Case Preview: R (Barclay & Anor) v Secretary of State for Justice and Lord Chancellor & Ors
02 Thursday Oct 2014
On 30 June 2014, the Supreme Court heard a case brought by British businessmen Sir David and Sir Frederick Barclay regarding the power of the legislature of Sark to alter the terms of office of the chief judge of the court of Sark, the Seneschal.
The case raises interesting questions around these powers, especially around altering judges’ pay, and the compatibility of these powers with Article 6 of the European Convention on Human Rights.
The case concerns Sark, an island of 600 people, which is part of the Bailiwick of Guernsey; a Crown Dependency. Laws for Sark are made by the legislature of the island, the Chief Pleas, before being passed following the approval of Her Majesty in Council (the Privy Council of the United Kingdom). A Committee, comprising the Secretary of State for Justice, a Minister of State in the Ministry of Justice and the Lord President of the Privy Council, makes a recommendation to the Privy Council before a law is approved. Where appropriate, that Committee is advised by the Secretary of State for Justice.
The case emerged in the aftermath of the successful 2009 judicial review  brought by the Barclay brothers in respect of the Reform (Sark) Law 2008.
As previously reported on UKSC blog, the 2008 Law was the culmination of years of consideration of constitutional reform in Sark. The judicial review contended that the Secretary of State’s advice to the Committee (which led to the approval of the 2008 Law by the Privy Council) was wrong, as the 2008 Law was not compatible with the ECHR (which had been extended to Sark as part of the Bailiwick of Guernsey). The Barclay brothers succeeded in the Court of Appeal in establishing that the dual role of the Seneschal as the chief judge of the court of Sark and the President of the Chief Pleas was incompatible with ECHR, art 6(1) (the right to a fair trial). However, they failed both in the Court of Appeal and 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 ECHR (the right to free elections).
In the aftermath of this Supreme Court ruling, the Chief Pleas passed the Reform (Sark) (Amendment) (No.2) Law 2010. The 2010 Law made new provisions in respect of the appointment, removal from office, re-appointment and remuneration of the Seneschal and 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. The Barclay brothers lodged a petition against this 2010 Law.
After the 2010 Law was passed by the Chief Pleas, it was sent as a projet de loi to the Ministry of Justice for the approval of the Privy Council. The Secretary of State for Justice provided advice to the Committee and, with the benefit of that advice, the Committee recommended approval. On 12 October 2011, the Privy Council approved the 2010 Law and dismissed the Barclay brothers’ petition.
High Court Decision
The Barclay brothers responded by bringing a case to the High Court of England and Wales. They sought an order quashing the Privy Council’s approval of the 2010 law and seeking reasons in respect of that approval and the dismissal of the petition. The Barclay brothers contended that the advice given by the Secretary of State to the Committee was erroneous; the 2010 Law was incompatible with the ECHR, art 6, as it resulted in the Seneschal not having the necessary degree of impartiality and independence.
Two primary issues were raised at the trial: (a) whether the courts of England and Wales had jurisdiction to review the lawfulness of any advice given by the Secretary of State in relation to the approval of a projet de loi and of the recommendation of the Committee; and, if it did, (b) whether the lawfulness of the advice given by the Secretary of State in relation to the compatibility of the 2010 Law with the ECHR as a treaty made by the UK is justiciable in England and Wales.
The High Court noted that the ultimate relief sought by the Barclay brothers could be sought in the courts of the Bailiwick with an appeal to the Privy Council and that the nature of the legislative process in issue related to the Bailiwick of Guernsey. As such, there was great force in the argument that the proper court for determining the compatibility of the 2010 Law with the ECHR was a court of the Bailiwick of Guernsey. However, to accept this submission would depart from the course followed in the Barclay brothers’ 2008 judicial review, where there was a concession as to the effect of Bancoult and the case was bought in England and Wales. As such, the High Court decided that it was not appropriate to decline jurisdiction.
In respect of the question of justiciability, the general principle is that a treaty is outside the purview of the courts because it is made in the court of foreign relations and because a treaty, as a source of rights and obligations, is irrelevant (it doesn’t enter domestic law without the intervention of Parliament). In Launder, an exception was made to this general principle. Courts could review the correctness of legal advice regarding the ECHR, when not part of domestic law, in circumstances where the Executive had accepted that it was relevant to a decision to be made and had acted on advice given in relation to the ECHR. After a thorough analysis of the authorities in this area, the High Court concluded that the review of a decision based upon the interpretation of the ECHR (even at a time when it only has the status of a treaty) is justiciable where a decision is disputed on the basis that the decision maker erred in law in the interpretation of the ECHR.
Finally, the High Court considered whether the provisions in the 2010 Law relating to the Seneschal, namely relating to: (i) appointment; (ii) removal; (iii) renewal after the age of 65; and (iv) remuneration, were compatible with ECHR, art 6.
The High Court proposed to grant the Barclay brothers a declaration that the decision of the Committee recommending approval of the provisions of the 2010 Law was unlawful, as the law was incompatible with Article 6 of the ECHR in respect of the remuneration of the office of the Seneschal. The High Court held that the Chief Pleas’ power to alter the Seneschal’s terms of office, including his remuneration, compromised a cornerstone of judicial independence: judges’ legal protection against arbitrary reductions in pay. Protecting the independence of the Seneschal from the pressures of a small community, where the Seneschal might be required to make unpopular decisions to uphold the rights of a minority is essential to the Seneschal’s independence. This incompatibility could be cured by an appropriate amendment to the 2010 Law to restore to the Lieutenant Governor of Guernsey an effective power over remuneration.
The provision for remuneration alone was sufficient to constitute a violation of Article 6 ECHR. The High Court did not find incompatibility with the other provisions of the 2010 Law that were challenged. The appointment of the present Seneschal was made in circumstances that were compatible with Article 6. All the formal procedures and requirements that were necessary in the more usual jurisdiction were unnecessary given that Sark is a community of 600 people. Provided that those appointing were in fact qualified to perform the functions of appointing the Seneschal and were independent, then that was sufficient for the appointment that had been made.
Similarly, the High Court had no concerns regarding the process for removing the Seneschal. Compliance with Article 6 of the ECHR was ensured by the provision that removal can only be by direction of the Lieutenant Governor, who is independent of the relevant Legislative and Executive powers in Sark. The Lieutenant Governor would only be entitled to remove the Seneschal if the procedure under which he acted provided proper safeguards appropriate to the case both as a requirement of common law and of Article 6 ECHR.
Lastly, the High Court did not agree that there was a risk that the judgement of the Seneschal might be affected by the possibility of non-renewal after the age of 65. The legislature were entitled to determine that the process it has adopted is better for the small community of Sark, provide that the way in which the re-appointment would in practice be made is properly compliant with Article 6 ECHR. A process involving a decision on fitness of the Seneschal to continue in office would undermine confidence in the Seneschal once initiated.
Appeal to the Supreme Court
The High Court certified that its decision involved a point of law of general importance. This allowed the Secretary of State for Justice and others to appeal directly to the Supreme Court.
The Supreme Court has been asked to consider whether the High Court of England and Wales has jurisdiction to hear the Barclay brothers’ challenge, which culminated in the 2013 judgment (EWHC 1183 (Admin)) and whether the 2013 challenge raises issues that are justiciable.
Finally, and only following a positive answer to the first two issues, the Court has been asked to consider whether the 2010 Law is compatible with the ECHR, art 6 with regard to the power of the Chief Pleas to alter the terms of office of the Seneschal.
The appeal was heard by the Supreme Court on 30 June 2014. The outcome of the decision will shed interesting light on the interpretation of the jurisdiction of the High Court of England and Wales with regard to the Bailiwick of Guernsey and, furthermore, the compatibility of laws altering the terms of office of judges with the ECHR, art 6.
 R (Barclay) v Secretary of State for Justice & Ors  UKSC 9
 R (Barclay & Anor) v Secretary of State for Justice and Lord Chancellor, The Committee for the Affairs of Jersey and Guernsey and Her Majesty’s Privy Council  EWHC 1183 (Admin)
 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2)  1 AC 453
 R v Secretary of State for the Home Department, Exparte Launder  1 WLR 839, HL
 S 6(2) of the 2010 Law stated: The Seneschal shall retire from office upon attaining the age of 65, but may be re-appointed by the Appointments Committed for a period of periods not exceeding five years at any one time, provided that any such further term of office shall end not later than the date on which he attains the age of 75.