R (Barclay and Others) v Lord Chancellor and Secretary of State for Justice and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Jacob,Lord Justice Etherton |
| Judgment Date | 02 December 2008 |
| Neutral Citation | [2008] EWCA Civ 1319 |
| Date | 02 December 2008 |
| Docket Number | Case No: C1/2008/1590 |
| Court | Court of Appeal (Civil Division) |
[2008] EWCA Civ 1319
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
The Honourable Mr Justice Wyn Williams
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Pill
Lord Justice Jacob and
Lord Justice Etherton
Case No: C1/2008/1590
Mr D Pannick QC, Mr J Dingemans QC and Miss J Simor (instructed by Withers LLP and Ozannes) for the Appellants
Mr J Crow QC and Mr B Hooper (instructed by Treasury Solicitor) for the Respondents
Hearing date : 24 October 2008
This is an appeal against the judgment of Wyn Williams J ( [2008] 3 WLR 867) delivered on 18 June 2008. Sir David Barclay and others had sought relief in relation to the Reform (Sark) Law 2008, in Sark a Project de Loi (“the Reform Law”), which provides for new constitutional arrangements in Sark. The Reform Law was given Royal Assent by Her Majesty in Council on 9 April 2008. The appellants seek to quash the decisions of the Secretary of State for Justice and the Lord Chancellor (“the first respondent”) on 27 February and 5 March 2008 to approve and refer the Reform Law to the Privy Council and the decision of the Committee for the Affairs of Jersey and Guernsey (“the second respondent”) on 19 March 2008 to recommend that Royal Assent be given to the Reform Law by Her Majesty's Privy Council (“the third respondent”).
The second respondent was established, by Order in Council dated 22 February 1952, to consider laws to be passed by the States of the Islands of Jersey, and Guernsey and its Dependencies, for submission to Her Majesty. The second respondent is constituted by the first respondent, the Departmental Minister and the Lord President of the Council.
The appellants also seek to quash the Order in Council made by the third respondent on 9 April 2008. Petitions of Sir David and Sir Frederick Barclay and another were also dismissed on that date. The reason given for the second respondent's decision is:
“The Reform Law would not violate any of the Crown's international obligations, and that therefore those international obligations provided no basis for refusing Royal Assent.”
The appellants also seek declarations that the decisions which led to the Order in Council were unlawful, and a declaration of incompatibility, under section 4(2) of Human Rights Act 1998 (“the 1998 Act”), in respect of the Order in Council. It is claimed by the appellants that the decisions challenged are to be assessed by reference to the 1998 Act.
Sark
The Island of Sark is a Crown Dependency. The United Kingdom government is responsible for Sark's international relations but Sark is not a part of the United Kingdom. Following Anglo-French conflict, the King of England became the overlord of the Channel Islands, including Sark, in that capacity and not as Duke of Normandy. The present form of government arises from Letters Patent issued by Queen Elizabeth I in 1565 making the grant of the island to the first Seigneur as a royal fief (Lé Rouai, Nouot' Duc; Professor Paul Matthews (1999) 3 Jersey Law Review). The respondents do not, having considered that treatise, pursue their written submission, and submission before the judge, that Orders in Council to approve a Sark Projet de Loi are made by Her Majesty in right of the Duchy of Normandy as distinct from Her Majesty's position as sovereign of Sark.
As the judge put it:
“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.”
His predecessor was his grandmother Dame Sibyl Hathaway. The Seigneur has appointed a Seneschal to be President of the Island's legislature, called Chief Pleas, and also the Island's judge.
Until the Reform Law was adopted, Sark was governed in accordance with the Reform (Sark) Law 1951 (“the 1951 Law”). That Law was approved and ratified by His Majesty King George VI, by and with the advice of his Privy Council, on 1 November 1951, stating that it should have “the force of law within the Island of Sark”.
Sark is part of the Bailiwick of Guernsey. Both under the 1951 Law and the Reform Law, it has its own unicameral legislature (Chief Pleas) and its own court (the court of the Seneschal), as well as a Seigneur. Subject to the powers of the Privy Council, Chief Pleas has powers to legislate for the island. The two territories, Guernsey and Sark, share a Lieutenant Governor and the Reform Law makes provision for dealings with Guernsey.
The Royal Commission on the Constitution (the Kilbrandon Report (1973)) (“Kilbrandon”) reported (paragraph 1448) that the Chief Pleas of Sark and the States of Guernsey both argued that the constitutional arrangements between Sark and the United Kingdom were, broadly speaking, the same as between Guernsey and the United Kingdom. Sark has an “independent relationship with the United Kingdom” (paragraph 1355). The parties agree that the current position is that accepted in Kilbrandon, which also states, at paragraph 1362, that “by convention Parliament does not legislate for the Islands [including Sark] without their consent in matters of taxation or other matters of purely domestic concern.”
I note that it was the legislature in Guernsey (the States) which exercised powers to pass the Human Rights (Bailiwick of Guernsey) Law, 2000 (Commencement) Ordinance, 2006. The Ordinance provided that it “has effect throughout the Bailiwick of Guernsey”. It came into force on 1 September 2006 and closely resembles the 1998 Act. It has not been suggested, however, that, constitutionally, Sark is in any way subject to the other Island or that its relationship with Guernsey affects the outcome of the issues in this appeal. The appeal has been argued on the basis that, subject to the Privy Council, Sark has an autonomous legislature.
Article 56 of the European Convention on Human Rights (“the Convention”) empowers a State party to declare that the Convention shall “extend to all or any of the territories for whose international relations it is responsible”. The United Kingdom Government extended the Convention to the Bailiwick of Guernsey in 1953 and, by virtue of similar powers in article 4 of the First Protocol to the Convention, extended that Protocol to the Bailiwick of Guernsey in 2004.
The population of Sark is about 600. The island is divided into 40 parcels of land, known as tenements. Under the 1951 Law, anyone who owned one of the tenements was thereby entitled to be a member of Chief Pleas (Conseiller), unless he was an alien. There was also provision for 12 democratically elected Deputies of the People. Aliens were not entitled to vote. Chief Pleas is now to be composed of the Seigneur, the Seneschal and 28 Conseillers, elected in accordance with the Reform Law. There is no doubt that the provisions of the Reform Law are more acceptable, in Convention terms, than those of the 1951 Law.
The Reform Law
Subject to taking account of that general point, it is not necessary to elaborate this judgment further by providing a comprehensive comparison of the old with the new. Chief Pleas may, with certain reservations, make Ordinances “for the maintenance of public order in, and for the regulation of the local affairs of, Sark and the territorial waters adjacent thereto” (section 37). Sark means the Island of Sark and includes its dependencies (section 35, the interpretation section). Section 1 of the Reform Law provides that “all legislative and executive functions which may be exercised within Sark are exercised by the Chief Pleas … or … by the Committee of the Chief Pleas …”.). Thus Chief Pleas has power to make laws including, subject to Privy Council consent, power to amend the Reform Law itself.
Sir David Barclay (“the first appellant”) and Sir Frederick Barclay (“the second appellant”) own property on Sark. They also own the nearby Island of Brecqhou over which Chief Pleas claims authority to legislate. Mr Tomaz Slivnik (“the third appellant”) lives on Sark and wishes to stand for election to Chief Pleas. He is a citizen of Slovenia and the Reform Law does not permit him to stand.
Exercising power conferred by the Reform Law, the Chief Pleas, as at present constituted, has fixed the date for the first general election for the reconstituted Chief Pleas for 10 December 2008 (The Reform (Election of Conseillers) (Dates) (Sark) Ordinance, 2008). The ancient offices of Seigneur and Seneschal are preserved by the Reform Law. The Seigneur is, in effect, and subject to Her Majesty, the head of state for Sark. The Seneschal is President of Chief Pleas and Chief Judge. The present incumbent, Lt Col Reginald John Guille, MBE, was first appointed by the Seigneur, in 2000.
The Reform Law makes substantial changes to the law approved in 1951. There has been discussion about reform for many years and in recent years it has been intense. The first and second appellants have taken an active part in the discussions, including petitioning the Privy Council, as already mentioned. Reference has been made by Mr Pannick QC, on their behalf, to concerns expressed by the first respondent about the legitimacy of proposals emanating from Sark. The first respondent has stated:
“Any option which falls short of a wholly democratic process would cause me serious difficulties…. I am concerned that Sark should give itself, and the UK, the...
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