasoning in Bankovic. In these circumstances, although Issa concerned Turkish troops in Iraq, I do not consider that this aspect of the decision provides reasoned guidance on which the House can rely when resolving the question of jurisdiction in the present case.
79. The essentially regional nature of the Convention has a bearing on another aspect of the decision in Bankovic. In the circumstances of that case the respondent states were plainly in no position to secure to everyone in the RTS station or even in Belgrade all the rights and freedoms defined in Section 1 of the Convention. So the applicants had to argue that it was enough that the respondents were in a position to secure the victims’ rights under articles 2, 10 and 13 of the Convention. In effect, the applicants were arguing that it was not an answer to say that, because a state was unable to guarantee everything, it was required to guarantee nothing – to adopt the words of Sedley LJ, [2007] QB 140, 301, para 197. The European Court quite specifically rejected that line of argument. The court held, 11 BHRC 435, 452, para 75, that the obligation in article 1 could not be “divided and tailored in accordance with the particular circumstances of the extra-territorial act in question.” In other words, the whole package of rights applies and must be secured where a contracting state has jurisdiction. This merely reflects the normal understanding that a contracting state cannot pick and choose among the rights in the Convention: it must secure them all to everyone within its jurisdiction. If that is so, then it suggests that the obligation under article 1 can arise only where the contracting state has such effective control of the territory of another state that it could secure to everyone in the territory all the rights and freedoms in Section 1 of the Convention.
80. The short passage in para 74 of the decision in Issa where the European Court refers to the possibility of temporary effective overall control of an area of Iraq giving rise to jurisdiction for the purposes of article 1 of the Convention does not address any of these questions. For that reason, it does not provide workable guidance for the House.
BARONESS HALE OF RICHMOND
My Lords,
“It is true that section 244(1) [of the 1996 Act] says that the Act ‘extends’ to England and Wales and Scotland (‘Great Britain’). But that means only that it forms part of the law of Great Britain and does not form part of the law of any other territory (like Northern Ireland or the Channel Islands) for which Parliament could have legislated. It tells us nothing about the connection, if any, which an employee or his employment must have with Great Britain.”
87. The Human Rights Act extends to England and Wales, Scotland and Northern Ireland: see s 22(6). But by itself this tells us nothing about the public authorities to which section 6(1) applies, or about the acts to which it applies, or about the people for whose benefit it applies.
Brown says at para 106, but certainly no more. If Parliament wishes to go further, or if the courts find it appropriate to develop the common law further, of course they may. But that is because they choose to do so, not because the Convention requires it of them.
LORD CARSWELL
My Lords,
93. It is a sad but inescapable consequence of armed conflict that lives will be lost. Unhappily, some of the persons killed will be peaceable civilians caught in cross-fire. Others will have been shot by members of the armed forces involved, and the extent of the justification for shooting them which may be advanced will vary enormously with the circumstances. One of the appeals before the House concerned such an innocent civilian, and it cannot even be determined on the evidence presently available which group fired the shot which killed her. In four of the appeals the victims were shot by members of the British armed forces. As is very commonly the case in such situations, the versions of the facts retailed by witnesses differ markedly. The soldiers maintain that they were or reasonably thought themselves to be under attack, and so were within the rules of engagement. Civilian witnesses aver, however, that the victims were harmless and uninvolved citizens and that the shootings were unj ustified. The sixth case is wholly different: Mr Baha Mousa died as a result of appalling maltreatment in a prison occupied and run by British military personnel. His treatment cannot for a moment be defended, but due to a regrettable paucity of evidence it has not proved possible to bring to justice those responsible for his death.
94. The families of the deceased persons understandably want a full and effective investigation carried out into each death. Certain investigations were done by the Army authorities, but the relatives claim that they were insufficiently thorough and seek to have the government put in train more extensive inquiries at which evidence and opinions on all sides can be advanced.
LORD BROWN OF EATON-UNDER-HEYWOOD
My Lords,
Article 1 – the reach of the Convention
“The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.”
106. I would respectfully suggest that last sentence could as well have ended: “no less, but certainly no more.” There seems to me, indeed, a greater danger in the national court construing the Convention too generously in favour of an applicant than in construing it too narrowly. In the former event the mistake will necessarily stand: the member state cannot itself go to Strasbourg to have it corrected; in the latter event, however, where Convention rights have been denied by too narrow a construction, the aggrieved individual can have the decision corrected in
Strasbourg. Ullah, of course, was concerned with the particular scope of individual Convention rights, there article 9, in the context of removing non-nationals from a member state. Lord Bingham’s cautionary words must surely apply with greater force still to a case like the present. As the Grand Chamber observed in Bankovic v Belgium (2001) 11 BHRC 435, 449 (para 65): “the scope of article 1 . . . is determinative of the very scope of the contracting parties’ positive obligations and, as such, of the scope and reach of the entire Convention system of human rights’ protection.”
(1) Article 1 reflects an “essentially territorial notion of jurisdiction” (a phrase repeated several times in the Court’s judgment), “other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case” (para 61). The Convention operates, subject to article 56, “in an essentially regional context and notably in the legal space (espace juridique) of the contracting states” (para 80) (ie within the area of the Council of Europe countries).
(2) The Court recognises article 1 jurisdiction to avoid a “vacuum in human rights’ protection” when the territory “would normally be covered by the Convention” (para 80) (ie in a Council of Europe country) where otherwise (as in Northern Cyprus) the inhabitants “would have found themselves excluded from the benefits of the Convention safeguards and system which they had previously enjoyed” (para 80).
(3) The rights and freedoms defined in the Convention cannot be “divided and tailored” (para 75).
(4) The circumstances in which the Court has exceptionally recognised the extra-territorial exercise of jurisdiction by a state include:
(i) Where the state “through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the government of that territory, exercises all or some of the public powers normally to be exercised by [the government of that territory]” (para 71) (ie when otherwise there would be a vacuum within a Council of Europe country, the government of that country itself being unable “to fulfil the obligations it had undertaken under the Convention” (para 80) (as in Northern Cyprus).
(ii) “Cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state [where] customary international law and treaty provisions have recognised the extra-territorial exercise of jurisdiction” (para 73).
(iii) Certain other cases where a state’s responsibility “could, in principle, be engaged because of acts … which produced effects or were performed outside their own territory” (para 69). Drozd v France (1992) 14 EHRR 745 (at para 91) is the only authority specifically referred to in Bankovic as exemplifying this class of exception to the general rule. Drozd, however, contemplated no more than that, if a French judge exercised jurisdiction extra-territorially in Andorra in his capacity as a French judge,then anyone complaining of a violation of his Convention rights by that judge would be regarded as being within France’s jurisdiction.
(iv) The Soering v United Kingdom (1989) 11 EHRR 439 line of cases, the Court pointed out, involves action by the state whilst the person concerned is “on its territory, clearly within its jurisdiction” (para 68) and not, therefore, the exercise of the state’s jurisdiction abroad.
There is, on the face of it, nothing in Bankovic which gives the least support to the appellants’ arguments.
Article 56
The post-Bankovic cases
“The general duty imposed on the state by article 1 of the Convention entails and requires the implementation of a national system capable of securing compliance with the Convention throughout the territory of the state for everyone” (para 147).
116. Ilascu v Moldova and Russia (2004) 40 EHRR 1030, concerned human rights in Transdniestria, an area of Moldova subject to a separatist regime supported by Russia. The Grand Chamber held by a majority of 16 to 1 that Russia exercised jurisdiction and by 11 votes to 6 that Moldova did too. Because, however, Moldova lacked effective control within its own territory it could not be held responsible for violations save to the extent that they arose out of failures by Moldova to comply with its positive obligations “to take the diplomatic, economic, judicial or other measures that it is in its power to take and are in accordance with international law to secure to the applicants the rights guaranteed by the Convention” (para 331). Judge Bratza, speaking for five of the six judges dissenting on whether Moldova exercised jurisdiction, expressed
“difficulty in accepting the proposition that those within a part of the territory of a state over which, as a result of its unlawful occupation by a separatist administration, the state is prevented from exercising any authority or control, may nevertheless be said to be within the ‘jurisdiction’ of the state according to the autonomous meaning of that term in article 1 of the Convention, which term presupposes that the state has the power ‘to secure to everyone . . . the rights and freedoms’ defined therein.”
Whatever view one takes of the majority’s approach, however, it cannot avail the appellants here: there was simply no question of Moldova exercising any form of extra-territorial jurisdiction.
“It is common ground that, directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was under effective Turkish authority and therefore within the ‘jurisdiction’ of that state for the purposes of article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory. It is true that the applicant was physically forced to return to Turkey by Turkish officials and was under their authority and control following his arrest and return to Turkey (see, in this respect, the aforementioned decisions in the cases of [Sanchez] Ramirez v France and Freda v Italy; and, by converse implication, Bankovic v Belgium).”
“Moreover, a state may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another state but who are found to be under the former state’s authority and control through its agents operating—whether lawfully or unlawfully—in the latter state (see … M v Denmark, …. Sanchez Ramirez v France … Coard et al v United States … and the views adopted by the Human Rights Committee … in the cases of Lopez Burgos v Uruguay and Celiberti de Casariego v Uruguay … ). Accountability in such situations stems from the fact that article 1 of the Convention cannot be interpreted so as to allow a state party to perpetrate violations of the Convention on the territory of another state, which it could not perpetrate on its own territory (ibid).”
Chamber in Bankovic). Thirdly, such wider view of jurisdiction would clearly be inconsistent both with the reasoning in Bankovic and, indeed, with its result. Either it would extend the effective control principle beyond the Council of Europe area (where alone it had previously been applied, as has been seen, to Northern Cyprus, to the Ajarian Autonomous Republic in Georgia and to Transdniestria) to Iraq, an area (like the FRY considered in Bankovic) outside the Council of Europe— and, indeed, would do so contrary to the inescapable logic of the Court’s case law on article 56. Alternatively it would stretch to breaking point the concept of jurisdiction extending extra-territorially to those subject to a state’s “authority and control”. It is one thing to recognise as exceptional the specific narrow categories of cases I have sought to summarise above; it would be quite another to accept that whenever a contracting state acts (militarily or otherwise) through its agents abroad, those affected by such activities fall within its article 1 jurisdiction. Such a contention would prove altogether too much. It would make a nonsense of much that was said in Bankovic, not least as to the Convention being “a constitutional instrument of European public order”, operating “in an essentially regional context”, “not designed to be applied throughout the world, even in respect of the conduct of contracting states” (para 80). It would, indeed, make redundant the principle of effective control of an area: what need for that if jurisdiction arises in any event under a general principle of “authority and control” irrespective of whether the area is (a) effectively controlled or (b) within the Council of Europe?
128. There is one other central objection to the creation of the wide basis of jurisdiction here contended for by the appellants under the rubric “control and authority”, going beyond that arising in any of the narrowly recognised categories already discussed and yet short of that arising from the effective control of territory within the Council of Europe area. Bankovic (and later Assanidze) stands, as stated, for the indivisible nature of article 1 jurisdiction: it cannot be “divided and tailored”. As Bankovic had earlier pointed out (at para 40) “the applicant’s interpretation of jurisdiction would invert and divide the positive obligation on contracting states to secure the substantive rights in a manner never contemplated by article 1 of the Convention.” When, moreover, the Convention applies, it operates as “a living instrument.” Ocalan provides an example of this, a recognition that the interpretation of article 2 has been modified consequent on “the territories encompassed by the member states of the Council of Europe [having] become a zone free of capital punishment” (para 163). (Paragraphs 64 and 65 of Bankovic, I may note, contrast on the one hand “the Convention’s substantive provisions” and “the competence of the Convention organs”, to both of which the “living instrument” approach applies and, on the other hand, the scope of article 1—”the scope and reach of the entire Convention”—to which it does not.) Bear in mind too the rigour with which the Court applies the Convention, well exemplified by the series of cases from the conflict zone of south eastern Turkey in which, the state’s difficulties notwithstanding, no dilution has been permitted of the investigative obligations arising under articles 2 and 3.
The point is this: except where a state really does have effective control of territory, it cannot hope to secure Convention rights within that territory and, unless it is within the area of the Council of Europe, it is unlikely in any event to find certain of the Convention rights it is bound to secure reconcilable with the customs of the resident population. Indeed it goes further than that. During the period in question here it is common ground that the UK was an occupying power in Southern Iraq and bound as such by Geneva IV and by the Hague Regulations. Article 43 of the Hague Regulations provides that the occupant “shall take all the measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” The appellants argue that occupation within the meaning of the Hague Regulations necessarily involves the occupant having effective control of the area and so being responsible for securing there all Convention rights and freedoms. So far as this being the case, however, the occupants’ obligation is to respect “the laws in force”, not to introduce laws and the means to enforce them (for example, courts and ajustice system) such as to satisfy the requirements of the Convention. Often (for example where Sharia law is in force) Convention rights would clearly be incompatible with the laws of the territory occupied.
Realistically the concept of the indivisibility of the Convention presents no problem in the categories of cases discussed in paras 119— 126 above: these concern highly specific situations raising only a limited range of Convention rights.
In my judgment Issa should not be read as detracting in any way from the clear—and clearly restrictive—approach to article 1 jurisdiction adopted in Bankovic. I recognise that in two later decisions other chambers of the Court have, as so commonly occurs in Strasbourg judgments, repeated the substance of para 71 of Issa. But in neither of them does there appear to have been any relevant argument on the reach of article 1. Isaak v Turkey (Application No 44587) (unreported) 28 September 2006 concerned the death of a demonstrator through the actions of Turkish protesters and police in the UN buffer zone separating northern Cyprus from the south. The Court held (at page 20) that “Turkey’s jurisdiction must be considered to extend to securing the entire range of substantive rights set out in the Convention and those additional protocols which she has ratified, and that violations of those rights are imputable to Turkey.” Ben El Mahi v Denmark (Application No 5853/06) (unreported) 11 December 2006 concerned the publication in Denmark of cartoons allegedly breaching the Moroccan applicants’ article 9 rights. The application was unsurprisingly ruled inadmissible on the ground that there was no “jurisdictional link” between the respondent state and the applicants.
Taken as a whole, therefore, and according particular weight to Grand Chamber judgments, so far from weakening the principles established in Bankovic, subsequent Strasbourg case law to my mind reinforces them. Certainly, whatever else may be said of the Strasbourg jurisprudence, it cannot be said to establish clearly that any of the first five appellants come within the UK’s article 1 jurisdiction. As for the sixth case, I for my part would recognise the UK’s jurisdiction over Mr Mousa only on the narrow basis found established by the Divisional Court, essentially by analogy with the extra-territorial exception made for embassies (an analogy recognised too in Hess v United Kingdom (1975) 2 DR 72, a Commission decision in the context of a foreign prison which had itself referred to the embassy case of X v Federal Republic of Germany). In the light of those conclusions as to the reach of the Convention I come now to the Human Rights Act 1998.
The reach of the Human Rights Act
Although I respectfully disagree with the conclusion reached by my noble and learned friend Lord Bingham of Cornhill on this issue, I am in agreement with much of what he says in the course of his consideration of it.
134. I agree, of course, that there is a distinction between rights arising under the Convention and rights created by the Act by reference to the Convention. A plain illustration of this arises from the temporal limitations imposed by the Act: its non-retrospectivity as established in In re McKerr [2004] 1 WLR 807. Another illustration is the Act’s non- applicability in article 56 cases. Consider R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2006] 1 AC 529, discussed by Lord Bingham at paras 18-20. Even had the UK extended article 1 of the First Protocol to “SGSSI”, no claim would have been available against the Secretary of State under the Act although the UK would clearly have been liable internationally for any breach. It is for the dependent territory’s own legislation to give effect to Convention rights, just as for Jersey, Guernsey and the Isle of Man.
“The United Kingdom rarely purports to legislate for the whole world. . . . [U]sually such an exorbitant exercise of
legislative power would be both ineffectual and contrary to the comity of nations.”
It was accordingly there decided that section 94(1) of the Employment Rights Act 1996—which provides that: “An employee has the right not to be unfairly dismissed by his employer”—”must have implied territorial limits”. Recognising the difficulty of saying exactly what those limits are and that “the question of territorial scope is not straightforward”, Lord Hoffmann said that in principle the question is always one of construction. As to this he cited Lord Wilberforce’s speech in Clark v Oceanic Contractors Inc [1983] 2 AC 130, 152, saying that the question “requires an inquiry to be made as to the person with respect to whom Parliament is presumed, in the particular case, to be legislating. Who, it is to be asked, is within the legislative grasp, or intendment, of the statute under consideration?”
“Although there is thus no obligation to incorporate the Convention into domestic law, by virtue of article 1 of the Convention the substance of the rights and freedoms set forth must be secured under the domestic legal order, in some form or another, to everyone within the jurisdiction of the contracting states. Subject to the qualification explained in the following paragraph [the qualification that article 13 does not go so far as to guarantee a remedy allowing a contracting state’s laws as such to be challenged before a national authority on the ground of being contrary to the Convention, the qualification which defeated the applicant in the James case itself], article 13 guarantees the availability within the national legal order of an effective remedy to enforce the Convention rights and freedoms in whatever form they may happen to be secured.”
148. In the Observer case and in McCann (both cited by my Lord at para 12) article 13 presented no problem: it had not been breached. In the Observer case domestic common law, and in McCann the Gibraltar Constitution, enabled the respective complaints to be considered on their merits. The position, however, was different in Smith and Grady v United Kingdom (1999) 29 EHRR 493. There article 13 was held to be violated: “the threshold at which [the domestic courts] could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants’ rights answered a pressing social need or was proportionate to the national security and public order aims pursued . . . ” So too article 13 would be found violated here if the Act were held not to apply to Mr Mousa’s case: his complaints could not then be considered on their merits under domestic law.
151. In the final result I would dismiss the appeals of each of the first five appellants and dismiss too the cross-appeal by the respondent as to the applicability of the Human Rights Act to the sixth appellant’s case. That being so it is agreed between the parties that, in the light of factual developments since the Court of Appeal’s order, the sixth appellant’s case should be remitted to the Divisional Court to join the other cases which have been stayed for the substantive issues to be decided in the light of up to date evidence and amended pleadings.
Nicolas Boeglin, Profesor de Derecho Internacional Público, Facultad de Derecho, Universidad de Costa Rica (UCR).…
Journal of Conflict Resolution Volume 69 Issue 1, January 2025 ISSN: 0022-0027 Online ISSN: 1552-8766…
Nicolas Boeglin, Professeur de droit international public, Faculté de droit, Université du Costa Rica (UCR).…
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Nicolas Boeglin, Profesor de Derecho Internacional Público, Facultad de Derecho, Universidad de Costa Rica (UCR).…
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