R (Barclay and Others) v Lord Chancellor and Secretary of State for Justice and Others

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeTHE HONOURABLE MR JUSTICE WYN WILLIAMS
Judgment Date18 Jun 2008
Neutral Citation[2008] EWHC 1354 (Admin)
Docket NumberCase No: CO/3232/2008

[2008] EWHC 1354 (Admin)

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

QUEEN'S BENCH DIVISION

Before:

The Honourable Mr Justice Wyn Williams

Case No: CO/3232/2008

Between
The Queen on the Application of
(1) Sir David Barclay
(2) Sir Frederick Barclay
(3) Thomas Slivnik
Claimants
and
(1) Secretary of State for Justice and the Lord Chancellor
(2) The Committee for the Affairs of Jersey and Guernsey
(3) Her Majesty's Privy Council
Defendants
and
The Seigneur of Sark
The Seneschal of Sark
Interested Parties

David Pannick QC and Jessica Simor (instructed by Messrs Withers LLP Solicitors) for the Claimants

Jonathan Crow QC and Ben Hooper (instructed by The Treasury Solicitor) for the Defendants

The Interested Parties did not appear and were not represented

THE HONOURABLE MR JUSTICE WYN WILLIAMS Mr Justice Wyn Williams

Mr Justice Wyn Williams:

INTRODUCTION

1

Sark is one of the islands comprising the Crown Dependency of the Bailiwick of Guernsey. Her Majesty the Queen is the Sovereign of Guernsey, her predecessors having succeeded to the sovereignty of Guernsey from the Duke of Normandy in the 13 th century. In 1565, acting by Letters Patent, Queen Elizabeth I appointed Hellier De Carteret as the Seigneur of Sark and granted it to him as a Royal Fief.

2

Over the centuries the Fief has been inherited. It has also been sold with Royal consent. The current Seigneur of Sark is John Michael Beaumont. A member of his family purchased the Fief with Royal Assent in 1852 and he inherited it in 1974.

3

The Letters Patent granted in 1565 required the Seigneur to keep the island continually inhabited or occupied by 40 men (“the quarantine”) who had to be English subjects or swear allegiance to the Crown. To achieve and to maintain the island's defences, Hellier De Carteret leased 40 parcels of land (known as “Tenements”) at a low rent on condition that a house was built and maintained on each parcel and that “the Tenant” provided one man, armed with a musket, for the defence of the island. The 40 tenements survive to this day, albeit, with minor boundary changes. The current population of Sark is approximately 600.

4

Sark has a legislature which is called Chief Pleas. This body is also the executive and in that capacity it usually acts through committees. Chief Pleas currently consists of the following persons: —

i) the Seigneur by virtue of his office and also by virtue of ownership of a Tenement or Tenements;

ii) the owners of the Tenements (currently 36 in number since a few owners own more than one Tenement);

iii) 12 Deputies who are persons elected by the electorate of Sark and

iv) a person called the Seneschal who is unelected but appointed from time to time by the Seigneur; under current arrangements the Seneschal acts as the President of Chief Pleas.

5

The Seneschal is also the island's Judge. He is not a qualified lawyer but, nonetheless, he administers justice on the island.

6

For some years there has been a significant debate within Sark about such matters as the composition of Chief Pleas and whether the offices of the Seigneur and Seneschal should survive and, if so, in what form. The details and history of the debate need not be set out but I was provided with substantial evidence about how this debate has evolved over the last few years. The debate has come to fruition in this sense. On 9 April 2008 Her Majesty in Council gave Royal Assent to two Laws promoted by Chief Pleas: they are the Reform (Sark) Law, 2008 and the Real Property (Transfer Tax, Charging and Related Provisions) (Sark) Law, 2007. In the remainder of this judgment these Laws will be referred to respectively as the “Reform Law” and the “Real Property Law”.

7

The Reform Law provides for a composition of Chief Pleas which is very different from the current position. Under the Reform Law Chief Pleas will be composed of 28 elected Conseillers, the Seigneur and the Seneschal. Essentially, the Conseillers will be elected by the persons who are ordinarily resident in Sark and 18 years of age or over. It is anticipated that elections to Chief Pleas for the 28 Conseillers will take place in December 2008.

8

The Claimants object to the retention of the Seigneur and the Seneschal as members of Chief Pleas. They assert that their membership of Chief Pleas is inconsistent with Article 3 of the First Protocol of the European Convention on Human Rights.

9

The Claimants also object to the dual role of the Seneschal. By that I mean that they object to him being the Senior Judge for the Island and also a member of Chief Pleas. They assert that this arrangement is inconsistent with Article 6 of the Convention.

10

The Claimants further take issue with the fact that whereas an “alien” (as defined in the Reform Law) may vote in an election for Conseillers he or she cannot stand for election as a Conseiller. This state of affairs, submit the Claimants, is incompatible with Article 3 of the First Protocol of the Convention, Article 14 of the Convention and also European Community Law, in particular, Article 19 (1) of the EC Treaty.

11

The Claimants' complaint about the Real Property Law is that it makes provision for payment to the Seigneur for his services. As I understand it the Claimants submit that if the position of the Seigneur as a member of the Chief Pleas is incompatible with the European Convention it is unlawful for him to be paid from the public purse for providing his services.

12

During the course of the hearing there was considerable debate between leading Counsel as to the basis upon which the Claimants might be entitled to relief (assuming their complaints to be well-founded) and, to a lesser extent, the appropriate form of such relief. The issue of the Claimants' entitlement to some form of relief relating to the alleged breaches of the Convention raises difficult and to some extent unresolved questions. I will deal with these matters later in this judgment. At this stage it suffices that I record that the Claimants have a sufficient interest in the subject matter of these proceedings. I say that since the first two Claimants own one or more Tenements on the island of Sark and also an island off Sark called Brecqhou over which Chief Pleas claims authority to legislate. The Third Claimant is ordinarily resident in Sark and over the age of 18. He wishes to stand for election to Chief Pleas but is prevented from so doing by the Reform Law because he is a citizen of Slovenia and an “alien” within the definition given to that word in the Reform Law.

13

The greater part of this judgment will consider the substantive complaints of the Claimants. I should say that in the written material the Claimants formulated 4 specific grounds of challenge. By the end of the hearing, however, it was accepted that if the challenges based upon the European Convention and the Treaty failed the other formulations contained in the grounds would also fail.

14

Before dealing with the substantive issues, however, I should describe shortly how legislation is enacted in and for Sark.

15

Chief Pleas legislates for Sark through a combination of Laws and Ordinances. Ordinances have the force of law when Chief Pleas so determine. Laws, however, acquire the force of law only once they are approved by Her Majesty by Order in Council.

16

The legislature of Guernsey may legislate for Sark in criminal matters without the consent of Chief Pleas. It may legislate in any other matter with the consent of Chief Pleas. In the past, Chief Pleas has exercised its power to reject draft Bailiwick-wide legislation.

17

The process for obtaining the grant of Royal Assent for a Law is usually as follows. After Chief Pleas passes a proposed law it is remitted (as a Projet de Loi) through the Lieutenant Governor and the Law Officers of Guernsey to departmental officials at the Ministry of Justice. In turn, the officials pass the Projet de Loi to the First Defendant and another Departmental Minister of the Ministry of Justice. I should say at this stage that the Second Defendant to this claim is constituted by the First Defendant, the Departmental Minister and the Lord President of the Council. Each of those persons is a Privy Counsellor. The First Defendant and his Departmental Minister make a decision about whether to recommend Royal Assent and then transmit their view to the Lord President who makes his/her contribution to the decision. Each Projet de Loi is considered with the assistance of officials.

18

At a stage in this procedure consideration will also be given to any petitions that have been submitted in support of or in opposition to the Project de Loi in question.

19

The Second Defendant, as a Committee of the Third Defendant, reaches a decision once the Lord President has seen and agreed the recommendations made by the First Defendant and his departmental colleague. If the Second Defendant recommends that Royal Assent be granted, the Project de Loi will be presented to the next available meeting of the Third Defendant with a report on any petition that has been received. The Projet de Loi does not go to the Third Defendant if the Second Defendant decides not to approve it. Her Majesty in Council then gives her assent on the recommendation of her Ministers; Royal Assent is granted by way of an Order in Council.

20

The evidence put before me demonstrates that in considering whether or not to recommend approval to Her Majesty, the Second Defendant will in general respect the decision of Chief Pleas. In other words, there will tend to be a presumption in favour of recommending Royal Assent. However, proper...

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