I have been interested to read about recent developments on Sark. It seems that the Barclay brothers – a pair of rich recluses who own a large chunk of the island – have been quarrelling with the Seigneur – who is the feudal lord of the island. This did result in a court case that went to the Privy Council, since the Barclays’ claimed that the constitutional system on Sark violated people’s rights under EU law and the Human Rights Act and European Convention of Human Rights.
The case is interesting for its insight into how the Privy Council see the European Convention on Human Rights and the Channel Islands’ political ties with the UK. The Barclays’ were arguing that the Seigneur and the Seneshal of Sark were acting in a way that breached the ECHR by sitting in the island’s parliament (the Chief Pleas). The Seneshal is also the chief judge of the island and the presiding officer of the parliament - and the Seigneur is, to a degree, the executive of the island so it could be argued that their presence in the legislature was violating the principle of separation of powers. The Privy Council’s view was that the ECHR did not mandate separation of powers, it was simply that Article 6 mandated that people have a fair hearing. The fact that the island’s judge was also the president of the parliament did not violate this, especially as the Seneshal followed a tradition of not intervening in debates. In a similar way, despite being the lord of the island, the Seigneur himself did not intervene in the debates of the Chief Pleas and played a purely ceremonial role in it. The Privy Council found that the ECHR allowed latitude for jurisdictions to choose their own methods of governance and that the way Sark governed itself fitted within that latitude.
The Barclays’ also argued that Article 3 of the ECHR mandated democratic elections where all could stand and all could vote. The island of Sark has formerly had a Chief Pleas were the (up to 40) landlords (owners of tenements – i.e. estates) and 12 popularly elected deputies sat together. It was moving to a system where the landlords lost their automatic membership of the Chief Pleas and just 28 members (all popularly elected) were to sit in the Chief Pleas. Thus, from having a maximum membership of 54 (landlords, elected members, the Seigneur and the Seneshal) the Chief Pleas would now have a membership of 30 (the 28 elected ones, the Seneshal and the Seigneur). It seems odd for plutocrats to demand a move to a democratic system, but that is what the Barclays had demanded when they started to fall out with the Seigneur.
With a move to 28 elected members in the pipeline, the Privy Council saw nothing undemocratic in the proposed new composition of the Chief Pleas. The residence requirements to stand as a candidate for the Chief Pleas were stricter than those to be a voter. The Privy Council found that imposing stricter requirements for candidates than for voters was within the legitimate latitude that any jurisdiction had to decide how to conduct its own elections. They reject the claim that, under EU legislation, the rights of EU citizens were being violated if they could not stand for election to the Chief Pleas. A Slovak citizen, who was an ally of the Barclays, had made this point in the case – but it was rejected.
With regard to the constitutional status of Sark, the Privy Council made a number of key points. The Channel Islands as a whole (Jersey, Gurnsey, Alderney and Sark being the 4 permanently inhabited ones) are not part of the UK. The Channel Islands do not have MPs in Westminster. They are part of the Duchy of Normandy – in fact, of course, they are all that remains of the Duchy of Normandy following English monarchs’ loss of their French lands (Calais was England’s last possession on mainland France and it was captured by the French in 1558).
As such, the Queen is their sovereign in her role as the Duke of Normandy – not in her role as the Queen of the UK. The UK government thus has no inherent jurisdiction over the Channel Islands. It simply acts for them in foreign and defence policy matters. Ministers advise the Queen on matters to do with the Channel Islands purely in their role as her advisors – not their UK ministerial role.
The Channel Islands are not in the EU. The UK is a member of the EU but the Duchy of Normandy is not. As such, the Channel Islands are not bound by EU legislation.
With regard to the ECHR, the British government can sign the ECHR on behalf of the Channel Islands as part of its foreign policy powers. However, it is not clear whether it has done so and if so what its rights and responsibilities are to make sure the Islands adhere to them. It is also the case that the Human Rights Act – which incorporated the ECHR into UK law – does not apply to the Channel Islands. The UK Parliament can not make law for the Channel Isles.
Sark itself has its own legislature, as mentioned above. The Guernsey Parliament also has the power to legislate for Sark (as Sark forms part of the Baliwick of Guernsey which has the constitutional status of a Crown Dependency). However, it has historically proved reluctant to do so, since there are no Sark representatives in the Guernsey parliament.
As you may have read in the news, the Sark held its first democratic elections last week. These resulted in a defeat for the bulk of the Barclays’ favoured candidates. It is clear the bulk of the 484 ordinary voters on the island don’t like them.
Since then, the Barclay brothers have decided to carry out economic sabotage of the island as an act of spite. They own a large chunk of the businesses on the island and are the landlords of lots of the commercial premises. They have ordered them to close. This has thrown 100 people (about a fifth of the population) out of work.
The question now emerges of what the island should do now. To my mind, if there are people willing and ready to work, then they should stage occupations of the premises that the Barclays are trying to close. Recently in the US, factory workers at Republic Windows and Doors factory have staged a sit-in when it was announced that they were being laid off at short notice. The workers and managers of the small businesses that are being shut down on Sark should do the same. The legal authorities that there are on Sark – i.e. the Seigneur and the Seneshal – are unlikely to stop them doing so. If the businesses are financially viable, then they can continue to operate as a workers’ co-operative. This is of great importance since, on a small island, if the handful of shops aren’t open it will be very difficult for people to get food and other essential goods which are delivered from the mainland and from larger islands to Sark.
The new Chief Pleas should, to my mind, also consider whether they can expropriate Barclays’ property. Private property should exist in so far as it serves the general utility. When it is being used to further economic sabotage, then I am not sure that the right should be honoured. The ECHR does recognise limitations on private ownership and, as mentioned above, the Sark government may not even be bound by the ECHR. If properties are being left to fall into disrepair deliberately by their owners and they can be used for more productive purposes, then the Chief Pleas should consider compulsory purchase – just as local authorities in the UK sometimes buy up properties in similar circumstances. This would be very beneficial for a small island as it would stop it facing a crisis purely because of a fit of pique by a couple of rich men.
We will have to wait and see what happens on the small island – but it does raise a number of interesting constitutional, legal and political questions in microcosm. To what degree should domains remain ‘feudal’ if that is what the people want; to what degree should the Channel Islands be independent of the UK and what should a jurisdiction do when faced by economic sabotage by plutocrats?
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