Defining when the UK could interfere in island's

JUST what would it take for the UK to poke its nose in Guernsey affairs? That was one of the questions troubling the Justice Select Committee as it continues its review into the relationship between the Ministry of Justice and the Crown Dependencies.

The work may not be in the headlines, but with a general election looming you can expect the committee will want to get the review out of the way as quickly as possible – members are still expected to visit here shortly as part of it.

It has already begun taking evidence and dived into the murky world of the islands' constitutional relationships.

So little is written down there appears to be much room for interpretation – either valuable wriggling space or a massive inconvenience depending on who you are.

What comes across is that there needs to be improvements made. The question is how far that goes, something reflected largely in the independence debate here.

White & Case is responsible for the Crown Dependencies' legal representation in Brussels.

Professor Alastair Sutton, a partner in the firm, was the first called to give oral evidence, and an uncorrected transcript of what he said is now available on line.

It did not take long for chairman Sir Alan Beith to get to the heart of the matter.

The Ministry of Justice claims ultimate responsibility for the good governance of the Crown Dependencies.

'There would have to be rioting in the streets, do you think, before good governance would be activated?' asked Sir Alan.

Professor Sutton said he came at the issue from the other end.

'Because I think anything more unlikely than rioting in the streets is hard to imagine in Jersey, Guernsey and the Isle of Man.'

He went on to stress that the islands had been subjected to independent objective external scrutiny, by bodies including the OECD and the IMF, and found to be well governed in the sense that they are well regulated, transparent and co-operative.

But Sir Alan wanted to know what would trigger the Secretary of State to do what he 'thinks he has the power to do?'

Professor Sutton agreed with a statement made in an earlier hearing that this was a hypothetical and wholly unrealistic prospect.

'If you ask me to imagine a situation other than rioting on the streets, as you put it, you could imagine in this day and age a collapse of the economy such that the moral responsibility – I do not know about the legal responsibility – of the UK to intervene to bail out one of the Crown Dependencies could arise. Say the economic governance of one of the islands was such that it was irresponsible, it was reckless, it was unduly risky and led to a collapse of the economy. Of course, that has not been the case. That is not the case, I think, in any of the Crown Dependencies. They are, in a sense, paragons of virtue in terms of economic management.'

You could read into that it basically has to be Armageddon before the UK could step in.

Professor Sutton added that the concept of good governance had never been judicially defined.

So everything remains hypothetical.

Clear as mud then, you might say...

Another committee member, Alun Michael, wanted to know how the UK Government could be sure there was not an issue of governance that 'it ought to put its nose in'.

In response, Professor Sutton said that under UK constitutional law and practice it was only when it came to international affairs or defence that the UK could intervene.

There was no official means for the UK to inform itself, but there was everyday communication, he said.

But then the issues that for centuries have been ones for self-governance – like taxation – are now firmly imbedded in the international arena.

Now the UK, nominally the Queen but in practice a much more politicised involvement than 'the Crown' would indicate, has a role in saying yea or nay to local legislation.

So that is another channel of communication.

Although none of this, as Mr Michael suggested, was very transparent.

If a breakdown in governance was identified, what then?

'It can give views, it can advise, it can warn, but I think it cannot intervene in an executive, judicial or legal sense,' said Professor Sutton.

Dr Alan Whitehead pressed ahead on the dual role of the Bailiff.

He asked if there would or could be circumstances where this was not considered constitutionally as good governance and so the UK could act almost as a sort of Supreme Court and say the statutes should be amended to bring this in line.

Professor Sutton said the UK could take that position.

It would have to base this view on an issue like the Convention on Human Rights and there would be the possibility for judicial review by the Supreme Court to take a binding decision.

'How far it could go would depend on the specific case, I think, but clearly, provided there is that right of judicial resolution of the matter, there is no problem. That is where any gaps, in the absence of a written constitution, can be closed, which is by the judiciary,' said Professor Sutton.

The chairman again pressed at the extremes by asking if the UK could pass an act and say the existing constitutional arrangements were at an end and impose direct rule?

Professor Sutton immediate answer was no, but added context when asked about the Royal Prerogative.

'Politically, militarily, yes, but unless the condition of a breakdown of good government, which I define as a very narrow concept, is fulfilled, the seizure of power, so to speak, in that way, would be unlawful.'

And then where do the islands turn? The United Nations? Possibly. It is complicated further by Europe, and the UK at times finding itself having to speak with one hat on for itself and another for the islands.

The answer to that could be giving the islands power to negotiate for themselves.

'The way of the future is more intensive co-operation. There have to be mechanics put in place, and it probably implies greater resources in Guernsey or Jersey and the Isle of Man and in London. There have to be co-operation mechanisms,' said Professor Sutton.

And this is also where the Brussels office fits in, enhancing the island's international identity as it increasingly becomes reliant on being at one with Europe for its economic future.

There are huge tensions in the constitutional debate.

Some in the UK might be tempted by the idea of taking over, some here by full independence, and ploughing the middle ground are those who simply want improvements made within the existing boundaries.

All this was reflected in one evidence session into what is meant to be a reasonably innocuous review.

Watch this space.