Monday, 29 January 2018

Jersey and Citizenship - Part 1

There was a most useful clarification on British citizenship in a debate in the States recently by HM Attorney General - Robert James MacRae QC. It is I think worth reprinting in its entireity.

A Most Useful Clarification
Mr. R.J. MacRae, H.M. Attorney General:

Before we rose last night, you kindly gave me the chance to consider overnight the position in relation to Constables and invited me to consider what conclusions I would offer to the Royal Court in circumstances where a non-British person was elected as Constable.

Any conclusions of the Attorney to the Court, were a non-British candidate to be elected as Constable, would of course be based on more meticulous research than that carried out to date. The question is of course as yet hypothetical. It is one thing to address the Assembly on a hypothetical question of law, another to present detailed submissions to the Court.

But, subject to that caveat, it is very probably the case that an aubain or alien could not hold public office at customary law. An aubain could not inherit property and one assumes that someone incapacitated at that very basic proprietary level where membership of the Parish Assembly depended upon land ownership would not have been eligible to occupy public office.

The very absence of case law may well be indicative of the position being so fundamentally accepted that it was never questioned or even articulated at any length. Public office, especially that which involved keeping the King’s peace, which the Constable was obliged to do and it is still contained in the oath, must have implied allegiance. After all, the Constable was an arm – bras – of the Royal Court – see Le Geyt, the 17th century Jersey lawyer - and the Court’s duty was ultimately to the King or Duke, it is of course the Royal Court.

The notion that someone with no affiliation to the kingdom or duchy might act in that capacity would have been repugnant at customary law. Of course in recent years the admission of non-British persons to the Honorary Police has made inroads into the assumption that might obviously historically have been made.

But before the customary law can be found to have altered various tests must be met as laid down by Routier, the 18th century Norman author, and in general terms unwritten law must have been altered by new introduction with the tacit agreement of the sovereign and the people as a result of new observance in departure from existing custom.

If I am correct in my understanding of the customary law position in relation to Constables, there is no instance in which an altered position or custom has been observed for a period of time, indeed there is no evidence of any instance to show that a new rule has been established with the tacit agreement of the sovereign and the people. The very uncertainty about the question perhaps militates against such tacit agreement having taken place.

The fact that British nationality has been taken without question as an incidence of membership of the States by Deputies when they were introduced in 1857 - Article 2 of the law in relation to them - and by Senators when they were introduced in 1948, suggests strongly that this was merely echoing what was taken to be the requirement in relation to the existing elected States Members who at that time of course were the Jurats and the Constables.

Therefore, my conclusions would be to the Royal Court that the threshold for any alteration in the customary law position has not been met and in other words I would most likely not move that a non-British candidate should be sworn in as Constable. Of course the court might take a different view, but those would be my conclusions in those circumstances.

Secondly, Senator Ozouf raised some questions before we adjourned last night in relation to nationality and citizenship.

The terms are often used interchangeably and indeed conflated but there is a general view that citizenship is a narrower concept, meaning legal status, in a country which confers a set of rights.

Nationality is a broader concept, usually denoting where someone is born, and can be acquired of course through inheritance from parents.

So, for example, a German person could acquire British citizenship, but no one would say that he or she had not retained their German nationality.

Of course in the U.K. (United Kingdom) there are at least 4 nationalities but only one form of citizenship, British. Having said that, to hold dual nationality or even simply non-British nationality does not necessarily, certainly in peace time, conflict with membership of this Assembly so long, of course, that the person in question was able to take the oath, which involves swearing allegiance to the Queen and her successors in the case of Deputies and Senators and to keep the King’s peace - the Queen’s peace - in the case of Constables.

Having said that, that leads indirectly to me considering whether or not there is any difficulty in the current arrangements, which do require Members of the Assembly to be British citizens from the perspective of the Discrimination Law or indeed the Human Rights Law.

In summary, there is no difficulty from either perspective.

The Discrimination Law prohibits direct and indirect discrimination because of inter alia a person’s race and race, for this purpose, includes a person’s nationality and national origin. But the law only applies to discrimination in relation to particular acts as set out in parts 3 to 6 of the law. None of those acts would appear to stretch to restrictions on a person’s ability to stand as a candidate for election.

From a European Convention on Human Rights perspective, the most relevant right is Article 3 of the First Protocol to the E.C.H.R. (European Convention on Human Rights), which provides that the high contracting parties undertake to hold free elections at reasonable intervals by secret ballot under conditions that will ensure the free expression of the opinion of the people in the choice of the Legislature.

Limitations on that right are permitted providing that they do not impair the very essence of the rights or deprive them of their effectiveness and provided they are imposed in pursuit of and proportionate to some legitimate aim.

A state is afforded a considerable margin of appreciation by the European Court in determining what is proportionate. The relevant European case law reflects that restrictions on eligibility to be a candidate may amount to a limitation on rights, however the European Court has accepted that stricter restrictions can be placed on the right to be a candidate than on the right to vote and accordingly the Jersey position would be E.C.H.R. compliant.

The leading case involves a Latvian and I do not propose to read from the judgment, but in particular interest for our purposes is the 2009 U.K. Supreme Court case, which considered a similar restriction on the right to stand for a candidate in Sark. In that case the Supreme Court held that a restriction on eligibility to stand for election in Sark, so that only British, Irish or some Commonwealth citizens who are resident could stand for election was compatible with the European Convention.

Interestingly, the Supreme Court noted in its reasoning that the evidence, not just in the previous European case, but also from various websites, was that almost all members of the Council of Europe have a nationality requirement on eligibility to stand for election to their Legislatures.

Accordingly, from the E.C.H.R. perspective, the arguments that were accepted by the U.K. Supreme Court in the Barclays case - the Sark case - apply with equal force to the position in Jersey and the restriction of the right to stand for election to British citizens would accordingly be lawful and not infringe the E.C.H.R.

Senator P.F.C. Ozouf: 

I know, but I am asking a question, is there something that is Jersey citizenship that would not require a British passport? That is my question.
Deputy R. Labey of St. Helier:

I wondered if the Attorney could assist with letting us know if the term “alien” is defined in law, for example if somebody had been resident in Jersey for over 10 years, paying income tax, had a social security card, on the electoral roll, paying rates, but were not a British national, would they be classed as an alien?

The Attorney General:

Dealing with the first question, if I may, there is no such concept as Jersey citizenship. This was something that was touched on in the Barclays case - the Sark case - in 2009 by the Supreme Court.

The Supreme Court held that, as the Bailiwick of Guernsey does not have a separate nationality, the Supreme Court accepted that imposing a nationality requirement based on the U.K. concept of citizenship and who or is not an alien under that law, as extended to our Islands, was justifiable. 

In relation to the position of aubain, I can reassure Deputy Labey that of course the rules against them holding land and the like have been abolished long ago, but the position remains that someone can remain a non-British citizen and thus accordingly an alien for a very long time, notwithstanding that one may contribute to the Island in other ways.

Deputy M. Tadier of St. Brelade:

Yes. It is just in relation to the wider context of whether or not specifically related to Deputies and Senators the British nationality requirement relates only to being sworn-in, so somebody could stand for election, get their nomination paper signed, as a non-British citizen be successfully elected, and then the problem would only arise after the people have given their verdict, so is that currently the case in this situation, and obviously for Connétables as well?

The Attorney General:

Under Article 7 of the States of Jersey Law, a person is not qualified for election unless they are a British citizen and they become disqualified if they cease to be a British citizen. I hope that answers the question.

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