| CHANNEL ISLANDS — Sark — Legislature — Whether Orders in Council relating to governance of Sark incompatible with Convention rights — Real Property (Transfer Tax, Charging and Related Provisions) (Sark) Law, 2007 — Reform (Sark) Law, 2008 — EC Treaty, art 19EC — European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) arts 6, 14, 56, First Protocol, art 3
R (Barclay and others) v Secretary of State for Justice and the Lord Chancellor and others [2008] EWHC 1354 (Admin); [2008] WLR (D) 195
QBD: Wyn Williams J: 18 June 2008
The provisions in the Reform (Sark) Law, 2008 for the retention of the Seigneur and Seneschal as unelected members of Chief Pleas did not breach art 3 of the First Protocol to the European Convention on Human Rights; the prohibition on aliens standing for election to Chief Pleas did not infringe art 3 of the First Protocol, or art 14 of the Convention, or art 19(1) of the EC Treaty; and the Seneschal’s dual role as Senior Judge in Sark and a member of Chief Pleas was not inconsistent with art 6 of the Convention.
Wyn Williams J so held when granting permission to the claimants, Sir David and Sir Frederick Barclay and Mr Thomas Slivnik, to apply for judicial review of Orders in Council made in April 2008 granting Royal Assent to two laws promoted by the legislature of Sark, known as Chief Pleas: the Reform (Sark) Law, 2008 (“the Reform Law”), which provided for a different composition of Chief Pleas from that of the present, and the Real Property (Transfer Tax, Charging and Related Provisions) (Sark) Law, 2007 (“the Real Property Law”), but dismissing the claim. The claimants alleged that the advice given to Her Majesty the Queen to grant Royal Assent by the three defendants, 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, was unlawful because proposed arrangements for the new legislature were incompatible with the Convention and the EC Treaty.
WYN WILLIAMS J said that the claimants had a sufficient interest in the subject matter of the proceedings, the first two by virtue of ownership of tenements on Sark, and an island off Sark over which Chief Pleas claimed authority to legislate, and the third by virtue of being ordinarily resident in Sark and entitled to vote, but not to stand for election to Chief Pleas because he was an “alien” as defined in the Reform Law. The Convention applied to Sark by virtue of a notification by the UK Government to the Secretary General of the Council of Europe under art 56, but each contracting state had a wide margin of appreciation. The relevant principles for finding a breach of art 3 of the First Protocol were laid down in Mathieu-Mohin and Clerfayt v Belgium [1987] 10 EHRR 1; the powers of the Seigneur and Seneschal did not impair the essence of the right to free elections conferred under art 3. Crucially, neither was entitled to vote in Chief Pleas and the Seigneur’s right of veto only entitled him to require Chief Pleas to reconsider ordinances. The jurisprudence of the European Court of Human Rights did not suggest that, in order to comply with art 3, every member of a state’s legislative body had to be democratically elected. Further, art 56(3) stated that the Convention was to be applied “with due regard to local requirements” and it was legitimate to have regard to the historic constitutional arrangements of Sark, with which the positions of Seigneur and Seneschal were inextricably linked. Neither did the prohibition on “aliens” standing for election to Chief Pleas constitute an infringement of art 3. If the word “people” in art 3 were to be given a uniform interpretation in all contracting states, it should be limited to citizens. Alternatively, contracting states had a wide margin of appreciation in deciding who qualified as “people” for the purposes of art 3. That being so, art 14 of the Convention could not avail the claimants. Elections to Chief Pleas were not municipal elections within art 19 of the EC Treaty because it was more akin to a national parliament than a body exercising local government functions. The Seneschal’s dual role did not mean that he lacked the impartiality, independence or appearance of impartiality and independence demanded by art 6 of the Convention. The claimants’ objection to the Real Property Law (that it provided for payment to the Seigneur from the public purse) fell with their art 3 argument.
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