Gordon Dawes said the court’s ruling that Boris Johnson’s proroguing of the UK parliament was unlawful had also had the effect of bolstering the island’s ability to challenge potential legislative over-reach by British politicians.
This issue flared up earlier this year when MPs, led by Margaret Hodge and Andrew Mitchell, attempted to pass legislation in Parliament that critics said would have encroached on Guernsey’s and the Crown Dependencies’ rights to legislate on domestic matters – in this case the introduction of public registers of beneficial ownership.
Mr Dawes, a partner at law firm Mourant, pointed to the details of the judgment from the Supreme Court justices as being significant for the Crown Dependencies. The first key section was that the courts could determine whether the use of so-called prerogative powers, for example to suspend parliament, was lawful.
He also highlighted as key a section of the judgment, which said: ‘Since a prerogative power is not constituted by any document, determining its limits is less straightforward. Nevertheless, every prerogative power has its limits, and it is the function of the court to determine, when necessary, where they lie.’
Considering the impact of the ruling on the Crown Dependencies, Advocate Dawes said: ‘I see the judgment as being of great significance for confirming the power of the courts over both the existence and the limits of prerogative power.
‘Prerogative powers play an important part in the constitutional relationship between the islands and the Crown. In reality the Crown’s authority over the islands is mediated through prerogative powers.
‘The threat earlier this year of the Mitchell/Hodge amendments in relation to public registers of beneficial ownership was a threat to use, or rather, misuse, prerogative power. The judgment further establishes the right of the islands to challenge, where appropriate, the exercise of the Crown’s authority over the islands which, in reality, is the exercise of power by the government, or Parliament, of the day, unelected and otherwise unaccountably.
‘While some are reluctant to see such challenges made as conceding too much authority to London, for as long as such power is exercised in London then it is a necessary check and balance that we can go to the English courts and hold the executive of the day to account. Happily it is rare that this is ever necessary but it is a comfort to have such powerful affirmation of the court’s role.’
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