Supreme Court hands islands a very big stick

"Speak softly, …

… and carry a big stick", said Theodore Roosevelt, 26^th President of the United States and one of its most highly regarded. Yesterday the United Kingdom Supreme Court gave judgment in the Miller and Dos Santos case, otherwise known as the Article 50 or Brexit case. The Court ruled, by a majority of 8 to 3, that an Act of Parliament was required to authorise ministers to give notice under Article 50 of the Treaty on the European Union of the decision of the UK to withdraw from the EU. Because withdrawal from the EU Treaties made such a fundamental change to the UK's constitutional arrangements by cutting off the source of EU law, itself a source of domestic legal rights, the UK constitution required such changes to be effected by Parliamentary legislation. Use of the Royal Prerogative alone was insufficient.

The Royal Prerogative is a curious thing. It is those powers retained by the Crown and not taken over by the Houses of Parliament through legislation. But the Crown in this context (with very few exceptions) is not Her Majesty acting personally but on the advice of her ministers of the day. It is the UK executive (as opposed to legislature) by another name. It is the Royal Prerogative which is used to govern the Channel Islands when giving (and occasionally refusing) Royal Sanction for Channel Island legislation. There is an obvious democratic deficit in this arrangement because Her Majesty acts, not on the advice of her ministers in the Channel Islands, but a committee of the Privy Council drawn from members of the government of the day.

While the governments of Scotland, Wales and Northern Ireland all intervened in the Brexit case, there was no comfort for the devolved assemblies in the Supreme Court judgment. Relations with the EU were matters reserved to the UK government and parliament, not to the devolved institutions. Nor is there much scope for anyone looking to amend the legislation which David Davis announced within hours of the judgment with a vote as early as next week. The Court held that: "What form such legislation should take is entirely a matter for Parliament. … the fact that Parliament may decide to content itself with a very brief statute is nothing to the point. There is no equivalence between the constitutional importance of a statute … and its length or complexity."

What does this all mean then for the Crown Dependencies? Intriguingly, it is arguable that the Supreme Court judgment (which makes no mention of the Crown Dependencies at all) has handed them a very big stick in securing their post-Brexit position. In November 2016 both Guernsey and Jersey made submissions to the Justice Select Committee and its inquiry into the implications of Brexit for the Crown Dependencies. Guernsey said this:

"In order to give effect to the UK membership of the EU, the UK Parliament passed the European Communities Act 1972. In order to give effect to the EU treaties in Guernsey, insofar as they apply by virtue of Protocol 3, the three legislatures of the Bailiwick of Guernsey passed the European Communities (Bailiwick of Guernsey) Law 1973. The 1973 Law is similar to the 1972 Act …. Given these similarities, Guernsey will be considering the impact of the Supreme Court judgment in respect of Article 50 and the ability of the exercise Royal Prerogative to interfere in domestic UK law as, by analogy, similar issues arise in Guernsey …. Guernsey is therefore considering further the constitutional impact this judgment has on the Bailiwick."

Jersey made the same point, saying: " We will closely consider the consequences for Jersey of the (forthcoming) Supreme Court judgement and the UK Government's response."

On the face of it the reasoning of the Supreme Court judgment applies with extra force to the position of the Channel Islands. Both Guernsey and Jersey have primary legislation to the same broad effect as the European Communities Act 1972. It is arguably even less defensible for ministers with no democratic mandate of any kind in these jurisdictions to use the Royal Prerogative fundamentally to change the constitutional position and domestic law of these Islands. A jury point, and something of a red herring, is the absence even of a referendum.

The devolved assembly argument does not assist the government because the Channel Islands are not devolved assemblies, nor, obviously, constituent parts of the United Kingdom. While the Islands are not sovereign entities and, as such, do not have international legal personality, and while the UK has responsibility for the Islands in foreign affairs, this does not give the UK government the right, without the consent of Channel Island assemblies, to make fundamental changes to their constitutions and laws.

As against this, it will be said that, in reality the UK government will obtain its authority from Parliament to give notice under Article 50 and the two year countdown will start with the UK leaving the EU one way or another within two years. The constitutional rug will be pulled out from under the Dependencies' feet. The Ministry of Justice made it plain in its submission to the Justice Committee that UK interests would be put first:

"In 2007-2008, the then Secretary of State for Constitutional Affairs signed agreements with the Chief Ministers of each of the Crown Dependencies stating that the UK would not act internationally on their behalf without prior consultation. These agreements recognised that in international matters, particularly in relation to the EU, UK and Crown Dependency interests may differ (and that the UK will seek to represent any differing interests when acting in an international capacity). These agreements should not however be mistaken for guarantees that the UK will always be in a position to represent Crown Dependency views internationally where those views diverge from the UK's own interests."

The Islands now have a powerful argument to require rather more than mere consultation if the principles behind the Supreme Court's judgment are to be respected as they apply to the Channel Islands. Whether the argument works or not remains to be seen. It is perhaps best softly spoken, at least in the first instance, rather than used as a bludgeon; but the Islands, could, if they chose, become very awkward customers indeed.

That said, it remains to be seen if the Islands have much to fear from Brexit. Their longer term future is, arguably, better served by Brexit in almost any form, hard or soft. The threat made by the then French economy minister and now presidential candidate Emmanuel Macron to the UK that it would undergo a process of "Guernseyfication" if it chose to leave the EU was unintentionally prophetic. Both Theresa May and Philip Hammond have made comments recently describing a possible future for the UK which is not so dissimilar to that of the Channel Islands. Indeed the relationship between the Islands and the EU is a valuable precedent which UK negotiators should have close regard to. Theresa May's speech at Lancaster House of 17^th January 2017 set out her negotiating position and 12 objectives. The speech deserves to be read in full and is on the gov.uk website. There is little to fear for the Islands in that speech. There is a much closer identity of interests between the Islands and the UK in this negotiating process than there was in the negotiations leading up to the accession of the UK to the EEC in 1973, with the devolved assemblies also providing a helpful "umbrella" via the British Irish council. Article 50 will be triggered and negotiations will commence, but the Islands will be able to remind the UK government of Mrs May's words:

"… one of the reasons that Britain's democracy has been such a success for so many years is that the strength of our identity as one nation, the respect we show to one another as fellow citizens, and the importance we attach to our institutions means that when a vote has been held we all respect the result. The victors have the responsibility to act magnanimously. The losers have the responsibility to respect the legitimacy of the outcome. And the country comes together."

There has been no vote in the Islands but they are a part of the nation (not the United Kingdom) and they, their institutions and laws are entitled to the same measure of respect accorded to UK institutions by the Supreme Court.