Briefing note 3

The briefing note below is the third of the series giving a summary of business scheduled for debate at future States Meetings, to enable 2020 Association Members to be aware, in advance, of significant matters. There is some comment which Members may wish to reflect on. It is not thought that there is any matter upon which Members’ views should be surveyed on this occasion, but, as always, Members’ comments are welcome.

Future States Business brief (3) – Meeting of 27 March 2019

There are only four matters scheduled for discussion at the March States Meeting which merit particular note or comment.

The first is the laying before the States (effectively for rubber stamp ratification) of various Orders concerning matters to do with motor vehicle traffic. These were debated by the States in December, and they concern contingency plans for attempting to minimise any potential problems caused by Brexit with regard to Guernsey drivers either taking vehicles abroad or simply driving abroad. They will enable such matters as the future granting of International Driving Permits to Guernsey drivers, registration of professional driving instructors, standards for traffic circulation regulation (ie, a Highway Code), seat belt requirements, and, and perhaps of most noteworthy impact, a regulatory system of mandatory safety testing and certification of vehicles and trailers. All this is to comply, with the Vienna Convention on Road Traffic 1968, and to enable this Convention to be applied, therefore, to Guernsey, and give corresponding international recognitions in certain countries.

These measures have been perhaps somewhat hurriedly introduced as a perceived “fail safe” with regard to the uncertainties created by Brexit. However, the general implications of acceptance of yet more regulation do bear thinking about, in general. Many of these regulations, particularly those regarding vehicle testing, have been introduced under the virtuous aim of promoting road safety, and raising and maintaining standards, which is no doubt very worthwhile in large countries, mainly with land borders and much international traffic. However, the introduction of a blanket periodical vehicle testing system is yet another matter of regulation and consequent expense – to the taxpayer in the devising and implementing of the system, and to the individual vehicle owner, in the test fees which will then be mandatorily incurred, in addition to general vehicle servicing costs. Carrying out the tests was known to provide a ‘nice little earner’ for garages when introduced into the UK, with the fees simply increasing the expenses of motoring, quite apart from the need to regulate the testers.

It is already a criminal offence in Guernsey to allow an unroadworthy vehicle on the road, and the authorities do carry out random checks. Whether there is any evidence of death, injury or damage being caused to any significant degree by unroadworthy vehicles in Guernsey does not appear to have been considered (although perhaps owing to lack of time). A close consideration of whether it is actually merited, on balance, that the whole of the driving populace of Guernsey must accept and pay for a general system of motor vehicle testing, as against the possible inconvenience or difficulty for the number of Guernsey drivers taking vehicles abroad in obtaining any necessary certification to do so, is beyond the scope of this briefing note. The general point, however, is that it behoves the States to consider closely whether introducing intrusive and expensive regulation of yet another aspect of everyday life actually delivers worthwhile benefits, rather than simply to take the easy course (in the modern context of ever more officious government) of agreeing to introduce it.

The second major item of proposed legislation is that required to authorise proceeding with the first phase of the proposed modernisation plan for the Princess Elizabeth Hospital. This will, of course, incur significant capital expenditure, but it appears to be generally recognised that the community would both need and wish to have a modernised hospital, and no further comment is therefore required.

The third item of interest is a proposal to introduce law to amend the principles of awarding damages for personal injury. Where persons suffer extreme physical injury and are entitled to damages which may represent major future loss of earnings and care costs for life, the present law in Guernsey is that these must be assessed and paid as a single lump sum. The proposal is, firstly, to correct (to make more realistic) judicial authority as to the appropriate rate of discount to be applied to the figures to allow for the benefits of this sum being paid in advance, and, second, to authorise that, in appropriate cases, such an award of damages can be ordered to be made by periodic payments, at the time they are required in the future, thus avoiding having to “guesstimate” future uncertainties such as the length of the person’s life, and future rates of inflation. Again, this is all non-controversial, and as it of financial assistance to liability insurers, its introduction will assist in keeping down insurance premiums.

The fourth major item is one of constitutional significance, but is again, scarcely controversial. The fact that a certain group of MPs in the UK have sought to introduce legislation into the UK parliament to force the Crown Dependencies (including, therefore, Guernsey) to introduce legislation to require a fully public register of the beneficial ownership of Guernsey registered companies even if they do not wish to do so, has highlighted the constitutional issue of whether the UK has power to legislate for the Crown Dependencies without their consent. The Guernsey position, backed by long established convention, is that Westminster cannot do so, and that it is the approval of Guernsey itself (signified by registration in Guernsey of the relevant UK enactment) which gives force to any such legislation in Guernsey. Hitherto there has been no formal process with regard to the decision whether or not any such legislation should be registered in Guernsey. It is therefore proposed to remove any uncertainty created by this omission, and to enact a Law, similar to one already enacted in Jersey, to provide expressly for the question of proposed registration of any legislation of the UK parliament which purports to affect Guernsey to be brought before the States of Deliberation for debate, and to decide whether or not to give consent to its being brought into Guernsey law by registration. This is to be welcomed.

The remaining legislative and policy items which will be considered by the States are not matters of particular note or controversy. For completeness, they relate to some very minor amendments to social security benefit entitlements, and to the treatment of children from Alderney and Sark in relation to the Population Management Laws.

Information regarding future States Business can be found on www.gov.gg under “Search States Meetings Information.”

PwC Airport & Condor Reports

2020 Association demands to see PwC reports on transport links

The 2020 Association has made a request under the States of Guernsey Code of Practice for Access to Public Information (2014) for the two Reports commissioned by the States on the island’s air and sea transport links to be produced to it, with a view to general disclosure to the public.


James Collings, the Chief Executive of the Association, said “In spring 2018, PwC was commissioned by the Policy and Resources Committee to produce two Reports: one into Air Links Infrastructure and the second into a Contingency Plan relating to the sale of Condor Ferries by its owner. These Reports were received back by P&R in autumn 2018. They have been shared with the Committee for Economic Development, the States Trading Supervisory Board and the Committee for the Environment & Infrastructure. However, they have been withheld from the public. These are public documents. They have been paid for from the public purse. The taxpayer has a right to see them, and P&R have an obvious obligation to produce them. The 2020 Association has therefore made a request for production under the States of Guernsey Code of Practice.”

The improvement of transport connectivity, and the implementation of a full Freedom of Information Law are among the foremost stated objectives of the 2020 Association.

A copy of our letter is here.


2020 Association says “No” to more regulation

At its States Meeting to be held this week, the States are to consider a proposal to create an over-arching Independent Health and Social Care Commission to regulate all aspects of health and social care provision in Guernsey, at an estimated cost of £368,000 a year.

A survey of its members carried out by the 2020 Association has found that the overwhelming majority (92%) are against such a proposal, regarding it as a waste of money and over-regulation for an island of our size.

Members’ comments include the following:

Over regulation is a drag on the economy and with its box ticking, cover all, mentality often ineffective”;

It is a waste of money and unnecessary bureaucracy”;

Guernsey cannot afford more and more regulation and regulators”.

© 2019 – The 2020 Association

VIEWS OF A STATES MEMBER – Feb 19

Before considering this month’s States Agenda I comment briefly on other matters that I believe are relevant. I am not though going to dwell on Brexit. The Island has made and is making provisions relating to Brexit as best it can. It is a monumental issue that is of paramount importance.

I comment thus on other issues. In no particular order they are:

(1)    A new electricity cable link to Jersey. When the current cable was laid it was expected to last 25-30 years. That has not proven to be the case. There have been serious faults in 2012, 2015 and last Autumn which means it cannot be relied upon. Thus Guernsey Electricity are taking steps to lay a new cable. It is unlikely that will be fully operative until the Summer of 2020. In the meantime, because more electricity has to be generated locally, there is an extra cost of many hundreds of thousands of pounds per month. In addition we will a few years hence need to lay a cable directly to France at a cost of around £100 million. The Island thus faces much infrastructure costs, some of which are unexpected.

(2)    Aurigny. With the concerns over Flybe, Aurigny will need to be prepared to step in. That is much easier said than done. The present Chairman’s term of office soon ends. I am aware that the steps will be taken soon to advertise for applicants for his successor. I express my own view that the reality is that Aurigny is likely to have to provide most of our regular flying needs in the future. Also I have seen the 2018 air passenger figures. They are the lowest since 1995.

(3)    That takes me to our economy generally. By most standards we seem to be fine. The reality may be different. We are complacent as a jurisdiction. The truth is we are seen to be second choice to Jersey. There is little office or hotel development. There is more and more cost and regulation. There is a lack of impetus and confidence. We are still slicing the salami which cannot be done for much longer.

I now refer briefly to certain issues before the February States Meeting.

There are ten Road Traffic Speed Limit Regulations. These limit the speed limit to 25 mph in various roads. These can only be debated if the Bailiff is approached before the meeting to give permission. I have no idea whether such a request will be made. I hope not, otherwise we will be debating whether 25 mph is appropriate for L’Aumone. I see it as part of a general social engineering policy, but the time to resolve that is at the next election.

The other item I would comment upon is the Policy Letter from the Committee for Health and Social Care on Health and Care Regulation in the Bailiwick. I am likely to be in a very small minority who oppose it. I regard it as another example of big government. In my opinion it just brings in another and unnecessary level of bureaucracy. The cost is anticipated to be £368,000 per annum of which £272,000 is said to be additional cost. Small beer some will say with a Government spend of around £400 million. My response is that it is a recurring expense, which is likely to increase and in any event is not necessary. The States though will pass it overwhelmingly.

Until the next time – Kind regards,

Deputy Peter Ferbrache

© 2019 – The 2020 Association

Briefing note 2

The briefing note below is the second of a series which is intended to be a short summary which will enable 2020 Association members to be aware, in advance, of significant business scheduled for debate at forthcoming States Meetings.

Future States Business brief (2) – Meeting of February 27th.

There is probably only one matter of States Business scheduled for the 27th February meeting which is likely to give any food for thought to members, as mentioned at the end of this piece.

The States will first proceed to elect from among their own, replacements for former Deputy McKinley to the Transport Licensing Authority and for Deputy Lester Queripel (who has resigned) to the Development and Planning Authority. It is to be hoped that people with common sense will be elected, especially to the latter. Lobby your Deputy if you have any ideas.

Following this, some 23 proposed Ordinances/Orders/Regulations will be laid before the States. Whilst the States can, in theory, annul these, they have already been debated in the States at an earlier stage and are simply up for approval. Their subjects are varied. For those who are interested, there are ten relating to the imposition of 25 mph speed limits on various sections of road (Members will recall the debate about these last summer, when it transpired that the road signs had already been ordered in advance of public consultation – either presumptuousness or lack of common sense here); there are five dealing with fees – amending (raising) the fees chargeable for the registration of public documents, for marriages, for fire services, or boarding permits, and the levies on the financial services industry; there are three relating to the supply and purchase of medical appliances; there are two aimed at ensuring that companies which claim the benefit of being subject to income tax in Guernsey actually perform economic activity of substance here. One brings in the new schedule of social security benefits, one amends the list of notifiable animal diseases and one puts the presently operating system of Legal Aid on to a statutory footing. There seems to be nothing which demands particular comment, and our understanding is that, except in unusual and exceptional circumstances, there will be no further debate and they will all, in practice, simply be voted through.

There are six items set down for the States to discuss as potential legislation either for approval or as a matter of policy. Most are unlikely to be contentions. Of the two for approval, the first makes provision for an assumption that where an entity uses a computer program to make contracts, there is a prima facie presumption that it intends this to be legally binding. The second sets up a system for clarifying and regularising the situation where there has been a breach of planning control (ie, use of real property in contravention of planning permission) but this has continued for so long that the authority would now be out of time for enforcement by serving a compliance notice. The proposed Law would enable a landowner to apply for a “certificate of lawful use” in that situation, rather than remain in a state of uncertainty until any actual dispute arose. This is a useful procedure, long established in the UK where it works well, and obviously sensible to adopt in Guernsey.

As to the four policy items, two are of narrow scope, one being a provision to enable the “Asian Infrastructure Investment Bank” – an international development organisation – to operate in Guernsey, and the other providing the mechanism for Alderney to levy its own TRP, and use it for its own purposes, as part of a general devolution of certain financial operations to Alderney, previously agreed. The third provides for amendment of the Marriage Law to simplify the process for obtaining a marriage licence (whilst retaining the necessary minimum identification formalities to protect against forced, sham or illegal marriages) and to relax the present somewhat archaic restrictions on wedding venues, times, and forms of ceremony, so as to enable couples to marry in such way as they would wish. The proposed changes, proposed after and largely in accordance with extensive consultations, appear to be very appropriate for modern times and to contain nothing which should be contentious.

The fourth policy item is the only matter which members may like to reflect upon. It is a policy proposal to set up an overarching Independent Statutory Commission to regulate the provision of all medical and social care services in Guernsey. The aspiration is stated to be to make Guernsey a “world leader” in terms of regulating health care. As a Commission regulating the entire spectrum of health and care services, including complimentary, cosmetic, mental health and suchlike would require an army of specialists who would obviously be grossly underemployed for a population one thousandth the size (for example) of the UK, it is proposed that the Commission comprise a team of core officers, with the power to engage specialist consultants for assistance in particular areas as and when required. There is also an aspiration to co-operate with Jersey, to help reduce costs. The first year set up cost is estimated – but we all know what that means, and the reporter was instructed to try to constrain the costs of any recommendations – at £368,000 (including £274,000 in staff costs), which it is said would reduce to £194,000, after deducting the estimated cost of current regulatory processes and income from current regulatory fees. Whilst admitting that the running costs of such a system, once established are unclear, it is suggested that these would involve a States grant of £184,000 per annum – but that is on the assumption that the functions and costs of the Commission would be shared with Jersey. The likelihood of this is not discussed.

This is the item on which members may care to reflect. Regulation, and the creation of regulators, is expensive. It incurs large costs in the shape of salaries for the bureaucrats who form its office and secretariat. It also costs the operators who are obliged to pay fees and spend effort dealing with the regulators rather than conducting their work, and such costs have to be passed on. A “world leading” system such as can be constructed and devised with tolerable efficiency for a large economy of diverse people the vast majority of whom are strangers to each other may be a commendable abstract aspiration, but in the context of a small community, the question of the costs, direct and indirect, of a blanket bureaucratic regulatory structure, relative the actual benefits ever likely to be achieved in reality, must surely come into question. The report appears to admit that the rather broad brush and light touch system operating in Guernsey at present makes it difficult to see both where excellent services are in fact provided as well as where, and even whether, there are significant shortcomings. Is there really a case for setting up such a bureaucratic institution for reasons of substance, rather than simply for the sake of form and appearances? What robust evidence is there that the creation of another general bureaucracy, rather than taking an incremental approach where deficiencies can really be seen, would, in fact, deliver any real and tangible benefits for islanders? This whole issue perhaps raises the wider question of how far Guernsey should keep on adopting a policy of doing what the UK does, because we “ought” to, rather than thinking for ourselves – an issue to debate with your Deputy?

Information regarding future States Business can be found on www.gov.gg under “Search States Meetings Information.”

© 2019 – The 2020 Association

Briefing note 1

The briefing note below is the first of a series which is intended to be a short summary which will enable 2020 Association members to be aware, in advance, of significant business scheduled for debate at forthcoming States Meetings. If thought appropriate, the Association will canvas members’ views, probably in answer to particular questions. However, member responses or comments will be welcome on any basis.

Future States Business brief (1) – Meeting of 30 January 2019.

Apart from further debate on the HMIC report on Guernsey’s Police and Border Agency, adjourned from the December States meeting, there are only two matters of substance scheduled for consideration at the next States Meeting on 30th January 2019.

Neither is felt to require canvassing of 2020 membership views. The first is a proposed direction to various States Departments to investigate and report (mostly by the end of 2019) on the causes, and the means of potentially alleviating, In-work Poverty in Guernsey. This can scarcely be controversial, although our members might like to consider the definitions of “poverty” which are frequently used in debate and discussion in this area.

The second is a proposal for the refurbishment of the Alderney Airport runway. The present tarmac runway was previously resurfaced in 1999 on the basis of a 12 – 15 year lifespan but has been patch repaired ever since, to the point where this is regarded as no longer viable. The recommendation is to pursue “Option 3” which, in essence, involves resurfacing and slightly widening the existing runway and improving landing lights, and doing so in a way which will not preclude the possibility of also lengthening the runway at a later time. Pursuant to an expert report which was commissioned, this option is preferred as against the possibility of also proceeding to lengthen the tarmac runway (either immediately, or as a two phase project) so as to be able to accommodate larger aircraft. The report concludes, broadly, that such a project is not economically justified with Alderney’s current population and tourist levels. The conclusions appear to be non-controversial, and indeed relatively obvious, and it is again not felt that there is any need to seek 2020 membership views on this topic.

Information regarding future States Business can be found on www.gov.gg under “Search States Meetings Information.”

(Whilst emailed to our members on the 04/01/19, this note was inadvertently omitted from the website at the time.)

© 2019 – The 2020 Association

Brexit survey results

Between the 25th January 2019 – 31st January 2019 we asked our members “If you were advising Theresa May at the moment with regard to Brexit preferred options, what would be your preferences?” Here are the results:

Detailed questions:

Leave with no deal (i.e. allow time to run out)
*Seek Canada Plus deal
*Seek means of ensuring the Irish backstop cannot be permanent and press again for Theresa May’s deal with cosmetic changes
*Seek Norway Plus deal
Rescind Article 50 trigger (i.e. ‘Remain’, on same terms as before)
*Hold General Election
*Hold Second referendum

* in each of these cases, seeking any necessary postponement of the Article 50 trigger.

Our response rate was within the expected 30-40% for a member survey.

The results of our Brexit survey were striking with regard to by far the largest support being in favour of simply walking away from the EU. Given the paucity of independent analysis and information as to the balance of advantage and disadvantage of remaining in, or leaving, the EU, those members who are interested may like to refer to the following downloadable publication:


“It’s Quite OK to Walk Away: A Review of the UK’s Brexit Options with the Help of Seven International Databases” Paperback by Michael Burrage

The author is a former lecturer at the LSE, a research fellow at Harvard and visiting professor at several Japanese universities, whose expertise is primarily in studying international markets.

© 2019 – The 2020 Association

VIEWS OF A STATES MEMBER – Jan 19

We are now in the last eighteen months of this States term.  A very important part of our rationale as an association is to promote purposive change which can only realistically be achieved by a significant change of personnel in the next assembly.  I intend to write more on that as the election approaches.

In the meanwhile eighteen months is a long time in politics and we have to do our best to make that as productive a time as we can.

Brexit is undoubtedly the major issue.  The UK as I write seems in total disarray.  No-one can sensibly predict the outcome. In Guernsey though we have to ensure that basics such as food and fuel are readily available post Brexit.  Also on 29 March, unless Article 50 is invoked and the date extended or another agreement reached, Protocol 3 will end. We also have the uncertainty surrounding our financial services post Brexit.

The Authorities here, I have to say, have done and are continuing to do what they can.  By the time you read this, I will have attended a Brexit Transition Group Meeting. The President of Policy & Resources I anticipate will be making a statement in the States.  This issue will be fast moving and will engage the States both in the short, medium and long term. More certainty will emerge when, whatever it will be, the final outcome is known.  I also envisage that whatever the conclusion it will affect these Islands for years to come. If there are challenges we will need to meet them, and if there are opportunities we should seize them.  We will need more individuals in the States who can do that.

More prosaically at this States Meeting we will discuss the Report carried out by Her Majesty’s Inspectorate on our Law Enforcement Services.  Having read it now several times, I really do wonder why. As you would expect from such a report, there are some recommendations but nothing in my view too untoward.  In such circumstances it is often not recognised by such reporting bodies that we are a very small community, and what may be required elsewhere is not here. There has been a degree of small townism, but minimal and thus why spend States time on it?

We also will be discussing the repairs to Alderney Airport Runway.  If approved this will involve expense of just over £12 million. If not approved then I genuinely believe that Alderney’s Airport will not be in a workable state for much longer.  There undoubtedly is the much wider question of the 1948 Agreement between the Islands, but that is for another day as the repairs are urgently needed. We should not allow the two to be linked.  

There are other issues bubbling not far beneath the surface, and next time I may well write about the reality of trying to co-operate with Jersey.  That though is for another time.

Deputy Peter Ferbrache

© 2019 – The 2020 Association

VIEWS OF A STATES MEMBER – Dec 18

It is the intention every month or so for me to write a short note on forthcoming issues coming before the States at its next sitting. I may at the same time, or in addition to that, add a few other comments on what I see as matters of the moment.

As this is the very first such note I will just recap on the first two years and eight months of this Assembly.

It is undoubtedly comprised of well-intentioned and decent people. Sadly though, in my view, the make up of the States is such that we as an Assembly have not addressed in any satisfactory way the real issues of the day, save for Education where I believe the States made a poor decision. I think of how my life changed because of my Education and I wanted, and still want, even better opportunities for young people going forward. Anyway, that is an issue for another time and is too important to be covered in one short note.

I say from experience that the 2020 Association, if we are to be meaningful, will need to have a significant number of credible candidates standing in 2020. Without that there will be no sensible changes. So, although I and others value all the background assistance, we will need people to stand up and risk being counted in 2020. A Politician’s lot in a small community is not an easy one but is necessary.

At the last States Meeting one of the main issues was the purchase by Aurigny in 2019 of three new ATR’s. I was convinced that that was the appropriate decision for a number of reasons but Jan Kuttelwascher made a good speech setting out the concerns. A major issue going forward is the extension of the Airport runway to 1750 metres or thereabouts. We will need to coalesce with the business and general community to put forward the best case we can. I regard it as vitally important for Guernsey both from a business and ‘can do’ perspective. Realism tells me that there is little chance of it being accepted by this States and I envisage it being an Election issue.

We also debated the Economic Development Policy Letter on Air & Sea Links. As a document it was fine but it lacked any detail as to how their aims will be achieved. Again that is something we need to detail as it is so important to our well being.

For the January States Meeting two of the key issues (and there is also a debate on the Poverty Issue) are (1) The HMIC report on the Guernsey Law Enforcement Services and (2) the refurbishment of the Alderney Airport Runway.

As to the HMIC Report, its debate was proposed by members of the Home Affairs Committee. I see lots of navel gazing and a bashing of the Committee for no good purpose.

As to the Alderney Airport Runway, STSB are going for the middle ground which will still have a bill of over £12 million. In my view that is vital for Alderney’s future. Alderney will never be able to justify that economically (just 55,000 passengers travelled to and from Alderney/Guernsey/Southampton in 2017) but it is part of the Bailiwick and we must do our best for it. P & R criticised STSB saying there was no proper business case for it (and in reality there never can be) and said STSB should have looked into a sea ferry type service (which in my opinion is a nonsense in that context).

Anyway, onwards we must go and I welcome any comments on the above, or indeed anything political.

On a final point, in these festive times when you are seeing lots of your friends/acquaintances, can you please persuade them to join the still embryonic 2020 Association? We need you!

I wish you all the best for 2019 and beyond.

Peter Ferbrache

© 2018 – The 2020 Association

BREAKFAST CHAT – Challenging States’ decisions

Certain recent controversial decisions of the States, (and in particular their bemusing decision to give the go-ahead to the ever loss-making States Airline to purchase three new ATR aircraft to replace its perfectly serviceable current fleet) have understandably provoked wider questions as to whether there is anything that can be done to challenge States decisions of questionable sense.

The general reactions of ordinary people seem to polarise between an incredulous and frustrated cry “Surely it must be possible to get this decision judicially reviewed?!?” and the equally frustrated but resigned comment that “There’s nothing to be done: the States is Parliament.”

The actual legal position is probably neither clear nor simple. This piece is therefore intended to provide some material for thought and discussion. There is an executive summary of its general tenor, followed, for those who are interested, by more detailed reasoning.

It should be noted that this article is, emphatically, not intended as legal advice, nor should the views expressed be in any way relied upon, or used other than as a subject for thought and discussion. The views expressed are not necessarily the views of the 2020 Association.

Executive summary

  • Where the States makes a decision of an executive or administrative nature, the Royal Court probably has jurisdiction to entertain a challenge by way of Judicial Review.
  • To challenge such a decision on its merits (ie apart from procedural errors) it would be necessary to show either that it was flawed for having been made on a false basis, ie without regard from some matter which should have been taken into account, or taking into account some matter which should not have been, or else that, objectively viewed, it was so unreasonable as to be outside the range of decisions which could rationally or reasonably have been made.
  • Where such a decision involved a disposition of States (ie taxpayers’) assets, even an ordinary person would have the status to bring such a challenge.
  • However, the exercise would be potentially expensive, and if the decision had been acted upon then even if the court pronounced the decision invalid, that would not necessarily undo its consequences.

Judicial review of States decisions?

For those interested in further analysis, first, a little background.

“Judicial review” is a relatively new concept in Guernsey law. Its availability was first recognised only in 1998 in the case of Bassington v H M Procureur. Its development has been slow, but has generally followed English practice.

In England the remedy was the product of judicial law-making which established such a jurisdiction during, in particular, the 25 years following World War II. The availability of some form of judicial review as a legal remedy for the citizen is regarded as a hallmark of a modern civilised and democratic state with an accountable system of government.

The scope of the concept of judicial review is, though, indicated by its full title, which is is “Judicial Review of Administrative Action” Therein lies the clue to its application, or lack of it, with regard to Parliament. Parliament is a legislature and, as such it is sovereign and not amenable to judicial review of its acts.

Judicial review operates in two distinct situations. The first is where a body acts outside the scope of its powers, as correctly interpreted. This simply involves the court deciding, authoritatively, what the legal scope of the particular power is, and whether the decision or action of the body in question is within that power, or outside it (ie ultra vires). This illustrates why the decisions of the UK Parliament enacting law are not subject to judicial review. As Parliament is sovereign, its lawmaking powers are not limited. However, where Parliament has delegated law-making powers to lesser bodies, entitling them to make subordinate legislation such as Statutory Instruments or bye-laws, then even the law-making decisions of those bodies can be challenged on the grounds of being outside the powers delegated to them.

The second situation in which judicial review operates is in relation to the administrative or executive decisions of an authority. There, in addition to the question whether the decision is within the scope of the powers conferred on that body, there is the additional point that, because the body can only use its powers for the purposes for which they are conferred, it is required to take executive or administrative decisions on a proper basis. This means: having regard to material considerations and only to material considerations, and making a decision which is not arbitrary, capricious or irrational, but is within the range of decisions which a reasonable and properly informed decision-maker could reasonably make in all the material circumstances. Offending against this lengthy rubric is referred to, in legal shorthand as being “Wednesbury unreasonable” (a reference to the case in which the principle was first stated). The principle embodies the law’s recognition of the fact that the decision in question has been lawfully confided to the judgement of the particular decision-making body and not to the court, but that, at the same time, there needs to be an ultimate oversight to set aside any flawed or extreme decision which is so capricious or unreasonable that it ought not to be allowed to stand, by any reasonably objective assessment.

How, then, does this all apply to decisions made by the States of Guernsey? Whilst the States is a legislature, it is not a legislature which operates in exactly the same way as the UK Parliament. In particular, it makes many decisions, particular those involving the disposition of States’ assets or funds, which are not the laying down of law, but are in the nature of executive or administrative decisions. In fact, the ATR decision, referred to at the outset, would seem to have been just such a decision.

On that basis, there is no need to think, or to assume, that the Royal Court would have no jurisdiction to entertain a challenge because States decisions were simply not amenable to judicial review at all. If any such decision is apparently taken on a flawed basis, or is so outrageous that it could be described as arbitrary, capricious or irrational, then there seems to be no ground for preventing it from being subject to remedy by judicial review. True, the Court might initially require some persuasion, as the notion of judicially reviewing the States appears rather bold, but it is the nature of the decision under scrutiny which decides, or ought to decide, whether there is any jurisdiction to subject it to judicial review.

As regards who could bring such an application, it is necessary to show a sufficient interest in the subject matter of the case, so as to prevent merely officious complaints. However, if a decision involved the disposition of States’ (ie taxpayers’) assets, then it would seem that any citizen of full age and capacity should be able to assert a sufficient such interest, especially if a taxpayer.

Any such application would naturally have to be made promptly; the courts look with disfavour on applications for judicial review which are made tardily, and this is likely to mean within weeks or, at the most, a very few months, of the decision being made. The exercise would, of course, be likely to be costly. (The costs of litigation generally are probably a whole new and separate subject).

And finally there would be the question whether the court would be prepared to exercise its discretion to grant the remedy and quash the decision under challenge. The court might not do so if it came to the conclusion that the material considered had been incomplete or inaccurate but that the decision would have been the same even without this flaw. More important, perhaps, would be the likely constraints of time. If the decision were to be acted on quickly, then it would be necessary to get the matter before the court urgently, before any consequences became a fait accompli. The court would likely be reluctant to set aside even a defective decision when major transactional consequences had already ensued in reliance upon it.

But the real point, for present purposes, is that there must surely be a mechanism by which the ordinary citizen can seek protection against States decisions involving outrageous and questionable expenditure, and effectively the waste, of taxpayers’ funds.

Let us imagine that our good friends, the Deputies, in a flush of goodwill or general virtue-signalling, decided by a small majority to spend £21Mn of this Island’s financial reserves (enough to buy another new ATR!) on sending overseas aid to Africa, with the justification being that this would enhance Guernsey’s reputation as a “good world citizen”. Can it really be the case that those who took the view that such a decision would be a gross breach of the government’s first duty, that of protecting and improving the lot of its own citizenry and of exercising responsibility akin to the duties of trustees in respect of States assets, and that charity begins at home, would have to sit by and accept, in effect, the giving away of Guernsey’s resources, on the grounds that this was a decision of the States, and was therefore immune from any effective form of review or challenge? Can it really be the case that the populace’s only sanction would be that of forlornly voting the offending Deputies out of office months or even years later, at the next election?

This extreme example surely illustrates that the Royal Court must have some power of review which can be invoked as, at least, a last ditch protection for Islanders against the dissipation or waste of their taxes. And come to think of it, the suggested example may not be as extreme as all that.

Bemused of Torteval.

© 2018 – The 2020 Association