Barclay and Others, Regina (on the Application of) v Secretary of State for Justice and others: CA 2 Dec 2008

The claimant appealed against refusal of his challenge to the new constitutional law for Sark, and sought a declaration of incompatibility under the 1998 Act. He said that by restricting the people who could stand for election, a free democracy had been denied to them, and that the constitution did not achieve a sufficient separation of powers.
Held: The roles of the Seigneur and Senescahl did not infringe the Article 3 rights to free expression, though the position of the Seneschal being unqualified and acting in a judicial role did infringe article 6(1) rights. It was not a breach of article 3 to fail to grant to aliens, as defined in the Reform Law, the right to stand for election to Chief Pleas and neither article 14 nor EU law assisted the appellants.
Etherton LJ (dissenting on this point) thought the position of the Seneschal also infringed the claimants article 3 rights.

Pill LJ, Jacob LJ, Etherton J
[2008] EWCA Civ 1319, Times 05-Dec-2008, [2009] 2 WLR 1205, [2009] UKHRR 344
Human Rights Act 1998 4(2), European Convention on Human Rights 3 6(1) 56, British Nationality Act 1981 50(1)
England and Wales
Appeal fromBarclay and Others, Regina (on the Application of) v The Seigneur of Sark and Another Admn 18-Jun-2008
The claimants said that the the laws restricting residence and voting rights and oher constitutional arrangements on the Isle of Sark were in breach of European law, and human rights law.
Held: The claims failed. The composition of Chief Pleas . .
CitedMathieu Mohin and Clerfayt v Belgium ECHR 2-Mar-1987
(Plenary Court) The court described and approved the way in which an ‘institutional’ right to vote had developed into ‘subjective rights of participation – the ‘right to vote’ and the ‘right to stand for election’.’ It described the ambit of Article . .
CitedStarrs and Chalmers and Bill of Advocattion for Procurator Fiscal, Linlithgow v Procurator Fiscal, Linlithgow and Hugh Latta Starrs and James Wilson Chalmers; Starrs v Ruxton, Ruxton v Starrs ScHC 11-Nov-1999
The system in Scotland whereby lesser judges were appointed by the executive, for a year at a time, and could be discharged without explanation or challenge, meant that they could be seen not to be independent, and the system was a breach of the . .
CitedGaygusuz v Austria ECHR 16-Sep-1996
The applicant was a Turkish national resident in Austria. While working there he had paid unemployment insurance contributions. At a stage when he was unemployed he applied for an advance on his pension in the form of emergency assistance. That was . .
CitedSecretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
CitedN v Secretary of State for the Home Department HL 5-May-2005
The applicant had sought asylum here, but her application was rejected. She was suffering advanced HIV/AIDS. With continued proper treatment she would survive several years. If returned to Uganda she would not receive that treatment and would not . .
CitedPy v France ECHR 11-Jan-2005
The claimant, a French national wished to vote in a French overseas territory. Registration was refused because he had not been permanently resident for ten years. The local administration was concerned that ballots should reflect the will of the . .
CitedAziz v Cyprus ECHR 22-Jun-2004
Depriving a Turkish Cypriot living in the Government-controlled area of Cyprus of the right to vote was a breach of article 3. However: ‘States enjoy considerable latitude to establish rules within their constitutional order governing . . the . .
CitedMcGonnell v The United Kingdom ECHR 8-Feb-2000
The applicant owned land in the parish of St Martin’s in Guernsey. He made a number of applications for planning permission for residential use, but they were all rejected. In about 1986 he moved into a converted packing shed on his land. In 1988 a . .
CitedPabla Ky v Finland ECHR 22-Jun-2004
A member of the Finnish Parliament who also sat as an expert member of the Court of Appeal was said to lack independence as a judge.
Held: The complaint was rejected. Also there was no no objective justification for the applicant’s fear as to . .
CitedMillar v Dickson PC 24-Jul-2001
The Board was asked whether the appellants had waived their right to an independent and impartial tribunal under article 6 of the Convention by appearing before the temporary sheriffs without objecting to their hearing their cases on the ground that . .
CitedRegina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
CitedMoustaquim v Belgium ECHR 18-Feb-1991
The applicant was a Moroccan national who arrived in Belgium in 1965 when he was aged under 2. In 1984, nineteen years later, after a career of juvenile crime, he was deported, but the deportation order was suspended in 1989 and he returned to . .
CitedBryan v The United Kingdom ECHR 22-Nov-1995
Bryan was a farmer at Warrington in Cheshire. He built two brick buildings on land in a conservation area without planning permission and the planning authority served an enforcement notice for their demolition. He appealed on grounds (a) (that . .
CitedIncal v Turkey ECHR 9-Jun-1998
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 10; Violation of Art. 6-1 (independent and impartial tribunal); Not necessary to examine Art. 6-1; Not necessary to examine Art. 14+6-1; Pecuniary . .

Cited by:
Appeal FromBarclay and Others, Regina (on The Application of) v Secretary of State for Justice and Others SC 1-Dec-2009
The claimants said that restrictions within the constitution of Sark on who could sit in the Chief Pleas were incompatible with their human rights. The claimants variously owned property on Sark but had restricted rights to vote and stand.
Constitutional, Human Rights, European

Updated: 01 November 2021; Ref: scu.278346