LE LIEVRE AND OTHERS v. THE UNITED KINGDOM
Inadmissible
Aleš Pejchal;Armen Harutyunyan;Ledi Bianku;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Robert Spano
1. In 2008, the island of Sark, an autonomous part of the Bailiwick of Guernsey in the Channel Islands with a population of some 600 residents, enacted a new electoral system. 2. The applicants are three British nationals, Tony Eric Le Lievre, Peter Tonks and Robert Knight, who were born respectively in 1953, 1948 and 1983. They are residents of Sark and, although they bring this application in their individual capacities, they have formed an unincorporated association called “Sark First”, which seeks reform of the island’s new electoral system. Their principal complaint to the Court is that the system does not comply with the requirements of Article 3 of Protocol No. 1 to the Convention, the right to free elections. 3. Sark’s constitutional position, the history of the reforms which led to the new electoral system, and the conduct of recent elections under that system are summarised at paragraphs 4–18 below. That summary is taken from the facts as submitted by the applicants and from two judgments of the Supreme Court of the United Kingdom concerning Sark: R (Barclay) v. Lord Chancellor and Secretary of State for Justice (“Barclay (no. 1)”) and R (Barclay) v. Secretary of State for Justice (“Barclay (no. 2)”) (see relevant domestic law and practice at paragraphs 23–32 below). 4. The Channel Islands consist of the Bailiwicks of Jersey and Guernsey. The Bailiwicks are United Kingdom Crown Dependencies. The Bailiwick of Guernsey consists of the island Guernsey itself, the islands of Sark and Alderney, and several smaller islands. Sark and Alderney are autonomous from Guernsey. 5. The United Kingdom is responsible for the Bailiwick of Guernsey’s international obligations and has extended the application of the Convention and Protocol No. 1 to it through declarations under Article 56 of the Convention and Article 4 of Protocol No. 1. That responsibility is exercised primarily through the Privy Council. 6. Sark’s constitutional position can be traced back to the Anglo-French wars of 1202-14, when it came under the jurisdiction of the English Crown. Throughout its history Sark has, like the rest of the Channel Islands, retained its own customs, laws, courts and legislature. 7. Sark’s present constitutional position derives from letters patent issued by Queen Elizabeth I in 1565 which granted a perpetual lease of island to its first “Seigneur”. The lease has passed, either by sale or inheritance, down to the island’s current Seigneur, who still plays a role in the government of the island. 8. Guernsey, Alderney and Sark all have their own legislatures and, in general, the three islands legislate for themselves. 9. Sark’s legislature is called the Chief Pleas. The Chief Pleas legislates by two methods, Laws and Ordinances. In respect of Laws, after the Chief Pleas passes a Law, it is remitted as a Projet de Loi to officials in the Ministry of Justice, London. It is then remitted to the Committee for the Affairs of Jersey and Guernsey, a Committee of the Privy Council (“the Committee”). The Committee includes the Secretary of State for Justice, the member of the United Kingdom cabinet responsible for the Ministry of Justice. If the Committee recommends that Royal Assent be granted, the Projet de Loi is presented to the Privy Council for Royal Assent so that it may become law. Royal Assent will then be given through an Order in Council. The Projet de Loi will not be presented to the Privy Council if the Committee decides not to recommend it for Royal Assent (see the Supreme Court’s judgment in Barclay (no. 1) at paragraph 17). 10. In considering whether or not to recommend approval, the Committee will in general respect the decision of the Chief Pleas, and there would tend to be a presumption in favour of recommending Royal Assent. But consideration is given to the Crown’s responsibilities, so that if a Projet de Loi violates the Crown’s international obligations or any fundamental constitutional principle or if it is clearly not in the public interest for it to become law, then a recommendation may be made to withhold Royal Assent (see the Barclay (no. 1) judgment at paragraph 18). 11. Historically, Sark was divided into 40 plots of land or “tenements”. Anyone who owned one of the tenements (“a tenant”) was entitled to a seat in the Chief Pleas. In 1922 the tenants were joined in the Chief Pleas by twelve elected members. 12. In March 2006, the Chief Pleas voted for a reform which would have provided for a legislature to consist of 16 tenants elected by the tenants and 16 deputies elected by the rest of the population. In April the Chief Pleas withdrew its support for the reform, a position supported by the Secretary of State for Justice, who wrote to the Seigneur stating that he “would not have been able to recommend for Royal Assent legislation about which there are serious or substantial ECHR compliance issues” (quoted in Barclay (no. 1) at paragraph 26). He continued: “[a]ny option which falls short of a wholly democratic process would cause me serious difficulties. ... I am concerned that Sark should give itself, and the UK, the best protection it can from ECHR challenge and its possible consequences ... [i]t is the UK which is vulnerable to an ECHR challenge. The UK cannot stand by and give that situation its tacit approval by doing nothing.” 13. In April 2007, the Chief Pleas approved another version of a new law which would still reserve seats in the Chief Pleas for tenants, but with those tenants elected by universal suffrage. The Secretary of State decided not to submit that proposal to the Privy Council over doubts as to whether it complied with the United Kingdom’s international obligations (Barclay (no. 1) at paragraph 27). 14. In 2008, the Chief Pleas then passed a Projet de Loi which proposed removing tenants from the Chief Pleas and replacing them with twentyeight elected members or “conseillers”. The Seigneur was to be an ex officio member of Chief Pleas, with a voice but no vote. The Seigneur did not have the right to veto Laws passed by the Chief Pleas (and this is would not change in the Projet de Loi). He would, however, retain the right to veto an Ordinance. In that case, the Ordinance would be placed again before the Chief Pleas within twenty-one days for its decision on whether to override the veto. The Projet de Loi also provided that the Seigneur could not sit on executive committees of the Chief Pleas, the main means through which the executive government of the island is conducted. 15. The 2008 Projet de Loi created the following electoral system for the island. All persons who had been resident on the island for 24 months could vote. Conseillers would serve four-year terms, but those terms would be staggered so that, subject to special rules governing by-elections and unforeseen vacancies, only fourteen of the twenty-eight conseillers would be elected at any one general election (save for the first general election at which all twenty-eight seats would be contested). 16. For any election, the island would be a single constituency with all eligible voters able to vote for all candidates. A voter would receive a number of votes equal to the number of vacancies being contested at the election (normally fourteen vacancies unless there were additional vacancies). The fourteen candidates gaining the most votes would be elected. 17. The Committee of the Privy Council recommended that the Reform Law should receive Royal Assent, concluding that it would not violate any of the United Kingdom’s international obligations. Royal Assent was accordingly given on 9 April 2008 and the Projet de Loi entered into force as the Reform (Sark) Law 2008 (“the 2008 Reform Law”). 18. Once Royal Assent was given to the 2008 Reform Law, Sark’s first general election on took place on 10 December 2008. Since then there have been three further general elections and two by-elections. The applicants have provided the following summary of the results for those elections: 19. Traditionally, sessions of the Chief Pleas were chaired by the island’s “Seneschal” who also serves as the island’s resident judge. Subsequent reforms have separated the Seneschal’s judicial and legislative functions: he now holds purely judicial office, his presiding role in Chief Pleas has been taken by a President of Chief Pleas. 20. Sark’s court of first instance is the court of the Seneschal. His court has unlimited jurisdiction in civil matters and shares jurisdiction in criminal matters with the Royal Court of Guernsey. When civil and criminal matters are decided at first instance by the court of the Seneschal, there is a right of appeal to the Royal Court of Guernsey then to the Court of Appeal for Guernsey and, finally, the Judicial Committee of the Privy Council. 21. Sark’s laws can, under certain circumstances be challenged in the United Kingdom courts. This arises because, under the law of England and Wales, there is the possibility of bringing a legal challenge to the making of an Order in Council. This is done by way of judicial review in the High Court for England and Wales and, on appeal, to the Court of Appeal and, finally, the Supreme Court of the United Kingdom. Given that Royal Assent to legislation from the Bailiwick of Guernsey is given by an Order in Council (see paragraphs 9 and 10 above), it is, therefore, possible to challenge Guernsey legislation in the High Court through judicial review proceedings. This is, however, a limited jurisdiction, which the Supreme Court has made clear should not always be exercised: see Barclay (no. 2) at paragraphs 30–32 below. 22. The Human Rights (Bailiwick of Guernsey) Law 2000, a Law modelled on the United Kingdom Human Rights Act 1998, applies throughout the Bailiwick of Guernsey, including Sark. In summary, like the Human Rights Act, the Law constrains public authorities in the islands from acting contrary to Convention rights and requires the courts of the islands to take account of the case-law of the Convention bodies. It also requires the courts, so far as it is possible to do so, to read and give effect to primary legislation and subordinate legislation in a way which is compatible with the Convention rights. When it is not possible for them to do so, the islands’ courts, like their counterparts in the United Kingdom, may make a declaration that the legislation is not compatible with the Convention (a declaration of incompatibility). 23. In Barclay (no. 1) certain aspects of the Reform Law were challenged by way of judicial review in the High Court of England and Wales, including whether the continued presence of the Seigneur and (at that time, the Seneschal) in the Chief Pleas was compatible with Article 3 of Protocol No. 1. 24. That judicial review challenge ultimately reached the United Kingdom Supreme Court, which gave judgment on 1 December 2009 dismissing the challenge: [2009] UKSC 9. 25. Lord Collins gave the lead judgment for the unanimous court. After reviewing the general principles which emerged from this Court’s case law on Article 3 of Protocol No. 1 (including the need to consider electoral rules in the round and in the light of historical and political factors), Lord Collins observed that there was no breach of Article 3 of Protocol No 1 arising from the Seigneur and Seneschal’s continued membership of Chief Pleas. He observed (at paragraph 66 of the judgment): “The starting point is that only Conseillers are entitled to vote in the Chief Pleas, and therefore it is only Conseillers who determine whether legislation is to be enacted. The electorate of Sark consists of fewer than 500 voters, who choose 28 elected Conseillers by a process of casting 28 votes each and electing the 28 candidates with the largest number of votes. There is therefore one Conseiller for every 17-18 persons in the electorate. It is not easy to envisage, in the words of Article 3, conditions which are more likely to ensure the expression of the opinion of the people in the choice of the legislature.” 26. Lord Collins went on to find that there was nothing in the travaux préparatoires of the Convention or the case-law of this Court which established that all members of the legislature should be elected, irrespective of their powers and irrespective of the circumstances. Indeed, to the contrary, the travaux préparatoires indicated that Article 3 of Protocol No. 1 had been drafted to recognise that, in some States, part of the legislature was not elected. 27. Instead, the effect of this Court’s case-law under Article 3 of Protocol No. 1 was that all circumstances had to be considered. The presence of the Seigneur (and, at that time, the Seneschal) in the Chief Pleas did not contravene that Article. Even if their membership in the Chief Pleas was to be regarded as a limitation on the people’s right to choose the legislature, in light of the constitutional history and the political factors relevant to Sark, that limitation fell well within the margin of appreciation allowed by Article 3, not least given the long history of both positions and the difficulties that had occurred since 1922 in reforming the Chief Pleas (see paragraphs 11–17 above). 28. In respect of the Seigneur, his right to speak but not vote could not reasonably be said to frustrate the free expression of the opinion of the people in the choice of the legislature. Nor was that conclusion affected by the Seigneur’s other powers and responsibilities on the island. For instance, the present Seigneur had never exercised his right of temporary veto over Ordinances and he had stated that he only envisaged using it in very limited circumstances. The remainder of the Seigneur’s other powers, such as the limited power to appointment certain of the island’s executive officials, did not affect the democratic process. 29. Finally, Article 14 could not assist the claimants in the case: their complaint under Article 14 was essentially the same as that made under Article 3 of Protocol No. 1. 30. In Barclay (no. 2), the same claimants challenged Reform (Sark) (Amendment) (No. 2) Law 2010, which removed the Seneschal from the Chief Pleas and made new provisions for his or her appointment, removal, renewal and remuneration. They did so by way of judicial review proceedings, commenced in the High Court for England and Wales, alleging that the provisions were incompatible with Article 6 and thus that the decision of the Committee of the Privy Council to recommend that Royal Assent be given to the Law through an Order in Council was unlawful. 31. The High Court rejected the challenges to provisions on appointment, removal and renewal of the Seneschal. It found, however, that the power of the Chief Pleas to reduce the Seneschal’s remuneration was incompatible with Article 6. 32. The latter part of the judgment was appealed to the Supreme Court, which allowed the appeal: [2014] UKSC 54. The Supreme Court found that, although the High Court had jurisdiction to hear such a challenge, it should not have exercised its discretion to hear it. For the courts of England and Wales to entertain challenges to the compatibility of Channel Islands legislation with the Convention would be to subvert the islands’ own human rights legislation (see, for instance, the Human Rights (Bailiwick of Guernsey) Law 2000, set out at paragraph 22 above). The courts of the Bailiwick of Guernsey were infinitely better placed to assess the issues involved in human rights cases and there was the ultimate safeguard of an appeal to the Judicial Committee of the Privy Council. Unlike the courts of England and Wales, the Judicial Committee had the inestimable benefit of the considered judgment of the courts of first instance and appeal in the island jurisdictions, and the island authorities would have every opportunity to take part in the case. The courts of the Bailiwick were the appropriate forum in which challenges to island legislation on grounds of incompatibility with the Convention should be heard (Lady Hale at paragraphs 37 and 39 of the Supreme Court’s judgment).