[2025] UKUT 319 (AAC)

Ms Proops drew the panel’s attention to several domestic authorities that concerned the proper approach to considering whether, and if so to what extent, domestic statutory provisions are to be construed as having extra-territorial effect.

R (Al-Skeini and others) v Secretary of State for Defence[2007] UKHL 26, [2008] 1 AC 153 (“Al-Skeini”) was a House of Lords decision that concerned the territorial application of the Human Rights Act 1998 (“HRA”). The claimants were relatives of Iraqi civilians who had been killed by British soldiers in Iraq. Relying on Articles 2 and 3 of the European Convention on Human Rights (“ECHR”) in conjunction with the HRA, they sought judicial review of the Secretary of State’s failure to conduct inquiries into, or to accept liability for, the deaths. Their Lordships held that the HRA did not apply extra-territorially to the circumstances of the deaths in Iraq except in respect of the deaths at UK military bases. This was because, except in relation to its military bases, the UK exercised insufficient control over the relevant territory in Iraq. Lord Bingham (at [11] of his speech) referred to a long line of authority for the principle 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” (citing Bennion, Statutory Interpretation, 4^th ed (2002) at p. 282), and “an enactment applies to all persons and matters within the territory to which it extends, but not to any other persons and matters” (quoting Bennion again, at p.306). Lord Bingham said the existence of such a presumption was not in doubt, and he commented that it appeared to have become stronger over the years.

Ms Proops suggested the reason for the presumption becoming stronger over time was that the more interconnected the world becomes, the more we look to involve ourselves in the territories and affairs of foreign states, and the more we involve ourselves in the territories and affairs of foreign states, the more important it becomes to ensure robust protection for comity principles.

Ms Proops derived two important policy principles from Lord Rodger’s speech in Al-Skeini (at [44] to [45]):

Ms Proops also relied on the Supreme Court’s decision in R (KBR Inc) v Director of the Serious Fraud Office [2021] UKSC 2, [2022] AC 519 (“KBR”), a judicial review brought by KBR, which was the US parent company of UK subsidiaries. The Serious Fraud Office issued a notice to KBR, which had no corporate presence in the UK, under section 2(3) of the Criminal Justice Act 1987 (“CJA”) requiring it to produce documents held outside the UK to assist its conduct of a major fraud investigation. KBR maintained that section 2(3) of the CJA did not apply to foreign companies with no presence in the jurisdiction. The Supreme Court agreed on the grounds that section 2(3) contained no express wording to rebut the presumption against extra-territorial effect, and neither was there any clear indication either for or against extra-territorial effect in any other provisions of the CJA. In his judgment (at [28]) Lord Lloyd-Jones discussed the presumption against extra-territorial effect, and arrived at the following formulation:

“The more exorbitant the jurisdiction, the more is likely to be required of the statutory provisions in order to rebut the presumption against extra-territorial effect.”

Ms Proops argued that, because Lord Lloyd-Jones’s statement quoted above followed immediately after his reference to the Bribery Act 2010 (“Bribery Act”), which provides for extra-territorial effect, it followed that his formulation applied not only to the issue whether there was any extra-territorial effect, but also to the extent of the territorial effect of statutory provisions that do provide for extra-territorial effect.

We do not agree with Ms Proops’ reading of what Lord Lloyd-Jones said. On our reading, section 12 of the Bribery Act was cited as an example of a statute that involved considerable “exorbitance” (the criminalisation of acts done outside the jurisdiction, provided that those acts would be criminal if done in the UK and provided that the actor satisfied one of the criteria for close connection with the UK). Lord Lloyd-Jones was saying nothing more than that where there was exorbitance of the degree provided for in section 12 of the Bribery Act, express words were required to rebut the presumption against extra-territorial effect.

Ms Proops submitted that what emerges from these authorities is the critical importance, when construing a particular provision of legislation, of identifying very precisely what the purpose of that provision is: what particular objective it was intended to further, and what particular “mischief” it was intended to address.

With the exception of our disagreement about what can be taken from Lord Lloyd-Jones’s judgment, we do not take issue with any of the general principles outlined above. However, we do not find these domestic authorities to be particularly helpful to Clearview’s case on the construction of the GDPR for two reasons: