There is much discussion in the private client community about what a future Labour Government might seek to introduce by way of fresh taxes and whether a Labour Government may seek to legislate directly in respect of the Channel Islands. Alongside that, the concern of clients seems to be the possibility of capital controls being imposed to prevent capital leaving the sterling area. The question we are asked is "Can Westminster legislate directly for Guernsey?". This briefing seeks to provide some constitutional insights into that question.
The Present Day:
In recent times the question of whether Guernsey and the other Crown Dependencies have autonomous capacity to govern their own domestic affairs has come to the fore. This is a substantive academic issue in its own right but the purpose of this note is to clarify the key facts and issues surrounding this topic.
For a more detailed analysis we recommend Sir Michael Birt's article for the Jersey and Guernsey Law Review – "The power of the UK to legislate for the Crown Dependencies without consent – fact or fiction". See link at the end of this note.
The Crown Dependencies (the Bailiwick of Jersey, the Bailiwick of Guernsey and the Isle of Man) are not part of the UK but are self-governing dependencies of the Crown.
This means they have their own directly elected legislative assemblies, their own administrative, fiscal and legal systems and their own courts of law.
The Crown Dependencies are not represented in the UK Parliament and have never been colonies of the UK. They are distinct from the Overseas Territories, like Gibraltar and Bermuda, which have a different relationship with the UK, and which remain under the jurisdiction and sovereignty of the UK. For example, Guernsey residents have no representation in UK Parliament but do have full representation in the States Assembly otherwise known as the States of Guernsey (the States) which is Guernsey's fully democratically elected parliament.
The constitutional relationship of the Islands with the UK is maintained through the Crown which, acting through the Privy Council, is ultimately responsible for ensuring the good government of the Islands. The relationship is not enshrined in a formal constitutional document, and while Guernsey does not receive subsidies from or pay contributions to the UK, it does make annual voluntary contributions towards the costs of defence and international representation, and the Crown, via Her Majesty's Government is responsible for the defence and international relations of the Islands.
The ability for Guernsey to determine its own laws, raise taxation, and hold elections is based on long-standing constitutional precedent, dating from 1204 when King John lost the Battle of Rouen, signalling the loss of continental Normandy, which had been united with The Crown since the invasion of England by William the Conqueror in 1066. As a consequence, the Channel Islands, part of the Duchy of Normandy for more than a hundred years at that point, were persuaded to side with King John, and in return King John confirmed the Islands could continue to be governed by their own laws with a separate administration, while a "warden" (later to become Governor) was appointed by the King to organise the defence of the Islands. The right to be governed by their own laws with a separate administration was thereafter enshrined in convention by a series of Royal Charters, all of which embedded the separateness of the Channel Islands from England, and later, the United Kingdom.
The Crown has a representative in Guernsey, namely the Lieutenant Governor, who ensures the good governance of the Island.
Since 1973, the definitive report on the Islands' relationship with the UK has been the Kilbrandon Report. This concluded that the Crown's responsibilities were limited as follows:
- ultimate responsibility for the "good government" of the Islands;
- the ratification of Island legislation by Order in Council (Royal Assent) following scrutiny by the relevant Privy Councillor (at the time of the Kilbrandon Report the Home Secretary; now the Justice Secretary);
- international representation, subject to consultation with the insular authorities prior to the conclusion of any agreement which would apply to them;
- ensuring the Islands meet their international obligations; and
Notwithstanding the above the UK Government has consistently adopted a non-interventionist policy regarding Guernsey’s affairs. It is generally understood, as confirmed in the Justice Committee Report of 2010, that "good government" would only be called into question in the most serious of circumstances, such as the fundamental breakdown of public order or endemic corruption in the government, legislature or judiciary. Nevertheless, the phrase "good government" is self-evidently vague and there is clearly scope for differences of opinion as to the manner in which the UK may exercise its powers in this regard. For example, the pursuit of "good government" has recently been invoked by certain UK members of parliament on the issue of Channel Island public registers of beneficial ownership. Guernsey's chief minister, Gavin St Pier is forthright in his approach:
"should these amendments [public registers] be included in any Act they would lead to inoperative legislation, based on a misunderstanding of the constitutional position. We would challenge it robustly".
More recently the UK Supreme Court's ruling that the proroguing of the UK Parliament was unlawful has been considered to add credence to Guernsey's ability to challenge potential legislative over-reach by British politicians. The judgment from the Supreme Court justices stated that "Since a prerogative power is not constituted by any document, determining its limits is less straightforward. Nevertheless, every prerogative power has its limits, and it is the function of the court to determine, when necessary, where they lie".
The significance for the Crown Dependencies is that the UK courts would be the ultimate arbiter of whether the use of so-called prerogative powers was lawful. The parallel to be drawn is that in the event the UK Parliament sought to legislate for Guernsey without the consent of the island, and in circumstances where there was no question as to the good government of the island, then this would be a matter which could be challenged in the courts and may be seen as a precedent whereby the Crown Dependencies may challenge the exercise of the Crown’s authority over the islands.
The constitutional relationship of the Crown Dependencies with the UK is not straight forward. It is founded on centuries of convention and indeed continues to evolve. Despite the unique historical position, the legal position today cannot be considered in isolation from general principles of modern international law and it may be reasonable to assume that the basic principle of "no legislation without representation" as enshrined in the European Convention on Human Rights ought to be followed. In our view there are strong grounds to submit that Guernsey has autonomous capacity to govern its own affairs and the present government of Guernsey has indicated a strong desire to resist any parliamentary overreach. Accordingly we conclude there are several reasons for saying that any future UK government could not successfully legislate for Guernsey against its will.