Overseas Chambers of Peter Harris

Maison de la Boucterie
Rue de la Boucterie
Saint Saviour
Jersey, JE2 7ZW

On what "constitutional" basis can the United Kingdom "Brexit" the Crown Dependencies?

July 26th 2016

Put simply, the answer is not clear, but is definitely no!

Gina Miller's challenge, inter alia, to the use of the Crown Prerogative by the United Kingdom Government to Brexit is interesting, as it is clear that the United Kingdom Government does not have the power to "Brexit" either the Jersey or the Guernsey, nor perhaps the more Norse Isle of Man Crown Dependencies by the use of a prerogative granted by the Crown of the United Kingdom to its government or Parliament.

Read Joshua Rosenburg's elegant summary and synopsis of the only two options in  which the United Kingdom Government can "Brexit": exercise of Crown Prergative or by repela of ECA 1972.. In neither case has it jurisidiction in its own right to Brexit the Crown Dependencies. Either method is only applicable internally within the United Kingdom; not to the Dependencies. It ain't the same "Crown in right" / "crown  en droit", it is the ducal crown, or the Manx Crown, it certainly is not the prerogative of the United Kingdom crown. Try telling the Canadians, the New Zealanders or the Australians that the United Kingdom Parliament has any prerogative there whether Crown or otherwise!

The arguments brought into the harsh light of Crown and constitutional convention show that if it is the United Kingdom Parliament which has the final say, for the United Kingdom, that body cannot repeal the Jersey and Guernsey implementing legislation which follows the same lines of the European Communities Act 1972, as amended.

Quite what the Supreme Court will make of this when the inevitable appeals arrive before it later this year will be interesting as, if the matter is raised, it will need to surrender jurisdiction to the Privy Council as that body alone has jurisdiction over issues concerning the Crown Dependencies, as Peculiars of the Crown. That is so settled as to be beyond discussion.

I refer readers to a brief if not humourous summary of the 1970-72 negotiations in relation to the Crown Dependencies by Lord Rippon to the IOD in Jersey at the time of the negotiations for the Single European Act which may be found on the Resources page of www.overseaschambers.com together with other material on the issues.

The issue that the United Kingdom remains responsible but now to a more limited extent, for the Crown Dependencies' International relations, would otherwise  have rendered them, like Gibraltar, technically within the European Union under article 355 3 TFEU. They were immediately restricted from that status by what is now article 355 5 c. TFEU, which limits the application of the Treaties to "only to the extent necessary to ensure the implementation of the arrangements for those islands set out in the Treaty concerning the accession of new Member States to the European Economic Community and to the European Atomic Energy Community signed on 22 January 1972". In other words to the arrangements set out in the Third Protocol to the Act fo Accession of the United Kingdom in 1972. The constitutional position of the Crown Peculiars since 1204 was thus implemented in the very Treaty from which the United Kingdom is now seeking to distance itself, In other words, a constitutional  convention which existed  before most of the States which now exist in Europe actually took form. Neither France, Germany nor Italy existed at the time!

In short, it remains open to the Crown Dependencies to state categorically that the UK Brexit mechanisms however deployed by the United Kingdom Government or Parliament are irrelevant to their limited but entrenched status under the TFEU.

That would in turn have the superb effect of enabling free movement of agricultural and commercial goods between the Islands and the EU, which in turn would provide immediate and free access to the United Kingdom market.  Perhaps Cherbourg should open a freeport .....

One can also imagine a scenario where fishing vessels registered in the Dependencies land fish anywhere in the world as European fish, immediately importable throughout the EU.

That is simply because the notion in Jersey of the "Crown en droit" ably explained by the ¨present Bailliff segregates the specific sovereignty enjoyed by the Duc of Normandy from the hapless remainder of the British Crown.That translates into the similar notion of "crown in rights deployed by Canada and other Commonwealth countries to define their relationship with he Crown. If one reasons in figurative terms, and effective sovereignty ithis area relies on symbolism,  each of these separate elements is a jewel of more or less independent individual stature within or hanging off the Crown itself, which is more than that of the United Kingdom.

The correct term used to be not a Crown Dependency but a Peculiar of the Crown, something which defies analysis from anything else than an evolved feodal perspective. See for example Falle and Kelleher's excellent articles on Foreshore rights notably on the exile or perhaps maritime rustication  of seignurial foreshore rights on the Cotentin by Napoleon III over the short distance to Jersey.  Those prior feodal rights were incidentally part of the failed attempt by the French Republic to secure sovereignty over the the Minquiers plateau in 1953. Beware of Republicans asserting half understood foedal rights. Best leave those attempts to the Duchy of Cornwall, a guaranteed loser where the Crown did not own the seigneurial manor. Best to lose nobly. The curious thing about these feodal issues is that each overbearing centralised government still insist on sending commissions over to the Islands to check whether they have let their guard down or not in the same manner as monarchs used to do since 1204.  Prescriptive assertion remains the main remedy for attempted pseudo-republican loss of recent memory.

Fortunately for the Islands there remain sufficient highly trained lawyers in the olde Peculiars and in London to render this state of affairs entirely profitable, both to these Peculiars and to the United Kingdom, if a side line of access and egress with the European Union Single Market in goods was required in negotiations with Brussels.

That is one comfort to be gained from the fact that the Dependencies did not take up the United Kingdom Government's kind offer of a say in the idea of a Brexit. That deft constitutional position, bred out of continual historical confrontation with Commissioners from Great Britain seeking make incursions into the feodal difference was not an omission, it has consequences.

The Isle of Man's position, as indicated by a comment from Peter Cannel a Manx advocate is highly significant,as unbeknown to most, the Isle of Man purchased its Norse "crown" back  in the eighteenth century. a very different scenario to the more southern Norman dependencies facing the Atlantic, rather than the Irish Sea and the Celtic Atlantic approaches.