House of Lords
Published June 14, 2007
Regina (Al-Skeini and Others) v Secretary of State for Defence
Before Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of
Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood
Speeches June 13, 2007
The Human Rights Act 1998 was capable of applying to acts of a United Kingdom
public authority performed outside its territory only where the victim was
within the jurisdiction of the UK for purposes of article 1 of the European
Convention on Human Rights.
The House of Lords so held, Lord Bingham dissenting, when dismissing
(i) appeals by five claimants, Mazin Jum'aa Gatteh Al-Skeini, Fattema Zabun
Dahesh, Hameed Abdul Rida Awaid Kareem, Fadil Fayay Muzban and Nuzha Habib
Yaaqub Ubaid Al-Rayahi whose relatives were killed in incidents involving
patrolling British troops in Iraq, and
(ii) the cross-appeal by the Secretary of State for Defence D in respect of
the sixth claim, by Daoud Mousa, whose son died at a British military
detention base in Iraq from injuries allegedly caused by British soldiers;
from the Court of Appeal (Lord Justice Brooke, Lord Justice Sedley and Lord
Justice Richards) (The Times January 6, 2006; [2007] QB 244) affirming the
decision of the Queen’s Bench Divisional Court (Lord Justice Rix and Mr
Justice Forbes) (The Times December 20, 2004; [2007] QB 140) that the 1998
Act and Human Rights Convention applied only in the sixth case; and setting
aside its declaration in the sixth case that the procedural duties under
articles 2 and 3 of the Convention, as scheduled to the 1998 Act, had been
violated. The House remitted that case to the Divisional Court.
Mr Rabinder Singh, QC, Mr Michael Fordham, QC, Ms Shaheed Fatima and Ms
Christine Chinkin for the claimants; Mr Keir Starmer, QC, Mr
Richard Hermer and Mr Charles Banner for 11 interveners; Mr
Christopher Greenwood, QC, Mr Philip Sales, QC and Ms Cecilia Ivimy
for the Defence Secretary.
LORD RODGER, referring to the general rule that legislation did not apply to
persons or matters outside the territory to which it extended, said that
behind the various rules of construction different policies could be seen at
work.
Every statute was interpreted, so far as its language permitted, so as not to
be inconsistent with the comity of nations or the established rules of
international law. In the absence of any contrary indication, the court
would interpret legislation as not intended to affect the subjects of
another sovereign who were not within the United Kingdom.
On that general approach there could be no doubt that despite its lack of
qualifying words, section 6(1) of the 1998 Act applied only to UK
authorities and not to public authorities of other states. British citizens
were in a different boat. International law did not prevent a state from
exercising jurisdiction over its nationals abroad since they remained under
its personal authority.
There could be no objection in principle to Parliament legislating for British
citizens abroad provided the particular legislation did not offend the
sovereignty of other states. The question was whether the statute was
intended to apply to them only within the UK, or also beyond those
territorial limits.
The presumption against extraterritoriality was to be seen against the
background of international law; sometimes Parliament had a legitimate
interest in regulating the conduct of its citizens and so did intend its
legislation to affect their position in other states.
If the statutory words were open to more than one interpretation, whether or
not it bound its subjects abroad depended on the nature of the statute. It
was therefore necessary to consider the overall nature and purpose of the
1998 Act.
The burden of the legislation fell on public authorities rather than private
individuals; most functions of UK public authorities related to the UK and
would be carried out there.
But where a public authority had power to operate outside the UK and did so
legitimately, in the absence of any contrary indication, it would only be
sensible to treat it so far as possible in the same way as when it operated
at home.
The purpose of the 1998 Act was to provide remedies in domestic law to those
whose human rights were violated by a UK public authority. Making such
remedies available for acts of that authority on the territory of another
state would not be offensive to its sovereignty.
There was nothing in the wider context of international law which pointed to
the need to confine sections 6 and 7 to UK territory. A possible reason for
doing so would be if their scope would otherwise be unlimited, potentially
conferring rights on people world-wide with no real connection with the UK.
There was no such danger since the 1998 Act had the built-in limitation that
by section 7 only those who would be victims for purposes of article 34 of
the Convention in proceedings in the European Court of Human Rights in
Strasbourg could take proceedings under the Act. Before they could sue they
had to be within the jurisdiction of the UK in terms of article 1 of the
Convention.
While states’ jurisdiction for article 1 purposes was essentially territorial,
in exceptional circumstances, acts of contracting states, performed and
producing effects outside their territories, could constitute an exercise of
jurisdiction within the meaning of article 1: see Bankovic v Belgium
(Application No 52207/99) ((2001) 11 BHRC 435).
His Lordship rejected the Defence Secretary’s submission that sections 6 and 7
were to be interpreted so that, in those exceptional cases, a victim was
left remediless in the British courts and had to resort to Strasbourg. That
would involve reading into sections 6 and 7 a qualification the words did
not contain and ran counter to the Act’s central purpose. It would offend
against the most elementary canons of construction that, in case of doubt,
the Act should be read so as to promote, not defeat or impair, its central
purpose.
In interpreting the rights scheduled to the Act, courts had to take account of
the territorial scope of the relevant right under the Convention.
Here, that meant having regard to those exceptional situations where article 2
would apply outside UK territory: namely, wherever the UK had jurisdiction
in terms of article 1.
Section 6 had to be interpreted as applying not only when a public authority
acted within the UK but also when it acted within the jurisdiction of the
United Kingdom for purposes of article 1, but outside its territory.
His Lordship agreed with Lord Brown's opinion on the reach of the Convention.
LORD BROWN said that the ultimate question as to the reach of the Convention
was necessarily for the Strasbourg court. The House should not construe
article 1 as reaching any further than the existing Strasbourg jurisprudence
clearly showed.
The starting point was Bankovic. Its central propositions included:
1 Article 1 reflected an essentially territorial notion of
jurisdiction, other bases being exceptional and requiring special
justification in the particular circumstances of each case; the Convention
operated, subject to article 56, in a regional context and in the legal
space of the contracting states.
2 The Strasbourg court recognised article 1 jurisdiction to avoid a
vacuum in human rights protection when the territory would normally be
covered by the Convention, namely, in a Council of Europe country, where
otherwise the inhabitants would be excluded from the benefits of the
Convention safeguards they previously enjoyed.
3 The rights and freedoms defined in the Convention could not be
divided and tailored.
4 Circumstances in which the court exceptionally recognised the
extraterritorial exercise of jurisdiction included:
(i) where the state through the effective control of the relevant territory
and its inhabitants abroad as a consequence of military occupation or the
consent of the government of that territory, exercised public powers
normally exercised by that government;
(ii) cases involving the activities of its diplomatic agents abroad and on
board craft and vessels registered in or flying the flag of that state where
customary international law and treaty provisions recognised the
extraterritorial exercise of jurisdiction;
(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 territory: see Drozd v France (Application No 25403/94) ((1992) 14
EHRR 745).
His Lordship referred to Strasbourg authority on those categories. Having
concluded that it was in not helpful to the first five appellants, he turned
to Issa v Turkey (Merits) (Application No 31821/96) ((2004) 41 EHRR 567).
If it supported the wider notions of article 1 jurisdiction they contended
for, his Lordship could not accept it. Either it would extend the effective
control principle to Iraq, an area outside the Council of Europe; or it
would stretch to breaking point the concept of jurisdiction extending
extraterritorially to those subject to a state’s authority and control.
It was one thing to recognise as exceptional the specific narrow categories he
summarised; it was quite another to accept that whenever a contracting state
acted, militarily or otherwise, through its agents abroad those affected
fell within its article 1 jurisdiction.
Such a contention would make nonsense of much said in Bankovic and would
make redundant the principle of effective control of an area: what need for
that if jurisdiction arose anyway under a general principle of authority and
control irrespective of whether the area was (a) effectively controlled or
(b) within the Council of Europe?
Issa should not be read as detracting in any way from the clear, and clearly
restrictive approach to article 1 jurisdiction adopted in Bankovic.
None of the first five appellants came within the United Kingdom's article 1
jurisdiction; in the sixth case jurisdiction was recognised only on a narrow
basis by analogy with the extraterritorial exception made for embassies.
Lady Hale and Lord Carswell delivered concurring opinions.
LORD BINGHAM delivered an opinion concluding that the 1998 Act did not confer
a right based on acts committed outside the UK and expressed no opinion
whether in the case of the claimants, a claim might lie under the
Convention. That would be for Strasbourg to decide.
Solicitors: Public Interest Lawyers, Birmingham; Bhatt Murphy;
Treasury Solicitor.
