Beyond Sark: The implications of the Barclay case

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Although at one level astonishingly complex, the issues at stake in R (Barclay) v Secretary of State for Justice (No 2) [2014] UKSC 54 (press summary) (judgment) can be stated relatively simply for the purpose of seeking to understand its broader significance. Article 6 of the European Convention on Human Rights requires, among other things, judicial independence and impartiality. In Barclay (No 2), it was argued that the office of Chief Judge of Sark, one of the Channel Islands, failed to comply with Article 6.

Recently enacted local legislation, making provision in relation to the office of Chief Judge, formed the subject-matter of the challenge. Predecessor legislation had already been considered in earlier litigation (culminating in R (Barclay) v Secretary of State for Justice (No 1) [2009] UKSC 9). The challenge to the new legislation failed in the UK Supreme Court, not on the ground that the human-rights argument was without merit, but because the question should have been resolved by local courts rather than by the courts of England and Wales or by the UK Supreme Court. It would be inappropriate, the Supreme Court held, for UK courts (a term that will be used to include both the courts of England and Wales and the UK Supreme Court) to address this matter in Barclay (No 2), and it had been wrong for them to do so in Barclay (No 1).

These issues may appear to be highly technical and of little relevance beyond the specific context of the Channel Islands. However, the significance of the Barclay judgment is considerably greater than that. This post will explain and comment on the two key issues that arose in Barclay (No 2) — namely, whether UK courts had jurisdiction to consider the matter; and, if they did, whether they should have exercised such jurisdiction.

Existence of jurisdiction

The more-radical aspect of the argument put to the Supreme Court in Barclay (No 2) was that UK courts could not — as opposed to should not — determine the question concerning the compatibility of the local legislation with Article 6 ECHR. The Supreme Court accepted that relevant provisions of the Human Rights Act 1998 do not apply in respect of Channel Islands legislation. Lady Hale DPSC — giving the only judgment — held that Island legislatures cannot be characterised as “public authorities” for the purpose of section 6 and that sections 3 and 4 were not intended to apply to Channel Islands legislation: “It is not for the courts of England and Wales to interpret the law of the Channel Islands or decide what is law there.”

These conclusions might appear to decide the jurisdiction question: if the Human Rights Act does not apply to Channel Islands legislation, what scope does this leave for UK courts to assess the compatibility of such legislation with the ECHR? The answer lies in the fact that just as Acts of the UK Parliament may only achieve such status after having been granted royal assent, so must certain forms of Islands legislation, including the measure attacked in these proceedings, secure such assent. Importantly, granting assent involves recourse to the royal prerogative, the amenability of which to judicial review was established in the seminal GCHQ case (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374).

That case, however, did not clearly establish that primary exercises of the prerogative itself, as opposed exercises of secondary authority granted through the prerogative, were reviewable. The reviewability of primary exercises of the prerogative was not firmly established until the House of Lords’ decision in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] 1 AC 453. This case established that exercises of the prerogative are not — unless they involve the granting of royal assent to bills approved by the House of Commons and the House of Lords — cloaked with the protective effect of parliamentary sovereignty, even if prerogative legislation can be — and by the Human Rights Act is — regarded as “primary legislation”. As a result, the use of the royal prerogative itself — as well as the use of delegated powers granted under it, as in GCHQ — are open to judicial review.

It was argued on two grounds in Barclay (No 2) that Bancoult (No 2) could and should be distinguished, so as to deprive UK courts of jurisdiction to review any exercise of the royal prerogative involving the granting of assent to Islands legislation. Both of those arguments were rightly rejected. First, it was argued that the granting of assent to Islands legislation should be equated to the granting of assent to UK bills, such that the former, like the latter, would enjoy immunity from any judicial scrutiny. Lady Hale, however, pointed out that the analogy was “inexact”: “the Queen in Parliament is sovereign and its procedures cannot be questioned in the courts of the United Kingdom” (emphasis added).

Second, it was argued that when granting assent to Islands legislation, the monarch is acting not “in right of” the UK (i.e. as part of the machinery of government of the UK and in its interests) but “in right of” Sark. Lady Hale rejected this argument too:

The reality … is that the appellants were advising Her Majesty both in right of the Bailiwick of Guernsey and of Sark and in right of the United Kingdom. They were advising her upon the final stage of the Island’s legislative process. But they were doing so because of the United Kingdom’s continuing responsibility for the international relations of the Bailiwick. They were politically accountable to the United Kingdom Parliament for that advice. I see no reason to doubt that they were legally accountable to the courts of the United Kingdom, although only in an appropriate case, which this is not. I would prefer to leave open the question whether they might also be legally accountable to the courts of the Bailiwick, as this has not been argued before us.

This aspect of the Supreme Court’s decision is to be welcomed. It demonstrates that the Bancoult (No 2) principle does not readily yield, and that the royal prerogative — which is today essentially nothing more than an executive power — is in principle subject to legal control.

Exercise of jurisdiction

In an article published in Public Law with my late and much-missed colleague Dr Amanda Perreau-Saussine de Ezcurra, we noted that the victory in Bancoult (No 2) was pyrrhic: by failing to subject the exercise of prerogative power in question to meaningful scrutiny, the majority in Bancoult (No 2) in effect declined to exercise the jurisdiction it had judged itself to possess. GCHQ was pyrrhic in the same sense, national-security considerations effectively displacing the possibility of judicial review. In its turn, Barclay (No 2) can also be characterised as a pyrrhic victory, for although the Supreme Court was insistent that UK courts can review the exercise of the prerogative power to assent to Islands legislation, it went on to hold that that power should not be exercised.

However, while this may appear entirely to undercut the conclusion as to the existence of jurisdiction, that conclusion remains significant for two related reasons. First, it is significant as a matter of principle: it acknowledges that the exercise of the prerogative is subject to rule-of-law constraints curated and enforceable by the judicial branch. Second, it leaves open the possibility, in extremis, of an exercise of the jurisdiction, even if in all likely scenarios exercising the jurisdiction is inappropriate.

Why, then, did the Supreme Court think intervention by a UK court would be inappropriate? Its position on this point can be understood in terms of deference, in the sense of recognising that other institutions have made choices that ought to be accorded a degree of respect, on account of the constitutional status or institutional competence of the other constitutional actor. There are two dimensions to the deference exhibited by the Supreme Court in Barclay (No 2).

First, Lady Hale said:

For the courts of England and Wales to entertain challenges to the compatibility of Island legislation with the Convention rights would clearly be to subvert the scheme of the Islands’ own human rights legislation. It would also be to subvert the method by which the United Kingdom extended the European Convention to the Channel Islands. This was not by extending the 1998 Act to them: amendments to that effect were resisted in the UK Parliament. It was by extending the scope of the Convention in international law by a declaration under article 56, and leaving it to the Islands to legislate to incorporate the rights contained in the Convention into Island law. They happened to adopt the same model as the 1998 Act but they did not have to do so.

In this way, Barclay (No 2) exhibits deference on constitutional grounds, in that other constitutional actors’ choices as to the arrangements for human-rights protection in the Channel Islands are ascribed a degree of respect rather than subverted by the intervention of UK courts. It is within the constitutional remit of UK and Channel Islands institutions to make the choices they have made, and there is no good constitutional reason why UK courts should unpick those arrangements.

Second, the Supreme Court’s judgment exhibits deference on institutional grounds. Lady Hale observed that “issues of compatibility with Convention rights often involve consideration of whether the legislation in question has struck a fair balance between the protection of individual rights and the general interests of the community”, and that the European Court of Human Rights shows “increasing respect for the particular national context and cultural traditions where interferences with qualified rights are concerned”. She concluded that the form of subsidiarity afforded by the European Court’s margin-of-appreciation doctrine should, in effect, be mirrored by equivalent arrangements within the UK legal system. She noted that local Islands courts “are infinitely better placed to assess whether an Island measure is ‘necessary in a democratic society’ or whether an Island court would lack the required independence and impartiality”. As a result, it was preferable to leave Islands courts to decide such matters for themselves, subject to the longstop possibility of an appeal to the Judicial Committee of the Privy Council.

Although a form of deference based upon considerations of relative institutional expertise, the approach adopted by the Supreme Court in Barclay (No 2) is not quite the same as the kind of institutionally grounded deference with which we are familiar. It is relatively common for reviewing courts to defer to — in the sense of ascribing a degree of weight or respect to the judgement of — legislative and administrative actors, in recognition of their (sometimes) superior expertise or competence. Deference to other judicial actors is a less familiar notion. It is not, however, without precedent. Indeed, in R (Cart) v Upper Tribunal [2011] UKSC 28 (on which I have written in detail elsewhere), the Supreme Court clearly acknowledged the general inappropriateness of the generalist High Court’s closely supervising or second-guessing the decisions of specialist judicial tribunals. It therefore adopted a highly restrictive approach when determining the circumstances in which there can be judicial review of the decisions of the Upper Tribunal.

Clearly, the issues raised by the relationship between, on the one hand, the regular courts and the tribunals system and, on the other hand, between UK and Islands courts are in many senses distinct. There is, however, a common thread that links the decisions in Cart and Barclay (No 2) and which tells against dismissing the latter as inappropriately pyrrhic. The common thread is that the invocation of the regular/UK courts’ supervisory jurisdiction is a — but not the only — means of ensuring that rule-of-law standards are respected by other constitutional actors. The Supreme Court in Cart left open the possibility of judicial review where tribunals fall into serious error; equally, the Supreme Court in Barclay (No 2) recognises that there may be circumstances in which external control of the Islands system is warranted on rule-of-law grounds. As Lady Hale put it:

If it be thought that there is a risk of complacency in the judicial, legislative or administrative authorities, of a small community, where most if not all of the prominent actors will be known to one another, the ultimate safeguard lies with the Judicial Committee of the Privy Council.

Thus the common thread underlying the Cart and Barclay (No 2) judgments is that the regular courts shoulder ultimate responsibility for ensuring government according to law — but that this does not necessarily demand close, or any direct, involvement by those courts in the supervision of certain aspects of the governance process. In the context with which Barclay (No 2) is concerned, the Supreme Court was right to recognise that it retains jurisdiction to quash unlawful exercises of the prerogative power to grant royal assent to Islands legislation. That this is fitting flows from the fact that the monarch, in doing such things, acts, at least in part, in right of the UK and must therefore be ultimately answerable to UK courts. However, for as long as adequate means exist for ensuring compliance with rule-of-law standards — through Island courts overseen by the Judicial Committee of the Privy Council — there is no difficulty in UK courts declining to exercise their jurisdiction. Barclay (No 2) may seem to be an ultimately empty decision because it identifies a power that is not to be exercised; in reality, however, it is a more subtle and more significant decision than that.

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