The Jersey Law Review - October 2004
SHORTER ARTICLES
AND NOTES
JERSEY AND THE UNITED KINGDOM: A CHOICE OF DESTINY (3)
Alan Binnington
Crisis? What crisis?
1 Those
who suggest that Jersey should become
independent seem implicitly, if not explicitly, to be suggesting that the Island has reached some form of crisis point in its
constitutional relationship with the United Kingdom. However had one
asked an Islander in the second half of the 19th century what he thought of the Island’s
constitutional position he would probably provided a similar answer; yet the Island’s relationship with the United Kingdom
has changed little since then. As has been mentioned above there were a number
of clashes between the Island authorities and the Crown during this period in
relation to the legislative power of the United Kingdom Parliament in respect
of Jersey but, to use the words of Lisle Bois, quoted in Philip Bailhache’s related article “whenever a dispute
on the subject arose, it was never allowed to come to a head”. To some
extent we now find ourselves in a similar position, not so much because the
United Kingdom Parliament has endeavoured to legislate for the Island but
because it is not seen to be protecting the Island’s interests
internationally, particularly where the interests of the Island and the United
Kingdom conflict. The UK government has, for example, used the threat of
legislation to ensure the Island’s compliance with the EU Code of
Conduct, not by means of direct legislation but by means of indirect
legislation such as that relating to controlled foreign companies the effect of
which would be to make Jersey far less attractive for entities such as United
Kingdom clearing banks.
2 Although
there have in recent years been a
number of threats to the Island’s fiscal autonomy the reality is that it
is only since the present Labour government took office that the United Kingdom
government has been less willing to stand up for Jersey’s interests when those interests conflict with its own. Depending on its
political complexion a change of government in the United Kingdom can have a
considerable impact on the Island’s
relationship both with that government and with foreign states. In recent years
the area in which tensions have most frequently arisen is that of taxation, as
states which have to fund mounting social spending through increased taxation
seek ways to prevent the flow of capital to low tax jurisdictions. Although
taxation was historically regarded as a matter of domestic concern
jurisdictions now co-operate far more in tax matters than was formerly the
case. This approach has been mirrored by English courts : until relatively
recently English private international law recognised that an English court
would not assist a foreign state to collect its taxes but, whilst not directly collecting a foreign state’s taxes,
English courts will now provide a far greater degree of assistance through the
collection of information. This spirit of co-operation both at a domestic and an international
level is the background against which the UK Government’s attitude
towards the offshore dependencies has to be considered. Whilst Jersey may not like it, the pressure to harmonise
taxation is increasing, which is perhaps not surprising given the massive
social budgets that most European countries have to fund. It is important that
the Island does not over-react to the
perceived threat of interference in domestic matters: it has overcome such a
threat within the existing constitutional framework before and there is no
reason why it should not do so again. Nevertheless there is little harm in
examining the Island’s constitutional
relationship with the United
Kingdom and possible options for its reform.
Independence as a relative concept
3 Small
states such as Jersey can never be truly
independent. John Donne’s famous comment that “No man is an island
entire of itself” is perhaps equally true of islands and small states, if not also
large states. If one examines the table of European small states in the related
article in this issue by John Kelleher one finds that virtually all of those
states have found the need to bring themselves under the umbrella of a larger state.
Thus, for example, Monaco
is under the French umbrella, Andorra under that of Spain and San Marino
under that of Italy.
Practical implications of independence
4 Whether
or not one regards the economic reliance on the financial services industry as
“unhealthy” the reality is that it is now the Island’s
principal means of support and therefore the consequences of independence
necessarily fall to be judged by its practical effect on that industry. It
would be foolish to ignore the impact of the independence option on the finance
industry and to hope that if it moves elsewhere some other industry will take
its place.
Currency
5 If Jersey
were to choose to become independent a number of matters would have to be
addressed, perhaps the most significant of which would be the choice of local
currency. There is of course no reason why Jersey
could not join the Eurozone in much the same way as Monaco and San Marino have
done, notwithstanding the fact that they are not in the European Union.
Interestingly the Euro coins that Monaco mints are deducted from the
French quota by the European Central Bank but, because of their rarity, tend to
command a premium as collectors’ items!
6 Whilst
adopting the Euro might encourage more people to travel between the continent
and the Island the likelihood is that, from
the finance industry’s point of view, the preference would be to retain sterling
given that it is the base currency of a significant part of the Island’s business.
External relations
7 At
present the UK
is largely responsible for Jersey’s
relations with other countries and Islanders are able to avail themselves of
the assistance provided by British embassies and consulates throughout the
world. Following independence the Island would
clearly not have the resources to maintain representation in all countries overseas
but, if it chose to shelter under the “umbrella” of another country
one assumes that it would then take advantage of that country’s foreign
representation. That country could, of course, be the United Kingdom.
In terms of concluding agreements with other countries this
has, historically, been carried out by the United Kingdom on the Island’s behalf, albeit that in the last few years
there have been occasions where prior consultation with the Island
has been limited, to say the least. However the United Kingdom has recently
displayed a willingness, or if that is too strong a description, perhaps an
acceptance, that the Island concludes
agreements itself: recent negotiations with member states of the European Union
on the exchange of information in fiscal matters are a case in point.
Sources of business
8 There
are very few financial institutions in the Island
that do not at present depend on a flow of business from the City of London. Independence would not necessarily cause that
flow to diminish but it would be unlikely to increase it, and the Island’s rating in terms of political stability
could be affected with a consequent decrease in its standing as a financial
centre.
Conclusion
9 The
consideration of independence as a reaction to a UK government which has been
distinctly lacklustre in fighting the Island’s
corner from an international point of view is an understandable reaction.
However, from the perspective of its financial services industry, the Island is still very much dependent on being part of the sterling
area and confidence in the Island’s
political stability is, rightly or wrongly, based on a perception of the
strength of its constitutional relationship with the United Kingdom. Independence would leave a number of
significant issues to be addressed, none of which is likely to result in an
increase in business for the Island : the best
that could be hoped for would be that their resolution would not result in a
decrease in business.
10 If
what is hoped for is the ability to conclude agreements with other countries
directly where the interests of the United Kingdom and the Island conflict there is no reason why that cannot be
done within the existing constitutional framework as the Island’s
recent direct discussions with EU member states have demonstrated. If the real
concern is that the Island has not received
concessions in return for its agreement to remove harmful tax measures and to
adopt withholding tax and exchange of information measures the answer
may lie not in independence but in the Island
demanding more in the way of concessions than it has done hitherto. An obvious
example of how other jurisdictions have tackled the problem is that of the Cayman Islands who reached agreement with the United Kingdom government
on the European Savings Directive in return for the Cayman Island Stock
Exchange being designated as a “recognised stock exchange” by the
Inland Revenue. Other possibilities include the removal of the Island from some of the black lists employed by countries
in their domestic tax codes in return for provision of information.
11 Greater
co-operation between Jersey and Guernsey is something that is being, and should be,
explored. Similarly there could be greater co-operation between the Channel Islands and the other offshore dependencies.
Whilst they may be competitors in terms of their finance industries many of the
threats and problems that they face are common to all of them. In terms of
negotiations with the EU and OECD it may well be that more could be achieved by
working together than trying to achieve short term competitive advantages.
12 There
is much that can be done by the Island to strengthen its position
internationally without effecting a drastic change in constitutional
arrangements that have lasted for some 800 years and which have withstood
various perceived crises at various times during that period. The Island’s pre-eminent position as an offshore
finance centre depends to a large extent on the perception of its political
stability. Whilst arguments with the United Kingdom may themselves
affect that perception the somewhat drastic remedy of choosing independence may
have far reaching consequences in terms of how the Island
is viewed by investors in other countries. Jersey
has always shown itself to be adaptable to changing circumstances and there is
no reason why it should not be able to adapt to the significant changes that
one now finds in international fiscal matters without discarding a
constitutional relationship which has served it well for eight centuries.
Alan Binnington is an advocate of the Royal Court, and is a
partner in Mourant du Feu and Jeune,
22, Grenville Street, St. Helier, Jersey, JE4
8PX.