The
power of the UK to legislate for the Crown Dependencies without consent—fact
or fiction?[1]
Michael Birt
In this article, the author outlines the
traditional view, as espoused by the Kilbrandon Commission, that the United
Kingdom has a paramount power to legislate for the Dependencies even without
their consent and then considers some of the arguments in support of the
alternative view that there is no such power. Having reviewed the position from
a Channel Islands perspective, consideration is then given to whether there are
any differences in the position of the Isle of Man.
1 My experience of over 20 years in
public office in Jersey has been that, subject to the occasional bump along the
way, the relationship between the UK and the Dependencies works well on a day-to-day
basis. But a Dependency of the Crown cannot assume that the relationship with
the UK will carry on as before; it has to be prepared for new challenges.
2 This is exemplified by the recent
comment by Jeremy Corbyn, the leader of the Labour Party, following the release
of the Panama Papers when, according to newspaper reports, he suggested that
direct rule of the Crown Dependencies might be imposed if they did not behave
as he thought they should in relation to taxation matters. He is not the first
person to make such a suggestion. Back in 2009, Lord Wallace, a Liberal
Democrat peer, visited Guernsey and said that the centuries-old understanding
that the UK would always respect the Crown Dependencies’ right to
autonomy was no longer appropriate. He was quoted as saying “You cannot
say that a promise given 800 years ago in totally different circumstances fits
in any part today”. It is clear that there are those who, from a
political perspective, do not accept the Islands’ right to their autonomy
simply because of their history.
3 So how does our autonomy stand at
present? One can of course look at it from two different aspects. The first is
how it works in practice, and the second is how strong its legal and
constitutional underpinning is. It is this latter aspect which I wish to
consider.
4 I hope I will be forgiven if I begin
by dealing with the position from a Jersey or Channel Island perspective, as I
am of course much more familiar with that, and our history differs from that of
the Isle of Man. But having considered the position from a Channel Islands
perspective, I shall offer a few thoughts on any differences in the Isle of
Man’s position.
5 One starts of course with history. The
Channel Islands were part of the Duchy of Normandy from 933 onwards and were on
the winning side in 1066 at the Battle of Hastings. In 1204, when King John
lost Normandy to the French king, the Islands elected to remain loyal to the
English Crown. In return the King confirmed that they could continue to be
governed by their own laws and they would have a separate administration.[2]
This was subsequently confirmed and enhanced in a succession of Royal Charters,
all of which confirmed the separateness of the Islands from England.
6 Originally, the Royal Court,
consisting of the Bailiff and 12 Jurats, was a law-making body as well as a
judicial body. It gradually began to consult with the Constables and the
Rectors of the 12 parishes in order to evaluate public opinion before
petitioning the King for any change in the law, and out of this process
gradually emerged the States of Jersey, comprising the three estates, namely
the Jurats, the Rectors and the Constables. The States is first mentioned by
name in 1497.
An important event took place in 1771. By Order in Council (known as the Code
of 1771), it was confirmed that thereafter only the States could enact
legislation. Finally, in 1948, the States became a fully democratically elected
assembly when the Jurats and Rectors were replaced by Senators (elected on an
Island-wide mandate) and a greater number of Deputies (elected on a parish
basis).
7 Two points emerge from a review of the
Islands’ history:
(i)
The Channel Islands have never elected a Member of the House of Commons, which
therefore has no democratic mandate in respect of any of the Channel Islands.
(ii)
The Channel Islands are not a colony or conquered or ceded territory.
8 The extent to which the Crown or
Parliament may legislate for a colony is clear. However, the question of
whether the Crown, through Order in Council or Parliament at Westminster, has
the legal right to legislate for any of the Channel Islands without consent has
never been settled and, because of their very different history, no analogy can
be drawn with the situation of colonies. There have been various skirmishes
over the years. In particular, during the 19th century there were three
occasions when Jersey challenged the right of the Crown to legislate by
prerogative Order in Council.
9 The first is Re States of Jersey[4]
in 1853, the second is the Victoria
College dispute in 1854 and the third is the Prison Board case in 1894.[5]
10 These cases did not resolve the
question of whether the Crown has the right to legislate for the Island without
its consent. However, the fact remains that, in all three cases, the offending
Orders were withdrawn, albeit sometimes on the basis that the States had agreed
to pass legislation to like effect. The States
of Jersey case is of particular interest. In that case three Orders in
Council were made for the purpose of setting up a new system of paid police and
a court of summary jurisdiction. The States opposed the constitutionality of
the Orders in Council and the Royal Court ordered that the registration of the
Orders be suspended whilst the States petitioned Her Majesty in Council for the
recall of the Orders, so that legislation on the subject could be passed by the
States. The Committee of the Privy Council, although accepting that the Orders
appeared well calculated to improve the administration of justice in Jersey,
advised that they be revoked and said as follows—
“Yet as serious doubts exist whether the
establishment of such provisions by Your Majesty’s prerogative without
the assent of the States of Jersey is consistent with the constitutional rights
of the Island of Jersey, their Lordships have agreed to report their opinion to
your Majesty that it may be expedient for Your Majesty to revoke the said
Orders.”
11 Despite the uncertainties surrounding
the legal position, and despite the occasional disagreement, the relationship
has by and large worked well. The United Kingdom has generally respected the
Channel Islands’ autonomy in domestic matters. In return, the Islands
have been sensitive to their obligations as Crown Dependencies and have been
happy to pass legislation to meet changing international standards. This is of
course equally true for the Isle of Man.
12 But what would be the position if it
became necessary to resolve whether the United Kingdom can, in one form or
another, legislate for Jersey or one of the other Crown Dependencies even where
the Island does not agree? I hope very much that this matter never arises for
decision because I think that the present unwritten position has served both
parties well. However, if it does, a court in the relevant Crown Dependency may
well be called upon to adjudicate. As I continue to sit as a judge in all three
Crown Dependencies, I do not propose therefore to offer any opinion of my own. I
intend simply to summarise some of the competing arguments as they appear at
present and hopefully to stimulate discussion and thought about the topic.
13 There are two methods by which the
United Kingdom might seek to legislate. The first is by an Act of Parliament at
Westminster stating expressly that it applies to the relevant Island. The
second is by Order in Council issued under the Royal prerogative. I shall first
take Acts of Parliament.
Acts of
Parliament
(i) The traditional
view
14 The traditional view is that,
although there is a constitutional convention that Parliament will not
legislate for the Channel Islands on matters of domestic concern without their consent,
Parliament ultimately retains the legal right to legislate on any matter. Thus
that leading constitutional lawyer Professor Dicey wrote in 1885—
“Whatever doubt may arise in the Channel
Islands, every English lawyer knows that any English court will hold that an
Act of Parliament clearly intended to apply to the Channel Islands is in force
there proprio vigore [by virtue of
its own force], whether registered in the States or not.”[6]
However he gave no authority in support of that
assertion and is of course talking about the view of an English court.
15 A more recent statement of the
traditional view is to be found in the Report of the Royal Commission on the
Constitution (1973) (“Kilbrandon”) which accepted that there had
been a strict adherence to the practice not to legislate for the Islands
without their consent on matters of purely domestic concern over a very long
period and in that sense there was therefore a constitutional convention that
Parliament would not legislate for the Islands without their consent on
domestic matters. However, Kilbrandon went on to refer to the Privy Council
case concerning Southern Rhodesia at the time of UDI
in 1968[7]
and concluded that, notwithstanding the convention, Parliament ultimately had a
paramount power to legislate for the Channel Islands in any circumstances.[8]
16 Those who would argue in favour of
the traditional view can also point to certain dicta in the recent case before the Supreme Court of R (Barclay) v Secy of State for Justice.[9]
The case was of course concerned with a very different matter, namely whether
the English courts could judicially review an Order in Council giving Royal
Assent to certain legislation passed by Sark on the ground that such
legislation breached the European Convention on Human Rights. However, in
passing, Lady Hale’s judgment referred with apparent approval to the view
of the Kilbrandon Commission that the UK Parliament did have a paramount power
to legislate on any matter, even without the Island’s consent.[10]
However, these remarks were clearly obiter;
they were not relevant to the issue before the court and there appears to have
been no argument about the point.
17 There has only been one case in
Jersey where this issue has arisen. That was the case of Re Bristow in 1960.[11]
I should explain by way of background that the Code of 1771 laid down that Acts
of Parliament expressed to apply to Jersey should be sent for registration by
the Royal Court so the inhabitants would have knowledge of it. Nothing was said
in the Code as to the effect of non-registration. Conversely, the Code provided
that an Order in Council could only be executed in the Island after
registration in the Royal Court and that if, upon the application for
registration, it was considered that an Order in Council infringed the charters
and privileges of the Island, the registration could be suspended by the Royal
Court until representations were made to His Majesty and His pleasure had been
signified.
18 Mr Bristow had been arrested in
Jersey under a warrant for his arrest issued by the Registrar of the Bankruptcy
Court in London pursuant to the Bankruptcy Act 1914. Section 124 of that Act
ostensibly applied to the Island and provided that a warrant issued under that
Act could be enforced in Jersey provided it was endorsed by the Bailiff. The
warrant had not in fact been endorsed by the Bailiff before being executed. Mr
Bristow contended that he had been unlawfully detained as the warrant had no
effect in Jersey.
19 The court gave no reasons for its
decision. Rather puzzlingly, it specifically declined to rule on whether Mr
Bristow had been unlawfully arrested and detained. Be that as it may, the court
in its Order observed that Parliament had the power to legislate for the Island
and there was nothing which prescribed that an Act of Parliament which applied
in express terms to the Island could not take effect unless it was registered
by the Royal Court. As I say, no reasoned judgment was given and therefore it
is not clear what was argued before the court and what its reasons were for
making that assertion.
(ii) The alternative view
20 The leading constitutional lawyer
Professor Sir Jeffrey Jowell QC has been retained in recent years to advise
Jersey on the constitutional relationship with the UK. He has expressed the
view that much has changed since Kilbrandon in 1973. In particular, the courts
are nowadays willing to apply constitutional principles and recognise
constitutional rights to an extent which would have surprised their
predecessors 30 years ago. Drawing on the advice of Professor Jowell, the
Attorney General made a statement to the States in 2002 advising that, in his
opinion, Parliament has no legal power to legislate for Jersey against its will
in relation to domestic matters, including taxation.
21 A number of matters are relied upon
in support of this alternative view—
(i)
The first is that the traditional view is based entirely upon the doctrine of
parliamentary sovereignty; ie that
Parliament is supreme and the courts may not question an Act passed by
Parliament. But that doctrine developed from an intention to prevent the King
from raising taxation without the consent of Parliament. It is based upon where
power ought in a democracy to lie,
namely with the elected representatives of the people rather than the Monarch.
(ii)
Support, if it is needed, for the proposition that the principle of
parliamentary sovereignty rests upon democratic principle is to be found in the
observation of Lord Hoffmann in R (Bancoult)
v Secy of State for the Foreign and Commonwealth Office[12] when
he said—
“The principle of the sovereignty of
Parliament, as it has been developed by the courts over the past 350 years, is
founded upon the unique authority Parliament derives from its representative
character.”
(iii)
If democratic principle ultimately justifies the supremacy of the legislature
over other branches of government within the United Kingdom, it can clearly be
argued that democratic principle does not
justify the supremacy of the UK Parliament over Jersey’s affairs. On the
contrary, democratic principle would suggest that the will of the UK Parliament
should not prevail. This is because Jersey residents have no representation in
Parliament but do have full representation in the States of Jersey. The
principle is clearly stated by Blackstone in his celebrated statement
explaining why Parliament legislated for the town of Berwick upon Tweed but not
for Ireland—
“The town of Berwick on Tweed, although subject
to the Crown of England ever since the conquest of it in the reign of Edward
IV, is not part of the Kingdom of England nor subject to the common law,
although it is subject to all Acts of Parliament being represented by Burghers
therein . . . But as Ireland was a distinct dominion, and had
parliaments of its own . . . our
statutes do not bind them, because they do not send representatives to our
Parliament, but their persons are the King’s subjects, like as the
inhabitants of Calais, Gasgoigny and Guienne, while they continued under the
King’s subjection.”[13]
[Emphasis added.]
(iv)
The principle that there should be no legislation without representation is of
course reflected in art 3 of Protocol 1 of the European Convention on Human
Rights which reads—
“The High Contracting Parties undertake to
hold free elections at reasonable intervals by secret ballot under conditions
that will ensure the free expression of the people in the choice of the
legislature.”
In Mathews v
United Kingdom,[14]
the European Court of Human Rights upheld the complaint of a resident of
Gibraltar and held that the lack of electoral representation of the population
of Gibraltar in the European Parliament “would risk undermining one of
the fundamental tools by which ‘effective political democracy’ can
be maintained”. By analogy, it is argued that for the United Kingdom to
thwart the expression of a free and elected Jersey legislature, where no
alternative means of political representation of Jersey residents in the United
Kingdom Parliament is provided, would similarly undermine an essential feature
of “effective political democracy”.
(v)
Applying these principles, it is argued by supporters of the alternative view
that the position in law is to be ascertained from custom and practice, just as
in the development of the customary law in other areas. Thus, as Kilbrandon
describes it, the strict adherence to the practice that Parliament will not
legislate for the Islands without their consent on domestic matters, when
combined with the democratic principle to which I have referred, suggests
either that Parliament has never had such power or, alternatively, that the
convention that it should not exercise that power has matured into law. It is
of course unclear whether convention can crystallise into a law but Sir Ivor
Jennings thought this was so,[15]
and support is also to be found in a decision of the Canadian Supreme Court
where Duff CJ said that “Constitutional law consists very largely of
established constitutional usages recognised by the courts as embodying a rule
of law” and that the process of crystallization was “a slow process
extending over a long period of time”.[16] Indeed,
Jennings pointed out that constitutional usages about the supremacy of
Parliament in the UK were incorporated into the common law at the end of the 17th
century. In this context one can refer also to the observation of Lord Hoffmann
mentioned earlier concerning the development by the courts over a period of the
principle of parliamentary supremacy.
(vi)
A significant development occurred when, with Royal Assent, the States enacted art
31 of the States of Jersey Law 2005. The preamble to that Law specifically
recognised Jersey’s autonomy by stating “whereas it is recognised
that Jersey has autonomous capacity in domestic affairs”. Consistently
with that statement, art 31 is in the following terms—
“Duty to refer certain matters to the States
31(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 a Parliament of the United Kingdom, or;
(ii) any
Measure, pursuant to the Channel Islands (Church Legislation) Measures 1931 and
1957,
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.”
The Royal Court considered this provision in the
case of Re the Terrorist Asset-Freezing
(Temporary Provisions) Act 2010.[17] That
was a case where the Terrorist Asset-Freezing (Temporary Provisions) Act 2010
of the Westminster Parliament was expressed to apply to the Channel Islands and
was accordingly sent down for registration by the Royal Court. Although the
Island authorities had been consulted on the Act, there had not been time for
the Chief Minister to bring the matter before the States. Accordingly, when the
matter came before the Royal Court, it did not register the Act but instead
referred the matter to the Chief Minister in accordance with art 31(2)(a). The
States subsequently approved a proposition of the Chief Minister that the Act
should have effect in Jersey. The matter therefore came back before the Royal
Court which duly registered the Act as it was satisfied that the requirements
of art 31 had been complied with. However, in passing, the court took the
opportunity to say that, in the light of developments since 1960, it was
questionable whether the decision in Bristow
was correct and it was arguable that an Act of Parliament could not have effect
in the Island unless registered. The effect of art 31 was that the Royal Court
could not register a UK Act unless the States had signified their approval. It
would be very strange if, despite the enactment of art 31 with Royal Assent, 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; indeed the States
might have voted against registration of the Act. Such an outcome would render art
31 completely pointless despite its clear intent that the democratic process in
Jersey should be respected. The court also referred to some of the other
matters I have mentioned in support of the alternative view, such as the
significance of art 3 of Protocol 1 of the ECHR.
Prerogative Order in Council
22 The Royal prerogative for the Crown
to legislate by Order in Council for the Islands is presumed to have derived
from the supreme legislative power possessed by the Dukes of Normandy. In
practice, as in the UK, this method of legislation has fallen into disuse. It
has been superseded by the extension to Jersey of Acts of Parliament with the
consent of the Island. Nevertheless, the question still arises as to whether an
Order in Council under the prerogative power could be made in respect of
domestic matters. There is certainly doubt over the extent of the power. As was
said by Lord Diplock in BBC v Johns—“It
is 350 years and a civil war too late for the Queen’s Court to broaden
the prerogative”.[18]
Furthermore, as I have already indicated, in the States of Jersey case in 1853, the Privy Council advised that
serious doubts existed as to whether the making of a prerogative Order in
Council concerning the administration of justice in Jersey without the assent
of the States was consistent with the constitutional rights of the Island.
23 Kilbrandon accepted the UK submission
that the Crown had ultimate responsibility for the good government of the
Islands. He did not consider specifically the question of the Crown as opposed
to Parliament but in relation to the power of intervention in pursuance of its
ultimate responsibility for good government, the report said—
“There is room for difference of opinion on
the circumstances in which it would be proper to exercise that power. Intervention
would certainly be justifiable to preserve law and order in the event of grave
internal disruption. Whether there are other circumstances in which it would be
justified is a question which is so hypothetical as an argument not to be worth
pursuing.”[19]
24 The views of Her Majesty’s
Government were expressed by Lord Bach in the House of Lords in May 2002 when
he said—
“The Crown is ultimately responsible for the
good government of the Crown Dependencies. This means that in the circumstances
of the grave breakdown or failure in the administration of justice or civil
order, the residual prerogative power of the Crown could be used to intervene
in the internal affairs of the Channel Islands and the Isle of Man. It is
unhelpful to the relationship between Her Majesty’s Government and the
Islands to speculate about the hypothetical and highly unlikely circumstances
in which such intervention might take place.”[20]
25 What has changed since Kilbrandon is
that it has now been clearly established by the House of Lords in the Bancoult case[21]
that Orders in Council made under the Royal prerogative are subject to judicial
review on conventional grounds. So, such an Order in Council could be quashed
on the grounds that it was Wednesbury
unreasonable. It would no doubt certainly be argued by Jersey that, when the
Island has a democratically elected legislature, the exercise of a prerogative
power by the Sovereign contrary to the wishes of that legislature, other than
in circumstances where there had been a grave breakdown in law and order, would
indeed be unreasonable and liable to be set aside by the courts.
Application
to the Isle of Man
26 So, can these various arguments be
transposed to the Isle of Man? I have read with interest the material which the
First Deemster has kindly sent me, including relevant cases and interesting
articles by Peter Edge[22]
and by Augur Pearce.[23]
27 The Isle of Man’s history is of
course very different from that of the Channel Islands but no less colourful. It
is an ancient kingdom whose King (later Lord) was originally subject to the
King of Norway, then to the King of Scotland and, after some disputes between
England and Scotland, since 1399 to the English sovereign. Tynwald has existed
for at least 1,000 years and until the Revestment in 1765, laws were enacted by
the Lord of Man with the assistance of Tynwald. Since 1765, the Lordship of Man
has been vested in the person of the British sovereign. One possible difference
in its history as compared with the Channel Islands is that it is argued by
some that the Isle of Man is a conquered territory because of the events of
1399 and the terms of the grant by Henry IV. However it is clear that that view
is the subject of dispute.
28 Taking first the traditional view,
there would appear at first sight to be greater support for it in local
jurisprudence here than is the case in the Channel Islands where, as I have
said, the only relevant decision is that of Bristow.
The cases which I have read are Re
Robinson,[24]
Crookall v Isle of Man Harbour Board,[25]
Re CB Radio Distributors Ltd[26]
and Re Tucker.[27] The
most detailed is that of the Staff of the Government Division in the CB Radio case, which in turn exhibited
the fascinating opinion of Sir James Gell, Attorney General in 1876. Having
reviewed the position in some detail, Hytner JA said this at 396—
“Since 1876 the United Kingdom Parliament and
Tynwald have both continued to legislate for the Island but the course of
dealings between the successive governments of the United Kingdom and the Isle
of Man has resulted broadly in Tynwald legislating for the internal affairs of
the Island and Parliament legislating for defence and foreign affairs,
including all matters affecting the relations of the Island with others.
Whilst the right of the United Kingdom Parliament
to legislate may thus be a subject for interesting discussion among
constitutional historians and lawyers, the issue in our view must now be
regarded as academic, because since the inception of the appeal court in the
Isle of Man the validity of such legislation has never been questioned but on
the contrary has always been recognised and applied. It is now too late to
question the right of Parliament to legislate in this manner for the Island, at any rate in this court.” [Emphasis
added.]
29 At first sight, these cases could be
said to give considerable support to the traditional view. However the
following points can be made:
(i)
The court in CB Radio was careful to
limit its acceptance of Parliament’s right to legislate to where
Parliament was legislating “in this manner”. In context, that must
be reference back to the preceding paragraph where it is stated that Parliament
legislates for defence and foreign affairs etc
whereas Tynwald legislates for internal affairs. That point is made more
specifically in the case of Tucker
where at 228–229 the Appeal Division said this—
“There has been for many years a convention
that whilst Parliament legislates for the Island in matters relating to defence
and foreign affairs and until recently customs and excise, it leaves to Tynwald
control over all domestic matters . . . Whilst I can envisage an
interesting argument relating to ultra vires by an astute Manx constitutional
lawyer in, say, 1780, it is now far too late—at any rate in this court—to
deny the right of Parliament to legislate in
accordance with accepted convention.” [Emphasis added.]
It can be argued therefore that the Appeal Division
was not accepting Parliament’s right to legislate contrary to the
convention.
(ii)
The reason for accepting a power of Parliament to legislate is interesting. In
both Crookall (at 276) and CB Radios (at 396), it is indicated that
the legislation was in effect being passed by the Sovereign in his capacity of
Lord of Man but with the assistance of Parliament (where it was Westminster
legislation) or Tynwald (for local legislation). It followed that if Acts of
Westminster and Tynwald were to conflict, it would simply be the later Act
which would prevail.
(iii)
None of the cases was concerned with the situation where Parliament was
legislating contrary to the wishes of the Isle of Man as expressed through
Tynwald. It is arguable therefore that the position in that event remains open.
30 Turning to the alternative view, it
would seem that the arguments in support of that view concerning the Channel
Islands are equally applicable to the Isle of Man. Thus there have been great
changes in the application of constitutional principles and rights since
Kilbrandon and indeed since the Isle of Man cases referred to earlier. The
argument runs that it is very hard to see any democratic principle which
justifies a Parliament where Isle of Man residents are unrepresented overriding the wishes of a local legislature where
its citizens are represented. The one
area where the arguments in respect of Jersey are not equally applicable to the
Isle of Man is art 31 of the States of Jersey Law 2005. It is of course a
matter for the Isle of Man but it might be worth considering the enactment of
something along the lines of art 31 so as to support the principle that UK
legislation should only be extended to the Island if Tynwald agrees.
31 As to legislation by prerogative
Order in Council, it seems that the position in the Isle of Man would be
identical to that in the Channel Islands. It would be arguable that any Order
in Council passed contrary to the wishes of Tynwald, other than where there had
been a grave breakdown in law and order, could be attacked on the grounds that
it was Wednesbury unreasonable and
should be quashed.
Conclusion
32 I began this lecture by pointing out
that one can never tell what will happen in the future. Uncertainties as to the
extent of the Crown Dependencies’ autonomy have not generally caused
difficulties and the Islands have developed successfully since the Second World
War in exercise of that autonomy. However, the Crown Dependencies need to keep
the position under review. What can be said with confidence is that
constitutional law has moved on since the Kilbrandon Report and that, in the
event of a dispute arising over the constitutional relationship which ends up
before the courts, the Crown Dependencies will have a number of legal arguments
in support of their autonomy which would not have been available in 1973.
Sir
Michael Birt was Bailiff of Jersey between 2009 and 2015. He is now a
Commissioner of the Royal Court and a judge of the Courts of Appeal of all
three Crown Dependencies.