What constitutional crisis?

IN MY last column, I wrote about the constitutional threats which exist for the Channel Islands in a UK political culture where respect for and adherence to conventions and precedents – on which so much of our constitutional position rests – are in decline. The obvious challenge is, ‘what would you do about it?’

When anyone – whether boldly or timorously – suggests even lifting the edge of the carpet on such matters, constitutional lawyers splutter into their coffees and the establishment inevitably mutters darkly, ‘be careful what you wish for’.

The premise behind these sentiments is a concern that any ‘new’ constitutional settlement between the Channel Islands and the Crown might need to be approved by Parliament in Westminster. This is a constitutional red line for a number of reasons.

Firstly, anything that Parliament can give by way of legislative act, it can take away in years to come by subsequent legislative act. The former colonies, now dependent territories of the United Kingdom, essentially have constitutions that have been handed down to them by Acts of the Westminster Parliament. We certainly don’t wish to be put into that bucket.

Secondly, the core of our constitutional relationship is that it is with the Crown and not the United Kingdom – albeit rather frustratingly in the 21st century, the existence of a constitutional monarchy in the UK means that relationship in large part can only be conducted through Her Majesty’s Government rather than with Her Majesty directly. ‘More’s the pity,’ many might feel.

That relationship manifested itself – at least in the early centuries – through a number of Royal Charters giving us, in essence, considerable rights of self-governance in return for our fealty to the English Crown. This was a valuable political trade-off at the time, secured by a group of strategically important islands, in the seemingly endless battle with the English Crown’s nemesis, namely the French Crown.

But an upside of a largely unwritten, flexible constitution is where there is a will, a way can normally be found. If there were to be the local political will – and there is none at present – what should it be seeking?

At the moment, legislation approved by the insular parliamentary assemblies is sent off to London for Royal Sanction. This is given by Her Majesty on the advice of her Privy Council – more particularly in modern times by the not-so-snappily titled ‘Committee of the Affairs of Jersey and Guernsey’ of the Privy Council, which comprises a number of ministers of the UK government of the day, presently the Justice Secretary, a junior minister in the Ministry of Justice and the Leader of the House (in their role as the ‘president’ of the Privy Council.)

The key point to note is that the Crown is advised on Channel Island affairs by her UK ministers, with no direct input from the governments of either island.

There are proposals, in a very long pipeline, that one day the Channel Islands could follow the Isle of Man and each Lt-Governor would have a form of delegated authority to provide Royal Sanction to legislation locally.

This is a step in the right direction, but it is a bit of a sop, because it is intended that in practice the Ministry of Justice will retain a process pre-Royal Sanction that will allow it to step in when it doesn’t much like what it sees. The islands should be pushing to have their own Privy Counsellors in the Committee of the Affairs of Jersey and Guernsey, not least because the responsible UK ministers are changed so frequently that the whole process would benefit by the islands having their own locally respected luminaries providing greater continuity of experience and advice than can be provided by UK ministers. UK government input may still be appropriate in the process, but only where its interests – for example in relation to the UK’s international obligations – are validly engaged.

There are other areas that could benefit from some tweaking. The Law Officers of the Crown are part of an ever-so-slightly incestuous process of appointments made by the Crown on the recommendation of a Venn diagram (depending on the role) of those self-same Crown appointees. These include the Bailiff, Deputy Bailiff and Lt-Governor. There is a nod to some political input, but barely a nod. The Law Officers’ primary responsibility is to the Crown, or more technically the ‘Crown in right of’ the islands, meaning the islands and their peoples. This is a nebulous concept that will mean something to the appointees but very little to anyone else, suffice to say it could well trump the democratically elected island government of the day, if the office holders so determine. And yet the Law Officers are the government’s chief legal advisers whom the government of the day, unlike in most other jurisdictions, cannot hire and fire. If at the end of a very long, convoluted, undocumented and untested process, you are only accountable to the Monarch who gave you the position, this makes the Law Officers pretty much untouchable. That is not, of course, to impugn the competence or reputation of any of the present or past office holders, merely to make the point that in a democracy in the 21st century, this potential risk is an unsatisfactory loose end to a constitutional thread with an illustrious pedigree and history.

Giving a nod to political input into these appointments reflects a relatively short democratic history in the islands since the end of the Second World War, prior to which the islands’ governance was more dominated by the Crown appointees and the Royal Court. The primacy of the Royal Court over the democratically elected Assemblies still plays out in lots of small ways. A decade or so ago in Guernsey, it flared into the open with a rather unseemly spat between a former chief minister and a former Bailiff in the matter of laying of wreaths on Remembrance Sunday. In Guernsey, the very fact that the States of Deliberation sits in the Royal Court rather than its own Assembly subtly reinforces the Court’s primacy. Whilst since the war the role of the Bailiff has evolved away from a political one as the head of the executive, they remain first citizen (or second, after the Lt-Governor, on a number of occasions) in a sort of super-charged Lord Mayor-type role, as well as head of the judiciary and, of course, as presiding officer of the legislature. Again, without criticising in any way past or present Bailiffs, as part of that ongoing evolution, to better reflect the separation and rebalancing of roles, the time has come for the Assemblies of Guernsey and Jersey to follow Alderney and Sark in having presiding officers who do not also sit on the judicial bench.

At some point in the 1970s it seems some Whitehall civil servant dreamt up the term ‘Crown Dependencies’ as shorthand, pre-word processors, for having to type into every document, ‘Jersey, Guernsey and the Isle of Man’. That practical but lazy term has been further shortened to ‘CDs’ and both have become embedded into political and public discourse with little understanding of what the term means. It’s an unfortunate term, as we are not dependent of course on the Crown – or indeed anyone or anything else. Small though we are, we should not be afraid to seek the changes needed to secure our constitutional position as self-governing jurisdictions, insulated from the vagaries of some of our UK cousins choosing in the future to trammel conventions. And what better time than the Queen’s Platinum Jubilee year to reassert our history and status as the oldest dominions of the Crown?