Jersey’s
Relationship with the UK Parliament Revisited
Dennis Dixon
This article
builds on the Jowell hypothesis of Jersey's relationship with the United
Kingdom Parliament. It analyses the claims for Parliament's paramount power
over Jersey in terms of the domestic British theories for Parliamentary
Supremacy. The view that Parliamentary Supremacy derives from common law cannot
apply to Jersey, and if it rests on the “political facts”, this
would suggest a colonial relationship requiring Jersey to be registered with
the United Nations as a non-self-governing territory. This would trigger an
international law decolonization duty. Following British principles of
construction, clear words would be required for a statute to have effect
regardless of Jersey's consent. Assuming Parliament does have paramount power
in Jersey, any statute extended to Jersey would be presumed to take effect
subject to local consent. The United Kingdom's practical power over Jersey
rests on the fact that the royal prerogative in Jersey is exercised on the
advice of British ministers. It is argued that there is no principled basis for
judicially reviewing the grant of royal assent, but Ministerial advice to deny
royal assent will be difficult to justify on principled constitutional grounds.
1 The purpose of this article is to explore
Jersey’s constitutional relationship with the United Kingdom, building on
the iconoclastic work of Professor Sir Jeffrey Jowell.[1] At the
heart of the article is the idea that there are now two competing orthodoxies. First,
there is the orthodoxy as seen from the United Kingdom perspective,
crystallised in the Kilbrandon Report,[2] which sees
the power of the Westminster Parliament as paramount. Secondly, there is the
Jowell hypothesis, which views the question through the prism of Jersey’s
constitutional history, which in turn reveals the Kilbrandon orthodoxy as an
assertion of power with no legitimate source.
2 What we shall argue is that, as a matter
of modern British statutory construction, an Act of Parliament cannot purport
to have effect in Jersey regardless of registration or consent unless it
expressly states that intention. Beyond this, we shall argue that, viewed from
the Jersey perspective, there is no reason why Jersey customary law should
adopt the pure version of parliamentary sovereignty in respect of the United
Kingdom Parliament applied domestically by the United Kingdom courts. It could
be argued that Parliament can have legislative power consistent with the
constitutional relationship between Jersey and the United Kingdom and its
position as a Crown dependency. But this is limited to areas where, by way of
British Ministers advising on the Royal Prerogative, the United Kingdom constitutionally
exercises power with respect to Jersey—and this does not require
Parliament being recognised by Jersey Customary Law as having a paramount
power.
Preliminary
comments on customary law
3 The argument presented here hinges on a
particularly Jersey law point. The rule for recognising sources of law in
Jersey is a matter of customary law, and customary law in this matter evolves.
4 As regards the flexibility of customary
law, the point was made by the majority of the Privy Council in Snell v Beadle, that[3]—
“[Where] the
customary law of Jersey has not been enshrined in a coutume, the proper
approach is to regard it as being still in a state of development. It is
capable of being refined or clarified by judicial decision as the customary law
is applied to a new set of facts.”
5 The obvious application of this is to
statutes which supersede custom. The Privy Council also comments at one point
that “as soon as custom is
changed into formal or positive law by judicial
decision or by statute, it ceases to be custom” (emphasis added).[4] That
deserves clarification. The Privy Council can only have meant that once the
courts have declared the customary law, that is how the law must be understood
until changed by subsequent decisions or statute. Absent statute, it is “capable
of being refined and clarified by judicial decision” particularly when “applied
to a new set of facts”. Hence, it can be seen from the later Royal Court
cases of Connétable
of St Helier v Gray and In re a Procureur de Bien Public of St Peter, that judicial authorities may be overruled when
they fail to represent modern practice.[5]
6 Such flexibility can be applied not just
to substantive rules of law that regulate the conduct of citizens and
government, but can be seen to apply to the customary law’s approach to
what it recognises as a source of Jersey law and its appropriate place within the
hierarchy of sources. As Dr Kelleher has pointed out, Jersey did not continue
to look at the Très-Ancien
Coutumier as the sole legitimate source of Jersey customary law, as the
1847 Criminal Commissioners believed it to be in the absent of statutory
intervention.[6] Jersey
customary law has taken on new sources of law—it cannot be attributed
purely or even mainly to local usage.
7 Rules of recognition as regards sources
of law may be absolute, such as the British rules of recognition for Acts of
Parliament, subject to EU law issues. But such rules of recognition may be more
flexible, for example the rules for non-binding precedent. Jersey’s rule
for recognising external sources has always shown itself to be flexible, and to
adapt according to changing circumstances. The United Kingdom Parliament is one
such external source of law but its recognition as such is a matter of Jersey,
not English, law and its hierarchical status, as a matter of customary law, may
evolve over time.
Assertion of Parliament’s power in
Jersey
8 It is not difficult to find highly
authoritative assertions of Parliament’s putative sovereignty in Jersey. However,
the 1861 Civil Commissioners put the authority of Parliament, and the
constitutionality of the use of its power, in more muted tones[7]—
“The competency of Parliament to legislate for
Jersey is unquestionable; but the interference of the British Legislature,
except in matters of a fundamental nature, e.g.
for regulating the succession to the Crown, &c, or upon other subjects
universally applicable to the whole empire, and perhaps some other special
cases, is unusual, and would be viewed by the Islanders generally with
dissatisfaction.”
9 The Code of 1771, an Order in Council
registered in the Royal Court, assumes Parliament’s competence to legislate—
“Acts of Parliament in which reference is made to
the Island, and in which it has an interest, such Acts must be exemplified in
form, under the Great Seal, and sent to the said Island, there to be
registered, and published, in order that the inhabitants may have knowledge
thereof, and avoid the penalties of transgressing the same.”
10 As early as 1668 we find a reference in
passing in the case of Bole v Horton
to an assumption that, whatever might be the jurisdiction of the English Courts[9]—
“So as though Wales became of the dominion of
England from [the 13th century], yet the Courts of England had nothing to do
with administration of justice there, in other manners than now they have with
the Western Islands, Barbadoes, St. Christophers, Mevis (sic), New England,
which are of the dominions of England, and so is Ireland, the isles of Garnsey
and Jersey at present, all which may be bound by laws, made respectively for
them by an English Parliament . . .”
11 In 1698 it is recorded that the English
Attorney General advised that an Act of Parliament applying to Jersey—in
that case, the Navigation Act 1660—did not need to be registered to apply
in Jersey.[10]
12 In terms of the practical use of the
power, students of Jersey law will be aware of the examples in the Jersey Law
Course’s Study Guide of Acts of
Charles II and William & Mary on the exportation of wool.[11] We
can also find from the same period the extension of the Mutiny Act 1692 to
Jersey.[12] An
article by Richard Schuyler in the 1920s provides an interesting example of a
tax extended to Jersey in 1727, namely the express extension of an earlier duty
of six pence per month imposed on all seamen in ships of “any of the
subjects of England, or any other his Majesty’s dominions” for the
support of the Greenwich hospital for disabled sailors.[13] Schuyler
provides a review of Tudor legislation where various treason and religious
legislation was extended to Jersey, albeit sometimes it appears to have been
assumed that a reference to “the king’s dominions” included
the Channel Islands.[14] Much
comes from the reign of Henry VIII, although we also find at the start of
Edward VI’s reign an Act for dissolution of chantries applied to Jersey,[15] and
an Act against the export of horses.[16]
13 Richard Haldane, QC the future Lord
Chancellor, strongly defended Jersey’s constitutional independence
against the royal prerogative in the Jersey Prison Board case in 1894.
Nonetheless, he proceeded on the basis that Parliament’s power was an
accepted fact[17]—
“In Jersey it is conceived that the constitution
contains two elements, the Legislative Assembly and the Crown as the executive
power. Both are subject to the Imperial Parliament, that is to say, to the
Crown acting by and with the consent of the Imperial Parliament. It must now be
conceded, what was laid down by Lord Coke, although
for a time it was denied, that Jersey is subject to the legislative power of
the Imperial Parliament so far as the question of legal power is concerned,
although it might be grossly unconstitutional for the Imperial Parliament to
exercise that power. Conceivably the case might have stood otherwise. If
the Channel Islands had formed part of the Dominions of the Crown only in the
sense that Hanover once did—in other words, if they had belonged to the
Crown, not in right of its existence as the British Crown, but in right of the
Sovereign in a different capacity, it might well have been that Parliament
would have had no such power. But it is not now contended that the Channel
Islands present an analogy to the case of Hanover; and, subject to the
reservation of all questions of constitutionality, it is not part of present
argument that such power does not exist.” (Emphasis added.)
14 It is therefore unsurprising that the
Kilbrandon Report was very clearly of the view that the British Parliament had
paramount power to legislate for Jersey.[18] Kilbrandon
recognised that there had been a convention of long standing against Parliament
legislating in domestic matters, but concluded that recent House of Lords
authority supported “the extreme view” that none of this could limit
Parliament’s legal authority—
“1469. All our official witnesses accepted that
Parliament has power to legislate for the Islands and that, in some matters at
least, the exercise of this power is not dependent upon the Islands’
consent being given. It has, however, been the practice not to legislate for
the Islands without their consent on matters which are of purely domestic
concern to them. There has been strict adherence to the practice over a long
period, and it is in this sense that it can be said that a constitutional
convention has been established whereby Parliament does not legislate for the
Islands without their consent on domestic matters . . .
1472. The conclusion we draw is that despite the
existence of the convention, Parliament does have power to legislate for the
Islands without their consent on any matter in order to give effect to an
international agreement. There appear, in any event, to be good grounds for
accepting the more extreme view that if Parliament has power to legislate for
the Island at all, which we believe not to be in doubt, there are no
circumstances in which it could be precluded from exercising this power.”
15 In support of this, Kilbrandon quoted
the Lardner-Burke case, to which we
shall soon turn. This view of the position was recently supported by Baroness
Hale giving the sole judgment in Barclay[19]—
“The
United Kingdom Parliament has power to legislate for the Islands, but Acts
of Parliament do not extend to the Islands automatically, but only by express
mention or necessary implication. The more common practice is for an Act of
Parliament to give power to extend its application to the Islands by Order in Council.
It is the practice to consult the Islands before any UK legislation is extended
to them. The Kilbrandon Commission observed that ‘it can be said that a
constitutional convention has been established whereby Parliament does not
legislate for the islands without their consent on domestic matters’
(Cmnd 5460, para 1469). Nevertheless, in
the light of the view taken by the Judicial Committee of the Privy Council in Madzimbamuto v Lardner-Burke [1969] 1 AC 645, at 722–3, the Commission concluded that
in the eyes of the courts the UK Parliament did have a paramount power to
legislate for the Islands on any matter, domestic or international, without
their consent, although it should be no more ready than in the past
to interfere in their domestic affairs (para 1473).” (Emphasis added.)
16 It can be said, and has been said, that Lardner-Burke has no relevance to
Jersey.[20] That
case concerned Southern Rhodesia and its unilateral declaration of
independence. Southern Rhodesia had been a colony, and Parliament had never
relinquished its power to legislate for the country. Doubtless it would have
appeared from a 1950s perspective grossly unconstitutional for Parliament to
enforce its legal rights over Southern Rhodesia, but then times had changed
rapidly. But this is much as the great constitutional writer, Ivor Jennings,
had written in the 1930s when he observed that, whatever the legal theory, it
would be unconstitutional for Parliament to legislate for Northern Ireland
without the consent of the Province’s post-partition Parliament[21]—in
retrospect the firm views on what was unconstitutional merely signified that
Jennings could not at the time foresee circumstances when it would be proper
not just to legislate over the head of Northern Ireland’s Parliament, but
to abolish it altogether. And so it was with Lardner-Burke and Southern Rhodesia, what was once unthinkable
became perfectly understandable, and Parliament’s legal power, once
apparently a theoretical relic, was found to have remained intact to meet the
eventuality. Jersey, however, was not and never had been a colony—there
is no act of conquest or acquisition by the United Kingdom to account for
Parliamentary authority.
17 Nevertheless, it can equally be said
that Kilbrandon ostensibly had ample support for his proposition without a lazy
application of what was then a recent and inappropriate precedent. The Royal
Court itself had in 1960 explicitly recognised Parliament’s paramount
power over Jersey in Bristow.[22] It
has been noted that the decision of the Bailiff was given without hearing
argument,[23]
although that may serve to underline the apparent triteness of the proposition
that British parliamentary sovereignty extends to making or unmaking any law
whatsoever in Jersey.
The prerogative
and British power in Jersey
18 It is worth setting out the other
dynamic by which the United Kingdom Parliament—by way of the United
Kingdom government—exercises power in Jersey. By this we mean through its
having a monopoly on advising how the royal prerogative should be exercised in
Jersey. It is the means through which the United Kingdom is involved in Jersey
legislation, by advising on Royal Assent—and issue to which we shall turn
later.
19 Whilst Haldane said of Jersey that “no
less than in Great Britain, the Queen reigns without governing”,[24] on
those matters where the monarch still reigns in Jersey as a matter of legal
form (i.e. the use of the
prerogative), power goes to the United Kingdom government. This is a flow of
power in an entirely different direction from that enjoyed by the United
Kingdom itself, where power flowed from the monarch into the representatives of
the nation. In Jersey, whilst the abolition of the royal prerogative as matter
of law will bring power to Jersey,[25] this is
not the case where the prerogative remains but has ceased to be personal to the
monarch. In such cases, the loss of monarchical power devolves to the United
Kingdom government, who acts as the adviser to the monarch. In other words, a
loss of personal royal prerogatives causes power to shift to a government
entirely external and unaccountable to Jersey.
20 Haldane wrote in 1900[26]—
“If Jersey—and the same thing is true of
the other islands referred to—had been larger and more important and at a
greater distance from London, there is little doubt that under this form of
constitution she could have obtained for herself a freedom as complete as she
could have gained under those parliamentary forms where, theoretically and in
the eyes of a court of law, the Imperial Parliament can do everything, while
constitutionally in local matters it can do nothing.”
21 The reason for this distinction rests on
the political fact we have set out: the prerogative in Jersey is exercised on
the advice of British Ministers instead of Jersey’s own political leaders.
Haldane notes that very different dynamics applied in Jersey[27]—
“Here the concession has by degrees been wrung
from the Crown as the price of financial assistance. There it was by degrees
obtained as the reward for assistance in the various wars with France.”
22 Hence, the control of finance and
legislation and Parliament has led to the prerogative powers flowing from the
Crown to Ministers who command a majority in Parliament. Jersey could exercise
no such power over the British Crown. In respect of Jersey, the scope for using
the theoretical power of the monarchy has been greatly diminished through the
recognition of the constitutional rights and independence of the Island. However,
where the prerogative remained, any political role in advising on its use went
to the monarch’s British ministers by way of the Privy Council. If the
monarch’s prerogative in foreign policy was carried out in respect of
Jersey on the advice of Jersey ministers, then Jersey would be as independent
as any Caribbean state that retains the Queen as head of state. On this, rather
than any theoretical power of the British Parliament, hangs Jersey’s
constitutional relationship with the United Kingdom. And, we shall argue,
Parliament’s power in Jersey should be confined by what is justified for
as long as nothing is done to sever this relationship.
Professor
Jowell’s new constitutional hypothesis for Jersey
23 It might be thought that the position of
anyone seeking to deny Parliament’s power over Jersey was somewhat
hopeless. It is not just that there are so many examples of the power being
used, but that the most authoritative sources affirm the existence of such a
power. Any disinterested party researching the subject must surely come to the
conclusion that was made in passing in the International
Comparative Law Quarterly in the 1960s: “The United Kingdom
Parliament has the constitutional right to legislate for Jersey, and indeed has
done so from time to time”.[28]
24 If this were right, then we could settle
down to a discussion of how Parliament has the power, but then debate when the
exercise of that power would be unconstitutional. This could be discussed
secure in the knowledge (per Lardner-Burke) that unconstitutionality
would be a legally meaningless accusation.[29] Indeed, it
might be thought that it was more a matter for political theory or historical
analysis than anything to do with lawyers.
25 Against this weight of authority,
Professor Jowell has powerfully argued that there is no principled explanation
or justification for the extension of parliamentary sovereignty to cover
Jersey. As regards Kilbrandon, he argued[30]—
“[It] is woefully short on legal authority,
devoid of analytical rigour, packed with speculation and imbued with colonial
assumptions which have always been irrelevant to Jersey’s status and are
out of tune with the present times.”
26 The essential arguments are at the start
of his original attack on Parliament’s claims to have a paramount power
in Jersey[31]—
“Being a power of ‘last resort’ . . .
it does not permit intervention in Jersey’s domestic affairs except in
extreme circumstances and on a restricted range of matters consistent with the
exercise of the prerogative powers within the UK.
If I am wrong about that[,] I ask . . .
whether the constitutional convention (that the UK does not exercise its powers
over Jersey’s domestic affairs) has now crystallised into a legal rule to
that effect.
. . . If there is ambiguity about either of
the first two questions, such constitutional ambiguity these days should be
resolved not by unsubstantiated albeit repetitious claims, but on the basis of
modern constitutional principle . . .”
27 The arguments are (a) a power cannot
exist beyond the limits of its justification; (b) the power has always been
used within conventional limits, which has crystallised into law, and (c) as
the power has always been used within such limits, it cannot be taken as
established that it exists beyond those limits merely because this has from
time-to-time been asserted as possible.
28 It is not the first time that a leading
jurist has raised a doubt as to Parliament’s power in the Channel
Islands. In the 19th century, Henry John Stephen tentatively recognised a
historical flaw in Parliament’s claim over Jersey[32]—
“The Channel Islands indeed claim to have
conquered England, and are the sole fragments of the dukedom of Normandy which
still continue attached to the British Crown. For this reason, in these islands
alone of all British possessions does any doubt arise as to whether an Act of
the imperial Parliament is of its own force binding law.”
Jowell, however, went beyond this historically obvious
argument, to mount an attack on a broader principled basis which joined the
historical lack of a clear origin for Parliament’s power, to the reality
of the exercise of the putative power, and from there to modern constitutional
principle.
29 Unfortunately, the Government of Jersey
was never called upon to address these points in detail before the Supreme
Court in Barclay. The simplistic
orthodoxy expounded by Baroness Hale was never subject to having to defend
itself against Jeffrey Jowell QC’s advocacy, as would otherwise have been
the case.
Article
31 of the States of Jersey Law
30 It is useful here to set out the
argument that the use of parliamentary sovereignty in Jersey is already
regulated by art 31 of the States of Jersey Law 2005. This is a useful issue to
deal with in the context of this article, and we move to it immediately as it
will help to frame certain key issues around the use of Parliamentary power in
Jersey.
31 Article 31 of the States of Jersey Law 2005
provides as follows—
“(1)
Where it is proposed—
(a) that
any provision of a draft Act of the Parliament[]
of the United Kingdom should apply directly to Jersey; or
(b) that
an Order in Council should be made extending to Jersey—
i(i) any
provision of an Act of the Parliament of the United Kingdom, or
(ii) any
Measure, pursuant to the Channel Islands (Church Legislation) Measures 1931 and
1957[64],
the Chief Minister shall lodge the proposal in
order that the States may signify their views on it.
(2)
Where, upon transmission of an Act of the Parliament of the United Kingdom
containing a provision described in paragraph (1)(a) or of an Order in Council
described in paragraph (1)(b) to the Royal Court for registration, it appears
to the Royal Court that the States have not signified their agreement to the
substance of the provision or Order in Council—
(a) the
Royal Court shall refer the provision or Order in Council to the Chief
Minister; and
(b) the
Chief Minister shall, in accordance with paragraph (1), refer it to the States.”
32 The question of what this meant was
considered in the Asset Freezing case.
The following argument was put forward by the then Attorney General and
recorded (without approval or disapproval by the then Bailiff)[34]—
“With the approval of Her Majesty in Council,
the States has passed Article 31 of the 2005 Law. The effect of this is that
the Court may not register a UK Act purporting to have direct effect unless the
States has signified its approval. It could be argued that it would be strange
if, notwithstanding the enactment of Article 31, an Act of the UK Parliament
still had legal effect even though the States had not signified approval and
the Court had not registered the Act. It would render Article 31 ineffective
despite its clear intent to ensure that the democratic process in Jersey is
respected. It might be argued that, when making an Order in Council of the kind
the Court is now asked to register, the Crown in Council must be assumed to
have intended that such Order would be construed consistently with insular
legislation which already has the approval of the Crown in Council.”
33 The force of this argument is obvious. Article
31 aims to place all Acts of Parliament and Orders in Council before the States
of Jersey for approval. It was well established in the 19th century that Orders
in Council should not be imposed on Jersey, and it would be unconstitutional
for the (non-judicial) Privy Council to do so[35]—art
31 creates a systematic mechanism to achieve this result. What point would
there be for the provision to mention Acts of Parliament alongside Orders in Council
if an Act of Parliament had to be registered regardless of the States’
approval or disapproval? There are, however, several points on which this
argument needs to be refined.
34 First, art 31 conspicuously fails to say
what happens if the States of Jersey rejects the registration of any of the
measures listed there. The precedents that establish the unconstitutionality of
Orders in Council imposing legislation on Jersey ended with those Orders being
withdrawn not being quashed or declared void.[36] There was
a process of discussion, followed by a reference to the Judicial Committee of
the Privy Council. It is not obvious why art 31 would be ineffective if it led
not directly to the invalidity of the Act of Parliament in Jersey, but to that
dynamic. Constitutional statutes can work by way of setting in motion political
processes rather than strict legal consequences. Declarations of
incompatibility under the Human Rights Act 1998 and the Human Rights (Jersey)
Law 2000 are obvious examples.
35 Secondly, statutes that overturn
fundamental constitutional principles should be explicit. This principle is
well known in the area of fundamental constitutional rights, where it has been
expounded in R v Secy of State for the
Home Department, ex p Simms,[37] a
case which has been applied by the Jersey courts.[38] The same
principle has been held to apply outside the field of constitutional rights,
and in the field of constitutional principles generally. This is found in Thoburn v Sunderland City Council.[39] By
parity of reasoning, art 31 of the States of Jersey Law could not resolve
fundamental constitutional issues in the relationship between Jersey and the
United Kingdom by implication. General words do not traverse fundamental
constitutional principles, even if their natural meaning would appear to do so.[40] If
Parliament does have paramount power in Jersey, art 31 was insufficiently clear
to create a fundamental constitutional change therein.
36 Thirdly, and crucially, art 31 does not
purport to alter the position where Parliament purports to legislate for Jersey
without the need for registration of the Act in the Royal Court. To effect
constitutional change, it is not about what any parties to the legislation
believed or ought to have believed would be the effect,[41] it is a
question of what the words say. On the subject of the application of statutes
purporting to apply without registration, art 31 says nothing.
Construing
an Act of Parliament’s application to Jersey
37 It must be remembered that an Act of Parliament
is first and foremost a British statute. If its provisions are to mean the same
in the United Kingdom as in Jersey, they must be construed in the same way. The
same principle applies to the provisions that purport to give effect to the
substance of the statute in Jersey—it would be decidedly odd if a statute
on its true application did not apply to Jersey as a matter of United Kingdom
law, but did as a matter of Jersey law.
38 There are numerous presumptions as a
matter of British law as to how an Act of Parliament should be construed. We
have already noted the cases of Simms
and Thoburn on the construction of
statutes which purport to have constitutional effect: they apply equally to any
British statute that purports to have application to Jersey. The point in Simms was one of the rule of law[42]—
“The principle of legality means that Parliament
must squarely confront what it is doing and accept the political cost.
Fundamental rights cannot be overridden by general or ambiguous words.”
39 The imposition of an Act of Parliament
without registration as a law in Jersey would be a failure of the rule of law. This
is admitted in the Code of 1771, as we have seen, and should be taken as a very
uncontroversial proposition. The Attorney General in the Asset Freezing Case framed this objection in terms of European
Convention rights of those affected by statutes,[43] but this
is another way of saying essentially the same thing. The rights of individuals
(particularly in criminal law matters) cannot be determined by unpublished law.
40 To this we might add a further reason
for applying the Simms presumptions
to Acts of Parliament extending to Jersey: the principles of democracy and
non-colonialism. It cannot be thought that Parliament would seek to override a
responsible legislature. This must apply particularly because Jersey is not and
never has been a colony. Jersey is not and never has been on the United Nations
list of non-self-governing territories.[44] Even
accepting the constitutional legality of Parliament unilaterally legislating
for Jersey, for it to do so is not to act within the present constitutional
forms of internal independence but to overthrow them in favour of a form which
subjects the island to the direction and invigilation of a superior sovereign
power—much as occurred when Parliament asserted its paramount power over
the previously de facto independent
Rhodesia. It cannot be thought that Parliament would readily assert a colonial
relationship in respect of its power over Jersey. A failure to respect Jersey’s
self-government would lead to the Jersey being entered on the list of
non-self-governing territories and thus initiate an international law duty of
decolonisation.[45] Whatever
might have been the case with 17th century statutes, a 21st statute would be
assumed not to have a colonising intent.
41 None of this of itself answers the
question of whether the British Parliament has paramount power over Jersey. The
point is rather, even assuming parliamentary sovereignty in its absolute “make
or unmake in any whatsoever sense” applies to Jersey, an Act will only
apply to Jersey regardless of consent and registration (applying the principles
in Simms, Thoburn and many recent British cases) if the Act expressly states
this should be the case. Otherwise, even if the Act were extended to Jersey,
the Act would be construed as respecting fundamental principles such as the
rule of law, democracy and non-colonisation, and its legal effect would wait on
registration and consent.
42 It follows that we are very much
interested in the doctrine of parliamentary sovereignty in its absolute sense. It
is not simply the constitutional relationship between Jersey and the United
Kingdom, but the question of why parliamentary sovereignty in this absolute
sense of a power to “make and unmake any law whatsoever” should
apply to Jersey.[46] Once
we see that the assertion of parliamentary power without consent would be an
extreme use of legislative power, we need to see the source of that power
before it can be agreed that parliamentary sovereignty is part of the local
rule of recognition for the law in Jersey.
Parliamentary sovereignty—and the
English law rule of recognition
43 There is a fairly simple point to be
made as regards all the most important sources set out above. They come from an
English law perspective. From that English perspective: parliamentary sovereignty
gives rise to the ultimate “rule of recognition” for law before the
English courts.[47]
44 As regards applying this English rule of recognition before English courts to Acts of Parliament
extending to Jersey, it is as Dicey said[48]—
“[W]hatever doubt may arise in the Channel
Islands, every English lawyer knows that any English court will hold that an
Act of Parliament dearly intended to apply to the Channel Islands is in force
there proprio vigore, whether
registered by the States or not.”
45 Under the doctrine of parliamentary sovereignty,
the English courts in theory are bound to enforce a statute that bans smoking
in Paris,[49] so that
from an English perspective the legal position is perfectly clear. From a
Jersey perspective, it might be an entirely different matter, but that is a
matter of whether Jersey law accepts British supremacy or whether Jersey
otherwise submits to Parliament’s power, neither of which is a matter for
English courts. Indeed, the quote from Dicey was concluded with the quote from
Henry John Stephen that we set out earlier arguing that Parliament was not
necessarily sovereign when it came to creating law in the Channel Islands.[50]
46 The claim to apply British parliamentary
sovereignty to Jersey needs to be viewed from the perspectives of the
justifications for parliamentary sovereignty in terms of British constitutional
theory, and whether and how far such justifications can apply in Jersey, such
that there is a rule of recognition in Jersey law that a British statute is the
highest form of law in Jersey.
47 There are essentially three approaches
worth noting—
(1) Parliamentary
sovereignty as the creation of common law;
(2) Parliamentary
sovereignty as a creation of the political facts;
(3) Parliamentary
sovereignty as an aspect of popular sovereignty.
It is not necessary to express a view on which is
right: the concepts overlap to a significant degree, and many articles can be
expended on that subject without reaching any wholly satisfactory conclusion. The
point is rather that all throw up interesting implications for Jersey’s
constitutional relationship with the United Kingdom.
1. The common law theory
48 While Dicey expounded the modern theory
of parliamentary sovereignty,[51] he
did not theorise as to the source of the principle. The idea that parliamentary
sovereignty is a principle of common law is stated clearly by Ivor Jennings,
the next great constitutional theorist to turn his mind to the concept.[52]
49 Jennings did not doubt the existence of parliamentary
sovereignty, even if he doubted the importance given to it by Dicey. However,
today the common law explanation is commonly associated with challenges to parliamentary
sovereignty. Lord Steyn in Jackson v Att Gen[53]—
“[T]he supremacy of Parliament is still the general principle of our
constitution. It is a construct of the common law. The judges created this
principle. If that is so, it is not unthinkable that circumstances could arise
where the courts may have to qualify a principle established on a different
hypothesis of constitutionalism.”
This view has also been stated extra-judicially by
Lord Hope.[54]
50 The difficulty for this theory of Parliamentary
power is that the Common Law does not and has never applied to Jersey. It is
made clear in a judgment of the Court of Exchequer in 1519[55]—
“An office was found that the Earl of Derby was
seised in fee of the Isle of Man, and died thereof seised, his heir within age;
the office is void. This island is not part of the kingdom; it is governed by
its own laws, and not by the laws of this land. Garnsey and Jersey are also
governed by their own laws: a writ of error does not lie upon an erroneous
judgment given there; and so of Garnsey and Jersey, &c.”
51 If the Common Law is the reason for parliamentary
sovereignty and thus the reason why “any English court will hold that an
Act of Parliament dearly intended to apply to the Channel Islands is in force
there proprio vigore”,[56]
that will not assist to explain why a court in the Channel Islands would take
the same approach.
52 If we ask why an English court would
apply “proprio vigore” in
the Channel Islands an Act of Parliament that purported to break the rule of
law (by not being registered in Jersey) and/or acted contrary to the principles
of democracy and established constitutional propriety, the answer would be that
Parliament is sovereign, and effect must be given to its laws. However, to a
court in the Channel Islands it would be entirely proper to state that
Parliament may be sovereign in the United Kingdom, but that has not mean that a
court in the Channel Islands must treat such a statute as applying proprio vigore in the Islands.
2.
Parliamentary sovereignty as a matter of the political facts
53 The alternative approach is that most
famously associated with Professor Sir William Wade: that parliamentary sovereignty
rests on the political facts, a view expounded in his 1955 article, “The
legal basis of sovereignty”.[57] Having
explained that all rules of law have ultimately historical sources, which may
be unknown, Wade continues[58]—
“The rule of judicial obedience [to Parliament]
is in one sense a rule of the common law, but in another sense—which applies
to no other rule of common law—it is the ultimate political fact upon
which the whole system of legislation hangs.”
54 Parliament is sovereign, therefore,
because it established itself as sovereign in the Glorious Revolution of 1688. Had
the political facts changed and the Jacobites succeeded, the political facts
might have swung back in favour of monarchical power.
55 This approach has been criticised. For
example, Philip Alliott wrote in 1979 that the courts applied rules as opposed
to recognising political facts.[59]
56 However, the political facts approach
accords with a considerable amount of constitutional common sense—the
history of how Parliament came to be sovereign is one of a struggle between the
powers of the monarchy and of Parliament, just as the history of how the House
of Commons became the supreme power within Parliament is one of a contest
between the relative powers of the House of Commons and the House of Lords.[60] Similarly,
LS Amery said that the limits of the personal prerogative would become clear in
the case of the conflict arising from any controversial use.[61]
57 However, political facts can change, as
Wade himself recognised. He argued that the disapplication of certain
provisions of the Merchant Shipping Act 1988 by reason of incompatibility with
European law was a change in parliamentary sovereignty in recognition of new
political facts[62]—
“In Factortame
the House of Lords elected to allow the Parliament of 1972 to fetter the
Parliament of 1988 in order that Community law might be given the primacy which
practical politics obviously required. This in no way implies that the judges
in either case decided otherwise than for what appeared to them to be good
legal reasons. The point is simply that the rule of recognition is itself a
political fact which the judges themselves are able to change when they are
confronted with a new situation which so demands . . . In Factortame it arose from the creation
of new ties with Europe.”
58 Professor Jowell took up this point more
fully in a noted article challenging the nature of parliamentary sovereignty in
the United Kingdom. If “political facts” created parliamentary
sovereignty, then political facts can alter parliamentary sovereignty. Following
the decision in Jackson where three
of the nine Law Lords cast doubts on the absolute nature of parliamentary sovereignty,
Jowell argued[63]—
“Is there any altered ‘political fact’
which justifies a new-found judicial authority to review the validity of
legislation so as to ensure conformity with the rule of law? The dicta in Jackson
provide compelling evidence that there are changed understandings and
expectations nowadays which, unlike in the past, reject the notion of the
unfettered authority of a legislature, however representative of popular
opinion it may be.”
59 In other words, parliamentary sovereignty
was created by a certain set of “political facts”, and may be
altered if new facts allowed. Although, it might be added, as parliamentary
sovereignty arose from the institution establishing a supreme political power
in the United Kingdom, then any ability of the courts to alter parliamentary
sovereignty would depend on whether supporters of the old position would be
strong enough (and motivated enough) successfully to fight back. As LS Amery
made clear in respect of the remaining personal royal prerogatives, the reality
of power can be made clear in struggle.[64]
60 What must, of course, be noted is that
it is not the political facts in the United Kingdom that are in point for the
purposes of this article. If the political facts are to explain parliamentary
sovereignty in Jersey, those facts must relate to Jersey and to its
relationship with the United Kingdom as seen from the Jersey perspective. Just
as the courts of England and then the United Kingdom recognised Parliament as
the superior power in that land, so the customary law of Jersey must have come
to recognise Parliament’s power. And, which is more, there should be no
change in that custom—remembering what we said at the start as to the
willingness of Jersey customary law to promote and demote external sources of
law in terms of significance.
3. Parliamentary sovereignty as an aspect of popular sovereignty
61 Dicey described parliamentary sovereignty
as being the legal embodiment of the political sovereignty of the people.[65] Although
Jowell’s own thoughts on parliamentary sovereignty in a British context
would appear to dispute that this is something that can still be asserted
today, in his original argument in respect of Jersey’s constitutional
relationship with the United Kingdom Parliament, he proposed something
strikingly similar[66]—
“[Parliamentary sovereignty] is a principle
based not upon a notion of where power actually lies but upon where power ought
in a democracy to lie—namely, with the elected representatives of the
people rather than the monarch.”
62 The argument is that Parliament’s
power in the British Constitution cannot be seen as lying simply on the brute
fact of power, but in its representativeness, i.e. that there is no power within a country’s constitution
greater than the people of the country themselves.
63 Such a dynamic obviously cannot apply as
between Jersey and the British Parliament. Parliament’s power can, of course,
be supported by the consent of the Jersey people. Such consent might be
explicit, or implicit in consensually maintaining a consensual relationship
where the power of the British Parliament is explicable. Alternatively, the
power of the British Parliament might be seen as deriving from an altogether
cruder dynamic, i.e. submission to a
larger and more powerful neighbour.
64 Talking of parliamentary sovereignty,
the jurist William Anson, a contemporary of Dicey, noted that sovereignty in a
democracy is constrained by the loss votes, but in a despotism it is
constrained by estimating a threat of rebellion.[67] Parliamentary
sovereignty has arisen in the context where the nature of Parliament’s
relationship with the people of the country creates a restraint. Such a dynamic
does not apply as regards Jersey, nor does any threat of rebellion given that
Parliament can hardly be overthrown by revolution in Jersey. The natural
restraints on parliamentary sovereignty that come through its members’
accountability to the British people,[68] which is
a strong argument as to why the principle cannot be swallowed whole by an
external jurisdiction—at least not if it has any choice in the matter.
The political facts and Jersey’s
relationship with the United Kingdom
65 What we shall suggest is that,
historically, Parliament’s power over Jersey has derived from the facts
of political power. This is no place to write a constitutional history of
Jersey’s relationship with the United Kingdom, but some points should be
obvious.
66 First, the historic starting position
was the somewhat despotic power of the Dukes of Normandy. It could not have
suited either the people of Jersey nor Parliament for the British monarch to
retain Jersey as a private kingdom. We have noted earlier that in 1697, the
then English Attorney General advised that Parliament’s power over Jersey
was not contingent on registration of Acts in the Royal Court. It would be
interesting if historical study could show if the concern here was as to
British power over Jersey or Parliamentary power over the Crown. That must be
for another day, but it may be useful to consider whether various incidents in
Jersey’s constitutional history were really extensions of domestic
English/British concerns.[69] For
example, the Code of 1771 was passed at a time when the British Parliament was
purporting to legislate unilaterally for the American Colonies, and it is
unlikely that there would have been any time for fine distinctions between the
power of Parliament in Jersey as opposed to New Jersey.
67 Secondly, the establishment in common
constitutional commentary of Parliament’s power over Jersey was achieved
in a decidedly non-democratic age, and even then it was frequently disputed. Parliament’s
power arose in an age where the alternative source of ultimate power was the
monarch. Nothing can be more obvious than that the political facts have changed
in a way very relevant to Jersey. The existence of a legislative power over a
non-metropolitan territory is a very exceptional thing in the modern world. This
can be seen in the United Nations Decolonization Committee website[70]—
“The [United Nations] Charter binds administering
Powers to recognize that the interests of dependent Territories are paramount,
to agree to promote social, economic, political and educational progress in the
Territories, to assist in developing appropriate forms of self-government and
to take into account the political aspirations and stages of development and
advancement of each Territory. Administering Powers are also obliged under the
Charter to convey to the United Nations information on conditions in the
Territories. The United Nations monitors progress towards self-determination in
the Territories.”
68 As we have noted, Jersey has never been
on the United Nations list of non-self-governing territories. This provides
significant evidence that the United Kingdom has no administrative role in
Jersey except that which Jersey, as a small community, accepts from time to
time for its own benefit. This is the consensual rationale for British
legislative rights in Jersey—in distinction to the “submission to a
superior” argument, which whilst supporting a claim for paramount power
would also be a claim for colonial mastery. (Of course, it may be that the
United Kingdom has never properly thought through the relationship between its
views of the United Kingdom’s constitutional role in Jersey and whether
Jersey should be on the list of non-self-governing territories. Were it to do
so, it seems unlikely that the United Kingdom would want to adopt a position
that obliged it to place Jersey on the list and thus trigger a decolonisation
duty.)
69 Thirdly, assuming that the relationship
is consensual and non-colonial, the nature of that relationship is not wholly
within Jersey’s gift, i.e. it
is something that must be agreed (and occasionally glossed) explicitly or
tacitly. The benefits of United Kingdom citizenship and representation will
come with a quid pro quo. Historically,
we find many examples of British legislation in Jersey arising out of this
relationship. For example, the ban on exporting wool from Jersey was a function
of permitting exports of wool to Jersey from England in the first place.[71] The
Militia Act was extended to Jersey, but that was for the purpose of regulating
the King’s soldiers whose function was to defend the Island. The exercise
of power by the English Parliament in these cases flowed from the nature of
Jersey’s dependency on England or how it benefited from a close
relationship—it was never a pure exercise of superior power over a
subordinate territory.
70 The question that would face a Jersey
court is one of customary Jersey law—and the customary law changes. It is
impossible to deny the very significant evidence of Parliament legislating for
Jersey, but with the exception of one unreasoned ex parte decision, Bristow,[72]
there is nothing vaguely modern in terms of judicial evidence of Jersey
customary law as regards the extent of the recognition of United Kingdom
statutes. The consistent observance of the convention of non-interference by
Parliament in Jersey means that the customary law on this subject has never
been declared definitively by Jersey courts, whatever persuasive authority
there might be in terms of obiter dicta from British courts and arguments
by British constitutional commentators. The question would be how in the 21st
century a Jersey court should declare Jersey’s rule of recognition in
respect of Acts of Parliament, not how it might have done in previous centuries
had the putative paramount power ever been put to a judicial test in Jersey.
71 As long as Acts of Parliament are duly
registered after consent is given under art 31 of the States of Jersey Law 2005,
there is no problem. Jersey courts would only be called upon to expound
customary law if force of law were sought to be given to an Act of Parliament
in Jersey outside that process, i.e.
if the Act required registration regardless of art 31 or purported to have
force regardless of registration.
72 A Jersey Court in the 21st century would
be entitled to take note, in determining the limits of Parliament’s
sovereignty over Jersey, that—
(a) none
of the common explanations for parliamentary sovereignty (i.e. common law, political facts, and popular sovereignty) as a
matter of British law is applicable to Jersey;
(b) the
political facts have moved on from the assumptions of previous centuries, and
ought not to be bound by Kilbrandon and Hale’s assumption that the facts
of Lardner-Burke were relevant to
Jersey;
(c) assertions
of Parliament’s paramount power were never wholly accepted in Jersey, and
that the United Kingdom had never chosen to put them to the test;
(d) the
British Empire had risen and fallen, and Jersey had never been colonised. The
power of Parliament over Jersey’s domestic affairs has never been put to
the test, not even when Westminster governed a quarter of world’s
population;
(e) the
convention of non-interference that Kilbrandon largely accepted may not have
force of law before British courts, but it is a political fact relevant to the
question whether Jersey law recognises a foreign legislature as having force of
law in Jersey.
73 The United Kingdom has never entered Jersey
on the United Nations list of non-self-governing territories—which
underlines the fact that, were Parliament’s power to move from being a
legal fiction to a practical reality, the result would be a significant change
in Jersey’s constitutional status in the world: it would be a colony. Why,
if the question were asked in the 2010s, should the answer be that the United
Kingdom holds sovereignty over Jersey as a matter of Jersey law?
74 In short, why would Jersey’s
courts expound the customary law to create a rule of recognition giving the
United Kingdom power to make any law it wished for Jersey? Furthermore, the
political facts might, however, support lesser alternatives coherent with the
actual relationship between Jersey and the United Kingdom. There are
intervening stops between full independence and colonialism.
The political
facts, foreign policy and the prerogative
75 It should now be clear that it is open
to the Jersey courts to hold that customary law does not include a rule of
recognition that Parliament has paramount power over Jersey. The question must
arise as to whether there is a principled basis for a more limited rule of
recognition in line with established constitutional conventions.
76 A key justification for Parliament
having sovereign power over Jersey given by Baroness Hale in Barclay was this[73]—
“However, it is the clear responsibility
of the United Kingdom government in international law to ensure that the
Islands comply with such international obligations as apply to them. Just as
the United Kingdom Parliament has the constitutional right to legislate for the
Islands, even without their consent, on such matters, so must the United
Kingdom executive have the constitutional power to ensure that proposed Island
legislation is also compliant.[74] As was pointed out in evidence to the
Kilbrandon Commission, to hold otherwise would be to assign responsibility to
the United Kingdom without the power to put that responsibility into effect
(Cmnd 5460, para 1433).”
77 Essentially, as the United Kingdom has
powers and responsibilities in some respects (e.g. foreign affairs), it needs the power to discharge both. This
then implicitly links with Kilbrandon’s view that if Parliament had the
power to legislate for Jersey, then it must have total power, notwithstanding
that this was admitted to be an “extreme view”.[75]
78 The argument is somewhat simplistic. First,
it could equally be said that, given Jersey’s position as a
self-governing territory, that the United Kingdom should not take on obligations
in respect of Jersey except those to which Jersey has consented. Alternatively,
as with many tax matters, Jersey should where possible be entrusted to settle
its own international relations where they concern domestic issues. Secondly,
it might well be supposed that something less than paramount legislative
authority would be required to ensure that Jersey complied with customary
international law (where consent is implied), or complied with international
obligations to which it had consented. Thirdly, if we hypothesise that the
United Kingdom’s responsibility for Jersey’s external relations
exists for the benefit of Jersey rather than the United Kingdom, Jersey’s
compliance may to a large extent be ensured as being necessary to continue to
enjoy that benefit. If Jersey legislates internally so as to place the United
Kingdom in default of international obligations that exist either at customary
international law or have been entered into with Jersey’s consent, then
Jersey may forfeit the benefits of the relationship. This aspect of
Jersey’s relationship with the United Kingdom is, in principle, no
different from the position of Monaco in respect of France; Monaco can only
enjoy the benefits of its relationship with France if it avoids exercising its
independence in a way that causes problems for its neighbour, a principle that
is enshrined in treaty.[76]
79 What Baroness Hale was wrestling with
goes to the heart of the power exercised by the United Kingdom over Jersey. As
we saw earlier, the royal prerogative, in Jersey, is exercised on matters of
legislation and external relations on the advice of United Kingdom ministers.
This includes the prerogative to sign legislation into law, a position where no
ministerial advice is required as regards United Kingdom legislation.[77] It
is this to which we now turn.
UK’s role in
Jersey legislation
80 What we shall seek to do in this section
is to set out how the UK Supreme Court itself concluded that a legislative
decision (namely to advise the giving or withholding of the royal consent to
Channel Island legislation) could be subject to judicial review. The purpose of
this section is to identify principled grounds on which that can be done, and
then to argue that those same grounds could be used to identify where Parliamentary
legislation itself is constitutional or unconstitutional. Baroness Hale,
sitting in a British court, may have held that there was no analogy between Royal
Assent to Channel Island laws and the making of Acts of Parliament, but we are
not here concerned with the fact that “the courts of
England and Wales have no more power to interfere in that process than they
have to interfere with the process of giving Royal Assent to the Acts of the UK
Parliament.”[78] We
are concerned with the rule of recognition applied by Channel Island courts
when Acts of Parliament purport to create law within their own jurisdiction.
81 There are several reasons why it is
important that we consider the extent of the United Kingdom’s role in
Jersey legislation, namely the monarch’s role in giving Royal Assent. First,
it would be foolish to consider the role of the British Parliament in Jersey
legislation without considering the most practical way in which the United
Kingdom may interfere with Jersey’s legislative choices. Secondly,
consideration of the rights and wrongs of how the United Kingdom can operate a
negative voice in the Jersey legislative process will provide useful context
for the rights and wrongs of how the United Kingdom acting through Parliament
may be able to directly impose choices. Thirdly, as will be seen, the United
Kingdom in the Barclay case moved
swiftly between the issues of ministerial advice and Royal Assent (i.e. the subject matter of the case),
and the issues of Parliamentary power. The two issues are conceptually related.
82 The Barclay
decision is characteristically confused as to the capacity in which the Crown
is advised by ministers in the Channel Islands’ legislative processes[79]—
“The reality, as the Advocates to
the Court argue, is that the appellants were advising Her Majesty both in right
of the Bailiwick of Guernsey and of Sark and in right of the United Kingdom.
They were advising her upon the final stage of the Island’s legislative
process. But they were doing so because of the United Kingdom’s
continuing responsibility for the international relations of the Bailiwick.
They were politically accountable to the United Kingdom Parliament for that
advice. I see no reason to doubt that they were legally accountable to the
courts of the United Kingdom, although only in an appropriate case, which this
is not.”
83 The problem with this is that Her
Majesty was acting in right of the Bailiwick of Guernsey and of Sark and of
nowhere else—the consent was to be given to a law in Sark and not in the
United Kingdom. Setting aside the intermediate step that the Ministers acted as
Privy Councillors, the Ministers were not acting “in the right of anyone”;
they were in the position to advise Her
Majesty in the right of Sark, but gave that advice solely from the
perspective of United Kingdom interests.[80] In doing
so, their advice was solely in the negative, i.e. as to whether a legitimate United Kingdom interest such as
accountability in international law is a reason to withhold consent.
84 The ability to give that advice exists
as a matter of power more than principle, that is to say, it is a function of
the political facts. British ministers do not give such advice to the monarch
in respect of domestic legislation, as we noted earlier. Indeed, it is only the
insertion of the Minister as a practical step in the process that provided a
basis for a challenge to the Sark statute—on the basis that it was
contrary to the scheme of the Human Rights (Bailiwick of Guernsey) Law 2000. The
role of the courts under the 2000 Law in respect of primary legislation is to
enforce that legislation—even when a declaration of incompatibility is
issued, it is not for the courts to say anything further on the rights and
wrongs of the legislation.[81] The
Minister’s role in granting consent was used as a way to side-step this
prohibition, bringing the courts into the issue of whether the Law should be
allowed to exist on the statute book.
85 The only meaningful reason why a British
minister should be involved in advising the monarch to deny Royal Assent is
that the law might damage a legitimately relevant interest of the United
Kingdom. For otherwise the decision by the Queen to sign a law from Jersey,
Guernsey, Sark or Alderney into law would be no different in character to her
signing domestic United Kingdom legislation, i.e. no decision at all, as the signature would be automatic. So,
we must ask what can be “legitimately relevant” to enable a
minister to take the extraordinarily undemocratic step of advising an
hereditary monarch to reject a democratically approved law? The answers can
only be “anything” or “not a lot”.
86 First, it could be argued that, as the
Queen acts on the advice of a British minister, the power lies with that
minister. The minister is politically accountable to Parliament for giving that
advice. The Minister advises from a United Kingdom perspective and so can
consult the general interests of the United Kingdom, as it is in respect of
those issues that the Minister is accountable and for which he is elected to the
British Parliament to represent his (British) constituents.
87 Secondly, and alternatively, it could be
argued that the advice that Ministers give in those contexts is limited to what
is constitutionally coherent. If the royal prerogative (as advised by United
Kingdom ministers) is used to enter into a treaty, it is incoherent if the
royal prerogative is the next day to be used to approve a Channel Island law
breaching that treaty.
88 Beyond these issues, there is no
principled reason for British involvement.
89 Baroness Hale said in Barclay that the use of the ministerial
power to advise giving or refusing consent is one where ministers are “accountable
to the courts of the United Kingdom”, albeit only in “appropriate
cases”.[82] If
there is to be genuine legal accountability, then it needs to be on the basis
of principles that can form recognisable and constituent principles of law. Just
as the principles by which the limits of a statutory power will be abstracted
from the statute itself, so any limits to the ministerial power to advise
withholding Royal Assent must be abstracted from the relevant legal materials
and established political facts. There are three obvious options—
(a) First,
the nature of the constitutional relationship demonstrates severe limitations
on the power. The United Kingdom controls the use of the royal prerogative in
matters of defence and foreign policy, for example. It does not exercise any
such role in respect of domestic affairs. It would follow that ministers may
consider in advising on Royal Assent any matter on which ministers might
otherwise speak on the use of the prerogative in respect of Jersey. Similarly,
they might advise on the basis of ministers having roles with other existing
aspects of Jersey’s relationship with the United Kingdom, such as the
Common Travel Area. But outside such areas where sovereignty in Jersey or other
legal power is in the hands of United Kingdom ministers, there can be no role.
(b) Secondly,
we move to an “anything” scenario, which is one of paternalism. In
this case, United Kingdom ministers might argue that there is a general duty to
ensure good governance. In such a case there is nothing that is strictly off
limits, but to be proper such an intervention must be supported by evidence
that a reasonable minister could have feared for Jersey were the law passed.
(c) Thirdly,
and finally, ministers may, in giving advice on Royal Assent, do so wholly by
reference to the United Kingdom interests. Were this the case, it is difficult
to see how such decisions could be “legally accountable” to the
courts on the basis of violating any constitutional propriety.
90 Despite its complexities, it should be
clear that only the first option represents the reality of how the relationship
between Jersey and the United Kingdom has been operated, as well as being
coherent with principles of democracy and non-colonisation.
Conclusion
91 In respect of the claims of Parliament
to be able to legislate freely and without consent, we have sought to build on
Jowell’s analysis to provide further jurisprudential reasons why such
claims can and should be rejected.
92 First, as Jowell has demonstrated, it
would be unconstitutional for the United Kingdom to exercise such a power for
reasons of established practice and modern democracy. Jowell has argued that
such a constitutional convention is capable of crystallising into positive law.[83] What
can be added is that the factors identified by Jowell are also of such
constitutional importance that Acts of Parliament (as a matter of modern
statutory construction) can only traverse them by express words. In other
words, even if we accept that as a matter of Jersey law a British statute can
be recognised as law in Jersey without registration, the Act would need to be
explicit that this was the intention. The same would be true if an Act required
registration regardless of consent under art 31 of the States of Jersey Law. As
with the case of Simms and Thoburn,[84] it is
necessary for Parliament when traversing fundamental constitutional principles
to be clearly confronted in the wording of the Act with what it is doing.
93 Secondly, this being so, Parliament may
only assert the power to impose laws on Jersey if we accept that Jersey applies
a rule of recognition to Westminster statutes equivalent to the absolute form
of parliamentary sovereignty that exists in the United Kingdom. This can only
be the case if the reasons for the existence of parliamentary sovereignty in
the United Kingdom have been replicated in Jersey. In respect of the common law
argument for the existence of parliamentary sovereignty, the common law is no
part of the law of Jersey. In respect of the “political facts”
argument, the present political facts (including international political
morality such as decolonisation and self-determination) do not support a
declaration of the customary law of Jersey that the United Kingdom continues to
have (assuming it ever had) an absolute power in Jersey. In respect of the
argument that parliamentary sovereignty flows from “popular sovereignty”,
this cannot apply to territories outside the United Kingdom which are not party
to that area of popular sovereignty. The customary law in the 21st century
should look at the reality of the established constitutional relationships, as
opposed to adopting untested assertions of absolute power.
94 Thirdly, any power of Parliament to
legislate without consent should be limited to matters where the present
constitutional arrangements give primacy to the United Kingdom. As long as, for
example, matters of foreign policy and defence remain with the royal
prerogative as advised by British ministers, there is a cogent argument that
Britain should have the power to ensure that Jersey does place Britain in
default of its international obligations. However, that argument is plainly
limited to those matters which are Britain’s responsibility under present
constitutional arrangements (e.g.
foreign policy and defence), and cannot be a basis for a broad uncontrolled
power in Parliament. If Jersey is to have the benefits of United Kingdom
representation and protection it must accept burdens—and if on any issue
it does not accept the burden it is better for the United Kingdom to have the
option of imposing necessary legislation than for the only sanction to be the
dissolution of the relationship. Outside such issues, Baroness Hale’s and
Lord Kilbrandon’s fear of the United Kingdom having “responsibility
. . . without the power to put that responsibility into effect”
does not really apply.[85]
95 Fourthly, the principles by which
legitimate Parliamentary legislation can be recognised should be equivalent to
those by which it would be legitimate for United Kingdom ministers to interfere
by advising a refusal of Royal Assent. Baroness Hale held that it is possible
for a United Kingdom court to recognise where a minister has overstepped the
mark.[86] It
should be likewise possible for a Jersey Court to recognise the legitimacy of
an Act of Parliament in its application to Jersey. As we have argued, the absolute
view of parliamentary sovereignty is a derivation of either the common law or
the political facts of the British constitution or as the embodiment of British
popular sovereignty. There is no need for the courts of Jersey to declare that
the current position of the Island’s customary law in this regard must
follow Dicey’s view of British law.
96 Fifthly, none of this brings into doubt
Jersey’s position as a Crown dependency. It does not, for example,
involve any legislation to remove the royal prerogative on defence or on
foreign policy, nor would it require that prerogative to be used on the advice
of Jersey ministers. Such changes would indeed be tantamount to a declaration
of independence, and thus are political not legal matters. What it would mean
is that the power of Parliament in Jersey would be limited to the matters on
which the Crown dependency is in fact dependent on the United Kingdom. Changes
to that relationship, very much of itself an established political fact, cannot
be properly changed by courts purporting to declare the customary law. It would
be quite a different matter if the customary law were declared so that
centuries of constitutional convention and modern democratic and non-colonial
principles were given force of law in Jersey’s rules of recognition.
97 In saying all this I differ from Professor
Jowell on perhaps one small point alone. He wrote in 2005, that Parliament’s
powers must be, inter alia, “consistent
with the exercise of the prerogative powers within the UK”.[87] It
is perhaps more appropriate to ask that Parliament’s powers should be
consistent with the remaining prerogative powers that are in constitutional
reality exercised by the United Kingdom government.
Dr
Dennis Dixon is a Legal Adviser at the Law
Officers’ Department, Jersey. This article represents a personal view
only. He would like to thank Advocate John Kelleher for his suggestions and
advice. All errors are his own.