[2011]JRC047
royal court
(Samedi Division)
3rd March 2011
Before : |
M. C. St. J. Birt, Esq., Bailiff, and Jurats Tibbo and Le Breton. |
IN THE MATTER OF THE TERRORIST ASSET-FREEZING (TEMPORARY PROVISIONS) ACT 2010
A. D. Robinson, Esq., Crown Advocate for the Attorney General.
judgment
the bailiff:
1. On 26th November, 2010, the Court ordered that an Order in Council dated 13th October, 2010, ("the Order in Council") relating to the Act of the United Kingdom Parliament entitled The Terrorist Asset-Freezing (Temporary Provisions) Act 2010 ("the Act") be registered in the Royal Court and published in the usual way. As this is the first occasion upon which the Court has had to consider the effect of Article 31 of the States of Jersey Law 2005 ("the 2005 Law"), the Court indicated that it would give a brief judgment to explain the position. This we now do.
2. There is a background to the passing of the Act by Parliament at Westminster. Under section 1 of the United Nations Act 1946 ("the UN Act"), there is power to make an Order in Council to give effect to any decision of the UN Security Council. Various Orders in Council were made pursuant to that power in order to give effect to certain resolutions of the Security Council in connection with the prevention of the financing of terrorist acts. So far as the Channel Islands are concerned the relevant Order in Council is the Terrorism (United Nations Measures) (Channel Islands) Order 2001 ("the 2001 Order"), which was made with the agreement of the Island and was duly registered at the time by this Court.
3. On 4th February, 2010, the UK Supreme Court quashed the Order in Council which had effect in the UK ("the 2006 Order") on the grounds that it was ultra vires the UN Act. Although the 2001 Order was not before the Supreme Court, the reasoning which led to the quashing of the 2006 Order would have been equally applicable to the 2001 Order and indeed to the equivalent Orders extending to the Isle of Man and the Overseas Territories.
4. In order to protect the position temporarily, the UK Parliament, as a matter of urgency, passed the Act which preserved on a temporary basis the validity of the various Orders in Council made under the UN Act (including the 2001 Order) until 31st December, 2010. This was in order to give time to pass replacement primary legislation. The Act came in to effect in the UK on 9th April, 2010.
5. Section 3(4) of the Act provides:-
"Section 1 and this Section shall extend:-
(a) so far as relating to the Terrorism (United Nations Measures) (Channel Islands) Order 2001 (S.I. 2001/3363), to the Channel Islands, so as to be law respectively in Guernsey and Jersey; ..."
6. By letter dated 10th March, 2010, the Act was sent through the official channel for registration in this Court. A covering letter from the Ministry of Justice included the following passage:-
"Please find enclosed for the attention of the Island Authorities, a formal HMSO copy of the above Act which has been the subject of demi-formal correspondence with the Island Authorities. I enclose the Act so that it may be registered in the Royal Court in Jersey as I understand that this is necessary in order for the Act to apply in Jersey. ..."
7. The Attorney General duly caused the Act to be presented to the Royal Court on 9th April, 2010. The Court was referred to Article 31 of the 2005 Law which is in the following terms:-
"31 Duty to refer certain matters to the States
(1) Where it is proposed -
(a) that any provision of a draft Act of the Parliament of the United Kingdom should apply directly to Jersey; or
(b) that an Order in Council should be made extending to Jersey -
(i) any provision of an Act of the Parliament of the United Kingdom, or
(ii) any Measure, pursuant to the Channel Islands (Church Legislation) Measures 1931 and 1957,
the Chief Minister shall lodge the proposal in order that the States may signify their views on it.
(2) Where, upon transmission of an Act of the Parliament of the United Kingdom containing a provision described in paragraph (1)(a) or of an Order in Council described in paragraph (1)(b) to the Royal Court for registration, it appears to the Royal Court that the States have not signified their agreement to the substance of the provision or Order in Council -
(a) the Royal Court shall refer the provision or Order in Council to the Chief Minister; and
(b) the Chief Minister shall, in accordance with paragraph (1), refer it to the States."
8. The Court was informed that, although the Island Authorities had been consulted on the passage of the Act, there had not been time for the Chief Minister to take the necessary steps to obtain the views of the States, with the consequence that the States had not signified their agreement to the Act. Accordingly, in accordance with Article 31(2)(a) the Royal Court referred the matter to the Chief Minister.
9. The Chief Minister duly referred the matter to the States and on 12th May, 2010, the States approved a proposition signifying its agreement that the Act should have effect in Jersey. Subject to the usual formalities being achieved, the way was now open for registration of the Act in the Royal Court because the requirements of Article 31 had been satisfied.
10. The longstanding practice has been that, where it is intended that an Act of the United Kingdom Parliament should have direct effect in Jersey, it is sent to Jersey for registration under the authority of an Order in Council. In due course such an Order in Council was transmitted and it was that Order in Council which came before the Court for registration on 26th November as described at the beginning of this judgment. The language of the Order in Council is as follows:-
"It is this day ordered by Her Majesty, by and with the advice of Her Privy Council, that printed copies of the Terrorist Asset-Freezing (Temporary Provisions) Act 2010 be transmitted to the Royal Court of the Island of Jersey.
AND, having noted that the States of Jersey have signified pursuant to Article 31 of the States of Jersey Law, 2005 that they agree that sections 1 and 3 of the said Act so far as they relate to the Terrorism (United Nations Measures) (Channel Islands) Order 2001 (SI 2001/3363) should extend to Jersey so as to be law in Jersey, it is hereby accordingly ordered that the said provisions of the Act shall be registered and published in the Island of Jersey, not as being essential to its operation therein but that the inhabitants of the said Island may have notice of the said provisions in the Act having passed and that they are bound thereby.
And the Lieutenant Governor and Commander In Chief for the time being, and also the Bailiff and Jurats of the Royal Court of the Island of Jersey are to give the necessary directions herein as to them may respectively appertain."
11. The form of the Order in Council includes for the first time a specific reference to Article 31 of the 2005 Law and there is also the customary language which suggests that registration and publication in the Island of Jersey is not essential to the operation of the Act in the Island.
12. The effect of Article 31 of the 2005 Law is that, as a matter of Jersey law, the approval of the States is necessary before an Act of the Westminster Parliament can be registered by the Royal Court. The Attorney General addressed briefly the issue of whether an Act can have legal effect in Jersey prior to registration. As he rightly said, this issue does not arise for decision and the Court heard no argument on it. Accordingly we express no view upon it. However, we think it appropriate to touch briefly on the matter in case this is of assistance on any future occasion.
13. The only judicial statement in Jersey as to the effect of not registering an Act of the UK Parliament is to be found in Ex p Bristow (1960) 35 PC 115. In that case Mr Bristow had been arrested in Jersey pursuant to a warrant for his arrest issued by the Registrar of the High Court of Justice (Bankruptcy) in London pursuant to the Bankruptcy Act 1914. Section 123 of that Act ostensibly applied to the Island and provided that a warrant issued under that Act could be enforced in Jersey provided it was endorsed by the Bailiff in the same manner as under the Indictable Offences Act 1948. The warrant had not in fact been endorsed by the Bailiff before being executed. Mr Bristow contended that he had been unlawfully detained as the warrant had no effect in Jersey.
14. The Court gave no reasons for its judgment and it is not clear whether there was any detailed argument. Rather puzzlingly, in the light of the observations referred to at paragraph 15 below, the Court specifically declined to rule on whether Mr Bristow had been unlawfully arrested and detained. On the face of it, this was a surprising decision as, whether or not the 1914 Act applied in Jersey, the arrest and detention of Mr Bristow would appear to have been unlawful. If the Act did not apply, there was no authority for his arrest; if the Act did apply, the required formality of having the warrant backed by the Bailiff had not been complied with.
15. Be that as it may, the Court in passing observed that the British Parliament had the power to legislate for the Island and that there was nothing which prescribed that an Act of Parliament which applied in express terms to the Island could not take effect unless it was registered in the rolls of the Royal Court.
16. We express no opinion on whether, even in 1960, these observations were correct. However, as the Attorney General pointed out, there have been a number of significant developments since then. For example:-
(i) With the approval of Her Majesty in Council, the States has passed Article 31 of the 2005 Law. The effect of this is that the Court may not register a UK Act purporting to have direct effect unless the States has signified its approval. It could be argued that it would be strange if, notwithstanding the enactment of Article 31, an Act of the UK Parliament still had legal effect even though the States had not signified approval and the Court had not registered the Act. It would render Article 31 ineffective despite its clear intent to ensure that the democratic process in Jersey is respected. It might be argued that, when making an Order in Council of the kind the Court is now asked to register, the Crown in Council must be assumed to have intended that such Order would be construed consistently with insular legislation which already has the approval of the Crown in Council.
(ii) Since the decision in Bristow, the European Convention on Human Rights has been incorporated into the domestic law of both the United Kingdom and Jersey. The courts of both jurisdictions must act compatibly with the Convention. Those parts of the Convention which have been incorporated into domestic law include the right to free and fair elections under Article 3 of Protocol 1. One can see an argument that, for an Act of the United Kingdom Parliament, in which the population of Jersey has no representation, to have effect in Jersey without the approval of the States, would be contrary to Article 3.
(iii) The effect of a rule that an Act of the UK Parliament can take effect in Jersey without registration could, for example, lead to Jersey residents unknowingly committing criminal offences because they had acted in breach of legislation passed by a legislature in which they were unrepresented and when they were not aware of the fact that the legislation had been passed because it had not been registered in Jersey. One can see an argument that this too would not be consistent with rights under the Convention.
(iv) It might also be argued that the approval by Her Majesty in Council of the 2005 Law, which includes in its preamble the assertion that Jersey has autonomous capacity in domestic affairs, also signals an assumption that an Act of the Westminster Parliament cannot of itself have legal effect in Jersey prior to registration.
17. We repeat that we have not heard argument on this issue and it did not arise for decision. We say merely that, Bristow is not necessarily to be regarded as a compelling authority in 2011 and the matter remains open for argument on a future occasion.
18. Returning to the Court's decision on 26th November, it was satisfied that the requirements of Article 31 had now been complied with and accordingly ordered registration and publication of the Order in Council.
Authorities
The Terrorist Asset-Freezing (Temporary Provisions) Act 2010.
States of Jersey Law 2005.
United Nations Act 1946.
Terrorism (United Nations Measures) (Channel Islands) Order 2001.
Ex p Bristow (1960) 35 PC 115.
Bankruptcy Act 1914.
Indictable Offences Act 1948.
European Convention on Human Rights.