If you found BAILII useful today, could you please make a contribution?

Your donation will help us maintain and extend our databases of legal information. No contribution is too small. If every visitor this month donates, it will have a significant impact on BAILII's ability to continue providing free access to the law.

Thank you very much for your support!


BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales High Court (Administrative Court) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Barclay & Anor, R (on the application of) v Secretary of State for Justice & Ors [2013] EWHC 1183 (Admin) (09 May 2013)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/1183.html
Cite as: [2013] EWHC 1183 (Admin), [2014] 1 WLR 415, [2013] WLR(D) 290, [2014] WLR 415

[New search] [Context] [View without highlighting] [Printable RTF version] [Buy ICLR report: [2014] 1 WLR 415] [View ICLR summary: [2013] WLR(D) 290] [Help]


Neutral Citation Number: [2013] EWHC 1183 (Admin)
Case No: : CO/317/2012

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
09/05/2013

B e f o r e :

PRESIDENT OF THE QUEEN'S BENCH DIVISION
and
MR JUSTICE BURNETT

____________________

Between:
The Queen on the Application of
Sir David Barclay
Sir Frederick Barclay
Claimants
- and -

Secretary of State for Justice and Lord Chancellor
The Committee for the Affairs of Jersey and Guernsey
Her Majesty's Privy Council
Defendants

____________________

(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Ms Jessica Simor QC (instructed by Gordon Dawes Ozannes and Quinn Emanuel) for the Claimants
Mr James Eadie QC and Ben Hooper (instructed by Treasury Solicitor) for the Defendants
Hearing dates: 6 and 7 February 2013

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    President of the Queen's Bench Division:

    This is the judgment of the court.

    Introduction

  1. In 2008 the claimants brought proceedings against the first defendant (the Secretary of State), the second defendant (the Committee) and the third defendant (the Privy Council) in relation to the Reform (Sark) Law 2008 (the 2008 law). They contended that the advice of the Secretary of State in relation to the approval of the 2008 law by Her Majesty in Council was wrong as the 2008 law was not compatible with the European Convention on Human Rights (the Convention) which had been extended to Sark as part of the Bailiwick of Guernsey. The claimants succeeded in the Court of Appeal in establishing that the dual role of the Seneschal as the Chief Judge on the island and the President of the Legislature, the Chief Pleas, was incompatible with Article 6(1). No appeal was brought against that part of the decision of the Court of Appeal. They failed both in the Court of Appeal and in 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 Convention. The judgments are reported at [2010] AC 464. We shall refer to this litigation as Barclay No1.
  2. As a result of the claimants' success in relation to the dual role of the Seneschal, the Chief Pleas enacted the Reform (Sark) (Amendment) (No.2) Law, 2010 (the 2010 law) making new provisions in respect of the appointment, removal from office, re-appointment and remuneration of the Seneschal. Advice was given by the Secretary of State to the Committee in relation to the compatibility of those amending provisions with the Convention.
  3. In these proceedings the claimants contend that advice given by the Secretary of State to the Committee was wrong, as the 2010 law did not meet the requirements of Article 6. The decisions of the Committee and of the Privy Council to advise Her Majesty to approve the 2010 law were, they contend, therefore unlawful. They also contend that the additional powers granted to the Seigneur of Sark under the 2010 law were incompatible with Article 3 of Protocol 1 to the Convention and the advice in relation to that was wrong and the decisions unlawful. Each of the defendants contends that the courts of England and Wales have no jurisdiction over the claim and, if the courts do, the claim is not justiciable in those courts; if, contrary to their submission, it is then there was no breach of the Convention.
  4. It was accepted that there were insuperable difficulties in pursuing the contention in relation to Article 3 of Protocol 1 before us in the light of the judgment of the Supreme Court given by Lord Collins of Mapesbury in Barclay No 1. We therefore will not address this issue, as it is an issue that can only be addressed in the Supreme Court.
  5. It is necessary first to summarise the factual background.
  6. I The factual Background

    (a) The constitutional relationship of Sark to the United Kingdom and to the Crown

  7. The constitutional position of Sark is set out in paragraphs 8-43 of the judgment of Lord Collins in Barclay No 1 as supplemented by further evidence before us. That evidence included the UK Government's response dated November 2010 to the report on Crown Dependencies made in March 2010 by the Justice Select Committee of the UK Parliament. For the purposes of the proceedings before us it is necessary only to highlight certain features:
  8. i) Sark is an island of about 600 people. It includes the island of Brecqhou which the claimants purchased in 1993. It is part of the Crown Dependency of the Bailiwick of Guernsey. Her Majesty is sovereign of the Bailiwick of Guernsey and the Bailiwick of Jersey (which comprise the whole of the Channel Islands), her predecessors having succeeded to the sovereignty of the islands from the Dukes of Normandy.

    ii) The two Bailiwicks have a unique constitutional position. Neither is part of the United Kingdom nor a colony nor an overseas territory nor a state. Nor are the inhabitants represented in the UK Parliament. They have a right by royal grant to autonomous government which is respected by the UK Parliament. Laws enacted by the UK Parliament do not extend to them automatically, though the UK Parliament's right to legislate is paramount. By convention the UK Parliament does not legislate in purely domestic matters or tax.

    iii) The UK Government is responsible for their international relations and for their defence; they cannot enter into international treaties.

    iv) The Crown has ultimate responsibility for the good governance of the island, with the Secretary of State carrying within the UK Government that Departmental responsibility.

    v) The Seigneur of Sark is the hereditary Lord of Sark, holding the island as a royal fief in succession to the first Seigneur who received the island in 1565. His family acquired the fief in 1852. He acts in a number of capacities to which it will be necessary to refer. He is a member of the Chief Pleas.

    vi) The Seneschal has for many centuries been the judge of the court in Sark. Additional judges are appointed as Deputy Seneschals. The jurisdiction of the court is determined by Order in Council. Its procedure is Norman Customary law. The civil jurisdiction is unlimited. The criminal jurisdiction is limited to one month's imprisonment and a fine not exceeding level 4. An appeal from the Court of the Seneschal lies to the Royal Court of Guernsey with an appeal ultimately to the Privy Council. The workload of the court was described by the former Seneschal, Lt. Col. Guille, as being quite light. All the cases are comparatively simple.

    vii) The Chief Pleas is not only the legislature of Sark, but also exercises powers of the Executive through its committees. The legislature of Guernsey requires the consent of the Chief Pleas to legislate for Sark, save in criminal matters where it can legislate without that consent.

    viii) The Chief Pleas can pass two types of legislative measure – an Ordinance and a Law. The legislative competence of the legislature of Guernsey to make Ordinances without reference to Her Majesty was considered in the judgment of Lord Mance in Jersey Fishermen's Association v States of Guernsey [2007] UKPC 30.

    ix) A Law, however, requires the approval of Her Majesty in Council. After the Chief Pleas has passed a Law, that Law is sent as a projet de loi through the Lieutenant Governor of Guernsey to the Ministry of Justice. Petitions in support of or against the Law can be lodged.

    x) The Justice Committee of the House of Commons reported in March 2010 that the Secretary of State, as a member of the Committee and the Departmental Minister in the United Kingdom Government responsible for the affairs of the Channel Islands, can legitimately recommend that Royal Assent of legislative measures from the legislative bodies of the Channel Islands be withheld, if the legislation would put the Island in breach of an obligation which applies to the Island and for which the UK is responsible. The legislation of the Islands had to comply with international human rights obligations.

    xi) Prior to the Privy Council making a decision to approve a Law, the Committee, comprising the Secretary of State, a Minister of State in the Ministry of Justice and the Lord President of the Council makes a recommendation to the Privy Council. The Committee was constituted by an Order in Council dated 22 February 1952 to receive all Laws passed by the Channel Island and petitions in respect of them. Where appropriate that Committee is advised by the Secretary of State. If approval is given, that is given by Her Majesty in Council by Order in Council.

    xii) The evidence in Barclay No 1 and before us was that the Committee will in general respect the decision of Chief Pleas. If a Law would violate the Crown's international obligations or any fundamental constitutional principle or would clearly violate the public interest, then the Committee might recommend withholding approval.

    xiii) The Privy Council acts on the recommendation of the Committee; there is no substantive debate.

    (b) The application of the Convention

  9. In 1953, the Convention was extended by the United Kingdom to the Bailiwick of Guernsey; the First Protocol was extended in 1988.
  10. The Human Rights Act 1998 enacted by the UK Parliament was not extended to the Channel Islands or the Isle of Man. However, in Barclay No 1, the question whether a claim could be brought by the claimants in respect of Sark under the UK Human Rights Act was considered. In the Court of Appeal, it was held that the UK Human Rights Act did not apply, because it was not intended to apply to the obligations of the UK assumed under article 56 of the Convention in respect of compliance with the Convention in territories for the international relations of which the UK was responsible. The Supreme Court held that it was not necessary to determine the issue under the UK Human Rights Act, as it had been conceded that there was jurisdiction to determine the lawfulness of the decisions of the Committee and the Privy Council, as we explain at paragraphs 30-32 below: see the judgment of Lord Collins at paragraph 111. No claim is brought in these proceedings under the UK Human Rights Act; it is not necessary to consider it further.
  11. In 2000, the Guernsey legislature passed the Human Rights (Bailiwick of Guernsey) Law 2000 giving effect to the Convention in the Bailiwick. It came into force in 2006.
  12. (c) The Reform (Sark) Law 2008

  13. Prior to the 2008 law, the constitution of Sark was set out in the Reform (Sark) Law 1951. Under that law, the majority of the members of the Chief Pleas were unelected. The Seneschal was appointed by the Seigneur for a three year term; he was also a member of the Chief Pleas and ex officio its President, a role that had existed since 1675. He had a casting vote, though from about 2000 he agreed not to exercise it.
  14. The main changes brought about by the 2008 law can be summarised:
  15. i) The way in which members of the Chief Pleas were elected was reformed so that it was wholly elected, save for the Seigneur and Seneschal who remained members, but could not vote. The Seneschal remained ex officio President of the Chief Pleas.

    ii) All Legislative and Executive functions were to be exercisable by Chief Pleas and judicial functions were to be exercisable by the Court of the Seneschal. S.5 of the 2008 Law provided that the Court of the Seneschal should be the sole court of justice in Sark and was to be constituted by the Seneschal sitting alone. S.7 of the Act made provision for a Deputy Seneschal and s.8 made provision for Lieutenant Seneschals who had to be qualified lawyers of Guernsey or England, Wales, Scotland or Northern Ireland of not less than 10 years standing.

    iii) Provision for the appointment, removal and remuneration of the Seneschal was made in s.6.

    "(1)      The Seneschal, who shall be a person of full age and ordinarily resident in Sark, shall be appointed by the Seigneur, with the approval of the Lieutenant Governor.
     (2)      The Seneschal shall not be removable from office except at his own request in writing addressed to the Seigneur or, for good cause, by the direction of the Lieutenant Governor.
     (3)      The Seneschal shall be paid such remuneration out of public funds as may from time to time be approved by the Lieutenant Governor."

    (d) The 2010 Law

  16. After the litigation in Barclay No 1 the Chief Pleas in November 2010 passed the 2010 law to amend the 2008 Act in three significant respects.
  17. i) The Seneschal ceased to be a member of the Chief Pleas and a new office of the President of the Chief Pleas was established.

    ii) An Appointments Committee was established in place of the Seigneur for the appointment of the Seneschal by the addition of a new section, s.5A, to the 2008 law. We set this out at paragraph 67 below.

    iii) New provisions for the appointment, re-appointment, removal and remuneration of the Seneschal were made by repealing s.6 of the 2008 law and substituting a new s.6. We set the provisions out at paragraphs 67, 72, 78 and 83 below.

  18. After the law was passed by the Chief Pleas as a projet de loi, it was sent to the Ministry of Justice in London later in November 2010. The claimants after extensive correspondence to which it is not necessary to refer petitioned against it on 5 August 2011.
  19. The 2010 law was considered by the Ministry. The Secretary of State then provided advice to the Committee. With the benefit of that advice, the Committee recommended approval. On 12 October 2011, Her Majesty in Council approved the 2010 law and dismissed the claimants' petition.
  20. (e) The present proceedings

  21. On 11 January 2012, the claimants commenced these proceedings. They sought an order quashing the Order in Council approving the 2010 law and seeking reasons in respect of that approval and the dismissal of the petition. On 23 April 2012, Cranston J granted general permission, observing that although a number of the challenges were not arguable, it was arguable that reasons should have been given.
  22. In a statement made on 28 May 2012, the head of the Crown Dependencies Team at the Ministry of Justice, Cathryn Hannah, provided reasons for the recommendation by the Committee. She said, without waiving privilege, that the thrust of the legal advice given to the Committee was that the arguments advanced in the petition by reference to Article 6 of the Convention and Article 3 of the First Protocol were all unsound.
  23. (f ) The appointment of the new Seneschal and his remuneration

  24. On 4 July 2012, the Chief Pleas passed an Ordinance bringing the 2010 law into force in September 2012 so that the Appointments Committee for the new Seneschal could be appointed. It was noted that the Committee would be chaired by the Seigneur and its membership would be his choice.
  25. On 14 November 2012, the General Purposes and Advisory Committee of the Chief Pleas reported to the Chief Pleas on the terms and conditions for the office of Seneschal and Deputy Seneschal. It proposed a salary of £15,000 a year for the Seneschal and £2,500 for the Deputy Seneschal. After a debate, the Chief Pleas approved the recommendation by simple resolution with 16 voting for it and 10 against.
  26. The Seigneur appointed Mr Day and His Honour David Brunning to the Appointments Committee. Mr Day had held the offices of Attorney General of Guernsey, Solicitor General of Guernsey and Deputy Bailiff of Guernsey. His Honour David Brunning had been a Circuit Judge in England and Wales. The Committee interviewed the applicant for the position of Seneschal, Mr La Trobe-Bateman, who had been the Deputy Seneschal. His name was submitted to the Lieutenant Governor of Guernsey who approved his appointment. He is not a qualified lawyer; he sits alone without a legally qualified clerk in both criminal and civil jurisdictions. In a broadcast on 9 January 2013, the Seigneur referred to the appointment of the Seneschal as his appointment; when referring to the need for the approval of the Lieutenant Governor, he pointed to the fact that over the years that approval had been required, the appointment had not been challenged.
  27. On 26 February 2013, the dual role of the Seneschal ended. Mr La Trobe-Bateman took office as Seneschal with the powers set out in the 2008 law as amended by the 2010 law. A new President of the Chief Pleas was elected on 27 February 2013.
  28. II Jurisdiction and Justiciability

    (a) The two issues

  29. Two distinct issues were raised:
  30. i) 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 project de loi and of the recommendation of the Committee.

    ii) If so, whether the lawfulness of the advice given by the Secretary of State in relation to the compatibility of the 2010 law with the Convention as a treaty made by the UK is justiciable in England and Wales.

    These issues are distinct as the first relates to the jurisdiction of the courts of England and Wales to adjudicate on any advice given by the Secretary of State to the Committee in relation to any legislation passed by the legislatures of the Bailiwick of Guernsey; the second question relates to whether advice given on the Convention as a treaty entered into by the UK is justiciable.

    (b) The submissions of the claimants

  31. The claimants contended that the Secretary of State misinterpreted the provisions of Article 6 of the Convention as applicable to the position of the Seneschal. As it was on the basis of that erroneous advice that the Committee recommended approval of the 2010 law, the decision was reviewable on the basis that the Committee acted upon an error of law, albeit an error relating to the meaning or scope of an international instrument.
  32. On the issue in relation to jurisdiction, the claimants relied on R (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2009] 1 AC 453 as giving the courts of England and Wales jurisdiction in respect of advice given to the Committee and power to quash the Order in Council. They contended that this court is bound by the decision in Barclay No 1. They submitted that they are entitled in this court to the remedies they seek and do not have to seek relief in Guernsey. In any event, it was too late to raise the issue on the availability of a remedy in Guernsey, as that point should have been taken at the permission stage; they relied on observations in R v Chief Constable of Yorkshire ex p Wilkinson [2002] EWHC 2353 at paragraphs 40-48.
  33. They submitted on the issue on justiciability that the advice given, even though in relation to the UK's position as a state party to the Convention, was reviewable on the principle set out in the judgment of Lord Hope in R v. Secretary of State for the Home Department, ex parte Launder [1997] 1 WLR 838 at 867C.
  34. However, they recognised that to quash the Order in Council, and thus invalidate the 2010 law, would have serious adverse consequences in Sark pending its replacement. For that reason they were content to seek a declaration (which in substance, if not form, would be the same as a declaration of incompatibility under section 4 of the Human Rights Act 1998). The result would be the continuation of the status quo pending the passage of fresh legislation rather than a return to the status quo ante under the 2008 law.
  35. It was accepted by the claimants that if the Secretary of State had given the correct advice, but the Committee had recommended approval of the 2010 law notwithstanding that advice, proceedings would not lie. It was contended that it would have equally been open to the Chief Pleas to have sought review of the advice, if the advice had been advice that they did not think was correct. That was not an academic question, as a commentary in the Jersey Law Review (2001, Vol 5 page 120) had outlined a dispute that arose in 1998. The Jersey Legislature had adopted fiscal legislation to which the United Kingdom Treasury objected as potentially being contrary to a commitment made to the OECD. When the Secretary of State and the Committee delayed approval, consideration was given to bringing proceedings against the Secretary of State in respect of the failure to approve; proceedings were, however, never brought as the fiscal legislation was eventually approved.
  36. (c) The submissions of the defendants

  37. The submission on behalf of the Secretary of State can be summarised as follows:
  38. i) The claimants had a remedy in the courts of the Bailiwick of Guernsey under the Guernsey Human Rights Law. Although in Barclay No. 1 it was not suggested on behalf of the defendants that judicial review in this jurisdiction was unavailable, in these proceedings Mr Eadie QC has taken the point by suggesting that the claimants should be seeking relief in the Bailiwick of Guernsey and the courts of England and Wales should exercise the discretion available in judicial review proceedings to refuse relief by declining jurisdiction in favour of Sark or Guernsey.

    ii) If the claimants were entitled to seek relief in this jurisdiction, the advice given by the Secretary of State to the Committee was advice in relation to the meaning of a treaty setting out the obligations that the UK had undertaken in respect of the Bailiwick of Guernsey. Notwithstanding the position taken in Barclay No 1, the defendants were taking the point that the principle set out in Launder did not apply. It was clear from the decision in J.H. Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418 that the correctness of the advice given by the Secretary of State was not justiciable.

    iii) The advice was not on the face of the Order in Council.

  39. Before turning to a discussion of the arguments it is first necessary to consider the position on justiciability taken in Barclay No 1 and to set out what is available by way of remedy in the courts of the Bailiwick of Guernsey.
  40. (d) Barclay No 1

  41. The claimants sought in Barclay No 1 to quash the decision of the Secretary of State to refer the 2008 law to the Privy Council and the decision of the Committee to approve the law and to recommend royal assent. They also sought a declaration that the decision was unlawful and the quashing of the Order in Council approving the law. In addition they sought, as we have set out at paragraph 8, a declaration of incompatibility with the UK Human Rights Act.
  42. The defendants accepted that to the extent that the 2008 law breached rights under the Convention, the claimants were entitled to relief in the proceedings. At paragraph 45, Lord Collins, recorded:
  43. "There is no issue on this appeal about jurisdiction to determine the legality of the decisions of the Committee and the Privy Council. Wyn Williams J held in the Administrative Court, paras 98-102, and the respondents accepted in the Court of Appeal (see Pill LJ at paras 19-21) that to the extent that the Reform Law is in breach of Convention rights, then the appellants are entitled to appropriate relief in these proceedings. That is because the respondents expressly advised Her Majesty the Queen to approve the Reform Law on the ground that it did not involve any breach of the obligations of the United Kingdom under the Convention."

    The concession was made before Wyn Williams J and the Court of Appeal not only on the basis recorded by Lord Collins at paragraph 45 (the second issue before us) but also on the basis that an Order in Council (whether as a exercise of the prerogative power or subordinate legislation) was amenable to judicial review as a result of the decision in Bancoult (the first issue before us).

  44. At paragraph 100, Lord Collins returned to these two issues. He recorded that the Secretary of State accepted:
  45. "that to the extent that the Reform Law breaches Convention rights, then the appellants are entitled to relief in these proceedings. That is because the respondents expressly advised Her Majesty to approve the Reform Law on the ground that it did not involve any breach of the obligations of the United Kingdom under the Convention: R v Secretary of State for the Home Department, Ex p Launder [1997] 1 WLR 839, 867, per Lord Hope of Craighead. Consequently the decision of the Committee for the Affairs of Jersey and Guernsey and the Order in Council are subject to judicial review: R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2009] 1 AC 453, para 35 (Lord Hoffmann) and para 105 (Lord Rodger of Earlsferry)."
  46. Lord Collins also considered the question of whether the capacity in which the Secretary of State was acting was relevant in the light of the decision in R (Quark Fishing) v Secretary of State for Foreign and Commonwealth Affairs [2006] AC 529. He said at paragraph 107:
  47. "Since it is agreed that this issue does not arise on the present appeal, it is not necessary to say more than that, as matters now stand, the approach laid down by the then majority of the House of Lords leads to the conclusion that the decisions of the Committee for the Affairs of Jersey and Guernsey and the Privy Council were taken as part of the constitutional machinery of the Bailiwick of Guernsey and of Sark for the approval and enactment of Laws in Sark, and that the fact that the decisions were taken by Ministers of the Crown who took into account the international obligations of the United Kingdom is irrelevant. It would be quite wrong for the approach in Quark to be revisited on an appeal (particularly with a panel of five) in which it does not arise, and in which it is not argued that Quark was wrongly decided and ought to be reconsidered."

    (e) The remedies available in the Bailiwick of Guernsey and Sark

  48. It was common ground that the Court of the Seneschal in Sark would have jurisdiction in respect of judicial review proceedings relating to the 2010 law. The defendants contended that the Royal Court of Guernsey would also have first instance jurisdiction. The claimants disputed this on the basis that, unless the claimants were to consent, the Royal Court would have no jurisdiction at first instance; the court of the Seneschal alone had unlimited first instance jurisdiction in all civil cases with a right of appeal to the Royal Court. The dispute between the parties was, in our view immaterial. A court within the Bailiwick of Guernsey would have first instance jurisdiction and the issue would in either eventuality be determined by the Royal Court in Guernsey and thereafter on appeal to the Privy Council.
  49. In proceedings relating to the 2010 law, the claimants would not be able to have the law "quashed" (any more than a claimant in the United Kingdom courts could seek to quash an Act of Parliament). They could seek to have the law read down pursuant to s.3(1) of the Guernsey Human Rights Law 2000. They could seek a declaration of incompatibility pursuant to s.4(2) of that Law in the Royal Court and in the Court of the Seneschal, though the court of the Seneschal could not do so when sitting as a criminal court.
  50. It was again common ground that the courts in the Bailiwick of Guernsey (the Royal Court of Guernsey and the Court of the Seneschal) are not UK courts, as the Bailiwick of Guernsey is not part of the UK. There is no authority that suggests that those courts would have jurisdiction to entertain the claim brought in these proceedings against the Secretary of State or the Committee. The claimants submitted that the courts of the Bailiwick would have no jurisdiction and the Secretary of State and the other defendants conceded it is unlikely that the courts enjoy such jurisdiction. The Secretary of State and the other defendants contended that the claimants could not impugn the lawfulness of the advice of the Secretary of State or the recommendation of the Committee, as they would have been exercising functions in connection with proceedings in an Island legislature with the result they were not acting as public authorities within s.6 of the Guernsey Human Rights Law 2000. They could not seek to quash the Order in Council as by s.17 it is primary legislation for the purposes of the Human Rights Law 2000.
  51. We should add a footnote in respect of the observation of Lord Rodger at paragraph 106 in Bancoult that, although the claim was brought in the courts of England and Wales, such a claim could be brought in the courts of Scotland as a court in the UK. The claimants, however, doubted whether their claim was within the jurisdiction of the courts of Scotland, because the Crown governed in right of the Duchy of Normandy, a link that long ante-dated the Act of Union between the Kingdom of England and the Kingdom of Scotland.
  52. (f) The jurisdiction of the courts of England and Wales to review any advice and recommendation of the Committee in relation to a project de loi

  53. It might be thought that the outcome contended for by the claimants delivers a rather surprising outcome in that the courts of England and Wales are in effect reviewing the final part of the legislative process of legislation passed within the Bailiwick of Guernsey where, as we have set out, the primacy of legislation must be respected by the courts of the Bailiwick and the remedy is a declaration of incompatibility. Because of the concessions made in Barclay No 1, the question as to whether Bancoult leads to that conclusion was never decided. The contentions of the claimants, if correct, lead therefore to the result that the courts of England and Wales and the Supreme Court of the United Kingdom have jurisdiction and power to quash the primary legislation of the Bailiwick, if it is non-compliant with the Convention, when the domestic courts of those jurisdictions, including the Privy Council as the final court of appeal, cannot do so.
  54. In Bancoult the litigation concerned the Chagos Archipelago in the Indian Ocean which had been ceded by France to Great Britain in the 19th century. By virtue of the British Indian Ocean Territory Order 1965 they were constituted a separate colony, known as BIOT in the litigation. The inhabitants of the Chagos Islands were compulsorily removed. The underlying reason was that Diego Garcia, the principal island in the archipelago, was required as a United States Air Force base. The colony had no legislature; rather any legislation was enacted by Order in Council on the advice of United Kingdom ministers. The effect of such legislation was to prohibit the islanders from entering Diego Garcia but allowed them to return to the outlying islands. In June 2004 the Government decided to reintroduce controls which had the effect of prohibiting the islanders from returning to any of the islands without a permit. Draft orders were laid before Her Majesty in Council who on the advice of ministers and in the exercise of her prerogative powers gave her formal assent to the Orders. The islanders sought to challenge the Orders in Council. The Secretary of State argued that the courts had no power to review the validity of an Order in Council legislating for a colony, because it was primary legislation. That argument was rejected by all five members of the House.
  55. It was common ground that the Order was made by Her Majesty in right of the United Kingdom (see paragraph 76 of the judgment of Lord Rodger). It was contended on behalf of the Secretary of State that the UK courts had no power to review the validity of an Order in Council legislating for a colony. The argument was rejected by Lord Hoffman on two bases – the Colonial Laws Validity Act 1865 and the reviewability of prerogative orders. In respect of the latter he said at paragraph 35:
  56. "I see no reason why prerogative legislation should not be subject to review on ordinary principles of legality, rationality and procedural impropriety in the same way as any other executive action. Mr Crow rightly pointed out that the Council of Civil Service Unions case was not concerned with the validity of a prerogative order but with an executive decision made pursuant to powers conferred by such an order. That is a ground upon which, if your Lordships were inclined to distinguish the case, it would be open to you to do so. But I see no reason for making such a distinction. On 21 February 2008 the Foreign Secretary told the House of Commons that, contrary to previous assurances, Diego Garcia had been used as a base for two extraordinary rendition flights in 2002 (Hansard (HC Debates), cols 547-548). There are allegations, which the US authorities have denied, that Diego Garcia or a ship in the waters around it have been used as a prison in which suspects have been tortured. The idea that such conduct on British territory, touching the honour of the United Kingdom, could be legitimated by executive fiat, is not something which I would find acceptable."
  57. Lord Bingham considered there was no prerogative power to make the Order, but if there was, then it was subject to judicial review. Lord Rodger agreed that the Order was subject to review at paragraph 105:
  58. "Therefore, like Lord Hoffmann, I see no reason in principle why, today, prerogative legislation, too, should not be subject to judicial review on ordinary principles of legality, rationality and procedural impropriety. Any challenge of that kind must, of course, be based on a ground that is justiciable."
  59. Lord Mance also agreed that the Order was reviewable as legislation made by the executive - see paragraph 141:
  60. "… the prerogative power of the Crown to legislate by order in council on the advice of Her Majesty's ministers in relation to a territory such as BIOT is subject to judicial review. Dicey observed in his Introduction to the Study of the Law of the Constitution (8th ed 1915) that "we may use the term 'prerogative' as equivalent to the discretionary authority of the executive" (p 421) and that "it applies …. also to that large and constantly increasing number of proceedings which, though carried out in the King's name, are in truth wholly the acts of the Ministry" (p 422). Into the latter category fall the making of legislative orders in council such as the BIOT Order 2004. I see no good reason why they should not be reviewable in the same way as other steps, administrative or legislative, by the executive, and every reason why they should be, on the familiar grounds of legality, rationality and procedural propriety, due weight being of course given to the executive's effective role as primary decision-maker. A recognition that a legislative order in council is invalid by a judgment given in proceedings such as the present directed against the Minister responsible for the making of the order no more involves the making of an impermissible order against the Sovereign than a successful challenge to any other prerogative act undertaken in Her name."
  61. It appears that the reasoning of each of the judges rested ultimately on the characterisation of the Order in Council as an act of the executive alone and not as part of a legislative process. As such, it could be seen as the residue of discretionary authority. As we have explained at paragraphs 6.ix) to 6.xiii) above, the Secretary of State, the Committee and the Privy Council are the last stage of the legislative process of legislation passed by a representative assembly in the Bailiwick with responsibility for legislation for its own legal system. The process leading to the Order in Council and the Order in Council has a very different character to that considered in Bancoult.
  62. Moreover, the Committee were advising Her Majesty in right of Guernsey (see paragraph 107 of the judgment of Lord Collins set out at paragraph 32 above); Bancoult was a case where the Order was made by the Crown in right of the UK (see paragraph 76 of the judgment of Lord Rodger), but this point was not taken in Barclay No 1 (see the decision of Wyn Williams J at paragraph 98) and counsel then was the counsel in Bancoult.
  63. The claimants pointed out that the Secretary of State and the Committee in discharging the responsibility of the United Kingdom for foreign relations and good governance in respect of the Bailiwicks were discharging executive functions. They were not accountable to the people of the Bailiwicks. There were therefore good reasons, given the particular constitutional relationship between the Bailiwicks and the United Kingdom, why the position was not distinguishable from that in Bancoult and the citizens of the Bailiwick should have a right to challenge the advice of the Secretary of State in England and Wales as no challenge could be brought in the Bailiwick. The events in relation to the Jersey fiscal legislation (to which we have referred at paragraph 26 above) were one illustration of the rationale for such a jurisdiction. Another was the desirability of knowing before legislation in the Bailiwicks came into effect whether the legislation was compliant with the Convention.
  64. There are two key facts. First, the ultimate relief sought by the claimants can be sought in the courts of the Bailiwick with an appeal to the Privy Council. Second, the nature of the legislative process in issue relates to the Bailiwick of Guernsey. We therefore see great force in the argument advanced by the Secretary of State that the proper court for the determination of the compatibility of the 2010 law with the Convention is a court of the Bailiwick of Guernsey.
  65. However, to accept that submission would require us to draw a distinction not drawn in Bancoult and to depart from the course followed in Barclay No 1. Although the course followed in Barclay No 1 was the result of a concession as to the effect of Bancoult, that concession was accepted and acted upon. We do not think in the circumstances it would therefore be right for us to decline jurisdiction on that basis and hold that proceedings should be brought in the courts of the Bailiwick – ether the court of the Seneschal or the Royal Court of Guernsey.
  66. In the circumstances, it is not necessary for us to consider whether the availability of alternative relief in Guernsey could only have been taken at the permission stage or whether we should regard as irrelevant the alternative relief available in the courts of the Bailiwick of Guernsey, on the basis that the courts in the Bailiwick are foreign courts.
  67. We therefore turn to consider the issue of whether the advice given was nonetheless not justiciable, as the advice related to an international treaty and was not within the principle set out in Launder.
  68. (g) Justiciability - the principle set out in Launder

  69. A treaty is outside the purview of the courts not only because it is made in the conduct of foreign relations which are a prerogative of the Crown but also because a treaty as a source of rights and obligations is irrelevant. It cannot be a source of rights and obligations because a treaty cannot alter domestic law without the intervention of Parliament; therefore what is contained in a treaty does not become part of domestic law until it has been incorporated into the law by legislation: see Rayner Lord Oliver at 500 B-C, 514G to 515D; Lord Templeman at 480 B-E.
  70. In accordance with this principle, although it was to be presumed that when Parliament legislated, it intended to legislate in conformity with the international obligations under the Convention, the courts would not, in the period prior to the 1998 Act, review a power given to the Executive on the basis that the exercise of that power had to be in conformity with the Convention. To have done so would have been to apply the Convention as part of domestic law when Parliament had not incorporated it: see R v Secretary of State for the Home Department ex parte Brind [1991] AC 690 at 748 (Lord Bridge). As Lord Ackner succinctly observed at (pages 761-2) requiring the Executive to have regard to the Convention in exercising a discretionary power would incorporate the Convention by the back door.
  71. Another example of the application of this principle was R v Lyons [2003] 1 AC 976. Jack Lyons and other defendants in what was known as the Guinness trial contended that their convictions were unsafe on the grounds that the Strasbourg court had held their interviews, admitted as evidence at their trial in 1990, had infringed the Article 6 right against self incrimination. In rejecting the contention, the House of Lords affirmed the principle that, as at the time the Convention enjoyed the status of a treaty, its provisions could not affect domestic law: see the judgment of Lord Hoffmann at paragraph 27 and 39. Lord Hoffmann again emphasised this principle at paragraph 53 of his judgment in Re McKerr [2004] 1 WLR 807.
  72. However, in Launder an exception was made to this general principle so that the courts could review the correctness of legal advice on the Convention, when not part of domestic law, in circumstances where the Executive had accepted that it was relevant to a decision that had to be made and had acted on advice given in relation to the Convention.
  73. In Launder the Home Secretary had in 1995 rejected the applicant's contention that it would be unjust, oppressive or wrong to extradite him to Hong Kong, after taking into account his rights under the Convention which were not then part of the domestic law of the UK. The applicant contended that the Home Secretary had misdirected himself on those rights. Lord Hope giving the sole substantial judgment said at page 867:
  74. "It is often said that, while the Convention may influence the common law, it does not bind the executive. This view was reflected in the observation by Sir Thomas Bingham M.R. in Regina v. Ministry of Defence, ex parte Smith [1996] QB 517, 558E that exercising an administrative discretion is not of itself a ground for impugning that exercise. That is so; but the whole context of the dialogue between the Secretary of State and the applicant in this case was the risk of an interference with the respondent's human rights. That in itself is a ground for subjecting the decisions to the most anxious scrutiny, in accordance with the principles laid down by this House in Regina v. Secretary of State for the Home Department, ex parte Bugdaycay [1987] A.C. 151, as Sir Thomas Bingham M.R. also recognised in Smith at p. 554H. Then there is the question whether judicial review proceedings can provide the applicant with an effective remedy, as article 13 requires where complaints are raised under the Convention in extradition and deportation cases: see Soering v. United Kingdom [1989] 11 E.H.H.R. 439; Vilvarajah v. United Kingdom [1991] 14 E.H.H.R. 248; D. v. United Kingdom, The Times, 12 May 1997. If the applicant is to have an effective remedy against a decision which is flawed because the decision-maker has misdirected himself on the Convention which he himself says he took into account, it must surely be right to examine the substance of the argument. The ordinary principles of judicial review permit this approach because it was to the rationality and legality of the decisions, and not to some independent remedy, that Mr. Vaughan directed his argument."
  75. Launder was followed in R v DPP (ex p Kebilene) [2000] AC 326. It was contended by the applicant that the DPP should, after the enactment of the Human Rights Act, but prior to it being brought into force, have exercised his discretion in authorising prosecution by taking into account the legal position on whether the section creating the offence was incompatible with Article 6.2 of the Convention. In giving the judgment of the Divisional Court on this issue, Lord Bingham explained that, although the ultimate decision on whether to give his consent to the prosecution was for the DPP, the DPP had by taking the advice of counsel on the effect of Article 6.2 made clear he wanted to know the correct position. Lord Bingham said (at page 341 D-E):
  76. "It is, therefore, as it seems to me, appropriate for this court to review the soundness of the legal advice on which the Director has made clear, publicly, he relied; for if the legal advice he relied on was unsound, he should in the public interest, have the opportunity to reconsider the confirmation of his consent on a sound legal basis."

    After stating that his approach was consistent with the passage in Launder we have set out at paragraph 53 above, Lord Bingham continued at 342 B-C:

    "In offering such guidance as it can on the true effect of the Convention, the court does not in my view usurp the legislative responsibility of Parliament nor the independent decision-making responsibility of the Director, so long as it leaves the final decision to him."

    In the appeal to the House of Lords Lord Steyn and Lord Hope expressly agreed with this: see 367E-F and 375F-H.

  77. A gloss was placed on Launder in R (Corner House Research) v Director of the Serious Fraud Office [2009] 1 AC 756 where the justiciability of the court interpreting of an OECD Convention was raised. One of the contentions raised by the claimant in challenging the decision of the Director of the Serious Fraud Office to discontinue investigations into corruption by BAe Systems Ltd in Saudi Arabia, was that the decision had been based on a wrong interpretation of Article 5 of the OECD Convention which the Director said he had taken into account. The Director contended that the issue was not justiciable as the court had no jurisdiction to interpret the OECD Convention or to apply it. Although the Divisional Court rejected the Director's contention and expressed its view on the interpretation of Article 5, the House of Lords decided the appeal on other grounds. Lord Bingham, however, expressed his view on justiciability. He analysed the argument as containing a number of steps the first of which was that it was open to the domestic courts to review the Director's self direction and the second of which was that the courts could and should interpret Article 5. He continued at paragraph 44:
  78. "In support of step (1) in this argument reliance was placed in particular on Ex p Launder and Ex p Kebilene. Both cases concerned decision-makers claiming to act consistently with the European Convention at a time when it had not been given effect in domestic law. The courts accepted the propriety of reviewing the compatibility with the Convention of the decisions in question. But there was in the first case no issue between the parties about the interpretation of the relevant articles of the Convention, and in the second there was a body of Convention jurisprudence on which the courts could draw in seeking to resolve the issue before it. Whether, in the event that there had been a live dispute on the meaning of an unincorporated provision on which there was no judicial authority, the courts would or should have undertaken the task of interpretation from scratch must be at least questionable. It would moreover be unfortunate if decision-makers were to be deterred from seeking to give effect to what they understand to be the international obligations of the UK by fear that their decisions might be held to be vitiated by an incorrect understanding."

    He declined to interpret Article 5. Lord Brown said at paragraph 67:

    "The critical question is not, as the respondents' arguments suggest, whether the Director's successor would make the same decision again once the Courts had publicly stated that this would involve a breach of the Convention; rather it is whether the Court should feel itself impelled to decide the true construction of article 5 in the first place. It simply cannot be the law that, provided only a public officer asserts that his decision accords with the state's international obligations, the courts will entertain a challenge to the decision based upon his arguable misunderstanding of that obligation and then itself decide the point of international law at issue. For the reasons I have sought to give it would certainly not be appropriate to do so in the present case."
  79. After referring to an article by Mr Sales QC (as he then was) and Ms Clement, Lord Brown concluded:
  80. "The article goes on to suggest that the Launder approach must indeed be subject to limitations, dependent perhaps upon "the intensity of judicial scrutiny judged appropriate in domestic law terms in the particular context". I have no doubt this is so and that the question will require further consideration on a future occasion. I have equally no doubt, however, that in this particular context the "tenable view" approach is the furthest the Court should go in examining the point of international law in question and, as I have already indicated, it is clear that the Director held at the very least a tenable view upon the meaning of article 5."
  81. Another gloss was placed on Launder in R (Gentle) v Prime Minister and others [2008] 1 AC 1356 where the applicants sought to establish, as part of an Article 2 duty to investigate the deaths of servicemen in Iraq, a duty to enquire into whether the Executive had taken reasonable steps to satisfy itself of the lawfulness of the invasion. Lord Hope pointed out that the context in which he had made the observation in Launder, which we have cited, was in
  82. "a case where the Secretary of State was dealing with the applicant's rights under domestic extradition law. He chose to do this by reference, among other things, to the Convention. If he misunderstood its provisions he was, according to the ordinary principles of domestic law, reviewable. Here the Attorney General was not dealing with rights or obligations in domestic law when he was considering what international law had to say about the legality of the invasion. The only question he was concerned with was whether the invasion was lawful in international law. That question as such is not, as [counsel for the claimant] accepts, reviewable in the domestic courts."
  83. The issue in this case does not relate to the question as to whether rights or obligations were created by a treaty under domestic law or whether the Executive had to act in conformity with a treaty. The court is not therefore being asked to give domestic effect to an obligation under the Convention. It is not therefore bringing the Convention in by the back door. Rayner, Lyons and McKerr are not directly in point.
  84. The principle set out by Lord Hope in the case permits, in our view, the review of a decision based upon the interpretation of the Convention (even at a time when it only has the status of a treaty) where a decision is impugned on the basis that the decision maker erred in law in the interpretation of the Convention. Although the correctness of the advice of the Secretary of State forms the basis of the challenge, the challenge is to the decision of the Committee on the grounds that it had misdirected itself in following the incorrect advice of the Secretary of Sate as to the interpretation of Article 6 of the Convention. The correctness of that advice can be determined by reference to the considerable body of authority to which we will refer when considering the substance of the contentions on Article 6. We therefore conclude that the challenge to the decision of the Committee is of the kind identified in Launder and Kebeline. The issue is therefore justiciable as it is within the principle stated by Lord Hope in Launder.
  85. There is a further consideration which supports that conclusion. It was accepted by the claimants that the defendants were not bound by the course taken by them in Barclay No 1. It was accepted before Wyn Williams J that the issue as to the compatibility of the 2008 Law with the Convention was justiciable in the courts of England and Wales. As we have set out, the applicability of the principle in Launder was accepted in the House of Lords. We have held, for the reasons we have given on the basis of the authorities as they presently stand, that the issue is justiciable.
  86. However, in the light of the observations of Lord Bingham and Lord Brown in Corner House to which we have referred at paragraphs 55 and 56 above, it must be open for consideration at the highest level, whether the principle in Launder ought to extend to the present claim, particularly given the issues as to the appropriate jurisdiction and the constitutional position of the Bailiwick which have been raised for the first time in this litigation.
  87. (h) The lack of reasons on the face of the Order in Council

  88. As the challenge is based on the advice given by the Secretary of State and as the reasons for the Committee's decision have been given as well as the broad scope of that advice, we do not consider that the fact that reasons were not on the face of the Order can make any difference. The court is in a position to consider the advice and the consequent decision of the Committee.
  89. III Are the provisions in the 2010 law relating to the Seneschal compatible with Article 6?

    (a) The grounds upon which the claimants contend that the 2010 law is incompatible with Article 6

  90. The claimants contended that four aspects of the 2010 law amending the 2008 law were incompatible with Article 6 of the Convention as either singly or together they resulted in the Seneschal not having or not being seen to have the requisite degree of impartiality and independence. The four aspects were the provisions for (1) appointment, (2) removal, (3) renewal after the age of 65 and (4) remuneration.
  91. (b) The underlying principles

  92. There is little doubt about the underlying principles.
  93. i) Article 6 requires a judge to be impartial and independent of the Executive and Legislative powers of the state as well as the parties to a case.

    ii) In determining whether there is that requisite degree of independence, regard must be had to the manner of appointment, the duration of the term of the office, the conditions of the office, the provisions for removability and the existence of guarantees against outside pressure. It must be shown that on an objective basis there is the appearance of independence and impartiality: see Campbell and Fell v UK (1984), 7 EHRR 165, De Cubber v Belgium (1984) 7 EHHR 326, Findlay v UK (1997) 24 EHRR 221, Morris v United Kingdom (2002) 34 EHHR 52, and Pohoska v Poland (appl no 333530/06, judgment of 10 January 2012).

    iii) As Lord Reed observed in Starrs v Procurator Fiscal (2000) 8 BHRC 1 at page 44, judicial independence can be threatened not only by interference by the Executive, but by a judge being influenced, consciously or unconsciously, by his hopes and fears as to his possible treatment by the Executive.

    "It is for that reason a judge must not be dependent on the Executive, however well the Executive may behave: independence connotes the absence of dependence…. The adequacy of judicial independence cannot appropriately be tested on the assumption that the Executive will always behave with restraint."

    iv) It is useful in determining the appearance of independence and impartiality to consider whether there is a legitimate fear that the judge might be influenced by considerations that had nothing to do with the nature of the case: see Valente v The Queen (1985) 24 DLR 161 (Supreme Court of Canada).

    v) It is also important to consider whether the judicial system is structured in such a way at the institutional level as to give rise "to a reasonable risk that the judge may not be impartial" see Lord Reed in Starrs at page 51.

  94. As a court must determine whether an objective observer would consider that there was an appearance of lack of independence or impartiality, it is necessary to take into account "the way the system is in fact operated": see Kearney v HM Advocate [2005] UKPC 1 at paragraphs 8 and 46 and Clarke v United Kingdom (2005, Appl 23695/02) at pages 12-13.
  95. (c) The provisions relating to appointment

  96. There can be no doubt that the way in which judges are appointed is central to establishing and maintaining a judiciary that is individually and institutionally independent and can be seen to be such. The judgment of the Strasbourg Court in Urban v Poland (App No 23614/08, 30 November 2010) illustrates the importance of the provisions on appointment and the way they operate.
  97. The method of appointment of the Seneschal set out in the 2008 law was amended by the 2010 law (as we have mentioned at paragraph 12.ii) and 12.iii) above) by inserting a new s.5A into the 2008 law in the following terms:
  98. "(1) The Seigneur shall from time to time appoint a committee ("the Appointments Committee") for the purpose of appointing the Seneschal and the Deputy Seneschal.
    (2) No person who is a Conseiller may be a member of the Appointments Committee.
    (3) The Appointments Committee shall comprise two members."

    and by a new s.6(1):

    "The Seneschal, who,
    (a) shall be a person of full age and ordinarily resident in Sark
    (b) shall not be a Conseiller, nor the holder of any of the offices mentioned in sections 49-55
    shall be appointed by the Appointments Committee, with the approval of the Lieutenant Governor."
  99. It was contended by the claimants that these provisions contain none of the guarantees necessary to ensure compatibility with Article 6. It was submitted that the Seigneur could appoint anyone he chose to the Appointments Committee as no qualifications for appointment were set out. He could therefore appoint persons who would act on his bidding. The sole check on the power of the Appointments Committee was the requirement for approval by the Lieutenant Governor, but that was no more than a formality.
  100. There would be some force in this contention if regard was simply had to the terms of the amendments made by the 2010 law to provide for an Appointments Committee. However it is clear from the way in which the Appointments Committee has been established and the appointment made (as we described in paragraphs 17-20 above) that the appointment of the present Seneschal was made in circumstances that were compatible with Article 6. There is nothing that casts any real doubt on the independence, ability and experience of the two persons who constituted the Appointments Committee – one who had been Attorney General of Guernsey and one a Circuit Judge in England and Wales – to select a competent person independently. It must be recalled that Sark is a community of 600 people. It is not in our judgment necessary to have all the formal procedures and requirements that would plainly be necessary in the more usual jurisdiction: see for example the type of system set out in the Council of Europe's Recommendation 2010 (12). 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 has been made.
  101. For the future, the important feature of the provisions is that they require the approval of the Lieutenant Governor to the appointment. Although an appointee of the Crown, he is not part of the Executive and Legislative powers of Sark which is the relevant legislature and Executive in relation to the independence and impartiality of the Seneschal in Sark. Moreover the process of approval by the Lieutenant Governor is not a formality. That might have been the case if, as the representative of the Crown as the head of state, he formally made the appointment. However, by providing for the Lieutenant Governor's approval to the appointment made by the Appointments Committee, the 2010 amendment to the 2008 law was placing an express obligation on the Lieutenant Governor. That obligation must include at least a requirement that the Lieutenant Governor satisfy himself by due and proper enquiry not only that the process for appointment has been carried out by persons on the Appointments Committee properly qualified to make the appointment independently of the Seigneur, but also that the person proposed for appointment has the experience and capacity to satisfy the requirements of Article 6 when exercising the jurisdiction of the judge of Sark. The fact that the Lieutenant Governor has in the past always approved an appointment does not mean that the Lieutenant Governor has not carefully examined what has happened. Certainly, in the light of these proceedings and the view we have expressed in this judgment as to what is required of the Lieutenant Governor, it is inconceivable that he will not do so in the future. In our view this power provides the necessary safeguard to ensure a proper appointment compliant with Article 6 is made.
  102. (d) The provisions relating to removal

  103. There can again be no doubt that the circumstances in which a judge can be removed must be strictly circumscribed as security of tenure and irremovability, save on proper grounds, are essential elements to protect the individual and institutional independence of judges.
  104. The provision as to removal (to which we have briefly referred at paragraph 12.iii) above) was set out in s.6(3):
  105. "The Seneschal shall not be removable from office prior to his retirement in accordance with subsection (2), except at his own request in writing addressed to the Seigneur or, for good cause, by the direction of the Lieutenant Governor upon the recommendation of the Seigneur."
  106. It was contended that this provision did not contain sufficient safeguards. First, removal can only be made at the instance of the Seigneur; no one else can initiate the procedure, if concerned about the Seneschal's competence. Second, there is no provision for the Seneschal to be heard before he is removed; there is no tribunal at which the reasons for removal can be considered. Third, "good cause" is not sufficiently defined. The possibility of a judicial review would not be sufficient protection as there would remain an actual or perceived risk of the Seneschal not acting impartially and independently so as to avoid the risk of the initiation of the procedure to remove the Seneschal.
  107. The Strasbourg Court has in many cases set out what it considered is required. In Brudnicka v Poland (App No 54723/00, judgment of 3 March 2005), the court held that provisions which permitted removal of members of the maritime chambers by the Minister of Justice had the consequence that the chambers could not be regarded as impartial within Article 6. In Volokov v Ukraine (App No 21722/11, judgment 9 January 2013) the court examined the process of disciplining a senior judge in Ukraine and found that structural deficiencies in the composition of the bodies and its procedures violated the principles of independence and impartiality required by article 6. Moreover Lord Prosser made a powerful observation in Starrs at page 29 to the effect that what constitutes sufficient cause cannot be left to the discretion of a person upon whom the judge should not be dependent.
  108. However, just as in the case of the appointments system for the Seneschal, it must be borne in mind that setting out in legislation or in an Ordinance a detailed procedure with independent checks and balances, which the case law shows is now undoubtedly required in usual jurisdictions, may not be required in the small community of Sark. It will be sufficient that it is clear that, if and when the question of removal arises, the Seneschal can only be removed in a way compliant with Article 6. As Lord Bingham said in Kearney at paragraph 7:
  109. "The possibility of removal of a temporary judge for good cause, not fully considered in argument before the Board, does not throw doubt on the compliance of his office with Article 6. That article is not infringed by the possibility of removing a judge shown to be unfit to hold office."
  110. In our view compliance with Article 6 is ensured by the provision that removal can only be by direction of the Lieutenant Governor. As we have set out, he is independent of the relevant Legislative and Executive powers in Sark. He 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. Those safeguards would involve a procedure, adapted to the circumstances which arose, which required first making available the allegations to the Seneschal, then proving the allegation by a process that was fair and proportionate and enabling the Seneschal to respond. Such a process would have to culminate in a reasoned decision setting out the findings of fact and why they constituted good grounds for removal.
  111. The Lieutenant Governor would be bound as a matter of law to establish such a process. As an appointee of the Crown wholly independent of the Executive and Legislative powers in Sark, he would have to follow the minimum requirements as to what is required by common law and Article 6 as set out in this judgment. Given the obligation placed on the Lieutenant Governor, we cannot conceive that the failure to specify such a process in the legislation could give rise to any objectively based fears that the Seneschal might be at risk of being influenced by any improper attempt at removing him.
  112. (e) The provisions in relation to renewal of appointment after the age of 65

  113. As we have mentioned at paragraph 12.iii) above, s.6(2) makes provision as to what is to happen when the Seneschal reaches the age of 65:
  114. "The Seneschal shall retire from office upon attaining the age of 65, but may be re-appointed by the Appointments Committee for a period or 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."
  115. It is contended by the claimants that in effect the appointment of the Seneschal is until the age of 75 with a risk of non-renewal. It was submitted that it therefore gave rise to a real risk that in the period leading up to renewal at 65 and at 70, the judgment of the Seneschal might be affected by the possibility of non renewal, given that at the age of 65 or 70, he might find it difficult to find alternative employment. It was also contended that there was no objective basis for a system for re-appointment at these ages.
  116. We can understand why the decision has been taken by the Chief Pleas as the legislature of Sark that the Seneschal's appointment should be reviewed at these ages rather than a decision to adopt a provision entitling a Seneschal to continue till 75, subject to removal on the grounds that he was unfit to discharge his functions. The legislature were, in our view, entitled to determine that the process it has adopted is better for the small community of Sark than a process involving a decision on fitness of the Seneschal to continue in office. Such a process would undermine confidence in the Seneschal once initiated. Provided that the way in which the re-appointment would in practice be made is properly compliant with Article 6, we cannot see any objection to the legislative decision.
  117. However, the provision for re-appointment is significantly different to that for the original appointment. The Lieutenant Governor has no role at all. The re-appointment is by the Appointments Committee without any reference to him. The process will depend on the selection by the Seigneur of independent and suitably qualified members of the Appointments Committee and that Committee carrying out its task independently. Although this is therefore a provision that causes us some concern because of the unexplained absence of a role for the Lieutenant Governor, it could not on its own cause us to conclude that it violated the principles of independence and impartiality required by Article 6.
  118. (f) The provisions relating to remuneration

  119. There can be little doubt that protection of the judiciary against an arbitrary reduction of their salaries by the Legislative or the Executive powers is an essential ingredient of judicial independence. We stress the term "arbitrary", for the issue before us relates solely to an unqualified power which potentially could be exercised in a wholly arbitrary manner for any reason. We are not considering whether judicial salaries can be reduced, as the defendants contended is permissible, if the reduction was part of an overall reduction of the remuneration of all others remunerated out of public revenue by the state.
  120. That this case is solely concerned with an arbitrary reduction is because, as we have mentioned at paragraph 12.iii) above, the amendment contained in the new s.6(4) law gives untrammelled power in respect of the remuneration of the Seneschal:
  121. "The other terms and conditions of the office of Seneschal, including the payment of remuneration out of public funds, shall be determined by the Chief Pleas upon the recommendation of the General Purposes and Advisory Committee in consultation with the Finance and Commerce Committee."
  122. The provision therefore entitles the Chief Pleas to alter from time to time the terms of the Seneschal's office including his remuneration. On its face it therefore enables the Chief Pleas to make an arbitrary reduction in the pay of the Seneschal.
  123. It is contended by the claimants that this power therefore is contrary to the principles of independence and impartiality required by article 6. They also point to the fact there is no safeguard. As set out at paragraph 18 above, the mechanism used by the Chief Pleas to determine the remuneration of the Seneschal is a simple resolution. It does not involve legislation by way of Projet de Loi or Ordinance. There is, significantly, no role for the Lieutenant Governor.
  124. It cannot be disputed that the section gives the Chief Pleas power to determine the remuneration of the Seneschal in a manner that can affect the Seneschal alone. Moreover there is nothing to prevent the power being exercised in an arbitrary manner to reduce his salary. Unlike the provision as enacted originally in the 2008 law, the Lieutenant Governor has no role. There is nothing in the way the system has so far operated that would show that an arbitrary reduction might never be made, as the provision has only been used once.
  125. The principal answer of the defendants is reliance on the Guernsey Human Rights Act. They contend that the General Purposes and Advisory Committee is a public authority for the purposes of the Guernsey Human Rights Law 2000; as the Chief Pleas would be acting in its executive capacity, it would also be a public authority. Both bodies had therefore to act compatibly with Article 6 in relation to the Seneschal's remuneration. Any attempt therefore to reduce the Seneschal's remuneration in a manner incompatible with Article 6 would be unlawful and be capable of judicial review in his own court or in the Royal Court of Guernsey.
  126. The response of the claimants was to say that the existence of a potential challenge to a reduction in the Seneschal's remuneration would not dispel the objective and subjective concerns as to independence. Moreover s.6(3) of the Guernsey Human Rights Act excluded from the definition of a public authority an Island legislature (defined to include the Chief Pleas) or a person exercising functions in connection with proceedings in an Island legislature; the resolution setting the remuneration of the Seneschal would probably be proceedings in the legislature and therefore no challenge could be made.
  127. In our view, what is critical is whether there is an objective perception of the risk of pressure on the Seneschal by reason of the possibility of the Chief Pleas arbitrarily reducing his remuneration. We consider there is. There is first a substantial argument that the resolution of the Chief Pleas in setting the remuneration is a proceeding in the legislature; judicial review would not therefore be perceived as providing the necessary protection against arbitrariness. Second the existence of a duty under the Guernsey Human Rights Act not to reduce the remuneration in a manner incompatible with Article 6 would not in our view change the perception. The reality is that the objective public perception of the obligation of a legislative body to adhere to obligations under the Convention is very different to the perception of the adherence of the Lieutenant Governor to his obligations as the representative of the Crown.
  128. The provision with its unqualified power to make a reduction in the remuneration is therefore open to arbitrary use. Consequently it is necessary to consider whether this provision on its own would violate the principles of impartiality and independence required under Article 6.
  129. In assessing whether it is we consider we should take into account first the long standing nature of the central importance of protecting the judiciary as an institution and a judge as an individual from an arbitrary reduction of their salary by the Executive or legislature. That has been the case in England and Wales since the Act of Settlement 1701 (12 & 13 W. III. C.2).
  130. Second, we were urged by the claimants to take account of international materials; we were urged to follow the example of the Strasbourg court which has used international instruments as interpretative aids to ascertain the ingredients of judicial independence for the purposes of Article 6. For example, in Harabin v. Slovakia ...App. No. 58688/1 judgment of 20 November 2012) the Third Section considered a large number of instruments as relevant in its consideration of judicial independence (see paragraphs 104 -110).
  131. We accept that it is clear from a large number of international instruments that there should be no arbitrary reduction of judicial salaries: see: Principle 11 of the United Nations Basic Principles on the Independence of the Judiciary (1985), Principle 16 of the Draft Universal Declaration on the Independence of Justice (the Singhvi Declaration) (1989) adopted by the United Nations Commission on Human Rights in 1989 by Resolution 1989/32; Principle I. 2. a. ii of the Council of Europe Recommendation No. R (94) 12 of the Committee of Ministers to Member States on the Independence, Efficiency and Role of Judges adopted by the Committee of Ministers on 13 October 1994; Paragraph 54 of the revision to Recommendation R 94 – Recommendation 2010 (12); Principle 31 of the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region (1995) adopted at the 6th Conference of Chief Justices of Asia and the Pacific; Principle 6.1 of The European Charter on the Statute for Judges (1998) adopted by the participants at the multilateral meeting on the statute for judges in Europe, organised by the Council of Europe, between 8-10 July 1998; Principle 4.2 of The Burgh House Principles on the Independence of the International Judiciary issued by the Study Group of the International Law Association on the Practice and Procedure of International Courts and Tribunals, in association with the Project on International Courts and Tribunals. Similar observations have been made in Commonwealth documents: see the Latimer House Guidelines for the Commonwealth (1998) adopted by representatives of the Commonwealth Parliamentary Association, the Commonwealth Magistrates' and Judges' Association, the Commonwealth Lawyers Association and the Commonwealth Legal Education Association meeting at Latimer House in the United Kingdom in June 1998; and the Commonwealth Principles on the Accountability of and the Relationship Between the Three Branches of Government (2003) as agreed by Law Ministers and endorsed by the Commonwealth Heads of Government Meeting, Abuja, Nigeria, 2003. All of these instruments speak with one voice. An essential component of judicial independence is legal protection against arbitrary reduction in the remuneration of a judge.
  132. Third, as we have set out, it is important to look at the position in Sark itself. In ascertaining whether there has been a violation of the principles required by Article 6 as to appointment and removal we have had significant regard to the fact that Sark is a very small community. In adopting the same approach to the significance of the power to reduce the salary of the Seneschal, we have little doubt that an objective observer would see the Seneschal as vulnerable to pressure from the members of the Chief Pleas. That pressure could, for example, arise in a matter where the Seneschal had to make a decision which the law appeared to require but which the majority of the community strenuously opposed. That would not be an easy position for any judge in a very small community. It is essential therefore that the Seneschal is perceived to be under no pressure or influence from the majority in the community through the use by the Chief Pleas of its unfettered power to reduce the Seneschal's remuneration.
  133. Fourth, in assessing that perception, no objective observer could fail to have regard to the fact that the Chief Pleas decided to amend the legislation in a manner that gave them unfettered power as they removed the role of the Lieutenant Governor. That role, as we have already explained, acts as a very significant check on the power of the Executive and legislature of Sark in other respects in relation to the office of Seneschal. It is, in our view, highly significant to the perception of the risk of an arbitrary exercise of power that the Chief Pleas chose to remove the one check that could have prevented it.
  134. (g) Conclusion

  135. In our view protecting the independence of the Seneschal from such pressures in the 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. We therefore consider that this provision on its own is sufficient to constitute a violation of Article 6.
  136. We therefore propose to grant the claimants a declaration that the decision of the Committee recommending approval of the provisions of the 2010 law amending the 2008 law was an unlawful decision, as in respect of the remuneration of the office of the Seneschal, the law was incompatible with Article 6 of the Convention.
  137. We would conclude by observing that it is clear from the terms of this judgment that the incompatibility can be cured by an appropriate amendment to the law to restore to the Lieutenant Governor an effective power over remuneration.


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/1183.html