Foreign Affairs CommitteeWritten evidence from States of Jersey

Summary

1. This submission focuses on the role and status that Jersey, as a British Crown Dependency, should have in relation to the Commonwealth.

2. The role and status of British Overseas Territories and Crown Dependencies were considered ahead of the 2007 Commonwealth Heads of Government meeting in Kampala. At that time, the Heads of Government decided against the introduction of alternative forms of membership.

3. Whilst Jersey respects the decision made in Kampala, much has changed since 2007 in relation to the conduct of the Island’s international affairs. Jersey has developed substantial bilateral and multilateral international relationships, is able to sign binding international treaties and represents itself in other multilateral forums such as the OECD Global Forum on Transparency and Exchange of Information for Tax Purposes. In light of the Island’s increasing role in international affairs, one which is mirrored by the other Crown Dependencies, the question of greater representation at Commonwealth meetings should justifiably be revisited.

4. Jersey has strong qualifications for membership of the Commonwealth, including:

a longstanding constitutional link with the UK;

a strong track record of commitment to the Commonwealth’s core values and principles;

longstanding autonomy in domestic affairs and an increasing international identity;

having much to offer the many small Commonwealth states; and

playing an active role in various Commonwealth forums.

5. As a result, Jersey and the other Crown Dependencies should be granted the status of associate member and given the right to full participation in debates and procedures, with a right to speak where relevant but without a vote.

About the Author

6. This evidence is submitted by the Chief Minister of Jersey, Senator Ian Gorst, elected as Chief Minister on 14 November 2011.

Evidence

7. The Commonwealth is a valuable project and has the ability to deliver lasting benefits to the countries that form its membership and to the wider world. It brings together the developed and the developing world and provides opportunities to share experiences in areas as diverse as sport, trade and governance as well as providing a platform to tackle issues that transcend national borders such as climate change.

8. The proper role and status of non-sovereign jurisdictions in relation to the Commonwealth was considered ahead of the 2007 Commonwealth Heads of Government Meeting (CHOGM) in Kampala. A committee was appointed under the Most Hon. Percival James Patterson, ON, PC, QC to consider inter alia whether to introduce “associate membership” for Overseas Territories and other non-sovereign jurisdictions. The Committee’s report, published in October 2007, recommended “retaining only one category of Commonwealth membership, that of a sovereign state as a full member” and this recommendation was endorsed by the Heads of Government.

9. The Commonwealth, like any organisation, must continually adapt in order to stay relevant and ensure that it reflects the needs of ever changing political realities. Part of this process must be timely recognition of the need for changes to existing norms and procedures and in this sense the Foreign Affairs Committee’s inquiry presents an opportunity to consider again the adoption of associate membership within the Commonwealth for Jersey and the other Crown Dependencies.

The need to revisit associate membership: developments in Jersey’s international affairs

10. Since the Kampala meeting, there has been significant development in the role that Jersey and the other Crown Dependencies play in international relations. The Ministry of Justice has withdrawn from the position it had played as a routine intermediary between the Island and foreign governments and accordingly Jersey has been required to build its own capacity to represent itself on the international stage. In accordance with the Framework for developing the international identity of Jersey—which had only just been signed when the Patterson Committee published its report—Jersey has sought to develop its international identity and now plays an increasingly active role in international affairs. A copy of the Framework for developing the international identity of Jersey is included at Annex A.

11. Jersey has established substantial bilateral and multilateral international relationships with G20, EU, OECD and Commonwealth member states. Through the use of entrustment, the Island has gained the capacity to enter into treaties with international partners in its own right and has used this power to conclude 27 Tax Information Exchange Agreements and two Double Taxation Agreements as well as separate agreements on the taxation of savings income with each of the 27 EU member states. Importantly, in recent years Jersey has also begun to represent itself in other multilateral institutions. In 2009, Jersey was invited to become a Vice Chair of the Peer Review Group set up by the OECD at its Global Forum on Transparency and Exchange of Information for Tax Purposes. The Island also represents itself on international regulatory bodies such as the International Organisation of Securities Commissions.

12. The developments in Jersey’s international affairs are a result of conscious policy decisions taken by both the UK and Jersey and reflect important changes in the UK Government’s approach to international issues that affect the Crown Dependencies. In its 2010 report on the Crown Dependencies, the Justice Select Committee recognised the practical difficulties that sometimes arise for the UK in representing the interests of the Crown Dependencies internationally. In its response to the Committee’s report, the UK Government recognised that at times there would be need for the Crown Dependencies to pursue interests which are separate to those of the UK and suggested that expanded use of entrustment might help mitigate the potential difficulties that had been highlighted.

13. The current format of Commonwealth representation via the UK does not reflect the increasing role that Jersey plays in international affairs and means that the Island depends on the UK representative to make its contribution, which presents inherent difficulties. Given that the UK has far more extensive national interests than Jersey, its representative may not place the same weight on issues affecting the Island as a Jersey representative would and might choose to focus his/her energies on matters more important to the UK.

14. It seems incongruous with the UK Government’s call for the expanded use of entrustment and its conscious policy of encouraging the Island to develop its own international relationships that Jersey does not attend Commonwealth meetings in its own right. Indeed, Jersey is left in the anomalous position of being able to sign binding international agreements and form substantial bilateral relations with Commonwealth countries but when they meet as a group is unable to attend and must be represented by the UK.

Qualifications for Membership

15. With the exception of full sovereignty, Jersey meets the necessary preconditions of Commonwealth membership. Its qualifications derive from: its long standing relationship with the British Crown, with the Sovereign as Head of State; its commitment to the values and principles of the Commonwealth; and its domestic autonomy.

Constitutional association with a member of the Commonwealth

16. Jersey’s longstanding relationship on the British Crown is a matter of established record. Since 1066, the Channel Islands have been subject to the English Crown as successor to the Dukes of Normandy. The Islands remained in allegiance to the King of England when continental Normandy was lost in 1204; and when, later, the ducal title was surrendered, the King of England continued to rule the Islands as though he were Duke of Normandy, observing their customs and civil liberties.

Values and Principles

17. Jersey has a strong record of compliance with the Commonwealth values, principles and priorities as set out in the Singapore and Harare declarations, including the promotion of democracy and the rule of law, and the Island fully accepts Commonwealth norms and conventions.

18. Jersey is governed by its own popularly elected legislature, the States Assembly, according to the principles of Parliamentary democracy which are common to Commonwealth members. The Island’s Government respects religious, cultural and ethnic diversity and actively upholds the principles of individual liberty and human rights. Jersey subscribes to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, has incorporated the European Convention on Human Rights into its domestic law and has extended ratification of the International Convention on the Elimination of All Forms of Racial Discrimination.

19. Although it is a small island, Jersey recognises that it has international responsibilities and participates both practically, via annual programmes of overseas projects, and financially, through the Jersey Overseas Aid Commission, in initiatives to alleviate poverty and disease in the developing world. It also participates in technical assistance programmes and is in the process of accepting a placement from a Commonwealth member state with the Jersey Financial Services Commission.

Domestic autonomy

20. Although Jersey is not a sovereign state, the Island has autonomy in its domestic affairs. Indeed the preamble to the States of Jersey Law 2005, given royal assent by the Crown provides:

“WHEREAS it is recognised that Jersey has autonomous capacity in domestic affairs;”

21. The Island’s historic privileges and freedoms are confirmed by the charters of successive Sovereigns, which guaranteed that the Island would be governed by its own laws and its citizens would be outside the jurisdiction of the English Courts. These royal charters have secured other important privileges, including fiscal autonomy, which have always been respected.

22. The evolution of Jersey’s relationship with the UK did not at any time involve amalgamation with, or subjection to, the government of the UK and even today the Island’s link with the UK and affinity with the Commonwealth is through the Sovereign as latter-day successor of the Duke of Normandy. The Channel Islands have never been conquered by, or ceded territories to, the UK, nor have they ever been colonies or dominions. Jersey’s constitution is something that has developed overtime and, unlike some other dependent territories, is not in the gift of the Sovereign.

23. Jersey has its own democratically elected parliament, an independent judiciary, a separate legal system with an appeal procedure to the Privy Council and an extensive civil service administration.

24. The legislature passes primary legislation, which, like legislation passed by the UK Government, is subject to royal assent. It can also enact subordinate legislation in many areas without any requirement for Royal Sanction and under powers conferred by primary legislation. The Island legislates for the territorial waters adjacent to it and for the airspace over its territory and waters.

25. The UK Government has historically assumed responsibility for Jersey’s defence and international relations, owing to the status of these areas as Royal Prerogatives and the convention that Crown Ministers now exercise the bulk of prerogative powers, either in their own right or through the advice that they provide to the Sovereign, which he or she is constitutionally bound to follow. However, the UK Government have themselves restrained the extent to which they act on behalf of the Island. In 1950, the Bevin Declaration provided that, in order to better reflect Jersey’s constitutional position, treaties entered into by the UK would not apply to Jersey unless it was the Island’s wish for them to do so. Similarly in 2007 the Framework for developing the international identity of Jersey outlined that the UK would not act internationally on behalf of the Island without prior consultation and expressed support for Jersey developing its own international identity. This has been further developed by entrustments, which grant the Island authority to enter into binding international agreements in its own right.

What Jersey can offer the Commonwealth

Small States

26. Of the 54 Commonwealth member states, 32 jurisdictions are classified as small states by the Commonwealth Secretariat. A comparison with existing small island members of the Commonwealth (Appendix B) demonstrates that Jersey has a population and a land area larger than some of those small member states.

27. In economic terms, Jersey is somewhat more substantial. The wealth of Jersey measured in GNI per capita (£40,000 in 2009) is higher than most Commonwealth members, and its total economy measured as GVA (Gross Value Added: over £3.7 billion) is significantly greater than many much larger member states.

28. Jersey has developed a successful economy within the context of a small island jurisdiction and has a great deal to offer small Commonwealth states, who all share similar challenges. Indeed, the Island has already provided technical assistance to some Commonwealth jurisdictions in the areas of financial services and financial management. In 2010, Jersey invited 26 developing countries, of which 14 were jurisdictions from the Commonwealth, to share our expertise in anti-money laundering and efforts to combat the funding of crime and terrorism. Last year the Island hosted an assessor training seminar for the OECD Global Forum on Transparency and Exchange of Information for Tax Purposes, which was attended by assessors from Canada, South Africa and Singapore amongst other Commonwealth Countries. Similarly, during 2011, Jersey hosted representatives from St Kitts and Nevis and the Cayman Islands to share technical expertise in economic and financial management.

29. Whilst Jersey is interested to share its expertise, the lack of associate membership within the Commonwealth places limitations on the amount it can assist member states. The lack of representation at CHOGM and Ministerial meetings denies the Island opportunity to share its knowledge and influence debate in these forums. Moreover, without associate membership, the Island is unable to make a meaningful contribution to meetings such as the Commonwealth Small States Biennial Conference.

Participation in Commonwealth Forums

30. To the extent that it is able to participate, Jersey already plays an active role. The Island regularly participates in other Commonwealth forums, such as the Commonwealth Parliamentary Association, Royal Commonwealth Society, Commonwealth Lawyers’ Association, Commonwealth Games Federation and Commonwealth Magistrates’ and Judges’ Association. Indeed until recently Jersey provided the Executive Vice-President of the Commonwealth Magistrates’ and Judges’ Association. The Bailiff of Jersey has been and remains an active participator in Commonwealth Speakers’ and Presiding Officers’ Conferences and the Attorney General attends meetings of the Law Ministers of Small Commonwealth jurisdictions. Jersey wishes to build upon this already strong engagement and as an associate member would seek to involve itself as much as practicable in Commonwealth affairs.

Associate Membership

31. Whilst Jersey wishes to secure more meaningful participation in the Commonwealth, it nevertheless accepts that its membership might reasonably be less than the full membership afforded to a sovereign state. Therefore it is envisaged that the core components of associate membership would include:

Self-representation in all Commonwealth meetings;

Full participation in debates and procedures, with a right to speak where relevant and the opportunity to enter into discussions with those who are full members; and

No right to vote in the Ministerial or Heads of Government meetings, which is reserved for full members.

32. The Patterson Committee expressed concern that Associate Membership goes against the principle that all Commonwealth states are equals and in its deliberations noted that the Crown Dependencies “always have the option of achieving full sovereignty and applying for Commonwealth membership”.

33. Historically, there have always been anomalies within the Commonwealth. India attended Commonwealth meetings long before it became an independent nation and indeed before it became self-governing, whilst the Premiers of South Rhodesia and Burma were invited to attend meetings as observers before their countries became independent. Equally, there has previously been opposition to inclusion of some new members on account that it would potentially change the dynamic of the community; notably to Cyprus and other small states, but these countries have thrived as members and the Commonwealth family has been enriched for their inclusion.

34. It is true that Associate Members would not have the full privileges afforded to sovereign states. However, what is important is that they will be granted a voice and the ability to contribute to the debate amongst full members. Currently the Crown Dependencies are only able to attempt to contribute via the UK representative, which, as discussed, carries with it inherent difficulties.

Recommendations

35. The Foreign Secretary should request that the Commonwealth Heads of Government consider granting associate membership to Jersey and the other Crown Dependencies as well as any other territories at a similarly advanced stage of autonomy. As a result of conscious policy decisions taken by the UK and the Crown Dependencies, the Islands’ international profile has undergone significant change since the question of associate membership was considered by the Commonwealth Heads of Government in 2007. The changes mean that the Crown Dependencies are able to negotiate binding treaties and form substantial bilateral relations with Commonwealth countries but are unable to represent themselves when these countries meet as a group. In light of this anomalous position, the Commonwealth countries should look again at whether jurisdictions with the peculiar attributes of the Crown Dependencies should be granted associate membership.

36. The Foreign Secretary should put forth the view that associate membership is part of the natural process of development that international organisations should embrace. Like any organisation, the Commonwealth will develop over time to ensure that it continues to reflect the demands of day to day political realities. In the past this has meant the inclusion of small States from Cyprus to the Caribbean and Pacific Islands. Today, globalisation presents challenges to the conventional concept of the sovereign state as international issues increasingly impact upon the domestic. In this context, the Commonwealth should provide a voice to a self-governing jurisdiction like Jersey, which has long standing domestic autonomy and already plays an active role in international affairs under entrustment. Change can be difficult, and whilst associate membership will mean not all members are equal in voting rights, they will all be afforded the opportunity to contribute to the debate and share their expertise.

Annex A

FRAMEWORK FOR DEVELOPING THE INTERNATIONAL IDENTITY OF JERSEY

Following the statement of intent agreed on 11 January 2006, the Chief Minister of Jersey and the UK Secretary of State for Constitutional Affairs have agreed the following principles. They establish a framework for the development of the international identity of Jersey. The framework is intended to clarify the constitutional relationship between the UK and Jersey, which works well and within which methods are evolving to help achieve the mutual interests of both the UK and Jersey.

1. The UK has no democratic accountability in and for Jersey which is governed by its own democratically elected assembly. In the context of the UK’s responsibility for Jersey’s international relations it is understood that:

The UK will not act internationally on behalf of Jersey without prior consultation.

The UK recognises that the interests of Jersey may differ from those of the UK, and the UK will seek to represent any differing interests when acting in an international capacity. This is particularly evident in respect of the relationship with the European

Union where the UK interests can be expected to be those of an EU member state and the interests of Jersey can be expected to reflect the fact that the UK’s membership of the EU only extends to Jersey in certain circumstances as set out in Protocol 3 of the UK’s Treaty of Accession.

2. Jersey has an international identity which is different from that of the UK.

3. The UK recognises that Jersey is a long-standing, small democracy and supports the principle of Jersey further developing its international identity.

4. The UK has a role to play in assisting the development of Jersey’s international identity. The role is one of support not interference.

5. Jersey and the UK commit themselves to open, effective and meaningful dialogue with each other on any issue that may come to affect the constitutional relationship.

6. International identity is developed effectively through meeting international standards and obligations which are important components of Jersey’s international identity.

7. The UK will clearly identify its priorities for delivery of its international obligations and agreements so that these are understood, and can be taken into account, by Jersey in developing its own position.

8. The activities of the UK in the international arena need to have regard to Jersey’s international relations, policies and responsibilities.

9. The UK and Jersey will work together to resolve or clarify any differences which may arise between their respective interests.

10. Jersey and the UK will work jointly to promote the legitimate status of Jersey as a responsible, stable and mature democracy with its own broad policy interests and which is willing to engage positively with the international community across a wide range of issues.

Signed 1 May 2007

Secretary of State for Constitutional Affairs
Chief Minister, Jersey

Annex B

SMALL ISLAND MEMBERS OF THE COMMONWEALTH

Territory	Population	Size sq km	GNP1 (million US$)	GNP/cap (US$)	Economy
Antigua and Barbuda	69,000	442	642	9,390	Tourism
The Bahamas	314,000	13,940	4,500	14,860	Tourism and offshore banking
Barbados	269,000	430	2,614	15,560	Sugar, tourism
Fiji Islands	823,000	18,270	1,755	2,160	Minerals, sugar and tourism
Grenada	102,000	344	363	3,500	Tourism
Kiribati	95,000	811	77	810	Tourism, foreign aid
Maldives	287,000	298	562	2,090	Fishing, tourism
Malta	400,000	316	3,637	16,790	Freight transshipment, electronics and textiles and tourism.
Nauru	11,000	21	60	1,780	Exports of phosphates, reserves now almost exhausted
St Kitts and Nevis	39,000	261	3,390	8,800	Tourism, agriculture—sugar
St Lucia	159,000	620	619	3,840	Bananas, offshore banking and tourism
St Vincent and the Grenadines	112,000	389	317	2,820	Agriculture, dominated by banana production
Samoa	176,000	2,994	260	1,420	Development aid, family remittances from overseas, and agricultural exports
Seychelles	84,000	455	538	6,530	Tourism and tuna fishing
Solomon Islands	443,000	28,450	253	570	Agriculture, fishing, and forestry
Tonga	101,000	748	154	1,410	Dependence on the half of the population that lives abroad—Australia, NZ, US
Tuvalu	12,000	26	12	1,818	Main form of income consists of foreign aid
Vanuatu	206,000	12,200	21	1,438	Subsistence agriculture, Fishing, offshore financial services, and tourism
Jersey	87,000	118	5,000	57,000	Offshore finance, tourism, agriculture

Sources: www.thecommonwealth.org/ and www.fco.gov.uk

23 January 2012