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

This is an appeal against the judgment of Wyn Williams J ([2008] 3 WLR 867) delivered on 18 June 2008. Sir David Barclay and others had sought relief in relation to the Reform (Sark) Law 2008, in Sark a Project de Loi (“the Reform Law”), which provides for new constitutional arrangements in Sark. The Reform Law was given Royal Assent by Her Majesty in Council on 9 April 2008. The appellants seek to quash the decisions of the Secretary of State for Justice and the Lord Chancellor (“the first respondent”) on 27 February and 5 March 2008 to approve and refer the Reform Law to the Privy Council and the decision of the Committee for the Affairs of Jersey and Guernsey (“the second respondent”) on 19 March 2008 to recommend that Royal Assent be given to the Reform Law by Her Majesty’s Privy Council (“the third respondent”).

The second respondent was established, by Order in Council dated 22 February 1952, to consider laws to be passed by the States of the Islands of Jersey, and Guernsey and its Dependencies, for submission to Her Majesty. The second respondent is constituted by the first respondent, the Departmental Minister and the Lord President of the Council.

The appellants also seek to quash the Order in Council made by the third respondent on 9 April 2008. Petitions of Sir David and Sir Frederick Barclay and another were also dismissed on that date. The reason given for the second respondent’s decision is:

“The Reform Law would not violate any of the Crown’s international obligations, and that therefore those international obligations provided no basis for refusing Royal Assent.”

The appellants also seek declarations that the decisions which led to the Order in Council were unlawful, and a declaration of incompatibility, under section 4(2) of Human Rights Act 1998 (“the 1998 Act”), in respect of the Order in Council. It is claimed by the appellants that the decisions challenged are to be assessed by reference to the 1998 Act.

The Island of Sark is a Crown Dependency. The United Kingdom government is responsible for Sark’s international relations but Sark is not a part of the United Kingdom. Following Anglo-French conflict, the King of England became the overlord of the Channel Islands, including Sark, in that capacity and not as Duke of Normandy. The present form of government arises from Letters Patent issued by Queen Elizabeth I in 1565 making the grant of the island to the first Seigneur as a royal fief (Lé Rouai, Nouot’ Duc; Professor Paul Matthews (1999) 3 Jersey Law Review). The respondents do not, having considered that treatise, pursue their written submission, and submission before the judge, that Orders in Council to approve a Sark Projet de Loi are made by Her Majesty in right of the Duchy of Normandy as distinct from Her Majesty’s position as sovereign of Sark.

As the judge put it:

“2.

Over the centuries the fief has been inherited. It has also been sold with royal consent. The current Seigneur of Sark is John Michael Beaumont. A member of his family purchased the fief with royal assent in 1852 and he inherited it in 1974.”

His predecessor was his grandmother Dame Sibyl Hathaway. The Seigneur has appointed a Seneschal to be President of the Island’s legislature, called Chief Pleas, and also the Island’s judge.

Until the Reform Law was adopted, Sark was governed in accordance with the Reform (Sark) Law 1951 (“the 1951 Law”). That Law was approved and ratified by His Majesty King George VI, by and with the advice of his Privy Council, on 1 November 1951, stating that it should have “the force of law within the Island of Sark”.

Sark is part of the Bailiwick of Guernsey. Both under the 1951 Law and the Reform Law, it has its own unicameral legislature (Chief Pleas) and its own court (the court of the Seneschal), as well as a Seigneur. Subject to the powers of the Privy Council, Chief Pleas has powers to legislate for the island. The two territories, Guernsey and Sark, share a Lieutenant Governor and the Reform Law makes provision for dealings with Guernsey.

The Royal Commission on the Constitution (the Kilbrandon Report (1973)) (“Kilbrandon”) reported (paragraph 1448) that the Chief Pleas of Sark and the States of Guernsey both argued that the constitutional arrangements between Sark and the United Kingdom were, broadly speaking, the same as between Guernsey and the United Kingdom. Sark has an “independent relationship with the United Kingdom” (paragraph 1355). The parties agree that the current position is that accepted in Kilbrandon, which also states, at paragraph 1362, that “by convention Parliament does not legislate for the Islands [including Sark] without their consent in matters of taxation or other matters of purely domestic concern.”

I note that it was the legislature in Guernsey (the States) which exercised powers to pass the Human Rights (Bailiwick of Guernsey) Law, 2000 (Commencement) Ordinance, 2006. The Ordinance provided that it “has effect throughout the Bailiwick of Guernsey”. It came into force on 1 September 2006 and closely resembles the 1998 Act. It has not been suggested, however, that, constitutionally, Sark is in any way subject to the other Island or that its relationship with Guernsey affects the outcome of the issues in this appeal. The appeal has been argued on the basis that, subject to the Privy Council, Sark has an autonomous legislature.

Article 56 of the European Convention on Human Rights (“the Convention”) empowers a State party to declare that the Convention shall “extend to all or any of the territories for whose international relations it is responsible”. The United Kingdom Government extended the Convention to the Bailiwick of Guernsey in 1953 and, by virtue of similar powers in article 4 of the First Protocol to the Convention, extended that Protocol to the Bailiwick of Guernsey in 2004.

The population of Sark is about 600. The island is divided into 40 parcels of land, known as tenements. Under the 1951 Law, anyone who owned one of the tenements was thereby entitled to be a member of Chief Pleas (Conseiller), unless he was an alien. There was also provision for 12 democratically elected Deputies of the People. Aliens were not entitled to vote. Chief Pleas is now to be composed of the Seigneur, the Seneschal and 28 Conseillers, elected in accordance with the Reform Law. There is no doubt that the provisions of the Reform Law are more acceptable, in Convention terms, than those of the 1951 Law.

Subject to taking account of that general point, it is not necessary to elaborate this judgment further by providing a comprehensive comparison of the old with the new. Chief Pleas may, with certain reservations, make Ordinances “for the maintenance of public order in, and for the regulation of the local affairs of, Sark and the territorial waters adjacent thereto” (section 37). Sark means the Island of Sark and includes its dependencies (section 35, the interpretation section). Section 1 of the Reform Law provides that “all legislative and executive functions which may be exercised within Sark are exercised by the Chief Pleas . . . or . . . by the Committee of the Chief Pleas . . . ”.). Thus Chief Pleas has power to make laws including, subject to Privy Council consent, power to amend the Reform Law itself.

Sir David Barclay (“the first appellant”) and Sir Frederick Barclay (“the second appellant”) own property on Sark. They also own the nearby Island of Brecqhou over which Chief Pleas claims authority to legislate. Mr Tomaz Slivnik (“the third appellant”) lives on Sark and wishes to stand for election to Chief Pleas. He is a citizen of Slovenia and the Reform Law does not permit him to stand.

Exercising power conferred by the Reform Law, the Chief Pleas, as at present constituted, has fixed the date for the first general election for the reconstituted Chief Pleas for 10 December 2008 (The Reform (Election of Conseillers) (Dates) (Sark) Ordinance, 2008). The ancient offices of Seigneur and Seneschal are preserved by the Reform Law. The Seigneur is, in effect, and subject to Her Majesty, the head of state for Sark. The Seneschal is President of Chief Pleas and Chief Judge. The present incumbent, Lt Col Reginald John Guille, MBE, was first appointed by the Seigneur, in 2000.

The Reform Law makes substantial changes to the law approved in 1951. There has been discussion about reform for many years and in recent years it has been intense. The first and second appellants have taken an active part in the discussions, including petitioning the Privy Council, as already mentioned. Reference has been made by Mr Pannick QC, on their behalf, to concerns expressed by the first respondent about the legitimacy of proposals emanating from Sark. The first respondent has stated:

“Any option which falls short of a wholly democratic process would cause me serious difficulties. . . . I am concerned that Sark should give itself, and the UK, the best protection it can from ECHR challenge and its possible consequences.”

Concern was on 12 December 2007 stated on behalf of the first respondent. He “does not consider that it would be in Sark’s interest for the new legislation to leave aspects of Sark’s government open indefinitely to questions and legal challenge”.

In his witness statement, Mr P.F.U. Bourke, head of the European and International Division of the Ministry of Justice, stated, at paragraph 35:

“Proper consideration is given to the Crown’s responsibilities, so that if a Projet de Loi violated the Crown’s international obligations or any fundamental constitutional principle, or if it would clearly not be in the public interest for it to become law, then a recommendation might be made to withhold Royal Assent . . .”.

Mr Bourke described the constitutional position, as he saw it:

“The United Kingdom Government is responsible, as a matter of international law, for any breach by Sark of its international obligations, including its obligations under the European Convention on Human Rights. . . . In addition, the Crown has ultimate responsibility for the good government of the Channel Islands. In this respect, the Crown acts through the Third [Respondent] on the recommendation of Her Majesty’s Ministers, in their capacity as Privy Counsellors (ie members of the Third Respondent). In practice, the Third [Respondent’s] functions in relation to the Islands principally concern the ratification of legislative measures by way of Orders in Council . . .”

There is a dispute as to whether the issues in this case are subject to the provisions of the 1998 Act. I will consider the issue later but mention it now to indicate why the respondents accept that the compatibility of the Reform Law with the Convention has to be considered whether or not the 1998 Act applies. First, the respondents accept that Orders in Council are amenable to judicial review (R (Bancoult) v Secretary of State for Foreign Commonwealth Affairs [2008] UKHL 61, paragraphs 35 and 105). Secondly, it is conceded by Mr Crow QC, on behalf of the respondents, that, because the reason given for the second respondent’s recommendation to the third respondent was that the Reform Law would not violate any of the Crown’s international obligations, the question whether it does violate those obligations is justiciable in the courts of England and Wales.

Mr Crow’s concession was on that narrow basis; in the absence of that reason, and if no reason been given (as is the practice), or if the reason given had been, for example, that the Reform Law was good for Sark, it would not have been conceded that the Reform Law could be judged in the courts of England and Wales by the standards of the Convention. Mr Crow does not pursue, save as to what remedy is appropriate if his substantive submissions fail, his written submission that “if the 1998 Act does not apply, it is not open to the appellants to seek to quash the Order in Council by reference to the United Kingdom Government’s international law obligations under the Convention”. He does not pursue his written submission that the Convention cannot operate “so as to render unlawful the decision to recommend that Royal Assent be granted (rather than refused)”.

I have to say that I do not find the respondents’ position entirely easy to follow but I propose to proceed on the basis of the concession made. While it was submitted in writing by the respondents that the Order in Council was made by Her Majesty the Queen in right of the local territory and not in right of the United Kingdom (as to which see conflicting views expressed in the House of Lords in R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2006] 1 AC 529 and Lord Hoffmann’s subsequent statement in Bancoult at paragraph 48), the issue of the capacity in which Her Majesty was acting need not be decisive because the issues are agreed to turn on the correctness of the first and second respondents’ recommendations as United Kingdom entities, to the third respondent. Mr Crow does not object to the wording of alternative Declarations proposed by Mr Pannick; his substantive submission is that the Reform Law is Convention compliant.

There are five grounds of challenge.

The respondents deny each of the breaches, and deny that the 1998 Act applies, but at the same time stress that the Reform Law is on any view an improvement, in Convention terms, on the 1951 Law. To quash it would be to restore the less favourable 1951 Law. The Reform Law has been the subject of prolonged consultation on Sark and between the Sark authorities and the United Kingdom Government. It should be allowed to stand, it is submitted, thereby giving effect to the reforms it provides. Consideration of further changes, whether or not required by the Convention, can best be left to Chief Pleas, the elected and autonomous legislature best qualified to perform the task. In reply, the appellants submit that the Reform Law, as it stands, should be judged by reference to the Convention, especially as it contains no requirement for further review.

Under the Reform Law, the Seigneur and Seneschal remain unelected members of Chief Pleas (section 21). They have lost the right to vote in Chief Pleas and the Seneschal no longer has the right to speak, save in order to perform his role as Presiding Officer (section 35). The Seneschal’s tenure has been extended from 3 years to life, subject to removal for good cause by the Lieutenant Governor (section 6). He is ex officio President of Chief Pleas (section 35). He sets the agenda and supervises debate in Chief Pleas and has power, subject to permission from the Seigneur, to call an extraordinary meeting of Chief Pleas. He is now the returning officer for elections to Chief Pleas (section 24). He is one of four Trustees of the Island (section 56). The Trustees, as agent for Chief Pleas, have powers to manage property vested in Chief Pleas (section 57). That power is “subject to any direction of the Chief Pleas”. The court of the Seneschal shall be the sole court of justice in Sark and shall be constituted by the Seneschal sitting alone (section 5).

In addition to quarterly meetings (section 32(2)), Chief Pleas shall in addition meet whenever so directed by the Lieutenant Governor, whenever summoned by the Seneschal, with the consent of the Seigneur and, with the consent of the Seneschal, whenever requested in writing so to do by at least nine Conseillers (section 32(2)).

The Seigneur is an unelected member of Chief Pleas (section 21(1)) and has the right to address Chief Pleas (section 35(3)). He has power, at a meeting of Chief Pleas, to veto any Ordinance made at that meeting. Following such veto, the Ordinance shall be laid before Chief Pleas not earlier than 10 days and not later than 21 days after the meeting. At the later meeting, Chief Pleas can either confirm or refuse to confirm the Ordinance (section 38(2)(3)). The Seigneur appoints the Deputy Seigneur (section 22) and the two officers of the Island (the Prevot and the Greffier), subject to the approval of the Lieutenant Governor (section 49). His consent is necessary before Guernsey police officers may attend in Sark, subject to a decision by the Lieutenant Governor (section 64). He too is a Trustee of the Island (section 56). Historically the Seigneur’s position in Sark has been a powerful one.

To illustrate the power of the Seneschal, Mr Pannick refers to the minutes of a meeting of Chief Pleas held on 26 March 2008. Following an interruption, it is recorded:

“The Seneschal told him to sit down reminding him that he, the Seneschal, was the President at the meeting and its proceedings and responsible for the way the meeting was conducted.”

In his statement, the Seneschal says that he produces the agenda for meetings of Chief Pleas and attaches supporting papers as required. In relation to one meeting, he says that he would have been within his rights to have refused to include two late items on the agenda but that he had decided to include them. The Seneschal accepts that in regulating procedures in Chief Pleas he may be guided by unwritten rules which have evolved as well as by written rules. He states that, in discharging his duties as President of Chief Pleas, he considers himself to be the servant of Chief Pleas and endeavours always to operate under the current law and rules of procedure.

Chief Pleas is required to elect 12 Conseillers to be members of Douzaine which shall exercise the functions from time to time delegated by resolution of Chief Pleas (section 43). Committees shall exercise the functions from time to time delegated to them by resolution of Chief Pleas (section 44(2)) and Chief Pleas may delegate to a Committee all functions other than legislative functions exercisable by Chief Pleas, and also, subject to Orders in Council, legislative functions exercisable by Chief Pleas. Conditions may be imposed by Chief Pleas when functions are delegated (section 47(2)). Under section 37(2) an Ordinance may empower a committee to make regulations and issue licences or permissions under the Ordinance. Section 45(3) provides:

“No person who is the Seigneur, the Seneschal, the Greffier, the Prevot, the Treasurer, or the duly appointed deputy of any of those persons, may be elected as a member of a committee.”

Part II of the Reform Law, consisting of sections 5 to 19, sets up a system for the administration of justice in Sark By virtue of section 10, the jurisdiction of the Seneschal’s court in a civil matter is not limited by reference to any question of value. Section 11 provides a limited criminal jurisdiction and, in sub-section (4), provides for the transfer of criminal cases to the Royal Court of Guernsey. There is a right of appeal, in both criminal and civil matters, to the Royal Court (section 19) and rules as to fees and costs require the approval of that court (section 18).

Section 60 provides that, subject to the provisions of the Direct Taxes (Sark) Law 2002, the consent of the third respondent shall be required for any taxation proposed by Chief Pleas.

Article 3 provides:

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

On ground 1, emphasis has rightly been placed, both before the judge and in this court, on the decision of the European Court of Human Rights (“ECtHR”) in Mathieu-Mohin and Clerfayt v Belgium [1987] 10 EHRR 1. Under the heading “Interpretation of article 3 of Protocol No.1”, the Court stated:

“46.

Since the Court is being asked to determine complaints under Article 3 of Protocol No. 1 for the first time, it deems it necessary to indicate the meaning it ascribes to that Article in the context of the instant case.

47.

According to the Preamble to the Convention, fundamental human rights and freedoms are best maintained by "an effective political democracy". Since it enshrines a characteristic principle of democracy, Article 3 of Protocol No. 1 is accordingly of prime importance in the Convention system.

51.

As to the nature of the rights thus enshrined in Article 3, the view taken by the Commission has evolved. From the idea of an "institutional" right to the holding of free elections the Commission has moved to the concept of "universal suffrage" and then, as a consequence, to the concept of subjective rights of participation - the "right to vote" and the "right to stand for election to the legislature". The Court approves this latter concept.

52.

The rights in question are not absolute. Since Article 3 recognises them without setting them forth in express terms, let alone defining them, there is room for implied limitations. In their internal legal orders the Contracting States make the rights to vote and to stand for election subject to conditions which are not in principle precluded under Article 3. They have a wide margin of appreciation in this sphere, but it is for the Court to determine in the last resort whether the requirements of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate. In particular, such conditions must not thwart "the free expression of the opinion of the people in the choice of the legislature".

53.

Article 3 applies only to the election of the "legislature", or at least of one of its chambers if it has two or more. The word "legislature" does not necessarily mean only the national parliament, however; it has to be interpreted in the light of the constitutional structure of the State in question. . . .

54.

As regards the method of appointing the "legislature", Article 3 provides only for "free" elections "at reasonable intervals", "by secret ballot" and "under conditions which will ensure the free expression of the opinion of the people". Subject to that, it does not create any "obligation to introduce a specific system" such as proportional representation or majority voting with one or two ballots.

Here too the Court recognises that the Contracting States have a wide margin of appreciation, given that their legislation on the matter varies from place to place and from time to time.

Electoral systems seek to fulfil objectives which are sometimes scarcely compatible with each other; on the one hand, to reflect fairly faithfully the opinions of the people, and on the other, to channel currents of thought so as to promote the emergence of a sufficiently clear and coherent political will. In these circumstances the phrase "conditions which will ensure the free expression of the opinion of the people in the choice of the legislature" implies essentially - apart from freedom of expression (already protected under Article 10 of the Convention) – the principle of equality of treatment of all citizens in the exercise of their right to vote and their right to stand for election.

It does not follow, however, that all votes must necessarily have equal weight as regards the outcome of the election or that all candidates must have equal chances of victory. Thus no electoral system can eliminate "wasted votes".

For the purposes of Article 3 of Protocol No. 1, any electoral system must be assessed in the light of the political evolution of the country concerned; features that would be unacceptable in the context of one system may accordingly be justified in the context of another, at least so long as the chosen system provides for conditions which will ensure the "free expression of the opinion of the people in the choice of the legislature".”

When considering whether an electoral system complies with article 3, it is acknowledged that States have “a wide margin of appreciation” but conditions imposed must not impair the very essence of the rights and deprive them of their effectiveness (paragraph 52) and the system must ensure the free expression of the opinion of the people in the choice of the legislature (paragraph 54).

In Aziz v Cyprus, Application No. 69949/01, judgment 22 June 2004, the principles stated in Mathieu-Mohin were followed. It was held that, depriving a Turkish Cypriot living in the Government-controlled area of Cyprus of the right to vote was a breach of article 3. The ECtHR stated, however, at paragraph 28:

“. . . States enjoy considerable latitude to establish rules within their constitutional order governing . . . the composition of the Parliament, and . . . the relevant criteria may vary according to the historical and political factors peculiar to each States . . . ”

The appellants submit that the position of the Seigneur and the Seneschal as unelected members of Chief Pleas, holding significant powers, thwarts the “free expression of the will of the people”. It is inappropriate that an unelected official should set the agenda and control the debate in Chief Pleas. The Seneschal’s multiplicity of powers (including his position as returning officer and Trustee) give him an influence which should not be enjoyed, and enjoyed for life, by an unelected official. Nor is it appropriate that an extraordinary meeting of Chief Pleas, if requested by nine or more members, requires the Seneschal’s consent. The Seneschal’s role as the judicial authority on Sark, with the power and duty to make decisions affecting the lives of the inhabitants, including the lives of Conseillers, intensifies the undesirability of his presiding over the legislative and executive authority on the Island, it is submitted.

As to the Seigneur, his power to veto legislation, albeit only for a short time, and his right to speak at Chief Pleas should not be possessed by a non-elected person, especially one whose office is inherited and may be transferred by sale. He is head of state, Trustee of the Island properties and his power to appoint Seneschal, Deputy Seneschal, Prevot and Greffier are inappropriately combined with membership of Chief Pleas and the right to speak in debates and so to persuade Conseillers. (The duties of Prevot and Greffier are not specifically identified in the Reform Law.) His powers are such as will inevitably influence the voting decisions of members of Chief Pleas, thereby endangering the democratic will. The Seigneur’s powerful historical position on Sark, including substantial powers of appointment, is inconsistent, in terms of the rights granted by article 3, with membership of Chief Pleas, it is submitted.

In summary, the submission is that there is a serious risk that the free expression of the will of the people of Sark will be thwarted by retaining the Seigneur and the Seneschal in important positions in Chief Pleas by reason of their potential influence on democratic processes in Chief Pleas. The Seneschal presides over Chief Pleas and is the arbiter on issues of procedure. He convenes the meeting and sets the agenda. These duties are in addition to his duties as returning officer for elections, the person to whom resignations by Conseillers are tendered and as one of four Island Trustees.

In considering the powers of the Seigneur and the Seneschal in the context of article 3, it is in my view permissible to have regard to geographical and social factors. The geographical factor is illustrated in section 11(3) of the Reform Law which requires the transfer of persons sentenced to a term of imprisonment in excess of three days to Guernsey. The obligation to transfer is made “subject to delay caused by lack of transport or stress of weather”. Further, members of Chief Pleas are likely to spend some of their time away from Sark in the United Kingdom or elsewhere.

The Seigneur has indicated that he might exercise his veto, appropriately described by the judge as a requirement to revisit a decision, if there was a minimal number of members present at Chief Pleas. That might serve the democratic will in providing the opportunity at a later date for a more representative meeting. Similarly, the requirement for the Seneschal’s consent to an extraordinary meeting of Chief Pleas requested in writing by nine Conseillers may safeguard the democratic will if a representative number of Conseillers were not to be present on the Island at the time proposed for the meeting. It is also relevant that there are regular quarterly meetings on dates provided in the Reform Law so that Conseillers can arrange to be present, and also that the Lieutenant Governor may direct that a meeting be held (section 32(2)(a)). In the United Kingdom, it is only the Speaker of the House of Commons who can recall the House, though, by way of distinction with the Seneschal, he is an elected member.

There is force in the appellants’ submission that further reforms cannot be assumed and in their submission that, whatever improvement the Reform Law represents, it must be judged on its own merits. It is also necessary to acknowledge the powerful position of the Seigneur and Seneschal on the Island. The Seigneur owns the Island and has a long family tradition there. It is to be expected that his opinions will be treated with respect. The Seneschal must be a resident of Sark and can be expected to have a knowledge and intimacy with the affairs of the Island which will lead to Conseillers treating his opinions with respect. Moreover, the other offices he holds are likely to increase his influence and prestige. He holds office for life.

On the other hand, the commitment of the Seigneur and Seneschal to this small and comparatively isolated community has advantages in terms of the stability and continuity it provides. It is capable of conferring a standing and expertise to Chief Pleas it might otherwise lack. Maintenance to some extent of their traditional role on Sark need not involve a breach of article 3.

The inability of the Seneschal to sit on committees of Chief Pleas, which are likely to conduct the day to day management of Sark’s affairs (section 45(3)) limits the influence which it is feared by the appellants he may possess over the conduct of business on Sark (section 45(3)).

Each of the voting members of Chief Pleas is elected. They have the voting power which determines what laws are passed and what procedures are followed. Any democracy depends on the robustness with which elected members of a legislature exercise their powers and perform their duties.

In Mathieu-Mohin the ECtHR acknowledged the wide margin of appreciation available to Member States in construing article 3 of the Convention. The court accepted that one of two legislative bodies, which has substantial powers, being wholly appointed, does not involve a breach of article 3. I regard that acknowledgement, in paragraph 53, as an illustration of the margin available to Member States and not a comment the effect of which is confined to a state with a two chamber legislature. The margin of appreciation accepted in Mathieu-Mohin is expressly acknowledged, with regard to dependent territories, in article 56(3) of the Convention.

The current Seneschal has stated that he regards himself as the servant of Chief Pleas and I have no reason to believe that he will use his position as ex officio President to thwart the will of elected members. It cannot, in my view, be assumed that he will conduct himself so as to thwart it. His powers under the present rules of procedure are substantial, as may be expected in a Presiding Officer under the 1951 Law, but, if the rules are not acceptable to the elected and voting members, Chief Pleas may “from time to time by resolution prescribe rules of procedure applicable to meetings” (section 36(1).

All members of Chief Pleas entitled to vote are elected in accordance with a procedure about which no complaint is made in these proceedings. That, in my judgment, is fundamental to the resolution of the issue raised by ground 1. The electorate in Sark is free to choose each and every member of Chief Pleas with a right to vote. The free expression of the opinion of the people in the choice of the legislature (paragraph 54 of Mathieu-Mohin) is not in my judgment impaired or deprived of effectiveness by the presence of a non-elected Presiding Officer and a non-elected Seigneur. The elected members, who alone have the power to vote, can be expected to assert the democratic will as they see fit. I have no reason to believe that they will be intimidated from doing so by the presence in Chief Pleas of Seigneur and Seneschal, notwithstanding the likely prestige on the Island of the holders of those offices.

The “free elections” contemplated by article 3 will take place and only those freely elected will have the right to vote in Chief Pleas. In a Sark context, and assuming, as it is necessary in any democracy to assume, the willingness of elected members to perform their duties, the presence of Seigneur and Seneschal does not involve a breach of article 3.

I have considered specifically the temporary power of veto of the Seigneur and the need for the Seneschal’s consent for extraordinary meetings of Chief Pleas requested by nine members and do not consider that those features of the Reform Law, either alone or with the other provisions, involve a breach of article 3.

I do not consider that the Seneschal’s other roles, Island Trustee, Returning Officer and the person to whom Conseillers may tender resignation, significantly impinge on the free expression of the opinion of the people. These are important tasks but not tasks which create a risk that the will of the people of Sark, or that of elected members in Chief Pleas will, or indeed can, be thwarted.

A breach of article 3 on this ground is not in my view established.

Article 6(1) of the Convention provides, in so far as is material:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing . . . by an independent and impartial tribunal established by law.”

The Seneschal’s position as Chief Judge must be seen in the context of his duties in Chief Pleas and also the existence of the power to make other judicial appointments for Sark.

Provision is made for the appointment of a Deputy Seneschal (section 7). The person must be “ordinarily resident” in Sark, shall be removable by the direction of the Lieutenant Governor but only for good cause and shall perform the Seneschal’s duties “in and in connection with the court”. One or more Lieutenant Seneschals may be appointed (section 8). They are required to be legally qualified and have the same duties and tenure as the Deputy Seneschal. Those powers provide safeguards, it is submitted, in relation to the dual function of the Seneschal because other options are available if, applying ordinary principles, the Seneschal thinks it proper to recuse himself from trying a case.

The Seneschal has provided an “Index of Acts of Court” covering recent years. There have been numerous applications for licences, in particular liquor licences, as well as cases involving conventional civil disputes including debt, non-payment of wages, eviction and rent arrears. There have been cases with a public dimension; an inquest, non-payment of tax, illegal fishing, disorderly conduct, breach of the peace and driving a tractor without a licence. While many of the cases have been, in legal terms, comparatively trivial, it cannot be assumed that substantial litigation will be absent from a prosperous territory with 600 active residents and many visitors.

The need to ensure impartial and independent adjudication, and to preserve the appearance of it, is heightened in a small community such as that of Sark, it is submitted by the appellants. However fair minded he is, the Seneschal’s lack of legal training is inevitably a disadvantage in assessing the circumstances in which recusal is appropriate. Unlike lay judges in other jurisdictions, the Seneschal does not have a legally qualified colleague, or clerk, to advise him on the law, including its requirements as to judicially appropriate conduct and fair procedure.

The Seneschal is protected, in judicial terms, it is submitted by the respondents, because his appointment, formerly for 3 years, is now for life and he may be removed from office only by the direction of the Lieutenant Governor and “for good cause” (section 6(2)). The appellants submit that, in the circumstances, the life appointment has made the position worse. The Seneschal’s multiplicity of roles enjoyed without limit of time, make it impossible for him also to be Chief Judge.

Whatever the outcome of ground 1, it is submitted that the Seneschal’s position as judge is inconsistent, in article 6 terms, with his legislative and executive duties. His influential political position, it is submitted, will inevitably and legitimately arouse in litigants appearing before him fears about his independence and impartiality.

In Starrs v Ruxton [2000] JC 208, Lord Prosser, considering the position of temporary sheriffs in the administration of justice in Scotland, stated, at page 232:

“But I am inclined to see independence – the need for a judge not to be dependent on others – as an additional substantive requirement, rather than simply a means of achieving impartiality or a perception of impartiality. Independence will guarantee not only that the judge is disinterested in relation to the parties and the cause, but also that in fulfilling his judicial function, generally as well as individual cases, he is and can be seen to be free of links with others (whether in the executive, or indeed the judiciary, or in outside life) which might, or might be thought to, affect his assessment of the matters entrusted to him.”

That passage was cited by Lord Bingham of Cornhill in the Privy Council in Millar v Dickson [2002] 1 WLR 1615, at paragraph 9. Lord Bingham also cited, at paragraph 26, the speech of Lord Steyn in Brown v Stott [2003] 1 AC 681, at page 708C:

“. . and it is a basic premise of the Convention system that only an entirely neutral, impartial, and independent judiciary can carry out the primary task of securing and enforcing Convention rights.”

Lord Bingham concluded, page 1628A:

“The conduct of trials at all stages by an independent and impartial tribunal is in my view recognised by the Convention and the authorities, subject to waiver where that is permissible, as a necessary although not a sufficient safeguard of the citizen’s right to a fair trial. It is a safeguard which should not, least of all in the criminal field, be weakened or diluted, whatever the administrative consequences.”

The position of the Bailiff of Guernsey, who is president of the Royal Court in Guernsey, was considered by the ECtHR in McGonnell v United Kingdom [2000] 30 EHRR 289. The Bailiff’s court determined a planning appeal and the Bailiff, as Deputy Bailiff, had presided over the States when the development plan, under which the planning decision was taken, was adopted. The majority position of the Commission was that there had been a violation of article 6(1) of the Convention. At paragraph 61, the Commission put the objection to the Bailiff’s role in a general way:

“The position in the present case was therefore that when the applicant appeared before the Royal Court on 6 June 1995, the principal judicial officer who sat on his case, the Bailiff, was not only a senior member of the judiciary of the Island, but was also a senior member of the legislature - as President of the States of Deliberation - and, in addition, a senior member of the executive - as titular head of the administration presiding over a number of important committees. It is true, as the Government points out, that the Bailiff's other functions did not directly impinge on his judicial duties in the case and that the Bailiff spends most of his time in judicial functions, but the Commission considers that it is incompatible with the requisite appearances of independence and impartiality for a judge to have legislative and executive functions as substantial as those in the present case. The Commission finds, taking into account the Bailiff's roles in the administration of Guernsey, that the fact that he has executive and legislative functions means that his independence and impartiality are capable of appearing open to doubt.”

Subsequently, the court found unanimously that there had been a violation of article 6 of the Convention. It did so, however, on narrower grounds, further information about the Bailiff’s role in the particular case having emerged (paragraph 57). The court held that the mere fact that the Deputy Bailiff had presided over the States when the development plan was adopted was capable of casting doubt on his impartiality when he subsequently determined, as the sole judge of the law in the case, the applicant’s planning appeal.

The court stated, at paragraph 51, that article 6 did not require States to comply with any theoretical constitutional concepts as such:

“The question is always whether, in a given case, the requirements of the Convention are met. The present case does not, therefore, require the application of any particular doctrine of constitutional law to the position in Guernsey: the Court is faced solely with questions of whether the Bailiff had the required “appearance” of independence, or the required “objective” impartiality.”

At paragraph 52, the general issue was stated:

“The Court must determine whether the Bailiff's functions in his non-judicial capacity were, or were not, compatible with the requirements of article 6 as to independence and impartiality.”

On the facts, the court concluded, at paragraph 55:

“. . . any direct involvement in the passage of legislation, or of executive rules, is likely to be sufficient to cast doubt on the judicial impartiality of a person subsequently called on to determine a dispute over whether reasons exist to permit a variation from the wording of the legislation or rules at issue. In the present case, in addition to the chairing role as such, the Deputy Bailiff could exercise a casting vote in the event of even voting . . .”

Sir John Laws, sitting as a judge ad hoc and concurring, expressly confined his concurrence, at page 309, to the facts of the case.

The respondents rely, as did the judge, on the decision of the ECtHR in Pabla Ky v Finland [2006] 42 EHRR 34. A Finnish litigant in a building dispute alleged a breach of article 6(1) when one of the two expert members of the Court of Appeal, in a constitution where the three other members were professional judges, was a Member of Parliament. It was not suggested that he was “actually, or subjectively, biased against the applicant”.

The court noted, at paragraph 27, that “in this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all in the parties to proceedings”. At paragraph 29, the court stated that the decision did not require “the application of any particular doctrine of constitutional law” and that article 6 does not require States “to comply with any theoretical constitutional concepts regarding the permissible limits of the powers’ interaction”. Distinguishing the case from McGonnell, the court stated that “the [expert member] had not exercised any prior legislative, executive or advisory function in respect of the subject-matter or legal issues before the Court of Appeal”. The court stated, by a majority of six to one, that it was “not persuaded that the mere fact that [the expert member] was a member of the legislature at the time when he sat on the applicant’s appeal is sufficient to raise doubts as to the independence and impartiality of the Court of Appeal. While the applicant relies on the theory as separation of powers, this principle is not decisive in the abstract”. The applicant’s fear as to a lack of independence and impartiality in the Court of Appeal was not “objectively justified”.

In a small jurisdiction there may well be administrative advantages in combining legislative and executive functions with judicial functions in one office. There will be cost savings and an office may be more attractive to applicants if the comprehensive duties of a Seneschal are to be continued on Sark. The ancient office of Seneschal is defined in the dictionary (Oxford English Dictionary, 1971) as “an official in the household of a Sovereign or great noble to whom the administration of justice and entire control of domestic arrangements were entrusted”. I do, however, see the combination in Sark of the judicial with the other functions of the Seneschal as inconsistent with the article 6 requirement to establish by law an independent and impartial tribunal. Subject to the limitations noted, Sark is a separate jurisdiction. That being so, it does require that the principal judicial officer, and the court of the Seneschal shall be the sole court of justice in Sark and shall be constituted by the Seneschal sitting alone (section 5), is not linked with the executive and legislature in the manner and to the extent that the Seneschal is.

Sark appears to have been fortunate, in recent years, in not having had substantial litigation, either civil or criminal, but while it seeks to maintain a separate system for the administration of justice, as the Reform Law does, the safeguards for independence and impartiality required by article 6 must be provided. That includes a consideration of appearances. A judge independent of the legislature and executive is in my judgment required even for the comparatively modest litigation described in the Seneschal’s diary. A constitution should also make provision for the litigation capable of arising in a complex modern society. The population of Sark, though small, is likely to engage in economic, administrative and financial activities which may well give rise to significant litigation. Social welfare considerations, requiring a judicial determination, may also arise. Concern expressed by the Bailiff in 1999 in Surcouf v de Carteret (cited by Dawes, Laws of Guernsey, first edition), while proposing a way of dealing with it, illustrates the potential problem:

“The Seneschal is not a lawyer. If serious litigation . . . is to be conducted before him it is incumbent on counsel to work together to identify the issues which he is being asked to decide and to do all they can to prepare and present the case in a way that he can come to a reasoned decision.”

This is not slavish adherence to an abstract notion of separation of powers but a recognition that it follows from the Seneschal’s functions in his non-judicial capacity in Chief Pleas, as already described, that his independence and impartiality are capable of appearing open to doubt. In this respect, the smallness of the community aggravates the problem. The same people and issues with which he is likely to be dealing when presiding at Chief Pleas, including issues arising from the Reform Law itself and the Guernsey Human Rights Law, may be the subject of litigation in his court. My conclusion on this aspect of the appeal in no way impugns the good faith or competence of the present Seneschal.

The law must provide a structure in which those who do, or who may, come before the court can be confident in the independence and impartiality of the judge. Given the Seneschal’s position provided by section 5 of the Reform Law, provision in the law for the appointment of Deputies and Lieutenants, giving the Seneschal the power to recuse himself, though constructive and advantageous in itself, does not rectify the situation. The position of the Seneschal, sitting alone, as constituting the sole court of justice in Sark (section 5) in my view falls on the wrong side of the line of what is Convention compliant.

Unlike the Bailiff in McGonnell, the Seneschal cannot vote on legislation or rules in Chief Pleas but his close involvement in all proceedings there, which may well give rise to litigation, makes a concurrent role as Chief Judge on the Island inappropriate. The facts in Ky were very different and neither the result nor the reasoning in that case indicate an outcome favourable to the respondents on this issue.

It is alleged that section 28(iii)(b) of the Reform Law breaches article 3 because it provides that an alien is not eligible to be elected Conseiller. Section 28(4) provides for a register of electors which, subject to other limitations, provides that a person is entitled to have his name inscribed on it if he is ordinarily resident in Sark and he will have been ordinarily resident in Sark throughout the 12 months immediately preceding the date appointed.

Section 28(3) provides, in so far as is material:

“A person is eligible to be elected as Conseiller if –

(b)

He is not an alien within the meaning of the law in force in the United Kingdom.”

To be on the register of electors, a person must have applied to have his name so inscribed (section 28(iv)(e)). By virtue of section 28(v), a person whose name is recorded as the possessor of any real property in Sark shall be treated as being ordinarily resident.

The British Nationality Act 1981 (“the 1981 Act”) applies in the Channel Island and section 50(1) defines “alien” to mean:

“A person who is neither a Commonwealth citizen nor a British protected person nor a citizen of the Republic of Ireland.”

Thus the third appellant, who is a Slovenian national, though able to vote, is ineligible to be elected Conseiller.

It is submitted that article 14 of the Convention must be read with article 3. It provides, in so far as is material:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any grounds such as . . . national origin. ”

It is submitted that the distinction between aliens and non-aliens must be justified as being in pursuit of a legitimate aim and proportionate to that aim (Mathieu-Mohin, paragraph 52). Reliance is placed on Aziz, already cited. Having acknowledged that states enjoy considerable latitude to establish rules governing Parliamentary elections and the composition of the Parliament, the ECtHR added in Aziz, at paragraph 28:

“These rules should not be such as to exclude some persons or groups of persons from participating in the political life of the country and, in particular, in the choice of the legislature, a right guaranteed by both the Convention and the Constitutions of all Contracting States.”

Reliance is also placed on the decision of the ECtHR in the Gaygusuz v Austria [1996] 23 EHRR 364, at paragraph 42:

“Very weighty reasons would have to be put forward before the court could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention.”

The Austrian Government had refused a Turkish national an advance on his pension because he did not have Austrian nationality.

For the respondents, Mr Crow relies on the absence of any express right, in article 3, for aliens to become members of a state’s legislature. That is also the effect of the case law and, in any event, the correct approach, it is submitted. A state’s wide margin of appreciation is recognised in Mathieu-Mohin and declining to permit aliens to become members of the legislature comes within that margin. The ECtHR in Mathieu-Mohin refers to the principle of equality of treatment “of all citizens” in the exercise of their right to vote and their right to stand for election and does not refer to aliens.

In Py v France [2006] 42 EHRR 26, a French national applied for the right to vote in New Caledonia, a French overseas territory. Registration was refused because he had not been permanently resident in New Caledonia for ten years. The local administration was concerned that ballots should reflect the will of the local population and should not be affected by mass voting by recent arrivals in the territory who did not have strong ties with it (paragraph 50). The ten year residence requirement had been laid down “after a turbulent political and institutional history” and had been instrumental in alleviating the “bloody conflict”.

The court held that the restrictions imposed on the applicant’s right to vote were warranted. General principles were stated by the court, at paragraphs 46 and 47:

“Contracting States have a wide margin of appreciation, given that their legislation on elections varies from place to place and from time to time. The rules on granting the right to vote, reflecting the need to ensure both citizen participation and knowledge of the particular situation of the region in question, vary according to the historical and political factors peculiar to each state. The number of situations provided for in the legislation on elections in many member States of the Council of Europe shows the diversity of possible choice on the subject. However, none of these criteria should in principle be considered more valid than any other provided that it guarantees the expression of the will of the people through free, fair and regular elections. For the purposes of applying Art.3, any electoral legislation must be assessed in the light of the political evolution of the country concerned, so that features that would be unacceptable in the context of one system may be justified in the context of another.

The State’s margin of appreciation, however, is not unlimited. It is for the Court to determine in the last resort whether the requirements of Protocol No.1 have been complied with. It has to satisfy itself that any such conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate. In particular, such conditions must not thwart “the free expression of the opinion of the people in the choice of the legislature”.”

Mr Pannick submits that, even if there is no breach of article 3 taken alone, the right to stand for election comes within the ambit of the article and, read with article 14, there is a breach of the Convention by reason of the discrimination against the third appellant as an alien. Moreover, it is submitted, section 28(3)(b) is arbitrary in operation because, for example, a non-resident Australian who owns a tenement may be entitled, as a Commonwealth citizen deemed to be resident, to stand, whereas a resident who is a national of Slovenia, a Member State of the European Union, would not be permitted to stand.

Mr Pannick accepts that there may be a reason acceptable in Convention terms for confining the right to stand for election to nationals. No justification has, however, been advanced in this case and a breach of article 3 is established, he submits.

In response to the alleged Australian anomaly, Mr Crow submits that the risk of a non-resident tenement holder being a member of Chief Pleas is, in any event, limited. Section 31(1)(b) provides that a Conseiller shall become disqualified and shall be required to vacate his office if he fails to attend three consecutive ordinary meetings of Chief Pleas.

Mr Crow relies on the use of the word “citizen” in paragraph 54 of Mathieu-Mohin. The duty of national courts when construing the Convention is “to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less” (R (Ullah) v Special Adjudicator [2004] 2 AC 323 at paragraph 20 per Lord Bingham of Cornhill and see also N v Secretary of State for the Home Department [2005] UKHL (article 3 of the Convention) and R (Al-Skeini & Ors) v The Secretary for Defence [2008] 1 AC 153, at paragraph 90). When defining the right to take part in the conduct of public affairs, to vote and to be elected at elections, article 25 of the International Covenant on Civil and Political Rights (adopted 1973) uses the word “citizen” when defining those eligible. In Py, the ECtHR noted with approval, at paragraph 63, views expressed by the UN Human Rights Committee, as did Lord Bingham in Ullah (paragraph 23), thus illustrating the consistency of the Covenant with the Convention.

Mr Crow submits that the obligation under article 3 to permit residents to stand for Parliament does not, on Sark, extend to aliens. As to alleged anomalies which may arise because of the definition in the 1981 Act of “aliens”, the respondents rely on the decision of the Grand Chamber of the European Court of Justice (“ECJ”) in Spain v United Kingdom (12 September 2006 C-145/04). Relying on Articles in the Treaty on European Union, the Government of Spain submitted that the purported grant by United Kingdom legislation of the right to vote in elections to the European Parliament to Qualifying Commonwealth Citizens (“QCC”) resident in the Crown Colony of Gibraltar was unlawful.

The ECJ noted (paragraph 12) that the Treaty imposed an obligation on states to respect fundamental rights guaranteed by the Convention. At paragraph 46, the court recited the historical reasons which explained why the United Kingdom Government decided to continue to accord the franchise to resident citizens of other Commonwealth countries. Until 1962 they had the right of residence in the United Kingdom. QCCs residing in the United Kingdom now have the right to vote in elections to the European Parliament. That is regarded by the United Kingdom, the ECJ stated, as one of its constitutional traditions.

At paragraph 78, the Grand Chamber held that the definition of the persons entitled to vote and stand as candidates in elections to the European Parliament fell within the competence of each Member State and that the Treaty did not preclude Member States “from granting that right to vote and to stand as a candidate to certain persons who have close links to them, other than their own nationals or citizens of the Union resident in their Territory”. It was held, at paragraph 80, that the Government of Spain had not established a breach of the Treaty.

The significance of this decision, for present purposes, is that the Grand Chamber recognised the legitimacy of the United Kingdom, when deciding upon political rights, having regard to the constitutional traditions incorporated in British nationality law. While the facts in the present case are not identical, that tradition can be acknowledged as a legitimate consideration when deciding whether to grant constitutional rights to Commonwealth citizens. Given the British constitutional tradition, no breach of the Convention arises because a right to stand for election is granted to a Commonwealth citizen but not granted to an alien.

I see no merit in the argument that it necessarily follows from the grant to aliens of the right to vote that a right to stand for election must arise. To allow the one, does not create a right to require the other.

Mr Crow submits that the appellant’s emphasis on the requirement that the respondent should justify the electoral system adopted is misplaced. The question is whether the system adopted does or does not involve a breach of article 3. If there is no breach of article 3, article 14 adds nothing. Only if the substantive right is engaged does article 14 prohibit disparity of treatment between people in comparable positions.

In Moustaquim v Belgium [1991] 13 EHRR 802 the ECtHR found a breach of article 8 of the Convention (respect for family life) when a Moroccan national who had lived in Belgium almost all his life was to be deported following his conviction and sentence for criminal offences. The court unanimously rejected an article 14 complaint stating, at paragraph 49:

“Like the Commission, the Court would reiterate that Article 14 safeguards individuals placed in similar situations from any discriminatory differences of treatment in the enjoyment of the rights and freedom recognised in the Convention and its Protocols.

In the instant case the applicant cannot be compared to Belgian juvenile delinquents. The latter have a right of abode in their own country and cannot be expelled from it; this is confirmed by Article 3 of Protocol No.4.”

The decision in Gaygusuz does not assist the appellants. The court accepted, at paragraph 36:

“According to the Court’s established case law, Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of them.”

In Gaygusuz, there was an entitlement to emergency assistance and the refusal to grant it on the ground of nationality infringed article 14 taken in conjunction with article 1 of Protocol 1 (the right to property). The applicant had paid contributions to the Unemployment Insurance Fund in the same capacity and on the same basis as Austrian nationals. In the present case, the issue is whether article 3 entitles him to a right to stand for election at all.

It is not, in my judgment, a breach of article 3 to fail to grant to aliens, as defined in the Reform Law, the right to stand for election to Chief Pleas and article 14 does not assist the appellants.

On this ground, it is submitted that the respondents acted unlawfully under EC Law in recommending for Royal Assent a law which provides that a person must not be an “alien” if he is to stand for election to Chief Pleas. That excludes EU citizens. The respondents do not dispute the application of the relevant article, article 19(1) of the EC Treaty, or Council Directive 94/80 (“the Directive”) of 19 December 1994.

Article 19(1) of the Treaty provides:

“Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State.”

Article 4 of Protocol 3 to the Act of Accession gives EU nationals the right not to be discriminated against in relevant areas.

Article 1 of the Directive provides detailed arrangements for the “right to vote and to stand as a candidate . . . in municipal elections”. These are defined in article 2.1(b), in so far as is material, as elections of “a basic local government unit”.

Directive 94/80 defines “Basic local government unit” as “the administrative entities listed in the Annex which, in accordance with the laws of each Member State, contain bodies elected by direct universal suffrage and are empowered to administer, at the basic level of political and administrative organisation, certain local affairs on their own responsibility” (article 2.1(a)). The annex to the Directive, which specifies what are basic local government units in the UK and other Member States does not assist in relation to Sark. “Municipal elections” are defined as “elections by direct universal suffrage to appoint the members of the representative council and, where appropriate, under the laws of each Member State, the Head and members of the executive of a basic local government unit ”(article 2.1(b)).

Mr Pannick submits that even though Chief Pleas is also the national Parliament, it carries out the task normally assigned to local government and comes within the definition “basic local government unit”. Reliance is placed on paragraph 1360 of Kilbrandon which, by reference to the constitutional position of the Islands, states that “their method of functioning through committees is more akin to that of United Kingdom local authorities”. At paragraph 1472, of Kilbrandon, it is stated that “Parliament does have power to legislate for the Islands without their consent on any matter in order to give effect to an international agreement”.

I substantially accept the submissions of Mr Crow on this issue:

(a)

Chief Pleas is the only legislative body on Sark. It has wide ranging powers and its laws do not normally require the third respondent’s consent.

(b)

Kilbrandon’s reference to the functioning of committees in Sark being “more akin” to that of United Kingdom local authorities, is a comment on operating procedures and not a classification of them as local government units.

(c)

The Directive does not require that there be a local government unit in addition to a national parliament. The distinction between “national parliaments” and “basic local government units” with their “municipal elections” is maintained throughout the Directive.

(d)

The appellants’ solicitors have taken up this legal issue with the European Commission. While the Commission’s view has no judicial status, it is persuasive. In letters of 13 August 1998 and 21 December 1998, in relation to the 1951 Law, the Commission rejected the submission that the type of elections held in Sark qualify as municipal elections within the meaning of the Directive.

It may be added that, as noted in Kilbrandon, at paragraph 1362, Sark is not represented in the United Kingdom Parliament and Acts of Parliament do not extend to Sark automatically. That supports the view that Chief Pleas cannot be regarded as local government rather than a parliament.

The third appellant has of course the right to vote in elections to Chief Pleas and is deprived only of the right to stand for election himself. In my judgment, and for those reasons, European Union law does not create any such right. Chief Pleas has the character of a national parliament and is not a “basic local government unit”. Elections to it are not “municipal elections” within the meaning of article 1 of the Directive.

Because of the respondents’ concession as to jurisdiction, whether the 1998 Act applies is not crucial and I deal with the issue briefly. The appellants submit that it does apply. They submit that the court has jurisdiction under the 1998 Act when a decision of Ministers in this country has effect in a territory, such as Sark, to which the United Kingdom has extended the applicability of the Convention. Secondly, the proceedings are brought against the respondents in respect of the Government of the United Kingdom taken in their own right and by reason of their own responsibilities.

On behalf of the respondents, it is submitted that responsibility at Strasbourg for the constitution of Sark does not create a jurisdiction to challenge the constitution in the courts of the United Kingdom. The Guernsey Human Rights Law having been adopted, a remedy is available in Sark and the jurisdiction in the Island cannot be side-stepped by an application in the United Kingdom. It is also submitted that the respondents were not acting as “public authorities”, within the meaning of the 1998 Act because the first and second respondents were acting as servants of Her Majesty in right of Sark (Quark,per Lord Bingham at paragraphs 12 and 17 to 20). Mr Crow has stated that these submissions are made only in relation to the applicability of the 1998 Act and do not affect the submission to jurisdiction otherwise made.

In Quark, Lord Nicholls stated, at paragraph 36:

“The Human Rights Act is a United Kingdom statute. The Act is expressed to apply to Northern Ireland: section 22(6). It is not expressed to apply elsewhere in any relevant respect. What, then, of Convention obligations assumed by the United Kingdom in respect of its overseas territories by making a declaration under article 56? In my view the rights brought home by the Act do not include Convention rights arising from these extended obligations assumed by the United Kingdom in respect of its overseas territories. I can see no warrant for interpreting the Act as having such an extended territorial reach. If the United Kingdom notifies the Secretary General of the European Council that the Convention shall apply to one of its overseas territories, the United Kingdom thenceforth assumes in respect of that territory a treaty obligation in respect of the rights and freedoms set out in the convention. But such a notification does not extend the reach of sections 6 and 7 of the Act. The position is the same in respect of protocols.”

Lord Nicholls considered the capacity in which the Secretary of State had acted to be, in context, a “non-issue”.

At paragraph 62, Lord Hoffmann stated:

“But for the purposes of the 1998 Act, it does not matter whether the Protocol has been extended to SGSSI [a British Overseas Territory as defined by the British Overseas Territories Act 2002] or not. The Act is concerned only with the Convention as it applies to the United Kingdom and not by extension to other territories.”

At paragraph 93 of Quark, Lord Hope of Craighead stated that he was in full agreement with Lord Nicholls in his discussion of this issue, that is the applicability of the 1998 Act. I read his analysis at paragraph 92, claimed by the appellants to be inconsistent with that statement, as a finding that he considered notification under article 56 of the Convention and article 4 of the First Protocol to be a pre-condition to a consideration of the issue and not as a finding that notification attracts the application of the Act.

As to the capacity in which Her Majesty was acting, Lord Hoffmann in Bancoult, at paragraph 48, referred to a paper prepared by Professor John Finnis for the University of Oxford Faculty of Law in March 2008. Lord Hoffmann expressed the view that Lord Nicholls was right in his approach to capacity. Considering Quark, Professor Finnis stated, at paragraph 19 of his paper:

“. . . The giving of the instructions is an act of Her Majesty in right not only of her dependent territory the SGSSI but also, indeed primarily, in right of the United Kingdom, which forms one undivided realm with all its dependent territories notwithstanding the distinguishability of each territory and each government of each territory.”

In R (Al-Skeini) v Secretary of State for Defence [2008] 1 AC 153, Lord Browne of Eaton-Under-Heywood, having referred to Quark, stated at paragraph 134:

“Even had the UK extended Article 1 of the First Protocol to SGSSI, no claim would have been available against the Secretary of State under the Act although the UK would clearly have been liable internationally for any breach. It is for the dependent territory’s own legislation to give effect to Convention rights, just as for Jersey, Guernsey and the Isle of Man.”

In Bancoult, Lord Hoffmann stated, at paragraph 65:

“But the [1998] Act defines Convention rights (in section 21(1) as rights under the Convention “as it has effect for the time being in relation to the United Kingdom”.”

Lord Rodger of Earlsferry and Lord Carswell agreed with Lord Hoffmann.

On the basis of that authority, I would be prepared to hold that the capacity in which the first and second respondents acted was not decisive against the appellants. However, for the reasons given by Lord Nicholls in Quark, with which I respectfully agree, it does not follow that the first and second respondents’ recommendations to Her Majesty were subject to the 1998 Act. The Act does not in my judgment apply. I agree with the judge on the first of the two routes he has taken.

It follows that I would hold that the appeal succeeds on ground 2 and fails on the other grounds. Mr Pannick submits that if the appellants have made good any of the four grounds of appeal, the Order of the third respondent should be quashed. Mr Pannick’s submission is that a quashing order is the best way speedily to produce a law compliant with the Convention. The judge held that, had he found a breach, he would have quashed. He stated, at paragraph 104, that “a court should be very slow to withhold relief when illegality is established on grounds which are based on expediency rather than principle”. The expediency he had in mind was that the election planned for December 2008 would not take place.

I do not agree with that conclusion and my reasons are such that this court’s respect for the exercise of a discretion is not decisive. The Reform Law is a substantial improvement, in Convention terms, on the 1951 Law. Notably, it provides for an almost wholly elected Chief Pleas as compared with one in which elected members are in a small minority. To prevent the people of Sark achieving that significant improvement in December would be to perpetuate a legislature which plainly does not reflect the free expression of the opinion of the people of Sark required by article 3. Secondly, having seen in draft the judgments of the other members of the court, the majority of the court is to find only one of the four grounds of appeal successful, that which involves the combining of judicial with parliamentary functions in the Seneschal. In the view of the majority, and subject to that, the newly elected Chief Pleas will be Convention compliant. Thirdly, on the court’s finding, in agreement with the judge, that the 1998 Act does not apply, any remedy the appellants have is at the ECtHR and in Sark. The appellants are not being deprived of a remedy in this jurisdiction by the failure to quash. Fourthly, there is obvious merit, in my view, in the issue of further reform being considered by a newly elected Chief Pleas rather than by the existing Chief Pleas.

After considering the submissions, the court notified the parties during the week after the hearing that the Reform Law would not be quashed by the court.

I would confine the appellants’ relief to a declaration along the lines of that submitted by Mr Pannick, the wording of which was not challenged by Mr Crow. It will be confined to relief on ground 2. The court will consider written submissions on the precise wording.

Mr Crow was reluctant to suggest ways in which the Reform Law might be made Convention compliant if the court made findings against the respondents. That is entirely understandable because, as he said, he does not appear for the people or Government of Sark. I too do not consider it helpful to make suggestions in relation to the office of Seneschal when the initiative should come from the authorities in Sark, as newly constituted following the December elections, in consultation with the first and second respondents.

I would allow the appeal to that limited extent.

I agree with the judgment of Pill LJ and with Etherton LJ’s views as to the position of the Seneschal as Judge. Because Pill LJ has set out all the necessary details of the impugned Order in Council it is not necessary to re-state them. And because I see no useful purpose in stating in my own words the points on which all three members of the court agree, I confine myself to the point on which Pill LJ and I differ from Etherton LJ, namely the position of the Seigneur and Seneschal in Chief Pleas.

If one were starting from scratch there can be few who would think the new Reform Law of Sark satisfactory. Even if one is not a total subscriber to “pure”, Montesquieu, separation of powers theory, to confer by heredity upon an unelected man the positions and powers of the Seigneur contained in the impugned Order would be going too far by the standards of modern democratic governance. I said “man” although the Seigneur of Sark can be a woman (famously so in the case of Dame Sybil Hathaway. Sark has had three Dames since the first Seigneur, Hellier de Carteret, in 1563). And the powers of the Seneschal, although his/her position is not by virtue of heredity, would similarly not be now adopted if they were starting out with a clean sheet for a territory with no history.

But Sark is not starting from scratch. It has 450 years of history in which the Seigneur and Seneschal, along with the Tenants in Chief Pleas have had total control over the administrative, legislative and judicial authority of Sark subject only to the, in theory, overriding power of the Crown in relation to legislative and administrative authority and limitations on the jurisdiction of the Court of the Seneschal (e.g. that in relation to serious crime).

Given the weight of that tradition and history, coupled with the very weighty fact that the new Reform Law has the support of the existing Chief Pleas I approach this case with a strong prediliction in favour of upholding it, particularly so far as it relates to the governance and legislative system, rather than the judicial organ, of Sark.

That prediliction is strengthened because, there will be for the first time in Sark universal suffrage on the basis of one man one vote. That has profound implications. For if the elected members of Chief Pleas were to decide that the continued presence and powers, such as they are, of the Seigneur and Seneschal in Chief Pleas were obstructive to the expression or exercise of the will of the people, there would be nothing that could be done legally to prevent Chief Pleas from voting for a change. The Seigneur and Seneschal, neither individually nor collectively, could stop it. And if Chief Pleas voted for a change, it would surely come about – the Privy Council would follow the wishes of the people. That is the realpolitik of the situation.

True it is that the Seigneur and Seneschal could advise and seek to use their no doubt considerable influence against such a change informally. And the Seigneur could formally speak against it in Chief Pleas. Their opposition to further change would or might carry weight. That is because their views, particularly that of the Seigneur, will, given the history of Sark, come with great authority. But those positions are part of the tradition and history of Sark and I do not think there is anything in Art 3 of the First Protocol (“A3FP”) or the decisions of the Strasbourg Court which requires that those traditions be abandoned altogether. The mere fact of being able to speak about a matter with authority – having an influential voice - does not undermine democracy as such.

In this connection I accept Mr Crow’s submission that the margin of appreciation for compliance with A3FP is particularly wide. That it is very wide in the case of a free-standing fully self-governing nation state is made plain by [51-52] of Mathieu-Mohin already quoted in full by Pill LJ: I concentrate on the last half of [52]:

[Contracting States] have a wide margin of appreciation in this sphere, but it is for the Court to determine in the last resort whether the requirements of Protocol No. 1 have been complied with; it has to satisfy itself that conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate. In particular such conditions must not thwart “the free expression of the opinion of the people in the choice of the legislature”.

It is the last sentence of this passage which is the key test. The court emphasises it by repeating it at end of [54] – following a passage which recognises that an “electoral system must be assessed in the light of the political evolution of the country concerned”. This importantly recognises that one can have regard to political traditions. Retaining the Seigneur and Seneschal in Chief Pleas but with their now very limited powers will not impair the free expression of the opinion of the people of Sark.

Mr Pannick emphasised the reference to the “legitimate aim”, asking forensically what legitimate aim could the continued presence of the Seigneur and Seneschal in Chief Pleas have? And why, he asked, is that presence “proportionate”? To my mind the answer to both questions lies in Sark’s long traditions coupled with the fact that the Reform Law has been agreed by Chief Pleas.

I am reinforced in this opinion because the margin of appreciation for Sark is even wider than that considered by the Court in Mathieu-Mohin. This is by virtue of Art. 56(3) of the ECHR itself. Art 56(1) allows States to declare that the Convention shall extend to a territory, such as Sark, for whose international relations it is responsible. That the UK has done. But then Art. 56(3) comes into play:

The provisions of this Convention shall be applied in such territories with due regard, however, to local requirements.

This in effect adds a further margin of appreciation to the already wide margin of appreciation under the Protocol. I see no reason why not and every reason why the compromise hammered out in Sark and embodied in the Reform Law, as it applies to the constitution of Chief Pleas should not be recognised as legitimate.

I turn to consider Mr Pannick’s main points about the powers of the Seigneur and Seneschal in relation to Chief Pleas. First then the Seigneur. He can no longer vote nor sit on Committees. The latter fact means that he cannot take part in the day to day government of Sark, for it is governed through such Committees. He does have the power of temporary veto as described by my Lord. Is that enough to thwart the “free expression of the people”? A short delay is hardly that. And there may be good reason for a delay – if a meeting were convened at short notice at a time when many Conseillers were away and perhaps could not get back for reasons of weather, the will of the people could indeed be subverted by a kind of ambush. The power is considerably less than that of the United Kingdom’s House of Lords – which under the Parliament Act can delay an Act for a year.

One must be realistic here. You cannot generally tell how a game is actually played simply from the rules of the game – understanding the rules of chess would not give you a clue as to how the game is actually played. So also with some formal constitutional powers. You cannot understand how they really work unless you understand also what happens in practice. Take an extreme example: in law a UK Act of Parliament requires the consent not only of the two Houses but of Her Majesty the Queen. So a man from Mars who was given the formal rulebook of the UK might think from reading it that the Queen had an absolute right of veto over all legislation. Yet in reality nothing could be further from the truth.

So also with the much more limited power of the Seigneur to delay legislation. It has not been used within living memory. At most it is a “re-think” provision but in reality it is unlikely to be exercised save for good cause. And if it is exercised in a way which Chief Pleas finds unacceptable, then it will have the remedy – change or abolish it.

Next there is the power of the Seigneur to speak (but not vote) in Chief Pleas. In a small community such as Sark this makes sense. Clearly the Seigneur may sometimes have views. Those views are bound to be and ought to be communicated to the Conseilleurs at least informally. It makes sense for the process to be open and transparent, which is achieved by the right to speak. Yes, it may involve the exercise of influence, but no, it will not undermine the free expression of the people.

The last power of the Seigneur on which Mr Pannick placed major reliance was that his consent is needed to convene an extraordinary meeting of Chief Pleas if the Seneschal decided to summon one. This needs to be put in focus. Firstly, the need for such extraordinary meetings must be extremely limited. Chief Pleas is to meet four times a year anyway (Art.32(2)). Under the old system it was three times a year. Secondly, there are three means by which extraordinary meetings can be convened, when directed by the Lieutenant Governor, when summoned by the Seneschal with the consent of the Seigneur and when requested by at least nine Conseillers with the consent of the Seneschal.

The three methods to my mind provide reasonable checks and balances between them. It seems most unlikely that the Seigneur and Seneschal would be at loggerheads over calling an extraordinary meeting – and even if they were, the Seneschal would very likely be able to arrange for a request in writing of nine or more Conseillers. If he could not even get nine on a small island then any such proposed meeting would be unlikely to achieve anything. And finally there is in any event the fail-safe ability of the Lieutenant Governor to convene such a meeting should there be such falling out between Sark’s Conseillers and the Seigneur and Seneschal at a time when there was a real need for such a meeting. I think the will of the people cannot be thwarted by the impugned provision.

Given those conclusions it is not necessary to consider the other, lesser matters, relied upon as showing that the position of the Seigneur in Chief Pleas was non A3P1 compliant. To be fair, Mr Pannick did not spend much time on them.

I turn to the position of the Seneschal in Chief Pleas. He is there for life, has no right to speak on matters of substance, nor any right to vote. His functions and powers are limited – setting the agenda, supervising debate rather like the Speaker of the House of Commons and he has power, subject to the Seigneur’s consent to call an extraordinary meeting of Chief Pleas. Is that enough to thwart the “free expression of the people”? I think not for much the same reasons as I think the position of the Seigneur in Chief Pleas is not in breach of A3P1. If the Seneschal misbehaves in Chief Pleas, goes beyond his proper function of controlling reasonable debate, in reality the position will not survive – it will be voted out. And if he acts as no more than as a kind of facilitating Speaker, I cannot see the will of the people being thwarted.

In so holding I do not overlook the combination of legal powers of the Seneschal identified by Etherton LJ. My reason for disagreeing with his conclusion is that I do not think it is enough that such powers are, in his words, “capable of enabling suppression of free and appropriate debate with Chief Pleas.” The real question is whether there is a realistic prospect of such powers in fact being so used. The position is analogous to that of the Royal Assent to a United Kingdom Act of Parliament. If there were a real prospect of that being withheld to an Act passed by both Houses of Parliament the UK would be in breach of A3P1. Convention and reality play a part in considering whether there is compliance with the Article.

Indeed if anything the New Law is an a fortiori case of compliance – if there were suppression of free debate by the Seneschal there is a formal, legal method of removing his position and those powers (by a resolution of Chief Pleas followed by an Order in Council) whereas if Royal Assent were refused to an Act passed by both Houses, there would be a constitutional crisis which could only be resolved by fundamental change in the legal order – a change which is not provided for in the existing legal order.

Accordingly I agree with the course proposed by Pill LJ.

I agree with Pill LJ on all points, except one. In my judgment, the powers and responsibilities of the Seneschal under the Reform Law constitute a breach, not only of Article 6 of the Convention, but also Article 3 of the First Protocol (“Article 3”).

The following principles concerning the application of Article 3 are clearly set out in Mathieu -Mohin v Belgium (1987) 10 EHRR 1. Article 3 is of prime importance in the Convention because it enshrines a characteristic principle of democracy, and, according to the Preamble to the Convention, fundamental human rights and freedoms are best maintained by “an effective political democracy”: para. [47]. The rights in Article 3 are not absolute. Contracting States have a wide margin of appreciation. States must not, however, impose conditions which curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness. Further, any conditions imposed must be in pursuit of a legitimate aim, and the means employed must not be disproportionate. In particular, such conditions must not thwart “the free expression of the opinion of the people in the choice of the legislature”: para. [52]. For the purposes of Article 3, an electoral system must be assessed in the light of the political evolution of the country concerned; features that would be unacceptable in the context of one system may accordingly be justified in the context of another, at least so long as the chosen system provides for conditions which will ensure the “free expression of the opinion of the people in the choice of the legislature”: para [54].

In Mathieu-Mohin the European Court of Human Rights (“the Court”) was concerned with the Belgium parliamentary system. The Court held that the arrangements in question did not violate Article 3. They were not unreasonable, and fell within the margin of appreciation, bearing in mind that the system was incomplete and provisional.

It is necessary to articulate at the outset the context in which consideration of Article 3 arises in the present case. The inclusion of the Seneschal in the membership of the Chief Pleas by virtue of his office, under s.21 of the Reform Law, is plainly inconsistent with the principle in Article 3 that the voters should, by universal suffrage, chose the members of the legislature. The question is whether his inclusion in the membership of the Chief Pleas falls within the margin of appreciation, bearing in mind that, apart from the Seneschal and the Seigneur, the remaining 28 members, the Conseillers, are elected. Underlying Article 3 is the fundamental principle of a political democracy, for which universal suffrage is a pre-condition, namely that the people are governed by laws enacted by representatives elected by the people. The principle is not, of course, absolute. The Westminster system of an unelected second chamber is not, in the particular circumstances of the British constitution, in violation of Article 3. The Court in Mathieu-Mohin at para. [53] expressly distinguished between those legislatures which have only one chamber, and those which have two or more. The Court stated that, in the latter case, Article 3 must apply to at least one of the chambers. The Chief Pleas is a unicameral legislature. The debate between the parties has rightly focused on the extent to which the role and functions of the Seneschal in and in connection with the Chief Pleas is inconsistent with that fundamental principle of a political democracy to which I have referred. Only that debate will clarify whether the inclusion of the Seneschal in the Chief Pleas, as an unelected member, is sufficiently inconsistent with Article 3 to fall outside the margin of appreciation and so breach the Article.

In advancing the Respondents’ case that the proposed arrangements concerning the role of the Seneschal in the Chief Pleas fall well within the margin of appreciation, Mr. Crow emphasised with admirable clarity and cogency the following points.

Article 56 of the Convention provides for a State to declare that the Convention shall extend to all or any of the territories for whose international relations it is responsible. The Convention and The First Protocol have been extended to the Bailiwick of Guernsey by the government of the United Kingdom under Article 56. The Respondents say that, in such a case, the margin of appreciation is particularly wide since paragraph 3 of Article 56 states that the provisions of the Convention shall be applied in such territories “with due regard … to local requirements”.

The Respondents naturally emphasise that, not only will the Seneschal be vastly outnumbered by the 28 elected members of the Chief Pleas, but also he has no right to vote or to be elected to membership of any committee of the Chief Pleas. Further, the Seneschal has no right to speak, save in discharging his functions as President in relation to procedure and conduct of business.

The Respondents fairly accept that the Reform Law falls short of an ideal democratic model, but they say it should be appraised, for the purposes of Article 3, in the context of Sark’s unique constitutional history as a feudal fiefdom. The 2008 Law marks in many ways a significant constitutional and democratic advance. Further, it was approved by the Chief Pleas in February 2008, only after a lengthy process of consideration and rejection of a number of different constitutional models since 1999. The Respondents contend that, having regard to that background, and the difficulty of achieving consensus about further democratisation, including the role and functions of the Seneschal, it would be reasonable and justified, and so within the margin of appreciation, to defer further reform until after new elections under the Reform Law later this year. The newly elected body will then have an opportunity to consider the case for further reforms. The elected members, with the democratic legitimacy which such election confers on them, can legislate for such changes as they then think appropriate, subject to the need for an Order in Council to change the Reform Law.

Notwithstanding those powerful submissions, I consider that the arrangements under the Reform Law concerning the role and functions of the Seneschal in connection with the Chief Pleas fall outside the wide margin of appreciation and violate Article 3.

A description of the Seneschal as an ex officio, non-voting, non-speaking, member of the Chief Pleas who cannot be elected to a committee of the Chief Pleas does not sufficiently, and hence accurately, describe the true constitutional role of the Seneschal in the Chief Pleas under the Reform Law. The Seneschal is, ex officio, the President of the Chief Pleas with powers as to when it meets, its practice and procedure. Under s.6 of the Reform Law the Seneschal holds office for life, removable only at his own request in writing to the Seigneur or, for good cause, by the direction of the Lieutenant Governor. That is a significant departure from the previous law, the Reform (Sark) Law 1951 (“the 1951 Law”), under which the Seneschal’s term of office was three years, subject to renewal. Such an unelected President for life of a unicameral legislature, who is not appointed to his office by the electorate or by the elected members of the legislature and who the elected members have no power to discipline or remove as President, is in principle fundamentally inconsistent with a political democracy.

There are disputes of fact about whether the current Seneschal, Lieutenant Colonel Reginald Guille MBE, as ex officio President of the Chief Pleas under the 1951 Law, has controlled the proceedings of the Chief Pleas in a way which has stifled or limited debate. Lieutenant Colonel Guille vigorously denies all allegations of improper conduct, and has given evidence that he considers himself to be the servant of the Chief Pleas. It is not necessary or appropriate to express a view about those disputes. What is relevant, for the purpose of this appeal, is the power and functions of the Seneschal as President, irrespective of the identity of the actual Seneschal from time to time.

Those powers and functions are currently to be found in the Reform Law itself, and in written Rules of Procedure made by resolution of the Chief Pleas in 2002 as amended (“the Rules”), and in unwritten custom and practice. They include the following. The Seneschal convenes meetings of the Chief Pleas by publishing and distributing an agenda of the business to be transacted: s.32(1) of the Reform Law and r.1(2) of the Rules. He may, on grounds of public interest, decline to allow a question to be put or rule that the question need not be answered: r. 8. He may propose a change to the order of business, and, if supported by a simple majority, the order shall be altered: r.9. He is responsible for maintaining order at a meeting and, subject to the provisions of the Rules, regulates the conduct of business: r.10(1). It is the duty of every member to observe the rulings of the President: r.10(3). He may direct a member to discontinue his speech if he considers it irrelevant or tedious repetition of the member’s arguments: r.10(4). He may order a member of the public to withdraw from the building until the close of business of the meeting: r.10(5). He may put a proposition that a member be suspended if he considers that the conduct of the member is grossly disorderly or offensive or with malice, and there shall be no debate on or amendment of any such proposition: r.10(6). Any member so suspended shall withdraw from the meeting and leave the precincts of the building until the close of the meeting: r.10(6). Where he considers that grave disorder has arisen in a meeting, he may adjourn the meeting without putting any proposition r.10(7). He has power to dispense with certain time limits: r11(2), and to waive certain requirements as to notice: r.11(11). He provides clarification on the Rules: r.13. The Rules are not exhaustive, and the business of the Chief Pleas and its procedure are subject to unwritten rules of custom and practice as interpreted and applied by the Seneschal. Finally, in addition to four ordinary meetings of the Chief Pleas during the year, extraordinary meetings may take place on the request of at least 9 Conseillers in writing to the Seneschal, with his consent: s.32(2)(c) of the Reform Law.

Those powers of the Seneschal, taken as a whole, are capable of enabling suppression of free and appropriate debate within the Chief Pleas by elected members on topics they or some of them wish to raise. The Seneschal’s ability to refuse consent to the convening of an extraordinary meeting of the Chief Pleas, to decline to allow questions to be put or to rule that they need not be answered, to order a member to discontinue a speech, to put a proposition for suspension of a member, with no debate allowed, to adjourn meetings, without putting a proposition, and generally to decide the meaning and application of the Rules and unwritten custom and practice, are particularly relevant in this context.

There is no clearly practicable means for the elected members of the Chief Pleas to control abusive or otherwise incorrect exercise by the Seneschal of his powers as President. They have no power to dismiss or suspend him. They can apply in writing to the Lieutenant Governor under s. 6(2) of the Reform Law for his removal as Seneschal, but that process would be neither swift nor certain. On the assumption that the decisions of the Seneschal as President of Chief Pleas are not subject to parliamentary privilege, they could apply to the courts for judicial review, although whether that would be in Sark, Guernsey or England is not entirely clear, and the process would be slow, uncertain and costly.

Furthermore, the particular features of the Sark constitution under the Reform Law and the social and constitutional standing of the Seneschal in Sark are obvious disincentives for elected members to challenge the rulings and conduct of the Seneschal as President. There are only about 600 inhabitants of Sark. Within that small community the Seneschal occupies a prominent and respected position. In addition to serving as President of the Chief Pleas, he holds the following positions under the Reform Law. He is one of the four trustees who, subject to any direction of the Chief Pleas, manage, control and dispose of its property, and who sign contracts on its behalf. He is also the returning officer for the purposes of elections of Conseillers to the Chief Pleas, and, as such, is required to do everything necessary for effectually conducting the election. Critically, under the Reform Law the only court on Sark is the Court of the Seneschal in which, unless a Deputy Seneschal or a Lieutenant Seneschal is appointed to sit, the Seneschal sits alone. The elected members will doubtless bear in mind the possibility that at some point in the future they may have to appear in court before him, or one of his deputies or lieutenants, in civil or criminal proceedings.

The fact that the Reform Law has been approved by the Chief Pleas is, of course, an important consideration, as is the fact that, following elections under the Reform Law later this year, the Chief Pleas can consider and debate what further changes, if any, should be made to the functions and powers of the Seneschal. The elected members could resolve to vary, revoke or suspend the Rules under s. 36 of the Reform Law, and to promote an alteration of the Reform Law itself by seeking an Order in Council for that purpose. Those considerations cannot, in my judgment, save the Reform Law from infringement of Article 3. This is not a case like Mathieu-Mohin, in which the legislation itself provided for a finite transitional period to ease the change to a permanent system. It is wholly uncertain whether or not the Chief Pleas would resolve that there should be further reform of the functions and powers of the Seneschal consistently with the principles underlying Article 3. One of the obvious reasons for such uncertainty is the continuation, until reform, of the very powers and functions of the Seneschal under the Reform Law which are capable of suppressing free and appropriate debate by the elected members.

For all those reasons, I conclude that the powers and functions of the Seneschal as an unelected member of the Chief Pleas, and its President for life, are such that the Reform Law violates Article 3. They impair the very essence of the rights under Article 3 and deprive them of their effectiveness. Even if that is not the case, they are inconsistent with the principles underlying Article 3, and cause the Reform Law to fall outside the wide margin of appreciation.

The issue is whether the functions of the Seneschal as President of the Chief Pleas and his judicial functions in the Seneschal’s Court cause the Reform Law to violate Article 6.

The principles in this area are well established: see, for example, Bryan v United Kingdom (1995) 21 EHRR 342, Incal v Turkey (1998) 29 EHRR 449, McGonnell v United Kingdom(2000) 30 EHRR 289, and Pabla Ky v Finland(2006) 42 EHRR 34.The following passages in the Court’s judgment in Pabla Ky summarise the relevant jurispurdence:

“26.

In order to establish whether a tribunal can be considered “independent” for the purposes of Art.6(1), regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of safeguards against outside pressures and the question whether it presents an appearance of independence.

27.

As concerns “impartiality”, there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. Under the objective test, it must be determined whether, quite apart from the judges’ personal conduct, there are ascertainable facts which may raise doubts as to their impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all in the parties to proceedings.

28.

The concepts of independence and objective impartiality are closely linked and the Court will accordingly consider both issues together as they relate to the present case.

29.

This case also raises issues concerning the role of a member of the legislature in a judicial context. Although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in the Court’s case law, neither Art.6 nor any other provision of the Convention requires states to comply with any theoretical constitutional concepts regarding the permissible limits of the powers’ interaction. The question is always whether, in a given case, the requirements of the Convention are met. As in the other cases examined by the Court, the present case does not, therefore, require the application of any particular doctrine of constitutional law. The Court is faced solely with the question whether, in the circumstances of the case, the Court of Appeal had the requisite “appearance” of independence, or the requisite “objective” impartiality.

30.

Lastly, it should be borne in mind that in deciding whether in a given case there is a legitimate reason to fear that these requirements are not met, the standpoint of a party is important but not decisive. What is decisive is whether this fear can be held to be objectively justified”.

The essence of the Respondents’ case on this issue is that there is no likelihood that the Seneschal, when exercising his judicial functions, will lack independence or impartiality, or appear objectively to do so, by reason of his role and functions as President of the Chief Pleas. Mr Crow submitted that, since the Seneschal cannot be elected to any of the committees of the Chief Pleas, he cannot be associated with decisions of the Executive. He pointed out that the criminal law administered in Sark is enacted in Guernsey and not in the Chief Pleas. Moreover, under s.11 of the Reform Law any criminal offence or punishment considered beyond competence of the Seneschal’s Court shall be transferred to the Royal Court of Guernsey (s.11). As regards civil proceedings, Mr Crow submitted that no conflict could arise in cases involving customary law, or laws passed by the Chief Pleas before the Seneschal took office. Further, there is a right of appeal from the Court of the Seneschal to the Royal Court of Guernsey.

Mr. Crow further submitted that if, in any case, there was likely to be a violation of Article 6 if the Seneschal sat as the judge, the practical means of dealing with that situation would be for the case to be dealt with by a Deputy Seneschal or a legally qualified Lieutenant Seneschal, for which express provision is made in the Reform Law. If that course was not taken, the aggrieved litigant would have a right to invoke the Convention and appeal or apply for judicial review.

In summary, the Respondents’ case is that settled jurisprudence establishes that violation of Article 6 does not turn on any theoretical concept of separation of powers; there is no reason to suppose that a violation of Article 6 would be a possibility in many cases in the Seneschal’s Court; and if that possibility did materialise, in any particular case, there exist the practical means of avoiding the conflict or of remedying a breach.

The present case is exceptional. In my judgment, the constitutional arrangements in the Reform Law are such that it can be predicted in advance that few, if any, cases dealt with by the Seneschal in his Court are likely to be free of an objective appearance of lack of impartiality.

As President, the Seneschal can be expected to play a role in relation to all laws and decisions of the Chief Pleas. Further, the committees of the Chief Pleas constitute, in effect, the Executive. Although the Seneschal cannot be elected to the committees, from the public perspective the Chief Pleas and the Executive comprise the same individuals and are embraced within the same institution. Any direct involvement in the passage of legislation or executive functions, even of a purely procedural nature, may be sufficient to cast doubt on the Seneschal’s impartiality or independence when he is subsequently involved as a Judge in a case with which that legislation or executive function is connected: McGonnell at paras [52] [55] [57].

A litigant cannot be expected to know whether the Seneschal has been involved in a process within the Chief Pleas which, whether in relation to legislation or an executive matter, might have some direct or indirect bearing on the subject matter of the proceedings. The reasonable assumption would be that the Seneschal probably had been, or at least might well have been, so involved, but the litigant cannot reasonably be expected to have researched and discovered any such involvement. Accordingly, in every case, so far as the litigant is concerned, there exists a possibility of lack of independence and impartiality by the Seneschal acting in a judicial capacity. In view of the inevitably limited knowledge of the litigant about the involvement of the Seneschal in the Chief Pleas on any particular occasion or matter, the problem is not resolved by rights of appeal or judicial review. For those reasons, I consider that the Reform Law gives rise to a violation of Article 6.

The infringements of the Convention I have mentioned would be avoided if the Seneschal ceased to have any functions as President of the Chief Pleas, including the requirement to give his consent for extraordinary meetings. That would still leave him with an impressive variety of public functions. In particular, in addition to being the senior Judge on Sark, he would remain one of the four trustees in relation to property of the Chief Pleas and the Returning Officer for the purposes of elections held under the Reform Law. Those remaining functions, as a group, have a coherence in reflecting the kind of public service for which judicial independence and integrity are desirable.

On the other hand, I would not regard the giving up of judicial functions by the Seneschal as sufficient to avoid infringement of Article 3 by virtue of his his role and functions as an unelected member and President for life of the Chief Pleas.