R (on the application of Barclay & Anor) v Secretary of State for Justice & Ors [2014] UKSC 54

The Barclay brothers challenged an Order in Council granting Royal Assent to Sark's 2010 Reform Law, arguing it breached Article 6 ECHR regarding the Seneschal's remuneration. The Supreme Court held that although English courts had jurisdiction, challenges to Channel Islands legislation on Convention grounds should be brought in Island courts.

Facts

The appeal concerned an Order in Council of 12 October 2011 granting Royal Assent to the Reform (Sark) (Amendment) (No 2) Law 2010, passed by Sark’s legislature, the Chief Pleas. The 2010 Reform Law was enacted following the Court of Appeal’s decision in Barclay (No 1), which had declared that the Seneschal’s dual role as chief judge and President of the Chief Pleas breached Article 6 ECHR. The 2010 Law removed the Seneschal from the Chief Pleas and created new provisions governing his appointment, removal, renewal and remuneration.

Sir David and Sir Frederick Barclay challenged the provisions in the Administrative Court, which held that the arrangements for the Seneschal’s remuneration (determined by the Chief Pleas) were incompatible with Article 6, because in a small community the Seneschal could be perceived as vulnerable to pressure. A declaration was granted that the Privy Council Committee’s decision to recommend approval was unlawful. Although the Barclays withdrew, the Supreme Court proceeded with the assistance of advocates to the court and interveners (the Attorney General of Jersey and the States of Guernsey) given the constitutional importance of the issues.

Issues

Three issues arose: (i) whether the courts of England and Wales have jurisdiction to review an Order in Council granting Royal Assent to Channel Islands legislation; (ii) if so, whether that jurisdiction should be exercised where the challenge concerns compatibility with the European Convention on Human Rights; and (iii) subsidiary issues concerning justiciability of government legal advice on international treaties and Article 6 compatibility. The Supreme Court heard only the jurisdictional questions.

Constitutional Background

Lady Hale extensively examined the constitutional relationship between the Channel Islands, the Crown and the United Kingdom. The Bailiwicks of Jersey and Guernsey are Crown Dependencies, not part of the UK, linked to the Crown through the person of the Sovereign. The UK is responsible for their international relations and defence. UK Parliament may legislate for the Islands but by convention does not do so on domestic matters without consent. Royal Assent to Island legislation is given by Order in Council following consideration by the Privy Council Committee for the Affairs of Jersey and Guernsey.

Arguments

The appellants and interveners argued that: (i) English courts had no jurisdiction to review such Orders in Council; (ii) alternatively, any Convention challenge should be brought in Island courts under the Human Rights (Bailiwick of Guernsey) Law 2000; and (iii) the case was distinguishable from Bancoult (No 2) because Sark had a functioning representative legislature and courts, unlike the BIOT.

The advocates to the court submitted that the appellants were advising Her Majesty both in right of the Bailiwick and in right of the United Kingdom, given the UK’s continuing responsibility for the Islands’ international relations, and were legally accountable to UK courts.

Judgment

Exercise of jurisdiction

Lady Hale (with whom Lord Neuberger, Lord Mance, Lord Reed and Lord Clarke agreed) addressed the question of whether jurisdiction should be exercised before whether it existed. The Human Rights (Bailiwick of Guernsey) Law 2000 closely mirrors the UK’s Human Rights Act 1998, providing for reading down of legislation and declarations of incompatibility by Island courts, with ultimate appeal to the Judicial Committee of the Privy Council. The claimants could have applied to the Royal Court of Guernsey for such remedies.

Lady Hale held that sections 3 and 4 of the 1998 Act were not intended to apply to Channel Islands legislation. It is not for English courts to interpret Channel Islands law, read down Island legislation, or declare it incompatible with Convention rights. To entertain such challenges would subvert both the scheme of the Islands’ human rights legislation and the method by which the UK extended the Convention to the Islands (by declaration under Article 56, leaving incorporation to Island legislatures).

The Island courts are better placed to assess whether Island measures are “necessary in a democratic society” and have the ultimate safeguard of appeal to the Judicial Committee, which benefits from the reasoned judgments of Island courts and the participation of Island authorities.

Existence of jurisdiction

The Court examined Bancoult (No 2), in which the House of Lords held Orders in Council legislating for a British Overseas Territory were amenable to judicial review. The appellants argued Bancoult was distinguishable because Sark had a functioning representative legislature. Lady Hale accepted this was a powerful reason not to exercise jurisdiction but not to deny its existence.

Considering Quark Fishing and Professor Finnis’s criticism of the “in right of” analysis, Lady Hale concluded that the appellants were advising Her Majesty both in right of the Bailiwick and in right of the United Kingdom, given the UK’s continuing responsibility for the Islands’ international relations. They were politically accountable to the UK Parliament and legally accountable to UK courts in an appropriate case.

Conclusion

As a general proposition, subject to exceptions, UK courts have jurisdiction to judicially review an Order in Council made on the advice of the UK Government acting in whole or in part in the interests of the UK. However, this was not an appropriate case to exercise that jurisdiction. The appeal was allowed and the Administrative Court’s declaration set aside.

Implications

The decision clarifies the constitutional relationship between the United Kingdom and the Channel Islands as Crown Dependencies. It affirms that challenges to Channel Islands legislation on Convention grounds should ordinarily be brought in Island courts, with ultimate appeal to the Judicial Committee of the Privy Council, respecting the delicate constitutional balance struck by the Islands’ own human rights legislation.

The judgment establishes a general (though not absolute) principle that UK courts retain jurisdiction to review Orders in Council made on the advice of UK Government acting wholly or partly in UK interests, but that this jurisdiction will not always be exercised. The decision preserves the primacy of Island legislative processes and Island courts in matters of Island law, while acknowledging the UK’s residual responsibility for the Islands’ international relations.

Important questions remain open, including the permissible grounds for refusing Royal Assent to Island legislation, whether UK Ministers might also be legally accountable in Island courts, and the precise limits of Convention-based challenges. The Court expressly noted that statements in Barclay (No 1) and the Administrative Court’s judgment about withholding Royal Assent are not authoritative. The decision matters particularly to those concerned with Crown Dependency constitutional relationships, human rights litigation involving the Channel Islands, and the proper forum for such challenges.

Verdict: Appeal allowed. The declaration made by the Administrative Court was set aside. The Supreme Court held that although UK courts have jurisdiction as a general proposition to judicially review Orders in Council made on the advice of UK Government acting in UK interests, this jurisdiction should not have been exercised in this case, as challenges to Channel Islands legislation on Convention compatibility grounds should be brought in the Island courts.

Source: R (on the application of Barclay & Anor) v Secretary of State for Justice & Ors [2014] UKSC 54