Subject-Matter Index

Aliens. See Chief Pleas of Sark—right to stand for election

Chief Pleas of Sark

control of remuneration of Seneschal

Chief Pleas’ control of Seneschal’s remuneration out of public funds (under Sark (Reform) Law 2010) may lead to questioning of independence and impartiality in judicial role, contrary to European Convention, art. 6, if seen in small jurisdiction as making vulnerable to personal pressures in deciding cases: R. (Barclay) v. Justice Secy. (No. 2) (UK Supreme Ct.), 2014 GLR 201

legislation

projet de loi and Order in Council—normal form of principal legislation is project de loi made into Law by approval in Order in Council—if recommendation of Order in Council seen as given in right of both Guernsey and UK, English courts may have jurisdiction to judicially review—undesirable to exercise jurisdiction if suitable Bailiwick procedures for challenge available: R. (Barclay) v. Justice Secy. (No. 2) (UK Supreme Ct.), 2014 GLR 201

membership

ex officio membership of non-voting Seigneur and Seneschal in Chief Pleas of Sark, sitting with 28 elected voting members, not breach of European Convention, First Protocol, art. 3—no requirement in art. 3 that all members of unicameral legislature be elected—wide margin of appreciation, dependent on Sark constitutional history and political development, to recognize Seigneur and Seneschal as members—legislation still enacted through genuinely democratic process, and membership not arbitrary or lacking in proportionality: R. (Barclay) v. Justice Secy. (UK Supreme Ct.), 2009–10 GLR 314

presiding officer

anomaly for Seneschal (non-elected official appointed for life by Seigneur, also non-elected) to be presiding officer of elected assembly of Chief Pleas—in light of historical and political factors, well within margin of appreciation allowed by European Convention, First Protocol, art. 3—Seneschal’s extensive procedural powers those of any presiding officer and not subject to question under art. 3: R. (Barclay) v. Justice Secy. (UK Supreme Ct.), 2009–10 GLR 314

right to stand for election

since Sark not separate international entity without defined citizenship, rule that rights under European Convention, First Protocol, art. 3 accorded only to citizens strictly inapplicable—margin of appreciation wide enough to allow restriction of right to stand to same as right to vote—in Sark, right to vote requires 12 months’ residence or registration as possessor of land on Island, and excludes aliens—eligibility to stand for election may be narrower than eligibility to vote, without offending art. 3: R. (Barclay) v. Justice Secy. (UK Supreme Ct.), 2009–10 GLR 314

right to veto legislation

Seigneur’s power to veto legislation in Chief Pleas to be viewed in light of realities—only delaying power, applicable only to minor legislation (ordinances), not exercised for over 80 years, currently willing to relinquish it and willing to use only in narrowly-defined circumstances to ensure wider democratic will respected—no breach of European Convention, First Protocol, art. 3: R. (Barclay) v. Justice Secy. (UK Supreme Ct.), 2009–10 GLR 314

Committee for Affairs of Jersey and Guernsey

constitutional status

not “public authority” of UK within Human Rights Act 1998, s.6 when recommending Privy Council to give Royal Assent to projet de loi—part of constitutional structure for advising Queen on enactment of legislation as sovereign of Guernsey and Sark: R. (Barclay) v. Justice Secy. (UK Supreme Ct.), 2009–10 GLR 314

judicial review

amenability of Committee’s decision to judicial review. See ADMINISTRATIVE LAW (Judicial review—Committee for Affairs of Jersey and Guernsey)

recommendation to Privy Council to give Royal Assent to projet de loi may be subject to judicial review in UK if recommendation seen as given in right of both Guernsey and UK—undesirable for English courts to exercise jurisdiction over challenge to Bailiwick legislation if suitable Bailiwick procedures for challenge available: R. (Barclay) v. Justice Secy. (No. 2) (UK Supreme Ct.), 2014 GLR 201

European Community. See EUROPEAN LAW (Membership of European Community—position of Guernsey). FISHERIES (Licensing—implementation of Community provisions)

European Court of Human Rights. See Judiciary—European Court of Human Rights

Extra-territorial legislation. See States of Guernsey—legislation

Human rights. See HUMAN RIGHTS

Judicial independence. See HUMAN RIGHTS (Right to fair trial—independent and impartial tribunal)

Judiciary

European Court of Human Rights

since European Court not further appellate court in Guernsey judicial system (including Judicial Committee), its decision has no direct effect on judgments in Guernsey courts: Murfitt v. States (Alderney) (C.A.), 2003–04 GLR N [10]

Legislation. See States of Guernsey—legislation

Legislature

Chief Pleas of Sark. See Chief Pleas of Sark

Lieutenant Governor. See IMMIGRATION (Deportation—deportation of offender)

Membership of legislature. See Chief Pleas of Sark—membership

Presiding officer of legislature. See Chief Pleas of Sark—presiding officer

Privy Council

constitutional status

not “public authority” of UK within Human Rights Act 1998, s.6 when authorizing Royal Assent for projet de loi—part of constitutional structure for advising Queen on enactment of legislation as sovereign of Guernsey and Sark: R. (Barclay) v. Justice Secy. (UK Supreme Ct.), 2009–10 GLR 314

judicial review. See ADMINISTRATIVE LAW (Judicial review—Privy Council)

Relationship with European Community. See EUROPEAN LAW (Membership of European Community—position of Guernsey). FISHERIES (Licensing—implementation of Community provisions)

Right to veto legislation. See Chief Pleas of Sark—right to veto legislation

Roles of judge and Jurats. See COURTS (Role of judiciary), (Royal Court—Jurats)

Royal prerogative. See MENTAL HEALTH (Curatelle—court’s supervisory powers)

Seigneur of Sark. See Chief Pleas of Sark—membership. Chief Pleas of Sark—right to veto legislation

Separation of powers

Bailiff

no particular constitutional theory of separation of powers required by European Convention, but combination of judicial and non-judicial powers in same official capable of violating art. 6—Bailiff lacks objective appearance of independence and impartiality if judicial role involves consideration of laws/rules passed by States of Deliberation actively presided over by him—presiding role of Bailiff not merely ceremonial: McGonnell v. UK (E.C.H.R.), 2000–02 GLR 20

States of Guernsey

legislation

as legislature of Crown Dependency, States may legislate as think appropriate, subject to approval of Her Majesty in Council and provided no infringement of treaty obligations undertaken by H.M. Government on States’ behalf—no presumption in favour of mirroring English legislation: Burton v. Law Officers (C.A.), 2011–12 GLR 438

extra-territorial powers—express words enabling extra-territorial effect not necessary—as non-sovereign legislature, may legislate extra-territorially on matters closely relating to peace, order and good government of Guernsey, or relevantly connected to Island to sufficient degree—Sea Fish Licensing (Guernsey) Ordinance 2003 valid even though regulates sea fishing beyond as well as within territorial waters: States v. Jersey Fishermen’s Assn. Ltd. (C.A.), 2005–06 GLR 226

ordinances

as legislature of a semi-dependent territory, States long regarded as having wide powers to make ordinances, provided not inconsistent with formal Laws or Acts extending to Guernsey: States v. Jersey Fishermen’s Assn. Ltd. (C.A.), 2005–06 GLR 226

customary powers of States to make ordinances wide enough to allow them to fill recognizable legal vacuum at least temporarily, e.g. enacting Sea Fish Licensing (Guernsey) Ordinance 2003 as stop-gap measure while awaiting action by UK Government and continuing negotiations with United Kingdom and Jersey to secure agreement on regularization of Guernsey fishing licences and control: States v. Jersey Fishermen’s Assn. Ltd. (C.A.), 2005–06 GLR 226

invalid if impose taxes or alter existing laws—under customary powers, may operate extra-territorially if substantially connected with peace, order and good government—no power to legislate by ordinance for international matters (e.g. fisheries outside territorial waters) in which Guernsey represented by United Kingdom: Jersey Fishermen’s Assn. Ltd. v. States (Privy Council), 2007–08 GLR 36

may operate extra-territorially on matters closely relating to peace, order and good government of Guernsey, or relevantly connected to Island to sufficient degree—Sea Fish Licensing (Guernsey) Ordinance 2003 valid even though regulates sea fishing beyond as well as within territorial waters: States v. Jersey Fishermen’s Assn. Ltd. (C.A.), 2005–06 GLR 226

probably subject to judicial review if enacted on basis of incorrect legal advice: Jersey Fishermen’s Assn. Ltd. v. States (Privy Council), 2007–08 GLR 36

projet de loi and Order in Council—normal form of principal legislation is projet de loi made into Law by approval in Order in Council—normal form of legislation has wider applicability under States’ customary powers than ordinances: Jersey Fishermen’s Assn. Ltd. v. States (Privy Council), 2007–08 GLR 36