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

A court may review a decision based on legal advice about an unincorporated Convention where the decision-maker expressly treated the Convention as relevant and acted on that advice. The review concerns the legality of the decision, not direct domestic enforcement of the treaty.

Judicial independence under Article 6 requires protection against objective pressure, including the risk of an arbitrary reduction in judicial remuneration. In a small jurisdiction, less formal safeguards may suffice for appointment, removal and renewal if they operate compatibly with Article 6. An unfettered power to reduce a judge’s salary, without an effective independent safeguard, is incompatible with that Article.

The claimants challenged the approval by the Committee for the Affairs of Jersey and Guernsey and the Privy Council of amendments to the Reform (Sark) Law 2008. The amendments followed earlier litigation concerning the Seneschal’s combined judicial and legislative roles and regulated appointment, removal, renewal and remuneration.

The defendants disputed the jurisdiction and justiciability of the English courts. The court retained jurisdiction and held that the challenge to the Committee’s reliance on the Secretary of State’s advice about Article 6 was justiciable. The central substantive issue was whether the amended arrangements secured the Seneschal’s independence and impartiality.

1. Jurisdiction and justiciability. The court declined to refuse jurisdiction in favour of the courts of the Bailiwick. Although the constitutional character of the Sark legislative process differed materially from the process considered in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] 1 AC 453, the earlier Barclay litigation had proceeded on the basis that the English courts could review the relevant decisions, and that course had been accepted and acted upon.
2. The principle in R v Secretary of State for the Home Department, ex parte Launder [1997] 1 WLR 838 permitted review where the Committee had treated the Convention as relevant, relied on advice concerning its interpretation, and was alleged to have misdirected itself in law. This did not give the Convention direct domestic effect. The case was therefore within the approach in Launder and R v DPP (ex p Kebilene) [2000] AC 326, although the court recognised that the limits of that principle might require consideration at a higher level.
3. Article 6. Independence and impartiality are assessed objectively, having regard to appointment, tenure, conditions of office, removability, safeguards against outside pressure and the way the system operates in practice. Sark’s small size justified less formal machinery than would ordinarily be required, provided the safeguards were real.
4. The appointment provisions were compatible with Article 6 because the Appointments Committee had in fact consisted of suitably experienced and independent persons, and the Lieutenant Governor’s approval was a substantive safeguard. Removal was also compatible because the Lieutenant Governor could act only through a fair, proportionate and reasoned process allowing allegations, proof and response. Renewal after age 65 caused concern because the Lieutenant Governor had no role, but did not alone establish incompatibility.
5. The remuneration provision gave the Chief Pleas an unqualified power to alter the Seneschal’s terms, including salary, and permitted an arbitrary reduction affecting him alone. In the circumstances of a small community, that created an objectively appreciable risk of pressure and undermined the appearance of judicial independence.
6. The court declared unlawful the Committee’s recommendation to approve the 2010 law insofar as the remuneration arrangements were incompatible with Article 6. The incompatibility could be cured by restoring an effective Lieutenant Governor safeguard over remuneration.

The judgment records earlier proceedings in the same litigation, in which the claimants succeeded in the Court of Appeal on the Seneschal’s dual role but failed on the electoral issue in the Supreme Court. No appeal was brought against the dual-role ruling. The present proceedings were a first-instance judicial review of the later approval of the 2010 law.