MISCELLANY
The Channel Islands and
the Privy Council
1 As is well known, the Privy Council operates in
the main through different Committees. The ultimate court of appeal in judicial
matters for the Channel Islands is the Judicial Committee but administrative
and legislative matters are dealt with by the Committee for the Affairs of
Jersey and Guernsey. Originally, they were all dealt with by the same
committee. It was established in the reign of King Charles II by an Order in
Council of 12 February 1668—
“His Majesty having among other the Important parts
of his Affayres, taken into his Princely
Consideration the way, and Method of
Managing Matters at the Councill Board. And reflecting that his Councills would have more Reputation if they were putt into
a more settled, and Established Course: Hath thought fitt
to Appoynt certain Standing Committees of the Councill for severall Businesses,
together with Regular days and Places for their Assembling, in such sort as followeth … 3. A Committee for the Business of Trade,
under whose Consideration is to come whatsoever Concernes
His Majestys Forraine
Plantations, as also what relates to his Kingdomes of
Scotland or Ireland, in such Matters only Relating to eyther
of those Kingdomes, as properly belonge
to the Cognizance of the Councill Board, the Isles of Jersey and Guernsey,
which is to consist of the Lord Privy Seale, Duke of Buckingham [a series of
Councillors follow] … And hereof Three or more of them to be a Quorum.
And it is further Ordered That this Committee calling unto them his Majestys Attorney Generall, or
else his Majestys Advocate, do from henceforward heare all Causes that by way of Appeale
come from the Isles of Jersey and Guernsey, the Orders whereupon being in due forme prepared by the Clerke of
the Councill; are before they are signed to be read
at the Councill Board and there Approved of, that so they may Receive the
Approbation and Authority of the whole Councill, which before used to Passe
distinctly from the Committee only, by a derivative power from the
Board.”
2 The Order is of interest in showing how at that
time the different interests of His Majesty were grouped together. In 1762 in
the reign of George III the focus was narrowed. The Privy Council made an Order
on 17 March—
“It is this day Ordered by His Majesty in Council
that the whole Privy Council or any three of them, Be, and are hereby appointed
a Committee for the Affairs of Jersey and Guernsey, Hearing of Appeals from the
Plantations, and other Matters that shall be referred to them, And that they
proceed to Hear and Examine such Causes as have already been Referred to
Committees of the Council and Report the same with their opinion thereupon to
His Majesty at this Board.”
3 It was not until 1833 that the Judicial
Committee of the Privy Council was separately constituted. Although a quorum
was set at three, in practice during the 19th and 20th centuries many more
Councillors attended the Committee when dealing with the affairs of Jersey and
Guernsey. The Committee seems at the beginning of the 20th century to have been
appointed solely to deal with Channel Island matters. In 1912, Sir Almeric Fitzroy, for 14 years Clerk to the Privy Council,
in giving evidence to the Royal Commission on the Civil Service, stated in
reply to a question from the Chairman, Lord MacDonnell, about the main features
of the duties of the Privy Council—
“By virtue of the descent of the Privy Council from
the Curia of the Norman and Angevin Kings, the Channel Islands, the last shred
of their continental dominion, own no other authority under the Crown. At the
outset of every reign a Committee of the Privy Council is appointed for the
affairs of Jersey and Guernsey to which all matters fiscal and legislative, are
referred.”
4 Following the accession of King Charles III,
Orders in Council have been made reconstituting the Committee for the Affairs
of Jersey and Guernsey. The single Channel Islands Order in Council issued on
22 February 1952 at the beginning of the reign of Elizabeth II has been
replaced by two Orders, viz. the Royal Assent to Legislation and
Petitions (Bailiwick of Jersey) Order 2022 and the Royal Assent to Legislation
and Petitions (Bailiwick of Guernsey) Order 2022, both made on 9 November 2022.
The only substantive change from the 1952 Order in Council is that the
Committee “shall not ordinarily postpone its consideration of any …
Laws if a petition is made against them and is received later than 28 days
after their final adoption by the States …” Petitioners objecting
to the enactment of a Projet de Loi have therefore only a short time to submit their
petition against Royal Assent.
5 Separate Orders in Council seem to have presaged a
potentially different approach to the granting of Royal Assent in the two
Bailiwicks. A Policy Letter was submitted to the States of Deliberation in
Guernsey by the Policy and Resources Committee on 31 March 2023 seeking
approval to a proposal that Royal Assent to any Projet
de Loi may be granted by the Lieutenant Governor
on behalf of the Privy Council unless it is specifically reserved for
consideration by the Council. The Policy Letter states that “[t]his
alternative process for granting Royal Assent should result in faster
processing of legislation, would not be reliant on existing schedules for Privy
Council meetings, and would also underline
the Bailiwick’s domestic legislative autonomy and international
identity.” This approach, and the advantages and disadvantages of
conferring this authority upon the Lieutenant Governor, are deserving of more
detailed analysis than is possible in this short piece of Miscellany.
6 What is noteworthy at this stage, however, is
that the two Bailiwicks appear to be diverging on quite an important
constitutional matter.
There is no indication from the Government of Jersey that it will seek to
follow the Guernsey lead. Nothing has been placed in the public domain, but it
is understood that Jersey is concerned not to politicize the Lieutenant
Governor’s role. The Lieutenant Governor in both Bailiwicks is the
personal representative of the Sovereign. His duty is to protect the interests
of His Majesty’s subjects in the relevant Bailiwick. He is beholden
neither to the Government of the United Kingdom nor to the Government (or
States) of the Bailiwick. The strength of his position is that he is an
impartial interlocutor. The concern is that delegating to the Lieutenant
Governor the function of approving legislation on behalf of the Crown would
risk placing the Governor in an apparent position of partiality if he were
required to withhold consent to a particular Projet
de Loi.