A threat to our autonomy?

I DOUBT ‘Roffey Writes’ is read and digested in the corridors of power in Westminster, but just in case, let me make one thing quite clear. What follows are the personal views of one very independent deputy, not the official line of the government of Guernsey.

This is a tale of double standards and the exercise of raw power. It’s one which many people may regard as a storm in a teacup, even a technical argument over arcane procedural niceties, but it’s far more important than that.

Over recent months the current UK government has been in denial over both international law and their own negotiated promises. The Internal Market Bill clearly breaches both of these in respect of the proposed customs arrangements between Great Britain and Northern Ireland. So I suppose we shouldn’t be surprised that they’ve also showed scant regard for centuries of constitutional precedence by ignoring the objections of Guernsey and Jersey and inserting a ‘Permissive Extent Clause’ into the Fisheries Bill at the 11th hour.

This will allow the UK to legislate over access to fisheries in Channel Islands’ waters in future. Under what circumstances will they do this? Seemingly if they deem either bailiwick to be failing to uphold Britain’s international obligations. At best this provision signals a lack of trust. At worst it is a shameful strong-arm tactic to ensure the States sign up to fishery proposals with which they may not genuinely agree.

The move is pretty much unprecedented, so let’s unpack this many-layered issue. At first glance it may look like small fry compared to the many pressing issues facing the States but in reality it is a touchstone for whether our long-cherished autonomy is real or merely a mirage.

The first thing to say is that technically, the constitutional Rubicon hasn’t yet been crossed. The part of our constitutional relationship with the UK which guarantees our autonomy, at least over domestic affairs, is the convention that the UK should never legislate for the crown dependencies in this respect without their express consent. So far they haven’t done that. That line will only be crossed if and when this permissive extent clause is actually used rather than when it is put into the law ‘just in case’.

Nevertheless the act of putting this sword of Damocles over our heads is very provocative. They know that our autonomy is crucial to our economy and thereby our success as a community. So they have deliberately cranked up the pressure on us to ‘voluntarily’ comply with whatever they promise to others in respect of our domestic fishing rights.

In effect:

‘Agree to whatever we offer the EU/France in terms of fishing rights around your islands and we will do nothing to undermine your appearance of autonomy or to spook those around the world for whom Guernsey’s control over its own destiny is so important.

‘Try to stymie any promises we make, by insisting on control of your own waters, and we’ll use this clause to strip away the veil and reveal your much-vaunted self-governance as being subject to the UK’s approval.’

There is an irony here in that I am not picking up any desire by the States to be unreasonable over future fishing rights in our waters. There is a complete understanding that grandfather rights must be honoured. After all, if we sour our relationship with France that may well impact adversely on the most important market for our fishery.

So the PEC won’t even be required unless the UK is mindful to railroad through something of significant detriment to the islands. Assuming they don’t intend to do that, all parties will happily sign up of their own accord. Sadly the simple fact that the whole world will have seen the naked threat to legislate on our behalf had we not agreed ‘voluntarily’ could prove hugely damaging in the long term.

Whether the UK actually has the constitutional power to pass such legislation, PEC or no, I’ll consider in a moment but the fact that they say they do will be enough to undermine confidence in our autonomy.

To some, this may seem like simple realpolitik but there is a subtle line between that and out and out bullying. Maybe we should just accept the reality of our powerlessness as a pinprick in the ocean and ‘suck it up’ for the sake of the bigger picture, but I am not so sure that strategy would work. International investors are not fools and they can spot a well-choreographed charade when they see one.

Let’s return to the ‘wording’ of our unwritten constitutional relationship with the UK, because it really does raise more questions than an episode of University Challenge.

Nobody is disputing that the UK is responsible for Guernsey’s international affairs. So is who gets to fish within Guernsey’s 12-mile limit an ‘international affair’? Not by any stretch of the imagination. Indeed, it is hard to think of anything much more ‘domestic’.

Of course the UK could turn it into an international affair by making promises about it on the international stage, but that is clearly not what the convention means. On that basis they could legislate over our education system, health care provision or overseas aid programme simply by making promises to other countries about them. No objective observer could possibly suggest that any of those fell within the spirit of ‘international affairs’. No more does fishing within Guernsey’s waters, even if it might be a useful spoonful of sugar to help the Brexit deal go down.

The next part of the constitutional relationship to consider is the UK’s alleged power to legislate for the islands domestically should the States fail to maintain good governance. Does this give them the right to give away our fish? No, of course not. This argument fails on three grounds.

Firstly, this provision isn’t part of the historic constitutional relationship between the UK and the islands. It is the product of the Kilbrandon Commission, which considered the nature of those constitutional links back in 1973. Lord Kilbrandon concluded that the UK was ultimately responsible for the good governance of the crown dependencies. The UK may have accepted those findings in full but many in Guernsey rejected this aspect of the Kilbrandon Report. As we were never (to my knowledge) asked to formally adopt those findings, we can hardly be deemed to be bound by them.

Secondly, even if we do accept the Kilbrandon doctrine (and I personally don’t have an issue with it), he obviously wasn’t talking about this sort of situation. When he talked about the UK’s ultimate responsibility for good government in Guernsey he clearly meant avoiding the sort of complete meltdown in governance which we sadly saw in the Turks and Cacaos Islands some years ago.

Only the most jaundiced of commentators would suggest we were anywhere near that territory. I am 100% convinced that Lord Kilbrandon never envisaged the UK meddling in our domestic affairs simply because we had failed to honour promises made by the UK about our fish which they had no business making in the first place.

Indeed, does anybody else detect a whiff of hypocrisy here? Boris Johnson insists that his government’s controversial clauses in the Internal Market Bill are needed in order to maintain normal trade between Northern Ireland and the rest of the UK. He is completely right of course. The UK is indeed in real danger of seeing a customs border created in the Irish Sea. But that does nothing to change the fact that the Bill is still in clear breach of the exit deal which Mr Johnson signed up to not many months ago.

In other words the UK government knowingly agreed, and signed up to, something they now regard as unacceptable in order to secure a wider deal. That, they argue, gives them the right to now renege on their promises and their international responsibilities. Hmm! I think it may be time for the States of Guernsey to intervene and legislate for the UK in extremis to ensure the maintenance of good governance within the wider ‘British Family’.

The third reason why the alleged ‘good governance’ clause in our constitutional relationship doesn’t wash here is that, just like the ‘international affairs’ clause, it’s only engaged if the UK makes promises over our domestic affairs.

Where will this all end up? Goodness knows. Experience tells us that in international relationships, stand-offs are usually resolved on the basis of power rather than who has the moral high ground. So Guernsey doesn’t have a strong hand.

On the other hand, for very many years we have been able to rely on successive British governments to take a very principled stance in respect of our relationship. They’ve accepted that Guernsey’s interests and theirs won’t always align, and have interpreted our ancient constitutional relationship in a very even-handed way, rather than regarding might as always being right. If that golden age of British principled statecraft has now passed then it is not only Guernsey which should be mourning its demise.

I suppose the ultimate question is what should/could Guernsey do if the UK government ends up using the controversial clause to legislate for the bailiwick on a domestic matter without our consent? Tricky.

We could cave in as the least bad option and agree to absolutely anything to prevent the UK legislating for us at all costs. But what would that make us?

We could, and probably should, refuse to register the legislation created by the PEC in Guernsey because it will not be a valid law constitutionally. Sadly I somehow doubt that the international community would take too much notice of that noble gesture. The real aim must surely be to stop that scenario ever arising.

One thing is for sure. This situation is going to be a real test of our new Policy & Resources Committee. What is at stake here is much, much bigger than just control over Guernsey’s fishing grounds, although I certainly don’t dismiss the importance of that natural resource.

What should their tactics be? They must be as assertive as they possibly can be when seeking to defend centuries of hard won autonomy, but at the same time there are clear dangers to over-playing their hand. It is a tightrope and we must all wish them the very best in their endeavours. I certainly do.

Will P&R welcome this column? I doubt it. I get the impression that they would prefer the rest of the States to hold their tongues, not rock the boat, and leave this crucial matter in their hands. In some ways I can understand that and I thought twice before putting pen to paper for exactly that reason.

However in the end I concluded this matter is just too important not to be subject to proper debate both amongst States members and the wider community.

Make no mistake that in the months ahead there is a very real risk of Guernsey’s control over its own destiny being seriously eroded. That could happen in one of two very different ways.

The most dramatic, on the surface, would be the UK using this pernicious clause to legislate over Guernsey’s domestic affairs without our consent. Is that as bad as it could get? I’m not convinced it is.

In some ways Guernsey signing up to proposals regarding its domestic policy which it doesn’t really agree with, just to avoid the spectre of being legislated for by the UK, would be even more damaging.

It might avoid frightening a few horses in the short term, but it would confirm our independence as something of a sham for those with sharp enough eyes to see through the diplomatic niceties. And how long before the next PEC was inserted in another UK bill – just in case we didn’t play ball over our own domestic affairs? In other words: ‘You can do what you like in Guernsey so long as we agree with it.’

As self-governance goes, that really doesn’t amount to a hill of beans.

May you live in interesting times.