Michaelmas Term [2009] UKSC 9 On appeal from: [2008] EWCA Civ 1319

 

JUDGMENT
R (on the application of Barclay and others)
(Appellants) v Secretary of State for Justice and
others (Respondents)
before
Lord Hope, Deputy President
Lord Scott
Lord Brown
Lord Neuberger
Lord Collins
JUDGMENT GIVEN ON
1 December 2009
Heard on 15 and 16 July 2009
Appellants (First &
Second)
Respondents
Lord Pannick QC Jonathan Crow QC
James Dingemans QC
Jessica Simor
Ben Hooper
(Instructed by Withers
LLP) (UK)
(Instructed by Ozannes
Advocates) (Guernsey)
(Instructed by Treasury
Solicitors)
Appellant (Third) in
person
Tomaz Slivnik

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LORD COLLINS
The right to free elections
1. As a result of the experience of the pre-war dictatorships, the right to free
elections was emphasised during and immediately following the Second World War as an
essential element of personal freedom and equality before the law. As Professor Hersch
(later Sir Hersch) Lauterpacht put it in 1945:
“… the right of self-government – which in developed
society means government by persons freely chosen by and
accountable to the electors – is in itself an expression and a
condition of freedom. No individual … is free if he is
governed against his will, that is, if the persons who
exercise authority are not chosen by and accountable to the
community at large.” (Lauterpacht, An International Bill of
the Rights of Man (1945), 135)
2. Five years later Lauterpacht said:
“Without an effective guarantee of these political rights of
freedom, personal freedom and equality before the law
must be, at best, precarious; at worst they may be
meaningless … The insistence on an International Bill of
Rights and the proclamation of the enthronement rights of
man as a major purpose of the Second World War were
prompted by the experience of dictatorships the essence of
which was the denial of the political right of freedom. …
There is no intrinsic reason why the right to free, secret and
periodic elections should not be … recognised by law and
declared enforceable.” (Lauterpacht, International Law and
Human Rights (1950), 281-2)
3. Consequently the right to free elections as an essential element of the developing
international law of human rights was recognised in Lauterpacht’s own draft International
Bill of the Rights of Man (Article 10), in the American Law Institute’s 1944 draft
Statement of Essential Human Rights (Article 16), in the Inter-American Juridical
Committee’s 1946 draft Declaration of the International Rights and Duties of Man
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(Article XIII), and in the Universal Declaration of Human Rights adopted by the General
Assembly in 1948 (Article 21(1)), and later in the International Covenant on Civil and
Political Rights (1966) (Article 25) and the American Convention on Human Rights
(1969) (Article 23).
4. The Preamble to the European Convention on Human Rights states that
fundamental freedoms are best ensured by (inter alia) an effective political democracy. In
Bowman v United Kingdom (1998) 26 EHRR 1, para 42, the European Court of Human
Rights said: “Free elections and freedom of expression, particularly freedom of political
debate, together form the bedrock of any democratic system.” In United Communist Party
of Turkey and Others v. Turkey (1998) 26 EHRR 121, para 45, it was said:
“Democracy is without doubt a fundamental feature
of the European public order … The Preamble goes on to
affirm that European countries have a common heritage of
political traditions, ideals, freedom and the rule of law. The
Court has observed that in that common heritage are to be
found the underlying values of the Convention; it has
pointed out several times that the Convention was designed
to maintain and promote the ideals and values of a
democratic society”.
5. The First Protocol to the European Convention on Human Rights was signed in
Paris on March 20, 1952. The Protocol was ratified by the United Kingdom in November
1952, and entered into force on May 18, 1954. By Article 3 of the Protocol:
“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.”
Background to the appeal
6. Sark is a small island in the Channel Islands, with a population of about 600. This
appeal from the Court of Appeal (Pill, Jacob and Etherton LJJ: [2008] EWCA Civ 1319,
[2009] 2 WLR 1205) principally concerns the application of Article 3 of the First
Protocol to the constitutional changes introduced on Sark under the Reform (Sark) Law,
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2008 (“the Reform Law”) in relation to the composition of the Chief Pleas, which is its
legislature (and also its executive). Under the Reform Law the members of the electorate
(consisting of some 500 voters) each vote for 28 Conseillers, and the 28 candidates with
the largest number of votes are elected. After approval of the Reform Law by Order in
Council, the first election of the 28 Conseillers took place on December 10, 2008.
7. Sir David Barclay and Sir Frederick Barclay, the first and second appellants (“the
Barclay brothers”), own property on Sark. The third appellant, Dr Slivnik, lives on Sark
and wants to stand for election to the Chief Pleas. The appellants have two complaints.
First, they claim that because of the position under the Reform Law of two office-holders
and prominent members of the community, the Seigneur (or Lord) of Sark and the
Seneschal (or Steward), the Reform Law is incompatible with Article 3. Each of them is
an ex officio, unelected, member of the Chief Pleas, and the Seneschal is the president of
the Chief Pleas. Neither of them has the right to vote, but the Seigneur may speak in
debate, and has the right of temporary veto of certain legislation. Second, the appellants
claim that the Reform Law is incompatible with Article 3 (read alone or in conjunction
with the prohibition on discrimination in Article 14 of the Convention) because Dr
Slivnik is prevented from standing for election: as a resident he has the right to vote, but
he is ineligible to stand because, as a citizen of Slovenia, he is an alien for the purposes of
the Reform Law. Dr Slivnik also made a number of complaints about the conduct of the
Seigneur and the Seneschal, but they are not relevant to the outcome of the appeal.
The Channel Islands
8. The Channel Islands consist of two Bailiwicks, Jersey and Guernsey. The Channel
Islands are Crown dependencies but they are not part of the United Kingdom nor are they
colonies. When King Philippe Auguste retook possession of continental Normandy in
1204, King John retained the Channel Islands. His right as Duke of Normandy lapsed,
and a separate title grew up by force of occupation, which attached to him as King of
England. This was confirmed by the Treaty of Bretigny in 1360. See Matthews (1999) 3
Jersey L Rev 177; Minquiers and Ecrehos Case (France v United Kingdom) 1953 ICJ
Rep 47, 56-57.
9. The Channel Islands are not represented in the United Kingdom Parliament. Acts
of Parliament do not extend to them automatically, but only if they expressly apply to the
Islands or to all HM Dominions or do so by necessary implication. By convention
Parliament does not legislate for the Islands without their consent in matters of taxation or
other matters of purely domestic concern. The United Kingdom Government is
responsible for their international relations and for their defence. It is the practice for the
Island authorities to be consulted before an international agreement is reached which
would apply to them.
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10. The Crown has ultimate responsibility for the good government of the Islands.
The Secretary of State for Justice and Lord Chancellor (“the Secretary of State”), the first
respondent, has departmental responsibility for the constitutional relationship between the
Crown and the Channel Islands. The second respondent, the Committee for the Affairs of
Jersey and Guernsey, is a committee of the third respondent, the Privy Council. It is the
practice for such a Committee to be appointed at the start of each sovereign’s reign to
deal with the affairs of the Channel Islands. The Committee consists of three Privy
Counsellors: the Secretary of State, a Minister in the Department of Justice, and the Lord
President of the Council. The Privy Council’s main business in connection with the
Islands is to deal with legislative measures submitted for ratification by Order in Council.
The Crown acts through the Privy Council on the recommendation of the Committee.
Sark
11. In 1565, acting by letters patent, Queen Elizabeth I appointed Helier de Carteret as
the Seigneur of Sark (or Lord of Sark), and granted it to him as a royal fief as a reward for
his having secured the island against the French. Inheritance of the fief and any land
sublet by the Seigneur is by male primogeniture in the manner of the Crown. The
Seigneur has always been free to sell the fief subject to royal consent. The present
Seigneur is John Michael Beaumont. His family acquired the fief with Crown permission
in 1852. He inherited it on the death of his grandmother Dame Sibyl Hathaway in 1974.
12. The letters patent granted in 1565 required the Seigneur to keep the island
continually inhabited or occupied by 40 men who had to be English subjects or swear
allegiance to the Crown. To achieve and to maintain the island’s defences, Helier 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 still exist, with
minor boundary changes. There are 36 Tenants because some Tenants own more than one
tenement.
13. In 1675 the office of Seneschal (or Steward) was created by the Crown. The main
function of the Seneschal was to dispense justice, as Sark’s chief judge. The present
Seneschal is Lieutenant Colonel Reginald Guille MBE.
14. Sark is part of the Bailiwick of Guernsey, but has a large measure of
independence from Guernsey. The States of Guernsey may legislate for Sark on criminal
matters without the consent of the Chief Pleas and on any other matter with their consent.
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The European Convention on Human Rights and Sark
15. The European Convention on Human Rights provided in Article 63 (now Article
56, since the Eleventh Protocol) that a Contracting State could declare that the
Convention should extend to all or any of the territories for whose international relations
it was responsible, with the effect that the provisions of the Convention would be applied
in such territories “with due regard, however, to local requirements.” The Convention was
extended in this way to the Bailiwick of Guernsey in 1953, and the First Protocol, which
contains a similar power to extend in Article 4, was extended to the Bailiwick of
Guernsey in 1988.
16. One of the questions canvassed on this appeal is whether the remedies under the
Human Rights Act 1998 are available to the appellants. In the course of the passage of the
1998 Act the House of Lords rejected an amendment to apply the Act to the Channel
Islands and the Isle of Man, and a similar amendment was withdrawn in the House of
Commons: Human Rights Law and Practice, 3rd ed 2009, ed Lester et al, para 2.22.4.
Instead the Convention was applied by local legislation. The Human Rights (Bailiwick of
Guernsey) Law 2000 has given effect to Convention rights and came into force in
November 2006.
Legislation in Sark
17. The Chief Pleas legislates by two methods, Laws and Ordinances. It can legislate
for Sark on any matter by Projet de Loi, which requires the Royal Assent. After the Chief
Pleas passes a Law, it is remitted as a Projet de Loi to departmental officials at the
Ministry of Justice to be referred to the Committee for the Affairs of Jersey and Guernsey
for its consideration and report. If the Committee recommends that Royal Assent be
granted, the Projet de Loi is presented to the next available meeting of the Privy Council,
together with a report on any petitions which have been received. The Projet de Loi will
not go to the Privy Council if the Committee decides not to recommend it for Royal
Assent. Her Majesty in Council then gives Royal Assent (by Order in Council) to any
Projet de Loi presented by the Privy Council pursuant to a recommendation by the
Committee. She will also dismiss any petitions as appropriate.
18. The evidence in these proceedings was that, in considering whether or not to
recommend approval, the Committee will in general respect the decision of the Chief
Pleas, and there would tend to be a presumption in favour of recommending Royal
Assent. But consideration is given to the Crown’s responsibilities, so that if a Projet de
Loi violates the Crown’s international obligations or any fundamental constitutional
principle, or if it is clearly not in the public interest for it to become law, then a
recommendation may be made to withhold Assent.
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19. The Chief Pleas also legislates on a range of local affairs by Ordinance. The Royal
Court of Guernsey may annul an Ordinance on the ground that it is unreasonable or ultra
vires the Chief Pleas, but the Chief Pleas may appeal to the Privy Council against the
annulment.
20. The Seigneur had (and continues to have) power to veto an Ordinance, but it must
be placed before the Chief Pleas again (not more than 21 days later), and the Chief Pleas
will then consider whether the Ordinance should be confirmed. The Seigneur had (and
has) no power to veto Laws.
21. Between meetings, the business of the Chief Pleas is conducted through various
Committees which function in effect as the executive government of Sark.
The Reform (Sark) Law 1951 (“the 1951 Law”)
22. Until the Reform Law became law in 2008, the majority of the members of the
Chief Pleas were unelected Tenants, whose entitlement to sit derived from their status as
landowners. Until 1922 the Seigneur and the Tenants were the only members, together
with a Seneschal chosen by the Seigneur. The Sark Reform Law of 1922 introduced adult
suffrage for the election of 12 People’s Deputies.
23. Under the 1951 Law the Chief Pleas consisted of the Seigneur, the Seneschal
(who was appointed for a three year term of office by the Seigneur with the approval of
the Lieutenant Governor and was ex officio President of the Chief Pleas), the Tenants,
and 12 Deputies of the People elected triennially. In the case of a tenement jointly owned
by two or more persons, one of those persons was appointed as the Tenant, by those
owners or a majority of them.
24. Both the Seigneur and the Seneschal had the right to vote in the Chief Pleas. The
Seneschal was entitled, in the event of an equality of votes, to a casting vote in addition to
his original vote, but following McGonnell v. United Kingdom (2000) 30 EHRR 289
(involving the compatibility of the judicial functions of the Bailiff of Guernsey with
Article 6(1) of the Convention), the Seneschal agreed not to exercise his casting vote
pending further reform.
25. Under the 1951 Law, aliens were not eligible to vote or stand for election to the
Chief Pleas.
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Reform process
26. Sark has been considering constitutional reform since 1999. In March 2006, the
Chief Pleas voted for a reform which would have provided for a legislature to consist of
16 Tenants elected by the Tenants and 16 Deputies elected by the rest of the population.
In April 2006 the Chief Pleas withdrew its support for that option. On May 7, 2006, the
Secretary of State (at that time Lord Falconer) wrote to the Seigneur to say that he was
pleased with the decision of the Chief Pleas to withdraw the plan to reserve 16 seats in the
Chief Pleas for Tenants because he “would not have been able to recommend for Royal
Assent legislation about which there are serious or substantial ECHR compliance issues”.
He said that “[a]ny 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 … [i]t is the
UK which is vulnerable to an ECHR challenge. The UK cannot stand by and give that
situation its tacit approval by doing nothing”.
27. In April 2007, the Chief Pleas approved another version of a new law which
would still reserve seats in the Chief Pleas for Tenants, but with those Tenants elected by
universal suffrage. The Secretary of State (by then Mr Jack Straw) decided not to submit
that proposal to the Privy Council, because there were some aspects of the proposed law
which he considered not to be unquestionably compliant with international law and the
United Kingdom’s obligations, having regard to the Crown’s responsibility for the good
government of the Crown Dependencies. In particular, there were concerns that (a) the
composition of the legislature was not consistent with modern democratic principles; (b)
the dual role of the Seneschal as judge in Sark’s sole court of justice and President of
Chief Pleas might cast doubt on the judicial impartiality of a person subsequently called
upon to determine a dispute concerning legislation with which he had been involved; and
(c) the role of the Seigneur, his membership of the Chief Pleas and his wider functions,
sat uneasily with democratic principles.
28. On February 21, 2008, the Chief Pleas approved a new version of a Reform Law.
Under that Law, the reserved seats for Tenants are removed. The Seigneur and the
Seneschal remain members, but without the right to vote. The Seigneur’s right of
temporary veto of Ordinances is preserved. The Seneschal can now only speak for the
purposes of exercising his role as President. Neither is now entitled to sit on Committees
of the Chief Pleas.
29. The Barclay brothers presented several Petitions opposing the reform proposals as
they evolved, and in particular a Petition dated March 3, 2008, asking that the Privy
Council withhold approval of the Reform Law as enacted. The Petition complained, so far
as is now material, that (a) in violation of Article 3 of the First Protocol, the Seigneur
would be an unelected member of Chief Pleas, with a right to address it and with a power
to veto Ordinances; (b) the membership of the Seneschal as President of Chief Pleas was
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incompatible with Article 3; (c) the prohibition on non-British nationals standing for
election was incompatible with Article 3 and with Article 14 of the Convention.
30. The Committee for the Affairs of Jersey and Guernsey rejected the Petitions. The
Schedule to an Order in Council dated April 9, 2008 notes that the Committee
recommended that the Petitions be dismissed and that the Reform Law should receive
Royal Assent at the next meeting of the Privy Council on April 9, 2008. The Schedule
then gave a summary of the Committee’s conclusions, which included: “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 Reform Law
31. The following are the principal features of the Reform Law which are relevant on
this appeal.
The Chief Pleas
32. All legislative and executive functions which may be exercised within Sark are
exercisable by the Chief Pleas, or by the relevant Committee of the Chief Pleas or other
body on which the function is imposed or conferred: section 1.
33. The Chief Pleas consists of the Seigneur, the Seneschal, and 28 elected
Conseillers, with elections to take place every fourth year: section 21(1). The number of
Conseillers may be varied by ordinance: section 21(5).
34. A person is entitled to have his name inscribed in the register of electors if he is
ordinarily resident in Sark and has been for 12 months: section 28(4). A person who is
registered in the Cadastre (rating register) as the possessor of real property in Sark is
deemed to be ordinarily resident: section 28(5). A person is eligible to be elected a
Conseiller if he is entitled to vote and “he is not an alien within the meaning of the law in
force in the United Kingdom” (section 28(3)(b)). By section 50(1) of the British
Nationality Act 1981, an “alien” is: “a person who is neither a Commonwealth citizen nor
a British protected person nor a citizen of the Republic of Ireland”.
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35. Both the Seigneur and the Seneschal are now prohibited from being members of a
Committee of the Chief Pleas: section 45(3). Thus, neither can be directly concerned in
the day-to-day running of Sark’s Executive Government. The 1951 Law did not prevent
the Seneschal and the Seigneur from sitting on executive Committees of Chief Pleas, and
they exercised their right to do so.
The Seigneur
36. The Seigneur is a member of the Chief Pleas: section 21(1)(a). The Seigneur has
the right to speak at any meeting of the Chief Pleas but does not have the right to vote:
section 35(3). He cannot be a member of a Committee of the Chief Pleas: section 45(3).
37. The Seigneur has the power temporarily to veto Ordinances made by the Chief
Pleas. Section 38 provides:
“(1) Subject to subsections (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 subsection (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 subsection (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”.
38. The Seigneur has other powers and responsibilities under the Reform Law. The
most significant for the purposes of this appeal are these: (1) the Seigneur appoints the
Seneschal (with the approval of the Lieutenant Governor): section 6(1); (2) the Seigneur’s
consent is needed for the Seneschal to summon an extraordinary meeting of the Chief
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Pleas: section 32(2)(b); (3) the Seigneur is a Trustee (section 56), making him
responsible, together with the other three Trustees (the Seneschal, Prévôt and Greffier) for
all Island Properties, i.e. schools, teachers’ houses, the medical centre, and administrative
offices.
The Seneschal
39. The Seneschal continues to be appointed by the Seigneur with the approval of the
Lieutenant Governor: section 6(1). He is no longer appointed for a limited 3-year term:
his appointment is for life. The reason is that it was thought that a Seneschal with a threeyear term might not give a fair trial in litigation involving the Crown or the Seigneur if he
were seeking re-appointment. By section 6(2), the Seneschal may only be removed by the
direction of the Lieutenant Governor “for good cause” (formerly, he was simply subject
to removal “by the direction of the Crown”: section 22(1) of the 1951 Law).
40. The Seneschal is an unelected member of the Chief Pleas: section 21(1)(b). The
Seneschal continues to be the ex officio President of the Chief Pleas: section 35(1). He is
a Trustee of Island property (section 56).
41. Meetings of the Chief Pleas are convened by the Seneschal by the publication of
an Agenda (section 32(1)). He has power (if the Seigneur consents) to summon an
extraordinary meeting of the Chief Pleas, and a discretion to determine whether an
extraordinary meeting will be held at the request of at least nine Conseillers (section
32(2)(b) and (c)). The Seneschal has no right “to speak or to vote at any meeting of the
Chief Pleas” (section 35(4)). It was common ground that he may speak insofar as is
necessary to enable him to preside over the Chief Pleas. But he cannot speak in favour of
or against the substance of any matter raised by the Conseillers.
Seneschal’s procedural powers
42. The Chief Pleas has power to make rules of procedure (section 36(1)) but the
Rules of Procedure under the 1951 Law have been applied by the Chief Pleas under the
Reform Law. New rules were adopted in April 2009.
43. The procedural powers of the Seneschal under the rules which were current when
the decisions of the Committee for the Affairs of Jersey and Guernsey and the Privy
Council were taken are these. He convenes meetings by means of an agenda: rule 1(2).
He may, on grounds of public interest, decline to allow a question to be put or rule that
the question need not be answered: rule 8. He is responsible for maintaining order at a
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meeting and, subject to the provisions of the Rules, regulates the conduct of business: rule
10(1). He may direct a member to discontinue his speech if he considers it irrelevant or
tedious repetition of the member’s arguments: rule 10(4). Where he considers that grave
disorder has arisen in a meeting he may adjourn the meeting: rule 10(7). He decides
whether to allow an amendment to be moved in the case of non compliance with the
requisite notice period (rule 11(2)). He decides whether or not a member’s oral
contribution to the debate is relevant and therefore permissible (rule 11(6)), and he
decides the order of proposed amendments (rule 11(8)). He provides clarification on the
Rules: rule 13.
The proceedings: jurisdiction
44. By claim form dated April 4, 2008, the appellants sought judicial review of (1) the
decision dated March 19, 2008 of the Committee for the Affairs of Jersey and Guernsey
to recommend that Royal Assent be granted to the Reform Law; and (2) the decision of
the Privy Council to advise Her Majesty, on April 9, 2008, to grant Royal Assent in
accordance with the first decision, which resulted in an Order in Council of that date.
45. There is no issue on this appeal about jurisdiction to determine the legality of the
decisions of the Committee and the Privy Council. Wyn Williams J held in the
Administrative Court [2008] 3 WLR 867, paras 98-102, and the respondents accepted in
the Court of Appeal [2009] 2 WLR 1205 (see Pill LJ at paras 19-21) that to the extent that
the Reform Law is in breach of Convention rights, then the appellants are entitled to
appropriate relief in these proceedings. That is because the respondents expressly advised
Her Majesty the Queen to approve the Reform Law on the ground that it did not involve
any breach of the obligations of the United Kingdom under the Convention. It will,
however, be necessary to revert to the question of jurisdiction because of the appellants’
contention that the courts of this country also have jurisdiction to grant relief on the basis
that the respondents were acting as public authorities for the purposes of section 6 of the
Human Rights Act 1998 when recommending the Order in Council by which the Reform
Law was given Royal Assent.
The judgments below
46. Wyn Williams J decided that the comparatively limited rights and powers
conferred upon the Seigneur and the Seneschal did not impair the essence of the rights
conferred under Article 3 of the First Protocol. Neither was entitled to vote. The
Seigneur’s right of veto was limited to Ordinances and was no more than a means by
which he could ask Chief Pleas to revisit a decision. It was impossible to envisage that the
power could ever be used in such a way that it would frustrate the will of the Conseillers
permanently. There was no principle that a State could not comply with Article 3 unless
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every member of its legislative body were democratically elected. The positions of
Seigneur and Seneschal had been inextricably linked with the governance of Sark over
centuries, and there was no legal impediment to there being some continuation of those
links. Their membership was being pursued for a legitimate aim, namely to form 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, and to provide some link
between the past and the future. The Reform Law was not in breach of Article 3 in not
permitting aliens to stand for election.
47. Wyn Williams J also decided that the combination of the judicial and other
functions of the Seneschal was consistent with the duty under Article 6(1) of the
Convention to establish an independent and impartial tribunal. His decision on that point
was reversed by the Court of Appeal, and there was no further appeal on that point.
48. The Court of Appeal agreed with Wyn Williams J so far as the position of the
Seigneur was concerned, and by a majority (Etherton LJ dissenting) with regard to the
Seneschal. The principal points made by Pill and Jacob LJJ were these: all members of
the Chief Pleas entitled to vote were elected in accordance with a procedure about which
there was no complaint. The power of the Seigneur to speak (but not vote) in Chief Pleas
made sense in a small community such as Sark, and would not undermine the free
expression of the people. The power of the Seigneur to veto Ordinances temporarily, and
the requirement for the Seneschal’s consent to an extraordinary meeting of Chief Pleas
requested in writing by nine Conseillers, might serve the democratic will in providing the
opportunity at a later date for a more representative meeting, if some members of Chief
Pleas were away from Sark. There was no reason to believe that the Seneschal would use
his position as ex officio President to thwart the will of elected members. If his procedural
powers were not acceptable to the elected members, Chief Pleas could alter the rules.
Jacob LJ added that if the elected members of Chief Pleas were to decide that the
continued presence and powers 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 Reform
Law did not breach Article 3 in failing to grant to aliens the right to stand for election to
Chief Pleas and, in the absence of such a breach, Article 14 of the Convention did not
apply.
49. Etherton LJ dissented with respect to the role and functions of the Seneschal. His
view was that an unelected President for life of a unicameral legislature, who was not
appointed to office by the electorate or by the elected members of the legislature, and
whom the elected members had no power to discipline or remove as President, was in
principle fundamentally inconsistent with a political democracy. His procedural powers
and the requirement of his consent for extraordinary meetings taken as a whole were
capable of enabling suppression of free and appropriate debate within the Chief Pleas by
elected members on topics they or some of them wished to raise. There was 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 had no
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power to dismiss or suspend him. They could apply in writing to the Lieutenant Governor
under section 6(2) of the Reform Law for his removal as Seneschal, but that process
would be neither swift nor certain. The particular features of the Sark constitution under
the Reform Law and the social and constitutional standing of the Seneschal in Sark were
obvious disincentives for elected members to challenge the rulings and conduct of the
Seneschal as President. In addition to serving as President of the Chief Pleas he held the
following positions under the Reform Law: 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; 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 was the
Court of the Seneschal in which, unless a Deputy Seneschal or a Lieutenant Seneschal is
appointed to sit, the Seneschal sat alone. The elected members would doubtless bear in
mind the possibility that at some point in the future they might have to appear in court
before him or one of his deputies or lieutenants in civil or criminal proceedings.
The issues on appeal
50. The principal issues on this appeal are (1) whether (as the appellants contend) the
position of the Seneschal and the Seigneur in the Chief Pleas of Sark, as provided for in
the Reform Law, constitutes a breach of the right conferred by Article 3 of the First
Protocol to participate in elections which ensure the free expression of the opinion of the
people in the choice of the legislature; and (2) whether (as the appellants contend) the
prohibition imposed by the Reform Law on persons who are “aliens” from standing for
election to the Chief Pleas of Sark is a breach of the right under Article 3 of the First
Protocol, read alone and/or in conjunction with Article 14 of the Convention.
51. Although there is no cross-appeal by the respondents on the issue of jurisdiction,
the appellants invited the House of Lords to determine whether, had it not been accepted
by the respondents that the decisions of the Committee for the Affairs of Jersey and
Guernsey and the Privy Council were amenable to judicial review (because the
respondents expressly advised Her Majesty to approve the Reform Law on the ground
that it did not involve any breach of the international obligations of the United Kingdom
under the Convention), the Human Rights Act 1998 applies to the decisions.
Article 3 of the First Protocol
52. There have been more than 50 decisions of the European Court of Human Rights
on Article 3 of the First Protocol. The following principles emerge from these decisions,
particularly from the relatively early case of Mathieu-Mohin v Belgium (1988) 10 EHRR
1, and the recent decision of the Grand Chamber in Yumak v Turkey (2009) 48 EHRR 61.
Page 15
53. First, Article 3 of the First Protocol enshrines a characteristic principle of an
effective democracy. It is of prime importance in the Convention system, of which
democracy constitutes a fundamental element, and the rights guaranteed under Article 3
of the First Protocol are crucial to establishing and maintaining the foundations of an
effective and meaningful democracy governed by the rule of law: Mathieu-Mohin v
Belgium, at para 47; Yumak v Turkey, at paras 105 and 107. See also Zdanoka v Latvia
(2007) 45 EHRR 478, para 98 (Grand Chamber); Tanase v Moldova [2008] ECHR 1468,
at paras 100-101.
54. Second, although Article 3 is phrased in terms of the obligation of the Contracting
States to hold elections which ensure the free expression of the opinion of the people
rather than in terms of individual rights, Article 3 guarantees individual rights, including
the right to vote and the right to stand for election: Mathieu-Mohin v Belgium, at paras
48-51; Yumak v Turkey, at para 109(i); Zdanoka v Latvia, at para 102.
55. Third, there is room for “implied limitations” on the rights enshrined in Article 3,
and Contracting States must be given a wide margin of appreciation in this sphere:
Mathieu-Mohin v Belgium, at para 52; Yumak v Turkey, at para 109(ii).
56. Fourth, the content of the obligation under Article 3 varies in accordance with the
historical and political factors specific to each State; and for the purposes of applying
Article 3, any electoral legislation must be assessed in the light of the political evolution
of the country concerned, so that features which would be unacceptable in the context of
one system may 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: Yumak v Turkey at para 109(iii); Aziz v Cyprus
(2005) 41 EHRR 164, para 28.
57. Fifth, Article 3 is not (by contrast with some other Convention rights, such as
those enumerated in Articles 8 to 11) subject to a specific list of legitimate limitations,
and the Contracting States are therefore free to rely in general in justifying a limitation on
aims which are proved to be compatible with the principle of the rule of law and the
general objectives of the Convention: Yumak v Turkey, at para 109(iii); Tanase v
Moldova, at para 105.
58. Sixth, limitations on the exercise of the right to vote or stand for election must be
imposed in pursuit of a legitimate aim, must not be arbitrary or disproportionate, and must
not interfere with the free expression of the opinion of the people in the choice of the
legislature: Yumak v Turkey, at para 109(iii)-(iv).
Page 16
59. Seventh, such limitations must not curtail the rights under Article 3 to such an
extent as to impair their very essence, and deprive them of their effectiveness. They must
reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an
electoral procedure aimed at identifying the will of the people through universal suffrage.
Any departure from the principle of universal suffrage risks undermining the democratic
validity of the legislature and the laws which it promulgates: Mathieu-Mohin v Belgium,
at para 52; Yumak v Turkey, at para 109(iv).
60. Eighth, as regards the right to stand for election, “…the Court accepts that stricter
requirements may be imposed on the eligibility to stand for election to parliament, as
distinguished from voting eligibility…”: Melnychenko v Ukraine (2006) 42 EHRR 784,
para 57. In Zdanoka v. Latvia (2007) 45 EHRR 478, para 106 the Grand Chamber said:
“The Convention institutions have had fewer occasions to
deal with an alleged violation of an individual’s right to
stand as a candidate for election, i.e, the so-called ‘passive’
aspect of the rights under Article 3 of Protocol No. 1. In this
regard the Court has emphasised that the Contracting States
enjoy considerable latitude in establishing constitutional
rules on the status of members of parliament, including
criteria governing eligibility to stand for election. Although
they have a common origin in the need to ensure both the
independence of elected representatives and the freedom of
choice of electors, these criteria vary in accordance with the
historical and political factors specific to each State. The
multiplicity of situations provided for in the constitutions
and electoral legislation of numerous member States of the
Council of Europe shows the diversity of possible
approaches in this area. Therefore, for the purposes of
applying Article 3, any electoral legislation must be
assessed in the light of the political evolution of the country
concerned.”
61. Ninth, the Court takes account of the practice of members of the Council of
Europe in assessing the compatibility of electoral rules with Article 3, in particular in the
area of qualifications to stand for election. In Yumak v Turkey (at para 111) the Court said
in relation to electoral systems that “… the large variety of situations provided for in the
electoral legislation of numerous Member States of the Council of Europe shows the
diversity of the possible options.” In Melnychenko v Ukraine, at para 30, the Court, when
considering whether it was compatible with Article 3 to impose a residence requirement
before citizens could stand for election, referred to the fact that 19 States did not impose
any such requirement for participation in elections while 21 States did so for elections to
one or more of the legislative chambers. In Gitonas v Greece (1997) 26 EHRR 691 the
Court decided that the disqualification in Greece of civil servants from elected office was
compatible with Article 3, and at para 40 it said that “equivalent provisions exist in
Page 17
several member States of the Council of Europe.” In Sukhovetsky v Ukraine (2007) 44
EHRR 57, at para 76, the Court, in deciding that the Ukrainian rules with regard to
electoral deposits were compatible with Article 3, considered the practice of the
Convention States with regard to the amount of the deposit and whether it was
appropriate that it should be forfeit if the candidate failed to win election irrespective of
the percentage of votes cast.
62. Examples of the operation of these principles as regards the right to vote include
Yumak v Turkey, which concerned a Turkish law under which a political party had to
receive at least 10% of the national vote in an election in order to obtain any seats in the
Turkish parliament, and which was the highest threshold in the Contracting States. The
effect was that two of the eighteen parties which had taken part in the 2002 elections had
passed the 10% threshold and secured seats, with the result that 45% of the voting public
were not represented in the parliament. It was held that the threshold law served the
legitimate aim of avoiding excessive and destabilising parliamentary fragmentation and
thus strengthening governmental stability. Although it appeared excessive, it was not
disproportionate in that it did not impair the essence of the rights secured by Article 3 of
the First Protocol. But a blanket disenfranchisement of convicted prisoners regardless of
the nature of the offence or length of sentence was held to be disproportionate: Hirst v
United Kingdom (No 2) (2006) 42 EHRR 41 (Grand Chamber).
63. As regards the right to stand for election, it has been held that public servants
could be barred from standing for election: Ahmed v United Kingdom (2000) 29 EHRR 1;
Gitonas v Greece, supra; and a former member of the Communist Party could be banned
from standing for election in Latvia because she could be presumed to be anti-democratic:
Zdanoka v Latvia (2007) 45 EHRR 478. But the requirement of a command of Latvian at
the highest level from a Russian minority candidate for election was disproportionate:
Podkolzina v Latvia [2002] ECHR 405.
64. The effect of these principles is that there is no narrow focus on one particular
element of democracy. The electoral rules have to be looked at in the round, and in the
light of historical and political factors. The proper application of these principles leads
inevitably to the conclusion that the Reform Law is not in breach of Article 3 of the First
Protocol.
65. The appellants submit that it is incompatible with the most basic principles of
democracy as expressed in Article 3 of the First Protocol for unelected individuals to be
members of the Chief Pleas with the power (1) in the case of the Seigneur, to speak in the
Chief Pleas and to veto (even on a temporary basis) legislation and (2) in the case of the
Seneschal, to preside and control proceedings in the Chief Pleas, in each case in addition
to their other important functions and powers on Sark (Appellants’ Case, at para 58).
Page 18
66. The appellants exaggerate their case. The starting point is that only Conseillers are
entitled to vote in the Chief Pleas, and therefore it is only Conseillers who determine
whether legislation is to be enacted. The electorate of Sark consists of fewer than 500
voters, who choose 28 elected Conseillers by a process of casting 28 votes each and
electing the 28 candidates with the largest number of votes. There is therefore one
Conseiller for every 17-18 persons in the electorate. It is not easy to envisage, in the
words of Article 3, conditions which are more likely to ensure the expression of the
opinion of the people in the choice of the legislature.
67. The appellants’ case was, in part, that to the extent that members of the legislature
(implicitly including both chambers) were not elected, Article 3 was not satisfied:
Appellants’ Case at para 63(2). That was put too widely. It is plain that the effect of
Article 3 is not to require that all members of the legislature of a Contracting State be
elected. A legislature may consist of two chambers, and a wholly unelected second
chamber, such as the House of Lords, is not in itself incompatible with Article 3. When
the First Protocol was under negotiation, the formula “The High Contracting Parties
undertake to hold free elections of the Legislature” was proposed, but it was not
acceptable to some countries, because it might be interpreted as an obligation to hold
elections for both chambers of the legislature. This was unacceptable to the Governments
of some States where the upper chamber was in whole or in part not elected but hereditary
(such as the United Kingdom) or appointed (as in Belgium). The Committee of Ministers
recorded that the original text, which was maintained, “had been carefully drafted to
avoid this difficulty”: Collected Edition of the Travaux Préparatoires of the European
Convention on Human Rights, Vol VIII (1985), pp 48-52, letter dated November 28,
1951, from Chairman of the Committee of Ministers to the President of the Consultative
Assembly. It was for that reason and by reference to those documents that the Court in
Mathieu-Mohin v Belgium said, at para 53, that “Article 3 applies only to the election of
the ‘legislature’, or at least of one of its chambers if it has two or more.”
68. The European Commission for Democracy through Law (also known as the
Venice Commission) was established in 1990 as the Council of Europe’s advisory body
on constitutional matters. The Venice Commission adopted guidelines on elections as part
of a code of good practice in electoral matters. Guideline 5 was that “at least one chamber
of the national parliament” must be elected by direct suffrage.
69. Consequently the appellants also formulated the principle for which they
contended as being that “all the members of a unicameral legislature must be elected”:
Appellants’ Case at para 63(3). No doubt where, as here, there is a unicameral legislature,
best practice is that it should be an elected assembly. Jacob LJ observed correctly in the
Court of Appeal that “[i]f one were starting from scratch, there can be few who would
think the new Reform Law of Sark satisfactory … [T]o confer by heredity upon an
unelected man the positions and powers of the Seigneur … would be going too far by the
standards of modern democratic governance”: para 117.
Page 19
70. It does not follow, however, that as a matter of Convention law there is an
invariable rule that all members must be elected irrespective of their powers and
irrespective of the circumstances. The effect of the jurisprudence under Article 3 is that
all the circumstances must be considered. It is not a necessary consequence, therefore,
that the mere existence of some unelected members contravenes Article 3. In 2007 the
Barclay brothers themselves made a representation supporting an option for constitutional
change which would have continued the reservation of half of the seats for 16 Tenants
elected by the Tenants.
71. “Membership” of two unelected individuals in the circumstances of this case does
not contravene Article 3. The purpose of Article 3 is to ensure that legislation is enacted
through genuinely democratic processes. An electorate of about 500 elects 28 voting
representatives. Neither the Seigneur nor the Seneschal can vote. It is true that the
Seigneur can speak on matters of substance in debate. But the fact that unelected persons
may influence the outcome of debate is not undemocratic, especially when the influence
is open and transparent.
72. Even if Article 3 did in principle require that even non-voting members be elected,
then a limitation on that principle by having two prominent non-voting members would
be well within the margin of appreciation in the light of the constitutional history and the
political factors relevant to Sark. The position of the Seigneur dates from 1565, and the
position of the Seneschal from 1675. Until 1922 the composition of the Chief Pleas
reflected the feudal system in Sark. Between 1922 and 2008, the feudal Tenants
dominated the Chief Pleas. Even the introduction in 1922 of a minority of elected
Deputies was not easily achieved. At the time this was a very controversial change. The
Lieutenant Governor told the Chief Pleas members that, unless they agreed to changes
approved by the Privy Council, the Island’s administration would be taken over forcibly:
Sark Constitutional Review Committee, Report on the Future Constitution of the Island
of Sark, January 2002, para 62.
73. The Reform Law eventually introduced universal suffrage for the election of all
those members who could vote on legislation. The fact that the Reform Law was enacted
by, and therefore with the consent of, the legislature was relied on by the respondents. But
that would not save it from incompatibility with the Convention. Some profoundly
undemocratic laws have been enacted by democratically elected legislatures. In any
event, the Reform Law was enacted by the unreformed Chief Pleas which was certainly
not fully democratic. But the respondents are right in their contention that the Chief
Pleas’ support for the Reform Law is a political factor of weight, because it offers
confidence that the Reform Law will command the level of respect and legitimacy in the
eyes of the people of Sark that is necessary to secure significant constitutional change.
74. Thus even if the membership of the Seigneur and the Seneschal is to be regarded
as a limitation on the people’s right to choose the legislature, then the limitation falls well
Page 20
within the margin of appreciation allowed by Article 3. It fulfils all the conditions
suggested by the jurisprudence of the Strasbourg Court. It cannot be said to be arbitrary.
Because the Seigneur and the Seneschal cannot vote, it cannot be said to be lacking in
proportionality. The free expression of the opinion of the people of Sark is not impeded
by it. Nor could it be plausibly suggested that their membership impairs the “very
essence” of the people’s right to choose the legislature, or deprives the right of its
effectiveness. Nor can it be argued seriously that the Seigneur’s right to speak in the
Chief Pleas will frustrate the free expression of the opinion of the people in the choice of
the legislature.
75. Nor is the conclusion affected by the other powers and responsibilities of the
Seigneur and the Seneschal. The Seigneur has the power temporarily to veto Ordinances
(but not Laws) under section 38 of the Reform Law. The effect of section 38 is that where
an Ordinance has been vetoed then it is laid before the Chief Pleas again not earlier than
10 days later, but no later than 21 days later, whereupon the Chief Pleas will either
confirm, or refuse to confirm, the Ordinance. The appellants argue that the existence of
this power will inevitably deter the Chief Pleas from adopting a position opposed by the
Seigneur, whether because the Chief Pleas wishes to avoid a veto or simply because it
prefers to seek the approval, or avoid the disapproval, of the Seigneur.
76. It is true that HM Procureur, the head of the Government legal service in
Guernsey, in a letter of April 30, 2004 to the Chairman of the Sark Constitutional
Steering Committee, wrote:
“I regret that I remain opposed to the retention by the
Seigneur of any power of veto. … In my opinion it is simply
unacceptable in the 21st century for an unelected and
unappointed citizen, whatever his civic role, or whatever his
rank or position in Sark society, to be able to veto
legislation passed by the (soon to be more democratically
constituted) Chief Pleas, irrespective of whether that veto is
absolute or limited. … The Seigneur has informed me that
he has no strong feelings on the Seigneurial veto. He writes:
‘If it is a possibility that it might cause problems in the
future then I am quite happy that it should be abolished’
77. The present Seigneur’s evidence was that he had never used his power of
temporary veto, and that he had no recollection of his predecessor (his grandmother,
Dame Sybil Hathaway) having used it. His evidence was that he would only consider
using it in, at most, two circumstances: (a) if an Ordinance had not been drafted by the
Guernsey Law Officers and he considered that it might be ultra vires; or (b) in what he
describes as the unlikely event that an ordinance were passed by a close vote at a meeting
Page 21
of the Chief Pleas at which only a minimal number of members were present and he were
to feel that, with a normal turnout, the Ordinance might possibly have been rejected.
78. The suggestion by the appellants that the power might have a chilling effect on the
exercise of the power of the democratically elected members to legislate is wholly
speculative. It is legitimate to take account of the fact that the power has not been used in
modern times, and that the Seigneur has indicated that it will be used in only very limited
circumstances. The use of the power if few members are present and voting will tend to
ensure that the democratic will is respected by ensuring that sufficient numbers of
members are present. That objective could have been achieved by different means (such
as a special quorum for the passage of legislation), but the method proposed is
proportionate and consistent with Article 3.
79. The unelected House of Lords has power (subject to the Parliament Acts 1911 and
1949) to delay United Kingdom legislation, and that is a power which directly affects the
process of the elected chamber. The appellants do not suggest that that power is
inconsistent with Article 3. The reason why the power is compatible with Article 3 is that
it has its origin in historical and political factors, it is not arbitrary or disproportionate,
and it does not affect the essence of democratic rights. Indeed in R (Jackson) v Attorney
General [2005] UKHL 56, [2006] 1 AC 262, para 32, Lord Bingham of Cornhill
suggested that the use of the Parliament Acts to secure extension of the maximum
duration of Parliament by overriding the need for the passage of legislation through the
House of Lords might itself be contrary to Article 3. So also in theory Her Majesty could
refuse Royal Assent, although by convention it cannot be refused except on the advice of
ministers, and the power to refuse it has not been exercised since 1708: see Bradley and
Ewing, Constitutional and Administrative Law, 14th ed 2007, p 21.
80. The appellants argue that the delaying power of the House of Lords is not
incompatible with Article 3 because the requirements of Article 3 are satisfied if there is
one wholly elected legislative chamber. This is unpersuasive. It does not follow from the
fact that Article 3 does not regulate the composition of a second chamber that there are no
limitations imposed by Article 3 on the powers of the second chamber. If a second
chamber had a power permanently to frustrate the will of the democratically elected
chamber, and the power was not purely theoretical, like Her Majesty’s power to withhold
Royal Assent, then there would at the least be a case for breach of Article 3.
81. Nor are the appellants assisted by the existence of the Seigneur’s other powers.
Apart from the power of temporary veto of Ordinances already discussed, the only one
which affects proceedings of the Chief Pleas is that the Seigneur’s consent is needed for
the Seneschal to summon an extraordinary meeting of the Chief Pleas: Reform Law,
section 32(2)(b). The Chief Pleas has to meet four times annually: section 32(2). All three
methods of summoning extraordinary meetings require the action of an unelected official:
(1) at the direction of the Lieutenant Governor; (2) by the Seneschal with the consent of
Page 22
the Seigneur; and (3) with the consent of the Seneschal on the written request of at least
nine Conseillers. The mere existence of this power does not undermine effective political
democracy. If there were any serious prospect of its being abused, the Chief Pleas could
amend the Reform Law.
82. The Seigneur’s other powers do not affect the democratic process. They simply
underline his status on Sark. He appoints the Seneschal (with the approval of the
Lieutenant Governor) and the Deputy Seneschal (in consultation with the Seneschal and
with the approval of the Lieutenant Governor), and he appoints the Deputy Seigneur. He
appoints the Prévôt and the Greffier subject to the approval of the Lieutenant Governor.
His consent is required for Guernsey police officers to attend in Sark, and his consent is
required for removal of a special constable. The Seigneur is a Trustee, making him
responsible, together with the other three Trustees (the Seneschal, Prévôt and Greffier) for
all Island Properties. It is not suggested that the existence of these powers is contrary to
Article 3.
83. So far as the position of the Seneschal is concerned, it is true that it is anomalous
that the presiding officer of an elected assembly should be an unelected official appointed
by another unelected (and indeed hereditary) official. Etherton LJ was right to say that it
is relevant that the members of Chief Pleas have no power to dismiss or suspend the
Seneschal, and that the process of applying in writing to the Lieutenant Governor under
section 6(2) of the Reform Law for his removal as Seneschal would not be swift or
certain. But it does not follow that legislation which provides for an unelected presiding
officer is contrary to the duty to allow free elections for the choice of the legislature under
Article 3 of the First Protocol. In any event, for essentially the same reasons as apply in
the case of the Seigneur, the position of the Seneschal is well within the margin of
appreciation, taking into account historical and political factors, and cannot realistically
be said to impair the essence of the rights under Article 3 nor to deprive them of
effectiveness.
84. It is not suggested that the procedural powers themselves are contrary to Article 3.
What is said is that the width of the procedural powers makes it inappropriate that they
should be exercised by an unelected person. But they are powers which any presiding
officer would be given or would need. It is true that they are capable of being misused,
but they could equally be misused by an elected officer. If there were any abuse of the
powers, the Chief Pleas could alter the procedural rules under section 36(1) of the Reform
Law without the need for any consent.
85. There is nothing in the appellants’ reliance on the other powers of the Seneschal.
He is ex officio the returning officer for elections held under the Reform Law. He is a
Trustee of Island property. In both capacities he must act according to law, and in the
latter capacity on behalf and subject to the direction of the Chief Pleas: section 57.
Page 23
The right to stand for election
86. The appellants do not suggest that Article 3 of the First Protocol itself gives
resident aliens a right to stand for election. The primary way it is put in relation to Article
3 is that the prohibition on aliens from standing for election to the Chief Pleas advances
no legitimate aim and is disproportionate, and therefore contrary to Article 3 of the First
Protocol, given that (1) resident aliens may vote for elections to the Chief Pleas; and (2)
the Law does not identify as eligible to stand those with sufficiently continuous or close
links to, or a stake in Sark. Commonwealth citizens, British protected persons and citizens
of the Republic of Ireland may stand for election to the Chief Pleas, so long as they are
resident in Sark or own property there, even if they do not live there. The appellants’
alternative case is that if citizens have the right to vote, then the prohibition on aliens (or,
perhaps, resident aliens) standing for election to the Chief Pleas is unjustifiable
discrimination on grounds of nationality contrary to Article 3 of the First Protocol read
with Article 14 of the Convention.
87. The principal answer to the appellants’ case is that there are many decisions of the
Strasbourg Court which proceed on the basis that the rights under Article 3 belong to
citizens, and therefore not to aliens. In a passage in Mathieu-Mohin at (1988) 10 EHRRI,
para 54 repeated or referred to in many subsequent judgments, the Court referred 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. For example, in Kovach v Ukraine [2008] ECHR 125,
para 49, the Court said in the same context: “In this field, Contracting States enjoy a wide
margin of appreciation, provided that they ensure the equality of treatment for all
citizens.” In Makuc v Slovenia [2007] ECHR 523, para 206, the Court said “The Court
recalls that this provision guarantees individual rights, including the right to vote and to
stand for election. However, these rights are not absolute but rather subject to limitations,
such as citizenship …” citing Hirst v United Kingdom (No 2) (2006) 42 EHRR 41.
88. The Guidelines on Elections of the Venice Commission (referred to above, para
68) said, in the context of conditions for voting and standing for election, that a
nationality requirement may apply, but that it would be advisable for foreigners to be
allowed to vote in local elections after a certain period of residence: Guideline 1.1.b. The
Explanatory Report said (para 6.b-c) that most countries’ legislation laid down a
nationality requirement, but that the right to vote and/or the right to stand for election
might be subject to residence requirements.
89. The International Covenant on Civil and Political Rights (1966) is consistent with
this interpretation of the European Convention. Article 25 grants every citizen, without
any of the distinctions in Article 2 (race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status) and without
unreasonable restrictions “the right and the opportunity … to vote and to be elected at
genuine periodic elections which shall be by universal and equal suffrage …”.
Page 24
90. In Melnychenko v Ukraine (2006) 42 EHRR 784 the Court considered whether a
residence requirement could be imposed before a refugee from the Ukraine living in the
United States could stand for election to the Parliament. As mentioned above (para 61),
the Court looked at the practice of some 40 Council of Europe States, all of which had a
nationality requirement together with (in about half of the States) a residence requirement
for participation in elections by expatriate citizens as regards at least one chamber. It
treated the International Covenant as expressing the relevant international law on the
subject. The Court accepted that a residence requirement was compatible with Article 3,
but concluded that the electoral commission’s decision that the applicant was not resident
was unlawful.
91. On the hearing of this appeal the parties did not provide any comparative material
on the practice of the Contracting States, but the website of the Inter-Parliamentary Union
has a table of the conditions for voting and for standing for election, which confirms what
was said in Melnychenko v Ukraine. There does not appear to be a single member of the
Council of Europe which does not impose a citizenship requirement (in some cases
coupled with a residence requirement).
92. Py v France (2005) 42 EHRR 548 does not justify the appellants’ argument that
the Court has implicitly recognised that a person who was not a citizen was within the
scope of Article 3 of the First Protocol. New Caledonia was a French overseas territory,
and as part of its move towards self-determination the French Constitution was amended
to provide for a referendum on self-determination in the territory. A French law provided
that persons resident in New Caledonia since 1988 would have the right to vote in the
referendum. There was an identical qualification for obtaining citizenship. A French
national was appointed to a university post in New Caledonia in 1995, and claimed the
right to vote in the referendum although he had not been resident there since 1988. It was
held that the residence requirement pursued a legitimate aim and that although a ten year
requirement might have seemed disproportionate, “local requirements” (Article 63, now
Article 56) justified the restrictions. There was therefore no breach of Article 3 of the
First Protocol (or of Article 14 of the Convention). This is not a decision that non-citizens
have a right to vote or stand for election. It was simply a decision that the length of
residence required by the French law as a qualification for voting in the referendum was
justified by local requirements. In view of New Caledonia’s transitional status the right to
vote was given to the “population” defined by reference to 10 years’ residence, which
was identical to the citizenship requirement. The Court specifically referred (at [46]) to
the need to ensure “citizen participation and knowledge” in framing rules on voting
eligibility.
93. Consequently both in international law, as reflected in the International Covenant
and in the practice of States, and under the European Convention, as reflected in the
decisions of the Strasbourg Court and in the practice of the members of the Council of
Europe, it is citizens, and not non-resident aliens, who have the right to vote and stand for
election. There may be some exceptional cases, for example where citizenship is withheld
on, for example, linguistic grounds from communities who have been settled on the
Page 25
territory of a State for several generations: see Venice Commission Explanatory Report,
para 1.16b. But the general rule is clear.
94. Sark is not an entity in international law and has no separate citizenship. It is
entitled to restrict the right to stand for election to persons who are entitled to vote (which
requires 12 months residence or registration in the rating register as the possessor of land)
and who are not aliens within the meaning of United Kingdom law, where an “alien” is a
person who is neither a Commonwealth citizen nor a British protected person nor a
citizen of the Republic of Ireland: British Nationality Act 1981, section 50(1).
95. Article 3 does not require a justification for qualifications which are stricter for
standing for election than for voting. As already indicated, it is well established that
stricter requirements may be imposed on the eligibility to stand for election to parliament,
as distinguished from voting eligibility: Melnychenko v Ukraine (2006) 42 EHRR 39,
para 57; Zdanoka v. Latvia (2007) 45 EHRR 478, para 106 (Grand Chamber). Historical
and political factors have determined the definition of “alien” in United Kingdom law.
The concept of Commonwealth citizenship is of course very wide, but eligibility is
limited to those with a genuine connection with Sark in the form of residence or
ownership of property. It is clear that in the light of those factors and the breadth of the
margin of appreciation, the exclusion of aliens from eligibility to stand for election is
justifiable.
Articles 14 and 16 of the Convention
96. Nor does Article 14 assist the appellants. Article 14 provides that the “enjoyment
of the rights and freedoms set forth in [the] Convention shall be secured without
discrimination on any ground …” The crucial element under Article 14 is that the
discrimination must be in “the enjoyment of the rights” under the Convention. The
applicant must have a Convention right before he can complain of discrimination:
Moustaquim v. Belgium (1991) 13 EHRR 802, and contrast Gaygusuz v. Austria (1996)
23 EHRR 364.
97. As the Court said in, for example, Aziz v Cyprus (2005) 41 EHRR 164, paras 35-
36:
“The Court further observes that Article 14 has no
independent existence, but plays an important role by
complementing the other provisions of the Convention and
the Protocols, since it protects individuals, placed in similar
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situations, from any discrimination in the enjoyment of the
rights set forth in those other provisions. Where a
substantive Article of the Convention has been invoked,
both on its own and together with Article 14, and a separate
breach has been found of the substantive Article, it is not
generally necessary for the Court to consider the case under
Article 14 also, though the position is otherwise if a clear
inequality of treatment in the enjoyment of the right in
question is a fundamental aspect of the case.”
98. Consequently, where there is a breach of Article 3, it has not normally been
necessary to deal with Article 14: e.g. Matthews v United Kingdom (1999) 28 EHRR 361,
para 68; Hirst v United Kingdom (No 2) (2006) 42 EHRR 41, para 87; Tanase v Moldova
[2008] ECHR 1468, para 116. Podkolzina v Latvia [2002] ECHR 405, para 42; Sadak v
Turkey (No 2) (2003) 36 EHRR 23, para 47; Melnychenko v Ukraine (2006) 42 EHRR
784, para 71. So also where the claim under Article 3 is dismissed and the complaint
under Article 14 is essentially the same, it will not be necessary to consider Article 14:
Mathieu-Mohin (1988) 10 EHRRI, para 59; Sukhovetskyy v Ukraine (2007) 44 EHRR 57,
para 76. Aziz v Cyprus (2005) 41 EHRR 164 is an example of a case where there was a
separate breach of Article 14, because the applicant was excluded from the electoral
register because he was a member of the Turkish Cypriot community. The complaint
under Article 14 was not a mere restatement of the applicant’s complaint under Article 3
of the First Protocol. The applicant was a Cypriot national, resident in the Governmentcontrolled area of Cyprus. The difference in treatment in that case resulted from the very
fact that the applicant was a Turkish Cypriot. The present case is not a case of
discrimination in this sense.
99. There was some discussion in argument of the relevance of Article 16 of the
Convention to the present appeal. It provides that “nothing in Articles 10, 11 and 14 shall
be regarded as preventing the High Contracting Parties from imposing restrictions on the
political activity of aliens.” Article 16 is of very limited scope. It applies only to Articles
10, 11 and 14, and has been held not to apply to non-nationals who are citizens of EU
countries: Piermont v France (1995) 20 EHRR 301. Because aliens do not have a right
under Article 3 of the First Protocol to stand for election, there is no scope for the
operation of Article 16.
The applicability of the Human Rights Act 1998
100. The respondents accept that to the extent that the Reform Law breaches
Convention rights, then the appellants are entitled to relief in these proceedings. That is
because the respondents expressly advised Her Majesty to approve the Reform Law on
the ground that it did not involve any breach of the obligations of the United Kingdom
under the Convention: R v Secretary of State for the Home Department, Ex p Launder
Page 27
[1997] 1 WLR 839, 867, per Lord Hope of Craighead. Consequently the decision of the
Committee for the Affairs of Jersey and Guernsey and the Order in Council are subject to
judicial review: R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs
(No. 2) [2009] 1 AC 453, para 35 (Lord Hoffmann) and para 105 (Lord Rodger of
Earlsferry).
101. The Human Rights Act 1998 contains no provision as to its territorial scope,
except that section 22(6) provides that it extends to Northern Ireland. As already
mentioned, amendments to extend the Act to the Channel Islands and the Isle of Man
were rejected or withdrawn during the passage of the Act.
102. The appellants contend that the courts of this country also have the power and the
duty to grant relief on the basis that the respondents were acting as public authorities for
the purposes of section 6 of the Human Rights Act 1998 when recommending the Order
in Council by which the Reform Law was given Royal Assent. The respondents’ position
is that the Act does not apply because (a) it was not intended to apply to obligations of the
United Kingdom assumed under Article 56 (formerly Article 63) of the Convention, and
Article 4 of the First Protocol, in respect of compliance with the Convention in territories
for the international relations of which it is responsible; and (b) in any event the
respondents were not acting as public authorities of the United Kingdom for the purposes
of section 6 of the Act, but were acting to advise Her Majesty in respect of her role as
sovereign of the Bailiwick of Guernsey. Wyn Williams J accepted both points: [2008] 3
WLR 867, paras 89-96. The Court of Appeal agreed with Wyn Williams J on the first
point, but disagreed on the second point: Pill LJ: [2009] 2 WLR 1205, paras 106-109.
103. The appellants accepted in the hearing before the Appellate Committee that the
point was academic, but drew attention to the fact that the House of Lords was prepared
to address such points if they were of general importance: R v Secretary of State for the
Home Department, Ex p Salem [1999] 1 AC 450, 456-457.
104. In R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth
Affairs [2006] 1 AC 529 the Secretary of State had instructed the Commissioner of South
Georgia to issue fishing licences to two specified vessels, which had the effect that the
claimant’s vessel did not receive a licence. The claimant sought judicial review and
damages for deprivation of a possession under Article 1 of the First Protocol. The
Convention had been extended to South Georgia and the South Sandwich Islands, but not
the First Protocol. The instruction was quashed on the ground of procedural unfairness:
[2002] EWCA Civ 1409.
105. The question before the House of Lords was whether the claimant could sue for
damages under sections 6 and 7 of the Human Rights Act 1998. As in the present appeal,
Page 28
this was taken to involve two issues, failure on either of which was fatal to the claim. The
first issue was whether the instruction had been issued by the Crown in right of the United
Kingdom, or in right of South Georgia and the Sandwich Islands. In the latter event the
Secretary of State acting on behalf of HM the Queen would not be a United Kingdom
public authority for the purposes of section 6. The second issue was whether the claimant
had established breach of a Convention right for the purposes of section 7 of the Human
Rights Act.
106. On the first issue it was held by a majority that the instruction had been given by
the Crown acting through the Secretary of State in the context of South Georgia and the
South Sandwich Islands, and Secretary of State had acted on behalf of HM the Queen in
right of that territory and not of the United Kingdom. For the majority the question was
the constitutional standing of the instruction: at para 19, per Lord Bingham, para 64, per
Lord Hoffmann, and para 79, per Lord Hope. The argument for the claimant that the
instruction was given in the interests of the United Kingdom was rejected on the basis
that whether the Secretary of State’s decision was motivated by the wider political and
diplomatic interests of the United Kingdom was “unsuitable for judicial determination”
(at para 18, per Lord Bingham), the court was “neither concerned nor equipped to decide
in whose interests the act was done” (at para 64, per Lord Hoffmann); or that, although
the question might be justiciable, for it to be explored would give rise to great
uncertainty; it was irrelevant because the question was simply in what capacity the
instruction was given by the Crown: at paras 78-79, per Lord Hope. Lord Nicholls of
Birkenhead and Baroness Hale, dissenting, considered that the capacity in which the
Crown acted was irrelevant: paras 45-46, 94-95. Baroness Hale of Richmond said that to
treat capacity as decisive, when the legality of the instruction could be raised in United
Kingdom courts, and when the Secretary of State was answerable, if at all, to the United
Kingdom Parliament, would be a surrender of substance to form. The authority of the
majority was weakened when in R (Bancoult) v Secretary of State for Foreign and
Commonwealth Affairs (No. 2) [2009] 1 AC 453, para 46 Lord Hoffmann said that, in the
light of Finnis, Common Law Constraints: Whose Common Good Counts? (2008) Oxford
Legal Studies Research Paper 10/2008 (criticising the decision of the House of Lords in
Quark and of the Court of Appeal in Bancoult [2008] QB 365), he thought that Lord
Nicholls was right.
107. Since it is agreed that this issue does not arise on the present appeal, it is not
necessary to say more than that, as matters now stand, the approach laid down by the then
majority of the House of Lords leads to the conclusion that the decisions of the
Committee for the Affairs of Jersey and Guernsey and the Privy Council were taken as
part of the constitutional machinery of the Bailiwick of Guernsey and of Sark for the
approval and enactment of Laws in Sark, and that the fact that the decisions were taken
by Ministers of the Crown who took into account the international obligations of the
United Kingdom is irrelevant. It would be quite wrong for the approach in Quark to be
revisited on an appeal (particularly with a panel of five) in which it does not arise, and in
which it is not argued that Quark was wrongly decided and ought to be reconsidered.
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108. The second issue in Quark was whether the claimant had established breach of a
Convention right for the purposes of section 7 of the Human Rights Act. Lord Nicholls
considered that, even if the First Protocol had been extended to South Georgia and the
South Sandwich Islands, the claimants would not have had a Convention right on which
they claim damages under the Human Rights Act. He said at para 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”
109. Lord Hoffmann came to the same view on this point: “The Act is concerned only
with the Convention as it applies to the United Kingdom and not by extension to other
territories”: para 62. Lord Hope emphasised that the United Kingdom government would
not be answerable in Strasbourg if the international obligation had not been extended to
the overseas territory, but he said that he agreed with Lord Nicholls: para 93. Lord
Bingham expressed no view on this point: para 26. Baroness Hale left the question open:
para 98. Lord Hoffmann in R (Bancoult) v Secretary of State for Foreign and
Commonwealth Affairs (No. 2) [2009] 1 AC 453, para 48, reiterated his view, but that too
was a case in which the Convention had not been extended to the overseas territory (the
British Indian Ocean Territory).
110. In R (Al-Skeini) v. Secretary of State for Defence [2008] 1 AC 153 Lord Bingham
said, at para 20, that it was not clear that the view of Lord Nicholls in Quark commanded
majority support. But Lord Brown (with whom Lord Carswell agreed: para 96) endorsed
Lord Nicholls’ approach. He said (at para 134):
“… there is a distinction between rights arising under the
Convention and rights created by the Act by reference to
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the Convention. A plain illustration of this arises from the
temporal limitations imposed by the Act … Another
illustration is the Act’s non-applicability in article 56 cases.
Consider R (Quark Fishing Ltd) v Secretary of State for
Foreign and Commonwealth Affairs … Even had the UK
extended article 1 of the First Protocol to [South Georgia
and the South Sandwich Islands], 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.”
111. This is a case, by contrast with those in which the point has been canvassed,
where the relevant Convention obligation has been extended to a dependency. But this
point does not arise for decision on this appeal for the principal reason that it was
conceded that there was jurisdiction to determine the lawfulness of the decisions of the
Committee and the Privy Council. It might conceivably have arisen on the question of
remedy, but that too would not arise on the view of the merits expressed in this judgment.
In addition there would have been a separate ground for the non-applicability of the
Human Rights Act, namely the capacity in which the decisions were taken. Consequently
it would also be wrong for the question whether the claimant had established breach of a
Convention right to be decided on an appeal where it does not arise and would be an
academic question.
112. I would therefore dismiss the appeal.
LORD HOPE
113. I am in full agreement with the opinion of Lord Collins. I wish to add a few
comments on two points only.
114. First, while I agree that some of what Dr Slivnik (who appeared in person) said in
his brief address was not relevant to the outcome of this appeal, he did bring vividly to
life what it means to live in a small island community. He said that Sark works so well
because of its small size. That was why it was possible to achieve such a high degree of
democracy in such a small society, where everyone knows everyone else. His experience
since coming to live there was that it was possible for someone to make a much greater
contribution to public life than he had found anywhere else. It was a place where one
Page 31
could go round and talk to people. One could have much greater direct access to the
legislators.
115. This led to two considerations which he wished to stress. The first was that it
would be in conflict with democracy in a small society to vest too much power in
individuals. The powers that the Reform Law gave to the Seneschal, the highest paid
official on the island, were disproportionate. The second was that, as membership of the
Chief Pleas was unpaid, there was a very real problem in attracting able and willing
candidates for election. The fact that so few tenants had expressed an interest in standing
tended to reinforce his perception that the Seneschal had too much power. He himself was
keen to volunteer for public life. But he was prevented from doing so because, as an alien,
he was not entitled to stand for election. He said that the greatest prospect in achieving
reforms that were truly in the best interests of democracy lay in quashing the Reform
Law, so that the 1951 Law could be restored and more time given to the process of
reform.
116. The answer to these points lies, as Lord Collins has explained so carefully, in the
principles that are to be derived from Article 3 of the First Protocol. As he has said,
electoral rules have to be looked at in the round and in the light of each state’s own
historical and political factors. Taken in the round, having regard to the things that the
Seneschal can and cannot do and to the potential means of addressing any abuse, the
powers that are given to him are well within the margin of appreciation allowed by that
article. Dr Slivnik’s frustration at not being eligible for election is readily understandable.
But there is ample authority for the proposition that the Chief Pleas’ decision granting the
right to stand for elections only to those who are citizens of Sark was well within that
margin of appreciation also. I agree that the appeal must be dismissed.
117. Second, I wish to clear up any uncertainty which my remarks in R (Quark Fishing
Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2006] 1 AC 529, paras
92-93 may have caused; see paras 109-110 above. As I stated in para 93 of my opinion in
that case, I was in full agreement with what Lord Nicholls of Birkenhead said about the
territorial scope of the Human Rights Act 1998. This extended to para 36 of his opinion,
where he said that notification by the United Kingdom that the Convention was to apply
to its overseas territories did not extend the reach of the Act to those territories. I would
respectfully endorse the observation by Pill LJ in the Court of Appeal [2009] 2 WLR
1205, para 105 that my own remarks should not be interpreted as meaning that
notification attracted the application of the Act. What I was seeking to show, as an
additional reason for agreeing with Lord Nicholls, was that notification under article 56
or, as the case may be, article 4 of the First Protocol was a pre-condition for a
consideration of that issue and that on the facts of that case this condition could not be
satisfied.
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LORD SCOTT
118. I am in full agreement with the reasons Lord Collins gives for dismissing this
appeal. I can add nothing useful and for the reasons he gives I would do likewise.
LORD BROWN
119. I have read Lord Collins’ judgment and regard it as convincing and definitive on
all the issues we have to decide. With regard to the applicability of the Human Rights Act
1998, to my mind the most interesting question debated before us, tempted though I have
been to address it, I am persuaded by Lord Collins (see paras 100-111 of his judgment)
that it would not be right to succumb.
LORD NEUBERGER
120. I have read the magisterial judgment of Lord Collins and agree with it.
Accordingly, I too would dismiss this appeal.