West Law Report

Advice to Queen on Sark reform was unlawful

Posted in Times Law Report by mrkooenglish on December 5, 2008

From The Times
December 5, 2008
Advice to Queen on Sark reform was unlawful

Court of Appeal
Published December 5, 2008
Regina (Barclay and Others) v Lord Chancellor and Secretary of State for Justice and Others
Before Lord Justice Pill, Lord Justice Jacob and Lord Justice Etherton
Judgment December 2, 2008

Proposed reform of the constitution of the Channel Island of Sark which allowed the Seneschal, appointed by the Seigneur, to be both a member of the legislature and the chief judge, contravened article 6 of the European Convention on Human Rights, guaranteeing a fair trial by an independent and impartial tribunal.

The Court of Appeal so stated when allowing in part an appeal by the claimants, Sir David Barclay, Sir Frederick Barclay and Mr Thomaz Slivnik, and granting a declaration that advice to her Majesty the Queen to give the Royal Assent to the Reform (Sark) Law 2008 was unlawful.

Mr Justice Wyn Williams (\ 3 WLR 867) had dismissed their claim for, inter alia, judicial review of the decisions of the Lord Chancellor and Secretary of State for Justice and the Committee for the Affairs of Jersey and Guernsey to refer to the Privy Council the 2008 Law and their advice which led to the making of the Order in Council.

Lord Pannick, QC, Mr James Dingemans, QC and Miss Jessica Simor for the claimants; Mr Jonathan Crow, QC and Mr Ben Hooper for the Lord Chancellor, the Committee and the Privy Council.

LORD JUSTICE PILL said that the ancient office of Seneschal was defined in the Oxford English Dictionary (1971) as “an official in the household of a Sovereign or great noble to whom the administration of justice and entire control of domestic arrangements were entrusted”.

The combination in Sark of the judicial with the other functions of the Seneschal was inconsistent with the article 6 requirement to establish by law an independent and impartial tribunal.

The same people and legislative issues with which he was likely to be dealing as President of Chief Pleas, including issues arising from the Reform Law and the Guernsey Human Rights Law, might be the subject of litigation in his court as senior judge of Sark.

That conclusion in no way impugned the good faith or competence of the present Seneschal, but the law should provide a structure in which those who did, or who might come before the court could be confident in the independence and impartiality of the judge.

Given the Seneschal’s position provided by section 5 of the Reform Law, a provision for the appointment of a deputy and lieutenants, giving the Seneschal the power to recuse himself, although constructive and advantageous in itself, did not rectify the situation.

The position of the Seneschal, sitting alone, as constituting the sole court of justice in Sark in section 5 fell on the wrong side of the line of what was Convention compliant.

Lord Justice Jacob and Lord Justice Etherton delivered concurring judgment.

Solicitors: Withers LLP and Ozannes, Guernsey; Treasury Solicitor.

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