FUNDAMENTAL questions about Jersey’s centuries-old constitutional relationship with the UK are likely to come under the spotlight in the Court of Appeal as a result of a dispute over stamp duty on second homes.
Lewis Buckley had challenged the Treasury Minister, the Comptroller of Revenue and the Judicial Greffier over the tax increases in last year’s budget, which effectively raised the cost of buying two properties in the Horizon development on the Waterfront which he was already committed to purchase. But, in questioning the legality of that budget law measure, Mr Buckley has opened the door on much deeper questions about how free the Island is to take its own political decisions and act independently of Westminster.
Commissioner Sir William Bailhache – sitting as a single judge in the Court of Appeal – said it was “surprising” that such “constitutional points of significance” had not been the subject of any debate in that court before.
“In my judgment it would be right that the arguments receive the attention of the Court of Appeal,” Sir William said.
Seven years ago Mr Buckley agreed to purchase off-plan two flats in the Horizon development with penalty clauses if he failed to complete the deal. He was later hit by the amendment to the 2022 Government Plan which led to higher rates of stamp duty last year for properties not bought as a primary residence.
Mr Buckley complained that this was unfair and applied for a judicial review of the decision, which was initially limited in its scope by Commissioner Matthew Thompson. However, Sir William overturned that decision on appeal, agreeing that the review should be much wider.
He said: “With respect to the Commissioner, what is not immediately tackled in his judgment is the extent to which the legislation operates unfairly having regard to the fact that it would ‘bite’ upon people who were already contractually bound to a purchase, under penalty, having paid a substantial deposit.”
That decision allows the full extent of Advocate Harriet Brown’s arguments – on behalf of Mr Buckley – about why the legislation was flawed to be heard by the Court of Appeal. She claimed that, because the budget law had not received Royal assent and been registered in the Royal Court by 1 January last year, when the tax changes were introduced, its provisions could not be enforced at that time.
“Accordingly, the argument was made that until such time as His Majesty in Council gave assent to the legislation, it remained open to judicial review. Furthermore, it was, for similar reasons of lack of supremacy, open to the court to review the States Assembly acting in its legislative capacity,” Sir William said.
But the Commissioner went on to set out a series of specific questions relating to the Island’s unwritten constitutional relationship with the UK which he said it would be helpful for the court to hear submissions on: could the Royal prerogative be used to introduce legislation in Jersey without the agreement of the States; if so, did the Royal Court have the power to prevent the enacting of such legislation; and could the Royal Court review any refusal by the Privy Council to recommend Royal assent for legislation which had been adopted by the States Assembly.
The case is due to return to the Court of Appeal next month.
