Beyond Sark: The implications of the Barclay case

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. Continue reading “Beyond Sark: The implications of the Barclay case”

Labour’s plans for the Human Rights Act

In a recent article in The Telegraph, the Shadow Justice Secretary Sadiq Khan sketches the human-rights policy with which it seems Labour will go into the 2015 election campaign. The article is supportive both of the UK’s membership of the European Convention on Human Rights and of the Human Rights Act 1998. Within the current political climate, support for those things cannot be taken for granted, and Khan’s measured contribution to the debate is to be welcomed. However, the details (such as they are) of Labour’s proposals leave something to be desired. Continue reading “Labour’s plans for the Human Rights Act”

Is the margin of appreciation something that domestic courts should be applying?

I am working on some online updates for my Administrative Law book at present. In the course of doing so, I came across R (S) v Secretary of State for Justice [2012] EWHC 1810 (Admin) – in which Sales J has some interesting (but debatable) things to say about the margin of appreciation doctrine. Continue reading “Is the margin of appreciation something that domestic courts should be applying?”