Jersey Unreported Judgments

You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Larsen and Ors -v- Volaw Trust and Ors [2016] JCA 137 (15 August 2016)
URL: http://www.bailii.org/je/cases/UR/2016/2016_137.html
Cite as: [2016] JCA 137

[New search] [Help]

Appeal relating to Taxation (Exchange of Information with Third Countries)(Jersey) Regulation 2008.

[2016]JCA137

Court of Appeal

15 August 2016

Before :		John Martin, QC, President; James William McNeill QC; Nigel Pleming QC.
Between	Berge Gerdt Larsen		Applicant
And	(1) The Comptroller of Taxes (2) The States of Jersey		Respondents
Between	Volaw Trust & Corporate Services Limited and its directors and other officers North East Oil Limited and its directors and other officers Larsen Oil and Gas Drilling Limited and its directors and other officers Network Drilling Limited and its directors and other officers Independent Oilfield Rentals IOR Limited and its directors and other officers Petrolia Drilling Limited and its directors and other officers OPS Personnel Services Limited and its directors and other officers		Applicants
And	(1) The Comptroller of Taxes (2) The States of Jersey		Respondents

Advocate J. Harvey-Hills for Berge Gerdt Larsen.

Advocate A. D. Hoy for Volaw Trust & Corporate Service Limited; North East Oil Limited; Larsen Oil and Gas Drilling Limited; Network Drilling Limited; Independent Oilfields Rentals IOR Limited; Petrolia Drilling Limited and OPS Personnel Services Limited, and the directors and other officers of each.

Advocate H. Sharp QC for the Comptroller of Taxes and States of Jersey.

judgment

pleming ja:

Introduction

1. This is the judgment of the Court, to which all members have contributed. Where necessary to refer to the Applicants by name we will use "Mr Larsen" and "Volaw Trust & Others".

2. On 27th November 2015 (Larsen and Volaw-v-Comptroller of Taxes and States of Jersey [2015] JRC 244) the Royal Court (Commissioner the Hon. Michael Beloff QC) dismissed applications for judicial review challenging notices issued by the Comptroller of Taxes ("the Comptroller'') to Volaw Trust requiring the provision of documentation for onward transmission to a foreign tax authority pursuant to the provisions of the Taxation (Exchange of Information with Third Countries) Regulations 2008 as amended in 2013 ("the 2008 Regulations as amended'') made under the Taxation (Implementation) (Jersey) Law 2004 ("the 2004 Law'') Article 2. On the same date, the Commissioner refused permission to apply for judicial review in related proceedings (Volaw Trust & Others v HM Attorney General) in which the service of a notice under the Investigation of Fraud (Jersey) Law 1991 was also challenged.

3. On 4th December 2015, Volaw Trust & Others issued a notice of appeal under Rule 6(3) of the Court of Appeal (Civil) (Judicial Review) Rules 2000 against the Royal Court's decision. On 10th December 2015 Mr Larsen issued a similar notice of appeal against the Royal Court's decision. Finally, and also on 4th December 2015, Volaw Trust & Others issued a notice of appeal under Rule 4(3) of the Court of Appeal (Civil) (Judicial Review) Rules 2000 against the Royal Court's refusal to grant permission to apply for judicial review in relation to the Investigation of Fraud (Jersey ) Law 1991. That notice of appeal is addressed in a separate judgment.

4. The notices of appeal challenge all aspects of Commissioner Beloff's decision. We are concerned only with the contention that Regulation 14A of the 2008 Regulations as amended unlawfully removed the pre-existing right of appeal to this court. The Applicants' submissions were made to the court by Advocate Harvey-Hills (representing Mr Larsen), and adopted by Advocate Hoy (representing Volaw Trust & others).

5. On 27th July 2016 we announced our decision that this court has no jurisdiction to hear the substantive appeal, as the appeal route is only to the Privy Council. These are the reasons for that decision.

The notices

6. There are agreements between Jersey and many other countries relating to the exchange of tax information - Tax Information Exchange Agreements ("TIEAs"). The need to consider whether notices were required was triggered by a request from the Tax Authority of Norway ("NTA"), the competent authority of a third country within Regulation 1A of the 2008 Regulations as amended. There is a TIEA between Jersey and Norway, the J/N TIEA.

7. The request was made on 27th August 2014. The Comptroller (the "competent authority" in Jersey) decided to respond to the request and duly issued 9 TIEA notices to Volaw Trust under Regulation 3 as a third party. The notices were issued on 21st October 2014, requiring the provision of the specified information within 30 days. The notices were the subject of challenge by both Volaw Trust and by Mr Larsen in applications to apply for judicial review. A number of grounds were raised, including a challenge to the lawfulness of the amendments made to the 2008 Regulations.

8. Mr Larsen included in his application a request for a declaration "that a right of appeal from a judicial review of a notice issued under the Regulations lies to the Court of Appeal".

The challenge and the statutory framework

9. The Regulations provide a restricted or limited form of judicial review to allow for such challenges, including the imposition of abbreviated time limits together with some restrictions on the grounds to be relied on. Regulation 14A creates a right of appeal direct to the Privy Council from the decision of the Royal Court, but only with the leave of the Privy Council. The meaning and effect of Regulation 14A is at the heart of the application to this court, and it (preceded by Regulation 14) is here set out in full. Further provisions of the 2008 Regulations as amended are reproduced in paragraph 12 of the Royal Court's judgment:-

"14 Judicial review: limitations

(1) Despite any Rule made to the contrary under the Royal Court (Jersey) Law 1948, an application for leave to apply for judicial review may not be made -

(a) by a taxpayer, against a requirement made of that taxpayer under Regulation 2, later than 14 days after the requirement arose under Regulation 2;

(b) by a person, against a requirement made of that person in a third party notice, later than 14 days after the third party notice was given to that person under Regulation 3; or

(c) by a taxpayer, against a requirement made of a third party in respect of that taxpayer, later than 14 days after the copy of the third party notice was given to that taxpayer under Regulation 3.

(2) An application for judicial review may not be made on any of the following grounds -

(a) that the competent authority for Jersey has not provided the third party notice to a taxpayer within the time limits specified in Regulation 3(4);

(b) that the competent authority for Jersey has not provided the third party notice to the taxpayer on a ground mentioned in Regulation 3(5);

(c) that the competent authority for Jersey has prohibited a third party from disclosing the third party notice to the taxpayer, or any information relating to the notice to the taxpayer on a ground mentioned in Regulation 3(5); or

(d) that the competent authority for Jersey has required tax information to be authenticated in a manner that is not required for the purposes of Regulation 10B(3).

(3) Despite any application for leave to apply for judicial review being made -

(a) a taxpayer or a third party shall provide the competent authority for Jersey the information requested in the notice served under Regulation 2 or 3, as the case may be, within the time limits specified in the notice; but

(b) the competent authority for Jersey shall not provide to the competent authority for the third country the tax information obtained under these Regulations unless -

(i) the application for leave to apply for judicial review or any subsequent application for judicial review is dismissed;

(ii) the application for leave to apply for judicial review or any subsequent application for judicial review is withdrawn or discontinued; or

(iii) The competent authority for Jersey is permitted to do so by the Royal Court.

(4) In all other respects the Royal Court shall apply the principles applicable on an application for judicial review.

14A Further appeal to the Privy Council

(1) An appeal lies to the Privy Council from a decision of the Royal Court on a judicial review to which Regulation 14 applies.

(2) An appeal under this Regulation lies at the instance of -

(a) a taxpayer, against a requirement made of that taxpayer under Regulation 2;

(b) a person, against a requirement made of that person in a third party notice;

(d) the competent authority for Jersey.

(3) An appeal under this Regulation lies only with the leave of the Privy Council.

(4) An application to the Privy Council for leave to appeal under this Regulation against a decision shall be made before the end of the period of 14 days commencing on the day on which the Royal Court makes its decision.

(5) If leave to appeal under this Regulation is granted, the appeal shall be brought before the end of the period of 14 days commencing on the day on which leave is granted.

(6) If paragraph (5) is not complied with -

(a) the appeal shall be taken to have been brought; and

(b) the appeal shall be taken to have been dismissed by the Privy Council immediately after the end of the period specified in that paragraph.

(7) For the purpose of paragraph (6)(b) -

(a) Any power of a court to extend the period permitted for giving notice of appeal; and

(b) Any power of a court to grant leave to take a step out of time,

shall be disregarded.

(8) The Privy Council may allow or dismiss the appeal."

10. It is common ground, and in any event clear and obvious from this wording, that the legislative intention was to create an appeal direct to the Privy Council, thereby displacing the Court of Appeal: see, particularly, Reg. 14A(4).

11. Regulation 14 of the 2008 Regulations, as promulgated before the 2013 amendments, created a right of appeal to the Royal Court as follows:-

"14 Appeals

(1) The following persons have a right of appeal to the Royal Court under these Regulations -

(a) a taxpayer, against a requirement made of that taxpayer under Regulation 2(1);

(b) a person, against a requirement made of that person under Regulation 3(2);

(2) An appeal under this Article shall be brought within 21 days after the appellant is given notice in writing of the requirement to which the appeal relates, or within such further time as the Royal Court may allow.

(3) The effect of the requirement to which the appeal relates shall be stayed pending its determination, unless the Royal Court orders otherwise.

(4) On hearing the appeal, the Royal Court may confirm, vary or set aside the requirement to which the appeal relates, and may make such order as to the costs of the appeal as it thinks fit."

12. As set out above, the 2013 amendments replaced the right of appeal with a modified, limited, right of access to judicial review. As explained by the Commissioner, at paragraph 21 of his judgment, the need for change arose from concerns as to delay:-

"In my view it is clear from the documents disclosed by the Respondents (Proposition P.132/2013 - a Report on the draft 2013 Amendments ('the Report') and the Hansard material) that the reason for the 2013 amendment to the 2008 regulations was to reduce the delay in responding to a request under a TIEA; and to achieve this by abbreviating time limits and so reducing the routes of challenge, exploited indeed by Mr Larsen in Larsen 1 and others ("the first reason"), as well as to bring Jersey legislation into broader alignment with that of other States involved in the same exercise ("the second reason"). Avoidance of delay in the effective exchange of information by use of rights and safeguards provided by the States which are parties to the J/NTIEA is one of the J/NTIEA's objectives (Article 1). There had already been in pursuit of the same objective an amendment to the 2008 Regulations in 2012 to respond to the Peer review report of the Global Forum on transparency of Information for Tax Purposes which recommended that 'Jersey should amend its domestic legislation to remove the identified impediments to the effective access to relevant information'."

13. The Report referred to in that paragraph records a concern that delays in responding to requests for information was a cause of Jersey being included in the French list of "non-co-operative jurisdictions", and that "the primary purpose of the amendment is to limit the statutory scope for appeal".

14. Mr Larsen and Volaw Trust & Others pursued their right to apply for a judicial review. The Royal Court addressed all the grounds raised in a detailed judgment. The same grounds of complaint have been raised on appeal, in the Grounds of Appeal to this court and, in materially identical terms, in the Application for Permission to Appeal to the Privy Council. It is unnecessary for this court to address the grounds which challenge the lawfulness of the decision to issue the notices, and which challenge the overall lawfulness of the 2008 Regulations as amended. We are only concerned with the jurisdiction question - does the Court of Appeal have the jurisdiction to entertain the appeal.

15. The key words for consideration are in Regulation14A:-

"(1) An appeal lies to the Privy Council from a decision of the Royal Court on a judicial review to which Regulation 14 applies."

We were encouraged to focus only on the words "to which Regulation 14 applies", so that the argument could shift to challenges to the lawfulness of Regulation 14, but the central question is whether or not there has been "a decision of the Royal Court on a judicial review to which Regulation 14 applies". Put that way it is clear and obvious that (1) there has been a decision of the Royal Court, and (2) that decision was on a judicial review to which Regulation 14 applies.

16. The Applicants' contention is that the combined effect of Regulations 14 and 14A is that the States have excluded "the fundamental right of meaningful access to the Court, to natural justice and to freedom from arbitrary state interference".

17. The complaint, when cleared of some of the clutter, was that there was no judicial review at all to which Regulation 14 applied because Regulation 14 was void/a dead letter as it fell outside the rule-making power in the 2004 Law, and, therefore, the judicial review had in fact and in law been made under part 16 of the Royal Court Rules 2004, so that there was an untouched right to apply for leave to appeal under the Court of Appeal (Civil) (Judicial Review) Rules 2000.

18. The argument was put in a number of ways in the written contentions and oral submissions presented by Advocate Harvey-Hills, but it can be reduced to two core propositions:-

(i) As a matter of purposive construction, and applying the principle of legality, Regulation 14 is ultra vires the rule-making power, in that it impermissibly interferes with fundamental human rights - the common law, or Article 6 ECHR, right of access to the court;

(ii) Linked to (i), but in any event, the strict time limits in Regulation 14 offend Article 8(3) of the Human Rights Law 2000, and the time limits in Regulation 14A offend the times prescribed by the Privy Council.

19. As noted above, the rule-making power is in Article 2 of the 2004 Law (with emphasis added):-

"2 Power to implement

(1) The States may by Regulations make such provision as appears to them to be necessary or expedient for the purposes of-

(a) implementing an approved agreement or approved obligation; and

(b) dealing with matters arising out of or related to such an agreement or obligation.

(2) Regulations made under paragraph (1) may -

(a) amend any other enactment; and

(b) make any other provision, of any extent, as might be made by a Law passed by the States.

(3) Without prejudice to the generality of paragraphs (1) and (2), Regulations made under paragraph (1) may contain such incidental, supplemental, transitional and saving provisions as the States may consider expedient."

20. The "approved agreement" and the "approved obligation" referred to in Article 2(1) are defined in Article 1 as "an agreement regarding or relating to taxation which the States have authorized to be signed on their behalf with the government of another country or territory" and as "an obligation regarding or relating to taxation which the States have authorized to be signed or assented to on their behalf".

21. "Enactment" in Article 2(2) is to be interpreted under Article 1(1) of the Interpretation (Jersey) Law 1954, as meaning "any provision of any Law passed by the States and confirmed by Her Majesty in Council and any provision of any regulations, Order, rules, bye-laws, scheme or other instrument passed or made in Jersey under the authority of any Order in Council or under any such Law as aforesaid". It follows that Article 2(2) reserved to the States, when making regulations, full legislative powers.

22. We doubt whether in this case applying a purposive approach to the interpretation of Article 2 adds anything of significance to the principle of legality, that ambiguous words or general words are insufficient to override fundamental human rights. See R v Secretary of State ex p Simms [2000] 2 AC 115, Lord Hoffman at p.131E-F:-

"But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express words or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.''

To similar effect, from many authorities, see Lord Browne-Wilkinson in R v Secretary of State of the Home Department, ex parte Pierson [1998] AC 539, Lord Hoffman in R (Morgan Grenfell Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563, at paragraph 8, and Lord Hope of Craighead in Ahmed v HM Treasury [2010] 2 AC 534.

23. The 2004 Law enables the States to pass Regulations that appear to them to be "necessary or expedient" for the purposes of implementing a TIEA as well as "dealing with matters arising out of or related to such an agreement or obligation". As the Commissioner correctly noted, the criteria of necessity or expediency are alternatives. In a different statutory context (section 44(3) of the Terrorism Act 2000), but nevertheless on point, see R (Gillan and another) v Commission of Police of the Metropolis [2006] 2 AC 307, where Lord Bingham of Cornhill at paragraph 44 (after referring to the principle of legality and ex parte Simms) stated:-

"'Expedient' has a meaning quite distinct from 'necessary'. Parliament chose the first word ... not the second. There is no warrant for treating Parliament as having meant something which it did not say."

It does not follow that "expedient" should be given a meaning wider than the context requires. It was submitted that the fact that the 2008 Regulations as amended might be described as necessary or expedient "is not a sufficient answer", relying on Jersey Fishermen's Association Ltd v States of Guernsey [2007-2008] GLR 36, Lord Mance at paragraph 40. We do not see any relevance in that decision for present purposes, the question there being whether or not a 1994 Law was intended, notwithstanding its wide language, to authorise an ordinance having extra-territorial effect.

24. "Expedient" has also been held to create a somewhat lower hurdle than "necessary" (Ahmed, Lord Hope at para 47). At paragraph 45 Lord Hope stated:-

"If the rule of law is to mean anything, decisions as to what is necessary or expedient in this context cannot be left to the uncontrolled judgment of the executive."

25. The 2004 Law enabled the States by such regulations to amend enactments (which, pursuant to the Interpretation (Jersey) Law 1954, Article 1(1) included both primary and secondary legislation) or to make such other provision as would ordinarily be made by primary legislation. As the extract from Hansard reveals, the States themselves considered, voted on and accordingly approved the Regulations. There was no abdication of legislative powers to the executive, and no "uncontrolled judgment" of the executive. The Applicants appeared to contend in their submissions that the detailed consideration of the amendment by the States is irrelevant, relying on AXA General insurance v HM Advocate [2012] A C 868, particularly Lord Reed at paragraphs 152 and 153. In those paragraphs his Lordship, referring to R v Secretary of State for the Home Department, ex parte Pierson [1998] AC 539, HM Advocate v R [2004] 1 AC 462, and Robinson v Secretary of State for Northern Ireland [2002] NI 390, held (as is not in dispute) that Parliament cannot override fundamental rights or the rule of law by general or ambiguous words, and cannot confer on another body, by general words, the power to do so. So, for example, where the Lord Chancellor has the power to prescribe court fees he cannot set those fees at such a level "as to preclude access to the courts by would-be litigants" (Pierson). Similarly, in the context of the creation of the Scottish Parliament under the Scotland Act 1998, the UK Parliament "cannot be taken to have intended to establish a body which was free to abrogate fundamental rights or to violate the rule of law" (Lord Reed at paragraph 153).

26. It seems to us clear that the States, exercising the powers granted under section 2 of the 2004 Law, is able (and was intended to be able) to create and amend regulations which (1) establish a mechanism for enforcement of requests for information made by notices, and (2) create a system of appeals (the 2008 Regulations) or access to judicial review and an appeal (the 2008 Regulations as amended) to enable notices to be challenged, and for challenges to be made to the imposition of any sanction or penalty for non-compliance. It does not follow from the principle of legality or from consideration of fundamental rights that, when creating the system of appeal/access to judicial review, the States must reproduce the pre-existing time limits for judicial review, or a 3 tier system of challenge and appeal, or (for example) allow a full merits challenge rather than restrict the grounds or limit the right of appeal to points of law. Adapting the words of Lord Hope in Ahmed (at paragraph 76, when considering the right to peaceful enjoyment of possessions), some interference with fundamental rights must have been foreseen by the framers of the 2004 Law. Lord Hope continues:-

"But there must come a point when the intrusion upon the right to enjoyment of one's property is so great, so overwhelming and so timeless that the absence of any effective means of challenging it means that this can only be brought about under the express authority of Parliament."

27. Applying that approach, and recognising that the States have expressly approved the 2008 Regulations as amended in 2013, does the combined effect of Regulations 14 and 14A provide an "effective means of challenging" the notices, even if there are limitations on the ability to apply for a judicial review? Our conclusion is that it does.

28. Although it has been difficult to separate out from the very lengthy Written Contentions the precise criticisms of Regulations 14 and 14A, they seem to be (1) that the 14 day time limit in Regulation 14(1) is draconian, and therefore unlawful, (2) that the exclusion of four identified grounds in Regulation 14(2) ousts the jurisdiction of the Royal Court, and is unlawful, and (3) that the creation of a direct line of appeal to the Privy Council (thereby removing a right to apply for leave to appeal to this court) is unlawful. In the course of oral submissions, there was a tentative complaint that the 14 day period in Regulation 14A was also draconian, but this was not pressed, perhaps in light of the fact that where leave to appeal to this court is not granted by the court below, an application for leave to appeal must be made within 7 days from the date on which the order of the court below was made (Court of Appeal (Civil) (Judicial Review) Rules 2000, rule 4(5)).

29. We do not accept that the imposition of a tight period of time for initiating a challenge (here 14 days) creates an obstacle to access to the courts, or is such as to preclude access to the courts. These Applicants were able to meet that timetable, and, as the Commissioner observed, "ought to be able, if sound case for challenge they have, to institute proceedings within 14 days". This is a long way from the Fast Track Rules considered and found wanting in Lord Chancellor v Detention Action [2015] EWCA Civ 840, because they did not "strike the correct balance between (i) speed and efficiency and (ii) fairness and justice" in part because notice of appeal had to be given "not later than 2 working days after the day on which the notice of the refusal decision is given". In passing, it is to be noted that in that case there was recognition that it was "well established that the prompt and effective determination of asylum claims is in the public interest and a legitimate government policy objective". We can well understand that promptness, and the reduction of delay, in relation to TIEA notices is in the public interest in Jersey.

30. Advocate Harvey-Hills referred to his experience (outside the facts of this case) that some recipients of notices were not able to respond and seek a judicial review within the 14 day period. If that is the case, then there may be an evidence-based argument for the time limits to be extended, or for a power to extend the time to be introduced by further amendment to the Regulations. If a particular recipient of a notice can demonstrate that in fact there has been a denial of access to the courts, and in any event, there may be an argument for the courts considering whether or not fundamental rights (and the exercise of judicial power under Article 4(1) of the Human Rights Law 2000) requires the reading into the legislation of a power to extend - see Ghaidan v Mendoza [2004] 2 AC 557, and Lord Philips in Ahmed at paragraph 122. Given that the issue before us is as to whether or not there ought to be a right of appeal to this court, it is unnecessary for us to consider such an addition to Regulation 14(1).

31. We are not impressed by the argument that Regulation 14(2) ousts the jurisdiction of the courts by the restriction to four entirely technical grounds, for example, the 7 day period for the competent authority to send to the taxpayer a copy of the third party notice (Regulation 14(2)(a)). It is to be borne in mind that "in all other respects the Royal Court shall apply the principles applicable on an application for judicial review". There is, therefore, a specific opportunity to raise all the standard judicial review grounds, unlawfulness (illegality), irrationality/unreasonableness, procedural unfairness, contravention of fundamental human rights, etc.

32. It was also contended, perhaps with less enthusiasm, that Regulation 14(3) "excludes any possibility of a legal challenge to an interference with a person's rights and is accordingly contrary to the rule of law". It does no such thing, and only operates where there has been an application for leave to apply for judicial review. All the provision does is ensure that the information requested is in any event provided, but that the competent authority in Jersey shall not pass on the information to the requesting third country unless the application for leave to apply for judicial review (or the application for judicial review) is dismissed, or withdrawn or discontinued, or there is permission from the Royal Court. This makes eminent good sense, and, in our view - and proceeding on the basis that Regulation 14(1) is otherwise lawful- does not amount to a denial of access to the courts; nor is it an abrogation of the Applicants' Article 6 rights. In any event, the Applicants' contentions in relation to the construction and lawfulness of Regulation 14(2) and (3) can be deployed in the proposed grounds submitted to the Privy Council.

33. A further argument advanced by the Applicants was that there were others, persons not listed in Article 14(1) but with standing to apply for a judicial review, who were in a more advantageous position and, therefore, that there is unlawful discrimination by reason of a breach of Article 14 of the ECHR, read with Article 6 and/or Article 8 - see R (S) v Chief Constable of South Yorkshire [2004] 1 WLR 2196, Lord Steyn at paragraphs 42 and 43.

34. The position was summarised in the decision of the Royal Court by reference to a then applicant, Fiduciana Trust Cyprus Limited (as Trustee of the Merit Trust):-

"65. It is common ground that the 2008 Regulations as amended did not cater for the case of a person such as Fiduciana, which was neither the taxpayer nor the recipient of a notice ("the two categories") nor indeed of any person outside those two categories who had sufficient interest to apply for judicial review ("other persons with standing"). That being so, it was argued that such a person first retained the ability to apply for judicial review on any of the conventional grounds (i.e. the principles referred to in R 14(4)) irrespective of the exceptions set out in R14(2), second was not subject to the special restrictive time limits applicable to the taxpayer or recipient of a notice (R14(1)) and third, enjoyed the right of appeal to the Court of Appeal and Privy Council in accordance with the ordinary rules for judicial review by reason of R 14(4).

66. It was further argued that, based on the third point, even if no right of appeal to the Court of Appeal arose under Article 6 where procedural rights, including an appeal, are conferred on anyone they should be conferred on a non-discriminatory basis (Podbielski v Poland [2005] ECHR 543 para 62) so that to deny such rights to the two categories while maintaining it for other persons with standing was itself offensive to the formers' Convention rights.

67. I do not for my part accept that the other persons with standing did enjoy all the advantages (other than the second) contended for over the two categories. As to the first the exceptions to the grounds for judicial review provided for in R 14(2) are applicable to anyone who made such an application, and not only to the two categories, the subject of R 14(1). As to the third the 'principles of judicial review' are a proxy for the substantive grounds upon which such an application can be made, and not for the forum where they may be relied upon.

68. In my view it is in any event clear that the omission to make specific reference to other persons of standing in the scheme of the 2008 Regulations as amended was an inadvertent oversight rather than a deliberate decision. There was no dissent from the Bar as to this analysis, discussed during the hearing, nor could anyone suggest any reason why the States should have chosen to confer procedural benefits not on persons in the two categories but rather on other persons with standing."

35. Advocate Sharp submitted for the Respondents that the States intended to introduce one system for any appeal from, or judicial review challenge to, a notice under the 2008 Regulations whether as originally enacted or as amended. The intention was to produce a uniformity of outcome. We accept those submissions and, therefore, that there had been a drafting oversight. When considered against that background, and in that context, it is clear that the three requirements for the correction of inadvertent omission set down in Inco Europe Ltd v First Choice Distribution Ltd [2000] 1 WLR 586, at page 592, are made out:-

"The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words'', albeit with "considerable caution" where it is abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed''.

For a more recent application of the same approach, see Ghany v Attorney General of Trinidad and Tobago [2015] UKPC 12 paras 14-15.

36. In any event, even if the Inco approach is inapplicable, and there is a person who does not receive the notice but has standing to challenge by way of application for judicial review, there appears to be a sound basis, an objective reason, for allowing that person to avoid the strict time limits imposed by Regulation 14(1). That person's situation is not "truly analogous", keeping in mind that "a rigidly formulaic approach is to be avoided" Ghaidan Mendoza, Baroness Hale at para 134. It is unclear whether or not the constraint in Regulation 14(2)(d) would also apply to this other person with standing. The better reading is that it does, but it remains arguable that it (and sub-regulations 14(2)(a), (b) and (c)) apply only to applications for judicial review made by the taxpayer or third party identified in Regulation 14(1). It is unnecessary to decide the point in this application. Whichever way it is read it is not sufficient, in our view, to create a level of discrimination such as to show a breach of Article 14 of the ECHR.

37. So far, we are satisfied that Regulations 14 and 14A do not unlawfully oust the courts' ability to determine disputes relating to the issue of notices under the 2008 Regulations as amended, nor prevent access by affected persons to the court system in Jersey. We do not see Regulations 14 and 14A as ouster provisions at all, but rather the creation of an alternative, but effective, means of challenging the lawfulness/validity of the notices - in which all the usual public law and human rights arguments can be deployed (with the minor restriction on technical grounds imposed by Regulation 14(2)). It is part of a statutory scheme "which allocates jurisdiction" - Farley v Secretary of State for Works and Pensions [2006] 1 WLR 1817, Lord Nicholls at paragraph 18.

38. Further, for the reasons set out above, we do not accept Advocate Harvey-Hills' overarching argument that, as Regulation 14A applies only to appeals to the Privy Council in relation to a judicial review to which Regulation 14 applies, the Court of Appeal retains its jurisdiction where there is a challenge to the legality of the Regulations themselves, or where there are challenges based on a breach of the Convention. This is a non-sequitur, and fails to recognise that the grounds for judicial review of a decision made under the Regulations can include (and here did include) allegations of illegality and breach of fundamental rights. Raising such grounds does not take the judicial review outwith Regulation 14.

39. That leaves for determination the argument that the strict time limits in Regulation 14 offend Article 8(3) of the Human Rights Law 2000, and that the time limits in Regulation 14A offend the times prescribed by the Privy Council. The first point has caused us the most concern, but in the end we have decided that the challenge on this ground must also fail; and it does not in any event lead to the conclusion that this court has jurisdiction in relation to an appeal from the judicial review brought by these Applicants.

40. Article 8(3) of the Human Rights Law allows persons who claim to be victims of allegedly unlawful acts (made unlawful under Article 7(1) or (4)) to bring proceedings against the authority or the States (see 8(1)(a)), or to "rely on the Convention right or rights concerned in any legal proceedings" (see 8(1)(b)). Article 8(3) provides:-

"(3) A person wishing to bring proceedings under paragraph (1)(a) must do so before the end of -

(a) the period of one year beginning with the date on which the act complained of took place; or

(b) such longer period as the court considers equitable having regard to all the circumstances,

unless Rules of Court made by the Royal Court impose a stricter time limit in relation to the procedure in question."

41. The Applicants have brought proceedings against the Comptroller and against the States, relying on alleged breaches of various Convention rights, in particular Articles 6 and 8. The Convention grounds of challenge were made within 14 days, and have been repeated in the Applications for Permission to Appeal to the Privy Council. The provisions of Article 8(3) of the Human Rights Law must have been well known to those who drafted the Regulations in 2008 (when the 21 day appeal timetable was introduced) and amended in 2013 (when the 14 day judicial review time limit was introduced).

42. As we have already observed, there is express power in the 2004 Law, by regulation, to amend any other enactment and to "make any other provision, of any extent, as might be made by a Law passed by the States". Subject to the principle of legality, which we have already discussed, there is power, therefore, to ensure that other enactments are in accord so that all grounds of challenge are contained within the judicial review to be launched within the 14 day time limit. That there was no alternative remedy, but only "judicial review as limited by Regulation 14 of the Regulations", was understood by the Applicants as these were the words used in the original claim form.

43. There are two alternatives. First, consistent with there being a single judicial review system for challenging a notice under the 2008 Regulations as amended, the time limit in Article 8(3) has necessarily been amended so that the period is also 14 days. Second, there has been a drafting error, or an incomplete process of consequential drafting, so that a person affected by a notice, must bring a judicial review within 14 days, unless there are Convention based grounds, when the time limit (just for those grounds) is 1 year "beginning with the date on which the act complained of took place" (and subject to such longer period as the court considers equitable).

44. The first alternative requires, as is stated in Article 8(3) of the Human Rights Law, a Rule of Court made by the Royal Court which "imposes a stricter time limit in relation to the procedure in question". As the Applicants point out, there has not been any express amendment to the Royal Court Rules 2004. Although it is clear that there is power to do so. In his Written Contentions Advocate Sharp suggests that the 2013 amendments to the 2008 Regulations have had the effect of amending the Royal Court Rules by reason of the introductory words in Regulation 14: "Despite any Rule made to the contrary under the Royal Court (Jersey) Law 1948". We are not convinced by this argument. The introductory words merely ensure that contrary judicial review rules are overridden. They do not have the effect of overriding the clear requirements of an enactment such as the Human Rights Law.

45. In the course of his oral submissions Advocate Sharp accepted that, at least in theory, there could be a separate, and later, challenge under the Human Rights Law; but he submitted this would be of little if any practical effect. If there is no timely challenge by an application for leave to apply for judicial review, there is no obligation to hold on to the documents received in compliance with the notice, as the only freezing or suspensive provision is in Regulation 14(3)(b) which, as we have noted, only bites if there has been an application.

46. Albeit with some slight hesitation, our conclusion is that the second alternative is correct and there has been an incomplete drafting process. The Royal Court Rules could have been amended to ensure that a Human Rights challenge in relation to a TIEA notice was made within 14 days rather than one year but they were not. It follows that the Article 8(3) time limits continue to apply allowing a Convention based challenge after 14 days: but by then the documents will either have been received and transmitted to the requesting state, or there will have been a failure to comply within the Regulation 4 time limit for compliance with the notice, with the risk than an offence under Regulation 15 will have been committed.

47. However the possibility of incomplete drafting does not lead to the conclusion that the 2008 Regulations as amended are ultra vires the 2004 Law, or void on the basis that there is an impermissible interference with fundamental human rights. We do not accept that an amendment to the Royal Court Rules to shorten a free-standing challenge based on the Human Rights Law to 14 days would have been an impermissible interference with fundamental rights. But in any event, in this case, speculation as to whether or not other Convention based proceedings could have been commenced does not arise, and there is no reason for concluding that this drafting omission changes the effect of Regulation 14A on this judicial review. As noted at the outset, the key words in 14A are "a decision of the Royal Court on a judicial review to which Regulation 14 applies". There is no doubt, even if other proceedings could have been brought, that the decision of the Royal Court was in relation to judicial reviews, and that the judicial reviews were in relation to (and only in relation to) the requirements covered by Article 14(1). In their Judicial Reviews, the Applicants raised detailed complaints that there had been breaches of their Convention rights. Notwithstanding any failure to amend the time limits in Article 8(3) of the Human Rights Law, the decision of the Royal Court was "on a judicial review to which Regulation 14 applies" and the only appellate route is to the Privy Council.

48. Finally, it is argued that the time limits in Regulation 14A are inconsistent with the provisions of the Judicial Committee Act 1833, and the Judicial Committee (Appellate Jurisdiction) Rules 2009. We see no conflict, and no attempt to overrule the Privy Council time limits. What has happened is that Jersey has placed time restrictions at a Jersey level to enable the authorities here to know at an early stage whether or not an application for leave to appeal has been made, so that the release of the information to the requesting state remains in abeyance until the end of the appeal process, unless the automatic triggers in Regulation 14A(5) apply.

49. The Learned Commissioner addressed this issue as follows:-

"The JCA 1833 itself was an act of the Westminster Parliament as well as a local law "registered in Jersey by the consent of the Insular Authorities'' (Michel v Attorney-General [2010] JCA 018 para 26, see too para 22). (The registration is the procedure vouched for in the Jersey Code of 1771). I cannot accept Advocates Sharp's submission that its reach therefore depends upon the continued consent of those authorities. However R 14A does not remove the right of appeal to the Privy Council; it confirms it and indeed allows the Privy Council itself, not the Jersey Courts, to determine what should be in its docket. There is nothing in this at odds with JCA 1833.or of the Appels a sa Majeste en conseil Order in Council 1893 or the Judicial Committee (Appellate Jurisdiction) Rules 2009 being essentially derivative from or at any rate not enlarging the scope of that initial legislation nor does the principle already alluded to generalia specialibus non derogant prevent the State from exercising its powers under the 2004 Law so to diminish the scope for delay antithetical in itself to the policy underpinning the J/NITEA."

We do not see any error of law in that paragraph. It also is to be borne in mind that the language of Regulation 14A(1) is not new, and Article 52(1) of the Extradition (Jersey) Law 2004 is in almost identical terms. Further, Article 52(6) of the Extradition Law also imposes a 14 day time period for any application to the Privy Council seeking leave to appeal under that Article. This law received the Royal Assent.

50. But even if there is a conflict with the Privy Council time limits, it does not follow that the appeal route is not to the Privy Council or that there is a separate right of appeal to this court.

51. We do not accept the submission that Regulation 14A is unconstitutional or void, or such as to deprive the Privy Council of jurisdiction or, contrary to its clear words, give appellate jurisdiction to this court.

52. For these reasons we dismiss the Notices of Appeal to this court.

53. We will consider written submissions addressing any consequential relief, including costs, to be submitted (if so advised) within 14 days of the date of the handing down of this judgment.

Authorities

Taxation (Exchange of Information with Third Countries) Regulations 2008, as amended.

Taxation (Implementation) (Jersey) Law 2004.

Investigation of Fraud (Jersey) Law 1991.

Larsen and Volaw-v-Comptroller of Taxes and States of Jersey [2015] JRC 244.

Court of Appeal (Civil) (Judicial Review) Rules 2000.

Royal Court Rules 2004.

Human Rights Law 2000.

Interpretation (Jersey) Law 1954.

R v Secretary of State ex p Simms [2000] 2 AC 115.

R v Secretary of State of the Home Department, ex parte Pierson [1998] AC 539.

R (Morgan Grenfell Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563.