Guernsey Law Reports 2009-10 GLR 297
R. (on the application of BARCLAY and OTHERS) v. SECRETARY OF STATE FOR JUSTICE and OTHERS*
COURT OF APPEAL FOR ENGLAND AND WALES, CIVIL DIVISION (Pill, Jacob and Etherton, L.JJ.): December 2nd, 2008
Courts—Seneschal’s Court—role of Seneschal—Seneschal’s judicial role under Sark (Reform) Law 2008 breaches European Convention, art. 6—involvement in non-judicial functions in Chief Pleas prejudices objective appearance of independence and impartiality—danger in small community that Seneschal may be involved with same people and issues both in Chief Pleas and in court—litigant unaware whether Seneschal previously involved in issues affecting litigation—situation not rectified by power to recuse himself and appoint Deputy or Lieutenant, or by right of appeal to Guernsey
The appellants applied to the Queen’s Bench Division (Administrative Court) for leave to apply for judicial review and the quashing of the decisions of the Secretary of State for Justice and Lord Chancellor (the first respondent) to approve and refer a projet de loi from Sark to the
*This decision of the Court of Appeal for England and Wales and that of the Supreme Court of the United Kingdom (2009–10 GLR 314) are included in The Guernsey Law Reports for information, since they concern the constitutional structure of and the position of office-holders in Sark, which is part of the Bailiwick of Guernsey. The proceedings did not originate in Guernsey (which has its own Court of Appeal, from which further appeals lie to the Judicial Committee of the Privy Council).
The approach of the Guernsey courts to decisions of the English (United Kingdom) courts was stated authoritatively by Southwell, J.A. in the Guernsey Court of Appeal in Morton v. Paint (1996), 21 GLJ 61, as follows:
“The decisions of the House of Lords [now the Supreme Court] are not binding on the Guernsey Courts. But in so far as the Guernsey Courts follow English decisions on the common law, the decisions of the House of Lords [Supreme Court] carry considerable weight, and it would only be in rare cases that the Guernsey Courts would not follow such a decision of the House of Lords [Supreme Court] . . . As regards the decisions of the English Court of Appeal, while the Guernsey Courts always treat them with due respect, they are not bound by them, and are free to review them and to depart from them if they are considered to be wrong or not appropriate in the particular circumstances of Guernsey . . .”
In the light of the heavy reliance placed here on judgments of the European Court of Human Rights, it should also be noted that by the Human Rights (Bailiwick of Guernsey) Law 2000, s.2(1), “a court or tribunal [in Guernsey] determining a question which has arisen in connection with a Convention right must [also] take into account any—(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights . . . whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.”
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Committee for the Affairs of Jersey and Guernsey (the second respondent), to quash the decision of that Committee to recommend that Royal Assent be given to the projet de loi by the Privy Council (the third respondent) and to quash the Order in Council made by the Privy Council which authorized the making of a Law (the Reform (Sark) Law 2008) giving effect to that projet de loi.
The appellants also sought declarations that the decisions which led to the Order in Council were unlawful, and a declaration of incompatibility, under s.4(2) of the Human Rights Act 1998, in respect of the Order in Council.
Sark is part of the Bailiwick of Guernsey. Both under the previous Law and the 2008 Reform Law, it had its own unicameral legislature (Chief Pleas) and its own court (the court of the Seneschal). Subject to the powers of the Privy Council, Chief Pleas had powers to legislate for the Island. It shared a Lieutenant Governor with Guernsey and the Reform Law made provision for dealings with Guernsey. The United Kingdom was, however, responsible for the international relations of the Bailiwick of Guernsey (including Sark) and, under art. 56 of the European Convention on Human Rights, extended the Convention to the Bailiwick in 1953 and, by virtue of similar powers in art. 4 of the First Protocol to the Convention, extended that Protocol to the Bailiwick in 1988.
After extensive negotiations, the Reform Law made substantial changes to the previous Law (which had been approved in 1951), by which the Island was governed. There had been intense discussion about reform for many years. The first and second appellants took a recent active part in the discussions, including petitioning the Privy Council. Both owned property on Sark and also owned the nearby Island of Brecqhou over which Chief Pleas claimed authority to legislate. The third appellant, who was a citizen of Slovenia, lived on Sark and wished to stand for election to Chief Pleas.
The Reform Law provided for new constitutional arrangements in Sark. Under the projet de loi, which originated in Chief Pleas, it was confirmed that Chief Pleas, with certain reservations, should retain the power to make laws including, subject to Privy Council consent, power to amend the Reform Law itself.
Under the 1951 Law, anyone who owned one of the 40 parcels of land (tenements) was entitled to be a member of Chief Pleas (Conseiller), unless he was an alien. There was also provision for 12 democratically-elected Deputies of the People. Aliens were not entitled to vote. Under the 2008 Reform Law, Chief Pleas was to be composed of the Seigneur, the Seneschal and 28 Conseillers, elected by universal suffrage in accordance with that Law.
The traditional offices of Seigneur and Seneschal were preserved. The Seigneur remained, in effect, and subject to Her Majesty, the head of state for Sark, the position of Seigneur having existed since 1565 when the Island was granted as a royal fief. The fief was purchased by the present Seigneur’s family with royal assent in 1852 and he inherited it in 1974.
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The Seneschal, the present incumbent having been appointed by the Seigneur in 2000, remained President of Chief Pleas and chief judge.
The Administrative Court (Wyn Williams, J.) granted leave to the appellants to apply for judicial review but refused the application. He held that (a) the retention of the Seigneur and the Seneschal as unelected members of Chief Pleas did not infringe art. 3 of the First Protocol to the European Convention (“free expression of the opinion of the people in the choice of the legislature”); (b) the prohibition on aliens standing for election to Chief Pleas likewise did not infringe art. 3 of the First Protocol; (c) the Seneschal’s dual role as chief judge and member of Chief Pleas did not prevent his being “independent and impartial” as a judge in his own court; and (d) the appellants were not entitled to relief under the Human Rights Act 1998 since the Act did not apply so as to afford a remedy when the European Convention was extended (as here) to territories outside the United Kingdom by notification under art. 56 of the Convention or art. 4 of the First Protocol.
On appeal, the appellants submitted that (a) since the Seigneur and the Seneschal, each with extensive powers and duties, remained unelected members of Chief Pleas, the Reform Law breached art. 3 of the First Protocol to the European Convention on Human Rights, which required the holding of “free elections” under conditions which ensured “the free expression of the opinion of the people in the choice of the legislature”; (b) the functions and powers of the Seneschal—in particular his dual role as President of Chief Pleas and chief judge of the only court on the Island—breached art. 6 of the European Convention by failing to provide an “independent and impartial tribunal” to determine civil and criminal cases in the Island; (c) in the case of the third appellant, by prohibiting “aliens” from standing for election to Chief Pleas, the Reform Law breached art. 3 of the First Protocol (“free expression of the opinion of the people in the choice of the legislature”) read alone or in conjunction with the prohibition of discrimination on the ground of “national or social origin” under art. 14 of the Convention; again, in the case of the third appellant, by prohibiting European Union nationals who were “aliens” under Sark law from standing for election to Chief Pleas, the Reform Law breached the law of the Union (in particular art. 19 of the Treaty establishing the European Community); and (d) the decisions complained of had to be assessed by reference to the Human Rights Act 1998 and failed to meet its requirements.
[Since detailed submissions on (a) and (c)–(d) above are dealt with in the report of the proceedings in the Supreme Court (2009–10 GLR 314), they are not reproduced here. The detailed submissions on (b), however—no appeal being taken to the Supreme Court on that ground—are set out here.]
The first and second appellants submitted that the multiple functions of the Seneschal precluded any independent and impartial adjudication (and the objective appearance of it) in his court as required by art. 6 of the Convention. There was an ever-present danger that his influential political
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position as the President of Chief Pleas, together with his extensive supervisory powers over its administration, would create the appearance of a lack of independence and impartiality when a case came before his court involving a matter which had been the subject of consideration by Chief Pleas or one of its committees. This danger was heightened by (a) the smallness and therefore the more intense perceptions of the Sark community, which numbered only 600; (b) the inevitable disadvantage of the Seneschal’s having no legal training (however fair-minded he might be), especially as, unlike lay judges in other jurisdictions, he had no legally qualified colleague or clerk to assist him in deciding, for example, when to recuse himself; and (c) the fact that he now enjoyed the security of life tenure of his office, subject only to removal by the Lieutenant Governor “for good cause.”
The respondents submitted in reply that (a) there was no reason to suspect that, as a practical matter, a violation of art. 6 would be a possibility in most cases in the Seneschal’s Court—and, even if that possibility were to arise in a particular case, practical means existed of avoiding conflict of interest or remedying the breach. In particular, though the Seneschal was heavily involved in the running of Chief Pleas, he could not by law be elected to any of its Committees and therefore could not be directly associated with decisions of the Executive (which was constituted by the Committees); (b) the Sark criminal law applied in his court was enacted in Guernsey and not in Chief Pleas, and criminal offences or punishments considered to be beyond the competence of his court had to be transferred to the Royal Court in Guernsey; (c) civil matters governed by Sark customary law could give rise to no conflict, nor could it in respect of any Law passed by Chief Pleas before the Seneschal took office; (d) impartiality could always be ensured by the Seneschal’s recusing himself in a particular case in which there might appear to be a conflict of interest, and requiring either the Deputy Seneschal or a Lieutenant Seneschal (who was required by law to be legally qualified) to hear the case in his place; and finally (e) a right of appeal lay from the Seneschal’s Court to the Royal Court of Guernsey.
Held, finding that the Seneschal’s judicial position breached art. 6 of the European Convention:
(1) Since Sark maintained a separate system for the administration of justice under the Sark (Reform) Law 2008, it was required to provide for its sole court the safeguards for independence and impartiality required by art. 6 of the European Convention. Not only should the Seneschal be independent and impartial, he should also objectively appear to be so. The safeguards had to be put in place, as a matter of law, not merely for the relatively modest litigation that was normally before the court but to provide for all the litigation capable of arising in a complex modern society—and the population of Sark, though small, was likely to engage in administrative and financial activities that might well give rise to significant litigation (para. 25).
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(2) It was clear from the Seneschal’s non-judicial functions in Chief Pleas that his independence and impartiality could appear open to doubt and indeed it might well be predicted in advance (per Etherton, L.J. at para. 41) that few cases he dealt with in his court were likely to be free of an objective appearance of lack of impartiality. Even though he was not eligible to sit on the committee of Chief Pleas, the public was aware that Chief Pleas and the Executive comprised the same individuals and formed part of the same institution. The smallness of the community in Sark aggravated the problem, as the same people and issues with which the Seneschal might be dealing in Chief Pleas might easily be involved in litigation in his court—including litigation touching upon the Reform Law itself and the Guernsey Human Rights Law. Similarly, his appointment for life, subject only to official removal from office for cause, was an aggravation. He was empowered to sit alone as the legally unqualified chief judge of the sole court of justice in Sark and allowing him to recuse himself and appoint his Deputy or a Lieutenant in his place did not rectify the situation. His statutory position fell on the wrong side of the line of what was Convention-compliant (paras. 26–27; para. 42).
(3) This position was reinforced by the fact that no litigant in the Seneschal’s Court could be expected to know whether the Seneschal had actually been involved in a process in Chief Pleas that might have some direct bearing on the subject-matter of his litigation—or even whether Chief Pleas had been involved in that matter at all. A reasonable assumption would be that he might have been involved but a litigant could not be expected to research and discover whether he had been. Accordingly, in every case, so far as the litigant was concerned, there existed a possibility that the Seneschal, acting in a judicial capacity, was not independent or impartial, which could not be resolved by giving a right of appeal or judicial review (para. 43, per Etherton, L.J.)
(1) Brown v. Stott,  1 A.C. 681;  2 W.L.R. 817; 2001 S.C. (P.C.) 43;  S.L.T. 59;  RTR 11;  H.R.L.R. 9, dicta of Lord Steyn referred to.
(2) Bryan v. United Kingdom (1995), 21 EHRR 342;  1 PLR 47;  ECHR 50, referred to.
(3) Incal v. Turkey (1998), 29 EHRR 449; 4 BHRC 476;  ECHR 48, referred to.
(4) McGonnell v. United Kingdom (2000), 28 GLJ 65; 30 EHRR 289; 8 BHRC 56;  2 P.L.R. 69;  ECHR 62, applied.
(5) Millar v. Dickson,  1 W.L.R. 1615;  3 All E.R. 1041; 2002 S.C. (P.C.) 30; 2001 S.L.T. 988;  UKHRR 999;  H.R.L.R 59;  UKPC (D) 4, referred to.
(6) Pabla Ky v. Finland (2004), 42 EHRR 34;  ECHR 279, distinguished.
(7) Starrs v. Ruxton, 2000 J.C. 208; 2000 S.L.T. 42;  UKHRR 78; (1999), 8 BHRC 1, dicta of Lord Prosser applied.
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(8) Surcouf v. de Carteret, Royal Ct., September 24th, 1999, unreported, referred to.
Sark (Reform) Law 2008, s.2: “All judicial functions which may be exercised in Sark are exercisable, except to the extent that any enactment otherwise provides, by the Court of the Seneschal . . .”
s.5: The relevant terms of this section are set out at para. 4.
s.7: The relevant terms of this section are set out at para. 12.
s.8: The relevant terms of this section are set out at para. 12.
European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4th, 1950; Treaty Series 71 (1953); Human Rights (Bailiwick of Guernsey) Law 2000, Schedule 1, Part I), art. 6: The relevant terms of this article are set out at para. 11
D. Pannick, Q.C., J. Dingemans, Q.C. and Miss J. Simor for the appellants;
J. Crow, Q.C. and B. Hooper for the respondents.
[1 PILL, L.J. set out the details of the Island’s constitutional history and the claims being made in the present proceedings. He continued:]
Grounds of appeal
2 There are five grounds of challenge.
(1) In providing that the Seigneur and Seneschal, each of whom has extensive powers and duties, remain unelected members of Chief Pleas, the Reform Law breaches art. 3 of the First Protocol (“art. 3”) to the Convention.
(2) The functions and powers of the Seneschal under the Reform Law breach art. 6 of the Convention, in particular his dual role as President of Chief Pleas and Senior Judge on Sark.
(3) The prohibition of “aliens” standing for election to Chief Pleas under the Reform Law breaches art. 3 of the First Protocol to the Convention, read alone or in conjunction with art. 14 of the Convention.
(4) By prohibiting European Union nationals who are “aliens” from standing for election to Chief Pleas, the Reform Law breaches the law of the Union.
(5) The decisions complained of must be assessed by reference to the 1998 Act and fail to meet its requirements.
3 The respondents deny each of the breaches, and deny that the 1998 Act applies, but at the same time stress that the Reform Law is on any view an improvement, in Convention terms, on the 1951 Law. To quash it would
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be to restore the less favourable 1951 Law. The Reform Law has been the subject of prolonged consultation on Sark and between the Sark authorities and the UK Government. It should be allowed to stand, it is submitted, thereby giving effect to the reforms it provides. Consideration of further changes, whether or not required by the Convention, can best be left to Chief Pleas, the elected and autonomous legislature best qualified to perform the task. In reply, the appellants submit that the Reform Law, as it stands, should be judged by reference to the Convention, especially as it contains no requirement for further review.
Provisions of the Reform Law
4 Under the Reform Law, the Seigneur and Seneschal remain unelected members of Chief Pleas (s.21). They have lost the right to vote in Chief Pleas and the Seneschal no longer has the right to speak, save in order to perform his role as Presiding Officer (s.35). The Seneschal’s tenure has been extended from three years to life, subject to removal for good cause by the Lieutenant Governor (s.6). He is ex officio President of Chief Pleas (s.35). He sets the agenda and supervises debate in Chief Pleas and has power, subject to permission from the Seigneur, to call an extraordinary meeting of Chief Pleas. He is now the returning officer for elections to Chief Pleas (s.24). He is one of four Trustees of the Island (s.56). The Trustees, as agent for Chief Pleas, have powers to manage property vested in Chief Pleas (s.57). That power is “subject to any direction of the Chief Pleas.” The court of the Seneschal “shall be the sole court of justice in Sark and shall be constituted by the Seneschal sitting alone” (s. 5).
5 In addition to quarterly meetings (s.32(2)), Chief Pleas shall in addition meet whenever so directed by the Lieutenant Governor, whenever summoned by the Seneschal, with the consent of the Seigneur and, with the consent of the Seneschal, whenever requested in writing so to do by at least nine Conseillers (s.32(2)).
6 The Seigneur is an unelected member of Chief Pleas (s.21(1)) and has the right to address Chief Pleas (s.35(3)). He has power, at a meeting of Chief Pleas, to veto any Ordinance made at that meeting. Following such veto, the Ordinance shall be laid before Chief Pleas not earlier than 10 days and not later than 21 days after the meeting. At the later meeting, Chief Pleas can either confirm or refuse to confirm the Ordinance (s.38(2) and (3)). The Seigneur appoints the Deputy Seigneur (s.22) and the two officers of the Island (the Prévôt and the Greffier), subject to the approval of the Lieutenant Governor (s.49). His consent is necessary before Guernsey police officers may attend in Sark, subject to a decision by the Lieutenant Governor (s.64). He too is a Trustee of the Island (s.56). Historically, the Seigneur’s position in Sark has been a powerful one.
7 To illustrate the power of the Seneschal, Mr. Pannick refers to the
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minutes of a meeting of Chief Pleas held on March 26th, 2008. Following an interruption, it is recorded: “The Seneschal told him to sit down reminding him that he, the Seneschal, was the President at the meeting and its proceedings and responsible for the way the meeting was conducted.”
8 In his statement, the Seneschal says that he produces the agenda for meetings of Chief Pleas and attaches supporting papers as required. In relation to one meeting, he says that he would have been within his rights to have refused to include two late items on the agenda but that he had decided to include them. The Seneschal accepts that in regulating procedures in Chief Pleas he may be guided by unwritten rules which have evolved as well as by written rules. He states that, in discharging his duties as President of Chief Pleas, he considers himself to be the servant of Chief Pleas and endeavours always to operate under the current law and rules of procedure.
9 Chief Pleas is required to elect 12 Conseillers to be members of Douzaine which shall exercise the functions from time to time delegated by resolution of Chief Pleas (s.43). Committees shall exercise the functions from time to time delegated to them by resolution of Chief Pleas (s.44(2)) and Chief Pleas may delegate to a Committee all functions other than legislative functions exercisable by Chief Pleas, and also, subject to Orders in Council, legislative functions exercisable by Chief Pleas. Conditions may be imposed by Chief Pleas when functions are delegated (s.47(2)). Under s.37(2) an Ordinance may empower a committee to make regulations and issue licences or permissions under the Ordinance. Section 45(3) provides: “No person who is the Seigneur, the Seneschal, the Greffier, the Prévôt, the Treasurer, or the duly appointed deputy of any of those persons, may be elected as a member of a committee.”
10 Part II of the Reform Law, consisting of ss. 5–19, sets up a system for the administration of justice in Sark. By virtue of s.10, the jurisdiction of the Seneschal’s court in a civil matter is not limited by reference to any question of value. Section 11 provides a limited criminal jurisdiction and, in sub-s. (4), provides for the transfer of criminal cases to the Royal Court of Guernsey. There is a right of appeal, in both criminal and civil matters, to the Royal Court (s.19) and rules as to fees and costs require the approval of that court (s.18).
[The learned Lord Justice then dealt in detail with all the grounds of appeal set out in para. 2. Since Ground 1 and Grounds 3–5 are dealt with fully in the judgment of the Supreme Court (at 2009–10 GLR 314), his judgment on those grounds is not reproduced here. No appeal was taken, however, on the court’s decision on Ground 2 and the judgments on that ground are therefore reproduced here. Pill, L.J. continued:]
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11 Article 6(1) of the Convention provides, in so far as is material:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing . . . by an independent and impartial tribunal established by law.”
The Seneschal’s position as chief judge must be seen in the context of his duties in Chief Pleas and also the existence of the power to make other judicial appointments for Sark.
12 Provision is made for the appointment of a Deputy Seneschal (s.7). The person must be “ordinarily resident” in Sark, shall be removable by the direction of the Lieutenant Governor but only for good cause and shall perform the Seneschal’s duties “in and in connection with the court.” The Lieutenant Governor may appoint “one or more Lieutenant Seneschals who shall be [legally qualified and] of not less than ten years’ standing” (s.8). They are required to be legally qualified and have the same duties and tenure as the Deputy Seneschal. Those powers provide safeguards, it is submitted, in relation to the dual function of the Seneschal because other options are available if, applying ordinary principles, the Seneschal thinks it proper to recuse himself from trying a case.
13 The Seneschal has provided an “Index of Acts of Court” covering recent years. There have been numerous applications for licences, in particular liquor licences, as well as cases involving conventional civil disputes including debt, non-payment of wages, eviction and rent arrears. There have been cases with a public dimension—an inquest, non-payment of tax, illegal fishing, disorderly conduct, breach of the peace and driving a tractor without a licence. While many of the cases have been, in legal terms, comparatively trivial, it cannot be assumed that substantial litigation will be absent from a prosperous territory with 600 active residents and many visitors.
14 The need to ensure impartial and independent adjudication, and to preserve the appearance of it, is heightened in a small community such as that of Sark, it is submitted by the appellants. However fair minded he is, the Seneschal’s lack of legal training is inevitably a disadvantage in assessing the circumstances in which recusal is appropriate. Unlike lay judges in other jurisdictions, the Seneschal does not have a legally qualified colleague, or clerk, to advise him on the law, including its requirements as to judicially appropriate conduct and fair procedure.
15 The Seneschal is protected, in judicial terms, it is submitted by the respondents, because his appointment, formerly for three years, is now for life and he may be removed from office only by the direction of the Lieutenant Governor and “for good cause” (s.6(2)). The appellants submit
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that, in the circumstances, the life appointment has made the position worse. The Seneschal’s multiplicity of roles enjoyed without limit of time, make it impossible for him also to be chief judge.
16 Whatever the outcome of Ground 1, it is submitted that the Seneschal’s position as judge is inconsistent, in art. 6 terms, with his legislative and executive duties. His influential political position, it is submitted, will inevitably and legitimately arouse in litigants appearing before him fears about his independence and impartiality.
17 In Starrs v. Ruxton (7), Lord Prosser, considering the position of temporary sheriffs in the administration of justice in Scotland, stated (2000 J.C. at 232):
“But I am inclined to see independence—the need for a judge not to be dependent on others—as an additional substantive requirement, rather than simply a means of achieving impartiality or a perception of impartiality. Independence will guarantee not only that the judge is disinterested in relation to the parties and the cause, but also that in fulfilling his judicial function, generally as well as in individual cases, he is and can be seen to be free of links with others (whether in the executive, or indeed in the judiciary, or in outside life) which might, or might be thought to, affect his assessment of the matters entrusted to him.”
That passage was cited by Lord Bingham of Cornhill in the Privy Council in Millar v. Dickson (5) ( 1 W.L.R. 1615, at para. 9). Lord Bingham also cited (ibid., at para. 26), the speech of Lord Steyn in Brown v. Stott (1) ( 1 A.C. at 708): “. . . [A]nd it is a basic premise of the Convention system that only an entirely neutral, impartial, and independent judiciary can carry out the primary task of securing and enforcing Convention rights.” Lord Bingham concluded ( 1 W.L.R. 1615, at para. 26):
“The conduct of trials at all stages by an independent and impartial tribunal is in my view recognised by the Convention and the authorities, subject to waiver where that is permissible, as a necessary although not a sufficient safeguard of the citizen’s right to a fair trial. It is a safeguard which should not, least of all in the criminal field, be weakened or diluted, whatever the administrative consequences.”
18 The position of the Bailiff of Guernsey, who is president of the Royal Court in Guernsey, was considered by the European Commission and Court of Human Rights in McGonnell v. United Kingdom (4). The Bailiff’s court determined a planning appeal and the Bailiff, as Deputy Bailiff, had presided over the States when the development plan, under which the planning decision was taken, was adopted. The majority
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position of the Commission was that there had been a violation of art. 6(1) of the Convention. The Commission, as quoted by the court, put the objection to the Bailiff’s role in a general way (30 EHRR 289, at para. 33):
“The position in the present case was therefore that when the applicant appeared before the Royal Court on 6 June 1995, the principal judicial officer who sat on his case, the Bailiff, was not only a senior member of the judiciary of the Island, but was also a senior member of the legislature—as President of the States of Deliberation—and, in addition, a senior member of the executive as titular head of the administration presiding over a number of important committees. It is true, as the Government points out, that the Bailiff’s other functions did not directly impinge on his judicial duties in the case and that the Bailiff spends most of his time in judicial functions, but the Commission considers that it is incompatible with the requisite appearances of independence and impartiality for a judge to have legislative and executive functions as substantial as those in the present case. The Commission finds, taking into account the Bailiff’s roles in the administration of Guernsey, that the fact that he has executive and legislative functions means that his independence and impartiality are capable of appearing open to doubt.”
19 Subsequently, the court found unanimously that there had been a violation of art. 6 of the Convention. It did so, however, on narrower grounds, further information about the Bailiff’s role in the particular case having emerged (ibid., at para. 57). The court held that the mere fact that the Deputy Bailiff had presided over the States when the development plan was adopted was capable of casting doubt on his impartiality when he subsequently determined, as the sole judge of the law in the case, the applicant’s planning appeal.
20 The court stated (ibid., at para. 51), that art. 6 did not require the States to comply with any theoretical constitutional concepts as such:
“The question is always whether, in a given case, the requirements of the Convention are met. The present case does not, therefore, require the application of any particular doctrine of constitutional law to the position in Guernsey: the Court is faced solely with questions of whether the Bailiff had the required ‘appearance’ of independence, or the required ‘objective’ impartiality.”
21 The general issue was stated in this way (ibid., at para. 52): “The Court must determine whether the Bailiff’s functions in his non-judicial capacity were, or were not, compatible with the requirements of art. 6 as to independence and impartiality.”
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On the facts, the court concluded (ibid., at para. 55):
“. . . [A]ny direct involvement in the passage of legislation, or of executive rules, is likely to be sufficient to cast doubt on the judicial impartiality of a person subsequently called on to determine a dispute over whether reasons exist to permit a variation from the wording of the legislation or rules at issue. In the present case, in addition to the chairing role as such, the Deputy Bailiff could exercise a casting vote in the event of even voting . . .”
Sir John Laws, sitting as a judge ad hoc and concurring, expressly confined his concurrence (ibid., at 309), to the facts of the case.
22 The respondents rely, as did the judge, on the decision of the European Court of Human Rights in Pabla Ky v. Finland (6). A Finnish litigant in a building dispute alleged a breach of art. 6(1) when one of the two expert members of the Court of Appeal, in a constitution where the three other members were professional judges, was a Member of Parliament. It was not suggested that he was “actually, or subjectively, biased against the applicant.”
23 The court noted (42 EHRR 34, at para. 27), that “in this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all in the parties to proceedings.” It further stated (ibid., at para. 29) that the decision did not require “the application of any particular doctrine of constitutional law” and that art. 6 does not require States “to comply with any theoretical constitutional concepts regarding the permissible limits of the powers’ interaction.” Distinguishing the case from McGonnell (4), the court stated that “the [expert member] had not exercised any prior legislative, executive or advisory function in respect of the subject-matter or legal issues before the Court of Appeal . . .” The court stated (ibid., at para. 34), by a majority of 6:1, that it was—
“. . . not persuaded that the mere fact that [the expert member] was a member of the legislature at the time when he sat on the applicant’s appeal is sufficient to raise doubts as to the independence and impartiality of the Court of Appeal. While the applicant relies on the theory of separation of powers, this principle is not decisive in the abstract.”
The applicant’s fear as to a lack of independence and impartiality in the Court of Appeal was not “objectively justified.”
24 In a small jurisdiction there may well be administrative advantages in combining legislative and executive functions with judicial functions in one office. There will be cost savings and an office may be more attractive to applicants if the comprehensive duties of a Seneschal are to be continued on Sark. The ancient office of Seneschal is defined in the dictionary (Oxford English Dictionary (1971)) as “an official in the
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household of a Sovereign or great noble to whom the administration of justice and entire control of domestic arrangements were entrusted.” I do, however, see the combination in Sark of the judicial with the other functions of the Seneschal as inconsistent with the art. 6 requirement to establish by law an independent and impartial tribunal. Subject to the limitations noted, Sark is a separate jurisdiction. That being so, it does require that the principal judicial officer, and the court of the Seneschal shall be the sole court of justice in Sark (s.2) and shall be constituted by the Seneschal sitting alone (s.5), is not linked with the executive and legislature in the manner and to the extent that the Seneschal is.
25 Sark appears to have been fortunate, in recent years, in not having had substantial litigation, either civil or criminal, but while it seeks to maintain a separate system for the administration of justice, as the Reform Law does, the safeguards for independence and impartiality required by art. 6 must be provided. That includes a consideration of appearances. A judge independent of the legislature and executive is in my judgment required even for the comparatively modest litigation described in the Seneschal’s diary. A constitution should also make provision for the litigation capable of arising in a complex modern society. The population of Sark, though small, is likely to engage in economic, administrative and financial activities which may well give rise to significant litigation. Social welfare considerations, requiring a judicial determination, may also arise. Concern expressed by the Bailiff in 1999 in Surcouf v. de Carteret (quoted by Dawes, Laws of Guernsey, at 383 (2003)), while proposing a way of dealing with it, illustrates the potential problem:
“The Seneschal is not a lawyer. If serious litigation . . . is to be conducted before him it is incumbent on counsel to work together to identify the issues which he is being asked to decide and to do all they can to prepare and present the case in a way that he can come to a reasoned decision.”
26 This is not slavish adherence to an abstract notion of separation of powers but a recognition that it follows from the Seneschal’s functions in his non-judicial capacity in Chief Pleas, as already described, that his independence and impartiality are capable of appearing open to doubt. In this respect, the smallness of the community aggravates the problem. The same people and issues with which he is likely to be dealing when presiding at Chief Pleas, including issues arising from the Reform Law itself and the Guernsey Human Rights Law, may be the subject of litigation in his court. My conclusion on this aspect of the appeal in no way impugns the good faith or competence of the present Seneschal.
27 The law must provide a structure in which those who do, or who may, come before the court can be confident in the independence and impartiality of the judge. Given the Seneschal’s position provided by s.5 of the
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Reform Law, provision in the law for the appointment of Deputies and Lieutenants, giving the Seneschal the power to recuse himself, though constructive and advantageous in itself, does not rectify the situation. The position of the Seneschal, sitting alone, as constituting the sole court of justice in Sark (ss. 2 and 5) in my view falls on the wrong side of the line of what is Convention-compliant.
28 Unlike the Bailiff in McGonnell (4), the Seneschal cannot vote on legislation or rules in Chief Pleas but his close involvement in all proceedings there, which may well give rise to litigation, makes a concurrent role as chief judge on the Island inappropriate. The facts in Pabla Ky (6) were very different and neither the result nor the reasoning in that case indicate an outcome favourable to the respondents on this issue.
[The learned Lord Justice concluded that the appeal should succeed on Ground 2 but fail on the other grounds. He concluded:]
29 It follows that I would hold that the appeal succeeds on Ground 2 and fails on the other grounds. Mr. Pannick submits that if the appellants have made good any of the four grounds of appeal, the order of the third respondent should be quashed. Mr. Pannick’s submission is that a quashing order is the best way speedily to produce a law compliant with the Convention. The judge held that, had he found a breach, he would have quashed it. He stated ( 3 W.L.R. 867, at para. 104), that “a court should be very slow to withhold relief when illegality is established on grounds which are based on expediency rather than principle.” The expediency he had in mind was that the election planned for December 2008 would not take place.
30 I do not agree with that conclusion and my reasons are such that this court’s respect for the exercise of a discretion is not decisive. The Reform Law is a substantial improvement, in Convention terms, on the 1951 Law. Notably, it provides for an almost wholly elected Chief Pleas as compared with one in which elected members are in a small minority. To prevent the people of Sark achieving that significant improvement in December would be to perpetuate a legislature which plainly does not reflect the free expression of the opinion of the people of Sark required by art. 3. Secondly, having seen in draft the judgments of the other members of the court, the majority of the court is to find only one of the four grounds of appeal successful, that which involves the combining of judicial with parliamentary functions in the Seneschal. In the view of the majority, and subject to that, the newly-elected Chief Pleas will be Convention-compliant. Thirdly, on the court’s finding, in agreement with the judge, that the 1998 Act does not apply, any remedy the appellants have is at the European Court of Human Rights and in Sark. The appellants are not
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being deprived of a remedy in this jurisdiction by the failure to quash. Fourthly, there is obvious merit, in my view, in the issue of further reform being considered by a newly-elected Chief Pleas rather than by the existing Chief Pleas.
31 After considering the submissions, the court notified the parties during the week after the hearing that the Reform Law would not be quashed by the court.
32 I would confine the appellants’ relief to a declaration along the lines of that submitted by Mr. Pannick, the wording of which was not challenged by Mr. Crow. It will be confined to relief on Ground 2. The court will consider written submissions on the precise wording.
33 Mr. Crow was reluctant to suggest ways in which the Reform Law might be made Convention-compliant if the court made findings against the respondents. That is entirely understandable because, as he said, he does not appear for the people or Government of Sark. I too do not consider it helpful to make suggestions in relation to the office of Seneschal when the initiative should come from the authorities in Sark, as newly constituted following the December elections, in consultation with the first and second respondents.
34 I would allow the appeal to that limited extent.
[JACOB, L.J. agreed generally with the judgment of Pill, L.J. but specifically with Etherton, L.J.’s views as to the position of the Seneschal as Judge.]
35 ETHERTON, L.J.: I agree with Pill, L.J. on all points except one. In my judgment, the powers and responsibilities of the Seneschal under the Reform Law constitute a breach, not only of art. 6 of the Convention, but also art. 3 of the First Protocol.
[The learned Lord Justice dealt with the first of the grounds of appeal and continued:]
The Seneschal as Judge
36 The issue is whether the functions of the Seneschal as President of Chief Pleas and his judicial functions in the Seneschal’s Court cause the Reform Law to violate art. 6.
37 The principles in this area are well established: see, for example, Bryan v. United Kingdom (2); Incal v. Turkey (3); McGonnell v. United Kingdom (4), and Pabla Ky v. Finland (6). The following passages in the European Court’s judgment in Pabla Ky summarize the relevant jurisprudence (42 EHRR 34, at paras. 26–30):
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“26. In order to establish whether a tribunal can be considered ‘independent’ for the purposes of art. 6(1), regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of safeguards against outside pressures and the question whether it presents an appearance of independence.
27. As concerns ‘impartiality’, there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. Under the objective test, it must be determined whether, quite apart from the judges’ personal conduct, there are ascertainable facts which may raise doubts as to their impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all in the parties to proceedings.
28. The concepts of independence and objective impartiality are closely linked and the Court will accordingly consider both issues together as they relate to the present case.
29. This case also raises issues concerning the role of a member of the legislature in a judicial context. Although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in the Court’s case law, neither art. 6 nor any other provision of the Convention requires states to comply with any theoretical constitutional concepts regarding the permissible limits of the powers’ interaction. The question is always whether, in a given case, the requirements of the Convention are met. As in the other cases examined by the Court, the present case does not, therefore, require the application of any particular doctrine of constitutional law. The Court is faced solely with the question whether, in the circumstances of the case, the Court of Appeal had the requisite ‘appearance’ of independence, or the requisite ‘objective’ impartiality.
30. Lastly, it should be borne in mind that in deciding whether in a given case there is a legitimate reason to fear that these requirements are not met, the standpoint of a party is important but not decisive. What is decisive is whether this fear can be held to be objectively justified.”
38 The essence of the respondents’ case on this issue is that there is no likelihood that the Seneschal, when exercising his judicial functions, will lack independence or impartiality, or appear objectively to do so, by reason of his role and functions as President of the Chief Pleas. Mr. Crow submitted that, since the Seneschal cannot be elected to any of the
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committees of the Chief Pleas, he cannot be associated with decisions of the Executive. He pointed out that the criminal law administered in Sark is enacted in Guernsey and not in the Chief Pleas. Moreover, under s.11 of the Reform Law any criminal offence or punishment considered beyond the competence of the Seneschal’s Court shall be transferred to the Royal Court of Guernsey. As regards civil proceedings, Mr. Crow submitted that no conflict could arise in cases involving customary law, or laws passed by the Chief Pleas before the Seneschal took office. Further, there is a right of appeal from the Court of the Seneschal to the Royal Court of Guernsey.
39 Mr. Crow further submitted that if, in any case, there was likely to be a violation of art. 6 if the Seneschal sat as the judge, the practical means of dealing with that situation would be for the case to be dealt with by the Deputy Seneschal or a legally-qualified Lieutenant Seneschal, for which express provision is made in the Reform Law. If that course were not taken, the aggrieved litigant would have a right to invoke the Convention and appeal or apply for judicial review.
40 In summary, the respondents’ case is that settled jurisprudence establishes that violation of art. 6 does not turn on any theoretical concept of separation of powers; there is no reason to suppose that a violation of art. 6 would be a possibility in many cases in the Seneschal’s Court; and if that possibility did materialize, in any particular case, there exist the practical means of avoiding the conflict or of remedying a breach.
41 The present case is exceptional. In my judgment, the constitutional arrangements in the Reform Law are such that it can be predicted in advance that few, if any, cases dealt with by the Seneschal in his court are likely to be free of an objective appearance of lack of impartiality.
42 As President, the Seneschal can be expected to play a role in relation to all laws and decisions of the Chief Pleas. Further, the committees of the Chief Pleas constitute, in effect, the Executive. Although the Seneschal cannot be elected to the committees, from the public perspective the Chief Pleas and the Executive comprise the same individuals and are embraced within the same institution. Any direct involvement in the passage of legislation or executive functions, even of a purely procedural nature, may be sufficient to cast doubt on the Seneschal’s impartiality or independence when he is subsequently involved as a judge in a case with which that legislation or executive function is connected: McGonnell (4) (30 EHRR 289, at paras. 52, 55 and 57).
43 A litigant cannot be expected to know whether the Seneschal has been involved in a process within the Chief Pleas which, whether in relation to legislation or an executive matter, might have some direct or indirect bearing on the subject-matter of the proceedings. The reasonable assumption would be that the Seneschal probably had been, or at least
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might well have been, so involved, but the litigant cannot reasonably be expected to have researched and discovered any such involvement. Accordingly, in every case, so far as the litigant is concerned, there exists a possibility of lack of independence and impartiality by the Seneschal acting in a judicial capacity. In view of the inevitably limited knowledge of the litigant about the involvement of the Seneschal in the Chief Pleas on any particular occasion or matter, the problem is not resolved by rights of appeal or judicial review. For those reasons, I consider that the Reform Law gives rise to a violation of art. 6.
[The learned Lord Justice concluded by dealing with the remaining grounds of appeal.]
Appeal dismissed in part.
Guernsey Law Reports 2009-10 GLR 297