MISCELLANY
The Battle of St Helier
2021
1 It ought to be beyond belief that the gunboats
of two friendly countries, but a short time ago both member states of the
European Union, should find themselves confronting each other in the
territorial waters of the Bailiwick of Jersey. But such was the case in the
early hours of 6 May 2021 when HMS Tamar and HMS Severn entered St
Aubin’s Bay to monitor the arrival of a flotilla of protesting French
fishing boats. The arrival of the Royal Navy was followed not long after by FS
Athos, a French naval vessel, which remained on the edge of French territorial
waters in case of need. The involvement of the gunboats followed suggestions
that the port of St Helier would be blockaded and also some intemperate remarks
from a French Minister who threatened to procure the cutting of Jersey’s
electricity supply from France if the fishermen did not get their way. National
media were quick to characterise the confrontation, which fortunately involved
no actual violence, as the Battle of St Helier.
2 The casus belli was the issuance of
licences by the Jersey government to French fishermen pursuant to the Trade and
Cooperation Agreement
(TCA) between the EU and the UK or, in short, Brexit. Members of the Law
Officers’ Departments of both Islands have written a succinct description
of TCA, published in this issue.
The detailed causes of French anger remain uncertain as this issue went to
print, but it seems that some information given by some French fishermen did
not reach the licensing authority in St Helier, and the licences did not
accordingly reflect the entitlements of those fishermen. It is also suggested
that the licences contained unexpected conditions which were unacceptable to
the French.
3 The relevant article of TCA
provides
“1. By way of derogation from Article 500(1) and
(3) to (7), Article 501 and Annex 38, each Party shall grant vessels of the
other Party access to fish its waters reflecting the actual extent and nature of
fishing activity that it can be demonstrated was carried out
during the period beginning on 1 February 2017 and ending on 31 January 2020 by
qualifying vessels of the other Party in the waters and under any treaty
arrangements that existed on 31 January 2020.” [Emphasis added.]
4 It is obvious that “the actual
extent and nature of fishing activity” is a phrase that is open to
interpretation. The correct interpretation belongs ultimately to the
arbitrators who would ultimately decide any dispute. It is not the purpose here
to present arguments. The point for the moment is that, when it comes to
disputes that ultimately turn on who is right and wrong in law, differences of
opinion should not lead to bitter, moral condemnation of the other side. The
rule of law, whether national or international, is about converting potentially
bitter disputes into respectful negotiation and adjudication. For a party to
resort to self-help because they believe the other side is legally wrong is not
to try to uphold legal right, but to deny the very relevance of law in
resolving the problem.
5 Perhaps the real, practical difficulty
seems to have been the inability of the government of Jersey to talk directly
to the authorities in Normandy and to explain what was required in terms of
evidence to satisfy the requirement that the fishing activity should be
“demonstrated”. In such a dialogue, the Normandy authorities could
point out flaws and suggest corrections, if not satisfied. Under the
arrangements set out in the Granville Bay Agreement
it was possible (indeed mandated) that representatives of Jersey, Normandy and
Brittany should work together in joint committees to discuss fishing
arrangements and to resolve any disagreements.
By and large, it worked well. TCA requires, it seems, communications from
Normandy and Brittany to go via Paris, Brussels and London before they
arrive in St Helier. Chinese whispers of this kind almost invariably lead to
misunderstandings. In Gibraltar, any communications between the Rock and its
neighbours across the border are meant to go via the foreign ministries
of the UK and Spain. In reality, officials will just pick up the phone, but
then they are often family.
6 It is to be hoped that a sensible way of
moderating what is essentially a voisinage agreement can be devised for
Jersey’s relationship with its neighbours.
Historic assumptions of a colonial
constitutional relationship
1 A random trip
through historic Hansard threw up an exchange from Hansard in the 1830s,
appended to this contribution.
2 The subject matter was a vote on supply. The questions
were raised by the radical MP, Joseph Hume, who made it his principal
contribution to political life to ensure that public money was well spent.
3 Hume’s concern was that the Governor of Jersey had
thwarted a political reform in Jersey. The States Assembly had voted in favour
of public meetings and, he said, the Governor had rejected it. The barely
relevant reply from George Lamb, for the Government, was that the decision had
been taken by the Privy Council.
4 Of more interest is to note the understanding of Joseph
Hume of the relationship between Jersey and the United Kingdom.
5 First, his concern is that money spent on preparing the
defence of Jersey would be lost “if we had not the inhabitants cordially
engaged on our side”.
6 Secondly, he appears to assume a colonial relationship.
If there are disturbances in Jersey, then the United Kingdom will need a greater
military presence. Joseph Hume reasons that it is like that “in other
colonial dependencies”.
7 It is difficult to imagine in any recent debates on the
United Kingdom Parliament considering imposing legislation on Jersey that
anyone would suggest that Jersey might be lost to the UK if its autonomy were
not respected. Such a dynamic helps to explain the grant of the Constitutions
of King John, which provided the first promise after the loss of mainland
Normandy that the Channel Islands would not be incorporated into the English
jurisdiction. It can be readily inferred from Edward III granting Charters in
1341 to both Jersey and Guernsey
positively promising that autonomy to make sure of the Islands’
loyalty at the start of the Hundred Years War, and thus renouncing definitively
the challenge to that autonomy started by his grandfather, Edward I, in 1290.
8 Today, objections are raised in Parliament as to the
democratic morality of the UK Parliament attempting to impose legislation on
the Channel Islands. Many Parliamentarians will stress that such steps would
mean a break with long standing practice but we have no modern echoes of this
dynamic.
9 In the recent near-miss of the Mitchell-Hodge attempt to
impose legislation on public registers of beneficial ownership, much of the House of
Commons appeared very much to adopt Joseph Hume’s assumption that the
Channel Islands were in a colonial position, but saw no consequences to the
United Kingdom in using its “authority” in the style of a colonial
overlord.
10 The passage from pre-Victorian Hansard perhaps
illustrates the choices open to the Channel Islands to avoid repetition. A
constitutional convention is only good, as the great Ivor Jennings pointed out,
if there is a reason supporting compliance. A defection to France is no longer
a credible threat—and probably was not at the time of Sir Joseph
Hume’s anxiety on the point. Further, it appears that many in the House
of Commons see British interests as trumping any anti-colonial political morality—at
least where those potentially subject to UK Parliamentary authority are
concerned.
11 It follows that the Channel Islands need to find a clear
reason why such Parliamentarians should comply with the longstanding
convention.
12 Alternatively, the Channel Islands would need to attack
the assumption of colonial authority itself. This may be through the courts
with arguments familiar to those with an interest in the constitutional
position of the Islands such as those expounded by Professor Sir Jeffrey
Jowell. Or, if convention will not
limit the practicality of UK authority, such authority must be defined and thus
limited.
13 There has been talk in the United Kingdom of redefining
the relationship of the country’s component nations with the United
Kingdom as a state. That may provide a convenient opportunity for the Channel
Islands to seek a better defined relationship should the long-standing
convention continue to wobble.
“House of Commons Debates, 10 May 1833
supply—jersey.
The House went, on the motion of Lord Althorp, into a Committee
of Supply.
Edward Ellice MP, Secretary of State for
War
proposed, that there be granted to his Majesty a sum of
not less than 110,835l. 15s. 5d. to defray the pay of general staff officers
and officers of the hospitals in Great Britain and Ireland, from the 1st of
April, 1833, to the 31st of March, 1834, both days inclusive.
Joseph Hume MP
said, that as this vote related to the staff, he would
avail himself of the opportunity to put a question with respect to the staff in
the Island of Jersey. The governor of that island was a general staff-officer.
A dispute, which was likely to lead to some unpleasant disturbance, had lately
taken place between that officer and the Parliament of Jersey, in consequence
of his interference with its proceedings. It appeared that the local Parliament
of that island, as well as the general Parliament of the Empire, had lately
undergone a salutary reform. The Members had, in consequence, determined to
admit the public in future to witness and to report their proceedings. To this
determination the Governor had, as he was informed, opposed, and hence great
dissatisfaction in the island. Now we
ought to have the island at peace; for we had been at large expense for its
protection, and all that expense would be thrown away if we had not the
inhabitants cordially engaged on our side. He wished to know, whether it
was true that a dispute had taken place between the Governor of the island and
the local Parliament, and if a dispute had taken place, whether it was likely
to be soon stopped? If not, it was likely to lead to further disturbances, and
those disturbances would lead, as a matter of necessity, to increased
establishments in that island.
George Lamb MP, Under Secretary of State
had not expected such a question as this to be put to him
upon the Army Estimates, with which it was not very naturally connected, and he
was not prepared to give it a positive answer. The decision of which the hon.
member for Middlesex complained, was not the decision of the Governor of
Jersey, but the decision of the Privy Council, to which the matter had been
referred. The Governor had only been the medium of communicating it to the
local authorities. That decision, he understood, was strictly according to the
law of the island.
Joseph
Hume MP
was sorry to find, that reform here had prevented reform
from being established triumphantly in the Island of Jersey. The disturbances between the local and the
imperial government would lead to the increase of our military establishments
in Jersey, as similar events had led to the increase of them in other colonial
dependencies of the Crown. He hoped that, on another occasion, the right
hon. Secretary would lay before the House the reasons why the Government would
not accede to the very salutary Amendment proposed in the meetings of the
assembly of Jersey.
The grant was voted.”