Jersey’s first declaration of incompatibility with human rights law [24 June 2025]

Jersey’s Attorney General, Mark Temple KC, and the Jersey Competent Authority, the Minister for Treasury and Resources, have succeeded in a landmark appeal before the Judicial Committee of the Privy Council. 

In a ruling handed down this morning,

• Jersey’s highest appellate court overturned the declaration made by the Court of Appeal last year under the Human Rights (Jersey) Law 2000 that the International Co-operation (Protection from Liability) (Jersey) Law 2018 is incompatible with human rights.
• This was the first declaration of incompatibility made by a Jersey court. 

That Law, introduced in 2018, includes provisions that place limits on the costs and damages that can be awarded against public authorities in Jersey where public authorities have made decisions in good faith to fulfil a request from the authority of another country. The Court of Appeal had found that these provisions infringed Article 6(1) of the European Convention on Human Rights (ECHR) – ie the right to a fair trial in a civil case.

However, the Attorney General and Jersey’s Competent Authority in tax information exchange cases have now succeeded, on appeal, in reversing that decision and other findings of the Court of Appeal. 

The Court of Appeal had made the declaration in proceedings brought by Imperium Trustees (Jersey) Limited to challenge a notice issued in 2022 by the office of the Comptroller of Revenue on behalf of the Minister as the Jersey Competent Authority to produce tax information, for exchange with the authorities of Belgium, concerning a Jersey law trust administered by Imperium. 

The Judicial Committee has found, contrary to the Court of Appeal, that the essential nature of those underlying proceedings is a “tax matter” as the core issue to be resolved is the lawfulness of a notice to produce tax information, not one of the peripheral issues relating to confidentiality that Imperium raised. 

In the case law of the European Court of Human Rights, tax matters form part of what is known as “the hard core of public authority prerogatives”, being areas of law involving the state's exercise of its public authority, which fall outside the scope of what are considered “civil rights and obligations” within Article 6(1) ECHR. 

As a result, Article 6(1) ECHR was found not to be engaged in the Imperium case, and this was sufficient for the Judicial Committee to uphold the whole appeal. The Judicial Committee chose, however, to make a number of further points in relation to the Court of Appeal’s wider decision and the procedure it had followed in the context of rights under the ECHR. 

In particular, the Judicial Committee was critical of the declaration having been made in an abstract manner without any actual evidence of the infringement of the rights of the persons before the court, namely Imperium.

The Board said it was not open for the Court to do so by reference to litigants and matters that were not before the Court. 

The justices also took issue with how the majority of the Court of Appeal had approached the question of whether the 2018 Law pursued a legitimate aim. They approved the statement by Jersey Justice of Appeal James Wolffe KC, who had dissented on this point in the Court of Appeal, that the correct approach is to have regard to the Law's underlying social purpose, to focus not on what the measure does but the reason why it was enacted. Therefore, it was permissible for the Court to look beyond the provisions of the Law itself; to examine materials such as the Projet de Loi and the speeches made by the Ministers and Scrutiny Panel members in the States Assembly as recorded in Hansard.

The judgment of the Judicial Committee is available here​.​​ https://jcpc.uk/uploads/jcpc_2024_0044_judgment_327dbe54ad.pdf