Barclay bros duck out – leaving Supreme Court to sort out the constitutional problem

25 October 2014 by

sark aerialR (ota) Sir David Barclay and Sir Frederick Barclay v Secretary of State for Justice and Lord Chancellor, The Committee for the Affairs of Jersey and Guernsey and Her Majesty’s Privy Council [2014] UKSC 54 – read judgment

 The Supreme Court has just ruled on a case which appeared before the Administrative Court on the judicial workings of Sark, and the power of the ruling body to alter the pay of the local judge (known as”Seneschal”). The Administrative Court had thought this was potentially open to arbitrary use and therefore incompatible with Article 6 of the Human Rights Convention – read judgment and Rosalind English’s post here.

But things took a different turn in the Supreme Court. For reasons unexplained, the Barclay brothers (who own these island just off Sark) dropped out of the case, and none of the remaining parties sought to uphold the judgment of the Administrative Court. The Article 6(1) point was not adjudicated upon, and the case became a constitutional one. The Channel Islands are not part of the UK, and have their own legislatures, though they act internationally by the UK Government.

In those circumstances – how should a UK Court go about reviewing the London approach to reviewing a measure put forward by an independent legislature?

The Barclay brothers last challenged the independence of Sark’s governing and judicial bodies in successful  judicial review proceedings in 2009. This time they sought judicial review of the Order in Council approving the new provisions under the Reform (Sark) (Amendment) (No.2) Law 2010, which had been brought in response to the 2009 case.

The current problem, as the Supreme Court saw it, was that anything which the Supreme Court (reviewing a London decision) said about the problem risked trampling what the Guernsey/Sark courts might think about the same problem. Both are subject to versions of the same laws that tie them into the ECHR. So it was a perfect parallel to the federal/state debate which underlies a lot of US litigation.

Of more general interest is a point made by the Channel Island interveners, They pointed out that issues of compatibility with Convention rights often involve consideration of whether the legislation in question has struck a fair balance between the protection of individual rights and the general interests of the community.

Hence, as the Supreme Court said

In cases such as Lautsi v Italy(2012) 54 EHRR 3 [the Italian crucifix case] and SAS v France [the niqab/burqas case]…. Strasbourg has shown increasing respect for the particular national context and cultural traditions where interferences with qualified rights are concerned. In cases such as Al-Khawaja and Tahery v United Kingdom(2012) 54 EHRR 23 (Grand Chamber), Strasbourg has been sensitive to national concepts of due process when considering the requirements of article 6.

So it concluded that local Guernsey/Sark courts are “infinitely better placed to assess”  whether a measure is “necessary in a democratic society” or whether a court would lack the required independence and impartiality. And the very “small world” problem about the politics/judiciary/executive in these islands did not phase the Supreme Court. If things went wrong, the ultimate safeguard lies with the Judicial Committee of the Privy Council.

But the SC was faced with a more fundamental argument as to jurisdiction. The UK said that no challenge could lie to an Order in Council – as a legislative act. The SC did not go that far. It looked at the Bancoult case (No 2) (concerning the Chagossians) where there was a challenge to the validity of those Orders: [2008] UKHL 61[2009] 1 AC 453. Bancoult decided that the Orders in Council were amenable to judicial review.  Lord Hoffmann could “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”. The principle of the sovereignty of Parliament was “founded upon the unique authority Parliament derives from its representative character”. The exercise of prerogative power by the executive lacked this quality (para 35). Lord Bingham simply observed that it “is for the courts to inquire into whether a particular prerogative power exists or not and, if it does exist, into its extent” (para 69). Lord Rodger expressly agreed with Lord Hoffmann on this point (para 105), as did Lord Carswell (para 122), and Lord Mance, who could see no good reason why the making of legislative Orders in Council “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” (para 141).

So Orders in Council can be reviewed, as a matter of principle – but, as we have seen, in limited circumstances.

But advocates for the UK said that

Bancoult concerned a colony which had no legislature other than the Commissioner whose powers were conferred by the very Orders under attack. There was no semblance of a representative or democratic legislature. The Orders were the act of the UK executive alone. By contrast, the Order in question here was the last stage in the process of passing legislation by an established and representative legislature. Sark has a functioning legislature, as well as its own functioning system of laws and its own courts.

They added that domestic courts have no more power to interfere in this process than they have to interfere with the process of giving Royal Assent to the Acts of the UK Parliament.

The SC was not willing to go that far. By contrast,  it thought that it is the clear responsibility of the United Kingdom government in international law to ensure that the Islands comply with such international obligations as apply to them. So it did not bowl out this claim on jurisdictional grounds. But it was, as we have seen, unwilling to intervene in circumstances where local courts were better placed to say their piece.

Sign up to free human rights updates by email, Facebook, Twitter or RSS


Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV Housing HRLA human rights Human Rights Act human rights conventions human rights damages Human Rights Day human rights decisions human rights news Human Rights Watch Huntington's Disease immigration Immigration/Extradition immunity India Indonesia Infrastructure Planning Committee Inhuman and degrading treatment injunction Inquest Inquests insurance intelligence services act intercept evidence interception interim remedies international international criminal court international law international treaty obligations internet internet service providers internship inuit investigation investigative duty Iran Iranian nuclear program Iraq Iraq War Ireland islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v UK Ken Clarke Kerry McCarthy Kettling Kings College koran burning Labour Lady Hale LASPO Law Pod UK Law Society of Scotland legal aid legal aid cuts legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberty library closures Libya licence conditions life sentence lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome London Legal Walk London Probation Trust Lord Bingham Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Taylor luftur rahman MAGA Magna Carta Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation Maria Gallastegui marriage material support maternity pay Matthew Woods Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical negligence medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental illness MGN v UK michael gove Midwives migrant crisis military Milly Dowler Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder music Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience news new Supreme Court President NHS NHS Risk Register Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London Offensive Speech oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden paramountcy principle parental rights parenthood parliamentary expenses parliamentary expenses scandal Parliament square parole board pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution Personal Injury personality rights perversity PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning system plebgate POCA podcast points Poland Police police investigations police liability police powers police state police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope portal possession proceedings post office power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radicalisation Radmacher Ramsgate rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Sports Standing starvation statelessness stem cells stop and search Strasbourg sumption super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: