IT would appear that some bowler-hatted servant of the UK taxpayer is holding up Jersey legislation which could help it compete as an international finance centre.

I’m sure it can’t possibly be the Queen who is responsible for the logjam in the Privy Council causing delays in our legislation.

The issue was highlighted at a meeting last week of Jersey Finance Limited, the organisation doing its best to keep the Island’s most important industry prosperous.

Members were told that it was vitally important to get new legislation onto the statute books as quickly as possible so that the industry could offer its clients new products and services.

Great strides have been made but the technical director of JFL said that the Island was still too slow in getting its legislation in place. Apart from the law draftsmen being under pressure, the delays were also caused by having to wait for legislation to be approved by the Privy Council, which was likened to a ‘black hole’.

The technical director joked that there wasn’t much the Island could do about that except perhaps declare UDI. Well what a good idea.

Of course nobody is going to upset our centuries old constitutional relationship just because it takes months rather than weeks to get our legislation approved by the Queen in Council. But it could be another nail in the coffin of that relationship.

It is really a complete nonsense that Jersey has to submit important legislation to the UK so that the Queen can approve it in Privy Council before it is allowed to come into force. I’m no expert, but it seems to me that some British colonies are better off in this respect than the Crown Dependencies. At least they have a Governor on hand to deal with this red tape, although perhaps on this occasion it should be called blue tape.

It’s not the Queen who vets Jersey legislation, of course, although this anachronism dates from the time when the monarch did in fact approve or reject laws. No the legislation that has been agreed to by our democratically elected parliament, is pored over by Whitehall civil servants and privy councillors, none of whom are elected by, employed by, or represent the people of Jersey.

Now there may be very good practical reasons why Jersey legislation should be reviewed by Whitehall experts. There might be legal problems that our own experts have missed – although I don’t know why this should be. But the key appears to be that Jersey legislation has to be vetted by the Mother Country because it could embarrass the UK and be in conflict with international agreements that they have entered into on our behalf.

This highlights the other constitutional nonsense – that Jersey is supposed to be internally self-governing and free to look after its own domestic affairs including taxation, although as we all know, taxation is no longer a domestic issue, if indeed it ever was. But despite all these freedoms, our legislation still has to go to the Privy Council. We obviously can’t be trusted.

Submitting Jersey legislation to the Privy Council, of course, simply gives unelected officials and politicians in the UK (at least unelected by us) a further chance to meddle in our domestic affairs.

Now I’m not one for change for change’s sake, and I hate been told that I should ‘embrace’ change when I know that a lot of the change I’m being told to embrace, will make life worse, not better. I also appreciate the values of tradition and history.

But perhaps it’s time to bring our constitutional relationship with the UK into the 21st century. I have nothing against the institution of the monarchy or the Privy Council, but I don’t want our enthusiasm for tradition and custom to damage the Island and its economy. And that appears to be what is happening in the handling of our legislation by the Privy Council.

That on its own should not be enough to upset the happy relationship between Jersey and the UK, although it is pretty serious. However there are other instances where the relationship appears to be breaking down as highlighted recently by the former Bailiff in an article in the Jersey Law Review.

The most significant of these was the attempt by the UK Government to treat Islanders as foreign nationals at UK borders, thus taking away rights the Islanders have had for more than 800 years. The fact that this was proposed without any meaningful consultation with the Island authorities was ‘troubling’, the former Bailiff said in an understatement.

‘Where the interests of the UK and the Channel Islands do not coincide, the interests of the islands will always take second place,’ he wrote.

Now this is hardly surprising. The surprising thing is that some of our political leaders still cling to the notion that the UK will always act in our best interests.
This almost touching faith in the UK Government, of whatever colour, is reflected in the bit of bother we’re having over our Zero/Ten tax strategy, a rather important aspect of the financial services industry.

To this day, we still don’t know what the problem is, if indeed there is one, because we are not directly looking after our own interests in Europe – the UK Government is.

The Island authorities insist that the UK have done what they can for us, but there is a possibility that some EU members will consider Zero/Ten to be in breach of the EU’s code of conduct. Jersey politicians continue to insist that the EU have not said the policy is non compliant, but there’s clearly a problem somewhere.

We just have to wait and see what the EU tells us (through the UK of course), while at the same time working on an alternative that we won’t know is acceptable either. This is not the UK’s fault, obviously, but it would be far better if the Island were negotiating directly with the EU on this vital matter. But our constitutional relationship with the UK doesn’t allow it.

There must also be at least some lingering doubt about how keen the UK is to protect the Island’s interests in a case where our tax interests clearly do not coincide with the UK’s interests.

So the whole constitutional thing is a bit of a mess really. There was, or perhaps there still is, a Constitutional Review group looking at these issues but the response from government to their reports has been somewhat muted. In fact there has been no response at all.

I don’t suppose you can blame the Council of Ministers really. After all, they have got a lot on their plate and starting to meddle with the constitution would simply open up a huge can of worms. It’s better to leave well alone.

That’s unless of course you are waiting for legislation to be approved or you are worried about the UK’s determination to protect the Island’s finance industry and the rights of Islanders. Then you start to think that perhaps that can of worms needs to be opened.

Peter Body is editor of Business Brief magazine