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

25 October 2014 by David Hart KC

R (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.

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• Chagossians: Wikileaked cable admissible after all
• Barclay brothers question independence of Sark’s Seigneurs and Seneschals
• Beyond Sark – the implications of the Barclay case – Mark Elliott