Barclay & Ors R (on the application of) v The Seigneur of Sark & Anor

Sark is one of the islands comprising the Crown Dependency of the Bailiwick of Guernsey. Her Majesty the Queen is the Sovereign of Guernsey, her predecessors having succeeded to the sovereignty of Guernsey from the Duke of Normandy in the 13^th century. In 1565, acting by Letters Patent, Queen Elizabeth I appointed Hellier De Carteret as the Seigneur of Sark and granted it to him as a Royal Fief.

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.

The Letters Patent granted in 1565 required the Seigneur to keep the island continually inhabited or occupied by 40 men (“the quarantine”) who had to be English subjects or swear allegiance to the Crown. To achieve and to maintain the island’s defences, Hellier De Carteret leased 40 parcels of land (known as “Tenements”) at a low rent on condition that a house was built and maintained on each parcel and that “the Tenant” provided one man, armed with a musket, for the defence of the island. The 40 tenements survive to this day, albeit, with minor boundary changes. The current population of Sark is approximately 600.

Sark has a legislature which is called Chief Pleas. This body is also the executive and in that capacity it usually acts through committees. Chief Pleas currently consists of the following persons: -

The Seneschal is also the island’s Judge. He is not a qualified lawyer but, nonetheless, he administers justice on the island.

For some years there has been a significant debate within Sark about such matters as the composition of Chief Pleas and whether the offices of the Seigneur and Seneschal should survive and, if so, in what form. The details and history of the debate need not be set out but I was provided with substantial evidence about how this debate has evolved over the last few years. The debate has come to fruition in this sense. On 9 April 2008 Her Majesty in Council gave Royal Assent to two Laws promoted by Chief Pleas: they are the Reform (Sark) Law, 2008 and the Real Property (Transfer Tax, Charging and Related Provisions) (Sark) Law, 2007. In the remainder of this judgment these Laws will be referred to respectively as the “Reform Law” and the “Real Property Law”.

The Reform Law provides for a composition of Chief Pleas which is very different from the current position. Under the Reform Law Chief Pleas will be composed of 28 elected Conseillers, the Seigneur and the Seneschal. Essentially, the Conseillers will be elected by the persons who are ordinarily resident in Sark and 18 years of age or over. It is anticipated that elections to Chief Pleas for the 28 Conseillers will take place in December 2008.

The Claimants object to the retention of the Seigneur and the Seneschal as members of Chief Pleas. They assert that their membership of Chief Pleas is inconsistent with Article 3 of the First Protocol of the European Convention on Human Rights.

The Claimants also object to the dual role of the Seneschal. By that I mean that they object to him being the Senior Judge for the Island and also a member of Chief Pleas. They assert that this arrangement is inconsistent with Article 6 of the Convention.

The Claimants further take issue with the fact that whereas an “alien” (as defined in the Reform Law) may vote in an election for Conseillers he or she cannot stand for election as a Conseiller. This state of affairs, submit the Claimants, is incompatible with Article 3 of the First Protocol of the Convention, Article 14 of the Convention and also European Community Law, in particular, Article 19 (1) of the EC Treaty.

The Claimants’ complaint about the Real Property Law is that it makes provision for payment to the Seigneur for his services. As I understand it the Claimants submit that if the position of the Seigneur as a member of the Chief Pleas is incompatible with the European Convention it is unlawful for him to be paid from the public purse for providing his services.

During the course of the hearing there was considerable debate between leading Counsel as to the basis upon which the Claimants might be entitled to relief (assuming their complaints to be well-founded) and, to a lesser extent, the appropriate form of such relief. The issue of the Claimants’ entitlement to some form of relief relating to the alleged breaches of the Convention raises difficult and to some extent unresolved questions. I will deal with these matters later in this judgment. At this stage it suffices that I record that the Claimants have a sufficient interest in the subject matter of these proceedings. I say that since the first two Claimants own one or more Tenements on the island of Sark and also an island off Sark called Brecqhou over which Chief Pleas claims authority to legislate. The Third Claimant is ordinarily resident in Sark and over the age of 18. He wishes to stand for election to Chief Pleas but is prevented from so doing by the Reform Law because he is a citizen of Slovenia and an “alien” within the definition given to that word in the Reform Law.

The greater part of this judgment will consider the substantive complaints of the Claimants. I should say that in the written material the Claimants formulated 4 specific grounds of challenge. By the end of the hearing, however, it was accepted that if the challenges based upon the European Convention and the Treaty failed the other formulations contained in the grounds would also fail.

Before dealing with the substantive issues, however, I should describe shortly how legislation is enacted in and for Sark.

Chief Pleas legislates for Sark through a combination of Laws and Ordinances. Ordinances have the force of law when Chief Pleas so determine. Laws, however, acquire the force of law only once they are approved by Her Majesty by Order in Council.

The legislature of Guernsey may legislate for Sark in criminal matters without the consent of Chief Pleas. It may legislate in any other matter with the consent of Chief Pleas. In the past, Chief Pleas has exercised its power to reject draft Bailiwick-wide legislation.

The process for obtaining the grant of Royal Assent for a Law is usually as follows. After Chief Pleas passes a proposed law it is remitted (as a Projet de Loi) through the Lieutenant Governor and the Law Officers of Guernsey to departmental officials at the Ministry of Justice. In turn, the officials pass the Projet de Loi to the First Defendant and another Departmental Minister of the Ministry of Justice. I should say at this stage that the Second Defendant to this claim is constituted by the First Defendant, the Departmental Minister and the Lord President of the Council. Each of those persons is a Privy Counsellor. The First Defendant and his Departmental Minister make a decision about whether to recommend Royal Assent and then transmit their view to the Lord President who makes his/her contribution to the decision. Each Projet de Loi is considered with the assistance of officials.

At a stage in this procedure consideration will also be given to any petitions that have been submitted in support of or in opposition to the Project de Loi in question.

The Second Defendant, as a Committee of the Third Defendant, reaches a decision once the Lord President has seen and agreed the recommendations made by the First Defendant and his departmental colleague. If the Second Defendant recommends that Royal Assent be granted, the Project de Loi will be presented to the next available meeting of the Third Defendant with a report on any petition that has been received. The Projet de Loi does not go to the Third Defendant if the Second Defendant decides not to approve it. Her Majesty in Council then gives her assent on the recommendation of her Ministers; Royal Assent is granted by way of an Order in Council.

The evidence put before me demonstrates that in considering whether or not to recommend approval to Her Majesty, the Second Defendant will in general respect the decision of Chief Pleas. In other words, there will tend to be a presumption in favour of recommending Royal Assent. However, proper consideration is given to the Crown’s responsibilities so that if a Projet de Loi would violate the Crown’s international obligations or any fundamental constitutional principle or it was clearly not in the public interest to become law, then a recommendation might be made to withhold Royal Assent. Otherwise the circumstances in which any recommendation to withhold Royal Assent would be made are exceptional.

This Article provides: -

“Right to free elections

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”.

This provision has been considered in detail by the European Court of Human Rights in Mathieu-Mohin and Clerfayt v Belgium [1987] 10 EHRR 1. The following passages of the judgment are important to the resolution of the issues in this case.

“A Interpretation of Article 3 of Protocol No.1

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 of No.1 is accordingly of prime importance in the Convention system.

48.

Where nearly all the other substantive clauses in the Convention and in Protocols Nos. 1, 4, 6 and 7 use the words ‘Everyone has the right’ or ‘No one shall’, Article 3 uses the phrases ‘ the High Contracting Parties undertake’. It has sometimes been inferred from this that the Article does not give rise to individual rights and freedoms ‘directly secured to anyone’ within the jurisdiction of these Parties, but solely to obligations between States.

If that was so, Mrs Mathieu-Mohin and Mr Clerfayt’s application to the Commission would not have been admissible, since – under Article 25 of the Convention – only a person claiming to be the victim of the violation of one of his own rights and freedoms has standing to petition the Commission.

49.

Such a restrictive interpretation does not stand-up to scrutiny…...

50.

Accordingly and those appearing before the Court were agreed on this point – the inter-State colouring of the words of Article 3 does not reflect any difference of substance from the other substantive clauses in the Convention and Protocols. The reason for it would seem to lie rather in the desire to give greater solemnity to the commitment undertaken and in the fact that the primary obligation in the field concerned is not one of abstention or non-interference, as with the majority of the civil and political rights, but one of adoption by the State of positive measures to ‘hold’ democratic elections.

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 ‘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 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 regard 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 in one or two ballots.

Here to 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 the 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 the 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 and the opinion of the people in the choice of the legislature’ implies essentially – apart from freedom of expression (already protecting 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 ‘free expression of the opinion of the people in the choice of the legislature’”.

Mr. Pannick QC and Mr. Crow QC, respectively leading counsel for the Claimants and Defendants, agree that whether or not the membership of the Seigneur and the Seneschal of Chief Pleas is a breach of Article 3 of the First Protocol depends upon my application of the principles set out above.

I deal firstly with relevant parts of the Reform Law.

Section 1 provides that all legislative and executive functions which may be exercised within Sark are exercisable by Chief Pleas constituted in accordance with the provisions of the Reform Law. The section also empowers functions to be undertaken by a Committee of Chief Pleas or other body or person upon which or whom the function is imposed or conferred.

The composition of Chief Pleas under the Reform Law has been set out above. What rights powers or duties are conferred upon (a) the Seigneur and (b) the Seneschal in relation to their membership of Chief Pleas?

The Seigneur has the following rights powers and duties:-

The Seigneur has no right to vote. Further the effect of his right of veto over Ordinances is limited. The relevant section of the Reform Law which confers the right of veto is section 38 which provides as follows:-

“38 (1). Subject to sub-section (2) and (3), the Seigneur may, during any meeting of the Chief Pleas at which an Ordinance is made, veto any Ordinance made at that meeting.

(2)

Where an Ordinance has been vetoed pursuant to sub-section (1) it shall not be registered but shall again be laid before the Chief Pleas not earlier than 10 days, and not later than 21 days, after the meeting at which it was made.

(3)

Where an Ordinance is laid before the Chief Pleas pursuant to sub-section (2), the Chief Pleas may either – (a) confirm the Ordinance, whereupon the veto shall cease to be operative and the Ordinance shall take effect from the date of its registration, or otherwise in accordance with its provisions, as if it had not been vetoed; or (b) refuse to confirm the Ordinance, whereupon it shall not be registered and shall not take effect.

As is obvious from the above a veto by the Seigneur may result in one of two outcomes shortly after the veto has been made. Chief Pleas may affirm the Ordinance – in which case the veto will cease to have effect. Alternatively, Chief Pleas may change its mind about the Ordinance. In this context, of course, it is the Conseillers who will be making the decision since not only does the Seigneur have no vote but neither does the Seneschal.

The Seneschal has the following rights powers and duties in relation to Chief Pleas: -

The rights conferred under Article 3 are not absolute. They can be subject to limitations and the Contracting States may make the rights subject to conditions. Each Contracting State has a wide margin of appreciation. The Convention applies to Sark by virtue of a notification by the United Kingdom Government to the Secretary General of the Council of Europe under Article 56 of the Convention. Article 56(3) provides that the Convention shall be applied in such a territory “with due regard to local requirements”. Obviously, therefore, the particular requirements of Sark are important matters to be considered when a decision is being reached about whether a provision of the Convention is being broken. The Court will find a breach of Article 3 only if it is satisfied that the conditions or limitations curtail the rights conferred to such an extent as to impair their very essence and deprive them of their effectiveness.

I cannot accept that the comparatively limited rights and powers conferred upon the Seigneur and the Seneschal impair the very essence of the rights conferred under Article 3. Crucially, neither the Seigneur nor the Seneschal is entitled to vote. The Seneschal is not even permitted to influence a vote by speaking for or against a proposed Law or Ordnance. The Seigneur’s right of veto is limited to Ordinances and, in truth, is no more than a means by which he can ask Chief Pleas to revisit a decision. It is impossible, in reality, to envisage that the power could ever be used in such a way that it would frustrate the will of the Conseillers permanently and the reality is that the power of veto, if exercised, is simply a mechanism whereby the Seigneur can require the Conseillers to consider for a second time whether or not a proposed Ordinance should become one.

I appreciate, of course, that the First Defendant has expressed concerns about the continuing role of the Seigneur and the Seneschal within Chief Pleas. He expressed those concerns clearly in letters dated 12 December 2007 to the Bailiff of Guernsey and 13 January 2008 to the Seneschal. He also appears to have taken the view that a body which is wholly elected is to be preferred in terms of the European Convention. I simply observe, however, that it is as well to note that those letters were written at a time when the proposed Reform Law was in a different form – at that stage the preferred proposal was not that all members of Chief Pleas should be elected save for the Seigneur and the Seneschal. It is also worth noting, of course, that the First Defendant recognises that the composition of Chief Pleas as provided for by the Reform Law would be very substantially preferable (in Convention terms) to the composition of Chief Pleas as it currently exists.

I accept the point made on behalf of the Defendants that there is no principle in the jurisprudence of the European Court of Human Rights (at least to date) which suggests that a state cannot comply with Article 3 of the First Protocol unless every member of its legislative body is democratically elected. A non-elected House of Lords does not put the United Kingdom in breach of Article 3 even though it is part of the legislature of the United Kingdom. I do not accept that just because Chief Pleas is a single chamber legislature the fact that it has two non elected members out of thirty (neither of whom can vote) renders its composition a breach of Article 3.

During the course of submissions much was made of the fact that the constitutional arrangements in Sark may be considered as transitional. It is obvious that the position of the Seigneur and Seneschal within Chief Pleas may be debated from an entirely different perspective when the voting members of the Chief Pleas consist of 28 Conseillers elected by the residents of Sark. It is at least reasonably possible that the Conseillers may consider that unelected members of Chief Pleas should not exist.

The difficulty in pursuing this line, however, is that there is no real means of predicting what the newly constituted Chief Pleas might decide on this issue or when such decision as is made may occur. For that reason I do not base my decision that there is no breach of Article 3 by virtue of the composition of Chief Pleas in part, at least, on the basis that the arrangements provided for under the Reform Law are transitional ones. It seems to me that I must grasp the nettle. Either the composition of Chief Pleas provided for is Convention compliant or it is not. I do not regard the composition of Chief Pleas under the Reform Law as being inconsistent with the rights conferred by Article 3.

In reaching that decision, however, I do regard it as legitimate to have regard to the history and previous constitutional arrangements of Sark. The positions of Seigneur and Seneschal are ones which have been inextricably linked with the governance of Sark, literally, over centuries. I see no legal impediment to there being some continuation of those links certainly in the modified form suggested.

It also seems to me to be of relevance that Chief Pleas, as constituted currently, approved the membership of Chief Pleas as provided for under the Reform Law by a significant majority.

I have also considered whether or not membership of Chief Pleas by the Seigneur and the Seneschal Pleas is being pursued for a legitimate aim. I take the aim to be, essentially, two-fold; their continued membership of Chief Pleas is part of a package of measures which was most likely or at least very likely to find favour with a majority of the members of Chief Pleas as currently constituted; their continued membership would provide some link between the past and the future. I can find no basis for concluding that such aims are not legitimate.

To conclude, therefore, I have reached the clear decision that the provisions of Article 3 of the First Protocol are not infringed by the Seigneur and the Seneschal being members of Chief Pleas.

The other point which arises in relation to Article 3 is whether the prohibition on “aliens” from standing for election to Chief Pleas is an infringement.

Article 3 is designed to ensure “the free expression of the opinion of the people in the choice of the legislature”. The word “people” is not defined in any way.

As Mr Pannick QC points out there is nothing in Article 3, itself, which suggests that the word “people” should be confined to citizens as opposed, for example, to persons who are ordinarily resident in the state.

Mr Crow QC on behalf of the Defendants submits that the issue of aliens being prevented from standing for election in the context of Article 3 has been considered and decided in Mathieu-Mohin. He relies on this short passage from the extract set out above: -

“…. the phrase ‘conditionswhich will ensure the free expression and 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(my emphasis) in the exercise of their right to vote and their right to stand for election.”

Taken literally, I agree that this passage suggests that the European Court of Human Rights is equating the right to stand for election with the concept of citizenship.

The difficulty I have with this is the one referred to by Mr Pannick QC. In Mathieu-Mohin the Claimants were citizens of Belgium. There was no issue in that case about the right of a non-citizen to stand for election. As I understand it, that issue was not raised or discussed in the case. In those circumstances it seems to me to be unlikely that the European Court of Human Rights was laying down authoritatively that Article 3, in effect, applies only to citizens as opposed to other categories of persons.

Rightly or wrongly I do not regard the issue raised in this case as having been decided definitively in the decision of Mathieu-Mohin. That said, it seems to me that there are two possible approaches to how the word “people” is to be interpreted.

One such approach is to proceed on the basis that the word people in Article 3 should have a meaning which is the same in all the Contracting States. It seems to me to be obvious that in a democracy there can be no question but that the citizens of the state will be afforded the right to vote and the right to stand for election (subject of course to such things as age limitations). However, democracies may legitimately decide to differentiate between citizens and other persons in this context. If the word “people” is to have a uniform meaning in all Contracting States it seems to me that such meaning should be limited to citizens since that would be acceptable as a minimum to all states which are democratic.

The other possible approach is to follow the general principles laid down in Mathieu-Mohin. On that basis a Contracting State is afforded a wide margin of appreciation in deciding who qualify as “people” within Article 3 and an infringement of Article 3 will occur only if the very essence of the rights conferred is affected. In my judgment, it cannot be said that the very essence of the rights conferred have been, in effect, rendered nugatory by a prohibition upon aliens standing for election.

It may well be that Mr Pannick QC is right when he submits that there is an unexplained inconsistency in this case in that a non-citizen is permitted to vote provided he or she satisfies residence criteria but yet he or she is refused the right to stand for election. Viewed objectively, that may appear strange. This, however, must be looked at in context. As I understand it, Mr Pannick QC does not suggest that a prohibition upon aliens which prevented them standing for election and voting would infringe Article 3. He accepts that a Contracting State is entitled to decide that its electorate shall be citizens only and in that event there can be no objection if it also decides that only its citizens can stand for election. On that basis I do not see why a Contracting State cannot decide to permit a non-citizen to vote but yet determine that such a person cannot stand for election without putting itself in breach of Article 3.

It follows that I do not accept that there is a breach of Article 3 because aliens are precluded from standing for election to Chief Pleas as Conseillers. That being so, Article 14 of the Convention cannot avail the Claimants.

The Claimants also allege that the prohibition upon aliens standing for election infringes European Community Law, in particular Article 19 of the Treaty. This Article provides:-

“1.

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……….”

The narrow issue for determination is whether or not elections to Chief Pleas are municipal elections within Article 19.

Paragraph 1(b) of Article 2 of Council Directive 94/80/EC defines ‘municipal election’ as meaning:-

“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;”

Paragraph 1(a) defines basic local government unit as:-

“the administrative entities listed in the Annex which, in accordance with the law 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;”

The Annex to the Directive makes no mention of Sark. In relation to the United Kingdom it provides:-

“counties in England; counties, county boroughs and communities in Wales: regions and Islands in Scotland; districts in England, Scotland and Northern Ireland; London Boroughs; Parishes in England; the City of London in relation to ward elections for common councilmen”

It is common ground between the parties that the Directive draws a distinction between “basic local government units” on the one hand and national parliaments on the other. The short point taken by Mr Crow QC is that Chief Pleas should be treated as a national parliament and not a basic local government unit. He further points out that there is nothing in the Directive to suggest that the same body could be both.

In this context it is important to note that the European Commission has consistently held that elections for membership to Chief Pleas are not municipal elections.

I share the view of the Defendants and the European Commission that elections to Chief Pleas are not municipal elections. The characteristics of Chief Pleas are much more akin to a national Parliament than a body exercising local government functions. That is demonstrated, most simply, by its power to legislate (subject only to obtaining Royal Assent) over a wide variety of topics. The two Laws in the instant case provide excellent examples of how it uses its wide-ranging legislative powers.

It follows that I reject the submission made by the Claimants that the prohibition upon an alien standing for election to Chief Pleas is a breach of European Community Law.

The Reform Law provides that the Court of the Seneschal remains the sole Court of Justice in Sark. The Seneschal exercises both criminal and civil jurisdictions although his criminal jurisdiction is limited by sentencing powers. The Claimants contend that the role of the Seneschal as the Senior Judge in Sark breaches Article 6 of the European Convention because of his membership of Chief Pleas which, of course, exercises executive and legislative functions.

Article 6 (1) of the European Convention on Human Rights provides:-

“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 within a reasonable time by an independent and impartial tribunal established by law……..”

In McGonnell v The United Kingdom [2000] 30 EHRR 289 the Applicant complained to the European Court of Human Rights of a breach of Article 6(1) allegedly arising out of the positions held by the Bailiff of Guernsey. At the material time the Bailiff was the Island’s chief citizen and representative who was appointed by Letters Patent. He was the President of the States of Election, President of the States of Deliberation and President of the Royal Court of Guernsey.

The relevant facts were as follows. The Applicant bought the Calais Vinery in St. Martins, Guernsey, in 1982. Thereafter he made a number of planning applications seeking permission to use the land for residential purposes. All applications were refused and an appeal against one refusal was dismissed by the Royal Court of Guernsey in July 1984. In 1986 or 1987 the Applicant moved into a converted packing shed on his land. In 1988 a planning inquiry was convened to consider the draft Detailed Development Plan No.6 (DDP6) and the Applicant made representations to the inquiry. The Inspector recommended to the President of the Island Development Committee that a dwelling on the Applicant’s land would be an intrusion into the agricultural/horticultural hinterland and supported the view that the Applicant’s land should be included in a zone reserved for agricultural purposes in which development was generally prohibited. In due course the States of Deliberation, presided over by the Deputy Bailiff Mr. Graham Dorey, debated and adopted DDP6. In the adopted plan the Applicant’s land was within a zone reserved for agricultural purposes.

In due course (July 1991) an application for planning permission to convert the packing shed on the Applicant’s land to a dwelling house was rejected. As a matter of fact the Applicant had been living in the packing shed for some years. In rejecting his application the planning authority took into account the terms of DDP6.

On 27 March 1992 the Applicant was convicted at the Magistrates’ Court on a guilty plea of changing the use of the shed without planning permission. On 15 February 1993 the planning authority applied for permission to carry out the necessary works to remedy the breach of planning legislation. In due course the Royal Court of Guernsey comprising the Bailiff and three others granted the planning authority’s application. Thereafter, the Applicant made a further application for a change of use of his land but this was rejected by the planning authority and dismissed on appeal by the Royal Court which consisted of the Bailiff (by then Sir Graham Dorey) and seven Jurats.

The principles upon which the Court of Human Rights acted in finding a breach of Article 6 are set out in paragraphs 46 to 58 of its judgment. The relevant extracts are:-

“46.

The Applicant pointed to the non-judicial functions of the Bailiff, contending that they gave rise to such close connections between the Bailiff as a judicial officer and the legislative and executive functions of government that the Bailiff no longer had the independence and impartiality required by Article 6. As specific examples, the Applicant pointed to three matters which were not referred to before the Commission. They are the facts that the Bailiff is invariably appointed from the office of the Attorney General, that he acts as Lieutenant General of the Island when that office is vacant, and that the Bailiff who sat in the present case had also presided over the States of Deliberation when DDP6, the very Act which was at issue in the Applicant’s later case, was adopted……

47.

The Government recalled that the Convention does not require compliance with any particular doctrine of separation of powers. It maintained that whilst the Bailiff has a number of positions on the Island, they cannot give rise to any legitimate fear in a reasonably well informed inhabitant of Guernsey of a lack of independence or impartiality because the positions do not involve any real involvement in legislative or executive functions. In particular, it underlined that when the Bailiff presides over the States of Deliberations or one of the four States Committees in which he is involved, his involvement is not that of an active member, but rather he is an independent umpire, who ensures that the proceedings run smoothly without taking part or expressing approval or disapproval of the matters under discussion. In connection with the reasons for the Royal Court’s judgment, the Government considered that the Bailiff’s summing-up taken together with the decision of the Jurats gave sufficient reasons to comply with Article 6 of the Convention.

48.

The Court recalls that it found in its Findlay v The United Kingdom judgment [1997] 24 EHRR 221. para 73 that:

In order to establish whether a tribunal can be considered as “independent” regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence……..

As to the question of “impartiality” there are two aspects of 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………

The concept of independence and objective impartiality are closely linked.

49.

In the present case, too, the concept of independence and objective impartiality are closely linked, and the Court will consider them together.

50.

The Court first observes that there is no suggestion in the present case that the Bailiff was subjectively prejudiced or biased when he heard the Applicant’s planning appeal in June 1995………………

51.

The Court can agree with the Government that neither Article 6 nor any other provision of the Convention requires the State 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 the questions of whether the Bailiff had the required “appearance” of independence, or the required “objective” impartiality.

52.

In this connection, the Court notes that the Bailiff’s functions are not limited to judicial matters, but that he is also actively involved in non-judicial functions on the Island. The Court does not accept the Government’s analysis that when the Bailiff acts in a non-judicial capacity he merely occupies positions rather than exercising functions: even a purely ceremonial constitutional role must be classified as a “function”. 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.

53.

The Court observes that the Bailiff in the present case had personal involvement with the planning matters at the heart of the Applicant’s case on two occasions. The first occasion was in 1990, when as deputy Bailiff, he presided over the States of Deliberation at the adoption of DDP6. The second occasion was on 6 June 1995, when he presided over the Royal Court in the determination of the Applicant’s planning appeal….

54…………..

55………………. With particular respect to his presiding, as deputy Bailiff, over the States of Deliberation in 1990, the Court considers that 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 and ……… there was no obligation on him to exercise his casting vote against the proposition before the States where that vote impinged on his conscience. Moreover, the States of Deliberation in Guernsey was the body which passed the regulations at issue…..

56……..

57.

The Court thus considers that the mere fact that the deputy Bailiff presided over the States of Deliberation when DDP6 was adopted in 1990 is 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 Applicant therefore had legitimate ground for fearing that the Bailiff may have been influenced by his prior participation in the adoption of DDP6. That doubt in itself, however slight its justification, is sufficient to vitiate the impartiality of the Royal Court …!.

In a concurring opinion Sir John Laws, sitting as a Judge ad hoc of the Court said this: -

“I add a few words of my own merely to emphasise that the only objective basis upon which, on the fact of this case, a violation of Article 6(1) may properly be found depends in my view entirely upon the fact that the Bailiff who presided over the Royal Court in the legal proceedings giving rise to this case presided also (as deputy Bailiff) over the States of Deliberation in 1990 when DDP6 was adopted. That is the thrust of the reasoning in paragraph 57 of the principal judgment with whose terms I entirely agree.

If it were thought that a violation might be shown on any wider basis, having regard to the Bailiff’s multiple roles, I would express my firm dissent from such a view!.

It is readily apparent from the principal judgment and Sir John Laws’ comments upon it that the decision in McGonnell turned very much upon the particular factual circumstances with which the Court was concerned. During the course of his submissions, however, Mr Pannick QC drew attention to passages in the opinion of the Commission in order to support a submission that the appearance of independence and impartiality required by Article 6(1) cannot be satisfied if the Judge in question has substantial legislative and executive functions.

There can be no doubt that the majority opinion of the Commission substantially supports the submission made by Mr Pannick QC. Equally clearly, to repeat, the Court decided the case on much narrower grounds and ones which related very much to the particular facts of the case.

In Pabla Ky v Finland (a judgment of the European Court of Human Rights delivered on 22 September 2004) the Court was dealing with a complaint under Article 6(1) on the basis that one of the members of the Finnish Court of Appeal (appointed as an expert member) was also a member of the Finnish Parliament at the time of the relevant litigation. The Court dismissed the complaint. At paragraph 29 of its judgment the following passage appears:-

“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 courts’ case-law (see Stafford v The United Kingdom ….) neither Article 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 (see McGonnell v The United Kingdom… and Kleyn and Others ……)

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 have not been met, the standpoint of party is important but not decisive. What is decisive is whether this fear can be held to be objectively justified, (see, mutatis mutandis, Hauschaild v Denmark ……….)

In my judgment the mere fact that the Seneschal is a member of Chief Pleas (with the rights powers and duties set out above) and also the Judge of Sark does not mean that he lacks the impartiality and/or independence and/or the appearance thereof demanded by Article 6(1). If he did it would mean that the holder of judicial office is, effectively, barred from holding a position within a legislature or executive. Recognising the difficulty of that proposition, Mr Pannick QC stresses the senior position which the Seneschal holds within Chief Pleas. In particular, he stresses that the Seneschal is the President of Chief Pleas.

I do not think that the Seneschal’s alleged senior position is sufficient to displace the view I have formed. It may be that the Seneschal is a senior member of Chief Pleas in one sense – he is its President. In another and, in my judgment, more meaningful sense he has far less power than any of the Conseillers. He cannot vote. He cannot speak in favour of or against the proposed Laws or Ordinances.

It is also important, in my judgment, to recognise that the Seneschal is not the sole judge on Sark. The judicial functions within Sark are exercisable by the Court of the Seneschal. The Seneschal has a deputy Seneschal and the Reform Law makes provision for the appointment of Lieutenant Seneschals. In simple terms, therefore, a number of persons exist or potentially exist who can be called upon to administer justice in Sark. In an appropriate case, therefore, a person can be appointed who has no connection whatsoever with Chief Pleas.

Since I have found that the provisions in the Reform Law which relate to the Seigneur do not breach the European Convention there can be no basis for a conclusion that the provision within the Property Law which permits him to be paid from the public purse is unlawful.

Even had I been of the view that the position of the Seigneur breached Article 3 of the First Protocol I would still have been extremely dubious about whether or not it is correct to conclude that an enactment which authorises payment for his services is itself unlawful. On any view many of the Seigneur’s duties are undoubtedly lawful and I can see no justification for the view that the payment to the Seigneur of an annual salary is unlawful simply because some of the functions conferred upon him constitute breaches of the European Convention.

As has become apparent from the foregoing, the Claimants have failed to persuade me that their complaints under the Convention and the EC Treaty are well founded. It follows that the Claim must be dismissed. However I am conscious that the Claimants may seek to persuade a higher Court that the views I have expressed thus far are wrong. Accordingly, it is necessary that I deal, albeit quite shortly, with the issues which arise as to whether or not the Claimants have any right to relief in these proceedings. In this context, of course, it is as well to remind myself that the central claim made against the Defendants is that the advice which they gave to Her Majesty (to the effect that she should give the Royal Assent to the two Laws) was unlawful.

Mr Pannick QC and Ms Simor submit that the matters raised by the Claimants (as discussed above) are justiciable under the Human Rights Act 1998 in the Courts of England and Wales for two reasons. The first reason advanced is that this Court has jurisdiction under the 1998 Act when a decision in this country has effect in a territory to which the United Kingdom has extended the applicability of the Convention. The second reason is because the proceedings against the Defendants are brought in respect of their decisions on behalf of the Government of the United Kingdom or the Crown of the United Kingdom taken in their own right and by reason of their own responsibilities.

It is also submitted on behalf of the Claimants that they are “victims” for the purpose of section 7 of the Human Rights Act 1998 and, therefore, entitled to bring these proceedings.

It is common ground that the Convention provisions which the Claimants allege are breached in this case were extended by the United Kingdom to Sark. Articles 6 and 14 were extended to Sark by virtue of Article 56 of the Convention. Article 3 of the First Protocol was extended to Sark by virtue of other Articles of the Protocol. Further, as a matter of international law, it is common ground that the United Kingdom Government is responsible for any breaches of Convention rights as extended to Sark.

Notwithstanding this common ground Mr Crow QC and Mr Hooper submit that the Human Rights Act 1998 cannot afford a remedy to the Claimants in this case.

In order to understand their submissions it is necessary to remind myself of some of the provisions of the Act. For the purposes of the Act the term “Convention rights” includes the rights set out in Articles 2 to 12 and 14 of the Convention and Article 1 to 3 of the First Protocol. Section 4 of the Act provides the remedy in a case where a Court determines that a provision of primary legislation is incompatible with a Convention right; the remedy is a declaration of incompatibility. Section 6 of the Act makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 7 enables a person who claims that a public authority has acted unlawfully under section 6 to bring proceedings against that authority under the Act in the Courts of England and Wales.

In their written Skeleton Arguments Mr Crow QC and Mr Hooper submit that the rights conferred by the Convention as extended to Sark in the manner described above are not “Convention rights” within the meaning of the 1998 Act. In support of that proposition they cite the following passage from the speech of Lord Nicholls in R (Quark Fishing Limited) v The Secretary of State for Foreign and Commonwealth Affairs [2006] 1 AC 529:

“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 the 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 freedom set out in the Convention. But such a notification does not extend the reach of section 6 and 7 of the Act. The position is the same in respect of protocols.”

In paragraph 62 of their Lordships’ opinions Lord Hoffman expresses a view to like effect.

On the basis of these views the submission of Mr. Crow QC is clearly well founded.

It is only right that I should draw attention to the fact that Lord Bingham and Baroness Hale neither concurred with nor dissented from the views expressed by Lord Nicholls and Lord Hoffman. That was a deliberate stance on their part since all their Lordships were agreed that the case could be resolved against the Claimant in Quark independently of the point now under consideration. It may also be that a proper reading of the speech of Lord Hope suggests that he was adopting a contrary view to the view expressed by Lord Nicholls and Lord Hoffman – see paragraph 92, in particular. However, insofar as there was a majority view in Quark it was Lord Nicholls and Lord Hoffman who expressed it.

In R(Al-Skeini and Others) v The Secretary of State for Defence [2008] 1 AC Lord Brown said at paragraph 134 of their Lordships’ speeches:-

“I agree, of course, that there is a distinction between rights arising under the Convention and rights created by the Act by reference to the Convention. A plain illustration of this arises from the temporal limitations imposed by the Act: its non-retrospectivity as established in Re McKerr [2004] 1 WLR 807. Another illustration is the Act’s non-applicability in Article 56 cases. Consider R (Quark Fishing Limited) v The Secretary of State for Foreign Affairs and Commonwealth Affairs [2006] 1 AC 529, discussed by Lord Bingham at paras 18-20. 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 been liable internationally for any breach. It is for the Dependant’s territory’s own legislation to give effect to Convention rights, just as for Jersey, Guernsey and the Isle of Man.”

Mr Pannick QC seeks to counter this weight of authority in support of Mr. Crow QC’s position by reference to a passage from the speech of Baroness Hale in Al-Skeini. At paragraph 88 she said:-

“For the reasons given by Lord Rodger, section 6 must be taken to apply only to the Acts of the United Kingdom public authorities. But there is nothing to prevent Parliament legislating for the acts of the United Kingdom individuals or entities abroad. In common with Lord Rodger, I can find nothing in the Act which indicates that section 6 should not apply to Mr Mousa’s case and several good reasons why it should. In particular, it has many times been said that the object of the Human Rights Act was to give people who would be entitled to a remedy against the United Kingdom in the European Court of Human Rights in Strasbourg a remedy against the relevant public authority in the Courts of this country……….”

Mr Pannick QC submits, in effect, that if the Claimants could successfully claim against these Defendants in the European Court of Human Rights it is unsatisfactory or anomalous that they cannot do so in the Courts of England and Wales.

As a general proposition, I suspect that very few would disagree with the sentiments expressed by Baroness Hale and the submission made by Mr Pannick QC. I am faced, however, with three Law Lords expressing the view, unequivocally, that the Human Rights Act 1998 should not apply so as to afford a remedy where the Convention has been extended to territories outside the United Kingdom by virtue of Article 56 or the Protocol. I do not see how I can do anything but follow those views.

Accordingly I reach the conclusion that the Claimants cannot rely upon the Human Rights Act 1998 so as to afford them a remedy in the particular circumstances of this case.

Mr Crow QC takes a second point in support of his submission that the Human Rights Act 1998 does not avail the Claimants. He submits that the Defendants were not acting as a public authority within the Act when they recommended to Her Majesty that she should give the Royal Assent to the Acts. Mr Crow QC points out that sovereignty over the Channel Islands is admitted to be in right of the Duchy of Normandy. An Order in Council that is made to approve a Projet de Loi promoted by Chief Pleas is thus made by Her Majesty in right of the Duchy of Normandy rather than in right of the United Kingdom. Against such constitutional background, submits Mr Crow QC, in advising Her Majesty the Defendants were acting as her servants in right of the Duchy of Normandy.

If that analysis is correct, as a matter of fact and law, there can be no dispute but that the Defendants were not public authorities within the 1998 Act.

Mr Pannick QC, however, does not accept the analysis. He accepts that Her Majesty’s sovereignty is in right of the Duchy of Normandy. He submits, however, that the Defendants were not acting as her servants in right of the Duchy of Normandy but, rather, advising her as Ministers and/or bodies of the United Kingdom. He points out that the Defendants accept that 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. The evidence shows, submits Mr Pannick QC, that the First and Second Defendants understood themselves as acting as Ministers of the Crown in right of the United Kingdom, concerned about the implications for the United Kingdom itself if approval were to be given to the Projet de Loi.

In support of his submissions Mr Pannick QC lays particular emphasis upon the Orders in Council which were made on 9 April 2008. As I understand it three such Orders were made; two of the Orders were the means by which Royal Assent were given to the Reform Law and the Property Law. The third Order was the means by which various petitions relating to the two Projets de Loi (including petitions made by the first two Claimants) were dismissed. In relation to the dismissal of the petitions the Order in Council recites as the reason why they were dismissed that the law would not violate any of the Crown’s international obligations and, therefore, those international obligations provided no basis for refusing Royal Assent.

Mr Pannick QC submits that this demonstrates, unequivocally, that the Defendants were acting in right of the United Kingdom Government.

In Quark (supra) the House of Lords emphasised that the supposed motives underlying a particular decision do not dictate the constitutional capacity in which the decision is taken. I need not cite from the speeches to demonstrate the point since the proposition is uncontroversial.

In the instant case it seems to me to clear that Her Majesty was giving her Royal Assent to the Projets de Loi in right of the Duchy of Normandy. In advising her to act in that way the First and Second Defendants were acting as her servants in that right. It is undoubtedly the case that in formulating their advice they had regard to the position of the United Kingdom Government; its international obligations and, of course, whether or not the Projets de Loi were compatible or incompatible with the European Convention. It does not seem to me, however, that because the First and Second Defendants took these matters into account in formulating their advice that changes the capacity in which they gave it.

It seems to me that my role in relation to this issue is simply to discern whether or not the First and Second Defendants were acting as ministers of the United Kingdom Government or acting as servants of Her Majesty in right of the Duchy of Normandy. It seems to me, with respect to the attractive arguments presented by Mr Pannick QC and Ms Simor that they were acting in right of the Duchy of Normandy.

It follows from this analysis, albeit somewhat truncated, that I do not consider that the Claimants can rely upon the Human Rights Act 1998 in this claim.

For the purposes of the hearing before me Mr Crow QC concedes that an Order in Council, whether made pursuant to prerogative powers (as in the present case) or as subordinate legislation, is subject to judicial review. That proposition is uncontroversial in the light of the decision of the Court of Appeal in R (Bancoult) v The Secretary of State for Foreign and Commonwealth Affairs [2007] 3 WLR 768. Mr Crow QC, however, reserves his right to take a different stance on any appeal from my decision since the decision in Bancoult is under appeal to the House of Lords.

Mr Pannick QC submits that a claim for judicial review of the Orders in Council of 9 April 2008 should succeed because the Defendants advice to Her Majesty was unlawful. In the light of my earlier findings, of course, that submission fails. I need to deal with just one issue, however, which was raised during the course of the hearing.

Mr Crow QC submits that a claim for judicial review should succeed only if it can be shown that the advice afforded to Her Majesty was irrational. In other words he is suggesting that provided the advice given was within a range of reasonable interpretations of the Convention and First Protocol it is not susceptible to a successful claim for judicial review. I hope I do not misunderstand his submission by expressing it so shortly.

I do not accept that Mr Crow’s submissions are correct on this issue. It seems to me that if a decision maker or advice giver sets out to make a decision or give advice on the basis that his interpretation of the Convention is the correct one and his decision or advice is erroneous (albeit not to be categorised as irrational) nonetheless judicial review lies. I do not elaborate further upon this issue for the obvious reason that it is academic in the light of my earlier conclusions.

If, contrary to my view, the Claimants have established breaches of the Convention and/or the First Protocol, therefore, this claim would succeed. By the end of the hearing it was common ground that the remedy to be afforded in that event (subject to the exercise of discretion) was the quashing of the whole of the Orders in Council of 9 April 2008.

This, too, of course, is academic. I was asked to refuse a quashing order in the event that the Claimants had established an entitlement to such an Order since that would put back the process of reform substantially. A quashing order at this stage would, inevitably, lead to the cancellation of the elections scheduled for 2008 and there would be no means of knowing when reform would take place.

I do not share that pessimistic view of events. If a Court finds that a provision in an Act is unlawful because it is in breach of the European Convention on Human Rights it can reasonably expect that the body which is empowered to make law will act so as to ensure that a law which is compliant with the Convention will emerge sooner rather than later. That is especially to be expected when the law in question relates to the composition of a legislative body. I appreciate, of course, that a quashing order would probably mean that the elections scheduled for December would not take place. Nonetheless, I regard that as a short term disadvantage only. In my judgment a Court should be very slow to withhold relief when illegality is established on grounds which are based on expediency rather than principle.

The substantive order I propose is that the Claimants are granted permission to apply for judicial review but that the claim is dismissed. For the avoidance of doubt I am completely satisfied that this is an appropriate case for permission. If the Claimants and Defendants cannot agree what the appropriate order for costs should be they can submit short written submission on the point. I recognise that the Claimants may wish to appeal. The most sensible course is for me to indicate that I would not be minded to grant permission. I think it much more appropriate that the Claimants should seek to persuade the Court of Appeal that there is a real prospect of a successful appeal. With these indications I take it that there will be no need for any attendance at the handing down.