New Judgment: R (Barclay & Anor) v Secretary of State for Justice and Lord Chancellor & Ors  UKSC 54
22 Wednesday Oct 2014
On appeal from:  EWHC 1183 (Admin)
Appeal concerns the role of the courts of England and Wales (including the UKSC) in the legislative process of the island of Sark. The claimants applied successfully to the Administrative Court for declaration that the Order in Council by which Royal Assent was given to the Reform (Sark) (Amendment) (No 2) Law (which removed the right of the Seneschal to serve as President or member of the Chief Pleas and made provisions for his office as chief judge), was unlawful because the 2010 Reform Law was incompatible with the ECHR, art 6.
Held: unanimously allowing the appeal and setting aside the declaration. It holds that UK courts do have jurisdiction judicially to review an Order in Council, which is made on the advice of the Government of the UK. 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. However, although the Administrative Court did have jurisdiction to entertain the claim, it should not have exercised it in this case. An Island Law is not included in the list of “primary legislation” in the Human Rights Act 1998 Act, s 21(1). The list does include an “Order in Council made in exercise of Her Majesty’s Royal Prerogative”, but there is nothing in the 1998 Act to indicate 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 the UK. A challenge to Sark legislation on the ground of incompatibility with the ECHR should be brought in the Island courts under the Human Rights (Bailiwick of Guernsey) Law 2000, from which an appeal will ultimately lie to the Judicial Committee of the Privy Council.