Communicated on 1 March 2016
FIRST SECTION
Application no. 67122/14
Torgeir NORDBØ
against the United Kingdom
lodged on 2 October 2014
STATEMENT OF FACTS
The applicant, Mr Torgeir Nordbø, is a Swedish national, who was born in 1960 and lives in Chonburi, Thailand.
A. The circumstances of the case
1. The present case concerns a dispute over land the applicant leased on the island of Sark in the Channel Islands. Principally, the applicant submits that the court hearing that land dispute, the court of the Seneschal, was not independent or impartial and that the proceedings before the court were unfair. The following summary of the facts is taken from the documents submitted by the applicant and from the judgments of the High Court of England and Wales and the Supreme Court of the United Kingdom in R (Barclay) v. Secretary of State for Justice (“Barclay (no. 2)”[1] (set out in greater detail at paragraphs 26–29 below).
1. Sark
2. 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. Sark’s population is some 600.
3. 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.
4. The Seneschal is the Sark’s resident judge and the island’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. Traditionally, the Seneschal had a double role as the island’s resident judge and president of the island’s legislature, the Chief Pleas. He was also appointed by the island’s hereditary lord, the Seigneur. In 2008 and 2010 two laws were passed which ended this double role, took the power to appoint the Seneschal out of the hands of the Seigneur and made new, statutory provisions for his renewal in office, removal and remuneration. Those laws were Reform (Sark) Law 2008 and Reform (Sark) (Amendment) (No. 2) Law 2010. The relevant portions of the laws are set out at paragraphs 23 and 24 below.
2. The applicant’s case
5. In 2001 the applicant moved to Sark. His house was built on leased land on one of the forty “tenements” or plots of land on Sark, Port a la Jument. The applicant maintains that renovations and improvements to the house were made at considerable expense to him.
6. Ownership of the tenement passed to new owners in 2003. On 14 June 2013 the new owners served a notice to quit on the applicant. They claimed that lease on the land had expired. The applicant disputed the claim and declined to quit the premises.
7. The tenement owners then brought eviction proceedings in the court of the Seneschal. When the matter came before the court, the applicant objected that the Seneschal was not independent or impartial and thus his court was not compatible with Article 6 of the Convention. He also submitted that eviction would be incompatible with his rights under Article 8 and Article 1 of Protocol No. 1.
8. By this point, the High Court for England and Wales had considered the 2008 and 2010 Laws. In a judgment given on 9 May 2013 it had ruled that, because the Seneschal’s remuneration could be reduced by the island’s legislature, the Chief Pleas, the provisions of the laws were contrary to Article 6 of the Convention (see Barclay (no. 2) at paragraphs 26-28 below). An appeal from that ruling was to be heard by the Supreme Court of the United Kingdom.
9. Consequently, at a hearing on 8 November 2013, the applicant suggested that his case be postponed until the Supreme Court had given its judgment in Barclay (no. 2). (The Supreme Court eventually gave its judgment in Barclay (no. 2) on 22 October 2014: see paragraph 28 below.)
10. On 15 November 2013 the Seneschal declined to recuse himself from the proceedings, observing that, if he did so, he would have to do the same in all court sittings, and the administration of justice on the island would come to a halt. The applicant appealed to the Royal Court of Guernsey against the Seneschal’s refusal to recuse himself.
11. The applicant then applied for an adjournment of the proceedings before the Seneschal until the outcome of his appeal to the Royal Court. That application was refused on 28 March 2014. The trial was set for 2 May 2014.
12. On 29 April 2014, the applicant again applied for an adjournment of the eviction proceedings before the Seneschal until either:
(i) the Royal Court had heard his appeal concerning the refusal of the Seneschal to recuse himself;
(ii) the Seneschal made a declaration of incompatibility, stating that the 2008 and 2010 Laws under which he held office were incompatible with Article 6 (such declarations may be made under the Human Rights (Bailiwick of Guernsey) Law 2000: see relevant domestic law and practice at paragraph 22 below); or
(iii) the Supreme Court of the United Kingdom had given judgment in Barclay (no. 2).
13. A hearing took place on 2 May 2014. The plaintiffs and their representative attended. The applicant, who was living in Thailand, was absent. The Seneschal considered that the hearing could proceed in the applicant’s absence given that several previous adjournments had already been granted and the adequate notice of the hearing had been given to him. The Seneschal further considered that a declaration of incompatibility or an adjournment pending the Supreme Court’s judgment in Barclay (no. 2) were matters for the outstanding appeal before the Royal Court. The Seneschal then proceeded to hear the plaintiff’s application and reserved judgment both as to the merits of the application and costs. The plaintiffs were ordered to make written submissions on costs by 14 May 2014.
14. In a written judgment dated 16 May 2014 the Seneschal granted the plaintiffs’ application for the applicant’s eviction. He found that the lease in question ceased on 12 May 2013 and thus the land reverted to the plaintiffs. As regards the applicant’s submissions on Article 8 and Article 1 of Protocol No. 1 the Seneschal found that the plaintiffs had also claimed that the applicant’s continued use of their property infringed their rights under on Article 1 of Protocol No. 1. There was therefore a balance to be struck, but, in any case, those Articles of the Convention had only a peripheral influence on the issues before the court. In respect of costs, the Seneschal found that there had been a measure of obstructionism on the part of the applicant and thus awarded the plaintiffs full indemnity costs of GBP 15,567 and GBP 1,000 in other costs.
15. The decision of 2 May 2014 and the judgment of 16 May 2014 were sent by registered post to the applicant in Thailand and arrived there on 29 May 2014. The applicant also alleges that the plaintiffs’ written submissions on costs – dated 13 May 2014 – were delivered to him in Thailand on 19 May 2014. The applicant alleges that the Seneschal relied heavily on these submissions in his judgment of 16 May 2014 but, given the date on which he received them, he was given no opportunity to respond to them.
16. The plaintiffs then sought the applicant’s eviction and removal of the applicant’s property from the land. A hearing for that application was set for 25 July 2014. In advance of the hearing, the applicant sought an adjournment. This was rejected by the Seneschal and an order for removal of the applicant’s property was made.
17. The applicant appealed to the Royal Court against both the decision of 2 May 2014 and the judgment of 16 May 2014.
18. An urgent, ex parte application to halt the eviction was rejected by the Royal Court on 13 August 2014, the judge in the case ruling that any such application should take place with both parties present. The applicant applied to the Royal Court for access to the case-file. He also made submissions that the proceedings before the Seneschal had not complied with Article 6.
19. A hearing in the appeal was set for 5 September 2014. In advance of that hearing, the applicant indicated he could not attend and sought an adjournment to 3 October 2014.
20. On 5 September 2014, Royal Court considered the extended procedural history of the case and found that it was appropriate to refuse the adjournment and to hear the appeal in the applicant’s absence. It dismissed the appeal, finding that there was no real prospect of success and that the applicant’s grounds of appeal had shown an imperfect understanding of human rights issues.
21. The applicant has appealed against the Royal Court’s judgment to the Court of Appeal for Guernsey. The appeal is pending.
B. Relevant domestic law and practice
1. The Human Rights (Bailiwick of Guernsey) Law 2000
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).
2. The Seneschal
23. Prior to the passage of the Reform (Sark) Law 2008 the constitution of Sark was set out in the Reform (Sark) Law 1951. Under that 1951 Law the Seneschal was appointed by the Seigneur for a three-year term; he was also a member of the Chief Pleas, the island’s legislature, and ex officio its President. Section 6 of the 2008 Law made new provisions for the appointment, removal and remuneration of the Seneschal. It provides that the Seneschal shall be by appointed by the Seigneur, with the approval of the Lieutenant Governor of the Bailiwick of Guernsey (section 6(1)). He is not removable from office except at his own request in writing addressed to the Seigneur or, for good cause, by the direction of the Lieutenant Governor (section 6(2)). He shall be paid such remuneration out of public funds as may from time to time be approved by the Lieutenant Governor (section 6(3)).
24. The Reform (Sark) (Amendment) (No.2) Law 2010 amended the 2008 Law in three significant respects: (i) it removed the Seneschal from the Chief Pleas; (ii) removed the power of appointment from the Seigneur and placed it in the hands of a committee, which would make the appointment with the approval of the Lieutenant Governor; and (iii) made provision for the appointment, re-appointment, removal and remuneration of the Seneschal. In respect of the latter, remuneration, the 2010 Law inserted a new section 6(4), which gave the power to determine the Seneschal’s terms and conditions of office to the Chief Pleas.
3. The compatibility of the court of the Seneschal with Article 6 of the Convention
25. 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 making of an Order in Council (an order of the Privy 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, it is, therefore, possible to challenge Guernsey legislation in the High Court through judicial review proceedings.
(a) Barclay (no. 2): the High Court’s judgment
26. In Barclay (no. 2), the claimants challenged Reform (Sark) (Amendment) (No. 2) Law 2010. 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.
27. The High Court, in a judgment of 9 May 2013 ([2013] EWHC 1183 (Admin)) rejected the challenges to provisions on appointment, removal and renewal of the Seneschal. It found that there were no grounds to doubt the independence of the members of the appointment committee and the need for the Lieutenant Governor to approve the appointment was an important safeguard. The same applied to the provisions concerning removal from office. There were also safeguards as regards renewal of the Seneschal’s appointment after the age of sixty-five.
28. The High Court found, however, that the untrammelled power of the Chief Pleas to reduce the Seneschal’s remuneration was incompatible with Article 6. The critical issue was whether there was an objective perception of the risk of pressure on the Seneschal by reason of the possibility of the Chief Pleas arbitrarily reducing his remuneration. Having found that such a possibility existed, the High Court found it necessary to consider whether this provision on its own would violate the principles of impartiality and independence required under Article 6. The High Court stated:
“91. ... [W]e consider we should take into account first the long standing nature of the central importance of protecting the judiciary as an institution and a judge as an individual from an arbitrary reduction of their salary by the Executive or legislature. That has been the case in England and Wales since the Act of Settlement 1701 (12 & 13 W. III. C.2).
92. Second, we were urged by the claimants to take account of international materials; we were urged to follow the example of the Strasbourg Court which has used international instruments as interpretative aids to ascertain the ingredients of judicial independence for the purposes of Article 6. For example, in Harabin v. Slovakia ...App. No. 58688/1 judgment of 20 November 2012) the Third Section considered a large number of instruments as relevant in its consideration of judicial independence (see paragraphs 104 -110).
93. We accept that it is clear from a large number of international instruments that there should be no arbitrary reduction of judicial salaries ... All of these instruments speak with one voice. An essential component of judicial independence is legal protection against arbitrary reduction in the remuneration of a judge.
94. Third, as we have set out, it is important to look at the position in Sark itself. In ascertaining whether there has been a violation of the principles required by Article 6 as to appointment and removal we have had significant regard to the fact that Sark is a very small community. In adopting the same approach to the significance of the power to reduce the salary of the Seneschal, we have little doubt that an objective observer would see the Seneschal as vulnerable to pressure from the members of the Chief Pleas. That pressure could, for example, arise in a matter where the Seneschal had to make a decision which the law appeared to require but which the majority of the community strenuously opposed. That would not be an easy position for any judge in a very small community. It is essential therefore that the Seneschal is perceived to be under no pressure or influence from the majority in the community through the use by the Chief Pleas of its unfettered power to reduce the Seneschal’s remuneration.
95. Fourth, in assessing that perception, no objective observer could fail to have regard to the fact that the Chief Pleas decided to amend the legislation in a manner that gave them unfettered power as they removed the role of the Lieutenant Governor. That role, as we have already explained, acts as a very significant check on the power of the Executive and legislature of Sark in other respects in relation to the office of Seneschal. It is, in our view, highly significant to the perception of the risk of an arbitrary exercise of power that the Chief Pleas chose to remove the one check that could have prevented it.
(g) Conclusion
96. In our view protecting the independence of the Seneschal from such pressures in the small community where the Seneschal might be required to make unpopular decisions to uphold the rights of a minority is essential to the Seneschal’s independence. We therefore consider that this provision on its own is sufficient to constitute a violation of Article 6.
97. We therefore propose to grant the claimants a declaration that the decision of the Committee recommending approval of the provisions of the 2010 law amending the 2008 law was an unlawful decision, as in respect of the remuneration of the office of the Seneschal, the law was incompatible with Article 6 of the Convention.
98. We would conclude by observing that it is clear from the terms of this judgment that the incompatibility can be cured by an appropriate amendment to the law to restore to the Lieutenant Governor an effective power over remuneration.”
(b) Barclay (no. 2): the Supreme Court’s judgment
29. This part of the High Court’s judgment was appealed to the Supreme Court, which, on 22 October 2014, 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 (per Lady Hale at paragraphs 37 and 39 of the Supreme Court’s judgment).
COMPLAINTS
30. The applicant argues that, having regard to the provisions concerning the Seneschal’s remuneration, the court of the Seneschal was not independent or impartial, as required by Article 6 § 1 of the Convention.
31. He also submits that proceedings before the Seneschal in his case were unfair and thus in violation of Article 6 § 1. In his decision of 15 November 2013, the Seneschal failed properly to rule on the applicant’s submissions under Article 6 § 1 regarding the Seneschal’s independence and impartiality. In his decision of 2 May 2014 the Seneschal failed properly to rule on the applicant’s reasons for seeking an adjournment. The Seneschal then gave judgment on 16 May 2014 without giving the applicant an opportunity to present his case or to comment either on the Seneschal’s decision of 2 May 2014 or on the plaintiffs’ submissions of 13 May 2014. Finally, in his ruling of 25 July 2014, the Seneschal failed to consider the applicant’s submissions and evidence for staying the eviction.
32. In the applicant’s submission, the proceedings before the Royal Court were also unfair and contrary to Article 6, since that court failed to provide the applicant with access to the case-file or to rule on any of the alleged violations of Article 6 by the Seneschal. This also deprived the applicant of his right of access to court, also guaranteed by Article 6.
33. The applicant further contends that his eviction was contrary to Article 8 and Article 1 of Protocol No. 1, particularly when the Seneschal also failed properly to consider his submissions in respect of these Articles.
34. Finally, since, in his submission, further judicial remedies against all of the above violations would be ineffective, the applicant complains that there has been a violation of Article 13 of the Convention. In particular, as regards the alleged lack of independence and impartiality of the Seneschal, any further appeals would not be effective because this lack of independence and impartiality is rooted in primary legislation (see the 2010 Law set out at paragraph 24 above) and seeking a declaration of incompatibility in respect of that legislation under the Human Rights (Bailiwick of Guernsey) Law 2000 would not be an effective remedy.
QUESTIONS TO THE PARTIES
1. Having regard to the appeal pending before the Court of Appeal of Guernsey and to the possibility of seeking a declaration of incompatibility under the Human Rights (Bailiwick of Guernsey) Law 2000 from that court, in particular as explained by the Supreme Court of the United Kingdom in its ruling in Barclay (no. 2) [2014] UKSC 54, has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
2. Was the court of the Seneschal independent and impartial, as required by Article 6 § 1 of the Convention?
3. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? Further or in the alternative, did the refusal of the Royal Court to rule on the applicant’s Article 6 complaints amount to excessive formalism depriving the applicant of access to a court, contrary to Article 6 § 1 of the Convention?
[1] So called to distinguish it from a previous case concerning Sark: R (Barclay) v. Lord Chancellor and Secretary of State for Justice (“Barclay (no. 1)”) [2009] UKSC 9.
Full & Egal Universal Law Academy