Isle of Sark must amend constitution
Posted: 17th May 2013
The channel island of Sark will have to amend its ancient constitution after the High Court ruled that one of its provisions failed to maintain the strict division between legislative, executive and judicial functions required by Article 6 of the European Convention on Human Rights.
The island, which has a population of 600, is governed by legislative assembly, the Chief Pleas, a hereditary 'Seigneur', a 'Seneschal' and a Lieutenant Governor appointed by the Queen. Businessmen Sir David and Sir Frederick Barclay, who own land on Sark, have long taken issue with certain of the island’s constitutional arrangements, which date back to the Tudor period.
The brothers forced reform of the island's governance in 2008 when they persuaded the English courts that the dual role of the Seneschal as chief judge and president of the Chief Pleas breached Article 6. The Chief Pleas embarked upon reform and proposed constitutional changes which, inter alia, did away with the Seneschal’s dual position and which were approved by the Queen in 2010 on the advice of the Privy Council.
The brothers returned to the High Court to argue that the reforms did not go far enough and that the new constitution was still not fully compliant with Article 6. After accepting jurisdiction to resolve the matter, the Court rejected the brothers’ arguments relating to the appointment and removal of seneschals as well as provisions enabling renewal of their appointment beyond the age of 65.
The Court ruled that the Chief Pleas' continued role in setting the level of the seneschal's remuneration was too broad and was capable of being used in an ‘arbitrary’ manner, thus impinging upon his judicial independence. The Court noted that that incompatibility with Article 6 could be cured by a further amendment to the island's constitution, restoring the Lieutenant Governor's power of review over the seneschal's remuneration.
Sark is a semi-independent state leased from the British Crown. It has no cars or income tax. Revenue is raised by its equivalent of council tax. The island was awarded, by Elizabeth I in 1565, to Helier de Carteret, the Seigneur of St Ouen in Jersey, as a ‘noble fief’ with the stipulation that 40 tenement farmers should be armed to defend the island against potential French settlers.
Until reforms were introduced to create a fully elected legislature, the members of the Chief Pleas consisted of those 40 owners of tenement land and 12 elected deputies, in addition to the Seneschal and the Seigneur. Following the Barclay brothers' earlier challenge, the 2010 reforms removed the seneschal from the Chief Pleas and created the new role of President.