R v Secretary of State for Justice and the Lord Chancellor and others

The courts of the United Kingdom generally have jurisdiction to review an Order in Council made on the advice of the United Kingdom Government acting wholly or partly in United Kingdom interests. That jurisdiction may, however, be inappropriate to exercise.

A challenge alleging that Channel Islands legislation is incompatible with Convention rights should ordinarily be determined under the relevant Island’s human rights legislation by its own courts. The courts of England and Wales cannot read down Island legislation or declare it incompatible under the Human Rights Act 1998. Entertaining such a challenge would undermine the Island’s legislative autonomy and its domestic scheme for balancing legislative supremacy and Convention rights.

The Chief Pleas of Sark enacted legislation changing the office of Seneschal. Royal Assent was granted by Order in Council after the responsible Privy Council committee recommended approval. The respondents challenged that recommendation because the arrangements for the Seneschal’s remuneration were allegedly incompatible with article 6 of the European Convention on Human Rights.

The Administrative Court granted a declaration that the recommendation was unlawful: [2013] EWHC 1183 (Admin). It certified a leap-frog appeal under section 12 of the Administration of Justice Act 1969.

The Supreme Court considered whether the courts of England and Wales possessed jurisdiction to review the Royal Assent process and, if so, whether they should exercise it where the Channel Islands’ own courts and human rights legislation provided the appropriate means of challenging Island legislation.

1. Appeal allowed unanimously. Lady Hale, with whom Lord Neuberger, Lord Mance, Lord Reed and Lord Clarke agreed, held that the Administrative Court possessed jurisdiction but should not have exercised it. Its declaration was set aside.

2. The Human Rights (Bailiwick of Guernsey) Law 2000 supplied the proper remedial scheme. It permitted compatible interpretation under section 3(1) and declarations of incompatibility under section 4(2), while preserving the validity of primary legislation. Challenges to Sark legislation could therefore be brought in the Island courts, with an ultimate appeal to the Judicial Committee of the Privy Council.

3. Sections 3 and 4 of the Human Rights Act 1998 were not intended to apply to Channel Islands legislation operating there. Interpreting section 21(1) to include an Order in Council granting Royal Assent to Island legislation would subvert the separate human rights settlement adopted by the Islands. The courts of England and Wales cannot interpret, read down or declare incompatible the Islands’ laws.

4. Characterising the claim as a challenge to ministerial advice did not alter the position. If the advice were unlawful, the Order granting Royal Assent could in principle be quashed. That would allow an English court to undo the final stage of Island legislation even though the Island courts must respect the legislature’s primacy. The Island courts were also better placed to assess local conditions, democratic necessity and judicial independence.

5. [2008] UKHL 61 established that executive prerogative legislation may be reviewed on ordinary grounds of legality, rationality and procedural propriety. Although the representative character of Sark’s legislature strongly militated against intervention, it did not extinguish jurisdiction in every possible case.

6. The United Kingdom remained internationally responsible for the Channel Islands and therefore required constitutional power to ensure compliance with applicable international obligations. Ministers advising the Sovereign were accountable to the United Kingdom Parliament and, in an appropriate case, to United Kingdom courts.

7. As a general proposition, subject to possible exceptions, United Kingdom courts may review an Order in Council made on United Kingdom Government advice given wholly or partly in United Kingdom interests. This challenge to the Convention compatibility of Island legislation was not an appropriate case for exercising that jurisdiction.

1. United Kingdom Supreme Court: The appeal was allowed unanimously. The declaration was set aside: [2014] UKSC 54.
2. Administrative Court: The court declared unlawful the Privy Council committee’s recommendation that Royal Assent be given because the Seneschal’s remuneration arrangements were incompatible with article 6. It certified a leap-frog appeal under section 12 of the Administration of Justice Act 1969: [2013] EWHC 1183 (Admin).