Overseas Chambers of Peter Harris

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

Were times ever tougher for an errant Member of Parliament? Brexit the CD's and either the Crown Prerogative or an Act of Parliament? To whom should one now "genuflect" to exit?

September 19th 2016

It is established that the Crown en droit or in right is a many faceted piece of constitutional  jewelry. It has a sense of immanence above mere national interest that is the fundamental distinguishing feature of what outside spectators view, inadequately as a mere "common law" system. The United States has several common law jurisdictions within it and yet ails to meet that criteria otherwise than by a profession of faith by its subjects as distinct from its objects.

Others simply assume out of modernist convenience that the Supreme Court has the final say in all matters judicial within the United Kingdom and for that matter outside it. That is the problem with borrowing a term from another -ex-colonial- jurisdiction whose law has evolved from an independent declaratory basis. The United Kingdom, at law, is anything but a federalised State. It existed before that distinction existed. The old term describing the function of the final appellate jurisdiction within the United Kingdom itself was the Judicial Committee of the House of Lords, and the equivalent for matters outside the jurisdiction of the United Kingdom and its Parliament was the Judicial Committee of the Privy Council. The Judicial Committee was effectively composed of the same "Law Lords" and senior judges from elsewhere including the dependencies and dominions affected, Canada's and certain Commonwealth jurisdictions' final appellate court in some circumstances remains the Privy Council, or more precisely the Judicial Committee of the Privy Council. Its powers include power to hear constitutional issues. Oops, did we miss something here?

How does this impinge upon the current Rule of Law litigation over the exercise either by Parliament or by Crown prerogative on Brexit, which is  due to be heard in September? To whom should the subjects of Her Majesty now genuflect when her United Kingdom Government  attempts to leave or take leave to leave the European Union?

The leapfrog appeal in the pending Brexit litigation is being stated as lying to the  Supreme Court.  Following basic training, namely that a Barrister should make no assumptions and question everything, one has to try that assertion "through the furnace" to test its mettle.

So, does it?

It is a constitutional matter involving the Crown and a matter of Crown Prerogative. What is more, it is not only the insularised United Kingdom Crown, a Union of two crowns, but other "Crowns in right", such as the separate Manx crown, the CD's feodal "crowns en droit" and what is more the part of the Crown which is the Unionised Scottish Crown which are affected.  Note that other "crowns in right" exist, such as the Canadian and the Australian relevant here to the extent that these depend upon the following appellate structure.   The Scottish devolution issues and cases were originally the province of the Judicial Committee of the Privy Council, until 2008. Whilst the appeal in the Brexit litigation is from a Court within the United Kingdom, as the government of the United Kingdom is being sued in England, that may not mean that the Supreme Court is the only Court with competence in the matter.

That in constitutional terms may be so far removed from the absolute relativistic truth to be remarkable. It sometimes may help to step outside a peculiar constitutional "box", or in this context "casket". It is also an error into which certain parts of the United Kingdom Civil Service might even attempt to immerse the debate. So at the risk of being accused of rendition and waterboarding my republican minded friends at the Bar with a blast from the past outside the five mile limit .....:

The previous postings on the position of the Channel Island and Manx Crown Dependencies in relation to the feodal Beast of Westminster has shown that the relationship between these Crown Dependencies or perhaps better Peculiars and and the United Kingdom, itself under, if not subject  to, the Crown in right concept has show that it boils down to a form of centuries old tug of war between competing feodal, not republicanised interests.  The end of the Protectorate and its replacement by a form of constitutional monarchy which became the model for post Napoleonic Europe after the Vienna Council in 1815 shows that. The British Islands as a whole resisted the subsequent republican trend in Europe, with the unfortunate result that our democratic structure and methodologies cannot now be fully appreciated by Continental lawyers.

Has that constitutional fundamental been subject to such sclerosis to have ossified her Majesty's Subjects within the United Kingdom?

Even Jack Straw admitted that he had to sit as a member of the Privy Council in issues relating to the Dependencies. The closer one gets to the real power and therefore the responsibility of its correct exercise, the closer one gets to the palatable or unpalatable political reality and truth of the matter. It is not a servile one.  By way of comparison with our immediate neighbour, the French State in its acquired supremacy will not take an individual citizen of subjects's rights into consideration and will override these with the supposed combined power of the mass of a presumed democratic pacte. The right of judicial review of administrative action and appeal is so limited as to be laughable. "They seek it here, they seek it there...." Napoleon III sent Commissioners to Normandy to research the local foreshore customs. Why? To subsequently repeal these to stem the the budgetary leakage to various monasteries and convents in the Cotentin, in order to pay for Haussman's rebuilding of Paris. Those lucrative foreshore rights remained intact and unrepealed in Jersey as Norman feudal rights binding the Crown of which the United Kingdom Government is a subservient,part. Their continuing existence is one of the reasons for the continuing existence of the seat of Norman Law at Caen. Witness also the issues raised by the United Kingdom itself in the  Minquiers and Ecrehos case before the ICJ in 1953.

The laws of the United Kingdom, working under this elusive notion of the Crown have yet to sink to that level of illegal and extra-constitutional expropriation. The tug of war between the Island's authorities and the various Commissions set up by the United Kingdom still function upon the basis of over-assertion of rights and their contradiction by prescriptive feudal rights, going back to the Norman as opposed to English privileges confirmed by King John as applicable in the Channel Islands. The position of the Norse Crown in the Isle of Man is entirely separate, but nonetheless parallel. However Scottish Independence would throw up past history in relation to which part of the Scottish crown territory would gain independence, and which parts of the Scottish Islands would revert to the separate Manx feudal crown title.

I can only professionally genuflect before the learned writings of Jersey advocates Richard Falle and John Keeleher on this issue in Jersey & Guernsey Law Review - June 2010 : THE CUSTOMARY LAW IN RELATION TO THE FORESHORE (2)

"4  Although 1204 is generally considered to be the critical date for King John's loss of Normandy, the fate of the Islands was not settled in that year. John had lost possession of the Duchy. His legal title was in issue and the nature of that title, whether based on inheritance or conquest in 1204, would be relevant to those who held their own land from John and his successor kings. But the struggle for the Islands was not over. Everard and Holt tell us -

"In proceedings before royal justices in Jersey in 1309, sworn evidence was given that:

A certain king of France disinherited the Lord John, formerly King of England, of the Duchy of Normandy and then the King of France on two occasions ejected the said Lord John the King from these islands and occupied them as annexed to the said duchy. And the said Lord John the King with armed force on two occasions reconquered these islands from the said King of France. And from that his said second conquest he and his posterity kings of England have held these islands up to the present."

5  Everard and Holt agree that other evidence supports this narrative-

"King John's representatives were 'ejected' from the Channel Islands by the rival Capetian forces twice, first in 1204 and a second time in 1216. On both occasions, the Plantagenets successfully counter attacked and re-conquered the Islands within a matter of months."

6  In the Assise Rolls of 1309 the representatives of the king would claim that John's title to the Islands was rooted in conquest, a claim which, if true, would have put the men of the Isles and their titles on the same footing as those in England after the Conquest in 1066.[7] But John had not conquered the Islands, just as seven centuries later, the Islanders were not "conquered" by the allied forces in 1945. Some would say rather that in each case they were liberated from an alien oppressor. The men of the Isles certainly never thought of themselves as a conquered people. Indeed, it was not on that basis that John and his son Henry III treated the Islanders in the decades that immediately followed the loss of Normandy. Loyalty was rewarded and secured not by conquest, but by the grant of privileges and the confirmation of customary rights.[8] Perception of those events would, however, later change. We see in the Assise of 1309, an early attempt by English common lawyers to argue that John's "conquest" had interrupted the continuity of custom and thereby, the Islanders' title to their land.

7  We find our contention supported by two important documents which form part of a series of Royal Letters in the early 13th century giving directions to the Warden of the Isles-

(a) In 1226, a "Letter" from Henry III of England[9] directs the Warden Richard de Grey-

"... according to the same franchises and free customs [he] deal with the good subjects of the Lord King in Jersey, Guernsey and the other Islands to which the Lord the King has confided the guardianship; customs which have governed them from the time of the King Henry grandfather of the Lord the King, of King Richard his uncle and of King John his father until the declaration of war etc ...";

(b) On the same day Henry issued a further order[10] to Richard de Grey-

"That according to the Customs of the Isle of Jersey full justice [jurisdiction] be rendered to Enguerand de Furnet on the subject of the wreck of the sea which he is entitled to have on his manor of Rosel ("apud manerium") of which according to his complaint, Geoffroy de Lucy has dispossessed him ..."

This is clear and unambiguous both as to custom and title. Here is a royal direction that the men of the Islands should be allowed to continue to enjoy their ancestral custom and this notwithstanding the transfer of the seat of authority from the Norman Exchequer to the King's Council in England. The Islands would not live according to English Law.[11] John's recovery of the Islands from Philip Augustus would therefore not disturb the basis of Custom and, in particular, title to land. Significantly, we find here no hint of a claim to an original Crown title by conquest. In relation to the particular matter of wreck, the key words in Henry's second letter are "quod secundum consuetudines insule de Geresey plenam justiciam [which according to the Custom of the Island of Jersey, full jurisdiction] quod habere debit apud manerium suum [which he is entitled to have on his manor]". This showed-

(i) that de Furnet was entitled to wreck with jurisdiction ("plenum justiciam") to adjudicate it. The right existed not in virtue of a royal grant, but by Custom; and

(ii) that he would take possession of the wreck "apud manerium" [on the manor] of Rosel; varech was an incident of the fief and exercisable only within the strictly territorial jurisdiction of a Seigneurial court.

8  The direction to the Warden in 1226 was consistent with Custom. In the words of Philippe Le Geyt-

"La Coustume de Normandie en fait un Droit Féodal".[12]

That is to say, it was according to Norman custom a right arising from and attaching to ownership of land.

9  It is significant that Henry III had so early confirmed that Norman Custom would continue to govern the Islands. Everard and Holt state[13]-

"... throughout the 12th century the Law of England was developing its own uniform set of principles, the 'common law' of the Royal Courts. After 1204, it would have been possible for the common law of England to have been extended to apply to the Channel Islands. This did not occur, being neither practical nor desirable. To have replaced the well-known customary law of Normandy with the embryonic common law of England would have caused disruption and uncertainty amongst the Islanders ... Convergence in law with England was not desirable because King John and Henry III after him anticipated that one day Normandy would be restored to Plantagenet rule, in which case the Channel Islands would have resumed their historical status as part of the Duchy of Normandy. It was therefore preferable for their legal system to remain harmonious with that of Normandy. The 'Coûtume de Normandie' remained the law of Jersey ..."

Had the current pretensions of Westminster been justified, even following the Tudors and the Breton, not Norman, Stuarts and the Protectorate, the Act of Union between the Scottish and the English Crown was a purely insular issue on the Mainland following the entire loss of sovereignty over French soil and Calais by Mary Tudor.

That said, in this perpetual legal contest between the different parts of the overall Crown, Westminster, or even the Duchy of Cornwall in matters relating to the Jersey foreshore, attempts to pull the ribbon indicating the mid point of the relationship back over the line to its neo-feudal advantage; whilst the Crown Dependencies respond with the pull anchored in time that the rights retained by them are by now beyond the reach of any claim by a Republicanised suzerain, on the basis of the prescription of any challenge to their superior feudal rights. "Submission" is not the order of this particular book of days, as neither team expects it from the other. It is a legal balance of competing feudal rights, nothing more but nothing less. It has been since 1066 and the assizes of King John in 2004 leading to the incessant historical passage of Crown Commissions, now Parliamentary Commissions to the Islands to endeavour to attempt to recover a lost position. As Falle and Keeleher point out, the English common law was still nascent and not in a position to be applied by sovereign force or enacted in the Dependencies. It is at that point that the real meaning of the figurative and legal term dependencies as a set of jewels hanging off a Crown becomes important, These are no more and no less than jewels of if not equal in certain constitutional status to the baubles of Westminster and its republicansing but necessarily neo-feudal pretensions..

Were the Republican element to assert that the feudal relationship no longer existed, it would lose any claim and influence which it had. A consequence of the Minquiers and Ecréhos case of 1953 pleaded before the International Court of Justice at the Hague.  Does Westminster really want to give France a reason to be cheerful and think that it has capitulated to the French claim out of neo-republican spite?  I think not.

The National Union of Miners was very happy to have had the facility of a Manx bank account to elude seizure of ts working capital under an English Court order obtained by the then United Kingdom Government during the Miner's strike; as it was to have used another offshore account to empty it in the nick of time before the Manx Court's freezing order applying the English judgment arrived at the Bank. To quote a certain antipodean wit: "Times were never tougher for an errant knight"; certainly one without a Parliamentary Commission.. Many a true word spoken in joust: with all due reference to what may be pulled out from the sea by a man on horseback with his lance. See Falle and Kelleher for the Gorey details..

Now, what about the position in the recently devolved State of the United Kingdom itself?

A clue may be found in the allocation of judicial powers under the United Kingdom devolution structure, a process started after the now notorious  Killbrandon Report.

To sum it up  the Privy Council,  not the Supreme Court, was given juridical power of last resort over the issues of devolution of Scotland raised by Killbrandon (available from no good online bookstalls). It is an issue relating to Crown Sovereignty and could not be addressed by any other body than the Privy Council.  That is the time prescribed  and time enforced function of the Privy Council. However that was modified by the 2005 legislation which renderedthe final Court of appeal for Devolution Case, the Supreme Court. Whether that is sufficient to remove the Judicial Committee of the Privy Council's position as final arbiter in matter pertaining to the "Crowns in Right" in general, including the Scottish Crown in relation to the EU, is another matter.  In my view it did not remove that jurisdiction which is by its nature a general and fundamental one.

Members of the Supreme Court also sit  (with occasional members from other Commonwealth jurisdictions) in the Judicial Committee of the Privy Council, with jurisdiction over issues arsing from the relationship of Commonwealth States to the Crown in Right to which they are voluntarily subject. That is an entrustment.

Is the only manner in which any rebellious foreign subjects or possessions could be brought to order would be by the use of feodalised force to recover them?  Such a reaction would be archaïc. The fact is that the system of Crowns in Right is a legal convention which enables jurisdictional consistency through the constitutional continuation of the rule of law. The law's development in territories and States who have acheived independence is assured in that it is retained not discarded with the safeguard of the appeal system which went with those. The Judicial Committee of the Privy Council assures that rôle with a degree of historical elegance that passes largely ujnnoticed.

That is the Crown in Right or Crown en droit under whose ultimate sovereignty the Privy Council as a judicial body can and continues to operate.

The Crown en Droit grants the Privy Council its status as the ultimate (third degree) court of appeal for Jersey, Guernsey and the Isle of Man, as well as the prior ultimate court of appeal for points of law relating to so-called "devolution" issues (ie the constitutional competence of the devolved governments of Scotland,

It is going to be very entertaining to watch the convoluted attempts by the republican extremes of the political scene to avoid becoming entangled with what is essentially a set of feodal principles of relative power in their plaints as to the Rule of Law being applied.

It is indeed Law, but a law seasoned with the paradox of relative, not absolutist legal power which renders it independent of individuals and powerful.

That is the essence also of the various and different property laws in force in these British islands which the Republican sympathisers will have either to face down or compromise at some point.

That law goes to our national identities. It is, in the last analysis, the reason why the English and now Scottish trust as a concept of property law draws its legal and equitable being. Without the Crown in Right, as opposed to Henry VIII or later republican elements, the question of the enforcement of a trust or an executorship, or even  a guardianship and the management of an estate of an individual struck with an incapacity  by the Court of Conscience would not exist.  That fact that the trust recovered from the massive civilian assault on it by those educated at the  Regis seats of Roman law at Durham, Manchester and Oxford, in no order of merit,  is a sign that it is useful in matters of property law.

It is also the reason why our island's reasoning should not be "Monteskewed" by continental republican lawyers who will never be able to grasp the subtlety of this constitutional umbrella under whose protection  as to property rights and rights of the individual subject, every British subject has been raised.  If you wish to be governed by laws emanating from German influence which itself recognises the proprietary rights arising  at international law to take and appropriate property by force belonging to another, then be overrun by a modern day Genghis Khan and capitulate.

That is our "Rule of Law" to which everyone makes reference, albeit sometimes irreverently. That is also the advantage of that "demn'd elusive Pimpernel".

So to my Republican friends at the Bar. Keep on taking the feudal "prescription" of beyond living memory, in the time honoured manner. It is not poisonous: even hemlock is not fatal if taken daily in small doses.