How will new States navigate a looming constitutional crisis?
In those halcyon days of 2012 and 2013 a committee was set up to investigate proposals on greater autonomy for the island with legislative and international affairs. But then the UK voted to leave Europe and, as a consequence, its government has set about trying to legislate for us without our consent. How then will the new ‘action not words’ States steer the choppy waters ahead, asks Nick Mann
GUERNSEY may just be about to find out how strong its constitutional defences really are.
When members first lit the fire of greater independence for the Bailiwick more than a decade ago, the intention was to ensure a reinforced barrier surrounded us, protecting us from interference.
It had been an issue that smouldered gently away; in 2009 a promising if far from definitive framework deal was agreed with the UK government, then a committee was set up to investigate proposals on greater autonomy in relation to legislative and international affairs.
In those halcyon days of 2012 and 2013, nobody was thinking of the UK scrambling around trying to wrap up leaving the European Union without inflicting permanent damage on itself and thoughtless collateral damage on us.
There had been issues with the pace of getting domestic laws approved, a seemingly politically driven move to force the pace of change to democracy in Sark, and the wounds were still there from the manoeuvring that eventually led to Zero-10, but there was no great pressure for change apart from wise heads seeing the need to strengthen our hand for the what if scenario.
Domestic issues took precedence, as they have a tendency to do; there are very few votes in talking about autonomy, self-determination, royal sanction, acts of parliament or permissive extent clauses.
It doesn’t sit easily with the latest trend to shout out three- or four-word slogans as if they were major policy announcements to cheer – ‘action not words’ will come to define this States, but more on that another time.
This is more often the territory of constitutional nerdiness and legal minds.
Besides, changing the island’s constitutional position is necessarily a delicate game.
But the pace of change all switched with Brexit and we have been fighting major fires ever since.
MPs seeking to force the island to introduce a public register of beneficial ownership was the first flare-up, avoided only when the UK government withdrew the bill they were trying to amend.
Then came the fisheries bill, which will be debated again in the House of Lords tomorrow.
In both cases it was not necessarily the substance of what the UK was trying to do that was the issue, but that it was trying to legislate for Guernsey without its consent.
For those who back our position, on both registers and fishing agreements, the UK is breaking long-standing constitutional convention not to legislate for the island on domestic affairs.
But the UK government sees fisheries as an international issue for which it is responsible and therefore able to act.
It is all about compliance with its obligations on the wider stage and it does not want to be exposed by the Crown Dependencies not playing ball.
It does not want to rely on reassurances because, if anything goes wrong, it could not only be exposed to reputational damage, export of fish could be banned.
This is why it wants to include a clause that would allow it to legislate without agreement should the need arise – it says it would be used only in the most extreme cases.
We know this is a government that is willing to blunder through international law over Brexit, so it is not a surprise that it is willing to do the same to the constitutional conventions and niceties with the islands.
There were strong words before the election when the fisheries bill issue first burst into the public domain, although it was concerning that Policy & Resources hadn’t felt it necessary to trouble the public with what was going on before it came to be debated in the House of Commons.
Thanks to the work on the constitution, Guernsey’s States can now refuse to register an act in the Royal Court – but what then?
How sustainable is the island’s position and also how defensible, both legally and, just as importantly, politically?
There should be no illusions that the UK can and can and will use other measures to make life difficult for the island if it wants to bend us to its will.
To fight the issue legally will be expensive and, given the lack of an agreed written constitution, fraught with danger.
The Channel Islands need to douse the flames of this issue before they get out of hand, but it is clearly a struggle.
The House of Lords Select Committee on the Constitution wants the government amendment changed – it is not persuaded that its powers are necessary.
But there is no sign of the government backing down.
Given that this issue threatens a damaging constitutional crisis as we hurtle towards Brexit day, it deserves to be front and centre of the new Policy & Resources Committee’s work.
And maybe it is, we just don’t know, because president Peter Ferbrache was totally silent on it when he made his first speech to the Assembly – and that was a missed opportunity.
This is the greatest immediate threat to our autonomy – and more will come.
Guernsey has been slowly shoring up the defences, moving to a more independent footing, and extra will come when a process is agreed for agreeing a greater amount of
domestic legislation without the need for the Privy Council to get involved.
Some argue there is strength in the uncodified nature of the island’s relationship with the UK, but that works only when there is goodwill on both sides – that is now clashing with the harsh reality of international politics.