Is the time right to cut the strings?
IT WAS just impossible not to. While watching the judicial arm of the House of Lords hear Sir David and Sir Frederick Barclay's case against the Privy Council's decision to approve the Sark Reform Law, thoughts of the independence argument surfaced.
IT WAS just impossible not to. While watching the judicial arm of the House of Lords hear Sir David and Sir Frederick Barclay's case against the Privy Council's decision to approve the Sark Reform Law, thoughts of the independence argument surfaced.
How can a judicial arm of the UK be deciding on the lawfulness of Channel Islands legislation?
It just hammers home the role the UK has at a time when ministers here are at pains to stress the maturity of our democracy, keen to show that Guernsey has its own international identity.
And democracy really was at the heart of the arguments being put forward here – whether unelected members of a legislature breached article three of the first protocol of the European Convention on Human Rights: the right to free elections.
It was the purest of the arguments on the table and the hardest one to be successful with because there is no real case law to back it – it is an element that may well find itself being heard in Strasbourg and, if that happens, just watch out – because it calls into doubt the compliance of the Bailiff's position.
Indeed, that role appears open to challenge under the convention now if anyone had the will to do so.
You could take this possible human rights breach as opening the door a crack to independence from the UK because the appointment and role of the Crown Officers are certainly elements of the debate.
Does it feel right that the UK courts are hearing the case in the first place, albeit on a narrow concession that the recommendation for royal assent was made with regard to the UK's international obligations?
Does it feel right that decisions are taken on whether to approve local legislation in an essentially secret process in the UK?
Does it feel right that the UK still claims the nuclear option of legislating for the islands?
Supporters of the current position quickly leap to their feet at this point to argue that that would never happen – well, you could say that about a nuclear attack but no one is very comfortable that the arms exist in the first place.
Do not be fooled into thinking the UK's power is limited over Guernsey – without even going as far as the nuclear option, it could effectively bring local law-making to a grinding halt by simply not granting royal assent, as the case of ordinance-making powers showed.
What impact Sir David and Sir Frederick's challenge has on the Privy Council and its adviser's recommendations in the future would be interesting to find out.
Remember that under the vague and unusual constitutional relationship, the UK claims to be responsible for the good governance of the islands and represents it on the international stage – will, perversely, the Privy Council no longer have regard to the UK's international obligations in making its decisions because of the threat of being challenged in the UK court's again?
We probably would never know.
How can Guernsey ever properly establish itself on the international stage, an area it plainly wants to be a player in given the global reach of the finance industry and one for which Chief Minister Lyndon Trott last week made a case for more money, when it is reliant on the UK to shout its corner?
Now there are costs to moving adrift from the UK, but at the moment they have not been quantified because no one has done the work – unlike in Jersey where, should it ever be needed, the research has started.
There would be costs associated with representation on the international stage, but how loudly is the island's voice heard at the moment, muted as it is among the UK's own interests?
Could Guernsey have its own body in place of the Privy Council to be the backstop of checking legislation? Yes, but what the mechanism should be is open to debate.
One argument goes that it would never happen without the will of the people and the States certainly does not have the appetite for going down that route at the moment.
The public will get its chance to rise up on the issue within months at a postponed public meeting to be held by Advocate Roger Perrot, a leading UK and EU critic.
At least now the debate is being further informed by what's happened in London and what could happen in Europe.
The UK is itself wrapped up in a debate about its constitution and the role of bodies such as the partly-unelected House of Lords and, in some quarters at least, the role of the monarchy.
Can Guernsey talk independence without also taking the opportunity to look at the relationship with the Crown?
In a modern democracy, is it really right that residents are not citizens but subjects?
Do you really need the approval of local laws, however much it is a given on the advice received, by someone whose power comes from birth, not from ability or democratic election?
Is it really right that we cling to this relationship because of a lustre of historical grandeur, as some would?
These are all questions that at least need to be addressed if Guernsey is to shake off the last remaining remnants of feudalism and the last hints of being undemocratic, with non-elected members of the States of Deliberation such as the Bailiff and Crown Officers retaining influence.
