R (Barclay) v Lord Chancellor and Secretary of State for Justice (Barclay (No 1))

This appeal concerned whether the Reform (Sark) Law 2008 breached the right to free elections under Article 3 of the First Protocol to the European Convention on Human Rights by virtue of the continuing roles of the Seigneur and the Seneschal in the Chief Pleas and by excluding "aliens" from eligibility to stand for election. The court applied Strasbourg jurisprudence on Article 3 (notably Mathieu-Mohin and Yumak) and emphasised the wide margin of appreciation afforded to States in electoral matters, the need to assess electoral rules in the round and in their historical and political context, and the distinction between the passive and active aspects of electoral rights. It held that (1) the presence of two unelected, non-voting members (the Seigneur and the Seneschal) with the limited powers provided by the Reform Law did not impair the essence of the Article 3 right and fell within the margin of appreciation; (2) the citizenship-based eligibility requirement (excluding "aliens" as defined by section 50(1) of the British Nationality Act 1981) was compatible with Article 3 and established practice and thus not discriminatory under Article 14; and (3) questions about the territorial application of the Human Rights Act 1998 and capacity in which ministers acted were not determinative because jurisdiction to entertain the judicial review was accepted. The appeal was dismissed.

This appeal arose from judicial review proceedings challenging (i) the recommendation of the Committee for the Affairs of Jersey and Guernsey that Royal Assent be given to the Reform (Sark) Law 2008 and (ii) the Privy Council decision to advise Her Majesty to grant Royal Assent, producing an Order in Council. The claimants (including Sir David and Sir Frederick Barclay and Dr Slivnik) argued that the Reform Law contravened Article 3 of the First Protocol by (a) preserving the Seigneur and the Seneschal as unelected members of the unicameral Chief Pleas (the Seneschal also being President) with powers to speak, to preside and, in the Seigneur's case, to exercise a temporary veto of Ordinances, and (b) excluding aliens from eligibility to stand for election while permitting resident aliens to vote. The proceedings were before the Administrative Court (Wyn Williams J), then the Court of Appeal ([2008] EWCA Civ 1319; [2009] 2 WLR 1205), and on appeal to the Appellate Committee of the House of Lords/UK Supreme Court.

The core issues were: (i) whether the composition and powers of the Seigneur and Seneschal under the Reform Law impaired the essence of the Article 3 right to free elections; (ii) whether the citizenship-based exclusion of "aliens" from standing for election was incompatible with Article 3 alone or read with Article 14; and (iii) whether the Human Rights Act 1998 applied to the decision-makers or otherwise affected relief. The respondents conceded jurisdiction to review because ministers had advised Her Majesty that the Reform Law did not breach the United Kingdom's Convention obligations.

The court reviewed Strasbourg authority, explaining that Article 3 requires assessment of electoral arrangements in light of national historical and political factors and that Contracting States enjoy a broad margin of appreciation. Applying those principles, the court concluded that the Reform Law’s preservation of two non-voting, unelected members with limited powers did not frustrate the free expression of the opinion of the people in the choice of the legislature or impair the essence of the right. The Seigneur’s veto of Ordinances was temporary and limited, and the Seneschal’s procedural powers were not shown to be capable, in context, of permanently suppressing democratic choice. On eligibility, the court held that the right to stand is frequently subject to stricter requirements than the right to vote, that international and Council of Europe practice generally reserves the active electoral franchise to citizens, and that excluding aliens as defined by UK law from standing was within the margin of appreciation. The court accepted that questions about the territorial application of the Human Rights Act were academic on the conceded jurisdiction and did not alter the merits. Consequently the appeal was dismissed.

Appeal dismissed. The Appellate Committee held that the Reform (Sark) Law 2008 did not violate Article 3 of the First Protocol because the presence and limited powers of the Seigneur and the Seneschal did not impair the essence or effectiveness of the electoral rights; and that the exclusion of "aliens" from eligibility to stand for election was compatible with Article 3 in light of Strasbourg jurisprudence, comparative practice and the margin of appreciation. Questions about the territorial scope or applicability of the Human Rights Act 1998 were not determinative in view of the conceded jurisdiction and the merits.

Administrative Court (Wyn Williams J) [2008] 3 WLR 867; Court of Appeal [2008] EWCA Civ 1319; reported [2009] 2 WLR 1205; on appeal to the United Kingdom Supreme Court, judgment [2009] UKSC 9.