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.
Commenting on today’s judgment, Jersey’s Attorney General, Mark Temple KC said:
"I am pleased that the Judicial Committee has allowed this appeal and overturned the
declaration of incompatibility. I explained at the hearing of the appeal that the matter was of
great importance for Jersey and that the Court of Appeal’s decision was the first time that a
declaration of incompatibility had been made by a court in Jersey. I am therefore also grateful
to the Judicial Committee for providing authoritative guidance concerning applications for
declarations of incompatibility under the Human Rights (Jersey) Law 2000 and whether
legislation pursues a legitimate aim.”
Deputy Elaine Millar, Minister for Treasury and Resources, commented: “I also welcome this judgment. It is vital that Jersey has
a robust domestic legal framework which enables the Island to comply with its international
obligations – in this case Jersey’s obligations under the OECD Mutual Assistance Convention,
which are important for our financial services industry – in a timely and effective way. The
States Assembly enacted the 2018 Law to ensure that public authorities in Jersey should not
be constrained by the threat of large, unexpected costs liabilities when they are acting to
provide assistance in good faith to other countries."
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 were raised by Imperium.
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​.​​
gov.je