HUMAN RIGHTS—HUMAN RIGHTS CONVENTION— EXTRA—TERRITORIAL JURISDICTION

House of Lords
Lord Bingham, Lord Rodger, Baroness Hale, Lord Carswell and Lord Brown
13 June 2007

Section 6 of the Human Rights Act 1998 (HRA 1998) applies not only when a public authority acts within the UK but also when it acts within the jurisdiction of the UK for purposes of Art 1 of the European Convention on Human Rights (the Convention) but outside the territory of the UK. 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.

Rabinder Singh QC, Michael Fordham QC, Shaheed Fatima and Christine Chinkin (instructed by Public Interest Lawyers, Birmingham) for the claimants.
Christopher Greenwood QC, Philip Sales QC and Cecilia Ivimy (instructed by the Treasury Solicitor) for the Secretary of State.
Keir Starmer QC, Richard Hermer and Charles Banner (instructed by Bhatt Murphy) for the interveners.

The claimants in six cases were relatives of Iraqi citizens who were killed in southern Iraq in August and November 2003. Save for the third appellant, the secretary of state accepted that they were killed by members of the British forces. In February 2004, the relatives asked for a public inquiry into the deaths. The secretary of state refused.

The claimants applied for judicial review of that refusal, contending that it was unlawful in terms of HRA 1998, s 6 since it was incompatible with the claimants’ rights under Art 2 of the Convention. The secretary of state argued: (i) that HRA 1998 did not apply outside the territory of the UK; and (ii), in any event, save for the sixth claimant (a death in a British detention centre) the deceased were not within the jurisdiction of the UK in terms of Art 1 of the Convention. The Divisional Court held that five out of the six claims fell outside the scope of the Convention, but that the sixth claimant’s claim did not. The Court of Appeal upheld that decision. The first five claimants appealed, and the secretary of state cross-appealed. The cross-appeal concerned whether HRA 1998 applied territorially, and if so in what way. The appeals concerned the question of who, within the meaning of Art 1 of the Convention, was to be regarded as within a contracting party’s jurisdiction, so as to require that state to secure to them the rights and freedoms defined in the Convention.

LORD RODGER:

The secretary of state accepted that, while the jurisdiction of states for the purposes of Art 1 of the Convention was 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”: Banković v Belgium (2001) 11 BHRC 435. Nevertheless, the secretary of state said that ss 6 and 7 were to be interpreted in such a way that in the instant, exceptional cases, a victim was left remediless in the British courts. Contrary to the central policy of HRA 1998, the victim had to resort to Strasbourg.

His Lordship was unable to accept that submission. It involved reading into ss 6 and 7 a qualification which the words did not contain and which ran counter to the central purpose of HRA 1998. His Lordship referred to R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2006] 3 All ER 111, [2005] UKHL 57. He ruled that s 6 should be interpreted as applying not only when a public authority acted within the UK but also when it acted within the jurisdiction of the UK for purposes of Art 1 of the Convention, but outside the territory of the UK.
The secretary of state’s cross appeal would therefore be dismissed.

LORD BROWN:

His Lordship referred to the Banković decision. Propositions for which it stood included that Art 1 reflected an “essentially territorial notion of jurisdiction”. The Convention operated, subject to Art 56, “in an essentially regional context and notably in the legal space of the contracting states”, ie within the area of the Council of Europe countries.

The circumstances in which the court had exceptionally recognised the extra-territorial exercise of jurisdiction by a state included 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].”
There was, on the face of it, nothing in Banković which gave the least support to the claimants’ arguments.

His Lordship considered also Issa v Turkey [2004] ECHR 31821/96. The point was that, except where a state really did have effective control of territory, it could not hope to secure Convention rights within that territory and, unless it was within the area of the Council of Europe, it was unlikely in any event to find certain of the Convention rights it was bound to secure reconcilable with the customs of the resident population. Indeed it went further than that. In the instant case 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 provided 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.”  Often (for example where Sharia law was in force) Convention rights would clearly be incompatible with the laws of the territory occupied.

His Lordship turned to the facts. The appeals of the first five claimants would be dismissed, and the case of the sixth remitted to the Divisional Court.
Baroness Hale and Lord Carswell delivered concurring opinions and Lord Bingham dissented.