Memorandum submitted by Michael Dun, Jersey
I attach my 50 paragraphs memorandum which
deals in general terms with the Bailiwicks of Jersey and Guernsey
and the Isle of Man.
Since the three Islands are all distinct places with
their own governments, systems of laws and peculiarities it is
not possible to deal with each in any detail but more specific
information is included for Jersey, where I live.
I would claim that the systems of government
and administrative practices that have developed over centuries
are substantially defective and that root and branch review and
reform is necessary.
Apart from concerns about the Islands "tax
haven activities" I believe that there are other substantial
and wide ranging defects and shortcomings that can only be adequately
examined by an outside body established and funded by the UK Government.
I also believe that a more general review is
necessary of all the small British territories around the world
and that a more coordinated and consistent management of all of
these places and their peoples at Westminster is necessary.
The proper and democratic election of representatives
from all the small British territories to Westminster and Brussels
would seem to be long overdue and now essential in the 21st century.
I have previously corresponded with Lord Bach on these and related
matters and am disappointed that he has, like his many predecessors,
been reluctant to meet with ordinary people in these Islands.
I would draw to the attention of the Committee
the lack of enthusiasm by the government of Jersey for this Call
for Evidence and that no efforts have been made to make it known
to the residents here. I have contacted the Jersey Council of
Ministers on this matter and not received even the courtesy of
a reply. The Jersey Greffier has responded that "to publicise
it on a Jersey Government website would imply that it is somehow
being promoted by Jersey which it is not."
"If the UK Committee really wants to engage
with the public and others in the Crown Dependencies it really
needs to consider itself how best to do that—nothing would
stop it advertising locally etc."
I hope that those sentiments, which reveal the
true Jersey agenda, will be made known to the Members of the Committee.
1. Ever since the governments of the Channel
Islands were separated from that of Normandy in 1204 their
relationships with British people and the institutions of Britain
have been uncertain.
2. That uncertainty has been exploited during
800 years by governments, merchants, businesses and individuals
who have used the Islands in war and peace-time as havens for
all manner of nefarious activities such as piracy, smuggling,
trading with the enemy, tax or regulation avoidance, money laundering,
wealth and asset concealment, or corporate false accounting through
complex, artificial financial devices.
3. That this has been allowed to persist
and develop over the centuries is not so much the fault of decent
Channel Islanders themselves but more the neglect of nearby governments—notably
that of Britain—for allowing the constitutional, political
and economic ambiguities and anomalies to remain unchecked and
reformed. Of course, the ruling elites in the Islands have often
been complicit too.
4. There have been plenty of ideal opportunities
since 1204 for London to intervene and initiate reforms or
for Channel Islanders to request them—but always the resolve
to cure the various problems have been overtaken or usurped by
partisan interests, self-doubts, lethargy or international events.
5. Meanwhile, whilst the rest of the world
has been constantly changing, Channel Islanders have been encouraged
to believe that they are locked into an ever-lasting "frozen"
relationship with a bogus constitutional order laid down by King
John in 1215—a sort of Islands' own Magna Carta—and
that subsequent British history and the wishes of the British
people are in some way irrelevant to them.
6. This myth of some substantial constitutional
provenance has been compounded in recent years by the practice
of referring to the Islands, together with the Isle of Man, as
"Crown Dependencies" rather than UK Dependencies—and,
thereby reinforcing the mistaken belief that Islanders enjoy a
special relationship solely with the British Sovereign—rather
than the British people as a whole or the political and governmental
or other institutions that have evolved throughout British history.
7. Within the Channel Islands this notion
of a unique "Royal" relationship is encouraged through
the appointments of HM Lieutenant Governors, Bailiffs and other
"Crown Officers" as some sort of elevated local royal
squirearchy yet it is all the more laughable since Islanders make
no financial contribution towards the upkeep of the very same
British Royal Family or institutions from which any "royal"
accreditation or status derives.
8. It is also laughable that Islanders are
encouraged to place so much reliance upon ancient "Royal
Charters" such as were granted in their thousands by perverse
monarchs to gullible people in specific places for all sorts of
dubious reasons. In most instances these bits of parchment have
been consigned to the museums or the fire where they belong and
they are not generally regarded now as everlasting, sacred, or
legally enforceable texts.
9. Not everybody has been hoodwinked by
the dubious charters either. In 1748 Capt Dow, the long suffering
Revenue Officer serving in the Isle of Man pleaded to the Treasury
in England:
"I humbly hope that now is the time for
my honourable masters, and the good of Gt Britain to enquire into
the privileges of this Island."
A similar plea was made in 1770 by Capt
James Major, a Channel Islands based Revenue Officer when he repeated
the plea to the Treasury Lords:
"To look into the Islands' Charters."
More recently Lord Justice Templeman observed
in the UK Court of Appeal in 1982 that:
"It also seems to me to be high time that
the government looked at the privileges and immunities of the
Channel Islands and the Isle of Man, which can be exploited for
use as an umbrella for fraud and extensive tax avoidance and evasion."
Now, in 2009, the call for such examination
is a world-wide chorus.
10. The "Royal" branding is just
a small part of the subsidy that the people of Britain provide
to the often ungrateful Islands' populations through the supply
of many services at reduced, little or no cost.
It's not just the financial unfairness either
because the Royal and British labels afford the Islands an international
status and credibility which implies to the unknowing that these
little places are part of a "British Islands entity"
where similar and consistent British standards might apply. This
was noted in the 1973 Kilbrandon Report on the Constitution
whose authors concluded that it was essential for institutions
and practices to be similar throughout the British Islands—yet
the Islands seem to have been allowed to fall ever further behind
an acceptable international standard on such matters as Human
Rights compliance and non-discrimination legislation or trading
standards.
11. At the same time the Islands have been
encouraged to tart up the image of their ever expanding "finance
centres" as respectable and well regulated to satisfy OECD
and IMF inspectors. Yet, whenever shortcomings are made evident
(as they frequently are when an Icelandic Bank goes bust or yet
another despot's slush fund is found salted away or a British
arms manufacturer's bribes cache exposed), the defence "that
it couldn't happen now" or "the business will go abroad"
is offered (and apparently accepted) to ward off criticism.
William Le Marchant, a convicted smuggler and
HM Bailiff of Guernsey for much of the later 18th century made
similar claims then. He was a great defender of the supposed "Rights
and Immunities" of the Channel Islands—including King
John's bogus Charter.
12. Until the great economic crash of last
year, the Islands seem to have been immune to effective scrutiny
from Britain (although Britain is ultimately responsible for their
good government) or any other external body or organisation. Whether
public scrutiny might yet initiate effective governmental action
has yet to be seen.
13. It is especially significant that whenever
UK examinations have been initiated into the affairs of the Islands
that they have traditionally been incompetently managed or left
unfinished. Thus the handing of "Revestment" in the
Isle of Man in the 18th century to combat that Island's huge smuggling
business was bungled and negotiations dragged on for several decades
with the Lords Atholl before they were finally bought out with
astronomical sums of British peoples' money in the 1820's. Yet,
that Island has been allowed to revert to its old fashioned ways
with a perverse "tax haven economy" that has been used
by crooked financiers world-wide to defeat the proper policies
of governments on a global scale since the 1960's.
14. Other instances like the Jersey Prison
Board Case or UK Treasury Inquiries into the Legal systems of
Jersey and Guernsey in the 19th century remained inconclusive
or uncompleted.
More recent examinations such as the Royal Commission
on the Constitution c1973 and the 1998 Edwards Inquiry
and Report on the Islands' Financial Services were similarly defective.
In 1973 Lord Crowther Hunt and Prof Peacock's dissenting
minority Report revealed that there never was a proper examination
of the economic effects of the finance industry on the Islands,
as the terms of reference required. Similarly Mr Edwards failed
to consider the economic and social well-being of the Islands
themselves as he was charged and he claimed to have been "prevailed
upon not to dwell upon that part of his terms of reference
" when I asked him.
15. All the Islands are very keen to claim
ancient histories and long pedigrees for whatever constitutional
arrangements that currently prevail. But, the historical record
that has been presented has traditionally been defective and distorted
and tailored to support a doubtful and misleading provenance.
The records of the battles of the English Customs Service to be
established in all the Islands from 1660 till 1805 are
especially revealing because they expose the falsehoods and deceit
that have underwritten the very same dubious constitutional arguments
that are presented to this day. They are substantial looking edifices
but largely without foundations.
16. The conclusions of Mr Michael Foot's
recent enquiries into aspects of the "off-shore" Finance
Services business in British territories including The Channel
Islands and the IOM are not yet published but it is significant
that he appears to have made no effort to communicate with people
in these places (or the overseas territories) who were not actually
serving in government or the finance business itself. As is so
often the case, he did not attempt to meet with the general public
and to receive their observations and certainly his office showed
no enthusiasm to communicate with me.
17. The basis of the Channel Islands relationships
with the British people or with the peoples of the EU or the Commonwealth
and organisations such as the UN and Council of Europe are, at
every level uncertain or obscure. For example, the Islands are
"deemed" to be members of the Commonwealth by virtue
of their "dependency status" on the UK. Why aren't the
Islands members in their own right?
18. The existing Islands' administrations
are very keen to stress their "independent status" but
they are not, so it would seem, very keen to contribute to organisations
like the UN as others do. And, why should the UK government have
to retain liability as "High Contracting Party" for
the Islands before international tribunals when the Islands are
such unwilling supporters of so many international aims and objectives?
Neither the UK Department of Justice nor the
Jersey government can even produce a list of international obligations
that currently apply to the Island.
19. The time is long overdue, in the interests
of fairness to all parties for all these matters and more to be
subjected to proper examination, discussion and reform so that
clarity and certainty might be achieved
20. The most recent examination of Guernsey's
form of government, undertaken at the modest cost of just £60,000 by
the Welsh Audit Office, has revealed a deplorable level of incompetence
and a failure to achieve any of the six principles of corporate
governance. If such an audit was carried out in Jersey the defects
would probably reveal a level of incompetence similar to or worse
than that in the Turks & Caicos Islands. And it is significant
of course that these far away Caribbean islands are supposedly
supervised by the same London government and it is becoming ever
more apparent that long term neglect runs throughout the over-seeing
of the small British territories world-wide.
21. That Scotland, Wales and Northern Ireland
have all achieved substantially reformed government systems since
1973 whilst the Channel Islands remain preserved in historical
aspic is a great cause for concern. All the more so since positive
proposals for change—like that for a "Council of the
Islands"—have been ignored as have such suggestions
as the "Jersey Bill" (both revealed in the 1973 Kilbrandon
Report on the Constitution).
22. This also is nothing new because the
Channel Islands were invited to send representatives to serve
in the London Parliament in the 16th and 17th centuries and these
instructions were also ignored. The issue could well have been
settled following the 2nd World War by Home Secretary Mr Chuter
Ede's reforming Committee, but as usual, the task was left only
superficially considered.
23. The question whether the Islands should
now elect representatives to Westminster and the EU deserve to
be considered afresh—especially since the people of Gibraltar
do participate in European elections (following the ECHR case
of Matthews v UK) and the residents of other far more remote territories
of other countries can participate fully in both their national
and EU elections and assemblies.
24. The example of French Mayotte shows
that reformed constitutional arrangements can still be made and
that there is virtually no limit to the special terms and conditions
that might be negotiated to suit all parties.
25. On the other hand, the unseemly recent
efforts of (now retired) Jersey's Bailiff Sir Philip Bailhache,
to promote Jersey's independence from the UK, is another cause
for concern. Not least because his political interference as the
Island's senior judge must be viewed as undesirable.
26. Of course, the conflicts inherent in
the ancient office of HM Bailiff in both Guernsey and Jersey have
been subject to much critical examination in recent years and
that for Guernsey was considered by the European Court of Human
whilst the States of Jersey is currently charged to look at the
roles of several of the Royal appointees. And, even tiny Sark
has been obliged to initiate democratic reforms in line with ECHR
and UK decisions after a little prompting from the Barclay Brothers.
27. Without attempting to describe the many
defects in the system of HM appointments made outside of the Islands
and of their various conflicting roles within them, the question
of independence from the UK is without doubt one that needs to
be considered properly. As does the Islands relationship with
the EU, which has changed and grown so much since Protocol 3 under
the Treaty of Rome was negotiated.
28. It is of course no coincidence that
all the Islands are truly dependencies of the "Finance Industry"
and that their exclusive and tiny legal professions are more or
less mesmerised by it. It is significant that HM Bailiffs in the
Channel Islands dominate the provision of legal services and the
effective supervision and control of lawyers and the conduct of
the courts. Yet, at the same time such Crown Officers are never
shy of expressing their supportive views on the finance industry
or on other matters of public interest or controversy needing
inappropriate "royal" guidance.
29. In Guernsey it is still obligatory for
lawyers to study at Caen University (Normandy) to learn about
laws that have ceased to be used in France since before the French
Revolution. In both Bailiwicks there has been no means of studying
Islands' law within them except from ancient, often hand written
texts in French, handed down within lawyers' offices. Modern text
books on Channel Islands law (unless related to property or tax)
are virtually non existent. Commentaries on Channel Islands laws
are usually antiquarian French volumes of great rarity and value
and their contents more akin to rules for an obscure cult than
comprehensible legal information. The Islands' lawyers have an
exclusive monopoly in the provision of legal services in their
respective Islands and legal aid is vaguely dispensed on a charitable
basis, by the least experienced practitioners in Jersey. Jersey's
CAB is prescribed by law from offering legal advice since this
is reserved to Jersey lawyers.
In Guernsey a very basic Green Form legal aid
system currently exists but is due to be replaced by a more regulated
and certain Statutory system soon.
This autumn a course of study in Jersey law
is being offered for the first time in the Islands' known history.
It is open to anybody able to pay the fees but does not include
a paper on Human Rights etc.
30. Channel Islands lawyers do not devote
much time or energy in pursuing social causes or cases that do
not lead to a substantial fee note.
31. Sufficient here to state that the entire
legal and judicial system in all the Islands needs to be subjected
to a thorough and critical examination by an appropriate outside
body but the most certain single reform that needs to be made
is an end to the monopoly status enjoyed by Islands' lawyers in
the provision of legal services and advice.
32. Other offices, notably those of HM Lt
Governors in all the Islands should also be consigned to the history
books. There is no useful role for pensioned—off, exclusively
male, military chiefs in the government or administration of these
Islands and their purpose in the 21st century is yet another anachronism.
If a communication route between islanders and
London is needed (and it most definitely is) then this can be
achieved by much more certain, democratic and accessible means.
Ideally, properly elected Westminster and EU Members of Parliament
could use the buildings and staff numbers that now serve the arbitrarily
appointed Lt Governors.
33. Or, the offices could be re-structured
with suitable staff as a proper conduit for information to be
transmitted between islanders and the governments at Westminster
and Brussels, overseas organisation such as the UN and Council
of Europe and somewhere where UK Ministers and others might consult
with local residents directly and regularly.
34. In the continuing absence of elected
MPs at Westminster, specifically designated Ministers need to
be appointed with defined duties and responsibilities for all
the Islands, and islanders should be enabled and encouraged to
communicate with them.
Such Ministers should not be hidden away in
the House of Lords—as is the absurd tradition—but
fully answerable to questions before the Commons or directly from
islanders.
35. The smallness of the Islands is traditionally
offered as a defence of their outdated or quaint practices and
it is true that the task of complying with so much EU legislation
or international human rights or other standards is burdensome.
Yet, islanders do not want to be left behind
larger territories so far as wealth and consumerism is concerned
and they can hardly expect to be leading international finance
centres whilst providing social and governmental services to residents
only appropriate for primitive fishing and farming communities.
36. So, the administrations and governments
in the Islands must achieve appropriate standards at local, national
and international levels and this they clearly fail to do now.
It would seem sensible to share the bureaucratic burden through
closer alliances with Westminster and/or Brussels but if Islanders
choose otherwise, then they cannot expect dispensations from international
obligations that apply elsewhere.
37. The enjoyment of military defence, representation
abroad, further education, access to specialist health services
and skilled or scientific help have all been provided traditionally
at subsidised rates to the Islands by UK taxpayers and there are
many more financial imbalances too that need to be examined and
addressed.
38. The recent re-adjustment of the reciprocal
health service arrangements between the Islands and the UK has
revealed the most selfish and unappreciative attitudes of Channel
Islanders and their governments towards the benevolent UK taxpayers.
39. Similarly, the massive £multi-billions
bail-out of British banking by British taxpayers received no contribution
from Islanders. Yet, if the rescue had not been achieved the entire
banking and finance system in the Islands would have collapsed.
The substantial "Northern Rock" business based in Guernsey
would certainly have ceased trading with resultant immense financial
implications for that Island.
40. Even the provision of national BBC services
is not a realistic reflection of licence fees collected on a per
capita basis at rates determined in London. Yet, at the same time,
the Corporation fails to provide adequate broadcasting services
for three entirely separate jurisdictions with their own distinct
systems of law and languages that should be offered. The fact
that the Islands only enjoy the status of local regions within
England—rather than nation status like Wales or Scotland—shows
that the unfairnesses arising from the current constitutional
arrangements are not all entirely one-sided.
41. Although the peoples of the UK have
contributed an unfairly large financial subsidy to all the Islands
for centuries and also provided less obvious support through National
Trades Unions and registration, supervision and discipline facilities
for many Professional people, all the Islands apply discriminatory
housing and employment laws against people from the UK and the
rest of the EU.
Such policies are not temporary short term expediencies
to deal with unforeseen circumstances but are rather deliberate
and long term strategies to treat many thousands of working people
as second class residents (the Guernsey and Jersey Housing laws
have been imposed since 1949) and have served only to make social
conditions worse. They are a disgrace and are not just domestic
islands' issues.
42. The lack of anti-discriminatory legislation
in the Islands together with an official contemptuous disregard
for international human rights standards is a long term scandal
and is the direct result of the failure of the UK Government to
ensure otherwise.
These are matters that I have complained of
to Lord Bach and his predecessors and other office holders in
the UK government over decades and in submissions and responses
to the Treasury and FCO Human Rights Annual Reports—but
I might as well not have bothered.
43. It is made evident time and time again
that examination by external bodies is the only reliable means
to assess institutions and practices within the Islands.
Interventions by such as the UK Police and Prisons
Inspectorates are invaluable and could not be achieved locally
but are not guaranteed to protect and maintain the standards of
services provided. Substantial defects including potential major
human rights violations have been revealed by two recent Prison
Service inspections in Jersey and the Chief Officer of the States
of Jersey Police is currently suspended from office for reasons
that have not been made public. Other important public employees
such as the Senior Magistrate designate and Hospital Consultants
are also currently suspended from their duties. There are substantial
complaints against many aspects of Jersey's government that are
too many and too complex to describe in this Memorandum but the
scandal of the long term child abuse allegations at Haut De La
Garenne and other Jersey care homes needs to be at least referred
to as does the planned NSPCC role.
44. The government and administration of
Jersey needs a critical root and branch examination by an appropriate
external body as a matter of urgency. The longest serving member
of the States of Jersey aka "Father of the House—Senator
Stuart Syvret—has described the Assembly as composed of
"gangsters and half-wits."
45. For many people the Channel Islands
and the Isle of Man are known mostly for their pretty cows, "Royal"
potatoes, tomatoes, cats without tails and kippers. But rather
as Switzerland is no longer best known for cuckoo clocks, the
Islands should be looked at critically and as part of a wholesale
review of all the small British territories around the world as
soon as possible.
46. In this Memorandum I have alluded to
the need for much improved facilities for dialogue between the
government in London and other British territories around the
world, including the so called "Crown Dependencies."
In fact, research through historic records indicates
that the dialogue was much better in Colonial times when all communications
were carried by sailing ship. Then the London administration was
kept much more fully aware of the management of the small territories
and now with all the technological wonders that are available,
this is not an acceptable regression. There is no reason at all
why the residents of the furthest flung islands could not be in
direct contact, on a regular basis, with relevant government departments
or Ministers or elected representatives in London or Brussels
and vice versa—at very minimal cost.
47. There are already many UK All Party
Parliamentary Groups that include the Channel Islands, the Isle
of Man and other British territories within their remit but apart
from providing an opportunity for some MPs to enjoy "overseas"
jollies, their useful purpose is not at all clear. They certainly
have very little useful purpose so far as I can determine in promoting
the needs of residents of Jersey or Guernsey.
There are also organisation at Westminster and
Brussels which claim to provide forums for the residents of overseas
territories to communicate with one another through their European
offices. But it all seems very low key and politically ineffective.
48. It would seem to be wholly desirable
to establish, at least a UK Select Committee with specific responsibilities
for the Channel Islands and the IOM or a larger Committee with
responsibility for all of the Dependencies and Overseas territories
together. Since staff are already employed in London to deal with
matters arising in the small territories and elected representatives
could easily replace imposed island "governors" then
any increased costs should be minimal.
49. It is noted that Jersey Finance Ltd
has already been encouraged to open overseas "Jersey offices"
in such places as Hong Kong and to develop an "international
identity". Since the promotion of the finance industry is
inseparable from the political and economic ideology of the current
Jersey government this is a part of a very worrying trend which
has implications for the relationship with the UK and the declared
policies and wishes of British people as a whole. If Jersey is
to have its own "foreign policy"—as is now being
discussed—then a clear separation from the UK must be inevitable.
Urgent clarification of this matter is essential—especially
since other small British territories might also seek to promote
their own and diverse "foreign" policies in the near
future.
50. The final court of appeal for certain
matters arising in the small British territories historically
lies to the Privy Council or the Court of the Privy Council.
This is an obscure and uncertain process, often
cumbersome and likely to be too expensive for many litigants.
There is very little published information on this area of specialist
law and reforms have recently been introduced which may affect
the residents of the small territories.
If an appeal system remote from the small territories
is to be continued then it needs to be made much more accessible
and understandable, using modern technology and when necessary,
travelling judges.
22 September 2009
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