Wednesday, 19 February 2014

A State of Emergency

"Members of the powerful RMT Union were due to hold a protest at Portsmouth Harbour this afternoon in support of Ukrainian workers allegedly paid £29 for a 12 hour day onboard the Commodore Clipper conventional ferry. This is on top of the strike by French workers over pay and conditions that has kept the Condor Rapide fast ferry in port in St Malo since 6 February." (JEP)
So what would happen if the UK boats also stopped sailing to Jersey? As well as passengers, they are also the vital food link to our supermarkets. As bad weather over Christmas revealed, we have three or four days worth of food held locally by some supermarkets, and after that, they would run out. Even that staple of diet, bread, is now mostly imported, as the large scale bakeries in Jersey and Guernsey ceased last year.
As my correspondent Adam Gardiner notes:
"The Clipper brings in a very high proportion of our foodstuffs. In fact Waitrose rely on the Clipper for the daily stocking of their shops as that have no warehousing facilities in either island. The same boast takes out what little we export. Right now, the first digging of Jersey Royals. If that also became strike bound we got some real problems."
"The only other boats are Condors fast ferries, but how long before this escalates to Poole and Weymouth, and the Huelin Dispatch. The Dispatch is however does not operate a daily service as it is not a ro-ro and its cargo is containerised and craned abroad which is a whole lot longer exercise than running a trailer up a ramp. Its more a bulk carrier."
Condor, is in essence, Jersey's delicate jugular vein for food supply, and any escalation of the dispute could have more serious repercussions than just the French end, although that is also impacting on locals, local businesses and St Malo.
We are not there yet, but there is legal provision for taking action should it prove necessary. The relevant powers can be found in the Emergency Powers Law of 1990, which would seem to be available should it be necessary for "securing the essentials of life to the community". This could involve, for example, charting another vessel to bring foodstuffs to the Channel Islands, and potentially nullify the recently signed agreement with Condor.
The law operates as follows:
1)    If at any time it appears to the Lieutenant-Governor that there have occurred, or are about to occur, either inside or outside Jersey, events of such a nature as to threaten the national defence or the safety of the community, the Lieutenant-Governor may, after formal consultation with the Council [of Ministers], declare that a state of emergency exists.
(2)    Where the Lieutenant-Governor has declared a state of emergency to exist the Lieutenant-Governor shall forthwith inform the Bailiff of that fact and the Bailiff shall, as soon as may be, communicate the information to the States and shall, for the purpose, convene the States for such day as the Bailiff may appoint, being a day not more than 3 days after the making of the declaration, unless the States have already been convened to meet within that period.
(3)    No such declaration shall remain in force for more than 30 days, but the Lieutenant-Governor may make a further declaration at or before the end of that period.
(4)    Where the Lieutenant-Governor has declared a state of emergency to exist, and so long as the declaration is in force, it shall be lawful for the Council to make Orders for securing the essentials of life to the community and those Orders may confer or impose on the Council or any competent authority, and on any body or person, such powers and duties as the Council may deem necessary for the preservation of the peace, for securing and regulating the supply and distribution of food, water, fuel, light, telecommunication services, postal services and other necessities, for maintaining the means of transit or locomotion and for any other purposes essential to the public safety and the health or life of the community and make such provisions incidental to the powers aforesaid (including the making by the States of compensation) as may appear to the Council to be required for making the exercise of those powers effective.
Notice the provision for "for securing and regulating the supply and distribution of food" within those terms of reference, and this is made more explicit elsewhere:
Powers of competent authority in relation to food
(1)    A competent authority may by Order provide for securing, regulating or prohibiting any one or more of the following, that is to say -
(a)     the supply or distribution of food;
(b)     the acquisition of food;
(c)     the price at which food may be supplied.
(2)    Any provision made by an Order under paragraph (1) may be made in relation to food generally or in relation to any particular description of food and, in either case, may be made with respect to the supply, distribution or acquisition of food, or of the description of food in question, for all purposes or for any particular purposes specified in the Order.
(3)    Without prejudice to the provisions of this Article, an Order under paragraph (1) may empower a competent authority to give to any person carrying on business as a supplier of food directions as to the persons to whom he or she is to supply any such food as may be specified in the directions in accordance with such requirements as may be so specified or may, to such extent as may be specified in the directions, prohibit the supply of food to persons so specified.
(4)    Where any food is supplied to any person in pursuance of directions under paragraph (3), that person shall pay such price in respect of the food as may be reasonable.
Emergency Powers can be brought into effect regarding the "supply, distribution or acquisition of food", which is exactly what could be imperilled by Condor if the strike escalated and no resolution was found. It is something which should be considered if required.
One thing that surprises me is that there seems to be no independent arbitration available to resolve the dispute. An organisation such as "Paris Arbitration" ( ) would seem to be ideal:
"French arbitration law has long been viewed as a model for other countries, and French jurisprudence regarding arbitration is widely considered to be clear and well established. Courts have been supportive of arbitration for decades, and French law thus provides parties with legal certainty that their agreement to arbitrate will be enforced. It allows the parties complete freedom to organize their arbitration, subject only to internationally recognized minimum standards of due process. Many of the best rules established by French courts over recent years were incorporated into a new amendment to the French arbitration law in January 2011."
 It is clear that some kind of third party is needed to move things on, otherwise it is like a siege  position, and it is a question of who has to give way first, which is not the best way of getting negotiations going. Alan Maclean just seems to be wringing his hands from the sidelines, and is at the moment hopelessly ineffectual.
While Jersey has no jurisdiction and Condor is not a Jersey company, they should push strongly for arbitration to be sought as soon as possible. Indeed, what is of concern is that so little thought had been given to procedures for disputes and resolution in the recently signed contract, especially as a dispute occurred in 2012 over Condor paying less than the minimum wage to employees from Ukraine. Surely that was an oversight on behalf of Senator Maclean and his advisors.
But if it is a more international dispute needing pressure to go to arbitration, the newly created post of Minister for External Affairs should have it as part of his remit, and Sir Philip Bailhache should intervene. As matters stand, we need Jersey to be more proactive than simply grumbling on the sidelines.

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