The United Kingdom Constitution: is it its own undoing? A perspective from a Crown Dependency.

From the perspective of a Crown Dependency, the current status of the United Kingdom’s democratic institutions in relation to the tectonic UK constitution’s relationship to the European Union is to say the least revealing as to the potential for its own ungovernability. The problem is that the exercise of raw political power has to be restrained by the law which enables its exercise.

Beyond a steadfast approach from Downing Street and the Ministry of Justice to respecting the unwritten Constitutions of each Dependency and their quasi-independent autonomy, the United Kingdom’s Parliament appears to have lost sight of its responsibilities to the Union (UK) whose governance it supervises, or even incorporates and the voting preferences of each part of the United Kingdom in what was enacted as a consultative, not a binding referendum. Please note that only Gibraltar had the right to vote in the Referendum. Jersey Guernsey and the Isle of Man constitutionally have never wished to vote in a Parliament which has not jurisdiction over them.

Firstly, one step in the process of Union governance was been sidestepped in the Referendal process. The Brexit referendum was enacted as a consultative referendum, not a binding one. David Cameron took ‘a step to the left’ in stating that the Government, as distinct from Parliament, would then govern the UK’s relationship with the EU according to he Referendum result. Since then the rice has been flying.

The issue I hope to explore is: was 52% really 52% of the correct demos  or demography?

The major issue here was that England is only one part of the United Kingdom, the largest part admittedly, but bound into a contractual Union with Scotland, and within the context of Great Britain, into a complicated relationship with Norther Ireland, cemented by a regional constitutional pact with the Irish Republic which itself provides for a form of exit poll leading to a unification of Northern Ireland with Eire. Wales is a distinct Principality. I will not address Cornwall as a Duchy. One sometimes has the impression that Parliament reads England for UK.

In other words, there are or, perhaps now, were constitutional grounds for invalidating the serving of the article 50 notice by the May Government on the basis that the referendum results demonstrate that neither Scotland or Northern Ireland, or for that matter Wales voted in favour of Brexit. Scotland might have been a good place to test the theory, but although there is to be a hearing in September it does not seem that this argument will be raised.

To continue, neither was the overall result rendered proportionate by reference to the four terrifies or states concerned. Whilst 10 Downing Street governs the United Kingdom, can HMG’s interpretation of the global result from the Union perspective and that of Northern Ireland be considered a correct one?

I stress that Parliament in fact could now be looking at the issue not from an overall perspective of 52%, but from what each individual part of the territories comprising the United Kingdom of England, Wales, Scotland i.e. Great Britain and then Northern Ireland. The Hung UK Parliament could still do that, and it would put the matter within the context of the consultative referendum which Parliament itself had enacted.

Is it not Parliament’s r?le to protect the integrity if not the entirety of the United Kingdom, rather than to assume that it can override the numerical superiority of the three less strong parts of that Union and Northern Ireland?

From the Crown Dependencies’ viewpoint, our autonomy and quasi independence from Westminster depends upon the vital path guaranteed through the Privy Council both as a final appellant jurisdiction and upon Her Majesty’s Government’s continuing obedience to the constitutional imperatives it took over when the Crown Prerogative passed to it after the Glorious Revolution and the Bill of Rights. That relationship again is guaranteed through the Privy Council status of members of the UK cabinet, not through Westminster.

Far from confusing the issue, the current constitutional stresses through which the UK constitution is being put only serve to clarify the limitations upon Westminster’s power, or rather confirm the lack of any, over the Crown Dependencies’ self-governance and destinies.

As Maitland stated: “Law makes the king; the king is bound to obey the law, though if he break it, his punishment must be left to God”. What is frequently forgotten is the process through which En,gland Wales and Ireland were constituted by the Normans. It was by invasion, but not just invasion, feudal invasion. That meant that the King did not have power over the lands conquered by his Baronry until they paid homage to him from those lands. That is why the Marcher Lords were able to force the unfortunate Herald to eat the Writ issued and the Great Seal affixed to it. They owed no Fealty from the Welsh Marches as no feudal arrangement had been agreed over them.

The Feudal system functioned on interdependence not brute regal power. That in turn gave rise to law. That same law to which Maitland makes reference: Feudal law made the King an famed the relationship with his supporters, whilst not the current democratic processn that process has developed from it through Magna Carta, the First Statute of Westminster of 1275, incidentally in Norma French and the Bill of Rights. The English might do better to look at the sources of their own laws before pronouncing their own on territories outside their effective jurisdiction. neither the Channel islands or the Isle of Man owe allegiance to Westminster, they owe it to the Crown, further to the confirmation of their hard earned Norman Privileges in repulsing the French by their own force in the twelve to thirteenth centuries. Remember that it was the Normans who invaded Britain and Ireland, prior to the French driving them out of Normandy for non-payment of the homage due to the French King who was forced to allow them to occupy Normandy. A branch of the same family from Caen had done the same thing to the Pope, piously holding him hostage until he allowed them southern Italy and the right to expel the Orthodox. Feudality gave birth to democracy through the gradual legalisation of the relationship of fealty as it sent out of fashion. That is until Hodge and Mitchel decided to reinvigourate it

Assuming that the Crown Prerogative passed to Parliament and the Parliamentary system of Government after the Bill of Rights, one might suppose that Maitland's divine sanction to have been, rightly, repealed. However the sanction of nullity remains a present secular punishment. Add to that Dicey’s corrections in his 1911 Introduction to his initial statements to state clearly that the only manner in which Parliament can legislate is by virtue of its own electorate. Whilst there is a form of exception for ex-colonies, that is excluded, as the Crown Dependencies were never Colonies. The Overseas Territories have different rights, I leave their,lawyers to defend those in their own way

Parliament’s sovereignty is contingent as whilst Parliament’s power to alter the law cannot be questioned, any law passed can only derive its power from the common law of any part of the United Kingdom. That is a fundamental axiom of the Prerogative of Parliament. That Prerogative is not universal. It is limited and Crown Prerogative cannot be extended by the Executive, at least according to Lord Diplock in BRITISH BROADCASTING CORPORATION v. JOHNS (INSPECTOR OF TAXES). - [1965] Ch. 32: "This contention involves adopting what he describes as a modern and I as a seventeenth-century, view of the scope of the prerogative. But it is 350 years and a civil war too late for the Queen's courts to broaden the prerogative. The limits within which the executive government may impose obligations or restraints upon citizens of the United Kingdom without any statutory authority are now well settled and incapable of extension." 

Following Dicey and the enigmatic "rule of law" principle, any law passed by the United Kingdom Parliament depends upon the Parliament being elected by the electorate to which the law applies. That power is restricted by the notion of the common law, which incidentally in Scotland is different to that of England, Wales and Northern Ireland. What is more, each Island has its own Elected parliament and electorate, which renders any English argument that Parliament has a default jurisdiction both futile and untenable, notwithstanding any attempt made to crystalise that default into a positive right to pass legislation.

Unfortunately Dicey has become so well rubbed by those seeking Constitutional enlightenment that you have to go back to what was actually written to grasp his full meaning.

Here the reader will note that each of the Crown Dependencies’ law is precisely not the common law of any part of the United Kingdom, an essential feature for the application of the application of a UK Parliamentary Statute. It is rather their own customary laws, which have precious little to do with the evolution of the frontal English common law from which they were excused by King John and his successors. Why? Simply because, as loyal Normans, not Englishmen or Anglo-Saxons they stoutly resisted and repulsed a more French invasion in the twelfth century with no assistance from the British mainland. Feudal allegiance when tested and proved receives confirmation of existing, not new, legal rights. Let us remember that the Normans only took Normandy from the French by aggressive feudal settlement, which the French King was forced to accept, and attempted to recover on the basis of non-payment of homage, and did so by feudal force. Of such ilke are Feudal dues and respect. Queen Elizabeth II still accepted homage in Jersey in the 1990s in the shape and form of three mallards 

That independence resulted in the specific exclusion of all three Crown Dependencies, including the Isle of Man from the full application of the Treaty of Rome, then that of Lisbon. It also resulted in their having a specific set of arrangements contained in Protocol III which was in fact based upon their previous relationship with the United Kingdom. It did not however protect them from the entirely unconstitutional misappropriation of their fiscal independence by David Cameron’s Government in the United Kingdom’s attempts at self-absolution with the nebulous Ecofin.

How then can any Act of a UK Parliament derive a common law power to legislate for a Crown Peculiar or Dependency which is outside the Common Law of any part of the United Kingdom, and what is more in full possession of the full grant of privileges granted by Monarch’s I.e. those holding recognition by reference to a ducal fidelity, and also having their own independent customary law?

The current constitutional crisis in relation to Brexit should not be allowed to obscure the issue that Parliament is only sovereign within the territory of the United Kingdom, and that only by reference to the common law or laws prevalent within it. It no longer is Imperial, but a reduced insular body, reliant purely on elective tolerance. Its attempted extension to smaller ex-colonies would not be acceptable in Australia Canada or New-Zealand, Chagos Islands or no Chagos Islands. 

The main concern is whether any future UK Government will abstain from blocking an attempt to unlawfully legislate for the Islands, whether within an Act a statutory instrument, or through an order of the Privy Council.

Were the United Kingdom to dissolve in the present situation, which is no longer a mere academic hypothesis, no mere English Parliament could attempt to appropriate or extend any residual ‘Crown’ Prerogative into its own, as the Prerogative, under English Common law is not extensible, at least according to Lord Diplock who was and remains no mean authority in the matter.

What the referendum has done is to reveal that oversight of governance by a Parliament which has no grasp of its composition and identity as an elected body cannot expect to be competent to legislate, even under a colonial excuse and in the ragged borrowed robes of an Imperial Parliament, dead and buried, for territories outside the lands constituting its own electoral base.

One thing is clear, Her Majesty's government of the United Kingdom has no constitutional standing or right to prorogue any of the independent assemblies of the Crown Dependencies.