Don’t interfere, in CI affairs, MPs are told
Monday 10th November 2008, 2:56PM GMT.
ENGLISH MPs who try to interfere in Jersey’s internal affairs should take a lesson on constitutional law about the Island’s judicial independence, a report in this month’s Law Review has said.
The article is a response to suggestions in an Early-Day Motion tabled in the House of Commons by Austin Mitchell MP that Secretary of State for Justice Jack Straw MP, as Privy Councillor with responsibility for Crown relations with the Channel Islands, should decide that English prosecutors or judges should be sent to Jersey to deal with the historical child abuse cases.
The article, in the Jersey and Guernsey Review, says: ‘The notion that the Secretary of State for Justice can intervene in Jersey’s judicial or prosecutorial systems by appointing English judges or prosecutors is bizarre. Imagine the furore which would erupt if the Secretary of State were to attempt to interfere in the judicial process in England or, heaven forbid, Scotland.’
This report in the Law Review, whose editor is the Bailiff, Sir Philip Bailhache (pictured), sets out to outline the historical proof that the Channel Islands have judicial independence.
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They are not English MPs …they are UK MPs
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Obviously the UK government will let things go on in Jersey as long as everything is fine.
But the Queen is head of state and the UK ministers act as her representatives in ensuring good governance throughout her dominions.
If there was good evidence that a serious miscarriage of justice had taken place in the island’s courts then pressure would almost certainly be applied.
It might be discrete at first but if it was ignored and London was seriously embarrassed then I think the Chief Minister would receive a no nonsense phone call from the Prime Minister.
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What is more absurd is that a contributor to the Jersey and Guernsey Review does not know their ‘English’ Constitutional Law. If they did they would know that the lack if a written constitution allows the House of Commons to do exactly what it likes including legislating for Jersey in any way it sees fit.
This includes appointing members of the English or Scottish or Outer Mongolian Judiciary to sit in Jersey Courts. Even first year law students know it is possible for the Queen in Parliament to pass a law revoking the independence of the United States (I know you could write a book arguing that one). Arguing about precedent (judicial and parliamentary) is futile. Constitutionally the government of the UK acts on behalf of the queen who passes the legislation. Last time I looked Liz’s head was still all over Jersey currency and the Privy Council still approved Jersey legislation. If UK HMG wants to impose a ban on polos on Jersey don’t think bribing the queen with two frozen unstuffed mallard ducks is going to sway her judgment.
‘England’ has given Jersey judicial independence and as we know from the good book ‘what the Lord giveth the Lord taketh away’. A little like taking a box of matches from a small child; sometimes you have to be cruel to be kind.
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I don’t understand why people take Austin Mitchell remotely serious anymore? If anything their meddling is doing nothing to help the victims in this sorrowful affair.
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Quite simply, the jersey judiciary are incapable of an undertaking of this magnitude. In the interests of transparency, the historic abuse investigation should have a rigourous and fundamental involvement from an external judicial source. Not really a ‘bizarre’ concept at all, more one that should be welcomed.
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Not exactly an unbiased publication, this Review, is it – edited by Phil O’ The Silly Hat. Not a report that can be taken seriously.
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I have this mental image of a hedgehog standing in front of oncoming steam roller, lecturing it on road safety legislation. I’m with Andrew Bennett on this one – Jersey has not shone brightly as a beacon of good husbandry in recent years and if the UK can decide whether or not we are independent, then we ain’t independent are we?
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This government should not allow the pomposity of the officers of the Royal Court to prevent any party that comes before a judge and jury having a fair trial.
If the public were asked by census I am confident that they would consider these particular circumstances warrant a wholly independant judiciary.
One only has to look back at The Victoria College incident, and the recruitment of a known paedaphile not being over ruled to appreciate public concern.
However it must be said that Jersey people are not proactive, there is little sense of community or empathy, so our paternalistic government shall probably kowtow to the Crown Officers and resist an ‘outside judiciary’.
The issue is serious enough for such pride to be laid aside and for once consider the innocent lives that have been destroyed by abuse, and also the innocent parties that may be accused – both parties in my opinion would be best served by an independant judiciary.
JT
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“What is more absurd is that a contributor to the Jersey and Guernsey Review does not know their ‘English’ Constitutional Law. If they did they would know that the lack if a written constitution allows the House of Commons to do exactly what it likes including legislating for Jersey in any way it sees fit”
The above statement is nonsense. The UK Government cannot do exactly as it likes, thank goodness. Witness human rights, european law and the right to self-determination which Jersey could undoubtedly assert in the absence of recognition of its quasi independent status. The judicial indpendence of the Island is not something which was granted by the united kingdom. Indeed, Jersey formed part of the Norman authority which conquered England in 1066 and its position predates anything which the modern UK constition might purport to rely upon.
The UK might lack a written constitution, but its limitations on power are largely known and controlled. We no longer live in the dark ages of absolutism even if some commentators might wish as such. The last such regime which Europe produced was defeated in 1945. I think that most right thinking people would not wish to see another occupation!
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If you want to be governed by the UK Parliament, why not go and live in the UK?
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Jersey is a dependency of the British crown and not a sovereign state. The Crown has ultimate responsibility for the good governance of the Channel Islands. In exercising that responsibility it acts through the privy council on the recommendation of government ministers in their capacity as privy councillors. The power of the UK parliament to legislate for Jersey on external matters appears unquestionable. The question remains whether the UK parliament can legislate for Jersey in relation to internal, domestic matters, such as taxation.
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In any event the Jersey population are in a position now where they do not trust the States – I think i speak on behalf of the many here when i say that we need someone from outside with no connection to the states or police to intervene in this case.
If we leave it to the states there wouldn’t be any prosecutions and victims will have come forward for nothing
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Jersey law has generally moved in line with UK law or we have managed to avoid major conflicts.
Jersey abolished birching in the early sixties and although we retained the death penalty for murder after the UK abolished it we did not attempt to carry it out.
Similarly abortion remained illegal in the island until 1997 and we now have a 12 week limit but women go to the UK for the procedure and the island authorities have never tried to interfere.
So until it is tested the answer seems to be that the island is independent as long as we go along with London!
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The United Kingdon does not have the power to legislate for the Island. If it were to attempt to do so, such an act would be unconstitional. If ever such a power did exist, it most certainly would not now in these times of more mature international laws.
In the final analysis, the Island authorities could ignore any such act. If necessary, the Island could exercise its right to self determination and go fully independent.
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The Chief Minister would be able to politely decline any unwelcome advance from a UK minister. I should think he would have the support of the States.
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A common thread through responses on this site is that if you don’t like what happens on Jersey the there is a boat in the morning or go back to where you came from. This is an interesting response and as an immigrant to this island some time ago I now know from this and other comments from former work colleagues, what it might have felt like to be a West Indian in the 50s or an Asian in the 80s and 90s coming to the UK, essentially to some but not all from this island I am in fact treat in the same despicable way that some in the UK treated black and Asian immigrants in the UK.
You suddenly realise that anything you say has no validity as you were not born here and do not belong. Whilst discrimination may not be based on colour on this island it does exist. I have seen racist graffiti in St Helier targeting against Jewish people and those from Portugal. I do find it very sad that debates on any subject related to this island can be cut short or dealt with by being told that if you don’t like it go. This excludes anyone not from Jersey in any reasonable debate; regardless of how long they have lived here, paid tax and contributed in many ways toward the wellbeing of the community.
On top of this there is a thread of xenophobia in some of the arguments being put forward. Is it not possible to engage in a debate based on the facts and not on where you are from (not saying that everyone is like this but if the cap fits wear it).
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I agree 100% with the wonderful comment by Jonathan Sellars, “if you want to be governed by the UK, go and live in the UK”
So sick of hearing all the English ex-pats carrying on about how they do things so much better “on the mainland” – well go back there then! Nobody asked you to come here!
‘When in Rome…’ as they saying goes.
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Nobody is suggesting that the UK can legislate for the island and comments like ‘There is a boat out in the morning’ are hardly useful.
The moot point is to what extent the UK government can influence Jersey if it so wishes.
I would argue that Jersey is passively influenced via the Audit Commision which checks Jersey’s accounts, ACPO which is responsible for the inspection of the Jersey police force, HMIP which inspects La Moye and plenty of other ways that Jersey’s establishment is overseen by UK institutions.
I would also draw your attention to the time that the UK requested a defence contribution and gave us the choice of establishing and funding a TA unit or making a cash payment towards the UK defence budget.
We chose to establish a TA unit but we were not able to say ‘Thanks for the offer but no thanks to both options!’.
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Actually I was asked to come over to Jersey as there was no one on the island qualified to do the job I do. Ever since I have paid tax and not tried to find any ways of reducing my liability unlike some on this island who were born and bred here. In any event if all of us moaning Brits went home would it make those that were left any more right or just more complacent? On a final note I seem to remember that what they got up to in Rome was also a trifle unpleasant to say the least so perhaps ‘when in Rome’ is a little bit of an unfortunate analogy.
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Tintin – I must apologise for some of my compatriots that may have given you the impression that Jersey is populated entirely by small-minded bigots with only a football hooligan’s ability to respond to all the ideas that they find challenging. This is very far from the case, though the small-minded bigots we do suffer from are disproportionately vocal. Many of us agree with and appreciate your observations and I can only hope that the better standards of education available to young Islanders will ensure that the all people who wish to work towards a healthy, diverse and vibrant Jersey will be welcomed and valued in the future.
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I was born in London.
Jersey has been very good to me.
I have good friends and a good lifestyle.
Jersey is what it is through the results of the ballot box, you do not need to be born here to vote.
I include “Jersey born” in this, If you dont like it here go somewhere else !!
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The report of the Crowther Kilbrandon Royal Commission on the Constitution (1973), listed areas where it is accepted that the UK Parliament has responsibility for Jersey and could accordingly legislate: defence; matters common to British people throughout the world (e.g. succession to the Crown, nationality); to reflect the ultimate responsibility of the Crown for the good government of the Islands (i.e. the UK government would be held responsible internationally if practice in the Islands were to overstep the limits of acceptability); international responsibilities and to protect UK interests (particularly in the commercial field).
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The point is that the Royal Commission actually reported on areas in which it was acceptable in 1973 to legislate for Jersey. The whole point of the UK constitution is that it is a moveable feast so these areas can change. In any event it is arguable that any one of the areas given by AI could cover the current situation. It is also the case that one could argue that any legislation passed by the UK would not (obviously at first sight) be subject to any pre existing treaty obligations. In the words of Joe Strummer ‘should I stay or should I go now?.’ In the absence of a political party to vote for voting makes little or no difference to what actually happen on the island.
And thanks Bruce et al.
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They call them “wingeing poms” in Australia
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The Kilbrandon report is now out of date
UK acts which are intended to apply to Jersey have to be registered in the Royal Court. If the Royal Court does not register, they do not apply.
The UK cannot legislate for the Island without the consent of the island authorities.
Australia and other large countries demand loyalty from those who wish to live there, ususally in the form of an oath. Any person who comes to Jersey should be loyal to the island. The payment of taxes and social security does not give a divine right to disparage the host island. No-one forces anyone to come and live here!
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If it is so awful here, why would anybody want to stay?
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In the case of Ex Parte Bristow (1960) the Royal Court held that an Act of Parliament applying in express terms to Jersey does not require to be registered in order to have effect in Jersey. I believe that case continues as authority Ronald but may be mistaken.
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