R Sir David Barclay and Another v Secretary of State for Justice and Lord Chancellor and Others
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division |
| Judgment Date | 09 May 2013 |
| Neutral Citation | [2013] EWHC 1183 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/317/2012 |
| Date | 09 May 2013 |
[2013] EWHC 1183 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
President of the Queen's Bench Division
And
Mr Justice Burnett
Case No: CO/317/2012
Ms Jessica Simor QC (instructed by Gordon Dawes Mourant Ozannes and Quinn Emanuel) for the Claimants
Mr James Eadie QC and Ben Hooper (instructed by Treasury Solicitor) for the Defendants
Hearing dates: 6 and 7 February 2013
Approved Judgment
This is the judgment of the court.
Introduction
In 2008 the claimants brought proceedings against the first defendant (the Secretary of State), the second defendant (the Committee) and the third defendant (the Privy Council) in relation to the Reform (Sark) Law 2008 (the 2008 law). They contended that the advice of the Secretary of State in relation to the approval of the 2008 law by Her Majesty in Council was wrong as the 2008 law was not compatible with the European Convention on Human Rights (the Convention) which had been extended to Sark as part of the Bailiwick of Guernsey. The claimants succeeded in the Court of Appeal in establishing that the dual role of the Seneschal as the Chief Judge on the island and the President of the Legislature, the Chief Pleas, was incompatible with Article 6(1). No appeal was brought against that part of the decision of the Court of Appeal. They failed both in the Court of Appeal and in the Supreme Court in relation to their contention that the manner in which elections were held was incompatible with Article 3 of the First Protocol to the Convention. The judgments are reported at [2010] AC 464. We shall refer to this litigation as Barclay No1.
As a result of the claimants' success in relation to the dual role of the Seneschal, the Chief Pleas enacted the Reform (Sark) (Amendment) (No.2) Law, 2010 (the 2010 law) making new provisions in respect of the appointment, removal from office, re-appointment and remuneration of the Seneschal. Advice was given by the Secretary of State to the Committee in relation to the compatibility of those amending provisions with the Convention.
In these proceedings the claimants contend that advice given by the Secretary of State to the Committee was wrong, as the 2010 law did not meet the requirements of Article 6. The decisions of the Committee and of the Privy Council to advise Her Majesty to approve the 2010 law were, they contend, therefore unlawful. They also contend that the additional powers granted to the Seigneur of Sark under the 2010 law were incompatible with Article 3 of Protocol 1 to the Convention and the advice in relation to that was wrong and the decisions unlawful. Each of the defendants contends that the courts of England and Wales have no jurisdiction over the claim and, if the courts do, the claim is not justiciable in those courts; if, contrary to their submission, it is then there was no breach of the Convention.
It was accepted that there were insuperable difficulties in pursuing the contention in relation to Article 3 of Protocol 1 before us in the light of the judgment of the Supreme Court given by Lord Collins of Mapesbury in Barclay No 1. We therefore will not address this issue, as it is an issue that can only be addressed in the Supreme Court.
It is necessary first to summarise the factual background.
I The factual Background
(a) The constitutional relationship of Sark to the United Kingdom and to the Crown
The constitutional position of Sark is set out in paragraphs 8–43 of the judgment of Lord Collins in Barclay No 1 as supplemented by further evidence before us. That evidence included the UK Government's response dated November 2010 to the report on Crown Dependencies made in March 2010 by the Justice Select Committee of the UK Parliament. For the purposes of the proceedings before us it is necessary only to highlight certain features:
i) Sark is an island of about 600 people. It includes the island of Brecqhou which the claimants purchased in 1993. It is part of the Crown Dependency of the Bailiwick of Guernsey. Her Majesty is sovereign of the Bailiwick of Guernsey and the Bailiwick of Jersey (which comprise the whole of the Channel Islands), her predecessors having succeeded to the sovereignty of the islands from the Dukes of Normandy.
ii) The two Bailiwicks have a unique constitutional position. Neither is part of the United Kingdom nor a colony nor an overseas territory nor a state. Nor are the inhabitants represented in the UK Parliament. They have a right by royal grant to autonomous government which is respected by the UK Parliament. Laws enacted by the UK Parliament do not extend to them automatically, though the UK Parliament's right to legislate is paramount. By convention the UK Parliament does not legislate in purely domestic matters or tax.
iii) The UK Government is responsible for their international relations and for their defence; they cannot enter into international treaties.
iv) The Crown has ultimate responsibility for the good governance of the island, with the Secretary of State carrying within the UK Government that Departmental responsibility.
v) The Seigneur of Sark is the hereditary Lord of Sark, holding the island as a royal fief in succession to the first Seigneur who received the island in 1565. His family acquired the fief in 1852. He acts in a number of capacities to which it will be necessary to refer. He is a member of the Chief Pleas.
vi) The Seneschal has for many centuries been the judge of the court in Sark. Additional judges are appointed as Deputy Seneschals. The jurisdiction of the court is determined by Order in Council. Its procedure is Norman Customary law. The civil jurisdiction is unlimited. The criminal jurisdiction is limited to one month's imprisonment and a fine not exceeding level 4. An appeal from the Court of the Seneschal lies to the Royal Court of Guernsey with an appeal ultimately to the Privy Council. The workload of the court was described by the former Seneschal, Lt. Col. Guille, as being quite light. All the cases are comparatively simple.
vii) The Chief Pleas is not only the legislature of Sark, but also exercises powers of the Executive through its committees. The legislature of Guernsey requires the consent of the Chief Pleas to legislate for Sark, save in criminal matters where it can legislate without that consent.
viii) The Chief Pleas can pass two types of legislative measure — an Ordinance and a Law. The legislative competence of the legislature of Guernsey to make Ordinances without reference to Her Majesty was considered in the judgment of Lord Mance in Jersey Fishermen's Association v States of Guernsey [2007] UKPC 30.
ix) A Law, however, requires the approval of Her Majesty in Council. After the Chief Pleas has passed a Law, that Law is sent as a projet de loi through the Lieutenant Governor of Guernsey to the Ministry of Justice. Petitions in support of or against the Law can be lodged.
x) The Justice Committee of the House of Commons reported in March 2010 that the Secretary of State, as a member of the Committee and the Departmental Minister in the United Kingdom Government responsible for the affairs of the Channel Islands, can legitimately recommend that Royal Assent of legislative measures from the legislative bodies of the Channel Islands be withheld, if the legislation would put the Island in breach of an obligation which applies to the Island and for which the UK is responsible. The legislation of the Islands had to comply with international human rights obligations.
xi) Prior to the Privy Council making a decision to approve a Law, the Committee, comprising the Secretary of State, a Minister of State in the Ministry of Justice and the Lord President of the Council makes a recommendation to the Privy Council. The Committee was constituted by an Order in Council dated 22 February 1952 to receive all Laws passed by the Channel Island and petitions in respect of them. Where appropriate that Committee is advised by the Secretary of State. If approval is given, that is given by Her Majesty in Council by Order in Council.
xii) The evidence in Barclay No 1 and before us was that the Committee will in general respect the decision of Chief Pleas. If a Law would violate the Crown's international obligations or any fundamental constitutional principle or would clearly violate the public interest, then the Committee might recommend withholding approval.
xiii) The Privy Council acts on the recommendation of the Committee; there is no substantive debate.
(b) The application of the Convention
In 1953, the Convention was extended by the United Kingdom to the Bailiwick of Guernsey; the First Protocol was extended in 1988.
The Human Rights Act 1998 enacted by the UK Parliament was not extended to the Channel Islands or the Isle of Man. However, in Barclay No 1, the question whether a claim could be brought by the claimants in respect of Sark under the UK Human Rights Act was considered. In the Court of Appeal, it was held that the UK Human Rights Act did not apply, because it was not intended to apply to the obligations of the UK assumed under article 56 of the Convention in respect of compliance with the Convention in territories for the international relations of which the UK was responsible. The Supreme Court held that it was not necessary to determine the issue under the UK Human Rights Act, as it had been conceded that there was jurisdiction to determine the lawfulness of the decisions of the Committee and the Privy Council, as we explain at...
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R (on the application of Barclay) v Secretary of State for Justice (Attorney General of Jersey and the States of Guernsey intervening)
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