The most direct reason why it matters to us is that the Channel Islands do not have legal personality in international law to represent ourselves and conclude our own international agreements. We have to rely on the UK to represent us in the international sphere. If the UK has become an ‘unreliable boyfriend’ in international circles, we will undoubtedly be impacted by its diminished status – whether it is as we try to resolve fishing or cable disputes with our near neighbours or in obtaining new aviation routes to and from our islands.
However, I’m more concerned that the UK’s apparent willingness to disregard its international obligations, if it feels its interests are best served by doing so, has much wider, less obvious, but more ominous implications for our constitutional position.
I have been worrying about this for a number of years, long before the Northern Ireland Protocol ever existed, because this is not the first time that we have seen a predilection for going about business by junking normal conventions.
The most serious direct threat came during the Theresa May years, when parliamentary backbenchers attempted to exploit her government’s weakness by passing legislation in Westminster without the islands’ consent, which could ultimately have had legal effect here. A constitutional clash was only avoided by the May government of the day ‘doing the right thing’ and tactically withdrawing the entire bill rather than allowing parliament to approve legislation which it should not.
That turbulent period in British political life continued as the Westminster parliament wrestled with the executive in Whitehall, yielding more convention-bending moments. For example, the Speaker of the House of Commons is supposed to perform the role of an impartial middleman between the political parties and the House of Commons and government. But there was little attempt to disguise the fact that the previous speaker, John Bercow, was a Remainer with no love for a Brexiteer-led government.
This manifested itself in him allowing amendments from Remainers to government motions that convention would not normally have allowed. The government got its revenge by ignoring the convention that the outgoing speaker is given a peerage in the House of Lords on their retirement.
The government went on to request that the Queen ‘prorogue’ parliament for much longer than normal convention would permit. When the Supreme Court ruled that this decision was unlawful, its judgment was rubbished by ministers, ignoring another convention to uphold an independent judiciary.
Securing a substantial majority in the 2019 Christmas General Election has not satiated the appetite for ignoring conventions if it tactically suits. In 2020, without all the islands consenting, the UK included a ‘permissive extent clause’ in the Fisheries Act, allowing the UK to extend that legislation to the islands in the future as it sees fit. This left us hand-wringing with statements of ‘disappointment’.
It has also been played out in the attempt to retrospectively amend the conduct rules for the benefit of a political ally, Owen Paterson.
More recently, what had previously been a cast-iron rule – that ministers should not mislead parliament – has been held in abeyance pending, of course, the outcome of first the Sue Gray inquiry, then the Metropolitan Police’s investigation, and now the Privileges Committee’s review of ‘Partygate’, no doubt in the hope that by then everyone will have forgotten what was said or moved on anyway.
Our constitutional position, including our relationship with the Crown, exercised in the modern day through her UK ministers, and our autonomy in domestic and fiscal affairs, largely rests on the rather flimsy expectation that everyone will uphold unwritten constitutional conventions. If we have arrived at a point where those conventions only hold for so long as it is tactically convenient, then we are at risk, as we will no longer be able to rely on everyone playing fair and ‘doing the right thing’ – as Theresa May did – when they are required to do so.
This may be the most important threat the islands face, but I know that I am whistling in the wind. Engaging with these issues is not on any local agendas and will never be a priority for UK ministers and civil servants, so all advice will be to keep our heads down, steady the boat and let sleeping dogs lie. That systemic inertia from the establishment risks sleepwalking us into a constitutional crisis on a topic and at a time not of our choosing.
Northern Ireland’s Democratic Unionist Party refused to back Theresa May’s deal, on the promise that her successor would never allow a border down the middle of the Irish Sea.
When their parliamentary support was no longer needed after the 2019 General Election, the DUP found that they had been sold down the river when both the EU and the UK agreed the Northern Ireland Protocol, which did indeed put a border down the middle of the Irish Sea.
Now the EU is learning that the very same protocol the UK wanted in order to ‘get Brexit done’ is no longer convenient.
If we do not recognise substantial risk to our position in a political environment in which long-held political conventions and international treaties can be ridden roughshod over when it suits, then we are naive, foolhardy and negligent.
. This column was previously published in the Jersey Evening Post.