Practice and Procedure

R (Barclay and others) v The Lord Chancellor and Secretary of State for Justice and others [2009] UKSC 9; [2009] WLR (D) 349

PUBLISHED December 7, 2009

HUMAN RIGHTS - Right to free elections - Interference with - Law providing for two unelected members to sit in legislature and prohibiting aliens from standing for election' Whether infringing right to free elections ensuring free expression of people's opinion in choice of legislature - Whether breaching right of European citizen to stand as election candidate

SC: Lord Hope of Craighead DPSC, Lord Scott of Foscote, Lord Brown of Eaton-under-Heywood JSC, Lord Neuberger of Abbotsbury MR, Lord Collins of Mapesbury JSC: 1 December 2009

The presence of two unelected non-voting members in the legislature of the Channel Island of Sark, which had 28 democratically elected voting members, did not contravene art 3 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, and alternatively, even if art 3 had required that all members be elected, was well within the margin of appreciation afforded by the article. A prohibition on aliens standing for election as members of the legislature was not incompatible with art 3.

The Supreme Court so held dismissing an appeal by the claimants, Sir David Barclay, Sir Frederick Barclay and Tomasz Slivnik, from a decision of the Court of Appeal (Pill and Jacob LJJ, Etherton LJ dissenting in part) (2009] 2 WLR 1205) on 2 December 2008 dismissing in part the claimants?€? appeal from a decision of Wyn Williams J ([2008] 3 WLR 867) on 18 June 2008 refusing the claimants judicial review of the a decision of the defendants, the Lord Chancellor and Secretary of State for Defence, the Committee for the Affairs of Jersey and Guernsey and the Privy Council,to advice that the Queen give Royal Assent to the Reform (Sark) Law 2008. The grounds on which judicial review was sought were, inter alia, that under the 2008 Law the unelected but non-voting Seigneur?€?s and Seneschal?€?s membership of the legislature was incompatible with art 3 of the First Protocol and that the prohibition on aliens standing for election to the legislature was incompatible with art 3.

LORD COLLINS JSC said that the effect of art 3 was not to require that all members of the legislature of a contracting state be elected. No doubt where, as here, that was a unicameral chamber best practice was that it should be an elected chamber. It did not follow however that as a matter of Convention law there was an invariable rule that all members must be elected irrespective of their powers and of the circumstances. The effect of the jurisprudence under art 3 was that all circumstances must be considered. It was not a necessary consequence therefore that the mere existence of some unelected members contravened art 3. The membership of two unelected individuals in the circumstances of this case did not contravene art 3. Even if art 3 did in principle require that even non-voting members be elected, then a limitation on that principle by having two prominent non-voting members would be well within the margin of appreciation in the light of the constitutional and political factors relevant to Sark. Both in international law and in the practice of states, and under the European Convention as reflected in the decisions of the Strasbourg court. and in the practice of the members of the council of Europe, it was citizens and not aliens who had the right to stand for election. Sark was not an entity in international law and had no separate citizenship, and it was entitled to restrict the right to stand for election to persons who were entitled to vote and who were not aliens within the meaning of United Kingdom law. The exclusion of aliens from those who were entitled to stand for election was justifiable.

LORD HOPE DPSC delivered a concurring judgment. LORD SCOTT, LORD BROWN JSC and LORD NEUBERGER MR agreed.

Appearances: Lord Pannick QC, James Dingemans QC and Jessica Simor (instructed byWithers LLP) for the first and second claimants; the third claimant in person; Jonathan Crow QC and Ben Hooper (instructed byTreasury Solicitor) for the defendants.

Reported by: Shirani Herbert, barrister