THE Attorney General may appeal to the Privy Council following a landmark court ruling which declared a 2018 Jersey law – intended to encourage tax information exchange – incompatible with the European Convention on Human Rights.
The Law Officers’ Department has confirmed that Mark Temple is considering an application for special leave to appeal directly to the Privy Council’s Judicial Committee, after the Court of Appeal this month rejected an application to challenge the first declaration of incompatibility made under the 24-year-old Human Rights (Jersey) Law.
The case, originally brought by Imperium Trustees (Jersey) Ltd, concerns a provision in the International Co-operation (Jersey) Law preventing courts from making costs orders against certain public authorities, in this case the tax department, even where they might act unlawfully.
The Attorney General argued that the provision was necessary to avoid the so-called “chilling effect” that could discourage co-operation by public authorities because of the fear of incurring costs from the public purse. However, the Court of Appeal decided that this contravened the principle of “equality of arms”, which gives parties in court the same opportunity to present their case without being at a disadvantage, and was not proportionate to the aims of the legislation. Consequently, it declared the law at odds with the Human Rights Convention.
Although that declaration has no immediate effect, it creates an expectation that the States will amend or repeal the law.
In its latest judgment, the Court of Appeal – comprising Sir William Bailhache, the Rt Hon James Wolffe and Paul Matthews – said it was agreed that the court had to address three questions when deciding whether the law was incompatible with the convention: was the rule a restriction on the right of access to a court, did it pursue a legitimate aim and was there a reasonable relationship between the means employed and the aim to be achieved?
Sir William, the panel’s president, said that there was no dispute that, in principle, the rule operated as a restriction on the right of access to a court, and that two of the three judges did not consider the aim of the legislation to be to avoid the “chilling effect” on the Island’s international obligations to give assistance in tax matters: it was simply protection of the States budget.
He continued: “However, the court went on to consider whether, if [this] had been the aim of the legislation, the costs rule bore a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. On that issue the court was unanimous that it did not, and hence made the declaration of incompatibility.”
Sir William said that it was necessary for the legislature to have considered the various points in question, which “there was little or no evidence [it] had done”.
He said: “One would have expected any debate in the legislature to have reflected at least a recognition of different ethical positions which might have been taken on the draft law. In this case there was nothing. It is hard to assert that therefore the margin of appreciation to the legislature carried much weight in this particular case.”
A spokesperson for the Law Officers’ Department confirmed that an application for special leave to appeal directly to the Privy Council’s Judicial Committee was now being considered.
