Attempting constitutional reform on the island microjurisdiction of Alderney

Alderney as a Crown dependency

Alderney, along with the other Channel Islands and the Isle of Man, is a Crown dependency. The Channel Islands became dependencies of the Crown in 1204. Originally part of the Duchy of Brittany, the islands were annexed by William Longsword in 933 for the Duchy of Normandy. When in 1066, the Norman William the Conqueror became King of England, the Duchy owed loyalty to the English Crown in his capacity as Duke of Normandy (Bailhache, 2005: 1–2). King John surrendered continental Normandy to France in 1204, but the Channel Islands chose to remain loyal to the English Crown (Bailhache, 2005: 2). In the Constitutions of King John, a contested (Dawes, 2015: 12, fn 19) instrument that has attained almost mythical constitutional status, King John is said to have authorized various public offices and granted the Channel Islanders a number of rights and privileges, the most distinctive of which was the right to be governed by their own laws, that is, the customary law of Normandy, and other local customs then in force (Dawes, 2015: 13–17; Le Patourel, 1937). Norman law continues to play an important role in aspects of the Channel Islands’ legal systems ² (Le Patourel, 1984: 198–210), although English common law is now dominant.

The Crown dependencies neither are part of the United Kingdom nor are British overseas territories. They are constitutionally unique, self-governing islands with their own legislative bodies, courts, administrations (save for Sark) and legal and fiscal systems (Ministry of Justice, 2013). Although largely autonomous, they do not enjoy full independence or statehood (Anon, Jersey Evening Post, 2016c; Bailhache, 2012; Morris, 2012). Queen Elizabeth II is the Head of State in each dependency, represented by a Lieutenant Governor. Through the prerogative, the Monarch is responsible for the islands’ general good governance (Royal Commission on the Constitution, 1973: para. 1361), and the British government has responsibility for international relations and defence matters (Royal Commission on the Constitution, 1973: para. 1363). The Westminster Parliament retains the right to legislate for the Crown dependencies (Royal Commission on the Constitution, 1973: para. 1513), although this is unlikely to occur without the consent of the dependency concerned (Royal Commission on the Constitution, 1973: para. 1498). Guernsey may also pass legislation that extends to Alderney (by consent and otherwise).

Recently, Jersey and Guernsey have been making steps towards a greater degree of international personality through the device of a ‘letter of entrustment’ (UK Government, 2014: 10–11). Granted by the UK government, this enables the island to negotiate with third-party states or supranational organizations such as the EU in certain approved areas such as tax information exchanges.

The Crown dependencies are not represented in the Westminster Parliament, although there is a Minister with responsibilities for Crown dependencies. The Ministry of Justice has a Crown dependencies team which processes island legislation for Royal Assent, manages the relationship with the dependencies on behalf of the Crown and coordinates cross-departmental responses to issues affecting the Crown dependencies, including the extension of international treaties to the islands (UK Government, 2014: 4–6).

Alderney and the Bailiwick of Guernsey

The Channel Islands are grouped into two Bailiwicks. Alderney, Guernsey and Sark (along with the minor islands of Herm, Jethou and Brecqhou) form the Bailiwick of Guernsey. The Bailiwick of Jersey is the other. A term left undefined in legislation, and not entirely settled in the political lexicon, ‘bailiwick’ is derived from the old French ‘bailie’, which means both a territorial entity and the public official with responsibility for that entity. However, this does not settle the legal meaning (if any) or the implications of the term for the constituent islands. It persists in Jersey and Guernsey, where the Bailiff is a public official in the judiciary and the States.

Consequently, the exact nature of the relationship between Guernsey and Alderney within the Bailiwick is undetermined. For practical and geographical reasons, Guernsey and Alderney have a long history of sharing legislative, administrative and judicial functions, although there have at times been tensions (Ogier, 2012; van Leuven, 2004). Now closely connected through the 1948 Agreement, over time Alderney has sometimes been described as a ‘dependency of Guernsey’ (Hughes and Mander, 1860: 110; Troup, 1925: 231) and at other times recognized as independent of Guernsey.

Alderney and the EU

Alderney, along with the other Channel Islands, is not a member of the EU. However, it is connected to it via Protocol 3 of the UK’s Treaty of Accession 1973. In essence, this provides that the Crown dependencies form part of the EU external customs territory, and that for the purposes of trade in industrial, agricultural and horticultural products, they are treated as if they were a member state. In relation to capital and services (including financial services), the Crown dependencies are considered a third party. While the Crown dependencies are obliged not to discriminate between nationals of EU member states, there is no freedom of movement of persons. Other EU legislation does not generally apply to the Crown dependencies, although jurisdiction over the meaning of Protocol 3 ultimately lies with the European Court of Justice.

This arrangement was negotiated at a late stage of the UK’s accession to the European Economic Community (Johnson, 2013) when it became apparent that the terms of the accession would apply to the Channel Islands by virtue of their being territories for whose international relations the UK government was responsible (Royal Commission on the Constitution, 1973: para. 1381).

Following the vote by the people of the United Kingdom on 23 June 2016 to leave the EU, the Channel Islands have had to confront the possibly unexpected question of how they might be affected by Britain’s forthcoming withdrawal from the EU (‘Brexit’). Both Jersey and Guernsey took immediate action (States of Jersey 2016), including sending a joint letter on 28 June 2016 to the then Prime Minister, David Cameron, from political representatives on Jersey, Guernsey and the Isle of Man, requesting that the Crown dependencies continue to be informed of post-referendum developments and to be able to contribute to exit discussions and negotiations (States of Guernsey, Isle of Man Government and States of Jersey, 2016). Alderney’s response at the time, if there was one, is not yet on public record, notwithstanding that a report on the implications of Brexit for Alderney was commissioned from the Constitution Unit at University College London before the referendum took place. The official minutes of the States of Alderney Policy and Finance Committee do not record any substantive discussion of the contents, although concerns were expressed over the £43,000 cost of the report (States of Alderney Policy and Finance Committee Minutes, 2016a, 2016b)

From the States of Alderney’s subsequent submission to the Justice Committee’s Inquiry into the implications of Brexit for the Crown Dependencies, it appears that Alderney would prefer that:

all Crown Dependencies…hammer out a common position on Brexit and to articulate that position as one in future negotiations with the UK and/or the EU. That common position should be flexible enough to acknowledge that the interests of the Crown Dependencies are similar but not identical. (States of Alderney, 2016g: para. 8)

The Prime Minister of the United Kingdom, Theresa May, confirmed on 29 July 2016 that the Crown dependencies would be consulted where ‘appropriate and relevant to do so’ (Anon, 2016d). To date, this has involved:

quarterly meetings at Ministerial level between the Crown Dependencies and Department for Exiting the EU…. In addition, a range of meetings between different UK Government Departments and Crown Dependency officials is under way to explore in more detail the policy areas affected by EU exit where the Crown Dependencies have a direct interest. (Ministry of Justice, 2016: para. 5)

Measures of democracy

Before we set out the hypotheses on the relationship between democracy and small polities, we need to examine what exactly we mean by ‘democracy’. The classic definition of democracy—a government elected by popular vote—tells us little when it comes to analyses of an entity’s and its people’s democratic experience.

Other, richer measures of democracy proposed (by organizations such as the Commonwealth, Freedom House, Democratic Audit UK and the Democracy Index of the Economist Intelligence Unit) include a requirement for free, fair and regular elections with a universal franchise, the upholding of civil liberties and human rights, including fair treatment of minorities and freedom of speech, a commitment to the rule of law, an absence of military rule, an independent legislature and judiciary, a system of responsible and accountable government (including an effective opposition and room for dissent) and measures for transparency of government, particularly in relation to public funds. I would add to this list a system of checks and balances, including a separation of powers that enables effective government while avoiding conflicts of interest (something the Channel Islands have struggled to achieve at times (Lee, 2010)), a free and independent press and a non-authoritarian political culture.

Political hypotheses on democracy and size

Two competing narratives on the relationship between smallness and democracy exist. One argues that smallness naturally leads to the adoption of democratic practices; the other claims that smallness does not necessarily a democracy make.

Political scientists Dag and Carsten Anckar (Anckar and Anckar, 1995; Anckar, 2008, 2002, 2010) have traced the long arc of political thought positively connecting small polities and democracy. Ancient Greek philosophers, conceiving of democracy as a participative, direct process, thought that smallness naturally lent itself both to participation in, and control of, government. Tyranny could be avoided in a small polity where citizens could come to know each other, appreciate their points of view and engage in informed decision-making about the issues facing them (Dahl and Tufte, 1973: 4–6). Enlightenment thinkers Rousseau and Montesquieu both made the argument that good governance, democratic outcomes and civic values were best achieved in smaller, rather than larger states (Dahl and Tufte, 1973: 6). In a larger state, the diversity of interests meant that the common good was less likely to be agreed on and therefore secured (Dahl and Tufte, 1973: 6).

More recently, the thread was picked up again and modernized by Robert Dahl and Edward Tufte in their 1973 classic, Size and Democracy. Noting first that some of the assumptions about the positive impact of small state size on democracy can in fact work the other way (a strong commitment to a common cause may actually be detrimental to minority interests) (Dahl and Tufte, 1973:13), they identified the elements of governance which could be affected by a state’s size (Dahl and Tufte, 1973: 13–15). For each of these elements, they outlined the enhancements to political relations and democratic practices likely to arise from a state’s small size: that citizens would be more likely to participate in elections as their vote was more likely to be determinative; that people would have easy access to political leaders and be able to communicate their views to them; that political conflicts would be rare because of incentives to minimize open confrontation in small societies (albeit that they would be personal, intense and divisive when they did arise) and, consequently, a consensual mode of governance would be preferred (Bray, 1991: 21); that the common interest would be easily discerned by a small community with homogeneous concerns; and that a small state would not need to rely on coercive measures to ensure its internal security, nor would it have the resources or strategic interests to participate in international conflicts.

Quantitative investigations into the categorization of small states’ political regimes firmly support the theoretical arguments about size and democracy. Dag Anckar (2010: 1) refers to the ‘abundance of findings’ (Fry, 2000; Griffith and Sedoc-Dahlberg, 1997: 1–11) to support the belief that small states are more likely to be democratic than large ones. One example is Dana Ott’s large-scale study of 222 states from 1973 to 1995. She concluded that small state size (i.e. 1.5 million or less) provided the enabling conditions for democracy to flourish and that small states were more likely to be and remain democratic than large ones (Ott, 2000: 127). Anckar’s own studies point to increasing levels of democratization within small states over the period 1986–2006 (Anckar, 2008).

It would appear that this conclusion holds even more strongly where the small jurisdiction is also an island: Hadenius’s (1992) investigations into 132 developing countries assigned a self-devised score from 1 to 10 for a state’s level of democracy. Of the 28 countries that scored 9 or more, 17 were small (i.e. a population of 1 million or less) island states. Of the small island states, seven scored a perfect 10 (Hadenius, 1992; 61–62). In 1993, Stepan and Skach’s research into ‘continuing democracies’, defined as those states that had maintained a democracy for a decade or more since becoming independent after World War II (WWII), revealed that of the 15 states that had done so, 10 were small island states (Stepan and Skach, 1993: 10–15). Ott’s (2000: 28) findings also reinforce this connection. Her conclusion from the 2000 study was that ‘the fact of being an island country has a consistent and positive impact on the likelihood of political democracy’. This held true even where the island was a relatively poor one, contrary to conventional wisdom on poverty levels and democracy (Ott, 2000: 128). Clague et al. (2001: 17, 37) came to a similar conclusion as well as noting a positive association between being an island and also being a democracy. Anckar also notes from further research his conclusion that small island states are ‘clearly more democratic, they adhere more firmly to the principle of parliamentarism, [and] they are also clearly more firm supporters of plurality elections and direct democracy devices’ (Anckar, 2006: 49).

Unsurprisingly, a counterargument to the established narrative on small jurisdictions and democracies has emerged. This claims that the formalistic or quantitative approach does not provide the complete answer to questions of the democratization of small states. Another viewpoint, not explored here, goes even further and queries the claimed links between population size and democracy (Gerring et al., 2016).

For example, Peters claimed in relation to the English-speaking Eastern Caribbean states that ‘in spite of the existence of open, regular elections, opposition parties, and other institutional aspects of a modern democracy, the governmental system of the Eastern Caribbean does not function like a democracy’ (Peters, 1992: 2). A crucial underpinning factor in this phenomenon is ‘the size of these nation-states’ (Peters, 1992: 4).

Veenendaal (2015a, 2015b) has recently observed that the blunt focus on institutions and the legal framework obscures the rather less democratic nature of political practices that can be experienced in small states. These earlier studies that created the ‘microstate miracle’ of democracy utilized a particular dataset (the indicia of Freedom House) that gave ‘a lot of weight to readily seen things such as regular elections, press-freedom laws, and constitutional courts’ (Erk and Veenendaal, 2014: 136) but did not include informal political practices, reinforced in these cases by the intimate and personalized nature of small polities (Erk and Veenendaal, 2014: 139). Veenendaal and Corbett (2015: 539) refer to case studies showing that politics in small polities is far from being inclusive, being dominated by elites who control the policy agenda and tending to a marginalization of minorities, particularly women.

In addition, Baldacchino (2012: 111–112) notes that small jurisdictions—places where ‘everybody knows everybody’ (Corbett, 2013: 51)—can exhibit strong cultural and social tendencies to an avoidance of public argument and dissent. Besides a cultural tendency to unanimity, the inherent limitations of size can mean that there is no effective opposition, civil society organization or fora for public debate which allows for the expression of different views and their resolution through deliberation.

In this world view, smallness can lend itself to political tribalism, make it easy for one or two strong personalities to dominate the processes of government and leave the opposition ineffective and create an environment where political issues are decided not through official or bureaucratic channels but through informal personal interactions. This can have an adverse impact on the accountability and transparency of political decision-making (Erk and Veenendaal, 2014: 141). The closeness between the people and politicians can also lead to a short-term focus on immediate gains: The people have easy access to politicians to make their demands, and the politicians are dependent on satisfying those demands to secure their votes at the next election (Erk and Veenendaal, 2014: 143–144). Thus, Veenendaal claims that although microstates exhibit the formal trappings of democracy, ‘the more informal and practical dynamics of microstate politics in many ways actually undermine the functioning of democracy’ (Veenendaal, 2015a: 106). Baldacchino puts it pithily: ‘can there be paradises without serpents?’ (Baldacchino, 2012: 103).

(Small) islands and democracy

Despite this counter-narrative, the positive association between islands and democracy in particular is a recurrent theme in the studies concluding that small states are more likely to be and remain democracies. The characteristics of smallness and islandness are closely connected in the literature, which posits that the features of smallness that lead to democracy are intensified by being an remote, water-bounded state, resulting in small islands being more likely to be democratic (Anckar, 2008: 437). This phenomenon is bolstered by the fact that the smaller a state is, the more likely it is to be an island (Anckar, 2008: 440–441). Very few of the world’s small states are not islands and those that are not are clustered in Europe (Andorra, Monaco, Luxembourg, Liechtenstein, San Marino and the Vatican). Some of these are nonetheless considered ‘islands’ by virtue of their being enclosed by larger states, just as other states are surrounded by the sea.

Bearing in mind Srebrnik’s conclusion that ‘[may]be we will never be able to isolate scientifically that elusive independent variable that seems to make islands more democratic, even if one exists’ (Sbrenik, 2004: 339), and the claims that small island states are not always exemplars of democratic practice, several reasons for this phenomenon have been advanced.

One suggestion is that the natural boundary of an island jurisdiction acts as a limit on a ruler’s ability to acquire and extend a power base, thus making it more likely that rules for contesting and exercising power will emerge (Clague et al., 2001: 22–23). Another relates to the geographical position of many islands, the claim being that isolation and remoteness (such as in the Pacific) will encourage a sense of cohesion, so that ‘decision-making mechanisms are more likely to reflect a spirit of solidarity and mutual understanding’ (Anckar, 2009: 436). Of course, not all small island jurisdictions are remote—Alderney being a key example.

Another factor thought to influence a small state’s tendency to democracy is its colonial legacy. One school of thought claims that being a British colony (or a colony of a state that was itself a British colony, such as Australia, New Zealand or the United States) has a significant positive impact on a state’s likelihood of being a democracy (Anckar, 2004; Corbett and Veenendaal, 2016; Clague et al., 2001: 27–31; Ott, 2000: 69–70). Indeed, the Commonwealth bears witness to this: Of its 53 member states, 31 are classified as small states. The argument rests on a view on the nature of the colonial experience: Periods of colonial rule by a Westminster power led to the internalization of democratic practice as well as serving as a training ground for the indigenous elite to continue those practices (Clague et al., 2001: 36). Speaking to the Pacific experience, Neemia notes that ‘[y]ears of training and apprenticeship for a system of government based on the Westminster model of parliamentary democracy had, in most cases, predetermined people’s options. It is therefore not surprising that newly independent states would opt for it’ (Neemia, 1992: 7).

Linked to this point on colonialism is the claim that small states are subject to international influence that compels them towards the practice of democracy. Small states can be seen by their larger counterparts as sites for geopolitical influence (Masala, 2010). Consequently, they provide incentives (and threats) to smaller states to encourage them to adopt and maintain democratic structures to aid in regional political stability or provide a buffer between themselves and another hostile state. These might include favourable trade deals, military support, expert assistance with governmental infrastructure and other forms of aid in kind.

Other factors put forward include socio-economic development, the presence of Christianity, topographical features such as deserts and mountains and the degree of ethno/linguistic diversity in a state (Anckar, 2008: 442–454). Some have also argued that it is not size per se that can be linked to democracy, but the combined effect of ‘historical, geographical and international political circumstances that correlate with (small) size’ (Veenendaal, 2015a: 93).

Alderney’s democracy

Based on these findings, one would surmise that, at first glance, the tiny jurisdiction of Alderney would be a model of democratic design and practice. Its very small population, island status, its close relationship with Britain, its placement between two large European powers and a relatively strong degree of homogeneity in the permanent island population are all important contributing factors to being assessed as a functioning democracy. It would be surprising if Alderney were anything else.

Since the middle of the 20th century, Alderney has enjoyed universal suffrage, a popularly elected legislature and head of government, and an independent judiciary. Processes for accountable government had been formalized and the human rights of the people enshrined in statute. It enjoyed peaceful and cooperative relations with the United Kingdom, EU and other powers. Why then, did Alderney decide that constitutional reform was needed?

External reviews in 2012 and 2014 had proposed restructuring the States and the civil service. Then, in 2015, the financial relationship between Guernsey and Alderney was reviewed. The impetus for this was a concern that Alderney’s economy was being adversely affected by the amount of tax it was paying to Guernsey in return for certain services (States of Guernsey Policy Council, Alderney Policy & Finance Committee, 2015). It was hoped that Alderney and Guernsey would be able to modernize their relationship and bring it more into line with international financial reporting standards (States of Guernsey Policy Council, Alderney Policy & Finance Committee, 2016).

One of the effects of this period of reflection on financial and bureaucratic restructuring was that links were becoming evident between Alderney’s ability to develop and survive economically and the ability of its government to act effectively to secure Alderney’s future.

Thus, in January 2016, the Policy and Finance Committee of the States of Alderney authorized the Chief Executive of Alderney to commission a review of corporate governance and to present the terms for their approval by March 2016. This was done, and the Constitution Unit at University College London (UCL) was approached to undertake the work. In June 2016, the Chair of Policy and Finance wrote to the Chief Executive of Alderney, asking him to champion the review, which he agreed to do.

Before discussing the details of the governance review, we need to understand the position that Alderney occupied with respect to its constitution and how that came about. The beginnings of the modern era of Alderney’s constitution can be traced to the mid-20th century in the immediate aftermath of WWII.

The legislature and executive

Despite the 1948 and 2004 reforms, Alderney’s current system of government remains unusual. The 10 member States of Alderney, ⁵ using a system known as ‘committee government’, functions as both the legislature and executive for Alderney. Due to the small size of the States (one of the smallest worldwide: Pitcairn Island has a 10 member Island Council with executive and legislative functions; Tristan da Cunha and the Falkland Islands have similar bodies with 8 members), there is no ‘government’ or ‘opposition’. There are no political parties on Alderney. All the members of the States not only make primary and secondary legislation (Projets de Loi and Ordinances) ⁶ for Alderney, they also participate in policymaking and executive decision-making. The States has three main committees and a number of subcommittees. ⁷ All States members are members of the Policy and Finance Committee—essentially the equivalent of the Westminster Cabinet. Ideally, decision-making is by consensus, based on individual views but it may be subject to divisions.

Members are elected by universal suffrage ⁸ for 4-year terms, with half the members going forth for election every2 years. ⁹ A separate election is held for the President, who acts as Chair of the States. ¹⁰ Following the States’ election, two members are then elected by public plebiscite as Alderney’s representatives in the Guernsey States of Deliberation. ¹¹ Elections for the President and five States members took place in November 2016.

A small civil service, headed by a Chief Executive Officer, ¹² of 29 people supports the States to implement executive decisions. Its focus is primarily on operational functions rather than policy design. The Greffier, or Clerk of the States, assists with its legislative functions. Off-island, the States is supported by the Law Officers on Guernsey and the Ministry of Justice’s Crown dependencies team.

The States generally meets monthly. Prior to the States’ meeting, a ‘People’s Meeting’ is legally required to be held. At this Meeting, States Members explain and receive comments from Alderney voters on the upcoming business of the States. At least twice a year, registered electors may address the States on a ‘matter of public interest’. ¹³ This is referred to as ‘Chief Pleas’, adopting the name and practice of a taxation and welfare Court abolished by the 1948 reforms (Committee of the Privy Council, 1949: 20). Outside these mechanisms, there is at present no formal system for public participation in the legislative process such as public consultation on legislative proposals or ability for the public to make formal submissions on laws being considered by the States.

The judiciary

The Court of Alderney comprises seven jurats appointed by the Lieutenant Governor of the Bailiwick of Guernsey. ¹⁴ The jurats are not legally trained or qualified and are provided with legal advice by the Greffier. The Court has full civil jurisdiction ¹⁵ and limited criminal jurisdiction (serious cases are heard by the Royal Court in Guernsey). ¹⁶ While criminal law is standardized across the Bailiwick, Alderney’s judges are able to develop the remaining law of Alderney to fit the local context. Appeals from Alderney are to the Royal Court of Guernsey ¹⁷ and from there to the Judicial Committee of the Privy Council in London.

As can be seen, the people of Alderney are very closely connected to their systems of government. Government is not, and cannot be, some remote idea on an island of 2000 people. Politicians stand as individuals rather than party representatives. They come into personal contact with their constituents in a monthly public forum as well as in the public spaces of the island. Many, if not all, will have deep roots in Alderney and be connected to the community through school, family or business ties. Alderney also has a very high ratio of representatives to people of 1:200. Moreover, as its political and legal processes are not professionalized but lay populated (Hanson, 2010: 267–272), this too must have an impact on the political and legal character of the island—enculturating a sense of ownership and control over the law and governance of Alderney in its inhabitants. Alderney’s politicians are also part-time; some are retired, but others run businesses on the island, which can provide insight into the decisions the States must make but can sometimes lead to concerns over conflicts of interest.

Civil service capacity

Addressing the size and capacities of the Alderney civil service was the foundation for the reform programme. If left as is, governance reform would founder. The Review team was mindful of the disparity between the size of the challenges facing Alderney and the ability and capacity of its civil service to address them. There were simply not enough civil servants and most of those were not skilled in policy design and implementation. These were essential skills, needed not only for the challenges of Brexit or economic development generally but also for the implementation of the proposed governance review reforms.

The under-equipped civil service’s role was complicated by a lack of clear organization. The following are the two primary concerns raised by the Review Team: Where does responsibility lie for economic and financial policy? And is this an organization that seeks to conduct delivery itself or to manage delivery by others? The fact that these two questions were not easily answered pointed to the lack of capacity, in terms of both personnel and skills, within Alderney’s civil service. The Review team did not seek to impose their views of the changes needed—this would be for Alderney to decide—but it hoped that by pointing out the shortcomings, action would finally be taken. Civil service reform had been proposed by the Taylor reviews of 2012 and 2014 but the recommendations had been only partially implemented.

Transparency improvements

A key element of legitimizing and ensuring public confidence in the government and civil service is the recognition that the principle of openness is a cornerstone of good government. Implemented effectively, it enables the people to be informed about the work of their government and civil service and hold them to account, empowers them to engage in the legislative process and ensures that the interests of the people are properly reflected and represented.

When examined, Alderney’s compliance with international expectations of transparency was found lacking. Alderney had no freedom of information provisions, no ability for people to be consulted or participate in the legislative process outside the monthly Peoples’ Meeting or Chief Pleas mechanisms and limited arrangements for disclosure about tenders, public finances or other activities.

Although the opening up of governance activities to public scrutiny and participation may be achieved through a strong commitment to the values of openness and transparency, the Review team considered that this was a long-term goal. In the immediate term, it was thought that a culture of openness could also be encouraged through formal mechanisms that provided for oversight, monitoring and adjudication of public activities.

To make the government and administration of Alderney more open and accessible to its people and so improve the public’s confidence in it, the adoption of a Charter of Openness was proposed. Its key points were:

The adoption of a Code of Access to Public Information overseen by a Commissioner for Standards in Public Life and twinned with this proposal;

Ethics and integrity

Propriety, or the conformity to conventionally accepted standards of ethical behaviour, has been found to be a condition for government activities not only to be considered legitimate and trusted by the people but also to be effective (OECD, 2000: 11). The Review team was of the view that through the performance of their public functions and their conduct in doing so, those in power in Alderney had a critical role to play in securing Alderney’s future as well as maintaining the confidence of the public that this is being done. As the statements made to the States on the meeting of 12 September illustrated, on Alderney, this confidence was strained.

The Code of Conduct for States’ Members and the Register of Members’ Interests were identified as the key instruments for establishing and encouraging compliance with standards of ethics and integrity in addition to fostering a culture of integrity within the States.

The Code of Conduct

Although Alderney had a Code of Conduct based on the Westminster Parliament’s Nolan Principles (Committee on Standards in Public Life, 1995), its enforcement was problematic. Complaints under the Code were heard by an annually appointed Members’ Conduct Review Panel. Members were drawn from the Alderney electoral register who could investigate the complaint and recommend sanctions to the States. The Panel had not actually heard any complaints (two had been made to the States, but a decision had been made by the President not to refer them) since its establishment. The Review team was of the view that this did not mean that there was nothing in need of attention. The Panel itself, its powers and the process for obtaining an investigation, all had potential to further add to concerns about integrity and public confidence in government.

In small close-knit societies such as Alderney, it would be difficult to find someone who has no connection (social, professional or familial) to either the Member complained of or the complainant. This could create concerns about independence and fairness of treatment—even if unsubstantiated, the perception may persist. It may also sow the seeds of community conflict, which can have a disproportionate impact in small societies.

The annually changing membership of the Panel meant that there was a risk of lack of consistency in dealing with complaints. Nor might expertise in investigations be built up over time. Linked to this concern was the risk that concerns may arise over inconsistencies in the abilities and decisions of Panels over time. Such concerns could affect public confidence in the integrity of the States and public administration generally.

Finally, the lack of an ability of Members to self-refer, the filtering role of the President for complaints and the lack of an independent investigatory power for the Panel meant that some complaints might go uninvestigated. This may also affect public confidence in Members’ integrity; it may also leave some issues unventilated and without closure, again possibly leading to community conflict.

The Review team proposed the disestablishment of the Members Conduct Review Panel and the creation of a new part-time post to be filled by a non-Islander, the Commissioner for Standards in Public Life with extended investigatory powers. It was also proposed that a wider range of sanctions to be available to the States in Committee and Commissioner under the Code of Conduct; and that the Greffier no longer have a role in whether to refer questions of privilege to the States in Committee.

Members’ interests

Alderney States’ Members were obliged to make a standard declaration of financial and property interests. These were published online on Members’ pages on the States’ website. However, as the declarations did not cover non-financial interests such as trusteeships or board memberships, there was potential for conflicts of interests (even if inadvertent). Gifts and hospitality declarations were also provided for, but these were held at the Alderney Court Offices for public inspection. There was potential for ethics breaches and also a weakening of confidence and transparency in situations where Members’ interests were known to Alderney’s small community but were not declared or easily obtainable.

The Review team proposed greater and more easily accessible publication of Members’ interests; the establishment of a declaration threshold of £25; the inclusion of non-financial interests; and that the Greffier or an alternative civil servant be responsible for advising Members on the interpretation of the Code and Register.

Induction programme for new States Members

An induction programme for new members had been drawn up after the Home Office review in 1996 but had not always been carried out. This has led to an inequality of training between Members. As States Members have to deal with a variety of issues from budgeting to the structure of the States and their relationship with Guernsey to responding to profound challenges such as the implications of the United Kingdom leaving the EU, proper training was not only essential for this to be achieved but also to engender confidence in States’ Members on the part of the people of Alderney.

The Review team proposed the creation of induction and development programmes to support new members to conduct themselves effectively in their role, making the best use of their time and skills and to ensure they were briefed on key issues. It was also intended to provide continuing development that would eventually be provided by the Alderney civil service for all Members to ensure that they understood their role. The aim was that Alderney retain control of the programme and could to tailor it to Alderney’s specific needs in future years.

Were other projects of greater priority?

The first potential explanation is that the reform programme was overshadowed by the existence of other, primarily infrastructure, needs that took greater priority for the States. Alderney’s small size means that infrastructure shortcomings are of critical importance to its functioning and continued survival. Political reform may seem distant and its importance intangible. There is some support for this in the States’ October debate:

I cannot see any point in spending another £72,000. We have had a few tips already after spending £27,000 on what needs to be done. We can just trim it around a bit and sort out the rough parts that are in the States and save ourselves £72,000. Then, maybe we can use that £72,000 in something more constructive to earn some extra money, which we will be desperately needing in future. (States of Alderney, 2016b: 41)

To pay £71,000 when we have got other problems we could push that money towards and solve with it, that is the answer. Perhaps, when this Island is beginning to regain momentum, business-wise, in the community, maybe then would be the right time to look to spend a little money on ourselves. But this is not the right time. (States of Alderney, 2016b: 22, States Member Louis Jean)

Undoubtedly Alderney’s Government can be improved. It is very clear to me that, as I have mentioned earlier, far and away the biggest problem facing us is not political weakness, but financial weakness. The ability of the States’ Members to meet the legitimate needs of Alderney’s population is inhibited much more by our lack of tax or other income than by any internal political dysfunctionality. (States of Alderney, 2016b: 19, States Member Neil Harvey)

A public consultation event was held on 10 August 2016. Around 300 people attended—nearly 25% of those on the electoral register. FAB Link quickly came to dominate political discussion on the island. The opposition to FAB Link project was twofold: environmental and process driven. These environmental concerns came second to questions of governance that were raised across the island by the decision to move ahead with FAB Link without adequate consultation. Allegations ranged from corruption to incompetence, and everything in between.

The other major concern on Alderney was the state of its air transport links. Alderney is serviced by the States of Guernsey-owned airline, Aurigny. At the October meeting, after a lengthy discussion, the States passed a motion of no confidence in the senior management of Aurigny and the Articles governing the relationship between Aurigny and the States of Guernsey (States of Alderney Hansard, 2016d: 37).

Nonetheless, despite these other pressing infrastructure concerns, some Members considered that reform was affordable and should be a central priority, saying:

Some people may argue that we cannot afford the changes. Alderney cannot afford to stand still. It needs to face the future with strong political leadership, clear democratic mandate and effective Civil Service. The reform programme can be delivered by drawing on economic development funds. A good sound Government administration is part of the underlying fabric to attract economic investment and that is a very important component of this. (States of Alderney, 2016b: 15, States Member Bob McDowall)

There will be cost to the process of reform but this money will be well spent if it enables us to bring about beneficial change that has the support and the good will of the majority of Island residents. (States of Alderney, 2016b: 24, States Member Francis Simonet)

Finally I say, if we cannot get our Government right in the next few years, perhaps the only other option is what is often being suggested by the States of Guernsey and it is to become a third parish or another parish of Guernsey. Do we really want that? No, I do not think we do and I think we want our own super-efficient, streamlined Government, and if it costs a bit of money, it is well worth the cost. (States of Alderney, 2016b: 21, States Member Graham McKinley)

Was Brexit to blame?

Did the unpredicted vote for Britain to leave the EU catch Alderney unprepared? As the most dramatic development for Alderney’s political future, it would not be surprising if the States chose to focus on preparing its strategy for participating in Brexit discussions, either directly with the UK government, in concert with the other Channel Islands or Crown dependencies, or to pursue both avenues at the same time.

Alderney’s size may well be a contributing factor here: With a small civil service of limited policy capacity and one of the world’s smallest legislatures, Alderney has restrictions on its ability to engage on a number of policy fronts. It needs to prioritize, and the governance review programme was not a priority compared to Brexit.

While plausible, there is little evidence of this on record. It is only recently that the States of Alderney turned its mind to the challenges and opportunities presented by Brexit. Alderney’s position from in its evidence to the Justice Committee is ‘to secure an arrangement that, as far as possible, maintains the current relationship with the EU set out under Protocol 3’ (States of Alderney, 2016g: para. 2) and to ensure that it is able to engage with the British government and other Channel Islands to ensure its interests are reflected (States of Alderney, Evidence to Justice Committee, 2016g: para. 2).

This aside, there appears to be no record of a substantive States’ discussion of the report on the possibility of Brexit that was commissioned before the referendum. There is nothing on the States’ website generally about Brexit preparations. It was mentioned briefly in the October States discussion and then only in the context of the many challenges Alderney faces (States of Alderney, 2016b: 25). On Alderney, it is infrastructure concerns that have captured public attention. There have been two protests against FAB Link, one in September 2016 and another in August 2017. The States has agreed to hold a non-binding referendum on the project, but no date has yet been set (Anon, Guernsey Press, 2017). This contrasts sharply with the States’ response to the governance reforms and the degree of public involvement in that—arguably equally important—aspect of Alderney’s future.

Not on this Island?

It may be that the Review proceeded too quickly, not allowing the States enough time to digest the arguments made in favour of reform and feel that they were making a meaningful contribution to the process. One States’ Member raised this, saying: ‘was it really discourteous that a Report commissioned and paid for by the States should be put into the public domain before States’ Members had the opportunity to read or discuss it?’ (States of Alderney, 2016b: 15, States Member Norma Paris). Another objected to the time frame:

This was put before us—a paper regarding the expenditure—on 20th September, long after we had received our Agendas. I used the Rules of Procedure to say, ‘No, I am not in the habit of picking up a seven-page paper at a meeting for immediate decisions when I have to have a chance to look through it. It is not on!’. (States of Alderney, 2016b: 21, States Member Louis Jean)

Comments on the assumption that Alderney-based expertise was lacking, the need for more Alderney-centric proposals and the capacity of the States themselves to achieve reform included:

Do we really need to pay a London consultant to achieve this?…I think it is a danger of over-engineering to bring consultants in for [a States’ induction programme]. (States of Alderney, 2016b: 18, States Member Neil Harvey)

…while we should have input to it, it needs to be led by somebody who is independent from the States, who has no axe to grind and who has credibility…. [W]e should look again at the services of Mr Stephen Taylor who is well-known to the States and States’ Members here over a number of years. He is highly respected in Alderney, in Guernsey and in the UK, and he has a deep knowledge of Alderney’s particular political and executive problems and opportunities.…[W]e would get an Alderney-appropriate solution that meets our needs and not some international standards. (States of Alderney, 2016b: 19)

I think we should be considering the employment of on-Island consultants. We have a mass of adequately qualified and well qualified people out there who actually could help us enormously in some of the areas that we quite often seek—I will not say overseas assistance but—assistance from elsewhere. Perhaps we should look, first, here. (States of Alderney, 2016b: 21, States Member Graham McKinley)

I could not agree…more that we could do so much of this ourselves and boil it down and then look at anything that is left that needs to be done. (States of Alderney, 2016b: 22, States Member Louis Jean)

Why on earth spend another £72,000 on another Report when we are more than capable of sorting anything out? (States of Alderney, 2016b: 22, States Member Ian Tugby)

I have heard [it] suggested that maybe an external review of the Island by the Privy Council might be the way forward—maybe that needs consideration—but probably the best way forward for the States is certainly the formation of some form of constitutional committee in the new States to consider the way forward. (States of Alderney, 2016b: 25, States Member Matt Birmingham)

Anckar and Anckar note that small island communities tend to be reasonably homogenous that facilitates ‘a high degree of sympathetic identification with each other’ (Anckar and Anckar, 1995: 222). The presumed consequence of this degree of intimacy and social cohesion is that a non-Islander is unlikely to be able to penetrate or properly appreciate the needs and ways of the community. A connection to the (is)land and becoming interwoven into the fabric of island life is also important. Acceptance takes time. As Blackmore states: ‘the length of time you spend in a place as an integrated member of its social fabric is an integral part of one’s sense of belonging’ (Blackmore, 2003: 347). This phenomenon seems clearly evident in the suggestions that Stephen Taylor, Alderney’s former Chief Executive and other on-Island experts (considered to belong to Alderney) take on the work of the London-based Constitution Unit team (who did not).

The opposition to externally based reform illustrates another characteristic of islandness that combines the geographic and the social features of (small) island identity. As islands are ‘places [which] acquire much of their permanence as well as much of their distinctive character from the collective activities of people who dwell there, who shape the land through their activities, and who build institutions and social relationships within a bounded domain’ (Harvey, 1996: 310), when this collective sense of integrity of place and the understood narrative thread of historical and social development is threatened or disturbed by outside influences and actors, then resistance to those outside the geographical boundaries and consequent social spheres of the island may well follow. This resistance may have been exacerbated by Alderney’s long-standing practices of populating its political and legal systems with its own, non-professionalized residents such that the advice of the ‘London consultants’ disturbed their sense of ownership and control over the Island’s constitutional development which had to be reasserted.

Are small (island) polities capable of constitutional reform?

As noted, research on the democracy and small states has pointed to a strong relationship between the size of a jurisdiction and its adoption of democracy. But there is also research observing that, upon a closer look, small states may not be as democratic as they first appear. Where does Alderney’s experience fit into these competing visions of small polity democracy?

On the surface, Alderney presents as a model of democracy. It thus appears to support the established story of small polities and democracy. But it refused to enrich its democratic practice beyond its institutional features by embracing more public participation in governance processes, more openness and accountability about its activities and professionalizing the activities of its decision makers.

So is it the case that Alderney, by virtue of its size, was not predisposed to (further) constitutional reform? The combination of factors which may have stalled the Review are all linked to Alderney’s small size: its infrastructure shortcomings, its dependence on external assistance and lack of ownership over the process and political developments outside the Island that would affect it significantly. The publically available comments from Alderney’s politicians and its people support claims about the somewhat less than democratic nature of the small(er) jurisdiction, particularly microjurisdictions. The immediate problems of lack of tax revenue and other forms of income and Alderney’s transport woes featured heavily in the States’ October discussion of the Alderney’s Choices report. The FAB Link project attracted more on-Island attention than governance reform and dominated the November election campaign, the result and subsequent States’ activity (Fernandez, 2016b). As Erk and Veenendaal (2014: 143–144) have commented, these features are typical of small states politics, where short-term and practical issues dominate the policy agenda at the expense of long-term, more abstract proposals.

In addition, having begun the discussion on constitutional reform itself, leaving the final decision on the fate of the Review to Alderney’s small group of politicians rather than to its people or an outside entity may have been a built-in insurmountable obstacle to the chances of achieving constitutional and political reform. It is notable that the 10 members of the States were initially able to stall the Review without further public input or consultation (compared to the promise of a referendum on FAB Link) and the final fate of the Review was decided by a subcommittee of three. Historically, successful constitutional reforms have come from beyond Alderney’s shores, while this more homegrown initiative stalled and then was halted completely. This was not the first instance of this phenomenon. The record shows that Alderney exhibits a pattern of conducting constitutional reviews but not fully implementing them. As Veenendaal and Corbett observe, a small elite was able, through its control of the political process, to override the concerns of the vast majority of Islanders about Alderney’s democracy. This fits neatly with the democratic paradox discussed earlier: That small jurisdictions, while they outwardly present with the trappings of formal democracy, these themselves may be used in a non-inclusive way, and further, in a way that prevents further democratization.

Baldacchino (2012: 111–112) has noted that small places can exhibit a reluctance to engage in public argument and dissent. A fractured community may soon become a dysfunctional one, and in the case of small states, community divisions may be overwhelming. Although this did not feature explicitly in the discussion, it seems likely that given the tensions of the FAB Link debate and the disquiet directed at the States for their management of the situation, the States were not keen to repeat the experience over governance reform.

A challenge to arriving at a definite conclusion as to why the Review did not proceed lies in the lack of transparency surrounding the decisions about the Review. There are no minutes available of the Governance subcommittee meeting where made the decision not to pick up the Review after the initial pause. Nor is there a record of the discussion at the meeting where the pause was implemented. The possible reasons for the States’ actions have had to be gleaned from other discussions and sources. This lack of information about political decisions again aligns with the findings of Erk and Veenendaal, where political decisions in small polities are made in an opaque way (2014: 141), thus excluding the general public from being able to hold decision makers accountable for their actions. It is particularly incongruous but perhaps not unexpected, that when Alderney’s democratic representatives made the decision not to democratize, it was made behind closed doors.

To the factor of smallness as an explanation for the premature end of the Alderney Governance Review, I would add the multiplying factor of Alderney’s island identity. As noted earlier, small polities are more likely to be islands, and the fact of being an island is said to intensify the pull towards democracy (Anckar, 2008: 437). But, it can also be seen that islands also exhibit features that may weigh against democratic reform—the need to rely on outsiders but a reluctance to accept their involvement featured heavily in Alderney’s case. If the Review team had come from Alderney, perhaps a different story could have been told.