R (Barclay) v Lord Chancellor and Secretary of State for Justice (No 2)

The Supreme Court considered whether the courts of the United Kingdom have jurisdiction to review an Order in Council giving Royal Assent to legislation passed by a legislature of the Channel Islands and, if so, whether that jurisdiction should be exercised in this case. The court held that, as a general proposition, an Order in Council made on the advice of the United Kingdom Government acting in the interests of the United Kingdom is amenable to judicial review on ordinary public law grounds, but that the jurisdiction should not be exercised in this case. The court emphasised the constitutional relationship between the United Kingdom and the Crown Dependencies, the separate domestic human rights scheme adopted in the Bailiwick (the Human Rights (Bailiwick of Guernsey) Law 2000) and the need to respect the primacy of the Island courts and procedures for dealing with Convention compatibility (sections 3 and 4 style remedies). Accordingly the declaration made by the Administrative Court that the Privy Council Committee's decision recommending approval of the Reform (Sark) (Amendment) (No 2) Law 2010 was unlawful was set aside.

This appeal concerned Royal Assent given by Order in Council on 12 October 2011 to the Reform (Sark) (Amendment) (No 2) Law 2010 passed by the Chief Pleas of Sark. The original claim sought quashing of the Order in Council; at the Administrative Court hearing the claimants limited relief to a declaration that the Privy Council Committee's decision recommending approval was unlawful on the ground that aspects of the 2010 Reform Law were incompatible with the European Convention on Human Rights.

The Administrative Court ([2013] EWHC 1183 (Admin)) granted a declaration that, in respect of the provision as to remuneration of the Seneschal, the 2010 Reform Law was incompatible with article 6 ECHR because the Chief Pleas might arbitrarily reduce the Seneschal's remuneration and local pressures in a very small community rendered the post vulnerable. The Secretary of State for Justice, the Lord Chancellor, the Privy Council Committee for the Affairs of Jersey and Guernsey and the Privy Council appealed.

The Supreme Court framed the principal issues: (i) whether the courts of England and Wales have jurisdiction to review an Order in Council which gives Royal Assent to Channel Islands legislation or which otherwise legislates for a Crown Dependency; (ii) whether, if such jurisdiction exists, it should have been exercised in this case; and (iii) ancillary questions about the justiciability of government legal advice and the relationship between the UK Human Rights Act 1998 and the Islands' own human rights legislation. The Court also considered authorities including Bancoult (No 2) [2008] UKHL 61 and Quark Fishing [2005] UKHL 57 and the distinctions between colonies, overseas territories and Crown Dependencies.

On reasoning the Court accepted that Orders in Council made on advice of the United Kingdom Government acting in the interests of the United Kingdom are in principle reviewable on ordinary public law grounds, relying on principle and Bancoult (No 2). However, having regard to the constitutional position of the Channel Islands, the carefully tailored domestic human rights scheme adopted locally (the Human Rights (Bailiwick of Guernsey) Law 2000), the availability of Island remedies (reading-down under local law and declarations of incompatibility by Island courts and ultimately the Judicial Committee of the Privy Council), and respect for the Islands' legislative and judicial processes, the Supreme Court concluded that the United Kingdom courts should not have exercised their jurisdiction in this case. The Court therefore allowed the appeal and set aside the Administrative Court's declaration. The Supreme Court did not decide the substantive Convention compatibility issue.

Appeal allowed. The Supreme Court held that although United Kingdom courts do, in principle, have jurisdiction to review Orders in Council made on the advice of the United Kingdom Government acting in the interests of the United Kingdom, the jurisdiction ought not to have been exercised in this case. The court emphasised the separate domestic human rights scheme in the Bailiwick of Guernsey, the appropriate role of the Island courts (and ultimately the Judicial Committee of the Privy Council) in determining compatibility of Island legislation with the Convention, and respect for the constitutional relationship between the United Kingdom and the Crown Dependencies. The Administrative Court's declaration was therefore set aside.

On appeal from the Administrative Court ([2013] EWHC 1183 (Admin)). The Administrative Court had granted a declaration that the Privy Council Committee's recommendation to approve the 2010 Reform Law was unlawful. The Supreme Court granted a leap-frog appeal certificate and allowed the appeal. The case was considered in context of previous authorities including R (Barclay) v Lord Chancellor and Secretary of State for Justice [2009] UKSC 9 and R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61.