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Factual backgroundemma_cross_ph

As previously reported on UKSC blog (here and here), this case emerged in the aftermath of a successful 2009 judicial review[1] brought by British businessmen Sir David and Sir Frederick Barclay in respect of the Reform (Sark) Law 2008. The Barclay Brothers successfully argued that the dual role of the office of Seneschal, as President of the Chief of Pleas and chief judge, meant that the 2008 Law was incompatible with Article 6 of the European Convention on Human Rights (the right to a fair trial).

In response, the Chief Pleas had passed the Reform (Sark) (Amendment) (No.2) Law 2010. The 2010 Law changed the Seneschal’s role itself (the Seneschal ceased to be a member of the Chief Pleas and a new office of the President of the Chief Pleas was established) and made provisions in respect of his office.  Again, the Respondents considered that this new 2010 law was incompatible with Article 6 ECHR and pursued judicial review proceedings.

The island of Sark is part of the Crown Dependency of the Bailiwick of Guernsey, with a population of around six hundred. Crown Dependencies have a unique relationship with the UK through the Crown, in the person of the Sovereign. The UK Parliament has the power to legislate for the Channel Islands, however Acts of Parliament only extend to the Islands by express mention or necessary implication. Usually this is done by an Act of Parliament giving power to extend its application by Order in Council, in practice only after the Islands have been consulted.

Nevertheless, in general, the Islands create their own legislation and Sark has its own legislative and executive institutions. The legislature (the Chief Pleas) generally legislates by Laws, which are passed as a Projet de Loi and then receive Royal Assent. Royal Assent is given by an Order in Council, on the recommendation of a Standing Committee of the Privy Council which deals with the affairs of Jersey and Guernsey.

Issues

The principle legal issue in the appeal concerned the role, if any, of the courts of England and Wales in the legislative process of the island of Sark.

Appellate History

The Administrative Court ruled in favour of the Respondents and granted an order declaring that the Order in Council which led to Royal Assent of the 2010 Law was unlawful. Whilst the Administrative Court rejected the challenges in respect of the provisions for the appointment, removal and renewal of the Seneschal, it held that the provision for the remuneration of the Seneschal was incompatible with Article 6 ECHR.

The Administrative Court did not think it right to decline jurisdiction in the light of binding authorities in this area. In Bancoult (No 2) [2], the House of Lords ruled that the courts of England and Wales did have jurisdiction to rule upon the lawfulness of Orders in Council, made under the royal prerogative, legislating in respect of a British Overseas Territory. Given this decision, it was considered at all levels in Barclay (No 1) that the Order in Council granting Royal Assent to the Law was amenable to judicial review in the courts of England and Wales. The Administrative Court had not thought it appropriate to distinguish Bancoult (No 2) when this had not been considered in Barclay (No 1).

The Appellants appealed to the Supreme Court on the grounds that the Administrative Court did not have jurisdiction to make the order that it had, or, if it had, that the jurisdiction should not have been exercised. If the Supreme Court ruled positively in respect of these issues then it was asked to also consider whether the Administrative Court was correct to hold that, in respect of the remuneration of the Seneschal, the 2010 Law was incompatible with ECHR.

The appeal was a “leap-frog appeal” after the Administrative Court certified that the case was of general public importance pursuant to the Administration of Justice Act 1969, s 12.

Supreme Court judgment

The Supreme Court judgment, handed down on 22 October 2014, unanimously allowed the appeal, although it was not necessary for the Supreme Court to rule on the compatibility of the 2010 Law with the ECHR. The lead judgment was given by Lady Hale, with Lord Neuberger, Lord Mance, Lord Clarke and Lord Reed unanimously agreeing with her findings.

The Supreme Court 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 Government of the United Kingdom acting in whole or in part in the interests of the United Kingdom. The Supreme Court was careful to note that it is not possible to state a general rule as to whether or not 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.

The existence of jurisdiction itself was primarily founded on the basis that the United Kingdom government is responsible for the international relations of the Islands and, as such, has clear responsibility in international law to ensure that the Islands comply with such obligations: “Just as the United Kingdom Parliament has the constitutional right to legislate for the Islands, even without their consent, on such matters, so must the United Kingdom executive have the constitutional power to ensure that proposed Island legislation is also compliant” [48]. The Appellants advising the Privy Council in this case were advising Her Majesty “because of the United Kingdom’s continuing responsibility for the international relations of the Bailiwick” [57].

It followed therefore that, in an appropriate case, the Appellants were legally accountable to the courts of the UK for that advice. This however was not an appropriate case and the Supreme Court held that such jurisdiction should not have been exercised.

Under the UK’s Human Rights Act 1998, so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the ECHR rights (s 3(1)). This does not affect the validity, continuing operation or enforcement of any incompatible primary legislation (s 3(2)). If a court is satisfied that a provision of primary legislation is incompatible with a Convention right, it may make a declaration of that incompatibility (s 4(2)) although such a declaration does not affect the validity, continuing operation or enforcement of the provision in question and is not binding on the parties (s 4(6)).

An “Island Law” is not included in the list of “primary legislation” in HRA 1998 (s 21(1)) and there is nothing in HRA 1998 to suggest that this extends to Orders in Council made in the exercise of the prerogative power to give Royal Assent to Island legislation or to legislate for territories outside of the UK. As such, a primary consideration for the Supreme Court was whether an Order in Council giving Royal Assent to Island legislation or legislating directly for an Island could be read into “Order in Council made in exercise of [the royal prerogative]” in the definition of primary legislation in section 21(1) of HRA 1998.

The Supreme Court did not accept this interpretation, holding: “It is not for the courts of England and Wales to interpret the law of the Channel Islands or decide what is law there. Insofar as that task rests with the courts, it rests with the Island courts…. It is not for the courts of England and Wales to declare that Island legislation is incompatible with the Convention rights” [36].

If the courts of England and Wales entertained challenges to the compatibility of Island legislation with the ECHR rights, this would clearly subvert the scheme of the Island’s own human rights legislation, The Human Rights (Bailiwick of Guernsey) Law 2000. The UK had decided to extend the ECHR to the Islands by leaving it to the Islands to legislate to incorporate the rights contained in the Convention into Island law, as opposed to merely extending HRA 1998 to the Islands.

The Supreme Court echoed the Administrative Court’s observation that it would be a “surprising” outcome if the courts of England and Wales could quash the final stage of the Island’s legislative process when the courts of the Bailiwick must respect the primacy of the legislative process.

Lastly, the Supreme Court noted that the European Court of Human Rights in Strasbourg has been sensitive to national concepts of due process when considering the requirements of Article 6 ECHR: “The courts of the Bailiwick are infinitely better placed to assess whether an Island measure is “necessary in a democratic society” or whether an Island court would lack the required independence and impartiality. If it be thought that there is a risk of complacency in the judicial, legislative or administrative authorities, of a small community, where most of not all of the prominent actors will be known to one another, the ultimate safeguard lies with the Judicial Committee of the Privy Council” [39].

Accordingly, whilst the courts of England and Wales did have jurisdiction in this case, the courts of the Bailiwick was the most appropriate forum in which challenges to Island legislation on grounds of incompatibility with the ECHR should be heard.

Comment

This case raised fundamental questions about the constitutional relationship between the UK and the Islands, as well as the constitutional relationship between the courts and a representative or democratically elected legislature. Such was the importance of the case that, despite the Barclay Brothers withdrawing from the proceedings, the Supreme Court requested the assistance of advocates to the court to put forward counterarguments to the Appellants as deemed proper.

 

 

 

 

 

 

[1] R (Barclay) v SoS  for Justice & Ors [2009] UKSC 9, [2010] a AC 464 (“Barclay (No 1)”)

[2] R (Bancoult) v Secretary fo State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] 1 AC 452 (“Bancoult (No 2)”)