R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs (No 1)

JurisdictionEngland & Wales
JudgeLord Justice Laws,Lord Justice Jonathan Parker,Lord Justice Aldous
Judgment Date30 October 2002
Neutral Citation[2002] EWCA Civ 1409
Docket NumberCase No: C/2001/2831/A
CourtCourt of Appeal (Civil Division)
Date30 October 2002
Between
The Secretary of State for Foreign and Commonwealth Affairs
Appellant
and
Quark Fishing Limited
Respondent

[2002] EWCA Civ 1409

Before

Lord Justice Aldous

Lord Justice Laws and

Lord Justice Jonathan Parker

Case No: C/2001/2831/A

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

(The Hon Mr Justice Scott Baker)

Royal Courts of Justice

Strand,

London, WC2A 2LL

Kenneth Parker QC and Daniel Beard (instructed by Treasury Solicitors) for the Appellant

David Vaughan CBE QC and Fergus Randolph (instructed by Thomas Cooper Stibbard) for the Respondent

Lord Justice Laws

INTRODUCTORY

1

The Patagonian Toothfish (Dissostichus Eleginoides) swims the deep waters of the southern seas. It is a very valuable catch, sometimes described as "white gold". In 2001 it sold on the quayside for about US$9,000 per tonne, or about £2.5m for 400 tonnes. The principal means of fishing for it is by what is called "longlining", which involves the use of a long baited line. There is also some "pot fishing", in which baited pots are weighted and sunk. Quark (the respondents to this appeal) hoped and expected to be granted a licence for the MV Jacqueline to fish by longline for up to 400 tonnes of toothfish in the territorial waters of South Georgia and the South Sandwich Islands in the 2001 season. But by force of a direction given on 7 June 2001 by the Secretary of State, the Jacqueline was refused such a licence.

2

This is the Secretary of State's appeal against the decision of Scott Baker J, as he then was, given in judicial review proceedings in the Administrative Court on 5 December 2001 when he quashed the Secretary of State's direction. The appeal is brought with permission granted by the judge below. I should say at this stage that Quark's claim is historic only, since (and in the sense that) a licence was granted for the Jacqueline to ply for toothfish in the 2002 season.

THE LEGAL FRAMEWORK

3

It is convenient first to establish the nature and source of the Secretary of State's power to give such a direction, and other characteristics of the relevant legal regime. The statutory trail starts with the South Georgia and South Sandwich Islands Order 1985 ("the Order"), made pursuant to powers contained in the British Settlements Acts 1887 and 1945. Before it took effect in October 1985 the territories of South Georgia and the South Sandwich Islands ("SGSSI") had for eighty years been a dependency of the Falkland Islands. By s.3 of the Order they became a separate and distinct Overseas Territory; and the Order, in effect, is the constitution of SGSSI. A number of its provisions are in a common or standard form which has over time come to be generally used in the drafting of constitutions for such territories. S.4(1) establishes the office of Commissioner of SGSSI, to be appointed by Her Majesty. S.4(2) allows for an Acting Commissioner to be designated by the Secretary of State during any period when the office is vacant or its holder unable to perform his functions. S.5(1) provides:

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

It is under this section that the Secretary of State acted in giving the impugned direction of 7 June 2001. S.7 empowers the Commissioner to "constitute such offices for the Territories as may lawfully be constituted by Her Majesty and,… subject to such instructions as may from time to time be given to him by Her Majesty through a Secretary of State, the Commissioner may likewise —

(a) make appointments, to be held during Her Majesty's pleasure, to any office so constituted…"

S.9 empowers the Commissioner to "make laws for the peace, order and good government of the Territories". By s.13(1) he may deploy the power given by s.9 to "establish a Supreme Court and such other courts of justice (including a Court of Appeal) for the Territories as he may think fit…"

4

In 2000 the then Acting Commissioner, in exercise of his power under s.9 of the Order, made the Fisheries (Conservation and Management) Ordinance 2000 ("the Ordinance"). By it the Fishing (Conservation and Management) Ordinance 1993 ("the 1993 Ordinance") was repealed and re-enacted with amendments. The Ordinance, which came into force on 1 January 2001, makes provision for the regime of fishing licences which is at the centre of this appeal. S.2 contains definitions. I must refer to two of these. "Convention" is defined as "the Convention on the Conservation of Antarctic Marine Living Resources made in Canberra on 20 th May 1980, as amended from time to time, and includes any Protocol to that Convention and any decision or measure which is for the time being in force adopted pursuant to that Convention by the Commission to that Convention". I shall refer to this Convention by the acronym "CCAMLR". "Maritime Zone" is defined as "the zone of that name established by and defined in a Proclamation of the Commissioner dated 7 th May 1993 (Proclamation No 1 of 1993)". So defined the Maritime Zone extends 200 miles from the shores of SGSSI.

5

S.4 of the Ordinance requires the Commissioner to appoint a Director of Fisheries who amongst other things shall by s.4(1)(f) be responsible for "the issue, variation, suspension and revocation of licences for fishing and fishing-related operations". S.4(2) provides:

"In the performance of his duties under this Ordinance the Director of Fisheries shall be subject to the direction of the Commissioner…"

S.4(5):

In the performance of their duties under this Ordinance the Director of Fisheries and every Fishery Protection Officer shall have regard to the provisions of the Convention but the question as to whether the Director of Fisheries or any Fishery Protection Officer has done so in any particular instance shall not be inquired into in any court."

6

S.5 of the Ordinance is cross-headed "Licensing of Fishing Boats". Its material provisions are as follows:

"(1) The Commissioner may by Order provide that in any of the fishing waters lying to the north of sixty degrees south of latitude specified in the Order (a 'specified area') fishing is prohibited unless it is authorised by a licence granted by the Director of Fisheries…

(2) Such an Order may apply to fishing boats generally in the specified area or to fishing –

(a) for a specified description of fish;

(b) by a specified method; or

(c) during a specified season of the year or other period.

(7) A licence under this section may authorise fishing either unconditionally or subject to such conditions –

(a) as the Director of Fisheries may have been directed by the Commissioner to impose;

(b) as in the opinion of the Director of Fisheries may be necessary or expedient to regulate the conduct of fishing and fishing-related operations by the licensee under authority of the licence;

(c) as to the use to which the fish may be put;

(d) prohibiting or restricting the use of any equipment which might kill or harm any aquatic bird or marine mammal to be found or likely to be found in the area to which the licence relates;

(e) as to the disposal of waste, effluvia or deleterious matter by the fishing boat to which the licence relates;

(f) otherwise as in the opinion of the Director of Fisheries may be necessary or expedient to secure the fulfilment of any obligation under or objective of the Convention,

as are contained in or specified in the licence…

(9) The licensing powers conferred by this section may be exercised so as to limit the number of fishing boats, or any class of fishing boats, engaged in fishing in any area, or fishing in any area for any description of fish in any manner which appears to the Director of Fisheries to be expedient or necessary for the regulation of fishing.

(10) The Director of Fisheries –

(a) may from time to time vary a licence granted under this section;

(b) may revoke or suspend such a licence if he considers it to be necessary for the regulation of fishing or to be appropriate having regard to the conduct of the licensee, and whether that conduct was within a specified area or elsewhere.

(11) Where the Director of Fisheries varies, revokes or suspends a licence he may, if he considers it appropriate in all the circumstances of the case, refund the whole or part of the fee paid in respect of that licence.

…"

Other subsections, which I need not set out, impose criminal sanctions for fishing without a licence or in breach of condition (subss.(3) and (12)), and authorise the charging of a fee for licences (subs.(4)).

7

S.5 of the Ordinance effectively replicated s.5 of the 1993 Ordinance, and it is unnecessary to identify such differences as exist between the two provisions. On 26 July 1993 the then Acting Commissioner made the Fishing (Maritime Zone) Order 1993, which came into force on 2 August 1993. Its effect was to impose a licensing regime for fishing in the Maritime Zone. It was continued in force by s.26(2)(a) of the Ordinance ("any… order… made… under the 1993 Ordinance shall continue in force as if it had been… made… under this Ordinance…"). In the result, at all times material to these proceedings, the licensing regime envisaged by s.5 of the Ordinance was operative and effective.

CCAMLR

8

It is convenient next to describe the nature and functions of CCAMLR....

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