The Jersey Law Review - October 2004

JERSEY AND THE UNITED KINGDOM: A CHOICE OF DESTINY (1)

Richard Falle

Introduction

1       There is a certain irony about the fact that, as Jersey celebrates the 800th anniversary of its emergence as an autonomous micro-state in 1204, it faces a combination of political, economic and constitutional challenges which may re-mould the future shape of that autonomy.  On the political front, the States have decided to accept the central recommendation of the Review Panel on the Machinery of Government in Jersey chaired by Sir Cecil Clothier QC (‘the Clothier Panel’) to replace the committee system with a ministerial system of government.  On the economic front, the Finance & Economics Committee published its consultation paper ‘Facing up to the Future’ in February 2004, outlining its proposals for major fiscal reform, and for dealing with the expected £80-100 million deficit which will be created by acceding to the EU Code of Conduct on Business Taxation.  On the constitutional front, there is constant pressure from the United Kingdom and from the European Union in relation to the Island’s fiscal autonomy.  In an ideal world, challenges of this magnitude would arrive, if at all, one at a time.  Each of them is sufficient on its own to place considerable strain upon Jersey’s bureaucracy.  Unfortunately, this is not an ideal world; furthermore, in truth, these challenges are all inter-related in one way or another.  Let us look at each briefly before turning to the heart of the matter. 

Political change

2       The report of the Clothier Panel (‘the Clothier Report’)[1] recommended inter alia the establishment of a ministerial system of government with political responsibility vested in a number of ministers headed by a Chief Minister.  On 28th September 2001 the States adopted some of the recommendations in the Clothier Report and resolved that it would replace the committee system of government by a ministerial system, combined with a system of scrutiny.[2]

3       The States later charged the Privileges and Procedures Committee with the responsibility of bringing forward the legislation to give effect to these changes.  A draft States of Jersey Law 200­- has been lodged au Greffe and is due to be debated before the end of 2004.  This Law and the subordinate legislation made under it will transform the machinery of government.  From a system involving 15 committees of the States,[3] each with a substantial freedom to formulate its own policy direction, will emerge a leaner machine of ten ministries, each under the political direction of a minister aided by one or more assistant ministers.  Those ministers will be members of and subject to a Council of Ministers headed by a chief minister with authority to co-ordinate decision making and to compel compliance with the strategies approved by the States.  Even greater change is in prospect for the civil service.  A rather loose and informal co-operation between departments will be replaced by a system in which each departmental head is directly accountable to the chief executive of the Council of Ministers.  Furthermore, departmental heads will find themselves liable to examination by scrutiny panels composed of elected members not holding ministerial office.  The scrutiny system has yet to prove itself as an effective way of challenging and monitoring policy-making and performance by what will become the government of Jersey.  It already seems clear, however, that there is an embarras de richesses in terms of the numbers of back bench members.  The Clothier Report recommended a reduction from 53 to between 42 and 44 members of the States.  That recommendation was formulated on the premise that the government should always be in a minority, thus perpetuating the requirement for consensus in decision making. Following the abolition of the committee system it is arguable that a reduction should be made.  It is in everyone’s interest that all States Members should both perceive themselves and be publicly acknowledged as being usefully and positively involved in the governance of Jersey. 

Economic change

4       For some decades the Island’s economy has, to a greater or lesser extent, boomed.  There is no public debt; there are strategic reserves totalling some £400 million; and all capital expenditure has in recent times been funded on a calendar year basis out of income.  A combination of circumstances, both internal and external, has brought that happy state of affairs to an end.  It is arguable that constant availability of surplus funds has bred complacency, both in the body politic and in the public service.  Difficult political decisions have been fudged.  Expectations in relation to public, and especially social services, have been raised to a level which is sustainable only on the back of real increases in income, and there must be at least some doubt as to whether such increases will be generated to deliver them.

5       Analysis of the tax revenue and other income available to the Finance and Economics Committee shows a disproportionate reliance on the financial services industry and, of the tax paid by that industry, an even more disproportionate part paid by relatively few tax payers, viz the major UK banks.  This is not a healthy situation.  It is moreover, inherently unstable.  Strategic decisions of bankers in London and other places far removed from Jersey are capable of producing disproportionate effects upon the Island’s tax revenue.  Unlike the Isle of Man, and many other jurisdictions large and small, the contribution of indirect taxation as a proportion of Jersey’s national income is relatively small. 

6       Jersey’s financial services industry faces increasing competition from other jurisdictions.  It is however the pressure to adopt the bundle of European fiscal measures known collectively and colloquially as the European tax package, and in particular the EU Code of Conduct on Business Taxation (‘the EU Code of Conduct’), which have brought to a head the need to reform Jersey’s fiscal system.  This external pressure will be examined in more detail below.  For present purposes it is sufficient to state that the adoption of the EU Code of Conduct will create, in round terms, a hole in Jersey’s tax revenues of between £80-£100 million, representing some 20-25% of the Island’s income.  It is not the purpose of this paper to examine these economic challenges, nor to examine the proposals of the Finance & Economics Committee to meet them.[4]  The external economic challenge does, however, have constitutional repercussions with which this paper will deal. 

Constitutional background

7       Let us first of all canter very quickly through the history of the Island’s constitutional relationship with England and later with the United Kingdom.  It is a long history which begins for practical purposes in June 1204 when the castle at Rouen, the capital of Normandy, was surrendered to the forces of King Philippe Auguste of France.  King John had lost continental Normandy, but not the Channel Islands which, for nearly three centuries, had formed part of Normandy.  The loyalty of the Islanders was secured, inter alia, by the granting of important constitutional privileges.  Amongst those privileges were the privilege of being governed by the laws then in force (essentially the customary law of Normandy) and the privilege of having separate administrations.  King John did not absorb the Islands into the realm of England.  He appointed a warden[5] for the Islands (subsequently a warden for each Bailiwick).  Later a Bailiff[6] for each of Jersey and Guernsey was appointed.  He directed, by a document which has become known as the Constitutions of King John, that the Islanders should elect their twelve best men (duodecim optimatos juratos) to be sworn to keep the pleas.  By 1341 English itinerant justices no longer visited the Islands.  Justice was administered by the jurats (as they became known) and the Bailiff.  During the early part of the 14th century, if not before, the Royal Court (composed of the Bailiff as president and the jurats) came into existence.

8       The great court of the Norman Exchequer had combined its judicial with administrative and fiscal rôles.  The Royal Court in Jersey also combined such functions and it was accordingly by this machinery that the Islanders were governed.  Their relative freedom from the arbitrary exercise of Royal power derived in part from Jersey’s position on a remote frontier; more importantly, it derived from the existence of a court manned by twelve jurats elected by the community and charged to administer the immemorial custom of that community.  This exercise of Royal authority by an elected body is fundamental to the later development of Jersey’s governance.  In time (1771), the legislative functions of the Royal Court would be transferred to a new institution, the States of Jersey.  That body emerged from the process of consultation between the members of the Royal Court and the rectors and connétables of the twelve parishes.  The ‘Etats’ (a term borrowed from Normandy) were so named because they represented the various elements of the communities in Jersey and Guernsey.  The genesis of the States of Jersey is usually put at 1524.  Until the 19th century it was composed of the twelve jurats, twelve rectors and twelve connétables, presided over by the Bailiff. 

9       The developing relationship between Jersey and England during these formative centuries is encapsulated by an order in council of 15th June 1618 which resolved differences between the Governor, Sir John Peyton, and the Bailiff, Jean Herault.  Both men were, it seems, of uncompromising temperament.  Both asserted the primacy of their respective offices in the governance of Jersey.  It was in raw terms a struggle for power between the Crown (in the sense of the English government) on the one hand and the Royal Court and the States, presided over by the Bailiff, on the other.  The Privy Council ordered –

‘PRECEDENCE OF BAILIFF AND GOVERNOR

It is ordered first that the Bailiff shall, in the Cohue and seat of justice and likewise in the Assembly of the States, take the seat of precedence as formerly, and that in all other places and Assemblies, the Governor take place and have precedence which is due unto him as Governor, without further question.’[7]

10     In effect, the Privy Council by this order had reaffirmed the right of the Island to self-determination, in terms both of the administration of justice and of domestic affairs.  The Governor, who was (and is) Commander in Chief of Her Majesty’s Forces in the Island, retained responsibility for the defence of the Island and for communications between Jersey and the outside world. 

11     Returning to the historical chronology, by a law of 1856[8] the membership of the States was increased by fourteen deputies, three for St Helier and one for each of the other parishes.[9]  In 1948, in the aftermath of enemy occupation between 1940 and 1945, the States were reformed and became a fully democratic legislative assembly composed of representatives elected by the Island’s inhabitants.[10] 

12     Notwithstanding the ruling of the Privy Council of 15th June 1618, there were during the 19th century a number of clashes between the Crown and the States as to the respective functions of the Lieutenant Governor and the Bailiff.[11]  In the 1920s, in the aftermath of the Great War, there was a bitter dispute as to whether the Island should make a regular monetary contribution towards Imperial defence.  This was resisted on the ground that Jersey enjoyed fiscal autonomy and could not be subjected to what amounted to a tax by the English parliament in which the Islanders were not represented.  The dispute was eventually compromised and a single ‘voluntary’ payment of £300,000 was made by the States to the Imperial Exchequer.[12]

Fiscal autonomy

13     Jersey’s fiscal autonomy has been asserted and defended by the States for centuries.  Are there circumstances in which, as a matter of law, this long standing constitutional privilege can be overridden?  The traditional view, which was expressed in the Kilbrandon report[13] in 1969, and in the opinion of the Law Officers of the Crown to the Constitution and Common Market Committee in 1971, is that ultimately the Westminster Parliament has the right to legislate for Jersey without the consent of the States even ‘in respect of matters of purely domestic concern to the Island, or of taxation’.[14]  The Kilbrandon report stated –

‘Our own conclusion therefore is that in the eyes of the courts Parliament has a paramount power to legislate for the Islands in any circumstances, and we have proceeded on this assumption.  This does not, of course, mean that Parliament should be any more ready than in the past to interfere in the Islands’ domestic affairs and any less mindful of the need to preserve their autonomy.  On the contrary, in the changed international situation greater vigilance may be needed.  But if, exceptionally, circumstances should demand the application to the Islands without their consent of measures of a kind hitherto regarded as domestic, then Parliament would, in our view, have the power to enact the necessary legislation.’[15]

14     Doubt has recently been cast upon this traditional view by an eminent authority, Professor Jeffrey Jowell QC.[16]  Jowell argues that this approach is heavily dated and reflects the attitudes and assumptions of a colonial and imperial age.  He suggests that the relationship between the UK and Jersey should now be examined against a background of firmer democratic standards.  ‘No legislation without representation’ embodies a fundamental tenet of the European Convention on Human Rights.  To assert the power of the UK Parliament to legislate for Jersey without the consent of the States is to deny democratic principle. 

15     If one leaves law and jurisprudential theory on one side for a moment, it is clear that in practice the legislative power asserted by Kilbrandon and others has never been exercised without the consent of the States.  It may have been threatened, but it has never been used.  Historically, disputes have been compromised. 

Lisle Bois wrote in 1983 –

‘My research has showed that ….. it was generally speaking true to say that no legislation had been imposed and maintained in the face of objections by the States...’,

And -

‘my research has also proved something which I already believed to be true, namely that whenever a dispute on the subject arose, it was never allowed to come to a head’.[17]

16     Even Kilbrandon softened the hard line of its approach to the issue of parliamentary supremacy by suggesting that there was scope for practical measures to lubricate the constitutional relationship.  In an important passage of the report the authors refer to the mutual rights and obligations of the UK and Jersey in the context of this unwritten constitutional relationship.

‘The first point we would make is that both the United Kingdom and the Islands have not only rights but also obligations towards each other.  The Islands have a right of respect for their autonomy in domestic affairs and to the observance by Parliament of the convention that it does not in the ordinary course legislate for the Islands without their consent on such matters.  But coupled with this is an obligation to give all reasonable assistance and co-operation to the United Kingdom authorities in the exercise of their domestic and international responsibilities.  The United Kingdom authorities, for their part, have a right to expect this co-operation and in the last resort to intervene if it is not given and intervention is necessary to safeguard their own essential interests.  In turn they have the obligation to give all reasonable assistance to the Islands, to respect their autonomy and to work for its preservation.’[18]

17     The softness of the language does not however disguise the potential for conflict.  The UK authorities are entitled ‘to safeguard their own essential interests’.  At the same time they have ‘the obligation …. to respect [Jersey’s] autonomy and to work for its preservation’.  What happens if these objects are irreconcilable? This potential area of conflict was not identified when the relationship of Jersey and the European Communities was negotiated in 1971.  Prior to the adoption of the European Communities (Jersey) Law 1972 the UK minister responsible for the negotiations, Geoffrey Rippon QC, MP, came to Jersey in order to explain the proposed terms of the arrangement which subsequently became Protocol 3.  On 19th November 1971 he addressed the States in these terms -

‘What I would like to emphasize, because I am sure it is of prime importance to you all, is this. Under the proposals your fiscal autonomy has been guaranteed – I say that deliberately and slowly.  There is no doubt whatever about that and I can say quite categorically that there will be no question of your having to apply a value added tax or any part of Community policy on taxation’. (My emphasis)

EU tax package

18     Against this background, let us return to the EU tax package, and in particular to the EU Code of Conduct. The Island’s stance at a relatively early stage of the discussions was explained in an article in this Review by Colin Powell, former Chief Adviser to the States.[19]  Because the EU Code of Conduct is the underlying cause of the requirement to reform our fiscal system, it is important to understand how Jersey, which is not part of the EU, became enmeshed in this European political initiative.  On 1st December 1997 the Ecofin Council[20] met to consider various aspects of taxation policy and passed a resolution on a code of conduct for business taxation.[21]  The background to this resolution was an agreement earlier that year to tackle harmful tax competition in the EU.  Harmful tax competition was considered to be those practices which encouraged mobile capital to move across frontiers to the prejudice of the home country.  The Code expressed the conclusion that co-ordinated action was necessary ‘to reduce continuing distortions in the single market to prevent significant losses of tax revenue, and help tax structures develop in a more employment-friendly way’.  The Code declared that ‘tax measures which provide for a significantly lower effective level of taxation, including zero taxation, than those levels which generally apply in the member-state in question are to be regarded as potentially harmful …’.[22]  The Ecofin Council resolved to set up a Group to assess the tax measures that might fall within the scope of the Code.

19     This Group is chaired by the UK’s Paymaster General.  The Code contained an important paragraph headed ‘Geographical extension’ -

‘M. The Council considers it advisable that principles aimed at abolishing tax measures should be adopted on as broad a geographical basis as possible.  To this end, Member States commit themselves to promoting their adoption in third countries; they also commit themselves to promoting their adoption in territories to which the Treaty does not apply.

In particular, Member States with dependent or associated territories or which have special responsibilities or taxation prerogatives in respect of other territories commit themselves, within the framework of their constitutional arrangements, to ensuring that these principles are applied in those territories.’

20     The words ‘within the framework of their constitutional arrangements’ were, I understand, inserted at Jersey’s request.  The sub-text was understood to be that Jersey’s fiscal autonomy was to be respected, and that Jersey would not be compelled to apply the principles of the Code against its will. 

21     One may assume that at subsequent meetings between officials in Whitehall and representatives of Jersey, the message about the Island’s fiscal autonomy was repeated.  It is not difficult to surmise however that a Group led by the Paymaster General would be more concerned with the UK’s domestic interests (for example to protect the bond market in the city of London) than with Jersey’s claim to autonomy in its fiscal affairs.  In November 1998 the UK reported to the Code of Conduct Group on the progress of discussions with the Crown Dependencies; that report is not in the public domain.  It is not clear whether or not it has been made available to the Island authorities; but one may again surmise that an indication was given that Jersey, Guernsey and the Isle of Man would comply.

22     In November 1999 the Code of Conduct Group published its report listing ‘harmful’ tax measures in force in EU member States.[23]  The List included a number of measures in force in the Crown Dependencies.  Four were in Jersey viz tax exempt companies, IBCs, international treasury operations and captive insurance companies.  The report includes a number of footnotes whereby member states themselves list qualifications and reservations so far as their own affected tax measures are concerned.

23     Jersey was asked to remove these four measures and told that the deadline for their removal was the end of 2005.  Discussions between officials in Jersey and the English Treasury apparently continued inconclusively between 2000 and early 2002.  One can reasonably assume that the UK officials, and perhaps Ministers too, were told that compliance with the Code would have severe economic consequences for Jersey.  Reluctance to comply with the Code, certainly in advance of others, was presumably expressed.  The official line, as described in Powell’s article, was that the Island was willing to negotiate a removal of ‘harmful’ measures on the basis that other countries, particularly competitor jurisdictions outside the EU, such as Switzerland, would remove their equivalent measures – the so-called ‘level playing field’ position.  If Jersey moved in advance of such jurisdictions, there would be a flight of business which would be detrimental to Jersey’s economy and, arguably, of no benefit to the EU.  This was clearly not good enough for the UK government.  In the April 2002 budget it was announced that reserve powers would be taken by the Treasury to designate jurisdictions in which all controlled foreign companies (CFCs) would automatically fall within the charge to tax made by the CFC rules. These powers are now to be found in sections 747-750 of the Income and Incorporation Taxes Act 1988, as amended.  Essentially power has been conferred upon the Treasury by subordinate legislation (subject to affirmative resolution of the House of Commons) to designate any jurisdiction as being, in effect, uncooperative and to penalize any UK company with a subsidiary (the CFC) in that jurisdiction; the profits of the CFC would be deemed to be the profits of the parent, and tax paid in the designated jurisdiction would be ignored.  At about that time it seems that the Paymaster General told the then President of the Policy & Resources Committee that, if Jersey did not comply with the Code, it would be designated uncooperative.  Such a threat, if implemented, would have made it unlikely that major UK banks, amongst others, would continue to do business in Jersey.

24     This threat was described in a note in this Review under the heading The sword of Damocles,[24] rather unkindly perhaps, as ‘an example of unprincipled bullying by an imperial power’.  It is not the purpose of the present author to castigate the UK government.  Indeed, one can understand how, in the face of perceived obstructiveness by a small Crown Dependency, and a concern that the entire EU tax package might collapse, UK Ministers would have felt justified in taking a strong line.  There is some evidence of subsequent embarrassment in Whitehall at the crudity of the weapon employed to ensure Jersey’s compliance.  But the threat has never been withdrawn and it is understood that no words of comfort have ever been uttered.  The risk of economic sanctions more severe than anything normally visited upon rogue states therefore subsists and hangs over the Island like the proverbial sword.  This seems an unpromising basis for the development of constitutional relations based upon mutual respect.[25] 

25     It is true that relations appear to have improved considerably since that low point in 2002.  Furthermore, it might be argued that the deed is done and that one should look forwards and not backwards.  The difficulty with that argument is that the future looks no brighter in this respect than the past.  At the end of February 2004, Fritz Bolkestein, then EU Commissioner for taxation, announced that the European Commission will be recommending ‘enhanced cooperation’ between member states with a view to harmonising the basis on which company taxation is charged.  It is known that the remit of the Code of Conduct Group is being considered with a view to its possible extension.  Despite the opposition of the UK, tax harmonisation for some remains on the European agenda.  Even the European Court of Justice now seems to be advancing the cause of tax harmonisation.[26]  Despite its lack of jurisdiction in national tax matters, the Court appears to be taking the line, in order to avoid the discrimination inherent in different tax systems, that tax harmonisation may be a requirement for a fair single market.  Where does this leave Jersey if further agreements are made amongst member states, particularly if those member states include the UK?  The harsh political reality is that Jersey’s economic interests are not likely to be protected if those interests conflict with those of the UK.  If further pressure to comply with some future European tax initiative is brought to bear, how will the Island be able to resist?  The UK government has discovered a weapon more powerful than anything at its disposal during the 19th and 20th centuries.  It is no longer necessary to threaten to legislate for the Island.  Indeed it seems likely that Whitehall has tacitly conceded the argument in relation to the power to legislate once asserted on behalf of the Imperial Parliament.[27]  The nuclear deterrent of a threat to designate Jersey as an uncooperative jurisdiction and thereby to ruin her economy has replaced the blunderbuss of imperial legislation.

Other constitutional difficulties

26     Attention has thus far been concentrated on fiscal matters.  That is because Jersey’s fiscal autonomy is central to the constitutional privilege of self-government.  But the constitutional difficulties for small dependent territories go wider than tax.  The increasing involvement of the UK in the European Union, of which Jersey is not a part, causes more general problems.  The Policy & Resources Committee has adopted a policy in response to the fiscal pressure from the UK and the EU of seeking a greater international personality.  The rationale is that, if the UK is unable or unwilling to defend Jersey’s economic and other interests in Europe, then the Island should assert the right to protect itself.  While this policy is undoubtedly sensible, its effectiveness may be limited.  The Foreign Secretary is reported as saying, at a meeting of the Overseas Territories Consultative Council in December 2003, that the UK cannot offer ever-increasing autonomy to its dependencies.  Mr Straw stated that the boundaries between internal and external responsibilities had become blurred -

‘Many people think that our partnership is split into external affairs handled by the UK and internal affairs by the territories.  But the world today is so interconnected that the boundary between internal and external issues is more and more difficult to draw.  For as long as the territories want, the UK will maintain our firm commitment to our partnership and the obligations that go with it.  But equally, we cannot offer an ever-increasing autonomy which would prevent us from meeting these obligations and from protecting our liabilities and responsibilities.  Delivering on our strong commitment to protecting and helping the territories is only possible if we get the balance right.’[28]

27     The Foreign Secretary was, of course, speaking about the UK’s relationship with Overseas Territories but the underlying thrust of the message must hold good for the Crown Dependencies too.  The UK must reserve its right to protect ‘our liabilities and responsibilities’.  The policy of constructive engagement with Europe means that, if the UK’s domestic interests require it, Jersey will continue to be committed in policy areas which fall outside the ambit of Protocol 3.  The prime example is the EU tax package.  But another is the decision in 1998 to agree with European partners that the territorial extent of third pillar arrangements for the establishment of the European Judicial Network should include the Crown Dependencies.

28     The problems for the UK in reconciling its duty to protect Jersey’s autonomy with its duty to its own citizens come in varied forms.  Another type of problem arises when the interests of particular dependent territories are different.  Gibraltar, for example, has a relationship with the EU which is the mirror image of Jersey’s relationship; it is outside the Union for trade in goods, but inside for other purposes.  In Case C30/01 before the European Court of Justice the UK mounted a defence of Gibraltar in relation to a number of directives adopted under articles 94 or 95 of the Treaty.  The detail is unimportant for these purposes but, unfortunately, the position adopted by the UK for Gibraltar was directly contrary to Jersey’s interests.  A similar position arose in relation to EU Beef Labelling Regulations, where the interests of the Isle of Man (which does export beef) were different from those of Jersey. 

29     A second type of problem arises within EU mixed competence agreements such as the agreement between the EU and South Africa.  Part of this agreement covered matters falling within Protocol 3.  Jersey was not consulted, but presumably those matters now affect the Island. 

30     A third type of problem, which is a variation on the second, is where the EU makes an agreement with a third country which might require a change in a treaty between that third country and the UK.  An example is the agreement between the EU and the USA on extradition.  The UK will now probably be required to amend its treaty with the USA which has been extended to Jersey.  Whether Jersey will in consequence be required to amend its own arrangements with the USA is not clear, but this is an area which falls outside Protocol 3 and is within the domestic competence of the States of Jersey.

31     With increasing frequency decisions are being made by the UK which affect, and sometimes adversely affect Jersey, without the Island authorities being given the opportunity to state their position on the matter in question.  The Whitehall view would be that consultation with, and accommodation of the interests of the Crown Dependencies are not always practical in this interconnected world.  That view would also imply recognition that Jersey’s constitutional arrangements are largely based on conventions which rely for their observance upon mutual respect and common interest rather than the force of law.  Considerations of comparative power may also encourage a cavalier attitude towards conventions if perceived to have become inconvenient.  In this light acquiescence on Jersey’s part and reliance on the historic benevolence of the UK government may now no longer be an option when that Olympian concern for Jersey’s interest has given way to competing interest.  Meanwhile, the autonomy which has been so precious to countless generations of Jerseymen and Jerseywomen since 1204 is slowly draining away. 

32     The Foreign Secretary must surely be right in asserting that there are limits to the autonomy that the UK is able or willing to offer to its dependent territories, whether they are former colonies or Crown Dependencies.  However much Jersey may wish to retain its fiscal autonomy, and indeed its constitutional privilege of self-government in relation to domestic affairs, the stark fact is that such autonomy and privilege may not ultimately be reconcilable with the obligations resting upon an imperial power.  If that imperial power is exclusively, or even principally, concerned with the protection of its own domestic interests, a reconciliation may be more difficult still.  Jersey is at present having to steer an uneasy course between Scylla and Charybdis. 

Richard Falle is an Advocate of the Royal Court and a consultant to the firm of Bois Bois.



[1] Report of Review Panel on the Machinery of Government in Jersey, States of Jersey, December 2000

[2] States Minutes:  28th September 2001

[3] There were 24 committees until the interim merger of responsibilities created by the States Reform:  Re-organisation of Committees (Transitional Arrangements) (Jersey) Act 2002 (R&O 120/2002)

[4] The Committee’s consultation paper Facing up to the Future was accompanied by a report prepared by Oxera entitled Oxera Fiscal Strategy.

[5] Custos was the Latin word; it was translated as Gardien in French and as Warden in English.  Subsequently the office-holder became known as the Governor.  For a succinct account of the development of the insular administration see Le Patourel, The medieval administration of the Channel Islands OUP 1937, pp 36-67.

[6] According to Le Quesne, A constitutional history of Jersey, London, 1856, page 18 et seq. the name is derived from the Latin word bajulus meaning ‘protector’.  See generally Bailhache, The cry for constitutional reform – a perspective from the office of Bailiff, (1999) 3 JL Rev 253.  The Bailiff’s oath of office obliges him to “uphold … the privileges and freedoms of this Island and … vigorously [to] oppose whomsoever may seek to destroy them”.

[7] The precedence of the Bailiff in the Royal Court and in the States Chamber is marked by the seven inch difference in the height of their respective seats in both places.  Traditionally the Bailiff will process into both the Court and the States ahead of the Lieutenant Governor. 

[8] Loi (1856) sur l’augmentation du nombre des membres des Etats

[9] For a short note on each of these offices see Bois, A constitutional history of Jersey, States Printers, 1969 pp 39-53

[10] The States are now composed of 12 senators (elected on an Island-wide franchise), 12 connétables and 29 deputies.  All these are elected.  The Bailiff and Lieutenant Governor, Law Officers of the Crown and the Dean of Jersey are members ex officio.  They have the right to speak but not to vote.

[11] See, e.g. The Victoria College dispute, where an Order-in-Council of 4th January 1853 constituting the Governing Council with the Lieutenant Governor as the president was eventually replaced by an Order-in-Council of 31st July 1858 which reconstituted the governing body with the Bailiff as chairman; Re Daniel (1891) where the dispute concerned the claim of the Governor to release a prisoner by executive act; The Prison Board case (1894) where by Order-in-Council of 27th June 1894 the Privy Council revoked an Order of 23rd June 1891 whereby the Lieutenant Governor had been constituted president of the Prison Board; see also the notes of RB Haldane, QC (later Lord Haldane, Lord Chancellor) who was retained by the States of Jersey in the Prison Board case, published at (2001) 5 JL Rev 254. 

[12] Report of the Committee of the Privy Council on the question of contribution to Imperial funds.. etc HMSO, 1926, Cmd 2586.

[13] Report of the Royal Commission on the constitution, HMSO 1973, Cmnd 5460

[14] For a recent account of this traditional view, see Young, The scope of Guernsey’s autonomy in law and practice (2001) 5 JL Rev 123.

[15] Ibid para. 1473

[16] Jowell, The scope of Guernsey’s autonomy – a brief rejoinder (2001) 5 JL Rev 271.

[17] Bois, Parliamentary supremacy in the Channel Islands, Public Law, 1983.  F de L Bois OBE was Deputy Bailiff of Jersey between 1963 and 1969.

[18] Ibid, para 1498

[19] See Powell EU and OECD Tax Initiatives – Recent Developments (2001) 5 JL Rev 161.

[20] The Ecofin Council is a committee of the Finance Ministers of the European Union.

[21] The Group was formally constituted by resolution of the European Council of 9 March 1998; OJC 99/01.  It was agreed that the work of the Group would be confidential.  This agreement has itself posed difficulties, for Jersey has had no right to obtain detailed information as to the workings of the Group.

[22] It seems ironical that the so-called ‘zero-ten’ option (tax rates of between 0-10% across the board) is now seen by the EU as a solution to the problem of distortions in the single market.  The logic is of course that there is no discrimination between resident and non-resident business; and the Savings Tax Directive is intended to reduce tax losses.  But zero tax will hardly discourage the movement of mobile capital.

[23] EU Code of Conduct (Business Taxation), Report to ECOFIN Council, Annex A (Description of listed measures).

[24] (2002) 6 JL Rev 241 at 243

[25] See para 15 above

[26] See Taxing judgments  The Economist August 28th 2004, page 67

[27] Although not directly in point, the ultimate acceptance by the Home Secretary that he could not lawfully refuse to submit Laws passed by the States for royal sanction tends to support this argument.  See the note in this Review A harmful delay (2001) 5 JL Rev 120

[28] www.theroyalgazette.com/apps/pbcs.dll/article?AID=2003112110078


Page Last Updated: 17 Sep 2019