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United Kingdom Supreme Court
You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Barclay & Ors, R (on the application of) v Secretary of State for Justice & Ors (Rev 1)  UKSC 9 (01 December 2009)
Cite as:  AC 464,  UKHRR 86,  UKSC 9,  3 WLR 1270,  1 AC 464,  HRLR 10
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 UKSC 9
On appeal from:  EWCA Civ 1319
R (on the application of Barclay and others) (Appellants) v Secretary of State for Justice and others (Respondents)
Lord Hope, Deputy President
JUDGMENT GIVEN ON
1 December 2009
Heard on 15 and 16 July 2009
|Appellants (First & Second)
Lord Pannick QC
James Dingemans QC
(Instructed by Withers LLP) (UK)
(Instructed by Ozannes Advocates) (Guernsey)
Jonathan Crow QC
(Instructed by Treasury Solicitors)
|Appellant (Third) in person
The right to free elections
"… the right of self-government – which in developed society means government by persons freely chosen by and accountable to the electors – is in itself an expression and a condition of freedom. No individual … is free if he is governed against his will, that is, if the persons who exercise authority are not chosen by and accountable to the community at large." (Lauterpacht, An International Bill of the Rights of Man (1945), 135)
"Without an effective guarantee of these political rights of freedom, personal freedom and equality before the law must be, at best, precarious; at worst they may be meaningless … The insistence on an International Bill of Rights and the proclamation of the enthronement rights of man as a major purpose of the Second World War were prompted by the experience of dictatorships the essence of which was the denial of the political right of freedom. … There is no intrinsic reason why the right to free, secret and periodic elections should not be … recognised by law and declared enforceable." (Lauterpacht, International Law and Human Rights (1950), 281-2)
"Democracy is without doubt a fundamental feature of the European public order ... The Preamble goes on to affirm that European countries have a common heritage of political traditions, ideals, freedom and the rule of law. The Court has observed that in that common heritage are to be found the underlying values of the Convention; it has pointed out several times that the Convention was designed to maintain and promote the ideals and values of a democratic society".
"Right to free elections
The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."
Background to the appeal
The Channel Islands
The European Convention on Human Rights and Sark
Legislation in Sark
The Reform (Sark) Law 1951 ("the 1951 Law")
The Reform Law
The Chief Pleas
"(1) Subject to subsections (2) and (3), the Seigneur may, during any meeting of the Chief Pleas at which an Ordinance is made, veto any Ordinance made at that meeting.
(2) Where an Ordinance has been vetoed pursuant to subsection (1), it shall not be registered but shall again be laid before the Chief Pleas not earlier than 10 days, and not later than 21 days, after the meeting at which it was made.
(3) Where an Ordinance is laid before the Chief Pleas pursuant to subsection (2), the Chief Pleas may either-
(a) confirm the Ordinance, whereupon the veto shall cease to be operative and the Ordinance shall take effect from the date of its registration, or otherwise in accordance with its provisions, as if it had not been vetoed; or
(b) refuse to confirm the Ordinance, whereupon it shall not be registered and shall not take effect".
Seneschal's procedural powers
The proceedings: jurisdiction
The judgments below
The issues on appeal
Article 3 of the First Protocol
"The Convention institutions have had fewer occasions to deal with an alleged violation of an individual's right to stand as a candidate for election, i.e, the so-called 'passive' aspect of the rights under Article 3 of Protocol No. 1. In this regard the Court has emphasised that the Contracting States enjoy considerable latitude in establishing constitutional rules on the status of members of parliament, including criteria governing eligibility to stand for election. Although they have a common origin in the need to ensure both the independence of elected representatives and the freedom of choice of electors, these criteria vary in accordance with the historical and political factors specific to each State. The multiplicity of situations provided for in the constitutions and electoral legislation of numerous member States of the Council of Europe shows the diversity of possible approaches in this area. Therefore, for the purposes of applying Article 3, any electoral legislation must be assessed in the light of the political evolution of the country concerned."
"I regret that I remain opposed to the retention by the Seigneur of any power of veto. ... In my opinion it is simply unacceptable in the 21st century for an unelected and unappointed citizen, whatever his civic role, or whatever his rank or position in Sark society, to be able to veto legislation passed by the (soon to be more democratically constituted) Chief Pleas, irrespective of whether that veto is absolute or limited. ... The Seigneur has informed me that he has no strong feelings on the Seigneurial veto. He writes: 'If it is a possibility that it might cause problems in the future then I am quite happy that it should be abolished'
The right to stand for election
Articles 14 and 16 of the Convention
"The Court further observes that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and the Protocols, since it protects individuals, placed in similar situations, from any discrimination in the enjoyment of the rights set forth in those other provisions. Where a substantive Article of the Convention has been invoked, both on its own and together with Article 14, and a separate breach has been found of the substantive Article, it is not generally necessary for the Court to consider the case under Article 14 also, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case."
The applicability of the Human Rights Act 1998
"The Human Rights Act is a United Kingdom statute. The Act is expressed to apply to Northern Ireland: section 22(6). It is not expressed to apply elsewhere in any relevant respect. What, then, of Convention obligations assumed by the United Kingdom in respect of its overseas territories by making a declaration under article 56? In my view the rights brought home by the Act do not include Convention rights arising from these extended obligations assumed by the United Kingdom in respect of its overseas territories. I can see no warrant for interpreting the Act as having such an extended territorial reach. If the United Kingdom notifies the Secretary General of the European Council that the Convention shall apply to one of its overseas territories, the United Kingdom thenceforth assumes in respect of that territory a treaty obligation in respect of the rights and freedoms set out in the Convention. But such a notification does not extend the reach of sections 6 and 7 of the Act. The position is the same in respect of protocols"
"... there is a distinction between rights arising under the Convention and rights created by the Act by reference to the Convention. A plain illustration of this arises from the temporal limitations imposed by the Act ... Another illustration is the Act's non-applicability in article 56 cases. Consider R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs ... Even had the UK extended article 1 of the First Protocol to [South Georgia and the South Sandwich Islands], no claim would have been available against the Secretary of State under the Act although the UK would clearly have been liable internationally for any breach. It is for the dependent territory's own legislation to give effect to Convention rights, just as for Jersey, Guernsey and the Isle of Man."