An Independent Muddle

Sir Philip Bailhache's Manifesto states:

As was recommended by the Clothier Panel, the number of members should be reduced to 42. How does one get there?

I do not support the removal of the Constables from the States. The Constables represent an important link with the parishes. It would diminish the office of Constable if they ceased to be in the States. With 12 Constables there would then be 30 other seats. There are ways of dividing up those seats which require discussion.

What a mixed message! I'm always amazed by people who hark back to Clothier like Sir Philip, and say the problem was with the cherry picking, and we should do what it recommended. It recommended removing the Constables, actually! Why pick part of it to suit (reducing numbers) and then ignore the rest? If we are going to say Clothier was wrong on Constables, who is to say he was right about recommendations about reducing numbers? Why should Clothier be quoted as "an authority", and justification for change, if he is then ignored where Sir Philip disagrees with him?

Sir Philip Bailhache's statements on this matter are quite incoherent. We expect better from a trained legal mind.

And then we have his statement on independence, also from the manifesto:

I do not advocate independence from the United Kingdom.

I am, however, a fervent supporter of Jersey's constitutional rights to self-government and judicial independence, which we have enjoyed for more than 800 years. We have no representation at Westminster nor in the European Parliament. Decisions affecting Jersey people should be made in Jersey by our elected representatives in the States of Jersey. If external forces threaten us, we should be willing to assert our rights and to protect our political and fiscal autonomy.

Does this mean he supports independence or not? Is it an option of last resort, a nuclear option should it prove necessary? He really doesn't make this at all clear; what we have instead is a complete fudge. No one reading that manifesto would believe it was the same man who only a short time ago came to a very different statement of views in 2010.

Does he change his mind so rapidly (and invisibly, as he hasn't retracted from his earlier position publically)? Or is he downplaying the issue for the election, and giving the electorate a fudged answer? Is that level of clarity the best we can expect from a trained legal mind? Here is the situation in 2010:

MINISTERS must prepare for independence from the UK as the constitutional relationship between the two jurisdictions worsens, according to former Bailiff Sir Philip Bailhache. In the latest edition of the Jersey and Guernsey Law Review, Sir Philip writes that Islanders are increasingly being treated as 'not quite British' and that ministers should start preparing for the worst so that they are not caught out if the relationship breaks down completely. And he criticises ministers for ignoring a two-year-old report recommending that research and preparation for independence be carried out.

And lest anyone think that it is JEP misreporting him, in 2009, he wrote - in his own words - that we were "One or two steps from sovereignty".  In the Jersey Law Review, he penned an article which said, inter alia:

It is often said by ministers in Jersey, and perhaps in Guernsey too, that the constitutional relationship between the Islands and the UK is strong and in good shape. One understands that it is prudent to be restrained, and that ministers cannot always speak their minds as openly as they might wish. But in the author's view [i.e., Sir Philip Bailhache], the constitutional relationship currently leaves much to be desired. Apart from a short period when Lord Falconer was Secretary of State with responsibility for the Crown Dependencies, and viewing matters in the round, the Ministry of Justice seems increasingly to be unable to prevent other parts of Whitehall from ignoring the interests of the Channel Islands.

Do these examples demonstrate "a respect for [the Islands'] autonomy in domestic affairs"? In the author's submission, the evidence of the last 12 years suggests that that respect has often been lacking. The view is that the Crown Dependencies should not be permitted to stand in the way of the UK's domestic interests, and compromises seem more difficult to achieve. In the context of the EU tax package there was probably no specific intent in 1998 to cause harm to the Islands. The principal object was to protect the UK against tax harmonisation in Europe which would have damaged the City of London. In the context of the Borders Bill there is no specific intent to damage the interests of Islanders. What has probably happened there is that the Crown Dependencies have been offered as sacrificial pawns in order not to damage relations between the UK and Ireland, just as the commitment of the Crown Dependencies to the tax package was given in order to placate Luxembourg and others in 1998. Is this all part of the evolving constitutional relationship? It is not how the relationship began. For centuries the Channel Islands offered loyalty to their distant Sovereign and in return were offered protection. The loyalty is still there, but the protection of Her Majesty's Government seems less enthusiastically given.

Does this mean the end of the current constitutional relationship of dependency? Not necessarily. It may be that we are just going through a bad patch, as has happened in the past. But it may also be that the relationship has had its day; that the UK's closer engagement with its European partners leaves no room for the quirky ambiguities for which the British are renowned; that historical affection is giving way to envy and suspicion of so-called "tax havens" stoked by a hostile press.

It is submitted that, at the very least, we should be ready for independence if we are placed in a position where that course was the only sensible option. Nothing is lost by adopting the recommendations of the CRG for further research and for preparations so that, if the crisis comes, we are not caught like the proverbial rabbit in the headlights. In the author's further submission, it would also be a responsible action to continue with the work begun by the CRG, and to commission an inquiry into the wider issues inherent in independence. What are the advantages and disadvantages?

Alan Binnington was of course right to urge caution; but caution does not mean that we should be inert. Whether the finance industry would be concerned about independence is open to doubt. All investors cherish stability, and sovereignty may be the best way to ensure that stability in the long term.

So let's look at a few statements:

The Manifesto:

I do not advocate independence from the United Kingdom.

The Jersey Law Review Article:

We should be ready for independence
Caution does not mean that we should be inert
Sovereignty may be the best way to ensure that stability in the long term.

Can the author of the Manifesto also be the author of the 2009 article? If you asked any member of the general public, in a randomised trial, without saying who the author of the manifesto, and the writer of the article were, I'm sure most people would think they had been written by two different people, with different opinions.

He may consider that he is covering himself by the words "we should be willing to assert our rights and to protect our political and fiscal autonomy" in the manifesto, but that is surely a slippery way with words that muddles matters and gives the electorate a quite different perception. Is it right to muddle matters? Surely a degree of clarity would be more honest to the electorate?

When he said that was it deliberately calculating to be misleading? Or this just kind of verbal sleight of hand something that just comes naturally? And do we want someone who presents his policies like that in the States?

Either way, he is clearly presenting a manifesto to the public in such a way that it would muddle and mislead.

References  
http://www.philipbailhache.je/my-manifesto/
http://www.thisisjersey.com/2010/01/21/ministers-must-prepare-for-jersey-independence/
http://www.jerseylaw.je/Publications/jerseylawreview/oct09/JLR0910_Bailhache.aspx