Brexit and Jersey, Guernsey and the Isle of Man

Posted on 03 Aug 2016 by Brick Court

Paul Bowen QC

Prime Minister Theresa May’s confirmation last week that the Crown Dependencies of Jersey, Guernsey and the Isle of Mann will be involved in Brexit negotiations has been welcomed by senior politicians from the islands.

The Crown Dependencies of Jersey, Guernsey and the Isle of Man are not part of the UK but are self-governing possessions of the Crown (defined uniquely in each jurisdiction) with their own constitution, legislature and laws. The Crown (through the UK government) may legislate for the islands by Acts of Parliament or Order in Council and is responsible for their foreign affairs, including the making and breaking of the EU Treaties, but these powers are subject to important constitutional limitations.

The Crown Dependencies and their citizens have different but nevertheless important Treaty rights and obligations arising from their relationship with the EU which are also affected by Brexit. By virtue of Article 355(5)(c) TFEU and Protocol 3 to the UK’s original Accession Agreement the Crown Dependencies are part of the EU for the purposes of free movement of goods but not of services, people or capital. Effect is given to these treaty arrangements by local legislation: for example, in Jersey by the European Communities (Jersey) Law 1973, which operates in a materially identical manner to the UK’s 1972 Act.  Residents do not enjoy full EU citizenship rights, although the vast majority of the population are also British citizens by virtue of their parents or grandparents or past residence in the UK. They are therefore EU citizens with the right to move, settle and work freely within the EU.

There remain sensitivities over Brexit in the relationship between the UK and its Crown Dependencies. Unlike Gibraltar, citizens of the Channel Islands and the Isle of Man were not entitled to participate in the EU referendum. British citizens resident in the islands (the vast majority) were subject to the same rule as other expatriate British citizens, which required the individual to have been resident in the UK within the last 15 years to qualify. Historically there have been tensions over the constitutional relationship between the UK and the Crown Dependencies and the extent to which the UK can legislate for the islands without their consent. In Jersey this has led to the introduction of a statutory requirement that the States, its legislative assembly, be given the opportunity to signify their views in respect of any legislation of the UK Parliament that is intended to apply to Jersey.

It remains moot whether and at what stage the Brexit process would require the UK to seek the views not only of the governments but also of the legislative assemblies of each of the Crown Dependencies. Although the assemblies could not veto Brexit it would provide an important opportunity for the islands’ democratically elected representatives to debate and express their views about their continuing relationship with the EU. However, Theresa May’s recent announcement is likely to allay many fears and may head off the prospect of litigation from the Crown Dependencies akin to that in the UK currently before the Courts under Article 50 TEU.