European Union (Repeal and Amendment) (Jersey) Law 2018

A LAW to repeal the European Union (Jersey) Law 1973 and the European Economic Area (Jersey) Law 1995, to amend the European Union Legislation (Implementation) (Jersey) Law 2014, and for related purposes

Adopted by the States                                                  6th March 2018

Sanctioned by Order of Her Majesty in Council          23rd May 2018

Registered by the Royal Court                                        1st June 2018

THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law –

1        Interpretation

In this Law “2014 Law” means the European Union Legislation (Implementation) (Jersey) Law 2014[1].

2        Repeal of European Union (Jersey) Law 1973

The European Union (Jersey) Law 1973[2] is repealed.

3        Repeal of European Economic Area (Jersey) Law 1995

The European Economic Area (Jersey) Law 1995[3] is repealed.

4        Amendment of long title to 2014 Law

In the long title to the 2014 Law –

(a)     for the words “or the Minister for External Relations” there are substituted the words “and Ministers”;

(b)     for the words “the Treaty of Lisbon” there are substituted the words “the withdrawal of the United Kingdom from the European Union”.

5        Substitution of Article 1 of 2014 Law: interpretation of 2014 Law

For Article 1 of the 2014 Law there is substituted the following Article –

“1      Interpretation

(1)     In this Law, unless the context otherwise requires –

‘EU’ means the European Union, being the Union established by the Treaty on European Union, and includes, if and in so far as the context permits or requires, the European Atomic Energy Community established by the Euratom Treaty;

EU Court’ means the Court of Justice of the European Union and includes, if and in so far as the context permits or requires, the EFTA Court established under the EEA Agreement;

‘EU institution’ means any institution of the EU;

EU instrument’ means any instrument issued by an EU institution;

‘EU provision’ means any provision that –

(a)     is contained in or arises under any of the EU Treaties; or

(b)     comprises or is contained in an EU instrument.

EU Treaties’ means –

(a)     the Treaty on European Union;

(b)     the Treaty on the Functioning of the European Union;

(c)     the Euratom Treaty; and

(d)     the EEA Agreement;

‘implemented EU provision’ has the meaning given by Article 5(1);

‘implementing Jersey provision’ means a provision of an enactment, whenever made, so far as that provision –

(a)     is made, or is to be treated as made, under Article 2 or under Regulations made under that Article;

(b)     is otherwise made for a purpose described in Article 2(2); or

(c)     relates otherwise to the EU or the European Economic Area;

member’, in the expression ‘member State’, refers to membership of the EU;

‘Minister’ means the Minister for External Relations;

‘repeal day’ means the date on which the European Union (Jersey) Law 1973[4] is repealed;

‘treaty’ includes any international agreement, and any protocol or annex to a treaty or international agreement.

(2)     For the purpose of paragraph (1) –

(a)     the ‘Treaty on European Union’ is the treaty of that name signed at Maastricht on 7th February 1992, as amended by any treaty up to the date on which the European Union (Repeal and Amendment) (Jersey) Law 2018[5] is adopted by the States;

(b)     the ‘Treaty on the Functioning of the European Union’ is the treaty of that name signed (as the Treaty Establishing the European Economic Community) at Rome on the 25th March 1957, as amended by any treaty up to the date on which the European Union (Repeal and Amendment) (Jersey) Law 2018 is adopted by the States;

(c)     the ‘Euratom Treaty’ is the Treaty establishing the European Atomic Energy Community signed at Rome on 25th March 1957, as amended from time to time by any treaty; and

(d)     the ‘EEA Agreement’ is the Agreement on the European Economic Area signed at Oporto on 2nd May 1992, as amended from time to time by any treaty.

(3)     The Minister may, with the approval of the Council of Ministers, by Order amend the definition ‘EU Treaties’ in paragraph (1), and the definitions in paragraph (2), to add any other treaty –

(a)     that is entered into between the United Kingdom and the EU, in connection with the withdrawal of the United Kingdom from the EU;

(b)     that is entered into between the United Kingdom and the EU, in connection with the relationship between the United Kingdom and the EU at any time after that withdrawal;

(c)     that is entered into by Jersey, or is extended to Jersey, and, in the opinion of the Minister, is related to that withdrawal or that relationship;

(d)     that is entered into by the EU, or by all of the member States, and another country, in connection with the accession of that country to the EU; or

(e)     that is entered into by all of the member States and by no other party, whether –

(i)      to amend any of the EU Treaties,

(ii)      to provide for the withdrawal of a member State (other than the United Kingdom), or

(iii)     for any other purpose.

(4)     An Order under paragraph (3) is not to be read as altering, whether by virtue of provision made under Article 2(4)(b)(iii) or otherwise –

(a)     the effect of any Regulations under Article 2, if those Regulations were made before the making of the Order; or

(b)     the effect of any Order made under Regulations falling within sub-paragraph (a).

(5)     An Order under paragraph (3) may –

(a)     amend any enactment (including this Law) to reflect a change in terminology or numbering arising out of an amendment, by the treaty that is added to paragraph (1) or (2), to any of the EU Treaties; and

(b)     make any provision incidental or consequential on such a change in terminology or numbering.”.

6        Amendment of Article 2 of 2014 Law: implementation of EU provisions

In Article 2 of the 2014 Law –

(a)     paragraph (1) is deleted;

(b)     in paragraph (2)(a) the words “, whether or not one in respect of which the Minister may make an Order under paragraph (1)” are deleted;

(c)     in paragraph (3) for the words “made under paragraph (1) or (2) includes” there are substituted the words “made under paragraph (2) includes”;

(d)     in paragraph (4) for the words “the generality of paragraphs (1) to (3), an Order or Regulations under this Article” there are substituted the words “the generality of paragraph (3), Regulations under paragraph (2)”;

(e)     in paragraph (4)(b)(i) for the words “in the Order or Regulations” there are substituted the words “in the Regulations”;

(f)      in paragraph (4)(b)(ii) for the words “any one or more of Jersey, Guernsey and the Isle of Man” there are substituted the words “any one or more of Jersey, Guernsey, the Isle of Man and the United Kingdom”;

(g)     in paragraph (4)(b)(iii) for the words “European Court” there are substituted the words “EU Court”;

(h)     after paragraph (4)(c) there is inserted the following sub-paragraph –

“(ca)  confer a power or impose a duty on the Minister, or on any other Minister, to make, by Order, any provision that may be made by the Regulations;”;

(i)      in paragraph (4)(d) the words “Minister or” are deleted;

(j)      in paragraph (5)(b) for the words “the Order or Regulations” there are substituted the words “the Regulations”;

(k)     in paragraph (5)(c) for the words “or the 1973 Law” there are substituted the words “or the Human Rights (Jersey) Law 2000[6]”;

(l)      in paragraph (6) for the words “by Order under paragraph (1)” there are substituted the words “by Order under Regulations under paragraph (2),”;

(m)    for paragraphs (6)(a) and (b) there are substituted the following sub-paragraphs –

“(a)    imposing a penalty of imprisonment for more than 2 years for a criminal offence;

(b)     falling within either of paragraphs (5)(a) or (c);

(ba)    taking effect from a date earlier than that of the making of the Order containing the provision; or”.

7        Repeal of Articles 3, 3A and 4 of 2014 Law: sanctions

Articles 3, 3A and 4 of the 2014 Law are repealed.

8        Amendment of Article 5 of 2014 Law: interpretation of EU provisions, and of Regulations and Orders under 2014 Law

In Article 5 of the 2014 Law –

(a)     for paragraph (1) there is substituted the following paragraph –

“(1)    In this Article ‘implemented EU provision’ means an EU provision in respect of which Regulations under Article 2, or an Order under such Regulations, purport –

(a)     to give effect, wholly or partly, to that EU provision; or

(b)     to deal with matters arising out of or related to that EU provision.”;

(b)     in paragraph (2) for the words “in Regulations or an Order under Article 2” there are substituted the words “in Regulations under Article 2, or in an Order under such Regulations,”;

(c)     in paragraph (2)(b) for the words “defined in the 1973 Law or in this Law” there are substituted the words “defined in this Law”;

(d)     for paragraph (3) there are substituted the following paragraphs –

“(3)    For the purposes of all legal proceedings any question as to the validity or meaning of an implemented EU provision is to be treated as a question of law and is to be for determination as such in accordance with the principles laid down by, and any relevant decision of, the EU Court.

(3A)   Judicial notice is to be taken of the EU Treaties, of the Official Journal of the EU and of any decision of, or expression of opinion by, the EU Court on any such question, and the Official Journal is admissible as evidence of any EU instrument, or of any other act of the EU or of any EU institution, communicated by the Official Journal.

(3B)   Evidence of any EU instrument, including any judgment or Order of the EU Court, or of any document in the custody of an EU institution, or any entry in or extract from such a document, may be given in any legal proceedings by production of a copy certified as a true copy by an official of that institution.

(3C)   A document purporting to be a copy certified as described in paragraph (3B) is to be received in evidence without proof of the official position or handwriting of the person signing the certificate.”;

(e)     in paragraph (4) for the words “Regulations or an Order under Article 2 may provide that paragraph (3)” there are substituted the words “Regulations under Article 2, or an Order under such Regulations, may provide that any of paragraphs (3) to (3C)”.

9        Insertion of Articles 5A and 5B in 2014 Law: provision by Regulations for consequences of UK withdrawal from EU

After Article 5 of the 2014 Law there are inserted the following Articles –

“5A   Regulations to deal with deficiencies arising from withdrawal of UK from EU

(1)     The States may by Regulations make such provision as the States consider appropriate to prevent, remedy or mitigate any matter appearing to the States to amount to –

(a)     a failure, arising from a relevant change, of an implementing Jersey provision to operate effectively; or

(b)     any other deficiency of any kind, arising from a relevant change, in an implementing Jersey provision.

(2)     For the purpose of this Article a relevant change is –

(a)     the withdrawal of the United Kingdom from the EU;

(b)     the ending of the arrangements for Jersey set out in the EU Treaties before that withdrawal;

(c)     the repeal of the European Union (Jersey) Law 1973[7];

(d)     the repeal of the European Economic Area (Jersey) Law 1995[8]; or

(e)     a matter falling within any of sub-paragraphs (a) to (d) when taken together with –

(i)      the operation of any provision made by or under this Law, or

(ii)      the interaction between any such provisions.

(3)     Paragraphs (4) to (6) of Article 2 –

(a)     apply to Regulations made under this Article as they apply to Regulations made under Article 2; and

(b)     apply accordingly to an Order, made under Regulations that are made under this Article, as they apply to an Order made under Regulations that are made under Article 2.

(4)     Without prejudice to the generality of paragraph (3), Regulations under this Article may in particular –

(a)     provide for a function of an EU institution or of a public authority in a member State (including the making of an EU instrument of a legislative character or the provision of funds) to be –

(i)      exercisable instead by a public authority (whether already or newly established) in Jersey or in the United Kingdom, or

(ii)      replaced, abolished or otherwise modified;

(b)     provide for the establishment of a public authority in Jersey to carry out a function provided for by Regulations under this Article; or

(c)     enable provision falling within sub-paragraph (a) or (b) to be made by an Order under the Regulations.

5B     Regulations to prevent or remedy breaches of international obligations following withdrawal of UK from EU

(1)     The States may by Regulations make such provision as the States consider appropriate to prevent or remedy any breach of an international obligation that applies or extends to Jersey, being a breach that appears to the States to arise from a relevant change, within the meaning of Article 5A.

(2)     Paragraphs (4) to (6) of Article 2 –

(a)     apply to Regulations made under this Article as they apply to Regulations made under Article 2; and

(b)     apply accordingly to an Order made under Regulations that are made under this Article as they apply to an Order made under Regulations that are made under Article 2.

(3)     No Regulations may be made under this Article after the end of the period of 2 years beginning with the repeal day.”.

10      Insertion of Article 6A in 2014 Law: consequential, transitional and other provision

After Article 6 of the 2014 Law there is inserted the following Article –

“6A   Consequential, transitional and other provisions related to repeal of 1973 Law

(1)     The States may by Regulations make such transitional, consequential incidental, supplementary or savings provisions as they consider necessary or expedient in respect of –

(a)     the repeal of the European Union (Jersey) Law 1973[9];

(b)     the repeal of the European Economic Area (Jersey) Law 1995[10]; or

(c)     an amendment to this Law made by the European Union (Repeal and Amendment) (Jersey) Law 2018[11].

(2)     Regulations under paragraph (1) may amend any enactment, including any Law other than this Law or the Human Rights (Jersey) Law 2000[12].”.

11      Citation and commencement

(1)     This Law may be cited as the European Union (Repeal and Amendment) (Jersey) Law 2018.

(2)     This Law comes into force on such day or days, and time or times, as the Minister may, with the approval of the Council of Ministers, by Order appoint.

(3)     For the purpose of paragraph (4) –

(a)     an “amended power” is a power to make Regulations or an Order, that is conferred by a provision of the 2014 Law as amended by a provision of this Law; and

(b)     a “treaty addition Order” is an Order made under Article 1(3) of the 2014 Law, as amended by Article 5 of this Law, to add a treaty to the definition “EU Treaties” in Article 1 of the 2014 Law.

(4)     Without prejudice to the generality of Article 16 of the Interpretation (Jersey) Law 1954[13] –

(a)     an amended power may be exercised at any time after the registration of this Law by the Royal Court, subject to the restriction that the Regulations or Order, made under the amended power, may not come into force until the commencement of the provision of this Law that amends the amended power;

(b)     if a treaty addition Order is made as described in sub-paragraph (a), Regulations may, at any time after the making of that Order, be made under Article 2 of the 2014 Law as amended by Article 6 of this Law and as read with the definition amended by the treaty addition Order, subject to the restriction that the Regulations may not come into force until the commencement of the treaty addition Order;

(c)     if Regulations are made as described in sub-paragraph (a) or (b), and confer a power to make an Order, that Order may be made at any time after the making of the Regulations, subject to the restriction that the Order may not come into force until the commencement of the Regulations.

l.-m. hart

Deputy Greffier of the States

 


 



[1]                                    chapter 17.245

[2]                                    L.18/1973 (chapter 17.210)

[3]                                    L.17/1995 (chapter 17.205)

[4]                                    chapter 17.210

[5]                                    L.17/2018

[6]                                    chapter 15.350

[7]                                    chapter 17.210

[8]                                    chapter 17.205

[9]                                    chapter 17.210

[10]                                   chapter 17.205

[11]                                   L.17/2018

[12]                                   chapter 15.350

[13]                                   chapter 15.360


Page Last Updated: 25 Jun 2018