Jersey’s constitutional position in relation to Brexit

Posted on Categories Brexit
Email

I ended my last blog by stating that Jersey was in a strong, and in some respects enviable position in relation to Brexit, but that there were substantial challenges ahead. I want to take a little time to explore the context in which we will be seeking to protect the Island’s interests over the months and years ahead, and the background to those challenges.

Autonomy

Jersey has a very high degree of autonomy, including the right of the Jersey government to make its own decisions in relation to health, social security, transport, tax, financial regulation, the extent of overseas aid, policing and many other matters. Our judiciary is independent; that means that no politician or government, whether in Jersey or anywhere else, can direct or influence any decision of our judges or magistrates. And our legislature, the States of Jersey, after debate and due consideration, can change the law in respect of those matters for which we have responsibility. Jersey is in most respects the master of its own destiny.

Where we are not the master of our own destiny is in the conduct of foreign affairs. To summarise it in a sentence, the UK is formally responsible for Jersey’s foreign affairs and defence, while the Government of Jersey is responsible for everything else. In practice my Ministry has been much more proactive in the conduct of our foreign affairs in recent years. In 2007 the Secretary of State for Constitutional Affairs signed a “framework” agreement with the then Chief Minister of Jersey with a view to developing Jersey’s international identity. The UK stated that it would not act internationally on behalf of Jersey without prior consultation. It recognized that the interests of Jersey might differ from those of the UK, and that the UK would seek to represent those differing interests when acting in an international capacity. This is very important in the context of Brexit.

Representing Jersey’s interests

Things have moved on since 2007. Following a recommendation of the Constitution Review Group in 2008, a section dedicated to international affairs was established in the Chief Minister’s department. In 2013 the States of Jersey agreed that international affairs had become sufficiently important to establish a Ministry of External Relations (Foreign Affairs), and Jersey now conducts its own foreign affairs to a certain extent. We have offices in London, Brussels and Caen, and all those offices have played a crucial role in establishing and maintaining positive relationships with the UK Government and with EU Member States. They will continue to play a vital role in promoting and protecting our interests post-Brexit.

Entrustments

However, Jersey’s ability to conduct foreign affairs does not extend to treaty-making. No official international agreement or treaty can be signed without an “entrustment” from the UK Government. The first entrustment to conclude tax agreements was actually given in 2009, and since that time Jersey has entered into more than 50 tax agreements with foreign countries (including the UK). But we have not been entrusted to negotiate on issues beyond this.

It is very important to understand this context. The Government of Jersey will act strenuously to defend Jersey’s interests, and we have made good progress in pressing for involvement in the UK’s negotiations, as well as articulating our position to the UK. But without an entrustment we have no legal power to negotiate with the EU or any other international entity. Our efforts must be conducted at one remove, by persuading the UK Government that what we seek is reasonable and not contrary to the UK’s own interests.

As I stated in my last blog, there have been encouraging noises from the UK Government, and I am optimistic that our interests will be protected. The UK has a duty to seek to represent Jersey’s interests, but Jersey cannot represent those interests herself. That is our first and fundamental challenge. How we deal with that, and the progress of our discussions with UK officials and ministers, will be communicated through this blog, through social media, and through engagement with the public. Jersey’s future is at stake, and we want the public to be involved in shaping that future.

  • HarrisTax

    Would it not be a curious state of affairs were the United Kingdom Parliament to extend its own limited prerogative, if indeed it exists, to legislate for the Islands so as to remove us from the relationship which we enjoy with the European Union, thus in fact removing the admittedly few directly effective and applicable EU rights of which the main bulk are currently the issue before the UK Supreme Court? Lord Rippon was very clear to the IOD in 1992 that he had negotiated the Crown Dependencies relationship with the then EC in 1972 so as to in effect extend the existing constitutional relationship of the CD’s to Europe, with a “minor” obligation in return: article 4 and a Euratom provision.
    Lady Hale’s statement out of the Supreme Court in the Barclays Case on Sark that we respond to the Sovereign in person, not to the Queen in Parliament may be of relevance:
    “”Their link with the United Kingdom and the rest of the Commonwealth is through the Crown, not in the sense of the ultimate executive authority in the United Kingdom, but in the sense of the person of the Sovereign. The Sovereign’s personal representative in each Bailiwick is the Lieutenant Governor”, That is the bedrock of her judgment; upon which she then expands.
    http://www.bailii.org/uk/cases/UKSC/2014/54.pdf
    To where does HM Government’s International prerogative extend in this area, and are we subject in effect to the United Kingdom Parliament’s say so, despite the existing Constitutional position which you so clearly lay out?
    It would seem that this is more of a political question than a legal one. But only the Scottish Lord Advocate in Miller has put his finger on the red button that there is no “decision” at present that could found a basis upon which a notification could be made under article 50. No wonder the Germans are confused.
    Whilst the Relationship of OCTs with the EU is dealt with purely under Regulation and Council Decision, Lady Hale’s reasoning in Barclays, given the fact that the relationship with the EU, akin to but not identical to the ECHR, has been put on a statutory basis might subject any HMG “decision” or for that matter Parliamentary vote or decision to possible judicial review in each of the CDs.

Our moderation policy