Case Comment: R (Barclay) v Secretary of State for Justice & Ors  UKSC 9
11 Friday Dec 2009
On 1 December 2009 the Supreme Court gave judgment in R (Barclay and others) v Secretary of State for Justice & Ors  UKSC 9. The appeal concerned the Seigneur (Lord) and the Seneschal (Steward) on the island of Sark, part of the Bailiwick of Guernsey whose population numbers about 600, Sark was historically, and (formally) still is, the fief of the Seigneur, and the title is hereditary. The Seneschal, a position created by the Crown in 1675, is Sark’s chief judge. He is appointed by the Seigneur (with the approval of the Lieutenant Governor). Both the Seigneur and the Seneschal are ex officio, unelected members of the Chief Pleas, Sark’s legislature.
Two of the appellants (the Barclay brothers) owned property on Sark and the third (Dr Slivnik, a Slovenian citizen) lived on the island and wished to stand for election to the Chief Pleas. They argued that the Reform (Sark) Law, 2008 (“Reform Law”), which heralded some electoral reform whilst permitting the Seigneur and Seneschal to retain their places in the Chief Pleas, was contrary to Article 3 of the First Protocol to the ECHR (“A3P1”), which provides for the right to free elections. They also argued that the Reform Law was incompatible with A3P1 (alone or in conjunction with Article 14 ECHR) for Dr Slivnik to be prevented from standing for election on the grounds that he was an alien. Both the High Court (Wyn Williams J,  EWHC 1354 (Admin)) and Court of Appeal (Pill, Jacob and Etherton LJJ) ( EWCA Civ 1319) found against the appellants below, holding that the Reform Law was (so far as relevant for the purposes of the appeal) not in breach of A3P1 (Etherton LJ dissenting in respect of the position of the Seneschal).
The Reform Law was the culmination of years of consideration of constitutional reform. In essence, it removed reserved seats in the Chief Pleas for “Tenants” and provided for the election of 28 “Conseillers” but also provided for the Seigneur and Seneschal to remain members of the Chief Pleas.
Turning first to the Seigneur, the Reform Law removed the right to vote which he had hitherto enjoyed, but he retains his right temporarily to veto Ordinances (but not Laws), which must then be placed before the Chief Pleas again (within 21 days) for it to decide whether the Ordinance in question should be confirmed. The Seigneur also retains a number of powers and responsibilities, including appointing the Seneschal. His consent is also needed for the Seneschal to summon an extraordinary meeting of the Chief Pleas.
As for the Seneschal, the Reform Law also removed his right to vote. The Seneschal retains his position as President of the Chief Pleas, but is only able to speak for the purposes of exercising his role as President. He is appointed for life (rather than a three-year term as was previously the case). He has the power to summon an extraordinary meeting of the Chief Pleas and has a number of procedural powers, including that of maintaining order at a meeting and regulating the conduct of business.
Neither the Seigneur nor the Seneschal is entitled to sit on the Committees (i.e. the executive) and thus they have no part to play in the day-to-day running of the executive.
The Reform Law prohibited “aliens” from standing for election. “Aliens” were defined as “where an “alien” is a person who is neither a Commonwealth citizen nor a British protected person nor a citizen of the Republic of Ireland”. Dr Slivnik fell into that category.
The Supreme Court Judgments
Lord Collins gave the leading judgment. Lord Hope agreed with Lord Collins and added a few paragraphs of his own, without touching on the substance. Lords Scott, Brown and Neuberger simply agreed with Lord Collins.
Lord Collins surveyed the ECtHR case law on A3P1, particularly Mathieu-Mohin v Belgium (1988) 10 EHRR 1 and Yumak v Turkey (2009) 48 EHRR 61, concluding that there was “no narrow focus on one particular element of democracy”. The electoral rules needed to be examined in the round and “in the light of historical and political factors”. Applying the principles he derived from the case law (set out at paras 53-61 of his judgment) “leads inevitably to the conclusion that the Reform Law is not in breach of [A3P1]” (para 64).
The “starting point” was that only elected Conseillers are entitled to vote, and so only they can determine whether legislation is to be enacted. With one Conseiller for every 17-18 persons in the electorate, it was hard to envisage conditions more likely to ensure the expression of the opinion of the people (para 66). Whilst the Seigneur and Seneschal were members of the legislature, it was clear from the case law that A3P1 did not require all members of the legislature to be elected, even where the legislature was unicameral. All the circumstances needed to be taken into account. A3P1’s purpose was to ensure that legislation was enacted through genuinely democratic processes, and that was the case here: neither the Seigneur nor the Seneschal could vote. The fact that the Seigneur could speak on matters of substance in debate (and therefore influence the outcome of debate) was “not undemocratic, especially where the influence is open and transparent” (para 71).
Lord Collins held further that even if A3P1 did in principle require that even non-voting members be elected to a legislature, the “constitutional history and political factors relevant to Sark” suggested that the limitation on that principle would be well within the margin of appreciation granted to Contracting States (para 72). The feudal system in Sark had existed in one form or another since 1565, and the position of the Seneschal dated from 1675. Further, the Chief Pleas’ support for the Reform Law was a “political factor of weight”, because it offered “confidence that the Reform Law will command the respect and legitimacy in the eyes of the people of Sark that is necessary to secure significant constitutional change” (para 73).
The fact that the Seigneur retained the power temporarily to veto Ordinances was irrelevant. He dismissed the appellants’ argument that this power might have a chilling effect on the exercise of power by the democratically elected members of the Chief Pleas as “wholly speculative” (para 78). It was legitimate to take into account that the power had not been used in modern times and that the Seigneur had indicated in evidence that it will only be used in very limited circumstances. He drew an analogy with the delaying power of the House of Lords, which was compatible with A3P1 because of its origins in historical and political factors and because it was not arbitrary or disproportionate, rather than because, as the appellants had argued, the House of Lords is part of a bicameral structure in which the other chamber is wholly elected.
As for the Seneschal, Lord Collins accepted that it was “anomalous that the presiding officer of an elected assembly should be an unelected official appointed by another unelected (and indeed hereditary) official”, and that it was relevant that members of the Chief Pleas had no power to dismiss or suspend him (and that writing to the Lieutenant Governor for his removal, as provided for by the Reform Law, was not quick or certain) (para 83). That said, it did not follow that the Reform Law was contrary to the duty under A3P1; and in any event the position of the Seneschal was well within the margin of appreciation, taking into account historical and political factors, and could not realistically be said to impair the essence of A3P1 rights (ibid).
Turning to the prohibition on aliens standing for election, Lord Collins held that it was clear from ECtHR jurisprudence that A3P1 rights belong to citizens and therefore not aliens (para 87). Article 14 ECHR did not assist the third appellant’s case: discrimination must be “in the enjoyment of the rights” under the ECHR. In the absence of a Convention right, which was the case here, there could be no breach of Article 14 (para 96).
First, there is repeated reference to Sark’s unusual constitutional history, in particular the fact that the island was until relatively recently run along feudal lines with no democracy at all. The Supreme Court draws attention to the difficulty even of passing the Reform Law, which had had to be amended twice before the Committee felt it was sufficiently robust to survive scrutiny on human rights grounds (and so appropriate for approval to be given by the Privy Council). According to the ECtHR’s rather cautious case law, the content of the obligation under A3P1 is a moving target, and Court appears to have been prepared to take a relatively generous view of the A3P1 obligation in the case of Sark when assessing the membership of the legislature by two unelected officials.
Secondly, as noted above the Court agreed with the argument that the Chief Pleas’ support for the Reform Law was a factor of some weight. Yet it may be questioned whether this was an appropriate factor to take into account, given that the Chief Pleas’ support came at a time when only a minority of the membership of the Chief Pleas itself was democratically elected. Similarly, it may be questioned whether it was right for the Court to place reliance on the Seigneur’s evidence that he would only rarely exercise his power of temporary veto. What if he (or a successor) were to take a different view in future? Would that alter the A3P1 analysis?
Thirdly, the Court does not really deal with the substance of Etherton LJ’s dissent in the Court of Appeal. The reasoning at para 83 is rather thin: having noted the anomaly that the presiding officer of a legislature should be unelected and appointed by another unelected (hereditary) official, and that it was relevant that the members of the Chef Pleas had no power to dismiss or suspend the Seneschal themselves, the response is simply that
“it does not follow that legislation which provides for an unelected residing officer is contrary to the duty to allow free elections for the choice of legislature under [A3P1]. In any event, for essentially the same reasons as apply in the case of the Seigneur, the position of the Seneschal is well within the margin of appreciation, taking into account historical and political factors, and cannot realistically be said to impair the essence of the rights under [A3P1] nor to deprive them of effectiveness.”
The Court does not deal with Etherton LJ’s other concerns, which were that the particular features of the Sark constitution and the social and constitutional standing of the Seneschal in a very small community were such that elected members would have an obvious disincentive to challenge the Seneschal’s rulings and conduct as President of the Chief Pleas (para 151 of the Court of Appeal’s judgment).
Finally, the Court canvassed the issue of whether the Human Rights Act applied: were the respondents acting as “public authorities” for the purposes of section 6 despite the fact that the decisions under review were taken in relation to one of the Channel Islands? In R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs  1 AC 529 the House of Lords by a 3-2 majority held that the instruction by the Secretary of State to the Commissioner of South Georgia to issue fishing licences to two specified vessels, with the effect that the claimant’s vessel did not receive a licence, was an instruction issued by the Crown in right of South Georgia and the Sandwich Islands rather than in right of the UK and so no question of breach of the 1998 Act arose. Lord Collins adverted to the fact that the authority of the majority in Quark had been “weakened” by the subsequent dicta of Lord Hoffmann (part of the majority in Quark) who in the light of academic criticism of Quark felt that the minority had come to the correct conclusion after all (para 106). However, given that the issue did not arise on the instant appeal, and the correctness of Quark had not been the subject of argument, it would be wrong to revisit it here.
Nor was it appropriate, in Lord Collins’ view, to decide whether, had the claimants established breach of a Convention right, they would have been entitled to advance a damages action under section 7 of the 1998 Act. The obiter discussion of this issue by Lord Nicholls at para 36 of Quark, endorsed by Lord Brown at para 134 of Al-Skeini  1 AC 153, must await determination in another case.