R (on the application of Barclay and others) v Secretary of State for Justice and others

Article 3 of the First Protocol requires electoral arrangements to be assessed as a whole, in their historical and political context. A state enjoys a wide margin of appreciation, but any restriction must pursue a legitimate aim, remain proportionate and non-arbitrary, preserve free electoral choice and avoid impairing the right’s essence.

A unicameral legislature need not invariably consist entirely of elected members. Limited participation by unelected, non-voting office-holders may be compatible with Article 3. Citizenship may also be required for eligibility to stand for election, and stricter qualifications may apply to candidates than to voters. Article 14 cannot establish discrimination unless the facts fall within the ambit of a substantive Convention right.

Sark’s Reform (Sark) Law 2008 replaced a legislature dominated by unelected landholders with a Chief Pleas comprising 28 elected Conseillers and two unelected, non-voting office-holders: the Seigneur and the Seneschal. The Seigneur could speak in debate and temporarily veto Ordinances. The Seneschal presided over proceedings. The Law also prevented an alien, as defined by United Kingdom nationality law, from standing for election.

The appellants sought judicial review of the decisions recommending and granting Royal Assent. Wyn Williams J rejected the electoral complaints. The Court of Appeal, by a majority, upheld that result: [2008] EWCA Civ 1319, [2009] 2 WLR 1205. The Supreme Court considered whether the office-holders’ positions and the nationality qualification infringed Article 3 of the First Protocol, alone or with Article 14. It also considered, without deciding, an academic issue concerning the territorial reach of the Human Rights Act 1998.

1. The appeal was dismissed unanimously. Lord Collins delivered the leading judgment. Lord Hope, Lord Scott, Lord Brown and Lord Neuberger agreed.

2. Article 3 of the First Protocol guarantees individual rights to vote and to stand for election. Electoral restrictions are permissible within a wide margin of appreciation. They must pursue a legitimate aim, remain non-arbitrary and proportionate, preserve the free expression of the people’s opinion and avoid impairing the right’s essence. Electoral arrangements must be considered as a whole and in the light of the relevant historical and political circumstances: paras 52–64.

3. Article 3 does not invariably require every member of a unicameral legislature to be elected. The decisive question is whether legislation is enacted through genuinely democratic processes. All persons entitled to vote in the Chief Pleas were elected by universal suffrage. The Seigneur and Seneschal could not vote. Their limited membership therefore neither impeded free electoral choice nor impaired the essence or effectiveness of the right: paras 66–74.

4. The Seigneur’s temporary veto under section 38 of the Reform (Sark) Law 2008 was compatible with Article 3. It merely required reconsideration within 10 to 21 days and could not defeat the elected members’ final decision. Its alleged chilling effect was speculative. The Seigneur’s speaking right and role in summoning an extraordinary meeting were also insufficient to undermine effective democracy: paras 75–82.

5. The Seneschal’s position as an unelected presiding officer was anomalous, but remained within the margin of appreciation. His procedural powers were ordinary powers of a presiding officer. The Chief Pleas could alter its procedural rules if those powers were abused. His position therefore did not impair the substance of Article 3 rights: paras 83–85.

6. Article 3 permits citizenship requirements for candidates and allows stricter qualifications for standing than for voting. Sark could restrict candidature to eligible voters who were not aliens within section 50(1) of the British Nationality Act 1981. The restriction reflected historical and political factors and lay within the margin of appreciation: paras 86–95.

7. Article 14 did not assist because the alien appellant had no Article 3 right to stand for election and the discrimination complaint merely restated the Article 3 claim. Article 16 had no work to do: paras 96–99.

8. The respondents’ decisions were reviewable because they had advised that the Law complied with the United Kingdom’s Convention obligations. Whether sections 6 and 7 of the Human Rights Act 1998 applied was academic and was not decided: paras 100–111.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously: [2009] UKSC 9.

2. Court of Appeal: The court upheld the rejection of the Article 3 challenges concerning the Seigneur and, by a majority, the Seneschal. It also rejected the challenge to the alienage qualification: [2008] EWCA Civ 1319, [2009] 2 WLR 1205. It reversed the Administrative Court on a separate Article 6 issue, which was not appealed further.

3. Administrative Court: Wyn Williams J rejected the electoral challenges, holding that the office-holders’ limited powers did not impair the essence of Article 3 and that aliens could lawfully be excluded from candidature: [2008] 3 WLR 867.