Jersey Fishermen's Association Ltd and Others v States of Guernsey
| Jurisdiction | UK Non-devolved |
| Judge | Lord Mance |
| Judgment Date | 02 May 2007 |
| Neutral Citation | [2007] UKPC 30 |
| Court | Privy Council |
| Docket Number | Appeal No 62 of 2005 |
| Date | 02 May 2007 |
[2007] UKPC 30
Present at the hearing:-
Lord Scott of Foscote
Lord Phillips of Worth Matravers
Lord Rodger of Earlsferry
Lord Brown of Eaton-under-Heywood
Lord Mance
Privy Council
[Delivered by Lord Mance]
Introduction
The Bailiwick of Guernsey is a dependency of the Crown, part of the original Duchy of Normandy. It is within the British Islands (consisting of the United Kingdom of Great Britain and Northern Ireland, the Channel Isles and the Isle of Man) but not in the United Kingdom, although the United Kingdom represents it internationally. There are statutes of the United Kingdom Parliament which relate to the Bailiwick, and are expressed to apply there directly or upon the making of a subsequent Order in Council or ministerial order, but the role of the United Kingdom Parliament in this respect is potentially controversial, at least in the Bailiwick (cf The Government and Law of Guernsey, D. Ogier, 2005, Chap. 9). The main focus of this appeal is however on legislative and judicial institutions of the Bailiwick which continue to reflect its original status, with Her Majesty acting in each case through her Privy Council. Hence indeed the present appeal to the Board.
It is accepted that Her Majesty in Council could in theory legislate without any initiative from the Bailiwick, but in practice there would be prior consultation with the Bailiwick. The normal legislative process is for the Queen in Council to act on the initiative of the respondent, the States of Deliberation of Guernsey ("the States"), which is the Island's parliamentary assembly now constituted under The Reform (Guernsey) Law, 1948, as subsequently amended. The States approves a projet de loi, which the Bailiff through the Lieutenant-Governor petitions Her Majesty in Council to sanction. The Privy Council acts through a Committee for the Affairs of Guernsey and Jersey, of which the Secretary of State for Constitutional Affairs is a member. His Department may invite the views of other interested departments and parties, and sometimes suggests alterations which may lead to the States reviewing and resubmitting the projet. Once royal sanction is obtained, an Order in Council embodying the projet is transmitted to the Royal Court which has the obligation of entering it on the Island's Register, whereupon it becomes a loi or law.
In the course of history, and on one view with the sanction of an Order in Council dating back to 1568, another "customary" legislative mechanism developed, in which Her Majesty in Council has no involvement. Until 1948 the Royal Court (another emanation of royal authority) had power to make ordinances ( ordonnances). Such ordinances were technically provisional for 12 months (though renewable), and could only be made permanent after approval by the States. Under the 1948 Act "the powers and functions of a legislative nature theretofore exercised by the Royal Court" were (with minor exceptions relating to the defence regulations and the rules of court procedure) vested in and exercisable by the States, and ordinances made were to be permanent, unless expressed to the contrary. The 1948 Act did not attempt to define the scope of the power to make ordinances, which the Board will have to consider. The Board is also concerned on this appeal with another category of ordinance, made as delegated legislation under an enabling power in a loi or law. It is common ground that the vires of both categories of ordinance are susceptible to judicial review, and that any ordinance may be repealed or amended by a later Order in Council or ordinance.
The present appeal
In the present appeal various Jersey and English West Country fishing concerns are the appellants and the States of Deliberation are the respondents. The appeal concerns the vires of The Sea Fish Licensing (Guernsey) Ordinance, 2003, relating to a 12 mile belt of waters adjacent to the Bailiwick. In name an ordinance, its ostensible status was and is as a form of delegated legislation made under the authority of a loi, The European Communities (Implementation) (Bailiwick of Guernsey) Law, 1994 (Order in Council No. III of 1994). The 2003 Ordinance is not confined to the Bailiwick's 3 mile belt of territorial waters, but applies to the whole 12 mile belt adjacent to the Bailiwick. The appellants submit on various grounds that the powers conferred by the 1994 Law did not extend to the making of the 2003 Ordinance. They also challenge the Ordinance both as inconsistent with article 28 of the Treaty establishing the European Community and as founded on incorrect legal advice (the latter a challenge which assumes that such an ordinance may be subject to judicial review on such a ground). In response, and if necessary, the States submit that it was within the States' customary power to make the 2003 Ordinance without the sanction of an Order in Council. They further submit that, even if it was beyond their power to make an Ordinance extending to the whole 12 mile belt, the Ordinance should be allowed to stand in relation to the Bailiwick's 3 mile belt of territorial sea. They join issue on the submissions raised regarding article 28 and incorrect legal advice (with which the Board will deal separately after other issues). The Lieutenant Bailiff (Mr Patrick Talbot QC) on 29 th June 2004 upheld the appellants' contentions, refused severance and declared the whole Ordinance invalid. The Court of Appeal (Mr Richard Southwell QC, Mr Peter Smith QC and Mr David Vaughan QC) on 13 th July 2005 allowed the States' appeal, declared the whole Ordinance valid, and further declared that, had it reached the contrary conclusion, the Ordinance would have been severable so as to be limited to the Bailiwick's 3 mile territorial sea.
The 1994 Law
The 1994 Law provided:
"THE STATES, in pursuance of their Resolution of the 28 th day of May, 1993, have approved the following provisions which, subject to the Sanction of Her Most Excellent Majesty in Council, shall have the force of law in the Bailiwick of Guernsey.
Implementation of Community provisions.
1. The States may by Ordinance make such provision as they may consider necessary or expedient for the purpose of the implementation of any Community provision.
….
Interpretation.
3.(1) In this Law-
"Community provision" means-
(a) any provision contained in or arising under the Community Treaties or any Community instrument ….;
(b) any right, power, liability, obligation, prohibition or restriction created or arising, or any remedy or procedure provided for, by or under the Community Treaties; and
(c) any decision or expression of opinion of the European Court or any court attached thereto under the Community Treaties;
whether or not directly applicable in or binding upon the Bailiwick.
"implementation", in relation to a Community provision, includes the enforcement or enactment of the provision, and the securing of the administration, execution, recognition, exercise or enjoyment of the provision, in or under domestic law. …..
General provisions as to Ordinances.
4. (1) An Ordinance under this Law-
(a) may be amended or repealed by a subsequent Ordinance hereunder;
(b) may contain such consequential, incidental, supplementary and transitional provision as may appear to the States to be necessary or expedient.
(2) Any power conferred by this Law to make an Ordinance may be exercised-
(a) in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified cases or classes or cases;
(b) so as to make, as respects the cases in relation to which it is exercised-
(i) the full provision to which the power extends, or any lesser provision …..
(ii) the same provision for all cases, or different provision ….
(iii) any such provision either conditionally or subject to any prescribed conditions.
(3) Without prejudice to the generality of the foregoing provisions of this Law, an Ordinance under this Law-
…..
(b) may direct that any Community provision …. shall extend to the part of the Bailiwick to which the Ordinance applies with such exceptions, adaptations and modifications as may be specified in the Ordinance;
….
(d) may make any such provision of any such extent as might be made by Projet de Loi other than any provision which imposes or increases taxation or which takes effect from a date earlier than that of the making of the Ordinance."
A "Community instrument" under the European Communities (Bailiwick of Guernsey) Law 1973 section 1(1) means any instrument issued by a Community institution.
The language of section 3(1) makes clear (and the States Advisory and Finance Committee policy letter preceding the projet de loi confirms) that the 1994 Law was intended to enable the States to extend Community provisions to the Bailiwick even if they were not under Community law binding upon the Bailiwick either directly (e.g. as regulations) or indirectly (e.g. as directives). However, the 2003 Ordinance was proposed by policy letter of 7 th February 2003 and enacted by the States on 1 st April 2003 on the basis that the Common Fisheries Policy and European law required that all British registered vessels fishing within the 12 mile belt adjacent to Guernsey should be subject to "a restrictive scheme of fishing vessel licensing", and that it was incumbent on "all Member States", and so apparently on Guernsey, to implement such a scheme. The recital to the 2003 Law states that it was for the purpose of implementing Regulations (EC) No. 3690/93 and 2371/2002. Throughout the proceedings below (despite some reservations...
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