28 July 2008
On 18 June Mr Justice Wyn Williams gave judgment in the case of R (Sir David Barclay & Sir Frederick Barclay) v Secretary of State for Justice & Lord Chancellor, The Committee for Affairs of Jersey and Guernsey and Her Majesty’s Privy Council (2008). The list of the parties concerned is sufficient to whet the legal appetite and was trailed in an earlier article in The Lawyer (5 May).
Wyn Williams J rejected the claim for judicial review and refused leave to appeal, which is now being sought from the Court of Appeal, together with an expedited hearing. Although the claim was concerned with the lawfulness of Orders-in-Council granting Royal Assent to Sark legislation reforming its parliament, the case raised points of more general interest.
The Secretary of State argued, inter alia, that because the legislation was transitional, there was additional latitude when considering whether there was a breach of the European Convention on Human Rights, and that a claim for judicial review of an Order-in-Council should only succeed if it can be shown that the advice offered to Her Majesty was irrational and outside the range of reasonable interpretations of the convention.
Wyn Williams J rejected both contentions, holding that there was no means of predicting what the eventual outcome of the reform process might be and that it was for him to “grasp the nettle” and decide whether the legislation, as it stood, was convention-compliant or not.
Likewise, there was no margin of appreciation of reasonable interpretations of the convention. If a decision-maker or advice giver set out to make a decision or give advice on the basis that their interpretation of the convention was the correct one and their advice was erroneous, then judicial review lay. Either the advice was right or it was wrong.
Of course this begged the question of the reviewability of Orders-in-Council in the first place, but there was consensus that, given the Court of Appeal decision in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (2007), Orders-in-Council were indeed reviewable, pending the House of Lords decision.
What was more alarming from a Channel Islands perspective was the lacuna that the judgment appeared to leave. The Secretary of State argued, and the judge held, following the case of R (Quark Fishing Limited) v Secretary of State for Foreign and Commonwealth Affairs (2006) that, notwithstanding the fact that the UK Government was responsible for any breach of convention rights as extended to Sark, that the claimants could not rely on the Human Rights Act 1998 to afford them a remedy. The extension of the convention to the Channel Islands did not extend the reach of the act.
Furthermore, the Secretary of State argued that the defendants were not acting as a public authority within the act when recommending Royal Assent for the Sark legislation. The judge agreed. In advising Her Majesty, the defendants were acting as her servants in right of the Duchy of Normandy, not in right of the UK.
It follows that, as matters stand, there is no domestic convention remedy in the UK in respect of the actions of UK ministers and privy counsellors when dealing with Channel Islands matters; nor does it seem very likely that these individuals and institutions would submit to Channel Island jurisdiction – which means the claimants would have to go to Strasbourg, where the defendants would be… the UK Government.
The judge had some sympathy with the notion that there was an anomaly at work, but concluded that he was “faced… 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 UK.”
There is considerable ongoing debate in the islands as to their future relationship with the Crown. The spectacle of the Secretary of State, Lord Chancellor and Privy Council Committee responsible for the islands seeking to avoid liability under the Human Rights Act in this very technical and unattractive way is unfortunate.
What may have been good enough for the distant Sandwich Islands with no permanent inhabitants of their own looks rather more doubtful the closer to home one gets. Expecting the Channel Islands to overlook the fundamental lack of democracy in the roles of the Crown and the UK ministers whose advice she acts upon is one thing, but then to deny any remedy in the UK courts in the event of breach of the convention is another.
On the facts of the present case the judge decided there was no breach of
the convention in any event, but the constitutional cat is out of the bag.
Gordon Dawes is a partner in litigation at Ozannes Guernsey and adviser to Sir David and Sir Frederick Barclay