From
Sark to the Supreme Court
Megan Pullum and Robert Titterington
This
article was prepared following the judgment of R (Barclay) v Secy of State for Justice and Lord Chancellor and seeks to
highlight some of the important constitutional findings made in the context of
the Island of Sark.
1.
Introduction
1 On 30
June 2014, an important constitutional case, R (Barclay) v Secy of State for Justice and
Lord Chancellor,
was heard in the Supreme Court of the United Kingdom. The appellants were the
Secretary of State for Justice and the Lord Chancellor, the Committee for the
Affairs of Jersey and Guernsey and Her Majesty’s Privy Council. The respondents
(Sir David and Sir Frederick Barclay) had withdrawn from the proceedings and
did not appear, but an advocate to the court was appointed given the
significant constitutional issues raised by the appeal. Interveners were the
Attorney General of Jersey and States of Guernsey.
2 The
central issue concerned an appeal from a decision of the Administrative Court
to grant a declaration that the decision of the Committee for the Affairs of
Jersey and Guernsey, recommending approval of the Reform (Sark) (Amendment) (No
2) Law 2010 (“the 2010 Law”) was unlawful. A provision of the Law,
according to the Administrative Court, was incompatible with art 6 of the
European Convention on Human Rights (“ECHR”). At the heart of the
case was an issue of jurisdiction—whether the English courts have
jurisdiction to rule on the compatibility with the ECHR of a law enacted by the
legislature of Sark. Two additional issues namely, justiciability (i.e. whether the lawfulness of the legal
advice was justiciable in the High Court) and the compatibility of the 2010 Law
with art 6 of the ECHR were also considered by the court.
3 The Supreme
Court elected to hear arguments on the jurisdiction point only and, having done
so, unanimously allowed the appeal and set aside the declaration made by the
Administrative Court. In its judgment, handed down on 22 October 2014, it held
that the courts of the United Kingdom do have jurisdiction to judicially review
an Order in Council which is made on the advice of the UK Government acting in
whole or in part in the interests of the United Kingdom. However, whilst the
Administrative Court did therefore have jurisdiction to entertain the
respondents’ claim, it should not have exercised it in this case. Lady
Hale gave the substantive judgment, with which the other Justices (Lords
Neuberger, Mance, Clarke and Reed) agreed.
2. The Channel Islands
Brief history
4 The
Channel Islands are an archipelago situated off the coast of Normandy. They are
Dependencies of the British Crown and consist of two separate bailiwicks, the
Bailiwick of Jersey and the Bailiwick of Guernsey. Guernsey and Jersey were
part of the Duchy of Normandy when Duke William, following his conquest of
England in 1066, became King William I of England. They have since been subject
to the English Crown as successor to the Dukes of Normandy. They have never,
however, become part of England administratively or legally.
The
Crown Dependencies
5 The Crown
Dependencies are the Bailiwick of Jersey, the Bailiwick of Guernsey and the
Isle of Man. The Bailiwick of Guernsey includes the separate jurisdictions of
Alderney and Sark and the Islands of Herm, Jethou and
Lihou. Jersey, Guernsey and the Isle of Man are not
part of the UK but are self-governing dependencies of the Crown. They have
their own directly elected legislative assemblies, administrative, fiscal and
legal systems and their own courts of law. The Crown Dependencies are not
represented in the UK Parliament. Guernsey has a directly elected legislature
(known as the States of Deliberation) and operates a system of consensus
government through multi-member Departments and the Policy Council, the latter
constituted by the Minister of each Department and chaired by the Chief
Minister. Guernsey has responsibility for its own domestic policies.
Relationship between Crown Dependencies and
the UK
6 The
relationship between the UK and Guernsey (and the other Crown Dependencies) has
always been close. The unwritten constitutional relationship between the
Islands and the UK is the outcome of historical processes and accepted
practice. However, this relationship is in right of the Crown (as successor to
the Dukes of Normandy), to whom allegiance is owed; it is not in right of
Parliament or Her Majesty’s Government.
7 The Crown Dependencies raise their own public revenue
and do not receive subsidies from or pay contributions to the UK. They do,
however, make annual voluntary contributions towards the costs of their defence
and international representation by the UK. The Queen is the Head of State of
each Island and the Lieutenant-Governor of each Dependency is Her Majesty’s
personal representative. The Crown is ultimately responsible for the good
government of each Island (although the limits of this responsibility have
never been tested), and HMG is responsible for the defence and international
representation of each Island. The Crown exercises its responsibility for the
Islands through a committee of the Privy Council charged with Channel Islands
affairs (the Committee for the Affairs of Jersey and Guernsey, “the
Committee”) and it also
makes appointments to certain judicial and other posts in each Island.
International relations
8 The
long-standing practice of the UK when it ratifies, accedes to, or accepts a
treaty, convention or agreement is to do so on behalf of the United Kingdom of
Great Britain and Northern Ireland and any of the Crown Dependencies or
Overseas Territories that wish the treaty to apply to them (for which, by
convention, due consultation will have taken place).
9 In
certain circumstances, the Crown Dependencies may be authorised to conclude
their own international agreements by a process of entrustment. For example,
all the Crown Dependencies have autonomy in domestic matters including taxation[3] and,
having made commitments to the OECD on the exchange of tax information, they
have consequently negotiated tax information exchange agreements (TIEAs) with
an increasing number of other states by way of Letters of Entrustment issued to
their Governments under the signature of the appropriate UK Minister.
EU & ECHR
10 The
Channel Islands are not members of the European Union, but have a special
arrangement with the EU by virtue of obligations arising under Protocol 3 of
the UK’s Act of Accession (the precise details of which are not necessary
for the purposes of this paper).
11 The ECHR
provided in art 63 (now art 56, since the Eleventh Protocol) that a Contracting
State could declare that the Convention should extend to all or any of the
territories for whose international relations it was responsible, with the
effect that the provisions of the Convention would be applied in such
territories “with due regard, however, to local requirements.” The
Convention was extended in this way to the Bailiwick of Jersey in 1953, and the
First Protocol, which contains a similar power to extend in art 4, was extended
to the Bailiwick of Guernsey in 1988.
12 In the
course of the passage of the Human Rights Act 1998, the House of Lords rejected
an amendment to apply it to the Channel Islands and the Isle of Man, and a
similar amendment was withdrawn in the House of Commons. Instead the Convention
was applied to the Channel Islands by domestic legislation. The Human Rights
(Bailiwick of Guernsey) Law 2000, which applies in Guernsey, Alderney and Sark,
has given effect to Convention rights and came into force on 1 September 2006.
Legislation
13 The
legislatures of the Channel Islands are the States of Jersey, the States of
Deliberation of Guernsey, the States of Alderney and the Chief Pleas of Sark.
They have exercised legislative powers in relation to their respective
jurisdictions for many years. Those powers arise predominantly under customary
law and Royal Charter, and further to statutory powers created by way of Orders
in Council. The independence of the Channel Islands to manage their own affairs
and to enact their own legislation has been recognised for centuries. In
particular, further to Charters granted by successive English monarchs from the
14th to 17th centuries, important rights and privileges of the inhabitants and
the laws and customs of the Islands were acknowledged and ratified by the
Crown.
14 In both
the Bailiwicks of Guernsey (including Alderney and Sark) and Jersey the normal
legislative process insofar as “primary legislation” is concerned
is for the Queen in Council, acting on the initiative of one or more of the legislatures,
to approve a draft Law, or Projet de Loi in the case of the Bailiwick of Guernsey, following
a recommendation from the Committee. UK legislation does not normally extend to
the Crown Dependencies. In instances where it does extend, it may do so either
by virtue of the Act itself or by Order in Council made with their agreement
under an enabling provision (permissive extent clause) contained in the Act.
For an Act to extend directly otherwise than by means of an Order in Council is
now very unusual. By convention, Departments of Her Majesty’s Government
must consult the Crown Dependencies at the earliest opportunity in the event
that extension or the inclusion of a permissive extent clause in an Act is
under consideration.
3. Sark
Background
15 Sark is
part of the Bailiwick of Guernsey and has a population of about 600 people. The
main Island of Sark is about 3½ miles long and at its widest point about
1¼ miles wide. In the adjacent territorial waters are numerous islets
and rocks, the largest of which is Brecqhou, which is
separated from Sark by the Gouliot Passage. There is
evidence that Sark was variously inhabited and invaded, from about 3,000 BC
onwards. However, by the end of the 14th century, the Island appears to have
been largely abandoned and there is little evidence to show that the Island was
used for anything other than for the grazing of animals and as a safe harbour
for mariners (including pirates) for many years thereafter.
16 The
circumstances of Sark changed decisively, however, in 1563 when Royal
Commissioners granted the Island of Sark to Helier de Carteret, Seigneur of the fief of St Ouen in Jersey. The grant of the
Island was subsequently confirmed by Letters Patent from Queen Elizabeth I that
were delivered under the Great Seal on 6 August 1565.
The Chief Pleas of Sark
17 The
legislative assembly of Sark is known as the Chief Pleas of Sark. Traditionally
it was the assembly of the Tenants of the original Tenements established by
Helier de Carteret in 1565. One of the conditions of the grant required him to
ensure that at least 40 men occupied the Island for the purposes of its
defence. In order to encourage such men and their families to live on Sark, de
Carteret created a number of Tenements and the Tenants of those landholdings
were entitled to a seat in the Chief Pleas.
18 Currently
the Chief Pleas sit at least four times per year. The Tenants, however, as from
January 2009, no longer have a right to sit and Chief Pleas currently consists
of 28 elected members, known as Conseillers, and the Seigneur and the President of Chief Pleas. Neither the Seigneur nor the President has the right to vote at
meetings of Chief Pleas, albeit the former has the right to speak. He also enjoys
certain rights of appointment and has other historical rights, one of which is
touched on below.
19 The
Chief Pleas can legislate in two ways, that is by Law and by Ordinance. It can
legislate for Sark on any matter by Projet de Loi, which requires Royal Sanction before it can have
legal effect. The power to legislate is in part concurrent with that of the
States of Deliberation of Guernsey which may legislate for Sark on matters of
criminal justice without the consent of the Chief Pleas and on any other matter
with their consent. Her Majesty in Council grants Royal Sanction (by Order in
Council) to any Projet de Loi
presented pursuant to a recommendation by the Committee. She may also dismiss
any petitions requesting Her Majesty not to sanction any Projet which may have been
submitted, if that is the recommendation of the Committee.
20 In
considering whether or not to recommend approval, the Committee will in general
respect the decision of the Chief Pleas to approve a particular Law and there
is thought to be a presumption in favour of recommending Royal Assent. However,
consideration is given to the Crown’s responsibilities so that if a Projet de Loi, or
any provision of a Projet,
clearly violates or is incompatible with the Crown’s international
obligations (for example treaty obligations, such as under the European
Convention on Human Rights) then a recommendation may (exceptionally) be made
to withhold sanction. (It is more common, but still exceptional, for draft
legislation to be returned to a Crown Dependency by the Ministry of Justice
identifying whatever issue there is and inviting the relevant legislature to
reconsider. This was the case with an earlier draft of Sark’s reform
legislation.)
21 The
Chief Pleas also legislates on a range of local affairs by Ordinance (which the
Seigneur may veto, albeit this only has effect as a
delaying power) made in exercise of customary law making powers or powers created
under Laws (including the Reform (Sark) Law 2008). The Royal Court of Guernsey
may annul an Ordinance on the ground that it is ultra vires the Chief Pleas, but the Chief Pleas may appeal to the
Privy Council against the annulment.
22 Between
meetings, the business of the Chief Pleas is conducted through various
Committees which function in effect as the executive government of Sark.
The Seneschal of Sark
23 In 1675,
the office of Seneschal was created by the Crown. The main function of the
Seneschal was to dispense justice, as Sark’s chief judge. However, the
Seneschal’s functions also included acting as president of the Island’s
legislature. The so-called “dual role” of the Seneschal (as sole
resident judge and president of Sark’s elected assembly) was held by the
English Court of Appeal to be incompatible with art 6 of the ECHR in judicial
review proceedings commenced in 2008 by Sir David and Sir Frederick Barclay. Following
the court decision, the Chief Pleas decided to split the dual role and enacted
the 2010 Reform Law which was designed to achieve an appropriate division of
functions. The legislation was implemented in February 2013 when the current
Seneschal was sworn in as Seneschal with almost exclusively judicial functions
and the former Seneschal was elected unopposed to the newly created office of
President of the Chief Pleas of Sark on 27 February.
24 The
court of the Seneschal has unlimited jurisdiction in civil matters, but a more
limited jurisdiction in criminal matters. There is a right of appeal to the
Royal Court of Guernsey, which also has concurrent first instance jurisdiction
in civil matters and sole jurisdiction over more serious criminal matters.
Appeals from the Royal Court lie to the Court of Appeal for Guernsey, and from
that Court to the Judicial Committee of the Privy Council.
4. The central issues of the case
Background to
the appeals
25 Far-reaching
reforms to the traditional constitution of Sark were made by the Reform (Sark)
Law 2008 (“the 2008 Reform Law”) which, as mentioned above, was
successfully challenged by the respondents to the current proceedings, Sir
David and Sir Frederick Barclay, on the ground that the dual role of the office
of Seneschal, as President of the Chief Pleas and chief judge, was incompatible
with art 6 of the ECHR, in R (Barclay) v
Lord Chancellor and Secy of State for Justice
(“Barclay (No 1)”). The
2010 Law was enacted in response, removing the right of the Seneschal to serve
as President or member of the Chief Pleas and making provisions for office as
chief judge alone. The respondents considered that these provisions were still
incompatible with the principle of the impartiality and independence of the
judiciary, required by art 6.
26 The
respondents applied to the Administrative Court of England and Wales for an
order declaring that the Order in Council made on 12 October 2011, by which
Royal Assent was given to the 2010 Law, was unlawful because the Law was
incompatible with the ECHR. The Administrative Court granted the declaration to
the limited extent of declaring that a provision relating to the Sensechal’s salary was incompatible with art 6 of the
ECHR. The appellants therefore appealed to the Supreme Court on the grounds
that the Administrative Court had no jurisdiction to do so or, if it had, that
the jurisdiction should not have been exercised. A “leapfrog”
appeal was permitted given the decision in Barclay
(No 1) which had taken as its premise that there was in fact the
jurisdiction now, for the first time, being disputed by the appellants.
27 In
giving its judgment, the Supreme Court clearly affirmed that the UK courts do
have jurisdiction to judicially review an Order in Council which is made on the
advice of the UK Government acting in whole or in part in the interests of the
United Kingdom.
The hearing—points to note
28 The
Supreme Court decided on the first day of the hearing that it only wished to
hear the parties’ arguments relating to jurisdiction. Therefore, the
arguments put forward by the parties in relation to justiciability and the art
6 ECHR point were not considered by the Court, albeit that, as the arguments
progressed, it proved difficult at times to dissociate some of the jurisdiction
points from issues of justiciability.
The judgment—key findings of the Supreme
Court
29 It is
not possible to state a general rule as to whether an Order made by Her Majesty
in Council is amenable to judicial review in the courts of England and Wales,
given the wide variety of circumstances in which such orders are made (para 26)
30 The
Human Rights Act 1998 (“the HRA”) does not apply to Channel Islands
legislation as it applies in the Channel Islands, and does not include an Order
in Council made in exercise of the royal prerogative in the definition of
primary legislation subject to the HRA. For the courts of England and Wales to
entertain challenges to the compatibility of Island legislation with Convention
rights would clearly be to subvert the scheme of the Islands’ own human
rights legislation. A challenge to Sark legislation on the ground of
incompatibility with the ECHR should therefore be brought in the Island courts
under the Human Rights (Bailiwick of Guernsey) Law 2000, from which an appeal would
ultimately lie to the Judicial Committee of the Privy Council. It is not for
the courts of England and Wales to interpret the law of the Channel Islands or
decide what is law there. The courts of the Bailiwick are infinitely better
placed to assess whether legislation strikes a fair balance between the
protection of individual rights and the general interests of the community and
the appropriate forum for this claim for the purpose of ECHR. The courts of
England and Wales should not have entertained the challenge in Barclay (No 1) (see paras 31–40).
31 The
appellants had argued (with reference to the case of Bancoult (No 2)[5]),
that the courts of England and Wales have no jurisdiction to judicially review
the process whereby the Privy Council gives Royal Assent to Island legislation.
Sark has a functioning legislature and its own system of laws and courts
(unlike other Overseas Colonies), and this is a very powerful reason for the
courts of England and Wales not to interfere with the business of the people of
Sark. It does not follow, however, that there is no jurisdiction to entertain a
challenge in a more appropriate case (see paras 46–47).
32 It is
the clear responsibility of the UK government in international law to ensure
that the Islands comply with such international obligations as apply to them.
It is to be expected that any dispute will be decided by negotiation with the
Island authorities but, if this proves impossible, a challenge could be made in
the courts of England and Wales (paras 48–49). The reality is that the
appellants advise Her Majesty both in right of the Bailiwick of Guernsey and of
Sark and in right of the UK because of the UK’s continuing responsibility
for the international relations of the Bailiwick, but, unlike the position in Bancoult No 2, it is not enough to ask whether a
person is acting “in right of” the United Kingdom or of a colony or
dependency: the consequence will depend upon why that question is being asked.
33 The
appellants are legally accountable to the UK Parliament, and to the UK courts
in an appropriate case (this was not one such case). The question of whether
they might also be accountable to the courts of the Bailiwick was left open as
it was not argued before the court (para 57).
34 As a
general proposition, the courts of the United Kingdom do have jurisdiction to judicially
review an Order in Council which is made on the advice of the Government of the
United Kingdom acting in whole or in part in the interests of the United
Kingdom. Hence the Administrative Court did have jurisdiction to entertain this
claim. Nevertheless, there are circumstances in which that jurisdiction should
not be exercised. This was one such case (para 58).
35 Therefore,
the appeal was allowed and the declaration made by the Administrative Court
(that the decision recommending approval of the Reform (Sark) (Amendment) (No
2) Law 2010 was unlawful because the provision in that Law relating to the
remuneration of the office of the Seneschal was incompatible with art 6 of the
ECHR) was set aside.
5. Conclusions
36 The case
confirms that the courts of the UK do have jurisdiction to judicially review an
Order in Council made on the advice of HMG acting in whole or in part in the
interests of the UK. This leaves open an avenue for some form of redress/review
inter alia where Royal Assent is
refused.
37 The court
found that when advising Her Majesty, whether or not it is appropriate to make
an Order giving effect to a Bailiwick or Sark Projet de Loi, the Lord Chancellor and other
members of the Privy Council involved are advising Her Majesty both in right of
the Bailiwick of Guernsey and of Sark and in right of the United Kingdom.
38 The court
noted the common ground between the Ministry of Justice and the Crown
Dependencies that there is a strong presumption in favour of granting Royal
Assent to a measure which has been passed by an Island legislature.
39 The court
did not hear the arguments concerning justiciability and made no decision about
the grounds upon which Royal Assent might lawfully be withheld, but did state
that any statement in the judgments in the Barclay
(No 1) case as to the scope for withholding Royal Assent cannot be treated
as authoritative.
40 In the
longer term, it remains to be seen if any challenges to future (or extant
legislation) on HR grounds are made in the Bailiwick courts. The Supreme Court
case has not decided the ECHR point (as the arguments were not heard) but
clearly, should that point be pursued, it is beyond doubt that the matter would
be so pursued within the Bailiwick courts.
41 Finally,
appeals to the Supreme Court will only be heard if they “raise an
arguable point of law of general public importance”. This case clearly
did so, and whilst the specific issues in the case relate to Sark, the decision
is of significance to all four of the governments within the Channel Islands
(if not also to Overseas Territories and all constitutional lawyers). It was
the very significant constitutional implications of the matter for Jersey and
Guernsey which prompted the Attorney General of Jersey and the States of
Guernsey to intervene as parties in the Supreme Court appeal proceedings.
Megan Pullum, QC is
HM Comptroller (Solicitor General) and Robert Titterington
is a Crown Advocate and Director of Legislative Drafting; Law Officers of the
Crown, Guernsey. Together they instructed Counsel in the above case, on behalf
of the States of Guernsey