Jexit – the constitutional consequences for Jersey of Brexit

The Brexit referendum result of 23 June 2016 and the consequent negotiations of the UK’s exit from the EU have the clear potential to compel Jersey into a constitutional clash with the UK.

Jersey, like Guernsey and the Isle of Man, is a Crown Dependency and is not part of the UK but a self-governing jurisdiction with its own constitution legislature and laws. Jersey’s self-governing jurisdiction pre-dates the existence of Parliament. The Crown can legislate for Jersey by Act of Parliament or through Order in Council and is customarily responsible for Jersey’s foreign affairs including EU Treaties.

By Article 355(5) (c) of the Treaty of the European Union and Protocol 3 to the UK’s original Accession Agreement, the Crown Dependencies are part of the EU for the purposes of free movement of goods but not of services, people or capital.  In Jersey,  effect is given to these treaty arrangements by Jersey domestic law, the European Communities (Jersey) Law 1973.  Jersey, therefore, is neither a member state nor associate member of the EU. Under Protocol 3, Jersey is part of the Customs Territory of the Union meaning that there is free movement of industrial and agricultural goods for trade between Jersey and the EU.  Jersey does not contribute to and does not receive anything from the funds of the European Union.  Article 4 of Protocol 3 requires Jersey to supply the same treatment to all natural and legal persons of the Union.

Jersey residents do not enjoy full EU citizenship rights under  Protocol 3 although the vast majority of the population are British citizens by virtue of their parents or grandparents or past residence in the UK.  They are therefore EU citizens with the right to move, settle and work freely within the EU.  The residents  of Crown Dependencies were not entitled to participate in the EU referendum because although they were British citizens they had not been resident in the UK within the last 15 years. The residents of the Crown Dependencies became a disenfranchised cluster of the British population in relation to a Brexit referendum vote that has considerable consequences for fundamental rights of residents of Crown Dependencies.

Article 50 of the Treaty of the European Union provides:

1.  “Any member state may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A member state which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that state, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218 (3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3. The Treaties shall cease to apply to the state in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the member state concerned, unanimously decides to extend  this period.
4. For the purposes of paragraph 2 and 3, the member of the European Council or of the Council representing the withdrawing member state shall not participate in the discussions of the European Council or Council or in decisions concerning it. A qualified majority shall be defined in accordance with Article 238(3) (b) of the Treaty on the functioning of the European Union.
5. If a state which is withdrawn from the Union asks to re-join, its request shall be subject to the procedure referred to in Article 49.”

It is clear that   only the departing member state can  initiate Article 50, and a formal decision must be communicated to the EU to commence the withdrawal process. Once the process has begun by Article  50(3), the treaties will automatically cease to apply to the withdrawing member state after a period of two years or on such other date as maybe agreed.  If no agreement is reached after two years, then the withdrawing state will cease to be part of the EU. Once the Article 50 trigger is pulled, it is an automatic process of withdrawal. On this basis, not only will EU Law cease to operate in the UK but also in the Crown Dependencies including Jersey.

The fundamental rights afforded to Jersey residents under Protocol 3 namely the right to move, settle and work and the single market will be shut down by the operation of Article 50.  This whole process has no requirement to engage Jersey residents in the referendum process or the Jersey Government in any consultation as part of the negotiation envisaged by Article 50. The democracy provisions in  Article 3 of  Protocol 1 of the European Convention  on Human Rights now incorporated in the domestic law of the UK and Jersey require that there be no legislation without representation, yet these rights of Jersey residents stand to be removed by the UK in breach of basic democratic principle.

It is likely that the “constitutional requirement” (mentioned in Article 50(1)) is that the UK Parliament alone, and not the UK Government, can pull the Article 50 trigger for Brexit. It is a fundamental constitutional principle of legality that only Parliament can modify or abrogate domestic rights.  Article 50 inevitably leads to the modification or abrogation of existing statutory rights under UK EU Law and the proper interpretation of the European Communities Act 1972 and the European Union Act 2011 is  that only Parliament can  authorise any amendment or withdrawal from an EU treaty. Doctrines of legality and parliamentary sovereignty require that only primary legislation can abrogate or modify existing domestic rights.  All the indications so far are that  the Article 50 trigger will be pulled by Parliament and not the UK executive.

Jersey has its own constitutional requirements embodied in the States of Jersey Law 2005, Article 31(1) as follows:

            “Where is it proposed –

1. That any provision of a draft Act of the Parliament of the United Kingdom should apply directly to Jersey; or
2. That an order in Council should be made extending to Jersey-
     (i) Any provision of an Act of the Parliament of the United Kingdom …… “the Chief Minister shall lodge the proposal in order that the States may signify their views on it.”
   

The only view that the States of Jersey can legitimately signify when presented with an Act of Parliament pulling the Article 50 trigger is that the Act of Parliament  be rejected. Article 50 (3) makes  withdrawal from the EU automatic once notification of withdrawal is given. The States of Jersey are bound to reject it for two reasons:

(1)  For the failure of democratic process in disenfranchising Jersey residents on the principle of Brexit

(2)  For its removal of the fundamental rights of free movement work and residence in the EU of British Jersey residents, only removable by primary legislation of the States of Jersey and not by the unilateral action of the UK Parliament.  Only the States of Jersey can remove Jersey’s European Community Law of 1973.

There are clear dangers in relying on the Brexit negotiation process to preserve the rights of Jersey residents. Not only is there no guarantee that negotiations would be successful in an automatic process of withdrawal but the interests of the UK in such negotiations are likely to be promoted at the expense of the Crown Dependencies. The remaining EU members may (or are even likely to) seek an erosion or eradication of the status of Crown Dependencies as part of  the agreement on  the terms of Brexit.

This outcome may well direct Jersey into considering independence if its interests are  sidelined in what is set to be a difficult Brexit process.