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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  EWHC 1183 (Admin) (09 May 2013)
Cite as:  1 WLR 415,  WLR 415,  WLR(D) 290,  EWHC 1183 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE BURNETT
| The Queen on the Application of
Sir David Barclay
Sir Frederick Barclay
|- and -
|Secretary of State for Justice and Lord Chancellor
The Committee for the Affairs of Jersey and Guernsey
Her Majesty's Privy Council
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Mr James Eadie QC and Ben Hooper (instructed by Treasury Solicitor) for the Defendants
Hearing dates: 6 and 7 February 2013
Crown Copyright ©
President of the Queen's Bench Division:
This is the judgment of the court.
I The factual Background
(a) The constitutional relationship of Sark to the United Kingdom and to the Crown
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  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
(c) The Reform (Sark) Law 2008
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
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.
(e) The present proceedings
(f ) The appointment of the new Seneschal and his remuneration
II Jurisdiction and Justiciability
(a) The two issues
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
(c) The submissions of the defendants
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  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.
(d) Barclay No 1
"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).
"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  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)  1 AC 453, para 35 (Lord Hoffmann) and para 105 (Lord Rodger of Earlsferry)."
"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
(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
"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."
"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."
"… 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."
(g) Justiciability - the principle set out in Launder
"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  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  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  11 E.H.H.R. 439; Vilvarajah v. United Kingdom  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."
"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.
"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."
"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."
"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."
(h) The lack of reasons on the face of the Order in Council
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
(b) The underlying principles
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.
(c) The provisions relating to appointment
"(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."
(d) The provisions relating to removal
"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."
"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."
(e) The provisions in relation to renewal of appointment after the age of 65
"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."
(f) The provisions relating to remuneration
"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."