Barclay & Ors, R (on the application of) v Secretary of State for Justice & Ors

A constitutional scheme for a dependent territory does not breach Article 3 of the First Protocol merely because unelected office-holders sit in a unicameral legislature. The decisive question is whether the elected members retain effective control and the ability to express the people’s will. Local history, geography and constitutional traditions may inform the margin of appreciation.

Article 6 requires structural independence and impartiality. A combination of legislative, executive and judicial functions may create an objectively justified appearance of partiality, even without actual bias. Safeguards such as recusal, deputies and appeals may not cure a structural defect.

The Human Rights Act 1998 does not extend to Convention rights arising from territorial extension of the Convention. EU municipal-election rights do not apply to a territory’s sole national legislature.

The appellants challenged decisions approving and recommending Royal Assent for the Reform (Sark) Law 2008 and the resulting Order in Council. The legislation replaced the Reform (Sark) Law 1951 and created a substantially more elected Chief Pleas, while retaining the Seigneur and Seneschal as unelected members.

The challenge alleged breaches of Article 3 of the First Protocol, Article 6 and Article 14 of the Convention, European Union law, and the Human Rights Act 1998. Wyn Williams J’s decision, reported at [2008] 3 WLR 867 and cited in the appeal as [2008] EWHC 1354 (Admin), was appealed. The central issues were whether the retained offices were compatible with democratic representation and judicial independence, and what remedy should follow.

By a majority comprising Pill LJ and Jacob LJ, the appeal succeeded on ground 2 only. Etherton LJ agreed that the Seneschal’s judicial role breached Article 6, but dissented in holding that the Seneschal’s role in Chief Pleas also breached Article 3.

1. Article 3. Applying Mathieu-Mohin and Clerfayt v Belgium [1987] 10 EHRR 1, the court recognised a wide margin of appreciation. The relevant question was whether the arrangements impaired the essence or effectiveness of electoral rights or thwarted the free expression of the people’s opinion in choosing the legislature. The majority held that all voting members of Chief Pleas were freely elected. The Seigneur’s temporary veto, right to speak and limited constitutional functions, and the Seneschal’s procedural role, did not realistically prevent elected members from exercising democratic control. Sark’s history, traditions, geography and small community were relevant considerations.
2. Article 6. The Seneschal’s position as the sole judge of Sark, combined with his life tenure, presidency of Chief Pleas and involvement in legislative and executive affairs, created an objective appearance that the tribunal might lack independence and impartiality. The existence of deputies, legally qualified lieutenants, recusal, appeal and judicial review did not cure the structural defect. The reasoning was consistent with McGonnell v United Kingdom [2000] 30 EHRR 289, while Pabla Ky v Finland [2006] 42 EHRR 34 was factually distinguishable.
3. Standing for election and European Union law. Article 3 did not require aliens to be eligible for election merely because they could vote. Article 14 added nothing where no substantive right to candidature was engaged. Chief Pleas was the sole legislature of Sark and not a basic local government unit, so the Directive’s municipal-election rights did not apply.
4. Human Rights Act 1998. Following Quark Fishing Ltd [2006] 1 AC 529, the Act did not apply to Convention obligations extended to an overseas territory. The capacity in which the respondents acted was not decisive, but the Act’s territorial scope was.
5. Remedy. The court declined to quash the Order in Council. Quashing would have restored the materially less democratic 1951 arrangements, while further reform could properly be considered by the newly elected Chief Pleas. Relief was confined to a declaration on ground 2.

• Court of Appeal (Civil Division): allowed the appeal to the limited extent that the Seneschal’s combined judicial and legislative functions breached Article 6; declined to quash the Order in Council and directed that relief be confined to a declaration.
• Queen’s Bench Division (Administrative Court): Wyn Williams J gave the judgment appealed from, cited as [2008] EWHC 1354 (Admin) and reported at [2008] 3 WLR 867.