Time to keep our cool

Why? Because the last time Guernsey’s unwritten constitutional relationship with the UK was considered, Lord Kilbrandon concluded that the UK parliament had the power to legislate for the island only in two circumstances. Firstly, with our consent, and secondly, and far more controversially, he opined that the UK government could step in to maintain ‘good government’. So you see, the definition of that term is mighty important.

Well I say that but, of course, Lord Kilbrandon’s opinion was just that. It was his opinion. He might have been a clever and learned chap, but it is a feature of unwritten constitutions, or constitutional relationships, that there can be no definitive ruling on how they work. Perversely, they have two contradictory features. The first is that they tend to rely heavily on convention (what has always happened), which is precisely why it is so vital to avoid damaging precedents. The second is that they tend to evolve over time.

So even if Kilbrandon was right decades ago, it doesn’t necessarily mean that opinion is still correct today. Guernsey has far more of an international personality of its own than it did a few decades ago. But the key thing to remember is that many experts in Guernsey profoundly disagreed with the review’s conclusions at the time. In particular, I well remember a very young advocate called John Langlois dismissing them as misguided and misinformed.

I am no constitutional expert so I can’t really comment beyond saying that no one should regard the conclusions of Lord Kilbrandon, or anybody else, as a definitive ruling handed down on tablets of stone. Constitutional arrangements which date back nearly 1,000 years to the days of absolute monarchy and which have never been codified in writing are slippery things by their very nature. There are even historians who would claim that the current British monarch is not the rightful inheritor of the title of ‘Duke of Normandy’, but I am not even going to go there.

What I will say is that the start of our special relationship with England happened when our Duke, ‘William the Bastard’, conquered our big northern neighbour and thereby gained a far more attractive title. Back then – and for centuries afterwards – it was quite possible for a Crown Dependency to have a relationship with their monarch, but not with any English/British parliament, because what the King/Queen said went. Their sovereignty was absolute and even regarded as a divine right.

Now things have changed somewhat. Of course, the Queen is still the British head of state but her powers as such, with some exceptions, are exercised day to day by her government. So I suppose the core question is to what extent she has devolved the exercise of her powers over the Crown Dependencies to the UK parliament. We would say, ‘not at all, our relationship is with the Crown not parliament’. Some MPs apparently take a different view. I suppose they would. No one in a position of power likes the idea of that power being limited.

I AM convinced that Guernsey is broadly correct when it comes to its right of self-determination but, for the sake of argument, let us accept for a moment the Kilbrandon doctrine on the limits of our autonomy. The question then becomes ‘what constitutes a breakdown in good government?’

There are several examples one can think of. A complete breakdown of law and order would be one, but of course Guernsey is one of the most law-abiding places in the world. The undermining of the principles of democracy might be another, but whatever one thinks of the practical implications of the outcome of our first ever referendum no one could really suggest we are abandoning democracy.

A third example might be endemic government corruption. I know that the most paranoid of conspiracy theorists writing on social media might think we have such a problem, but they couldn’t be more wrong. In nearly 40 years in and around Guernsey politics, I haven’t seen one clear act of overt corruption. Yes, deputies from various industries might have been sympathetic to their own economic sectors when making policy – I suppose that is natural – but I have never witnessed any acts of individual nest feathering.

There simply is no precise definition of good government – or the lack of it. I suppose it is that proverbial elephant which is so difficult to describe but you know exactly what it is when it’s charging towards you. Of course we saw the UK government stepping into the Turks and Caicos a few years ago to restore good government, but firstly they are a British overseas territory, which we are not, and secondly the situation here (what situation?) bears no relationship at all to what was happening there.

What is very clear is that Guernsey choosing a form of register of the beneficial ownership of companies which is almost certainly more effective than the UK’s and which has been approved by international regulators cannot remotely be seen as a dereliction of good governance. Only the most biased and jaundiced of people would suggest it was. So this attempt to rewrite our unwritten constitutional links with the UK (forgive the oxymoron) must be robustly resisted.

So far I think that P&R is doing an excellent job in this regard. The only thing that worries me is that when it comes to a battle between ‘right’ and ‘raw power’, the latter tends to come out on top. With this in mind, Guernsey must keep all options on the table, but we must not be hotheads. This is a time to keep our cool.

Firstly, we try to win the argument. Then, if the UK parliament insists on trying to legislate for Guernsey in this matter, we treat such a resolution with its proper status. No more valid than the UK parliament trying to legislate for Finland.

Lastly, if the UK tries to back up such an invalid act with any sort of coercion then, and only then, do we consider our constitutional links.

Guernsey has benefited enormously over the years from its relationship with the UK. It would be a real tragedy if that relationship ever had to end. It may be easy to gain populist plaudits by muttering about independence, but the truth is Guernsey has much to lose by attempting to become a fully-fledged microstate.

All of that said, there are certain red lines which if they are ever crossed would mean we might have to deploy that nuclear option. Personally, I hope it never comes to that, but some MPs in Westminster are making it increasing hard not to at least consider doing what until recently would have been unthinkable to most islanders.