Barclay & Ors R (on the application of) v The Seigneur of Sark & Anor

Article 3 of the First Protocol does not require every member of a legislature to be elected. A state has a wide margin of appreciation, subject to the rights retaining their essence and effectiveness, pursuing a legitimate aim and using proportionate means. Limited non-voting roles for historic office-holders may therefore be compatible with the Convention. The exclusion of non-citizens from standing for election is not necessarily contrary to Article 3. Elections to a small territorial legislature may also fall outside the concept of municipal elections under European Community law. Article 6 does not automatically prohibit a judge from holding a legislative role where the judge cannot vote or participate politically and other judicial office-holders are available. The Human Rights Act 1998 does not provide a domestic remedy for Convention obligations extended to an overseas territory under Article 56.

The claimants sought judicial review of the advice given to Her Majesty in relation to Royal Assent for the Reform (Sark) Law, 2008 and the Real Property (Transfer Tax, Charging and Related Provisions) (Sark) Law, 2007.

They challenged the continued membership of the Seigneur and Seneschal in Chief Pleas, the Seneschal’s concurrent judicial and legislative roles, the exclusion of aliens from standing for election, and payments to the Seigneur. The issues concerned Article 3 of the First Protocol, Articles 6 and 14 of the Convention, Article 19 of the EC Treaty, the territorial operation of the Human Rights Act 1998, and the reviewability of Orders in Council.

1. Article 3 of the First Protocol. Applying Mathieu-Mohin and Clerfayt v Belgium [1987] 10 EHRR 1, the court held that electoral rights are subject to implied limitations. The relevant conditions must not impair their essence or effectiveness, must pursue a legitimate aim and must be proportionate. The Convention’s application to Sark required due regard to local requirements under Article 56(3).
2. The Reform Law’s provision for the Seigneur and Seneschal to sit in Chief Pleas was compatible with Article 3. Neither could vote. The Seneschal could not speak for or against legislation, and the Seigneur’s veto over Ordinances merely required reconsideration by the elected Conseillers. The historic constitutional role of both offices and the approval of the arrangement by Chief Pleas were legitimate contextual considerations.
3. The exclusion of aliens from standing for election was also compatible with Article 3. Mathieu-Mohin and Clerfayt v Belgium did not definitively decide the rights of non-citizens because that issue had not arisen there. Even so, the prohibition did not deprive the right to stand for election of its essence. Article 14 added nothing.
4. Chief Pleas was not a municipal authority for Article 19 of the EC Treaty. Its broad legislative powers made it more akin to a national parliament than a basic local government unit under Council Directive 94/80/EC.
5. The Seneschal’s membership of Chief Pleas did not make him insufficiently independent or impartial under Article 6. The court distinguished the particular factual basis of McGonnell v The United Kingdom [2000] 30 EHRR 289. The Seneschal could not vote or participate politically, and Sark had deputy and lieutenant Seneschals who could administer justice.
6. The claimants could not rely on the Human Rights Act 1998. Following the majority view identified in R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2006] 1 AC 529, Article 56 obligations were not Convention rights actionable under sections 6 and 7 of the Act. The defendants had also acted as servants of the Crown in right of the Duchy of Normandy.
7. The court accepted, subject to the point being academic, that Orders in Council were reviewable. It held that an erroneous interpretation of the Convention could justify judicial review even if the advice was not irrational. Permission to apply for judicial review was granted, but the claim was dismissed.