APPENDIX 1
Memorandum from Mr Michael Dun, Jersey
Once again I write to lament the absence of
any attention afforded to the Dependencies in the current Human
Rights Annual Report and I attach a copy of my previous letter
on this subject in response to the 1999 Report (My letter extracted
from Appendix 15 of the 1999 Report[1]).
Plenty of fine sounding words in both reports
but no improvement so far as the lesser British territories are
concerned and I wonder why?
In my previous submission I drew attention to
yet an earlier complaint of mine from 1993 (published in the Appendices
of the "Europe after Maastricht" Report[2])
which sought to outline similar defects with regard to the Dependencies
and their international status and Human Rights obligations. I
attach a copy.
I might as well not have bothered either in
1993 or 1999 and I do wonder whether there is any point in my
responding again to the Committee's invitation? However, undaunted
by historic governmental indifference I have prepared the simple
memorandum which follows and hope that the habit of decades of
neglect might yet be broken.
Michael Dun
20 November 2001
1. As the 2001 Report implies, it is the
application of internationally agreed standards throughout the
world that lies at the very foundation of Human Rights and I suggest
that it would be absurd to disregard communities just because
they are small in geographic or population terms. History has
in any case demonstrated time and time again that it is the very
smallness of territories that so often demands or provokes attention
from larger countries or bodies. Whether it be military invasion
in the South Atlantic or chemical pollution in the North or the
use of "off shore" jurisdictions for money laundering
or tax and/or regulation avoidance—there are always issues
arising in the smallest territories throughout the world that
engage the widest attention. Many of these issues have obvious
Human Rights implications but sometimes these are not so clearly
evident.
2. I believe that it is essential for the
world's smallest places to be monitored to ensure the well-being
of their inhabitants and also that practices are not encouraged
which might be harmful to others. The British government may have
only limited powers to interfere in some foreign jurisdictions
but it does have the powers and the duty to monitor and report
upon British Territories—notably the Dependencies—and
I do not think that these can be properly omitted from the Human
Rights Report.
3. The British Dependencies are ultimately
the responsibility of HM Government whether it be for their own
good government or the welfare of British subjects wherever they
might be. There may be other reasons to justify HM Government
supervision and the intervention in the affairs of the Dependencies
but Human Rights would seem to be an obvious and wide area for
active participation from Westminster.
4. To be British must carry with
it the inevitable requirement to adhere to recognisable standards
of behaviour. Remoteness from London or smallness of territory
cannot be considered as some sort of automatic licence for lesser
standards.
5. Whilst Chapter 2 of the Report claims
as a truism that "human rights begin at home" one difficulty
for those concerned with the British Dependencies is that they
are neither "home" nor "foreign" when it suits.
This is especially true for the Channel Islands and the Isle
of Man which are officially part of the British Isles but
are not embraced (not, in fact, even mentioned) for the purposes
of this reporting on the well-being of human rights throughout
the UK. Unfortunately the Dependencies do not apparently fall
within anybody's responsibility for "promoting human rights
abroad" or "protecting the rights of British nationals
abroad" either. Thus British people can very easily find
themselves in so called British territories where London style
British standards do not apply to them and where even lesser standards
may apply to people who are not British.
6. Britain we are told (p23) "welcomes
international scrutiny" and "the UK believes in the
values of scrutiny, transparency and accountability" but
the initiatives subsequently described do not, for the most part,
apply to the Dependencies.
7. The Reporting Process before the UN is
largely a sham activity because there is little or no encouragement
for non—governmental response. In fact, throughout the Dependencies
there is an almost total absence of NGO participation at all.
This absence in itself warrants some form of an inquiry but why
is the Westminster Foundation for Democracy (for example) constituted
to support and fund projects all over the world but specifically
not in the Dependencies? Since the Dependencies have small populations
(for example) it is especially difficult for NGO's to evolve spontaneously
from within them so that the need for active assistance in their
creation and participation would seem to be a very suitable project
for a properly constituted Westminster Foundation (or British
Council) or some other agency.
8. Equally, criticism for the failures in
Dependencies' participation could be levelled at the Home Office
or the Foreign Office (and now the Lord Chancellor's Office) and,
of course, their own governments are not blameless either.
9. Plenty of fine words from Robin Cook,
John Battle, Baroness Scotland and others are included in the
Report but where is any awareness displayed of the Dependencies
and their unusual problems? It should be noted too that Annex
6 of the Report claims to show the "Status of Ratifications
of the Principal International Human Rights Treaties" but
it does not refer to the Status in any British Dependency. A casual
reader might be misled into believing that they apply as for the
UK.
10. Is there any good reason why the Human
Rights Project Fund should not be directed at the problems arising
in the Dependencies?
11. This year, HM Inspector of Prisons visited
and reported on Jersey's prison facilities and drew attention
to serious Human Rights failings. It is significant that "prison
reform" and the promotion of the rights of vulnerable groups
(women, children and disabled persons) are all specifically prioritised
under the HRPF and these are evidently all matters that need to
be addressed in Jersey (and no doubt in the other Dependencies
too).
12. It is also evident that Human Rights
abuses are not being adequately identified and challenged from
within the Dependencies. In part it is now essential for outside
agencies (like the Prison Inspectorate) to stimulate that interest
which would otherwise be identified by lobby groups, NGO's and
politicians in larger jurisdictions. However, it is also evident
that a reliance upon outside "ad hoc" awareness is not
only inadequate but it also does little to involve or educate
residents of the Dependencies in Human Rights issues on a comprehensive
basis.
13. There is need for a properly funded
and Westminster led initiative throughout all British Territories
to establish similar standards of Human Rights awareness and compliance.
14. The recent introduction by the Foreign
Office of a policy to prohibit publication of Reports to the UN
from the Dependencies until they have been submitted to the UN
has created immense barriers to any potential NGO participation,.
From personal experience (with regard to reports from Jersey under
the Covenants on Civil and Political Rights on Economic Social
and Cultural Rights or the Convention to Eliminate Racial Discrimination)
it has proved virtually impossible to determine when (or where)
the Reports are to be considered and when and in what form (even
if there was adequate time) any comments should be submitted.
Furthermore, it should also be considered that the authorship
of the reports prepared for the Dependencies is largely anonymous
and that the contents of such Reports may be unknown even to those
members of Government supposedly responsible for the relevant
department or policies referred to. For individuals the task of
monitoring the reports even from their own Dependency alone is
a mammoth one and the need for support from others is all the
more acute.
15. Typically, in Jersey there are no NGO
groups and even though some individuals may be members of UK based
NGO's (like Justice, Interights, Liberty) these organisations
have no capacity or knowledge to assist with the Dependencies'
reports or to advise at length. Individuals in more distant and
isolated places will experience even more difficulties. Thus the
Reporting Process is rendered largely meaningless.
16. In reality it has to be concluded that
the Reporting Process for the Dependent Territories is little
more than a PR exercise designed to give the impression of compliance
with International obligations. The process is a bureaucratic
fortress against scrutiny, transparency and accountability and
needs urgent examination and reform.
17. It is beyond my resources or knowledge
to write about all the Dependencies and it is a practical difficulty
for any organisation (even Government) to take on such a task.
Nevertheless, it does seem undesirable for the UK Government to
sign up for international obligations on behalf of the Dependencies
if there is no intention to implement them.
18. My own knowledge is really limited to
the Channel Islands and the Isle of Man and even this small canvas
demands an understanding of at least three quite separate and
distinct systems of government with their own legal systems and
laws. Within the Bailiwick of Guernsey there are further and differing
arrangements in Alderney and Sark which make it ever more difficult
to comprehend the Bailiwick as a whole in the context of human
rights compliance. However, it is significant that even in the
tiny motor free island of Sark, with a population of about 600
persons, changes in government procedure and inheritance law are
already being proposed as a direct result of individual challenges
or threatened challenges before the European Court of Human Rights.
19. I cite the Sark example to demonstrate
that even the smallest territory can be a breeding place for human
rights abuses and that the need for proper monitoring applies
as much to the smallest as to the largest place.
20. Inevitably, the bureaucratic burden
that falls upon small places like the Dependencies may not be
suitable under historic ways of government and administration
but I do not believe that human rights standards should be relaxed
to accommodate them. Rather, it is the ways of government and
administration that must now change to promote even minimal standards
of human rights and this needs to be examined prior to the production
of the next Human Rights Report from the FCO.
21. If the UK Government is unable to achieve
Human Rights compliance in a little place like Sark then it is
hardly likely to succeed in Afghanistan.
22. It is significant that Jersey (population
about 88,000), one of the World's wealthiest places and half an
hour's flying time from London, has no legislation in place against
discrimination of any kind.
23. Thus, there is no Race Relations Law,
no Sex Discrimination Law or Women's Unit or Minister for Women,
no Disability Discrimination Law or Disability Rights Commission.
There is virtually no Employment Protection legislation, no unemployment
benefit, no Trades Union legislation and no Consumer Protection
legislation.
The Island has an obscure legal system with
outdated laws and procedures which include extensive use of the
French language and virtually no law text books published since
the nineteenth century.
24. Jersey has not agreed to ratify the
UN Convention on the Rights of the Child or the UN Convention
for the Elimination of Discrimination against Women. Jersey has
not agreed either to ratify the Council of Europe Social Charter.
25. So much for 1,000 years of loyal allegiance
to the British Crown, claims for "joined up Government"
and the alleged commitment of the British Government to promote
Human rights world wide!
26. Jersey has attracted much bad publicity
because of its role as a "Finance Centre" and it is
also significant that many of the other British Dependencies derive
substantial income from this vast international business too.
Whilst organisations such as the UN, OECD, EU and OXFAM have all
condemned Jersey and the other finance centres for the harm that
could or has resulted from such business, there has been very
little governmental or other initiative to look at the implications
for the Dependencies themselves and the peoples who reside on
them.
27. For Jersey, the Finance business now
accounts for more than 60 per cent of the Island's revenue whilst
other, more substantial and traditional activities like Tourism
and Agriculture appear to be doomed. Such an imbalance in any
economy would at best be worrying but the options for a community
such as Jersey are unusually limited by virtue of its constitutional
relationship with Britain, the EU and the rest of the world.
28. The inevitable demise of the Finance
Industry in all the "off shore" centres is a scenario
which the residents of these places are reluctant to contemplate
but in the meantime, there is little enthusiasm to examine critically
the distorted economies that have already been created.
29. In the context of the UN's CESCR (for
example) it would seem folly not to have regard for both the short
and long term implications of so much reliance upon a transient
"Finance Centre" economy. It would also seem to be misleading
to submit Reports to the UN which suggest that a "Finance
Industry" dominated economy is more beneficial than it actually
is. Furthermore it is, at least inadequate that so much information
about the Finance Industry is published and presented (for example)
to the UN unchallenged by NGO or other informed and interested
critics.
30. With regard to the lack of critical
examination of the Finance Industry it is relevant to note that
when the Royal Commission on the Constitution was required to
examine the Channel Islands and the Isle of Man and their relationships
with the UK (in the 1970's) it failed to examine the economic
relationships as charged in its terms of reference.
31. Similarly, when Andrew Edwards was appointed
in the 1990's to carry out a review of the Finance business in
the Channel Islands and the Isle of Man he too failed to carry
out any examination of the "economic well being of the Islands
themselves and the UK" as charged under his terms of reference.
32. This historic reluctance to examine
critically the impact of the Finance Industry upon the Islands
themselves is at least curious. However, it is not just the Finance
Industry that seems to warrant protection from critical eyes as
both Channel Islands Bailiwicks have recently undertaken reviews
of their systems of government and in both places the Constitutional
Relationships with the UK and the EU were precluded under their
strangely restrictive terms of reference.
33. There are many issues arising from the
defects in the constitutional relationships of the Dependencies
with the London government and the EU which should be subjected
to further examination and consultation and I would hope, eventually,
reform. These matters extend beyond the scope of this humble memorandum
but I think that it is especially significant that when the Royal
Commission on the Constitution was appointed over 30 years ago
it was compliance with International Treaties and Obligations
that presented a major source of difficulty for the Dependencies
and the UK.
34. Since that time, such treaties and conventions
have multiplied in number and complexity.
35. I believe that the time is now right
for a full examination to be carried out to discover the problems
that exist and to establish proper mechanisms throughout all the
British territories in order that obligations—in particular
Human Rights obligations—are complied with consistently
and with enthusiasm.
Michael Dun
Jersey
20 November 2001
1 HC, 41, session 1999-2000, Appendix 15, p 59. Back
2
HC 642-II, session 1992-93, Appendix 4, p 232. Back
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