6 May 2008
The Channel Islands are ancient anomalies whose curious position dates back to 1204 and the loss by William the Conqueror's great-great-grandson John of the rest of the Duchy of Normandy. The islands have remained loyal to the English Crown ever since, but have never formed a part of the UK. They have their own laws and customs, but are not sovereign. They are Crown dependencies. What precisely that means in today's Europe is an issue very much at large.
When, for example, the Prime Minister criticises royal prerogative powers - "the exclusive exercise of which by the Government should have no place in a modern democracy" (Constitutional Reform statement, 3 July 2007) - the islands are affected, if only by a substantial side-wind.
Once upon a time, when the notion of absolute monarchy was politically acceptable, government by royal decree from London was de rigueur. However, the story of English politics was one of erosion of royal power until the monarch governed in name only. The sovereign is not sovereign: Parliament - or rather the ministers comprising (Her Majesty's) government - is. Powers that remained with the Crown were increasingly exercised at the direction of those ministers. The cart came to pull the royal horse.
The Channel Islands however, were left behind democratically. Although their own assemblies evolved, they did not ;take power from the Crown, with the result that those powers were, and still are, exercised in accordance with the will of the UK government of the day - a government that is neither elected by, nor democratically accountable to, the islands.
The principal example of those retained powers is the giving or withholding of Royal Assent. Channel Island laws, the equivalent of acts of Parliament, require Royal Assent. Legislation is passed as draft legislation and then goes to the Ministry of Justice (the department with responsibility for the islands) for approval, and if found not to be inconsistent with UK international obligations or contrary to "good governance", is allowed to go forward for assent.
The Secretary of State for Justice, the Rt Hon Jack Straw MP, is central to this process as both the cabinet minister with responsibility for the islands and as one of the three members of the Privy Council committee also having responsibility for the islands. If he and his committee recommend Royal Assent then the legislation receives Royal Assent and vice-versa. Her Majesty does not debate the merits of Channel Island legislation. She is involved in name only.
In practice this is rarely a problem. It is unusual for there to be any serious disagreement over Channel Island legislation. But all of these issues have now arisen in the context of judicial review proceedings brought in the Administrative Court, London, by Sir David and Sir Frederick Barclay, challenging the lawfulness of an assenting order made in respect of legislation reforming the Sark parliament.
Until now the essentially feudal assembly comprised 40 tenants (the owners of the tenements, or parcels of land, into which Sark was divided when it was resettled in 1565 by Queen Elizabeth I) and 12 deputies of the people. Under the new legislation the assembly will be fully elected. The objection raised by the Barclays, as owners of several Sark tenements, is the failure to reform also the feudal offices of seigneur and seneschal.
The former is the feudal lord holding Sark from the Crown and the seneschal is their appointee, holding office as both speaker of the assembly and judge of both criminal and civil matters, although they have no legal training, as well as controlling conveyancing and liquor licensing.
The brothers also object to the fact that a Labour Lord Chancellor and Secretary of State for Justice should reject an earlier draft of the legislation on the basis that the composition of the assembly would be insufficiently democratic because 12 of the 28 seats were reserved to tenants, but then, a matter of months later, cause Royal Assent to be granted for legislation where the seigneur remains an ex officio member of that assembly with a right to speak and where their appointee is speaker and judge for life (having previously only held office for three-year terms).
The Barclays argue that there can be no fully functioning democracy without reforming the feudal offices at the heart of Sark politics. On the contrary, says Straw, while acknowledging serious concerns, it is best left to the new assembly to determine the extent of reform some time after January 2009.
Permission to bring the proceedings has been granted and an expedited hearing directed for 21 and 22 May 2008. Quite apart from the narrow issues of whether or not the Sark legislation complies with the requirements of the European Convention on Human Rights and the International Covenant on Civil and Political Rights, there are broader issues as to the reviewability of orders in council and the royal prerogative generally, akin to those raised in the Court of Appeal in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (2007), concerning two unlawful orders in council relating to British Indian Ocean territory.
The result, whatever it may be, is awaited with interest. It is a fact that the isolated Himalayan country of Bhutan, which recently went to the polls for the first time, will have constitutional separation of powers before Sark.
Meanwhile, the litigation also begs the question, indirectly, of the appropriateness of UK ministers controlling the ultimate fate of Channel Island legislation. But that is an issue for another day.
Gordon Dawes is a partner in litigation at Ozannes Guernsey and adviser to Sir David and Sir Frederick Barclay