AABA

THE STATE OF HUMAN RIGHTS IN JERSEY

This memorandum was submitted, in November 2001, by Michael Dun to the UK House of Commons Foreign Affairs Committee. In it he laments the relative absence of human rights in Jersey (part of the Channel Islands), a UK Crown Dependency. The UK is responsible for its good governance. AABA is concerned to advance human rights and is happy to publish this note.

For further information about Jersey please visit the “ Offshore Watch ” pages of this web site.
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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 )

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 [reference to a report HC642-II, session 1992-1991, Appendix 4, p. 232) 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