Jersey Unreported Judgments

Leave to appeal various decisions of the Royal Court.

[2024]JCA085

Court of Appeal

8 February 2024

Before     :

Sir William Bailhache JA, sitting as a single judge

 

Advocate H. E. Brown for the Applicant.

judgment

the commissioner:

Introduction

1.        This judgment - on the papers without an oral hearing - concerns an application by the Applicant for leave to appeal various decisions of the Royal Court (Commissioner Thompson) in these proceedings in which the Applicant seeks leave to apply for judicial review in respect of certain provisions of the Finance (Budget 2023) (Jersey) Law 2023 ("the Budget Law") and a direction issued by the First Respondent following on from the Budget Law ("the Direction").  In summary, the Budget Law increased stamp duty and land transaction tax ("LTT") on second homes from a range of 0.5% to 10.5%, to a range of 3.5% to 13.5%, depending on the value of the property, for anyone purchasing a property which is not to be occupied as that person's main residence. The Commissioner's judgment is to be found at [2023] JRC 209. That judgment was delivered following a hearing of the Applicant's application for leave which took place on 27 July 2023 following which judgment was reserved. The draft judgment was sent out by the Bailiff's Chambers to the parties in the usual way on 26 October 2023 and the judgment was handed down electronically on 7 November 2023 (the "Substantive Judgment"). The Act of Court recording the orders made by that judgment was dated 7 November 2023, but distributed to the parties on 20 November 2023. The same day, Advocate Brown wrote to Advocate Meiklejohn requesting an extension of time for the purposes of seeking leave to appeal and the application for leave to appeal was filed on 22 November. It was heard on 14 December 2023 when the Commissioner gave his decisions and his reasons for the decisions on that day were delivered on 18 December, four days later.

The facts

2.        The relevant underlying facts are these:

(a)      In 2017, long before the lodging and passage of the Budget Law, the Applicant had agreed, with significant liquidated damages in the event of non-completion on the agreed date, to purchase off-plan two flats or apartments by share purchase in Horizon (East) Limited from the States of Jersey Development Company ("SoJDC"), wholly owned by the States of Jersey.  For reasons which are not material to this judgment, there was a delay in the completion of the development, as a result of which the share sales had not taken place by 31 December 2022 but were expected in January 2023.

(b)      Subsequent to the Applicant's entry into the share purchase agreement, the States Assembly adopted an amendment to the Government Plan for 2022 - 2025 brought forward by the Corporate Services Scrutiny Panel calling upon the Government to introduce legislative changes to charge higher rates of stamp duty on the purchase of properties acquired for any purpose other than to be used as a permanent residence.  This would include buy-to-let properties, second homes and holiday homes. The higher rate would also be applied to relevant transactions subject to LTT and the enveloped property transactions tax.

(c)      The draft Budget Law, which included the proposal for an increase in the LTT and stamp duty on the acquisition of second homes and buy to let properties, was lodged at the States Greffe on 31 October 2022 with the earliest date for debate set for 13 December 2022. In the report accompanying the lodging of the proposition it was proposed at paragraph [37] that the Budget Law would come into force on 1 January 2023, save for provisions relating to GST registration for offshore retailers and the revised long-term calculation, both of which would come into force on 1 July 2023.

(d)      The Budget Law was in fact debated and approved by the States on 16 December 2022.  The same day, the States adopted, pursuant to Article 12 of the Public Finances (Jersey) Law 2019 (the "PFJL"), an acte opératoire by which the States declared, on the making of the Act, that the taxation draft of the Budget Law had immediate effect as if that draft had been confirmed by His Majesty in Council and registered in the Royal Court on that date. Royal assent was in fact given on 15 February 2023 and sanctioned on 24 February 2023. 

(e)      The result of the adoption of the Law and the late completion of the flats was such that a significantly increased stamp duty and LTT was payable for the completion of the acquisition.

(f)       The Minister (the First Respondent) issued the Direction pursuant to Article 13 of the Tax (Land Transactions) (Jersey) Law 2009 (the "TLTL") by which he conferred a discretion upon the Comptroller of Taxes or the Judicial Greffier if they should consider it just to reduce the higher rate of stamp duty or LTT to the standard rate where "it is demonstrable that the individual who shall occupy the property meets one of several criteria in relation to mental or physical ill health, is left without a place of residence due to disaster or relationship difficulties".

The application for leave for judicial review

3.        The Applicant sought by ex parte notice date 31 March 2023 to "set aside or otherwise review the following decisions":

(a)      The decision to enact the Budget Law without properly considering the effects of doing so with only two weeks' notice, prior to the sanction by Order in Council and registering by the Royal Court of the Budget Law and without any proper transitional provisions to protect the existing rights of taxpayers.

(b)      Further and alternatively the decision to adopt the Budget Law imposing a different rate of tax on purchases on second residential properties without properly considering the effects of doing so with only two weeks' notice, prior to the sanction by Order in Council and registering by the Royal Court of the Budget Law and without any proper transitional provisions to protect the existing rights of taxpayers.

(c)      Further and alternatively, the decision of the Minister to issue the Direction to make the calculation of stamp duty subject to the discretion of the Greffier without making any or any proper provision for the protection of taxpayers existing rights; and

(d)      Further and alternatively the decision not to address the inequities of the Budget Law immediately, and, as promised in the report accompanying the Budget Law, to "aim" to do so before the end of 2023. 

4.        The grounds of the application to set aside the surcharge to LTT and stamp duty were the following:

(a)      The process by which the Respondents sought to introduce and enforce the tax charges were flawed in that (i) the Budget Law had not been enacted; (ii) the process for giving effect to taxation drafts in the Legislation (Jersey) Law 2021 ("LJL") and the PFJL had not been followed; and (iii) it resulted in charges that were not sanctioned by law. Consequently, the tax charges were not sanctioned by law and could not be enforced.

(b)      It was not open to the States Assembly to adopt the Budget Law on the basis that the tax charges would be applied from 1 January 2023 since it could not impose a tax charge without law. The States Assembly is not sovereign and, as such, its decision to adopt the Budget Law is susceptible to the jurisdiction of the Royal Court in judicial review. Since the decision of the States Assembly to seek to adopt a tax charge that would give rise to taxation before the Budget Law was sanctioned and registered was one that it could not make, the Budget Law could not be enforced unless and until it was sanctioned and registered (or the process in the LJL and the PFJL was followed).

(c)      The tax charges were within the discretion of the Second and Third Respondent in the management of taxes and duties both in customary law and in the Stamp Duties and Fees (Jersey) 1998 ("SD") and Taxation (Land Transactions) (Jersey) 2009 ("LTT") Laws.

(d)      The tax charges were so substantively unfair that to enforce them amounted to an abuse of power because of (i) the failures in the process by which they were enacted; (ii) their objectionable retrospectivity; and/or (iii) the unique position which the First Respondent held, in controlling SoJDC and in being able to legislate to change the basis of taxing those transactions. As such, the Second and Third Respondents were compelled to exercise their discretion to relieve the tax charges in the case of the Applicant, and those of the other purchasers in that development.

(e)      The retrospective nature of the tax charges infringed the rule of law, and as such frustrated the legitimate expectation of the purchasers in that development that they would be able to complete their Share Purchase Agreements on the basis that they had originally calculated, subject to the existing taxes at the time of the contract being entered into. As such the Budget Law should be incapable of being enforced retrospectively.

(f)       That (i) the retrospective nature of the charges was an infringement of the purchasers' right to property; and (ii) that infringement was neither justified nor proportionate. In particular,

(g)      The purported justification relied upon was weak and not evidence-based;

(h)      Introducing the provision without the inclusion of transitional provisions was disproportionate to achieve the purported aim since (i) any such transitional provision would in its nature be applicable to a limited number of people; and (ii) combined with the change in policy of the Second Respondent in relation to the charging of SD and LTT on the market value and not the original purchase price the effect of the lack of a transitional provision was amplified; and

(i)        The relative impact on purchasers of the tax charges was such that it was far greater for those buying less expensive property (and therefore likely to be less able to cover the difference between what the Respondents seek to have them pay and what they thought they would have to pay).

(j)        The tax charges were themselves discriminatory on the basis that (i) they discriminated directly between those who already own immovable property and those who did not, and that discrimination was neither justified nor proportionate; and (ii) they discriminate indirectly on the basis of nationality, place of residence and/or race.

5.        It will be seen immediately that as drafted the grounds for the application for leave to commence judicial review include both some technical objections on process and a wider attack on the authority of the States Assembly to pass laws as it did with the Budget Law. Indeed this was confirmed by the Applicant in his affidavit in support of the application where, citing R (Miller) v Secretary of State for Exiting the European Union [2018] AC 61 at [20], he asserted that the English Parliament is sovereign and not the States Assembly, because Royal assent is needed before legislation adopted by the States can come into force. In the alternative, the Applicant asserts that even if not seeking a judicial review of the legislation adopted in the States Assembly, the decision of the Respondent, to impose the tax charges on the basis they had been enacted despite the fact that a) they had not been enacted and b) there was no proper procedure for treating a taxation draft as being in force prior to the registration of the Budget Law, was susceptible to judicial review.

6.        The relief claimed was not in fact for the setting aside of the Budget Law by the court, despite what was said earlier in the application, but rather a series of declarations and mandatory orders the effect of which would render the existing charges unenforceable against the Applicant (and maybe others) and require a series of further political steps to be taken by which the perceived inequities of the Budget Law could be addressed and corrected.

7.        HM Attorney General was convened to the application. It is unclear whether this was done to comply with the Human Rights (Jersey) Law 2000 (the "2000 Law") in case a declaration of incompatibility was sought or whether it was a methodology for convening the States Assembly, as occurred in Barclay No 2 (infra).

The decision below

8.        The Commissioner concluded at [153] and [155] of the Substantive Judgment that leave should be granted for judicial review limited to the following issues:

(a)      The direction of the Minister that stamp duty was to be charged on the basis of the contract price paid for off-plan sales rather than the current market value of the property arguably did not go far enough, because there was a realistic argument that the Minister erred by limiting the concession to those who could establish need.

(b)      It is unclear as to what extent the Minister had considered any other form of grandfathering provisions for those who had contracted to purchase property before the date where the possibility of an increase in stamp duty on second homes was apparent.

9.        On all the other grounds on which leave to commence judicial review was requested, the Commissioner refused leave, and in accordance with Rule 16/2(9) of the Royal Court Rules 2004, it would follow that the Applicant could not rely on any ground where leave has been refused in relation to that ground, and may not seek relief in respect of any judgment, order, decision or proceeding in respect of which leave was refused unless the Court otherwise directs.

10.     On 14 December, insofar as is relevant for this judgment, the Commissioner considered the following issues:

(a)      Whether the Applicant had brought his application for judicial review as permitted by the Substantive Judgment within time.

(b)      If he had not done so, whether time should be extended to permit him to do so.

(c)      Whether the Applicant should be permitted to apply for leave to appeal those parts of the Substantive Judgment refusing leave, or whether the application for leave to appeal was out of time.

(d)      If the application for leave to appeal was out of time, whether time should be extended.

(e)      If the application for leave to appeal was either within time or time was extended, whether leave to appeal should be given.

11.     For the reasons set out in his judgment delivered on 18 December at [2023] JRC 254, the Commissioner:

(a)      Decided that the application for judicial review was filed out of time.

(b)      Extended time for filing the application for judicial review to 23 November, by which date the application had been filed.

(c)      Decided that there was no time limit as such within which an application for leave to appeal had to be filed where the judgment was handed down electronically but, conversely, it was open to the Court to take any late application for leave to appeal into account in determining whether or not to grant leave to appeal.

(d)      Granted the Applicant an extension of time, to the extent that that was necessary, for the purposes of seeking leave to appeal.

(e)      Refused leave to appeal his decision on the justiciability of legislative decisions of the States, relying upon the decisions in Burt v States of Jersey [1996] JLR 1 and Pearce v Minister for Home Affairs [2022] (2) JLR 256. The Commissioner also refused leave to appeal the human rights arguments and the interpretation of Article 1 Protocol 1, not because the threshold - was there an important question of law upon which further argument and a decision of the Court of Appeal would be to the public advantage? -  could not be met, but because the arguments were raised out of time.

(f)       Refused leave to appeal in relation to his findings in respect of retrospectivity and fairness; but

(g)      In relation to Grounds 3 and 4, accepted that the arguments raised did give rise to an important question of law upon which further argument and a decision of the Court of Appeal would be to the public advantage and leave to appeal in respect of those arguments was therefore granted. 

12.     The Applicant has duly sought leave to appeal from a single judge of the Court of Appeal in respect of those parts of the judgment of the Commissioner below where leave to commence judicial review has not been granted and where leave to appeal that decision has been refused. With that rather lengthy introduction, I now turn to the Substantive Judgment refusing leave for judicial review and the arguments in more detail, conscious that the test to be applied in relation to leave to appeal is that set out in Crociani v Crociani [2014] 1 JLR 426, such that the Applicant has to show:

(a)      he has a real prospect of success; or

(b)      there is a question of general principle to be decided for the first time; or

(c)      there is an important question of law upon which further argument and a decision of the Court of Appeal would be to the public advantage.

The grounds for leave for judicial review - Grounds 1 & 2

13.     The first two grounds upon which leave to appeal is sought are dealt with in the paragraphs below.

14.     The first issue is the justiciability of legislative decisions of the States of Jersey. Although it is unclear precisely what the Applicant's position was in the court below, it does seem now that his challenge is to the enactment of the Budget Law and the adoption of it so as to impose a different rate of tax on purchasers of second residential properties without properly considering the effects of doing so etc. (see [3] (a) and (b) above). In that challenge he wishes to contend that His Majesty in Council is supreme within the Jersey constitution and his decisions (to give or withhold Royal assent) cannot be judicially reviewed; and it follows that the States Assembly cannot be supreme since there is a higher and supreme body to which the States are subordinate. Accordingly, the argument was made that until such time as His Majesty in Council gave assent to the legislation, it remained open to judicial review. Furthermore, it was, for similar reasons of lack of supremacy, open to the Court to review the States Assembly acting in its legislative capacity. The Applicant's position was that the decision in Burt v The States did not address whether or not decisions made by the States in a legislative capacity could be challenged: and all the Court did in that case was to consider whether the actions of the States in its non-legislative capacity could be considered; with the conclusion that they could.  To the extent that Burt went further, it was obiter and should not be followed.

15.     Accordingly, the Applicant seeks to contend that the Commissioner wrongly held that grounds 1 and 2 of the application for leave to begin judicial review proceedings fall away save in relation to human rights breaches.

16.     As far as I am aware, these arguments have not been the subject of extensive or any debate in the Court of Appeal previously. Surprising as they may seem, because they go to the rule of law and might be thought to contravene basic principle quite apart from the States of Jersey Law 2005 to which the Commissioner referred in his judgment, the constitutional points raised are of significance and in my judgment it would be right that the arguments receive the attention of the Court of Appeal. The arguments also seem to extend to the proposition that the acte opératoire cannot have been effective because it purported to bring the Budget Law into force before His Majesty had assented to it and therefore the Budget Law at all stages before 24 February 2023 was not primary legislation and subject to judicial review on the usual principles. Quite what the effect of that review would be, even if successful, is not clear, given that Royal assent was later given. However, I give leave for the appeal to be brought against the Royal Court's decision on Grounds 1 and 2, and I wish to add a few short reasons why. 

17.     First, as regards the island of Sark, the question whether the Crown's decisions in relation to the grant of Royal assent could be judicially reviewed in the courts of England and Wales was considered in R (On the application of Barclay and Others) v Secretary of State for Justice and Others [2009] UKSC 9 [2010] 1 AC 464 (Barclay No.1), where the Supreme Court was considering a challenge brought by the applicants to the passage of the Reform (Sark) Law 1951. The applicants had presented several petitions opposing the reform proposals, and in March 2008 they asked that the Privy Council withhold approval of the Reform Law as enacted. The Committee for the Affairs of Jersey and Guernsey rejected the petitions and recommended that the Reform Law should receive Royal assent at the next meeting of the Privy Council on 9 April 2008. At [45] of the judgment of the Supreme Court, Lord Collins, with whom the other Justices agreed, said this:

"There is no issue on this appeal about jurisdiction to determine the legality of the decisions of the Committee and the Privy Council. Wyn Williams J held in the administrative court....and the respondents accepted in the Court of Appeal...that to the extent that the Reform Law is in breach of Convention rights, then the appellants are entitled to appropriate relief in these proceedings.  That is because the respondents expressly advised Her Majesty The Queen to approve the Reform Law on the ground that it did not involve any breach of the obligations of the United Kingdom under the Convention.  It will, however, be necessary to revert to the question of jurisdiction because of the appellants' contention that the courts of this country also have jurisdiction to grant relief on the basis that the respondents were acting as public authorities for the purposes of Section 6 of the Human Rights Act 1998 when recommending the Order in Council by which the Reform Law was given Royal assent."

18.     It is a firm constitutional principle in the United Kingdom that the Crown acts on the advice of Ministers. If it is possible, as Barclay (No 1) arguably shows that it is, for an English court to review judicially the advice given by Ministers to the Crown for the purposes of Royal assent to insular legislation, and thus to review judicially the grant of Royal assent based upon that advice, the question arises as to whether the Royal Court of Jersey may also exercise that jurisdiction. This approach by the Supreme Court in Barclay (No.1) followed the decision in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (2) [2008] UKHL 61 [2009] 1 AC 453, where the House of Lords held that the courts of England and Wales did have jurisdiction to rule upon the lawfulness of Orders in Council, made under the Royal prerogative, legislating in respect of a British overseas territory. If that jurisdiction existed in respect of overseas territories, the question would arise whether that would also be so in the case of the Channel  Islands where the relationship with the Crown and the United Kingdom does not stem from colonisation or conquest or treaty but from the holding of the islands within the Duchy of Normandy before the Norman conquest of England in 1066; and also in the circumstances where the ability to legislate by Order in Council in the overseas territories may not be replicated in Jersey and the other Crown Dependencies.

19.     The issue of review of Royal assent to insular legislation was further addressed by the Supreme Court in R (On the Application of Sir David Barclay and Another) v Secretary of State for Justice and the Lord Chancellor and Others [2014] UKSC 54 [2015] 1 AC 276 - Barclay (No.2). As Baroness Hale of Richmond explained in that case, the principal issue on the appeal concerned the role, if any, of the Courts of England and Wales in the legislative process of Sark. The claimants originally applied for an order that the 2010 Reform Law in Sark should be quashed, albeit subsequently modifying that claim to seek only a declaration that the decision of the Committee of the Privy Council which recommended approval of the law was unlawful on the ground that, in certain respects, the law was incompatible with the European Convention on Human Rights. The Administrative Court granted that declaration, and there was a leapfrog appeal to the Supreme Court which allowed the appeal on the principal issue on the basis that although there was jurisdiction in the English courts to review the grant of Royal assent to insular legislation, the better approach would be for that challenge to be brought in the insular courts. The Supreme Court found that that case was not one where it was appropriate for the Administrative Court to have made the declaration and it was set aside. At [38] of her judgment, Baroness Hale said this:

"It is no answer to say that the challenge in this case was not to the legislation itself, but to the advice given to the Privy Council by the Ministry of Justice and the Committee for the affairs of Jersey and Guernsey. If that advice was unlawful, then the decision to approve the legislation was unlawful, and it would in principle have been open to the Court to quash the Order in Council approving it. It will be recalled that this was the relief originally sought by the claimants, not only in their statement of facts and grounds but also in their skeleton argument for the substantive hearing in the administrative court. It was only abandoned at the outset of the hearing. As the administrative court itself pointed out, it would be a 'surprising' outcome if the Courts of England and Wales could quash the final stage in the island's legislative process when the Courts of the Bailiwick must respect the primacy of the legislative process." (emphasis added)

20.     At [58] of her judgment, Baroness Hale said this:

"As a general proposition, to which there may well be exceptions, I would hold that the courts of the United Kingdom do have jurisdiction to review an Order in Council which is made on the advice of the Government of the United Kingdom acting in whole or in part in the interests of the United Kingdom. Hence the Administrative Court did have jurisdiction to entertain this claim. Nevertheless, there are circumstances in which that jurisdiction should not be exercised. This is clearly one such case."

21.     In fact, in this case the Applicant does not seek a judicial review of the grant of Royal assent. That has only been raised as part of the Applicant's argument that prior to the grant of Royal assent the courts could and should engage with the political aspects of the law that was passed. However, I cannot at the moment see how one can address such an argument without addressing the principles on which judicial review is available in relation to primary legislation even though the remedy of actually striking down the legislation is not sought in the prayer for relief, no doubt because by the time the application was launched, Royal assent had in fact been given and the Budget Law had in fact been registered.

22.     The points raised in Grounds 1 and 2 are of significant constitutional importance, and in the light of Barclay Nos 1 and 2, in my judgment they are arguable. The Crociani test is therefore met in respect of them, even though there are a number of questions which would need to be addressed.

23.     On the hearing of the appeal, the court will clearly need to be addressed on the cases I have mentioned and also upon the impact if any of the island's agreement that the United Kingdom commit Jersey to several rights Conventions, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural, Rights, and, importantly, the European Convention on Human Rights, which - including Protocol 1 Article 3 - has been incorporated into domestic law by the 2000 Law. By that provision, the people of Jersey are guaranteed free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature. Islanders do not have, by virtue of their residence in Jersey, any vote in elections to the United Kingdom Parliament. Subject to a residence requirement, they do have such a vote in Jersey in respect of elections to the States Assembly.

24.     As to the asserted power of the Crown to legislate for the island is concerned, it may be relevant to consider the speech of Lord Devlin in BBC v Johns [1965] Ch 32, where he said that " it is three hundred and fifty years and a civil war too late for the Queen's courts to broaden the Royal prerogative."  It may be for consideration as to whether that has any resonance in this island; and indeed whether that principle is reflected in Article 31 of the 2005 Law which requires that before any Order in Council is registered by the Royal Court, (a necessity for the Order to have legislative effect), the court must be satisfied that the Order has been made with the consent of the States and if not must refer the matter to the Chief Minister for him or her to bring the Order before the States and ask for it to be considered.

25.     These and other authorities should be before the court when the appeal is heard. That includes the decision of this court in Imperium Trustees Limited v Jersey Competent Authority [2024] JCA 014, where Matthews JA, on this point giving the judgment of the court, said this:

"It is important to recognise, as I do, that in this exercise I am not carrying out a judicial review of the work of the legislature in a conventional sense on any of the standard grounds, and still less am I reaching any view as to the merits of the legislation from any political perspective. To the extent that I comment upon the work done in the legislature, this is solely for the purpose of assessing whether this material assists us in our consideration of whether the costs rule in the 2018 Law is compatible with Convention rights - an exercise which the States themselves have mandated in enacting the 2000 Law.  "

26.     It may also be that the judgment of Beloff, Commissioner in Syvret v Bailhache [1998] JLR 128 is apposite. At pages 141 to 154, the Commissioner sets out the reasoning for his conclusions, which are based on constitutional principle and summarised at page 154 where he said this:

"(a)     The legislature is the key organ of democratic government. It ought accordingly to enjoy absolute independence from outside interference or control, the better to perform its functions and to enjoy continued respect.

(b)       In particular, appeals to the courts as to whether particular behaviour of a member did or did not merit particular sanction would impair the proper functioning of the chamber by enmeshing it in legal proceedings.

(c)       The judicial and legislative organs of government ought to enjoy and be seen to enjoy independence of each other if they are to command confidence

...."

27.     As criticism is made of the acte opératoire, it is appropriate I add some preliminary comments about it to ensure that they are addressed. First, I note that the adoption of such Actes in relation to taxation drafts has been commonplace for decades. Second, the draft Acte was presaged in the Report accompanying the Budget. Third, the draft Acte was on the Order Paper. Fourth, the process of such Actes is provided for by the PFJL. Fifth, so far as material, Article 2 of the LJL provides:

"(1)     A Law is made -

(a)        by being adopted by the States Assembly;

(b)        by being sanctioned by Order in Council; and

(c)        by being registered in the Royal Court.[1]

(2)       A taxation draft declared by Act of the States to have effect under Article 12(1) of the Public Finances (Jersey) Law 2019 is to be treated as having been made as a Law even though it has not yet completed the steps referred to in paragraph (1)(b) and (c).

Having regard to Burt, the Court of Appeal may need to be addressed on whether the adoption of an acte opératoire is an exercise of the States' legislative powers or their executive or administrative powers.

28.     For my part, I would find it helpful if, quite apart from any other questions the parties considered relevant for our consideration, they addressed on the appeal the following questions:

(i)        whether the Crown in Council has any power to legislate for Jersey under the Royal prerogative without the agreement of the States Assembly.

(ii)       If the agreement of the States Assembly to such an Order in Council is not necessary, whether the Royal Court has jurisdiction in judicial review to strike down the Order in Council, and if so on what grounds.

(iii)      Where the States Assembly has adopted a Law and caused it to be remitted for royal assent, the Royal Court has jurisdiction to review judicially a gift or refusal of a grant to that assent.

(iv)     What the remedy would be in the event that for whatever reason the Crown in Council neither assented to nor refused assent to a Law adopted by the States Assembly.

(v)      Whether legislation which has been passed by the States is susceptible to judicial review in the Royal Court (whether before or after it has been approved by Order in Council) other than in the context of an assessment of its compatibility with the European Convention on Human Rights and, if so, on what grounds.

(vi)     Whether or not, and if so in what circumstances, steps proposing, or preparatory to the enactment of a Law (such as a Ministerial decision to lodge a Projet de Loi ) or a Projet de Loi itself are susceptible to judicial review.

29.     The Court would also welcome submissions as to whether the "enrolled rule" applicable to Acts of Parliament (Edinburgh & Dalkeith Rlwy v. Wauchope (1842) 8 Cl & Fin 710; BRB v. Pickin [1974] AC 765 or some equivalent rule precluding challenges to enacted legislation on procedural grounds is of any relevance in the present context.

30.     In the submissions on these questions, it may be helpful for counsel to address some or all of the cases mentioned above, together with R (Quark Fishing Ltd) v. Secretary of State for Foreign & Commonwealth Affairs [2006] 1 AC 529; Whaley v. Watson 2000 SC 340; Adams v. Scottish Ministers 2003 SC 171, paras 30-32 (the case went on appeal 2004 SC 665, but this point was not revisited; Axa v. Lord Advocate [2011] UKSC ; Keatings v. Advocate General 2021 SC 329, and in doing so address whether, if at all,  the cases involving the Overseas Territories and the devolved governments ought to be viewed differently from cases in Jersey on these points.

Human rights

31.     In his judgment on 18 December, the Commissioner accepted that the human rights arguments under Article 1 Protocol 1 were arguments which could usefully attract the attention of the Court of Appeal, but he resolved not to grant leave to appeal because he considered that the Appellant was too late in bringing forward the application for judicial review. The basis for the Commissioner's conclusion in that respect was that the law came into force on December 16 when the Acte opératoire was adopted by the States, and the three month period ran from then.  By contrast, the Applicant's submission is that, in reliance upon Burkett and Another v Hammersmith and Fulham London Borough Council [2002] UKHL 23, where the House of Lords ruled that the time for a challenge to the grant of planning permission ran from the date of the grant, not from the date of the resolution authorising the grant, that there was no ability to challenge the legislation before 1 January 2023, because no tax could be charged before that date.  Accordingly, the Applicant contends that the application for judicial review, being brought on 30 March 2023, was in time.

32.     At [55] of his judgment of 18 December 2023, the Commissioner said this:

"In relation to the human rights arguments and the interpretation of Article 1 Protocol 1, I accept that the scope of this Article has not been considered by the Court of Appeal previously, and therefore that the threshold for there being an important question of law upon which further argument and a decision of the Court of Appeal would be to the public advantage could be met.  However, the arguments raised under Article 1 Protocol 1 were also raised out of time for the reasons set out at paragraph 146 of the substantive judgment.  In my judgment, the threshold was not met for granting leave to appeal in respect of delay and accordingly leave is refused in respect of the interpretation of Article 1 Protocol 1 because this argument was advanced out of time."

33.     I have many difficulties with this approach.  The first is that I think it is certainly arguable that the reasoning of the House of Lords in Burkett falls to be applied in the present case and that time did not start running for making an application for judicial review until 1 January 2023.  That is particularly so because there is at least an argument to be put that the relevant date in respect of the claims against the Direction, for the purposes of time running, is not January 1 but the date upon which the Minister's directions were given to the Comptroller and to the Judicial Greffier.

34.     Secondly, it appears to me that arguments in relation to human rights might well be asserted in relation to the Minister's direction where leave to commence judicial review proceedings has already been given.  In my judgment it would be convenient to have the entire argument put forward in relation to the lawfulness of the Minister's direction at the same time.

35.     Thirdly, the issue of compatibility is not one which goes away after three months from the date the legislation was passed.  That is a continuing question and to the extent that compatibility falls within the arguments which are to be run, it is also convenient to deal with them at this stage. 

36.     Fourthly, at its worst the application was only two weeks late.

37.     Finally, despite the application being, on his analysis, late, the Commissioner granted leave to bring judicial review proceedings in some limited respects. If the application for leave for judicial review is justified on some grounds despite the lateness of the application, it seems inappropriate to refuse leave to appeal the refusal of the other grounds simply because of that self-same lateness.

38.     Accordingly in my judgment the reasons given by the learned Commissioner for not giving leave to appeal the refusal of leave in respect of the human rights arguments do not appear to me to be convincing and I give leave to appeal the refusal of leave to commence judicial review proceedings on the Article 1 Protocol 1 human rights arguments as part of Grounds 3 and 4.

Retrospectivity and fairness

39.     At [152] of the Substantive Judgment, the Commissioner said this:

"In relation to the argument that the tax was retrospective, I cannot accept this submission.  The tax applied to all transactions completed after the law came into force.  In that sense it was not retrospective.  The event of completion had not occurred and therefore the new tax applied to all completions after 1st January 2023.  Again, therefore, this argument does not meet the requisite threshold."

40.     With respect to the Commissioner, what is not immediately tackled in his judgment is the extent to which the legislation operates unfairly having regard to the fact that it would "bite" upon people who were already contractually bound to a purchase, under penalty, having paid a substantial deposit.  At [153], the Commissioner does indicate that he has concluded that a full hearing as to the scope of the direction issued by the First Respondent would be appropriate.  In that context one could expect the Applicant to be urging the Court to reach the view that although the legislation was not in itself retrospective, it had a retrospective effect as far as the Applicant was concerned because the transaction which he had entered into under penalty was now more expensive than he had contemplated at the time he made the contractual commitment.  Whether that is or is not a fair result, and whether, if it be unfair, it be so unfair that the Minister should have tackled the question under the direction which he gave, seem to me to be matters of argument falling within the scope of what the Commissioner had in mind.  Accordingly, the question of any retrospective effect on those already committed when the lawfulness of the direction is reviewed arises in any event on the leave which has been given and that being so, it may be relevant to the court's powers on judicial review if they extend to this legislation. For that reason, in my view the Applicant should have leave to appeal the refusal of leave to bring judicial review on this ground too.

Windfall

41.     The Applicant seeks leave to argue that the Commissioner erred in saying that the States of Jersey received an unfair windfall from the increases in stamp duty because the SOJDC, wholly owned by the States, had entered a number of off-plan sales in relation to the Horizon development.  The Commissioner found the argument had no merit because SoJDC has its own legal personality. 

42.     It appears to me that while this argument is unlikely to be central to the Court of Appeal's consideration of this appeal, it may be relevant if the Applicant were to succeed on Grounds 1 and 2. In those circumstances, one would have to take the windfall argument and ascertain if it could be applied to the decision of the States Assembly to adopt the Budget Law, or to that of the Minister to issue the Direction, a decision which is already the subject of leave to bring judicial review proceedings.  Accordingly, I give leave to appeal the refusal of leave on this ground too.

Application to reverse the discharge of the Second and Third Respondents

43.     At [156], the Commissioner in his Substantive Judgment discharged the Second and Third Respondents from the proceedings on the grounds that they were not necessary parties in relation to the scope of any direction issued by the First Respondent, as they had made no decision which was available for review.  The Applicant contends that the Commissioner had no power to discharge the Second and Third Respondents from the judicial review proceedings insofar as leave to bring those proceedings had been given.  Equally, he had no power, it is said, to discharge them from any potential appeal against the decisions he had made refusing leave to bring judicial review proceedings.

44.     I note that the Second and Third Respondents were not separately represented, nor indeed do I think that it was or is necessary that they should be.  I can see that many of the arguments in relation to the scope of the direction which the Minister has issued might well be relevant arguments for the Second and Third Respondents to take into consideration to the extent that they have any freestanding discretion in relation to the LTT or stamp duty charges which are to be made.  It is not obvious that any decisions of theirs in relation to these charges have come under review.  At the same time, it does not appear to me that it was for the Commissioner at this stage to discharge the Second and Third Respondents from the proceedings not least because they will be more alert than the Minister to any practical difficulties or consequences which flow from the Direction or any amended direction if it be reviewed. Accordingly, it appears to me to be convenient that they are still named as respondents; although whether that will make any difference to the eventual outcome is moot. 

Further directions

45.     This appeal will come before the Court of Appeal at its sitting in May. In those circumstances I direct that the Applicant file his contentions and supporting documents and upload them to Case Centre by close of business on 19 March and the Respondents file their contentions and supporting documents and upload them to Case Centre by close of business on 3 May, with liberty to apply.

Authorities

Finance (Budget 2023) (Jersey) Law 2023.

Buckley v Minister for Treasury and Resources and Ors [2023] JRC 209.

Government Plan for 2022 - 2025.

Public Finances (Jersey) Law 2019.

Tax (Land Transactions) (Jersey) Law 2009.

Legislation (Jersey) Law 2021.

R (Miller) v Secretary of State for Exiting the European Union [2018] AC 61.

Human Rights (Jersey) Law 2000.

Royal Court Rules 2004.

Buckley v Minister for Treasury and Resources and Ors [2023] JRC 254.

Burt v States of Jersey [1996] JLR 1.

Pearce v Minister for Home Affairs [2022] (2) JLR 256.

Crociani v Crociani [2014] 1 JLR 426.

R (On the application of Barclay and Others) v Secretary of State for Justice and Others [2009] UKSC 9 [2010] 1 AC 464 (Barclay No.1).

R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (2) [2008] UKHL 61 [2009] 1 AC 453.

R (On the Application of Sir David Barclay and Another) v Secretary of State for Justice and the Lord Chancellor and Others [2014] UKSC 54 [2015] 1 AC 276 - Barclay (No.2).

BBC v Johns [1965] Ch 32.

Imperium Trustees Limited v Jersey Competent Authority [2024] JCA 014.

Syvret v Bailhache and Hamon [1998] JLR 128.

European Convention on Human Rights.

Acts of Parliament (Edinburgh & Dalkeith Rlwy v. Wauchope (1842) 8 Cl & Fin 710.

BRB v. Pickin [1974] AC 765.

R (Quark Fishing Ltd) v. Secretary of State for Foreign & Commonwealth Affairs [2006] 1 AC 529.

Whaley v. Watson [2000] SC 340.

Adams v. Scottish Ministers 2003 SC 171

Adams v Scottish Ministers 2004 SC 665. - (the case went on appeal).

Axa v. Lord Advocate [2011] UKSC.

Keatings v. Advocate General [2021] SC 329.

Burkett and Another v Hammersmith and Fulham London Borough Council [2002] UKHL 23.