Put simply, the answer is not clear, but is definitely no up to
the point where the United Kingomd does leave. It will then tow the
British Overseas Territoies on the one hand, and the Crown
Dependeices on the other out of the Union.
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.
The geo-political reality is however different.
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 repeal 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 to 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.
Howver, as Brexit approaches, the Crown Depedneies are all
preparing for thair existing position as being most of the way
outside the Single Market, barring the freedom of movement of
goods, Euratom and a limited anti-discriminaton provision, to
become fullmy outside, but nonetheless, hanks to David Cameron's
kindness in handing their fiscal autonomy to the Ecofin,
still managing international interference.