The status of the Crown Dependencies in relation to the UK and the Succession Regulation 650/2012 article 36

I recall an exchange on the subject as to whether the Channel Islands could be treated as part of the United Kingdom for the purposes of the Succession Regulation and its article 36.

This statement from Lady Hale, agreed by the remainder of the House of Lords should be sufficient. It can hardly be qualified as obiter, as the remainder of the decision hung on it…

“6. _The Channel Islands, like the Isle of Man (although it has a rather different history), are not part of the United Kingdom. Nor have they ever been British colonies, or British Overseas Territories as the few remaining colonies are now termed. They are Crown Dependencies, enjoying a unique relationship with the United Kingdom and the rest of the British Commonwealth through the Crown, in the person of the Sovereign.”

It concerns the Case brought by the Barclays Brothers,the Tenants of Brecqhou against Sark, from which they withdrew prior to the Supreme Court hearing: [2014] UKSC 54](

Of particular note is that this was an attempt to overturn the Sark legislative procedure by judicial review claiming it was in breach of the European Convention of Human Rights The actual judgment left many issues undecided, as Lady Hale refused to comment upon those.

The Supreme Court’s decision was taken upon the basis that the implementation of the ECHR was left to the Bailiwicks to address, and was not therefore part of the United Kingdom’s prerogative subject to judicial review.

Mere convenience as to interpretation cannot stand against this statement of law, and the judgment certainly left the Dependencies laws and jurisdiction in their own hands. They are therefore third parties and for these purposes independent states or territories, not only in relation to the internal market to which the Regulation is addressed, but also in relation to the United Kingdom or its constituent nations, being England, Wales Scotland and Northern Ireland .

This is not a relationship which can be treated by general academic legal principle, it runs back to a form of feudalism which, whilst some non-Islanders might find objectionable, notwithstanding created a legal system which goes back beyond living memory and beyond arbitrary change.

Those having advised on the basis that the Crown Dependencies are part of the United Kingdom might wish to reread the judgment and comment. Taking a shortcut might in fact deprive clients of a right to opt for legal system and legal rights of which they may be unaware.

None of the Crown Dependencies can be treated as equivalent to the Isle of Wight.

Certainly the current issue as to who holds prerogative rights in the Brexit debate and if so, to what extent has a bearing on this, as Lady Hale intimated in the unanimous judgment in the Barclays Case. Parliament certainly does not, and neither, it woud appear, does the United Kingdom Government, without agreement.

Peter Harris

Suppose a person has passport which indicates their ‘Nationality’ as ‘British Citizen’, but the passport is that of the ‘British Islands: Bailiwick of Jersey’. Under the Succession Regulation (article 22) he may elect for the ‘law of the State of whose nationality he possesses at the time of making the choice or at the time of death’. The State in question for this individual would be the UK (not Jersey). For these purposes, per article 36, this individual may therefore elect for the law of ‘England & Wales’ or the law of Scotland or the law of Northern Ireland, depending on the territorial unit (only out of those three options) with which he has the closest connection. What you report in your post suggests that Jersey is not a part of the UK: presumably, therefore, it would not be open to this individual to elect for Jersey succession law to apply.

Unless there is such a thing as a ‘Jersey citizen’, I assume that it would never be possible to elect for Jersey succession law under article 22 of the Succession Regulation (although it could apply through the ‘habitual residence’ or ‘manifestly more closely connected’ options). Likewise re Guernsey, etc.

Do you agree?

Paul Davidoff
Bircham Dyson Bell LLP

Before starting, kindly understand that I am reluctant to accept that a system of law can be excluded in such a manner from the intendment of the Regulation on a simple basis of a literal interpretation of the term State in a non-substantive article, out of context.

Forgive me Paul, I am merely setting out the other side of the coin. Bear with me whilst I do so. There may be ramifications for those UK nationals wityh a UK domicile of origin acquiring a domicle of Choice in the Channel Islands.

Is there such a thing as a citizen of the United Kingdom?

The answer is no.

The concept is that of British citizenship. That concept is clearly articulated in the 1972 Accession Treaty, which also incidentally redefines Channel Islanders and Manxmen as British citizens not citizens of the United Kingdom - a concept which does not exist.

A passport technically is sufficient evidence of but not absolute proof of nationality.

If a British citizen, perhaps for the sake of simplicity, born within the United Kingdom, then settles in Jersey and obtains a British Islands Passport, I am in that position, and for example is domiciled within the Bailiwick, then I do not see how your argument that the British national would be limited to the choice of England or Wales or Northern Ireland holds up.

The term “State” even capitalised is not defined in the Regulation, and deliberately so. What is more, it is used indifferently so as to determine another Member State in relation to the Member State having control of the succession. Considerant 23 for example. The Regulation itself makes no attempt to reduce the status of other jurisdictions to non-existence, particularly those outside the scope of the Regulation.

I therefore do not find your literal statement correct within the fullness of the Regulation, albeit superficially correct.

To my mind whilst the term “State” here would include for example the principality of Monaco, and also those of other Non-EU territories, such as Andorra, it would not be limited to as to exclude the Dependencies so as to remove the choice of law in the manner you propose. A colourfull thought to emphasise the point: perhaps a citizen of Andorra will be stuck between two thrones, one Spanish and the other French?

If you look carefully at the manner in which the Bailiwicks have had their independence, and I do not in any way venture a thought on the Isle of Man, which has its own crown, it is evident that John I (Sansterre) rendered them privileged to be governed by their own laws and customs, not by English law. At the time, 1359, the English common law simply did not exist as a coherent body of law, and was in fact administered partly in Norman French. See The Statute of Westminster (the First) 1275. .

On that basis, it is clear that the reality runs against your argument, as that was one of the bases upon which the Islands’ specific status was negotiated with Europe in the first place. The British negotiator Lord Rippon was very clear on that when he presented the Island’s position in relation to the Single European Act proposal to the IOD in Spring 1992.

Your proposed assumption if correct, is such as to effectively subject the non-domiciled individual to a choice of the law of his domicile of origin, which could mean that technically the domicile of origin would revert despite the domicile of choice.

I stress here that the Jersey British citizen is at present a citizen of the European Union by virtue of his British Citizenship and is therefore entitled, whether a Channel Islander under the arrangements or not, to assert that his succession be addressed under the law of Jersey were he so to choose.

It is insufficient to simply assume that the Regulation is as arbitrary as you make out.

Without getting ghoulish, in the old days, the choice of English law in a will was sufficient to render a non domiciliary domiciled ante mortem, as not having severed all links with the legal system governing his personal legal position as of origin: the will being evidence of an intention not to take a domcile of choice…

I agree that it is likely that a disgruntled French otherwise forced heir might take the point that you are making, but to argue that a Jerseyman is unable to opt for the law where he lives and which is a historic privilege granted to him by the British Crown simply does not hold up to practical analysis; all the more so in that the European Union is not able to legislate for all the varying degrees of statehood and quasi statehood known to man.

I agree that the Regulation attempt to distinguish statehood by reference to a single point is simplistic, but I do not agree that it is universal to the point of wiping a system of law of equal historic, if not more senior age as the English common law “off the map”.

I stress here that the Crown Dependencies are not on the United Nations List of non-Self Governing Territories, Gibraltar is on that list as are the Cayman Islands and the Falklands.

I am standing up for the Granite Rock of my abode and the legal system which Lady Hale had no difficulty in recognising as such in the Barclay case. It may be indifferent to a Channel Islander living in the UK who can break a domicile of choice in the United Kingdom, but not in the contrary sense.

Peter Harris

I should mention that Paul Matthams, advocate and notary public, of Carey Olsen Jersey has also highlighted the dichotomy between the concept of British citizenship and the notion of the United Kingdom in a prior posting which I have been unable to locate on the new system.

Peter Harris

The issue as to children of EU nationals settling in the Island will also be a live one, in that most parents will seek to keep the Child’s EU nationality, post Brexit, in addition to the British nationality acquired on birth in the Island. The result will not become of immediate importance for the child until they pass away, but, for the Portuguese parents keeping an asset in Portugal, that may mean the Portuguese Court on application keeping jurisdiction over the whole estate otherwise subject to Jersey law, rendering the law applicable in the absence of clear Jersey domiciliation unclear.
It is at that point that the “clarity” of any distinction between the United Kingdom and its mainland subdivisions and the Crown dependencies as separate states is crucial.

Peter Harris

An interesting judgment has been published concerning the status of Gibraltar for the purposes of EU law in relation to the freedom to provide services under Article 56 (The Gibraltar Betting and Gaming Association Limited v Commissioners for Her Majesty’s Revenue and Customs and Her Majesty’s Treasury, Case C-591/15:

Although the context is different and I haven’t studied the details yet, what I find interesting are the following statements:

35 It is true that the Court has previously held, as observed by all the interested parties, that Gibraltar does not form part of the United Kingdom (see, to that effect, judgment of 23 September 2003, Commission v United Kingdom, C 30/01, EU:C:2003:489, paragraph 47, and 12 September 2006, Spain v United Kingdom, C 145/04; EU:C:2006:543, paragraph 15).

36 That fact is not, however, decisive in determining whether two territories must, for the purposes of the applicability of the provisions on the four freedoms, be treated as a single Member State. Indeed, the Court has previously held, in paragraph 54 of the judgment of 8 November 2005, Jersey Produce Marketing Organisation (C 293/02, EU:C:2005:664), that, for the purposes of the application of Articles 23, 25, 28 and 29 EC, the Channel Islands, of which the Bailiwick of Jersey forms part, the Isle of Man and the United Kingdom must be treated as a single Member State, notwithstanding the fact that those islands do not form part of the United Kingdom.

54 That interpretation of Article 355(3) TFEU, in conjunction with Article 56 TFEU, has no effect on the status of the territory of Gibraltar under international law, as it merely concludes that, since EU law is applicable to that territory as European territory for whose external relations a Member State, namely the United Kingdom, is responsible, the provision of services by operators established in Gibraltar to persons established in the United Kingdom constitutes, as a matter of EU law, a situation confined in all respects within a single Member State. That interpretation cannot be understood as undermining the separate and distinct status of Gibraltar.

I think that these statements are helpful for those of us who have argued in favour of a purposive interpretation of Brussels IV, for the purposes only of a question to be decided in relation to Brussels IV under EU law, without prejudice to the status of a territory for other purposes. So my personal view remains that it is likely that, in principle, a person with British nationality who had the necessary connection to Jersey could make a choice of Jersey law. However, I recognise the uncertainty and scope for contrary argument. I think the position would only be certain if the court made a ruling in the specific context of Brussels IV.

(I have saved some emails from the original discussion on 8-9 March 2016, but can’t now access that discussion on the forum.)

Carol Haworth
Thomson Reuters

The CJEU ruling in the Gibraltar case is very interesting indeed.

Carol Haworth is very aware that contrary to the CDs, Gibraltar is fully in the scope of the EU Tretaies, barring Agriculture and VAT, as a result of its acquisition by the U.K. by the Territory exchanges underestimate the Treaty of Utrecht, following the Spanish War of succession.

The position of the CDs, as I suspect Island lawyers may be tired of reiterating is almost the opposite.

The decision in Jersey Produce Marketing Organisation (C 293/02, EU:C:2005:664) to which both the CJEU and Carol refer applies only to the limited extent that the EU Treaty dispositions apply in the Islands. Those Treaty dispositions are limited to the free circulation of goods and agricultural products between the CDs and the EU including the UK. I leave Euratom out, as fissile material is rarely disposed of by testamentary disposition. They are specifically iterated in the Jersey case, which cannot, by any stretch of a overheated EU integrationalist imagination be extended into the European legal area which is the legal basis for Brussels IV. I stress here that I am a European citizen and lawyer with a tendency in that integrationalist direction.

The key lies in the phrase highlighted in italics

“… in paragraph 54 of the judgment of 8 November 2005, Jersey Produce Marketing Organisation (C 293/02, EU:C:2005:664), that, for the purposes of the application of Articles 23, 25, 28 and 29 EC, the Channel Islands, of which the Bailiwick of Jersey forms part, the Isle of Man and the United Kingdom must be treated as a single Member State, notwithstanding the fact that those islands do not form part of the United Kingdom.

54 That interpretation of Article 355(3) TFEU, in conjunction with Article 56 TFEU, has no effect on the status of the territory of Gibraltar under international law, as it merely concludes that, since EU law is applicable to that territory as European territory for whose external relations a Member State, namely the United Kingdom, is responsible, the provision of services by operators established in Gibraltar to persons established in the United Kingdom constitutes, as a matter of EU law, a situation confined in all respects within a single Member State. That interpretation cannot be understood as undermining the separate and distinct status of Gibraltar.”

In other words, it is the law that the CDs are only treated as being as one with the United Kingdom only for the purposes of specific articles of the EC now EU Treaties. They therefore are not treated as part of the United Kingdom where the Treaties are specifically expressed not to apply to them.

Here the fact that the United Kingdom opted out of the Regulation and the fact that the CDs therefore had no direct entrance via the UK into that part of the Legal space inherent in the Tampère, Stockholm and Amsterdam initiatives is also of weight and significance.

The Regulation (EU) N° 650/2012 simply does not and cannot apply to Jersey as part of the United Kingdom. Its provisions can apply to it, but only as a separate territory to the United Kingdom.

There is therefore no legal basis in any of the EU Treaties supporting the argument that Brussels IV can be re-read as making the CDs and the U.K. one member State for the purposes of that Regulation.

The ancient constitutional rules and precedents of the Constitutional relationship between the UK Crown and the Crown peculiars may not be at the forefront of most English Solicitors minds, understandably. However, to project abstract legal principle by way of theory into that legal space is self defeating as that legal space is not a void. The law simply does not admit it, whether that be the correct interpretation of the scope of article 355 TFEU. or the Third Protocol which sets the bounds. The CJEU stated that categorically in Department of Health and Social Security v Christopher Stewart Barr and Montrose Holdings Ltd. Case C-355/89. At paragraphs 7-9 it held that:
In that regard, it must be borne in mind that according to Article 227(5)© of the EEC Treaty, as amended by the Act of Accession, the provisions of the EEC Treaty are applicable to the Channel Islands and the Isle of Man only to the extent provided for by Protocol No 3.

Next, it must be pointed out that according to Article 1(3) of the Treaty of Accession, the provisions concerning the powers and jurisdiction of the institutions of the Communities are to apply in respect of Protocol No 3 which, according to Article 158 of the Act of Accession, forms an integral part thereof. Accordingly, the jurisdiction in preliminary ruling proceedings conferred on the Court by Article 177 of the Treaty extends to Protocol No 3.

Furthermore, it would be impossible to ensure the uniform application of Protocol No 3 in the Isle of Man if its courts and tribunals were unable to refer questions to the Court concerning the interpretation of that protocol, the interpretation and validity of the Community legislation to which that protocol refers, and the interpretation and validity of measures adopted by the Community institutions on the basis of Protocol No 3."

That clear limitation on the scope of article 4 and Protocol III in general was confirmed in a deportation case Rui Alberto Roque Pereira v His Excellency the Lieutenant Governor of Jersey Case C-171/96 [1998] ECR I-4607. Pereira Roque was a Portuguese national. However the distinction as to nationality was reviewed by the CJEC in the following tetms:

"35. As the Court held in paragraph 17 of that judgment [Barr and Montrose], however, the principle of equal treatment laid down by Article 4 of Protocol No 3 is not limited exclusively to the matters governed by Community rules which are referred to in Article 1 of that protocol; Article 4 must be regarded as an independent provision so far as its scope is concerned. It must be interpreted as precluding any discrimination between natural and legal persons from the Member States in relation to situations which, in territories where the Treaty is fully applicable, are governed by Community law.
36. It follows that, in so far as Mr Pereira Roque’s situation falls under, inter alia, rules on the free movement of workers in territories where the Treaty is fully applicable, the rule set out in Article 4 of Protocol No 3 applies to him, even if Community nationals cannot thereby obtain in the Channel Islands the benefit of the rules on the free movement of workers (see, on that point, Barr and Montrose Holdings, paragraph 18). That rule in Article 4 of Protocol No 3 applies in particular in the case of a deportation order made against him by the Jersey authorities.
37. In order to assess the implications of the principle of equal treatment laid down by Article 4 of Protocol No 3 in a situation such as that in the main proceedings, it is important to recall in the first place that the Court has held that the reservation contained in Article 48(3) of the EC Treaty permits Member States to adopt, with respect to the nationals of other Member States and on the grounds specified in that provision, in particular grounds justified by the requirements of public policy, measures which they cannot apply to their own nationals, inasmuch as they have no authority to expel the latter from the national territory or deny them access thereto (see Case 41/74 Van Duyn v Home Office [1974] ECR 1337, paragraph 22; Joined Cases 115/81 and 116/81 Adoui and Cornuaille v Belgium [1982] ECR 1665, paragraph 7; Case C-370/90 R v Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department [1992] ECR I-4265, paragraph 22; and Joined Cases C-65/95 and C-111/95 Shingara and Radiom [1997] ECR I-3343, paragraph 28).
38. That difference of treatment between a State’s own nationals and those of other States derives from a principle of international law which precludes a State from denying its own nationals the right to enter its territory and reside there, and which the EC Treaty cannot be assumed to disregard in the context of relations between Member States (Van Duyn v Home Office, paragraph 22).
39. That principle must also be complied with in applying Article 4 of Protocol No 3.
40. Turning next to Mr Pereira Roque’s argument that the requirement of equal treatment should nevertheless be applied between citizens of the United Kingdom who are not Channel Islanders and nationals of other Member States, it is true that Protocol No 3 distinguishes citizens of the United Kingdom having certain links with the Channel Islands from other citizens of the United Kingdom.
41. However, since Channel Islanders are British nationals, the distinction between them and other citizens of the United Kingdom cannot be likened to the difference in nationality between the nationals of two Member States.
42. Nor can relations between the Channel Islands and the United Kingdom be regarded as similar to those between two Member States because of other aspects of the status of those Islands. "

The wording of the relevant part of the ruling is instructive:

“2. Article 4 of Protocol No 3 is not to be interpreted as limiting the reasons for which a national of a Member State other than the United Kingdom may be deported from Jersey to those justified on grounds of public policy, public security or public health, laid down by Article 48(3) of the EC Treaty and set out in detail by Council Directive 64/221/EEC of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health. Article 4 of Protocol No 3 does, however, prohibit the Jersey authorities from making a deportation order against a national of another Member State by reason of conduct which, when attributable to citizens of the United Kingdom, does not give rise on the part of the Jersey authorities to repressive measures or other genuine and effective measures intended to combat such conduct.”

However, that does not go so far as to render the distinction as to jurisdiction and choice of law irrelevant in the application of Brussels IV. We are not talking here about distinctions arising between the nationals to two Member States

The cases of Barr and Montrose and Pereira Rocque are directed at the point that the general non-discrimination provision of article 4 of Protocol III should not be treated as a back door to require the Islands to force feed EU freedom of movement into the laws of the Islands, a matter which the Treaty article implementing the Protocol itself excludes.

The argument that the United Kingdom in some manner incorporates the CDs for the purposes of Brussels IV is therefore without any treaty or regulatory basis whatsoever. I would suggest that that would be the same even had the UK opted into the Regulation.

It is perhaps easier to grasp the issue figuratively in that potatoes, calabrese and mackerel are within, but Crapauds, and donkeys, even immigrant British equivalents are not. I would suggest that reducing the personal law relating to a Jersey resident to that of a vegetable and fertilising that with hitherto unknown substances might not be appreciated by the client.

The CDs, being the Bailiwicks of Guernsey, Jersey, and the Manx crown, yes, the Manx purchased it back, are therefore separate territories to the UK for the purposes of the Regulation, and for most others under the Treaty.

Might I suggest that rather than shooting from the hip in a reinvention of the Game of Thrones, English advisors might care to check their PI before projecting internal advice into a different legal system and independent territory from a purely insular perspective. There is no Iron Throne in play, merely a set of feudal crowns, and in this case ducal tiaras.

I should perhaps point out that there are forced heirship rules in Jersey for Jersey domiciliaries over movables similar, but not identical to the Scots legitime. However, for historical reasons, immovable property, whether in the Island or abroad is free, and Jersey law in effect over foreign immovables for the purposes of article 23. 2 (e) -(f) is that of direct seisin on death. A Norman rule which was present in English law until its repeal, insofar as land within the jurisdiction was concerned, by the Real Representatives Act in 1897. That fundamental change is a glaring omission from all present law courses, as being thought of as being of no modern relevance since 1925. Except now that it has become so under the unitary régime imposed by the Regulation, whether under the nationality option, or under the law of habitual residence of the testator or deceased.

Given that the law applicable on the exercise of the nationality option is stated as that at the time of the signature of the will, does anyone disagree with the position that a will dated before Brexit exercising the British nationality option with whatever system of law that invokes, will maintain EU citizen’s rights to certainty and security to the testator’s intentions flowing from the TEU and TFEU?

Peter Harris
Overseas Chambers