Constitutional law - Aliens - Constitutional reform - EC law - Right to free elections - Sark

R (on the application of Barclay & Ors) v Secretary of State for Justice & Ors: CA (Civ Div) (Lords Justice Pill, Jacob, Etherton): 2 December 2008

The appellants (B) appealed against a decision ([2008] EWHC 1354 (Admin), [2008] 3 WLR 867) dismissing their challenge to the Reform (Sark) Law 2008 which provided for new constitutional arrangements in Sark.

Sark was a Crown dependency. It was part of the Bailiwick of Guernsey. It had its own unicameral legislature, called 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 had powers to legislate for the island. By convention, Parliament did not legislate for Sark without its consent in purely domestic matters. The ancient offices of Seigneur and Seneschal were preserved by the Reform Law. The Seigneur was, in effect, and subject to Her Majesty, the head of state for Sark. The Seneschal was President of Chief Pleas and Chief Judge. The Committee for the Affairs of Jersey and Guernsey had recommended that royal assent be given to the Reform Law by Her Majesty’s Privy Council on the basis that it would not violate any of the Crown’s international obligations. On that basis the respondents accepted that the question of whether it did violate those obligations, including those under the European Convention on Human Rights 1950, was justiciable in the English courts.

B submitted that (1) in providing for the Seigneur and Seneschal to remain as unelected members of Chief Pleas, albeit without the right to vote, the Reform Law breached article 3 of protocol 1 to the convention; (2) the functions and powers of the Seneschal under the Reform Law breached article 6 of the convention, in particular his dual role as President of Chief Pleas and senior judge on Sark; (3) the prohibition of ‘aliens’ standing for election to Chief Pleas under the Reform Act breached article 3 of protocol 1, read alone or in conjunction with article 14 of the convention, and the prohibition of aliens who were EU nationals from standing for election to Chief Pleas breached EC law.

Held: (Etherton LJ dissenting in respect of the position of the Seneschal in Chief Pleas) (1) The key point was that all members of Chief Pleas entitled to vote were elected and the electorate in Sark was free to choose each and every member of Chief Pleas with a right to vote. The free expression of the opinion of the people in the choice of the legislature was not impaired or deprived of effectiveness by the presence of a non-elected presiding officer and a non-elected Seigneur, Mathieu-Mohin v Belgium (A/113) [1988] 10 EHRR 1 ECHR considered. The elected members, who alone had the power to vote, could be expected to assert the democratic will as they sought fit. There was no reason to believe that they would be intimidated from doing so by the presence in Chief Pleas of Seigneur and Seneschal. The ‘free elections’ contemplated by article 3 of protocol 1 would take place and the presence of Seigneur and Seneschal did not involve a breach of article 3. The temporary power of veto of the Seigneur and the need for the Seneschal’s consent for extraordinary meetings of Chief Pleas requested by nine members did not involve a breach of article 3. Nor did the Seneschal’s other roles, including island trustee and returning officer.

(2) The combination in Sark of the judicial with the other functions of the Seneschal was inconsistent with the article 6 requirement to establish by law an independent and impartial tribunal, McGonnell v United Kingdom (28488/95) [2000] 30 EHRR 289 ECHR and Pabla Ky v Finland (47221/99) (2006) 42 EHRR 34 ECHR considered. The principal judicial officer of Sark should not be linked with the executive and legislature in the manner and to the extent that the Seneschal was. In order to comply with article 6, a judge independent of the legislature and executive was required even for the comparatively modest litigation taking place on Sark. A constitution should also make provision for the litigation capable of arising in a complex modern society. It followed from the Seneschal’s functions in his non-judicial capacity that his independence and impartiality were capable of appearing open to doubt.

(3) It was not a breach of article 3 of protocol 1 to fail to grant to aliens, as defined in the Reform Law, the right to stand for election to Chief Pleas, and article 14 did not assist B. The type of elections held in Sark did not qualify as municipal elections within the meaning of article 19 and directive 94/80 of the EC Treaty (Nice). (4) The court declined to quash the Reform Law. The majority of the court had found only one of the grounds of appeal successful, that which involved the combining of judicial with parliamentary functions in the Seneschal. In the view of the majority and subject to that, the newly elected Chief Pleas would be convention-compliant. On the court’s finding, in agreement with the judge, that the Human Rights Act 1998 did not apply, any remedy B had was at the European Court of Human Rights and in Sark. B were not being deprived of a remedy in the English jurisdiction by the failure to quash. There was obvious merit in the issue of further reform being considered by a newly elected Chief Pleas rather than by the existing Chief Pleas. B’s relief should be by way of a declaration only.

Appeal allowed in part.

D Pannick QC, J Dingemans QC, J Simor (instructed by Withers LLP; Ozannes) for the appellants; J Crow QC, B Hooper (instructed by the Treasury Solicitor) for the respondents.