Jersey and the European Convention on Human Rights—options ... Documents/JLR1506_… · See Mair, Ruling the Void (London: Verso, 2013), 138. Although the quotation related to the

THE JERSEY & GUERNSEY LAW REVIEW 2015

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JERSEY AND THE EUROPEAN CONVENTION ON

HUMAN RIGHTS—OPTIONS SHOULD THE

UNITED KINGDOM DENOUNCE THE

CONVENTION

Dennis Dixon

This article will consider Jersey’s options should the United Kingdom decide to renounce the European Convention on Human Rights. It will be argued that it would be possible for the United Kingdom to restrict its denunciation to its own metropolitan territory and such Crown Dependencies and Overseas Territories as wish to denounce. This option, whilst not specifically allowed for under the Convention, would represent the sort of “living tree” interpretation of the Convention for which the European Court of Human Rights is famous. However, this possibility would require the agreement of the United Kingdom and political co-operation from the Council of Europe. In the event of a denunciation that covered Jersey, it would be necessary to consider a human rights approach for Jersey distinct from the United Kingdom.

1 This article considers the question of whether Jersey could remain a party to the European Convention on Human Rights if the United Kingdom were to denounce the Treaty itself. Similar considerations apply of course to Guernsey and the Isle of Man.

2 It is a question which until recently would have been very much an abstract one. Nowadays the possibility of it becoming a live issue is not as remote as it once was. The recent debate on there being a British Bill of Rights undoubtedly called into doubt the future of Britain’s membership of the European Convention,1 although the majority of the Commission on a British Bill of Rights concluded that any such domestic human rights instrument far from leading to a British exit from the Convention should instead “build on all of the UK’s obligations under the European Convention on Human Rights”.2

1 Klug, “The Human Rights Act is a British Bill of Rights”, The Guardian

Online, 13 December 2012 (http://www.theguardian.com/commentisfree/

2012/dec/13/human-rights-act-british-bill-rights, accessed 20 March 2015). 2 Commission on a Bill of Rights, A British Bill of Rights? The Choice Before

Us (Vol 1), December 2012, at para 12.9.

D DIXON JERSEY'S OPTIONS SHOULD THE UK DENOUNCE ECHR

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Nevertheless, the possibility of a withdrawal from the jurisdiction of the European Court of Human Rights (and possibly from the Convention as a whole) was contemplated in a notable report by Michael Pinto-Duschinsky, the senior policy consultant to the Policy Exchange Think Tank, that report being of particular interest in that its foreword was penned by former Law Lord, Lord Hoffmann.3 In October 2014, the Conservative Party published their proposals on human rights law reform, including that decisions of the European Court of Human Rights should be “advisory”, and that human rights are for “the most serious cases” only.4 Such an approach would bring the United Kingdom into obvious conflict with the Convention.

3 That the question of Britain’s relationship with the European Convention remains at large is evidenced by the United Kingdom continuing to be in default in respect of the requirements of the European Court of Human Rights on prisoner voting rights under the case of Hirst (No 2) v United Kingdom, with opposition to compliance being led by a cross-party coalition of backbenchers.5 If the Rt Hon Jack Straw, former Labour Home Secretary who took the Human Rights Act through the House of Commons, argues that “the Court in Strasbourg is undermining its own legitimacy”,6 then we cannot rule out the possibility that a point of crisis for the United Kingdom’s membership of the Convention will one day be reached.

4 The potential for the European Convention to accommodate dissent is controversial. Lord Irvine has argued that, as the European Convention is ultimately an international treaty, departing from the European Convention of Human Rights is a state matter with no definite result.7 Against this, Philip Sales argued that “there is no doubt that the Council of Europe . . . will stand behind judgments of the ECtHR and require them to be implemented”.8 The point for our

3 Pinto-Duschinsky, Bringing Rights Back Home: Making Human Rights

Compatible with Parliamentary Democracy in the UK (London: Policy

Exchange, 2011), 49–55. 4 “Protecting Human Rights in the United Kingdom: the Conservatives

Proposals for Changing Britain’s Human Rights Laws”, Conservative Party,

October 2014, 67 (https://www.conservatives.com/~/media/files/download

able%20Files/human_rights.pdf, accessed 31 March 2015). 5 HC Deb, 10 February 2011, Col 455. 6 HC Deb, 10 February 2011, Col 504. 7 Lord Irvine, “A British Interpretation of Convention Rights”, [2012] Public

Law 237, 245–246. 8 Sales, “Strasbourg Jurisprudence and the Human Rights Act: A Response to

Lord Irvine”, [2012] PL 252, 262.

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purposes is that if Philip Sales is right and Lord Irvine is wrong, it will follow that either Parliament must give way and enact prisoner voting, or else the United Kingdom must denounce the European Convention itself. Even if Lord Irvine is right, and there is room to manoeuvre, if the United Kingdom were to follow the Conservative proposal of treating the European Court of Human Rights decisions as “advisory”, then conflict may become too common to avoid a full crisis in terms of the United Kingdom’s membership of the Convention. If accommodation of dissent is impossible, then the crisis of legitimacy will end as all constitutional confrontations must: when outcomes cannot be changed within the system—submission to the system as it stands, or rebellion.9 And the most obvious form of rebellion against the Convention is to leave it.

5 A point of crisis may yet be reached. To date, successive British governments have always been clear about accepting decisions of the European court, however disagreeable—indeed, and somewhat ironically, Counsel for the Crown in Smith v Scott, which followed Hirst (No 2), opposed the making of a declaration of incompatibility on the grounds that the government accepted that remedial legislation was necessary due to the European decision.10 Even now, a Convention-compatible response to the Hirst decision remains very much in the British Government’s in-tray: the difficulty has been with backbenchers of both Labour and Conservative parties.11 It may be of use to see compliance with European Court of Human Rights decisions as being like a constitutional convention: (a) there is a long history of compliance, and (b) compliance has been treated as an obligation. What may be breaking down is the third of the three criteria that Ivor Jennings explained must be present for a

9 Peter Mair, who with Richard Katz, postulated the influential “cartel party”

hypothesis as to the growth of elite power and the decline of popular

participation in western democracy, put it thus—

“We know that a failure to allow for opposition within the polity is

likely to lead either (a) to the elimination of meaningful opposition, and

to more or less total submission, or (b) to the mobilisation of an

opposition of principle against the polity—to anti-Europeanism and

Euro-scepticism.”

See Mair, Ruling the Void (London: Verso, 2013), 138. Although the

quotation related to the European Union rather than the European

Convention, the sentiment is directly transferrable. 10 Smith v Scott (Electoral Registration Officer) [2007] CSIH 9; and Hirst v

United Kingdom (No 2) (2006) 42 EHRR 41. 11 HC Deb, 10 February 2011, Col 455 et seq.


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constitutional convention: (c) the reasons for the sense of obligation.12 The reasons for compliance being seen as an automatic obligation are being questioned. This is no place to review the reasons why states comply with international bills of rights. The point is rather that to many, even natural supporters of the Convention such as Jack Straw, the reasons are not sufficient to justify a rule of obedience to European court decisions; and we may well doubt if any other rule is compatible with membership of the Convention.

6 What will be argued here is that it is indeed legally possible for Jersey to remain a party to the European Convention, providing (a) the United Kingdom agreed not to retract the declaration extending (or, to follow the language of the French translation of the text, “applying”) the Convention to Jersey; and (b) the Council of Europe is willing to countenance the possibility. Legal analysis opens up the possibility of Jersey’s continued membership, but politics rather than law will determine whether this would happen in practice. We shall then briefly explore the issues that would arise for Jersey’s domestic human rights position if the Island were to be obliged to leave the European Convention.

Territorial application under the Convention

7 The general rule of international law on the territorial application of international treaties is art 29 of the Vienna Convention on the Law of Treaties 1969—

“Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.”

8 Of course, the European Convention pre-dates the Vienna Convention, which of itself may limit the latter’s relevance. Article 29 of the Vienna Convention was an attempt to codify pre-existing international law and practice. Such practice was not entirely clear at the time, but it should be noted that the original commentary to art 29 saw the provision as not addressing “all the territory or territories for which the parties are internationally responsible”, but rather all the territory of the state itself.13 So, on this point, the Vienna Convention takes the matter no further. It also must be noted that the general principles of treaty interpretation are of little relevance given that the

12 Jennings, The Law and the Constitution, 5th ed (London: University of

London Press, 1959), 134–136. 13 Sinclair, The Vienna Convention on the Law of Treaties (Manchester:

Manchester University Press, 1984) 89.


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European Convention includes precisely the sort of territorial provisions that the United Kingdom required to be put into international treaties in order to control their application to non-metropolitan territories.14

9 We must look therefore principally to the Treaty itself. If its text provides a clear answer, then appeals to general principles of international practice or appeals to fair dealing will be neither here nor there.

10 The states who are parties to the Convention can make declarations to extend the Convention to any of their non-metropolitan territories, such as Jersey, in respect to the United Kingdom where international relations are concerned. This is the provision in art 56.1 of the Treaty—

“1. Any State may at the time of its ratification or at any time thereafter declare by notification addressed to the Secretary General of the Council of Europe that the present Convention shall, subject to paragraph 4 of this Article, extend to all or any of the territories for whose international relations it is responsible.”

11 The Convention is applicable in Jersey because the United Kingdom has made a declaration which makes it responsible to the Council of Europe, the European Court of Human Rights and to all other state-parties to the Convention for its observance in Jersey.

12 The use of “extend” may at first reading suggest that what applies to the territory is an extension of the High Contracting Party’s membership, from which it would be concluded that, if that Party seceded, then there is nothing left to “extend” to the territory. However, closer analysis shows that it is the “Convention” not the particular state’s membership that is extended. In any case, examination of the French text shows that the verb used is “appliquer”, with the sense of the Convention “applying” to the territory.

13 Of greater significance, but not conclusive of the issue, is art 58 on denunciation—

“1. A High Contracting Party may denounce the present Convention only after the expiry of five years from the date on which it became a party to it and after six months' notice contained in a notification addressed to the Secretary General of the Council of Europe, who shall inform the other High Contracting Parties.

14 Ibid, 88.


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. . .

4. The Convention may be denounced in accordance with the provisions of the preceding paragraphs in respect of any territory to which it has been declared to extend under the terms of Article 56.”

What can be seen are two points, one favourable to Jersey being allowed to remain covered by the Convention even if the United Kingdom is not; and the other pointing in the opposite direction.

14 First, it can be seen that there are different denunciation provisions for the High Contracting Party and for non-metropolitan territories. It can obviously be argued that art 58.4 governs the position of denunciations and non-metropolitan territories, and that if there is no denunciation under that article then the Convention’s extension to that Convention remains valid. It may well be the case that any simple, straightforward notification by a High Contracting Party under art 58.1 would be intended to cover all territories and be construed as such, but that is a matter of ordinary practical politics and common sense. If a High Contracting Party made it clear that an art 58.1 denunciation did not carry with it a denunciation under art 58.4 in respect of such-and-such territory, then there would be no denunciation under art 58.4—the territory would stay in.

15 Secondly, and in contradiction to the last point, it could at least equally be argued that whilst art 58.4 expressly provides for a targeted power of denunciation in respect of non-metropolitan territories, art 58.1 is worded so that High Contracting Party denounces the Convention sans phrases. The reason for art 58.4 is not to give the Convention’s application to territories such as Jersey a wholly independent life, but rather to create an exception to the general rules that reservations the Convention cannot be made except either at the time of access (art 57.1),15 or times of threats to the life of the nation (art 15.1).16 As of 1950, when the Convention was signed, there were

15 “Any State may, when signing this Convention or when depositing its

instrument of ratification, make a reservation in respect of any particular

provision of the Convention to the extent that any law then in force in its

territory is not in conformity with the provision. Reservations of a general

character shall not be permitted under this Article.” 16 “In time of war or other public emergency threatening the life of the nation

any High Contracting Party may take measures derogating from its

obligations under this Convention to the extent strictly required by the

exigencies of the situation, provided that such measures are not inconsistent

with its other obligations under international law.”


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many reasons why some of the High Contracting Parties would be very keen to allow for such a policy. The United Kingdom was interested in preventing the Convention from restricting law and order operations in the remaining colonies.17

16 It follows that the basic structure of the Convention does not provide a conclusive answer. The most natural reading is (we must admit) against independent membership, in that a plain reading of art 58.1 would see the High Contracting Party cease to be a member of the Convention without any qualification or gloss. If that is the case, then the United Kingdom could not continue to be responsible under the Convention for its observance in Jersey, as the United Kingdom could not have any responsibilities under a Convention which it had denounced. If we construed the provisions as we might a statute, going back to the original context in order to abstract the intention of the legislature represented in the words chosen, we would conclude that non-metropolitan territories were frequently treated differently from the High Contracting Parties themselves, but that this was indicative of a desire among certain states (including the United Kingdom) to allow for a reduction the power of the Convention in such territories. There is nothing to suggest that separate treatment was designed to allow for de facto independent membership of the Convention.

Construing the Convention

17 The riposte to any attempt to wind the clock back to the origins of the Convention is simple and well known. The Convention is

17 See Council of Europe (ed), Collected Edition of the “Travaux

Préparatoires” of the European Convention (Vol IV) (The Hague: Martinus

Nijhoff Publishers, 1979), 28–30; Preliminary Draft Report of the Committee

of Experts to the Committee of Ministers (24 February 1950)—

“[T]he signatory States are permitted to give due regard to special

conditions which may exist in certain overseas territories. It is felt that

the state of civilisation of certain overseas territories does not permit the

application of fundamental rights under the same conditions as for

European territories.”

(See also Council of Europe, Preparatory Work on Article 63 of the

European Convention on Human Rights: (Cour (78) 8), 28–29, at http://

www.echr.coe.int/Documents/Library_TP_Art_63_Cour(78)8_eng.PDF, last

accessed 23 March 2015). Hence art 56.3, “The provisions of this Convention

shall be applied in such territories with due regard, however, to local

requirements.” Further, art 56.4 allowed the state to recognise the right of

application to the ECtHR without extending the same to the overseas

territory.

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construed as a “living instrument”. This means that originally understood meanings may be shed as the Convention is interpreted and re-interpreted by the ECtHR in order to keep pace with changes in morality. The point is most commonly found in respect of the substantive rights-giving articles, such as in the case of Tyrer v United Kingdom which was probably the start of the “living instrument” doctrine in the Strasbourg court.18 The case concerned the use of birching as a punishment in the Isle of Man and whether it was contrary to art 3 of the Convention notwithstanding that such punishments would not have seemed inhuman or degrading to many of those who were behind the Convention when it was created. The court held19—

“The Convention is a living instrument which . . . must be interpreted in the light of present day conditions . . . [T]he Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member states of the Council of Europe . . .”

18 There is no reason why the same flexibility cannot be applied to ensure that arts 56 and 58 avoid illiberal results, and promote Convention values in the most fundamental way possible, i.e. by allowing a willing territory to enjoy the protection of the Convention, and ensure that its political authorities are invigilated by the European Court of Human Rights.

Opening up the interpretative question

19 When we ask ourselves, “Can Jersey stay in the European Convention if the United Kingdom leaves?”, we are not reducing our question to the nuts and bolts of the law of the European Convention. The real question is this—“If the United Kingdom exercises its right to denounce the Convention under art 58.1, would the Convention remain extended to Jersey absent a denunciation by the United Kingdom under art 58.4?”

20 It should first be noted that if the United Kingdom chooses to denounce the Convention on behalf of Jersey, then there is nothing that can be done as a matter of international law. The United Kingdom represents Jersey in foreign relations; indeed the original extension of the Convention to Jersey was predicated on this fact, so it can take

18 (1979–80), 2 EHRR 1. 19 Ibid, 31.


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Jersey out of the Convention.20 So the real question is as to whether the Council of Europe would continue to recognise the Convention as extending to Jersey if the United Kingdom made clear that its art 58.1 denunciation was not to be read as including an art 58.4 denunciation as regards Jersey.

21 In any matter of interpretation where the written law does not set out a clear rule, interpretation takes on an inherently subjective element. Judge Richard Posner, one of the leading US judges/jurists of recent decades, suggested a non-exhaustive list of factors that might come into play in such circumstances21—

“Appeals to common sense, to custom, to precedents and other authorities, to tradition, to empiricism, to intuition, to institutional considerations, to history, to consequences, to the social sciences, to our just or good emotions and to the ‘test of time’. . .”

22 We have come close to admitting that the “common sense” answer is that Jersey’s membership of the Convention is an extension of the United Kingdom’s, even if a close analysis of art 56.1 (the provision on denunciation by the High Contracting Party) does not expressly legislate for this result. It is rather that an appeal to factors such as “institutional considerations” and “just or good emotions” would make a strong argument for the Convention’s “living tree” to grow modestly in order to allow non-metropolitan territories the right of self-determination so as to stay in the Convention’s protection.

23 To advance the case for such a “living tree” interpretation favourable to Jersey, we should set out the nature of the view that Jersey would be taking, i.e. a rejection of the most fundamental challenge to the Convention: that the power it gives to the Strasbourg judiciary is unacceptable as a restraint on the local system of democracy.

20 The Framework for developing the international identity of Jersey, signed

on 1 May 2007 by the Secretary of State for Constitutional Affairs and the

Chief Minister of Jersey, does however provide at para 1—“In the context of

the UK’s responsibility for Jersey’s international relations, it is understood

that the UK will not act internationally on behalf of Jersey without prior

consultation.” 21 Posner, Law and Literature (Cambridge, MA: Harvard University Press,

1988), 272.


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The nature of a decision to stay in

24 It cannot be ignored that the basic argument in the United Kingdom against membership of the European Convention is the “counter-majoritarian problem”, a point that was summed up in the American context by Alexander Bickel in 1962 when he wrote that “[t]he root difficulty is that judicial review is a counter-majoritarian force in our system”.22 The power of the courts to review primary legislation for compatibility with prescribed human or constitutional rights is described in the literature as “constitutional review” precisely because it takes the highest level of ordinary democratic process and evaluates it against an even higher standard.23

25 John Hart Ely summarised thus the problem of rights protection and democracy pulling in different directions24—

“The task of constitutional law has been and remains that of devising a way or ways of protecting minorities from majority tyranny that is not a flagrant contradiction of the principle of majority rule.”

Bickel himself gave a similar summary of the problem of ensuring that constitutional review must be reconciled with democracy25—

“[D]emocracies do live by the idea, central to the process of gaining the consent of the governed, that the majority has the ultimate power to displace the decision-makers and to reject any part of their policy. With that idea, judicial review must achieve some measure of consonance.”

26 If the United Kingdom were to denounce the Convention it would be because it no longer saw the European Convention on Human

22 Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of

Politics, 2nd ed (Yale University Press: New Haven, 1962), 16. In American

constitutional terminology “judicial review” means a constitutional challenge

to the legality of statutes, see ibid, 1—

“The power which distinguishes the Supreme Court of the United States

is that of constitutional review of actions of the other branches of

government, federal and state. Curiously enough, this power of judicial

review, as it is called, does not derive from any explicit constitutional

command.” 23 See Kavanagh, Constitutional Review under the UK Human Rights Act

(Cambridge: Cambridge University Press, 2009), 5–6. 24 Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge,

MA, Harvard University Press, 1980), 8. 25 Bickel, supra n 1, 27.


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Rights as presided over by the Strasbourg court as providing a satisfactory answer to the problems raised by those great American jurists. The linkage of debates over the future membership of the European Convention to the introduction of a British Bill of Rights are very much indicative of considerations of a changed and wholly domestic approach to constitutional review.

27 Constitutional review does not create a countermajoritarian problem as a mere side-effect. It is the purpose of any system of constitutional review, whether existing on the national level such as the United Kingdom’s Human Rights Act or on the international level such as the European Convention on Human Rights, to be countermajoritarian in order to restrain “majority tyranny”. Less melodramatically, writing in the context of the Human Rights Act, Aileen Kavanagh lists three possible reasons why a people might want to choose a countermajoritarian device: (1) “responsiveness to popular views and electoral orientation”—in other words, politicians may sacrifice what is right for what will win votes; (2) “responsiveness to majoritarian concerns”—which means that the bias towards majority interest may “create a risk that minority interests will be marginalized or overridden; and (3) “responsiveness to short term interests”—meaning that important principles may be sacrificed to the long-term detriment in order to deal with short-term problems.26 If the mark of representative government is, as Dicey argued, that there is a “legislative organ adapted for carrying out the changes of the law demanded by public opinion”,27 then Kavanagh’s suggestion is of three ways in which the system might work too efficiently.

28 Of course, it is not for any elite group of experts, whether lawyers or otherwise, to decide whether democracy is working all too efficiently. One hundred and fifty years ago, Walter Bagehot wrote of the importance of keeping the “‘too clever by half’ people who live in ‘Bohemia’” from having any special political influence, and what is true of day-to-day influence in Parliament is true of influence over the choice of political system.28 Democracy in a constitution has a dual aspect: there is a constitutive and a constituted level. The people have a free choice as to make and remake the rules of governance for their

26 Kavanagh, Constitutional Review under the UK Human Rights Act

(Cambridge: Cambridge University Press, 2009), 344–352. 27 AV Dicey, Law and Public Opinion in England (London: MacMillan,

1914). 28 Bagehot, The English Constitution 2nd ed (New York: Cosimo, 2007),

171–172.


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state or territory.29 The arranging or rearranging of any judicial power over a territory is something requiring free, informed popular consent: as Lord Hoffmann and Lord Bingham separately argued.30 Electors tend to value the ability to participate greatly, but seldom see actual participation as attractive enough to make the effort.31 After all, from a brutal rationalist perspective, the practical costs of any individual participating in democracy by merely voting are greater than the expected gain to that individual from that participation.32 Cass Sunstein, a leading American legal and constitutional theorist, has argued that “A large purpose of participation is to monitor the behavior of representatives in order to limit the risks of factionalism and self-interested representation".33 Yet even allowing that voter turn-out in most jurisdictions is paradoxically high given how little individuals stand to benefit from their individual act voting,34 for individuals electors to make the effort to closely monitor representatives must be considerably more irrational. A system of constitutional review that restrains their elected representatives on pre-

29 Pettit, On the People’s Terms: A Republican Theory and Model of

Democracy (Cambridge: Cambridge University Press, 2012), 310—

“Under the dual-aspect model, as distinct from the sovereigntist picture,

the constituting people have a priority over the constituted. While the

constituted people counts as a law-making sovereign that is not itself

subject to the law, as in Bodin and Hobbes’s ideal, it exists only by

virtue of the constituting people; being formed by the constituting

people, it cannot dominate them; and it can be replaced by the

constituting people as they set aside the constitution under which it

comes into existence.” 30 Lord Hoffmann, “The COMBAR Lecture 2001: Separation of Powers”,

[2002] Judicial Review 137, 140; and Lord Bingham, The Rule of Law

(London: Penguin, 2010), 170 31 Dahl, “A Democratic Paradox?” (2000) 115 Political Science Quarterly

35—

“In many of the oldest and most stable democratic countries, citizens

possess little confidence in some key democratic institutions. Yet most

citizens continue to believe in the desirability of democracy.” 32 Downs, An Economic Theory of Democracy (New York: Harper and Row,

1957). 33 Sunstein, “Beyond the Republican Revival” (1988) 97 Yale Law Journal

1539, 1556. 34 See Uhlaner, “What the Downsian Voter Weighs: A Reassessment of the

Costs and Benefits of Action”, in Grofman (ed), Information, Participation,

& Choice: An Economic Theory of Democracy in Perspective (Michigan:

University of Michigan Press, 1993), 67–80.


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agreed lines (such as a bill of rights) might seem more attractive to electors than the exacting requirements of them paying close attention to politics.

29 Properly understood, the arguments in favour or against a system of constitutional review are not of universal strength or weakness. It is rather that different opinions may be reached at different times in different states by different electorates. Optimism or cynicism about local political process, and idealism or scepticism about judicial process, may vary between localities and vary over time in the same locality. An electorate in consenting to its system of government (which includes the question of the presence or absence of constitutional review, and the form of such review) is entitled to look at itself, its politicians and judges, and then accept a constitution appropriate to its estimate of the behaviour of all.

30 It is, therefore, profoundly against Convention values for the electorate of one state to force such a fundamental change on the electorate of a different territory. The importance of laws not being imposed on a territory by bodies in which the territory’s electorate has no vote was emphatically recognised by the European Court of Human Rights in respect of Gibraltar’s position in the European Union. The European Court of Human Rights held that the legitimacy of EU legislation depended on that territory being able to vote in European elections.35 As stated earlier, it cannot be a violation of the Convention for the United Kingdom to exercise its explicit power under art 56.4 to denounce the Convention on behalf of Jersey, whether Jersey likes it or not—the Convention is too specific on this point to have a meaning restricted by overarching Convention values. But forcing the loss of Convention protections on a Jersey electorate that desires to retain the Convention (with ex hypothesi the United Kingdom’s blessing) must on any view be against Convention values. Even though Convention values cannot wish away the United Kingdom’s power under art 56.4, such values will be of the greatest influence on the Council or Europe’s institutions (including the European Court of Human Rights) in deciding whether the meaning of the Convention, as a living instrument, should be developed to allow the Convention to continue extending (or applying) to a non-sovereign territory even after the relevant sovereign state has denounced the Convention.

31 The importance for Convention values in allowing this scenario increases when we remember that continued membership will have two consequences for the territory.

35 Matthews v United Kingdom (1999) 28 EHRR 361.


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32 First, it will allow the people of the territory to have recourse to the adjudication of the European Court of Human Rights in relation to possible human rights failings of their own local institutions.

33 Secondly, it will mean that the relevant sovereign state will continue to be bound in terms of its treatment of the territory, and acknowledge itself as such internationally. In the present context, it would mean that any abuses by the United Kingdom of the remaining Crown prerogatives in Jersey would be subject to the adjudication of the European court. Bearing in mind the right to vote, this oversight would be of particular relevance should the United Kingdom interfere in the legislative decisions of Jersey’s elected legislature. As the court held in the context of Gibraltar and the European Union, the use of ordinary legislative power requires a vote in the democratic legislature in the territory where the power is used.36

34 It may be doubted as to how effective such European oversight would be in the context we are discussing, ie the United Kingdom would already have denounced the European Convention. Even accepting Philip Sales’s argument that the Council of Europe would always stand behind the decisions of the European court, it would not be able to impose meaningful political costs on the United Kingdom in respect of the proper application of the Convention in Jersey where the United Kingdom has already taken all costs that come from leaving the Convention as regards itself. Nevertheless, the availability of recourse to the European court might have significance in the Jersey domestic context.37 The European court would offer an authoritative and impartial adjudication on issues of constitutional importance, in particular as to allegations of abuse of constitutional power against the United Kingdom should it interfere with the self-government of a non-metropolitan territory—and thus interfere with the effectiveness of the right to vote.38 It follows that even if, as a matter of international relations, the United Kingdom’s government was past caring about what the European court might say, the decision would be important for domestic constitutional debate in Jersey. As Lord Scott pointed out, of the Human Rights Act and the limits to its enforceability, judicial rulings on human rights provide “ammunition to those who disapprove”.39 For that reason, however that “ammunition” might in

36 Ibid. 37 It is worth noting that under art 58.2, it would be impossible for the United

Kingdom to denounce the Convention so as to forestall a claim that has

already been made. 38 Article 3 of the First Protocol. 39 A v Secy of State for the Home Department [2005] 2 AC 68, para 145.


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practice be used, the continued application of the European Convention would have political significance within Jersey and in terms of Jersey–UK relations.

Principle of treaties applying to territory only

35 What we have given so far is an argument for the permissibility of Jersey remaining within the Convention should the United Kingdom itself leave. The argument recognises that this seems an odd thing to do on a plain reading of the Convention, but notes that such an outcome is not expressly prohibited by any provision of the Convention. Furthermore, such an outcome is entirely in keeping with the concept of the Convention being read as a “living instrument” to give effect to Convention values. Indeed, whilst the “living instrument” typically works so as to create restrictions on democratic choice by giving the Convention unexpected meanings, this example would be opening increased choice for the United Kingdom and for Jersey on a matter of constitutional importance.40

36 In support of this we can challenge the essential argument of the oddity of a treaty applying to a territory alone.

Denunciation in respect of the metropolitan territory, but not other territories

37 The text Modern Treaty Law and Practice expressly contemplates the possibility of a treaty denunciation being restricted to the sovereign state’s metropolitan territory41—

“The parent state may also denounce a treaty in respect of its metropolitan territory only, leaving the extension to overseas territories in effect. This could happen if the treaty has been amended and the parent state wishes to become a party to the

40 It has been argued that, traced to its origin, the “living instrument”

metaphor was meant precisely to ensure that constitutional instruments did

not fetter democratically elected governments and legislatures from

representing changed times. This, it has been argued, is the true meaning of

the “living tree” metaphor which Lord Sankey in Edwards v Att Gen

(Ontario) [1930] AC 124, 136 so that the Canadian Constitution Act 1867 did

not become an impediment to legislation allowing women to become

senators. See Manfredi, Judicial Power and the Charter: Canada and the

Paradox of Liberal Constitutionalism (Don Mills, Ontario: Oxford University

Press, 2001), 32. 41 Aust, Modern Treaty Law and Practice (Cambridge: Cambridge University

Press, 2007), 209.


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amended treaty, but its overseas territories either do not yet have the legislation in place to implement the amended treaty, or do not want it to be extended to them.”

38 This has occurred in respect of Jersey’s position under the European Convention on the Adoption of Children 1967. This is a Council of Europe Convention, which is currently being superseded by a new 2008 Convention. The 1967 Convention has provisions on denunciation on extension to non-metropolitan territories which are, in respect of the present issues under discussion, of equivalent effect to the provisions of the European Convention on Human Rights.42

39 The United Kingdom decided to denounce the 1967 Convention due to art 6.1 of the Convention in 2002, because it could not be reconciled to the enactment of s 50 of the Adoption and Children Act 2002 which permitted adoption by unmarried couples.43 On 20 June 2005, the United Kingdom entered a denunciation of the 1967 Convention in these terms44—

“In accordance with the provisions of Article 27, paragraph 2, of the Convention, the Government of the United Kingdom denounces the Convention in respect of the metropolitan territory of the United Kingdom and the following territory for whose international relations the United Kingdom is responsible: the Isle of Man.

The United Kingdom of Great Britain and Northern Ireland will remain a State Party to the Convention in respect of the Bailiwicks of Jersey and Guernsey, to which the Convention was extended by the United Kingdom and for whose international relations the United Kingdom is responsible.”

42 Articles 23 and 27. 43 HL Deb, 2 December 2002, vol 641, cWA77, Lord Hunt for the

Government—

“The United Kingdom is a signatory to the 1967 European Convention

on the Adoption of Children, which restricts joint adoption to married

couples. In the light of the Adoption and Children Act 2002, it is the

Government's intention to denounce this outdated convention.”

See also Re P (Adoption: An Unmarried Couple) [2009] 1 AC 173, para 113. 44 List of declarations made with respect to treaty No 058, European

Convention on the Adoption of Children, http://conventions.coe.int/Treaty/

Commun/ListeDeclarations.asp?NT=058&CV=1&NA=&PO=UK&CN=999

&VL=1&CM=9&CL=ENG (accessed 24 March 2015).

http://conventions.coe.int/Treaty/Commun/ListeDeclarations.asp?NT=058&CV=1&NA=&PO=UK&CN=999&VL=1&CM=9&CL=ENG




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40 The effect of this was as explained by the Court of Session in a Scottish case45—

“As to the 1967 European Convention on the Adoption of Children, this had been denounced by the United Kingdom Government (except as regards Guernsey and Jersey) in 2005. This released the denouncing state from its obligations under that Convention (Vienna Convention on the Law of Treaties (1969), article 70).”

41 The reference to art 70 of the Vienna Convention is that a denouncing party is released from all of their obligations “[u]nless the treaty otherwise provides or the parties otherwise agree”. In terms of the European Convention on Human Rights, the Statute of the Council of Europe at art 16 would appear to place the matter in the hands of the Council’s Committee of Ministers subject to consultation with the Consultative Assembly—

“The Committee of Ministers shall, subject to the provisions of Articles 24, 28, 30, 32, 33 and 35, relating to the powers of the Consultative Assembly, decide with binding effect all matters relating to the internal organisation and arrangements of the Council of Europe. For this purpose the Committee of Ministers shall adopt such financial and administrative arrangements as may be necessary.”

42 It may be doubted that there will be any need for the express consent of all High Contracting Parties for the United Kingdom to denounce the European Convention but allow Jersey to remain covered.

43 It follows that, as a matter of practical politics, the question for Jersey is whether the Committee of Ministers accepts the arguments set out above. If it does not, it is difficult to see what further recourse there could be within the structure of the Council of Europe. If the Committee of Ministers does accept such a conditional denunciation by the United Kingdom, there are no compelling arguments that would lead the European Court of Human Rights to deny jurisdiction should for any reason (a third party intervention, perhaps) it be invited to decline jurisdiction in a post-UK denunciation case from Jersey.

Application of a Treaty to non-metropolitan territories alone

44 The scenario of application of a Convention intended for general use being applied only in respect of overseas territories has arisen in

45 In re ANS and DCS v ML [2011] CSIH 38, para 11.


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practice, and it is instructive to consider an important example at length.

45 The issue arose in respect of the UN Fish Stocks Agreement 1995. The position was somewhat convoluted. The 1995 Agreement had no special provisions relating to non-metropolitan territories except for art 47 which was aimed at the European Union. This provision stated that where an international organisation had competence for fisheries matters, its member states could ratify the agreement “in respect of their territories for which the international organization has no responsibility”.46 However, an EU Council Decision meant that Member States could not ratify the agreement at all until all could do so together, which would prevent ratification with consequences limited to non-EU territories. Hence, the United Kingdom made a ratification for limited purposes, explained by a later declaration47—

“Upon a request for clarification as to why the ratification of 3 December 1999 excluded the metropolitan territory of the United Kingdom of Great Britain and Northern Ireland, and subsequent consultations, the following additional declaration was provided by the United Kingdom of Great Britain and Northern Ireland on 10 December 2001:

1. . . . Legislation of the European Communities (Council decision 10176/97 of 8 June 1998) binds the United Kingdom as a matter of EC law to deposit its instrument of ratification in relation to the metropolitan territory simultaneously with the European Community and the other Member States.

It is hoped that this event will take place later this year. The constraints imposed by that Council decision only apply in respect of the United Kingdom metropolitan territory and those overseas territories to which the EC treaties apply.

2. In the light of its temporary inability to ratify the Agreement in relation to the metropolitan territory, and the strong desire of the United Kingdom to implement the Agreement in respect of those overseas territories to which the EC treaty does not apply, because of the advantages it will bring to them, the United Kingdom lodged its instrument of ratification to the Agreement, with declarations, in respect of those overseas territories on 3 December 1999.”

46 See http://www.un.org/depts/los/convention_agreements/texts/fish_stocks_

agreement/CONF164_37.htm (accessed 23 March 2015). 47 See http://www.un.org/depts/los/convention_agreements/fish_stocks_agree

ment_declarations.htm (last accessed 23 March 2015).

http://www.un.org/depts/los/convention_agreements/texts/fish_stocks_agreement/CONF164_37.htm

http://www.un.org/depts/los/convention_agreements/texts/fish_stocks_agreement/CONF164_37.htm

http://www.un.org/depts/los/convention_agreements/fish_stocks_agreement_declarations.htm

http://www.un.org/depts/los/convention_agreements/fish_stocks_agreement_declarations.htm


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46 The acceptance of this approach was controversial, although accepted by the UN. Palitha Kohona, in an article on the UN’s approach to exceptions under Treaties, explained the position as follows48—

“The depositary recognized the unusual nature of the situation but also the urgent need for the 1995 Agreement to become applicable to the nonmetropolitan territories of European Community (EC) members as to which the Community did not exercise competence. In accordance with an internal EC decision, all the members were required to ratify the 1995 Agreement simultaneously. Since EC coordination was time-consuming, the United Kingdom sought to deposit its instrument of ratification only on behalf of its nonmetropolitan territories in the first instance. The depositary sympathized with this wish.”

47 Kohona explained that the Special Rapporteur was uncomfortable with this approach. Excluding the application of a treaty to the metropolitan territory was a form of a reservation to that treaty—and the Fish Stocks Agreement did not allow for this sort of reservation. On that view, if the particular treaty does not allow the sovereign state to exclude its own metropolitan territory—which the Fish Stocks Agreement did, but not until the European Union ratified the agreement—then membership cannot be permitted for the sake of non-metropolitan territories alone.

48 The Special Rapporteur’s approach would be fatal for Jersey’s case to be allowed to remain in the Convention after the United Kingdom leaves. But it is instructive that the Depository, the UN Secretary General, did allow the manoeuvre. The example of the Fish Stocks Agreement 1995 highlights an important issue: if a state wishes to do something unusual regarding membership of an international convention, the position taken by the administering body will be important. The UN Secretary General thought it important that membership of the Convention was advantageous to the relevant territories—it was not a case of a parent state imposing burdens on its non-metropolitan territories that it was not willing to take for itself.

49 The same would apply should Jersey wish to retain the benefit of the European Convention on Human Rights; it is difficult to see why the Council of Europe would not want to accommodate a territory that

48 Kohona, “Some Notable Developments in the Practice of the UN

Secretary-General as Depositary of Multilateral Treaties: Reservations and

Declaration” (2005) 99 American Journal of International Law 433, 445–

446.


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wished to maintain the form of human rights protection that represents the most important part of the Council’s work. Nothing would be more fitting for Convention values than to give a generous interpretation to the Convention’s procedural terms to allow a non-sovereign European territory to choose to adhere.

Between a rock and a hard place?

50 So far what we have presented are arguments that the Council of Europe could accept the proposition that Jersey remains in the Convention if the United Kingdom were itself to leave. What cannot be argued is that the Council of Europe must accept such a proposition. The Council of Europe’s authorities could take a less flexible approach to interpreting the Convention.

51 It is difficult to see why any state should object to Jersey remaining in the Convention, or why as a general proposition any state would want to restrict the scope of the Convention from applying in what is indisputably a part of Europe. However, the problem for Jersey might arise if the issue were to be caught up with any questions regarding the relationship between the United Kingdom, Spain and Gibraltar. If Gibraltar wished to remain in without the United Kingdom, then there is every likelihood that Spain will object, not least because the European Convention has already allowed Gibraltar to enforce democratic rights on the United Kingdom.49 If Spain’s objections to Gibraltar required objecting to Jersey for the sake of consistency, then Jersey’s continued membership would have a powerful opponent.50

Consequences of denunciation in respect of Jersey

52 Having concluded that Jersey could remain in the European Convention even should the metropolitan United Kingdom leave, we must remember that Jersey has no enforceable right to remain in the Convention. Most importantly, the United Kingdom could denounce the Convention on Jersey’s behalf, as we noted above. It could be that, for whatever reason, the Council of Europe’s own authorities refuse to accept the proposition that Jersey could remain in despite the United Kingdom’s willingness.

49 Matthews v United Kingdom (1999) 28 EHRR 361. 50 For example, anecdotally, the Jersey–Spanish mutual recognition of driving

licences agreement lapsed for just this reason. As there was no good reason

for not recognising Gibraltar licence which did not equally apply to Jersey,

Spain allowed the agreement with Jersey to lapse.


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53 Should Jersey be taken out of the Convention, the Human Rights (Jersey) Law 2000 will cease to have effect. This is by reason of the way in which Convention rights are implemented under the 2000 Law. Article 2(1) of the Law states—

“The Articles of the Convention which comprise the Convention rights (and which are set out in Schedule 1) shall have effect for the purposes of this Law subject to any designated derogation or reservation.”

54 If that were all, then it could be argued that the rights protected under the 2000 Law were those as set out in Schedule 1, and in any relationship between Jersey and the Convention was unimportant. However, “the Convention” itself is defined in terms of the ongoing relationship between Jersey and the Convention, see art 1—

“‘Convention’ means the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4th November 1950 as it has effect for the time being in relation to the Island . . .” [Emphasis added]

55 The point is made by Lord Nicholls in Quark Fishing in respect of the directly equivalent provisions under the United Kingdom’s Human Rights Act: the scheme of the legislation is to allow obligations under the Convention to have effect domestically51—

“At first sight these unexceptional definitions might seem to be of little assistance. But that is not so. What is important is that they carry through the scheme underlying the whole Act. The purpose of the Act, as stated in its preamble, was 'to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights'. In colloquial terms, the Act was intended to 'bring rights home'. The Act was to provide a means whereby persons whose rights under the Convention were infringed by the United Kingdom could, in future, have an appropriate remedy available to them in the courts of this country.”

56 It was held in Quark Fishing that a claim could not be made under the Human Rights Act unless (a) an obligation under the European Convention had been infringed, and (b) the infringement must be in relation to the United Kingdom.52 The absence of an actual obligation

51 [2006] 1 AC 529, para 33. 52 Ibid, para 56, per Lord Hoffmann—

“‘Convention rights’ mean rights under the Convention ‘as it has effect

for the time being in relation to the United Kingdom’. It does not


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under the Convention in respect of Jersey would thus collapse the Human Rights (Jersey) Law.

57 The consequence of denunciation is that Jersey would have six months until the Convention ceased to have effect and the Human Rights (Jersey) Law would be rendered useless.53 In addition to the six months after denunciation, doubtless such a step would be known about long in advance. There would almost certainly be considerably more notice for Jersey to put its human rights affairs in order by enacting a new Law or alternatively amending the 2000 Law so that Convention rights were domesticated.

58 Such domestication need not change the obligation to “take account of” Strasbourg decisions.54 Courts across the world, even many justices of the United States Supreme Court, draw on human rights decisions from around the world as persuasive authorities in the interpretation of bills of rights.55 With the direct link cut, Strasbourg decisions would no longer be authoritative statements of the meaning of the rights set out in the Human Rights (Jersey) Law, instead the Jersey courts would “take account of” its decisions far more in the natural meaning of that phrase. The Strasbourg court’s decisions would be highly persuasive, just as decisions of the superior English courts are persuasive when interpreting similarly worded legislation, but there would be no question of “Strasbourg has spoken, the case is closed”, as Lord Rodger put it.56

59 There would be a genuine advantage in directing the attention of Jersey courts to a major international source of human rights jurisprudence. This would be not just because of questions of institutional respectability and persuasive authority, but because account would be taken of a court which offers a culturally sensitive margin of appreciation.

include such Convention rights, if any, as may exist under the law of

SGSSI.”

Baroness Hale preferred to leave open the second point as to what would

happen if a Convention right had been extended to the overseas territory

concerned. 53 See art 58.1 of the Convention, denunciations take effect after six months. 54 Article 3(1) of the 2000 Law. 55 Eg Booth and Du Plessis, “Home Alone? The US Supreme Court and

International and Transnational Judicial Learning”, [2005] EHRLR 127. 56 Secy of State for the Home Department (Respondent) v AF (Appellant)

(FC) [2010] 2 AC 269, para 98. Lord Rodger’s comment was made first in

Latin—“Argentoratum locutum, iudicium finitum.”


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60 The difficulty for Jersey is that, should the Island wish to employ constitutional review to act as a constraint on its executive and legislature, then, absent the Strasbourg court serving as the obvious alternative source of inspiration, the United Kingdom’s courts will take prime position. Debates on denouncing the European Convention have tended to assume that some form of British Bill of Rights would be put in its place, and Jersey would need to be wary of being too closely influenced by British jurisprudence arising from such a document. The difficulty is that which Professor Andrew Le Sueur explained when considering how such a project might take effect in the Channel Islands57—

“There is . . . a case for saying that the Islands’ legislatures ought to be encouraged to adopt legislation similar to any UK Bill of Rights, adapted as appropriate to their specific contexts. Just as the UK Bill of Rights may allow international human rights to be set in the context of British traditions and constitutional arrangements, so too with the Crown dependencies. For example, it might be thought desirable in relation to Jersey (one of the most densely populated places in the world) to state in a Jersey Bill of Rights that rights to family life and rights in respect of enjoyment of property are to be applied in the context of the public interest considerations relating to ‘(a) the overall population density of Jersey; and (b) the availability of work and housing in Jersey for people with strong connections or associations with Jersey and, more generally, in such a way that in the best interests of the community in Jersey' (as the preamble to Control of Housing and Work (Jersey) Law 201- does).”

61 The argument is that, in considering Jersey’s approach to constitutional review without the European Convention, we ought not to assume that a British Bill of Rights will be in all matters appropriate to Jersey and other small island jurisdictions.

62 There is considerable strength in what Professor Le Sueur raised in brief. The most important questions of human rights are typically around issues of justification and the weight to be given to public interest factors. These are dealt with currently under the proportionality test, namely58—

57 Le Sueur, “Response from Professor Andrew Le Sueur”, Evidence to the

First Consultation on the British Bill of Rights, 11 November 2011. 58 Huang v Secy of State for the Home Department [2007] UKHL 11, para

19, and R v Oakes [1986] 1 SCR 103, 139 per Dickson, CJ.


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ii(i) the legislative objective is sufficiently important to justify limiting a fundamental right;

i(ii) the measures designed to meet the legislative objective are rationally connected to it;

(iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective; and

(iv) the need to balance the interests of society with those of individuals and groups.

63 It is a test that is found not just in British jurisprudence under the Human Rights Act, but one derived from Canada and expounded by the Privy Council in respect of a Barbudan appeal.59 In any British Bill of Rights, it is to be expected that questions of necessity would come down to the judicial reading of the same questions.

64 The United Kingdom courts have asserted independence to expand the effect of the European Convention from beyond the Strasbourg jurisprudence in matters of proportionality, in other words to be more intrusive in their consideration of public policy justifications for rights infringements.60 The point increasingly made by the United Kingdom Supreme Court is that the culturally sensitive margin of appreciation that the Strasbourg court gives in setting minimum standards across the contracting states is inappropriate to a national court addressing the affairs of its own country. The difficulty for Jersey is that, were the British judges of the Judicial Committee of the Privy Council (and the British judges of the Jersey Court of Appeal) to apply the British Bill of Rights (or rather a similarly worded equivalent) to Jersey according to the approaches with which they were accustomed, they might not just assume the more intrusive role that becomes local judges applying human rights in their own society, but might carry out that approach assuming that Jersey is no different from Britain. This would undo the virtue identified by Baroness Hale of human rights decisions being resolved in the Jersey court structure rather than that of the United Kingdom.61

65 It would thus be important for Jersey either to mark important differences from the United Kingdom in the public interest within a

59 R v Oakes [1986] 1 SCR 103, 139 per Dickson, CJ; and de Freitas v

Permanent Secy of Ministry of Agriculture, Fisheries, Lands and Housing

and Others (Antigua and Barbuda) [1998] UKPC 30, para 25. 60 R (Nicklinson) v Ministry of Justice [2014] UKSC 38; and In re P

(Adoption: an Unmarried Couple) [2009] 1 AC 173. 61 R (Barclay) v Secy of State for Justice [2011] 1 AC 276, paras 39–40.


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sufficiently distinct Insular Bill of Rights. Alternatively, if Jersey were to adopt a bill of rights strikingly similar to the United Kingdom, it would be necessary ensure that the United Kingdom’s Privy Council understood that their role in respect of Jersey was very much as an international court, and that its decisions should not be seen as just another application of the British Bill of Rights within the British Isles.

Conclusion

66 What this article hopes to demonstrate is that, whatever choices might be taken by the United Kingdom as regards human rights law, Jersey does not have to follow the same route. It is true that Jersey is not a full master of its own destiny, in that any choice to stay within the European Convention should the United Kingdom leave would require co-operation from the British government. There is no reason why the British government would not co-operate, and no reason why the Council of Europe would create any obstacles to such a move.

67 Should Jersey leave the European Convention on Human Rights, whether because it agrees with such a step or is given no choice, it is important that Jersey should not simply adopt any future “British Bill of Rights” without ensuring that the particular interests of Jersey will be properly weighed in the balance under the proportionality test, and not simply equated with those of the United Kingdom.

Dennis Dixon is a Legal Adviser at the Law Officers’ Department, Jersey, and a PhD candidate at Birkbeck College, University of London. He would like to thank Matthew Berry for his helpful comments. All views expressed are his own.