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Intellectual property is a human right

By nigel on Sunday, 24 July 2011 in Domain Names, General, Legal

The European Union’s Charter of Fundamental Rights states, at 17:

1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law insofar as is necessary for the general interest.

2. Intellectual property shall be protected.

Why is Article 17(2) in particular important?

Art. 17 itself is based on Art 1, First Protocol ECHR which reads as follows:

‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.’

This is a fundamental right that is common to most nations that have written constitutions,and even some that do not (like the British Islands)

Self-evidently, intellectual property can be equally valuable as other intangible property (such as a right to collect a debt).

It’s very important that our modern society recognises the importance of such things and protects intellectual property, in the same way it protects realty and personalty.

And where the right to have your intellectual property protected clashes with other fundamental rights in a democratic society, such as freedom of expression, a balancing exercise needs to be undertaken, in exactly the same was as the familiar balancing exercise between the right to private and family life on the one hand and the right to freedom of expression on the other (The tensions between the latter being very evident in the British news at the moment).

ICANN and Human Rights

By nigel on Wednesday, 29 June 2011 in Domain Names, General, Legal

(I sent the following to Rod Beckstrom today)

Rod Beckstrom
Chief Executive Officer
Internet Corporation for Assigned. Names and Numbers
4676 Admiralty Way, Suite 330
Marina del Rey, CA
90292-6601.
USA

[Docket No. 110207099-1319-02]

OPEN LETTER

Dear Rod:

It was good to see you in Singapore, if only fleetingly.

As you were present in San Francisco back on March 17th 2011, you are of course aware that during the Public Forum in San Francisco I made use of the community’s opportunity to ask questions on the main topics at each meeting directly to the Board and in front of the rest of the community, asking the Board about ICANN’s commitment (or not) to fundamental human rights. The full transcript is in the usual place that is available to you, and is reproduced at

http://news.dot-nxt.com/2011/03/17/transcript-public-forum

As you are also aware, I still remain without the benefit of the several-times promised-by-you answer.

Certain current and former Board members have privately expressed their irritation with the form of my question. Notwithstanding this, and regardless of the form of my question (leading or otherwise), this particular question has to be one of the most remarkable as a result ICANN’s shamefully long silence in officially responding to it.

I also understand certain comments were recently made by one or more members of the Board about my question (in my absence) before the entire assembly of the Singapore ccNSO meeting — which is open to both non-members (as we then were) and to members — despite that I was unavoidably unable to be there.

Although this seems to me to be no more than mildly discourteous, I am looking forward to reading the transcript of that meeting to see if it can throw any light on your continued refusal to answer the question.

However I have been given to understand that scuttlebutt has it that the Board might now have decided that it requires further particulars before it would be prepared to answer my question.

I am puzzled mightily by this, if it is true.

If that were the case, surely you should have contacted me in writing some four months ago (my email address is well known to you) or in person.

Back in March I wished to have the answer to this legitimate query in order to be able to respond fully and coherently to the Department of Commerce‘s Notice of Inquiry regarding the IANA function.

I asked the question in March 2011, and I expected a timely answer.

I still expect an answer even though July is almost with us. I shall keep asking for an answer until the organisation which you lead has the courtesy to respond to it.

The ICANN Chairman, Mr Dengate-Thrush, rather optimistically suggested I might get one by the end of the day (i.e by 18th March 2011) in which I asked the question.

Whilst I did not share his well-intentioned optimism, I did expect ICANN to provide an answer to enable me to respond to the Department’s Notice of Inquiry before their 31st March 2011 deadline.

The more so, as I took the trouble to provide my enquiry both to ICANN’s Chairman, and to ICANN’s General Counsel not only in writing but also that same day.

Yet I was to be unsurprisingly disappointed when ICANN studiedly failed to answer the question, despite repeated reminders both to yourself, and to the Chairman, and I was therefore forced to complete my submission to the United States’ Department of Commerce without the benefit of the information asked for.

In that light, and in the subsequent failure to respond at all, it seems to me that ICANN intentionally failed to answer and that failure was motivated by a desire to avoid adverse comment in my submission to the Department.

If, in fact, this was so, (and I hope it was not), this transparent ploy unfortunately had the opposite effect you intended, as I was forced, in my submission to the Department to highlight ICANN’s failure to commit to basic human rights compliance.

A Further Notice of Inquiry has now been issued by the US Government with a deadline of July 29th 2011.

I trust your organisation will not employ the same tactic to inhibit input and comment in response to that?

As you are the figurehead of an international global organisation dealing with rights and obligations world-wide ICANN is in a unique position and you have a unique responsbility.

in policy-making ICANN acts as a Legislature for the Domain Name System.
in carrying out of the IANA function, ICANN appears to act, in some part, as the DNS Executive Branch, and
in making judgments on applications for new Top Level Domains, or changes to existing Top Level Domains, ICANN acts as a Judicial Branch.

In doing all of those things, it seems to me that the values of commonly accepted principles of fundamental rights of civilised nations must always be respected.

Why can you not bring yourself to agree with me on this? It seems self-evident to me.

And it also seems to me these fundamental principles should not apply only to public authorities (such as the GAC) but also to organisations such as ICANN itself, among other things by reason of the Guiding Principles for corporations that was presented to the United Nations’ Human Rights Council by Prof John G Ruggie of Harvard Law School.

See http://ec.europa.eu/enterprise/policies/sustainable-business/files/business-human-rights/guiding_principles_business_and_hhrr_en.pdf

and, in particular, the Foundational Principles, pp. 13 et seq.

This was also strongly underlined by Commissioner Kroes’ recent public statement on what matters on the Internet (see http://blogs.ec.europa.eu/neelie-kroes/i-propose-a-compact-for-the-internet ) , in particular that :-

“there’s been a lot of discussion recently about principles which do, or should, underpin the network. The G8 recently agreed a few – principles like openness, freedom, non-discrimination and respect for human rights. Other bodies, including the OECD itself, are also developing their own.”

Particularly in this time during the Arab Spring of 2011, where the Internet has become a powerful force for good, for the promotion of democracy and human rights (in Iran, Libya, Syria and elsewhere around the world) I believe it would have been far preferable better that ICANN should grasp the opportunity to proclaim a commitment to fundamental human rights, to set an example to others, and not to be cowering in the shadows as if I’d asked you whether you’d been scrumping apples.

I therefore respectfully request a written or emailed reply to my enquiry of 17th March 2011 by return email.

If you insist on maintaining your current apparent position of procrastination and obfuscation, please provide me with a thorough and reasoned explanation of your decision not to answer the question, the rationale thereof and the sources of data and information on which ICANN relied in making this decision, again by return, so I can assist the Board in its deliberations.

With all good wishes

Nigel

What’s in a (domain) name?

By nigel on Thursday, 16 June 2011 in Channel Islands, Domain Names, General

Once I explain what it is I do for a living, people, particularly here locally in the Channel Islands often say to me “But which domain extension should my business or organisation be using for best effect?”.

What is interesting, is that the approach people have on the subject appears to be influenced by their age, length of time on the Internet and the locations where their business is targetting.

The thing to always bear in mind, is that a major (although not the only) use of a domain name, is as a brand.

A brand for a business, organisation or for a particular topic. You can see the thinking behind my choice of the nigel.je brand here.

Because of the Crown Dependencies’ close links, both geographic, constitutional and economic, with the United Kingdom, before 1996 it was very common for those few Channel Island organisations that were on the Internet at the time, to use .UK domain names, and as what we now call “gTLD” names. (Usually .NET since the .COM usually belonged to an American company).

15 years ago, when we created the Channel Islands’ domain registry, there were only two ISPs (GUERNSEY.NET in Guernsey, and SuperNet (ITL.NET) in Jersey

Back then, even the Islands’ governments used to use .GOV.UK or X.400. (In fact we still maintain a legacy registration of the name GUERNSEY.GOV.UK with JA.NET on behalf of the States). Also, despite Guernsey not being part of the UK, because of the integration with the UK forces, the police continue to use GUERNSEY.POLICE.UK as well as various .GG names for other purposes.

(It’s perhaps worth noting that to some people outside, the message which the use of that brand appears to send out is that despite the Islands’ complete domestic autonomy from the UK, the forces of law and order are under significant influence if not control from London.)

Following the creation of the .GG, .JE and .IM country codes on the Internet in 1996, and adoption by the International Standards Organisation (ISO) as official territorial two-letter ISO codes in 2006, Guernsey and Jersey (and the Isle of Man) has started to appear in drop down lists on websites as options. If you don’t see Guernse, Jersey and the Isle of Man, the website developer is almost certainly using out-of-date libraries.

This is all part of what our politicians rightly call “the emerging international personality of the jurisdiction”.

Image via Wikipedia

What Montenegro did in a couple of years, we take 800 or so years to do!).

In general, this is A Very Good Thing.

But it’s left quite an interesting approach to using domain names.

Anyone who was at school after about 1998 naturally understands immediately that .GG = Guernsey, and .JE = Jersey as they will have been familiar with .sch.gg and .sch.je email addresses.

However anyone older than that may be subscribe to have the school of thought that was common in the early days after the Internet arrived in the Islands and took the pragmatic view that “we aren’t part of the UK, the .COM is in use by an American company. so let’s use .NET”. An example of that, already mentions, is guernsey.net (now owned by Wave Telecom).

Furthermore people who came onto the internet around in the dotCOM boom (and bust!) think that .COM is the be-all and end all when it comes to online businesses.

And then of course, there are the deliberate branding exercises.

Some companies want to be seen to be a global enterprise. They feel they have to use .COM (if they can find one available or more likely, are forced to buy one in the ‘secondary market’)..

Surprising to some of us, but some companies want to downplay their Channel Island connections.

After all, we have UK +44 telephone numbers. We have Royal Mail standard postcodes and even though we have our own Postal Administrations, our mail, from outside the British Islands is addressed to the UK.

Therefore it’s understandable enough that some Channel Island companies, particularly those taking advantage of using Low Value Consignment Relief, may not want to highlight, or even may wish to obscure their Channel Island connections. A .CO.UK domain name is the natural choice for companies who want to pretend to be in the UK.

But a choice of domain name can have major implications. In a little know ruling, the European Court of Justice ruled that what domain name a company used for its website, and even whether it put its phone number on that website in internationa (e.g. +44) rather than national dialling code format, could have an effect on whether it was considered to be targeting customers abroad.
So I guess it’s only a matter of time before the UK Inland Revenue decides that a conscious choice to use .CO.UK is one factor leading to a UK tax bill of some sort.

And using overseas domains has all sorts of jurisdictional risks. I’ve written already about the risks of using unstable countries’ domains (BIT.LY etc).
And Alderney-based Full Tilt Poker found itself in some difficulty when they realised that the fact that the registry for all .COM domains is the the US made their domain subject to seizure.

At the end of the day, local companies should be proud of their origin, and for practical reasons as well as sentiment, should use the local domain.

Presidential Candidates Confirmed

By nigel on Wednesday, 1 June 2011 in Channel Islands, General

At 4 pm yesterday, Alderney time, the nominations closed for the popular election of the Island’s next President.

The candidates are confirmed as follows

Bill Simpson – businessman, writer and previously Wing-Commander in the RAF

Stuart Trought – renewable energy expert

Paul Arditti – UK solicitor and States member since January

All three of the candidates are professional men.

All three have made promises that they had a contribution to make to the future welfare of the Island.

I am pleased to note that this election is not only contested, but even better by people of this calibre. At the last election, no one even bothered to contest it, thereby depriving the People of the chance to affirm their choice of the island’s First Citizen.

It seems to me that the choice of President can only be the candidate that can best represent the Island, keep the occasionally fractious States Meetings politely but firmly in line and carries no controversy or baggage that might interfere with those duties.

And although I have a relatively firm preference for one of them (and that is where my vote is going), I am not going to recommend which one you vote for, if you have a vote. (If you were to ask me privately, I would be happy to tell you.)

But do vote for whichever candidate you think has shown best their qualities, and commitment to the role of First Citizen and your public representative.

And do make sure to express your preference by casting your own vote at the Island Hall on Saturday, the 11th June.

I Shall Wear Midnight

By nigel on Sunday, 29 May 2011 in General, Music and Culture

Cover of Terry Pratchett

Over a quarter of a century ago I started to read a story.

The story was set in a magical land, where there lived a particular wizard, who subsequently became one of fantastic literature’s favourite wizards, alongside Merlyn, Gandalf and young Mr Potter. It also had an unfortunate tourist, whose Luggage had legs and, apparently a mind of its own.

With four-dimensional distance, not to mention elasticated string, memory seems plays tricks on one.

I was convinced this story first appeared, prior to book publication, in the form of a novella in The Magazine of Fantasy and Science Fiction. But now, with the benefit of search engines I determined to check my facts before writing that it. And you, know, I can’t verify it.

I can find no trace of any such magazine publication of the first reports of Rincewind and Twoflower when using Google. Does any one know?

Perhaps I bought it in paperback on spec. I know I didn’t buy hardbacks in those days. (Having, to my surprise just been able to find it without looking, I discover that my slightly foxed copy appears to be a paperback first edition. Wonder if it has any value ….)

All that is of little consequence, of course, because the story was The Colour of Magic by Terry Pratchett as he then was. And it started a lifelong affection for Discworld and its motley cast.

I read the 38th book in the series yesterday.

Featuring the old-beyond-her-fifteen-summers Tiffany Aching this one has a different quality to it than all the others.

Oh, the characterisation is as delightfully ironic as ever. The (s)wordplay just as sharp. But there is an undercurrent of tristesse. Not sorrow, or even sadness, but a gentle, smiling tolerance of humanity in all its glorious weaknesses and strength. It has an elegiac and hauntingly austere quality about it.

Knowing the practical difficulties that Sir Terry faced in writing his most recent books, this book is even more remarkable for that.

It’s not the last book in the Discworld series. (I suspect that one has already been written and locked away in a safe). And I know that there’s at least one other (Snuff) due to come out this year. And hopefully more to come after that.

But if it had have been the last, it would have been a rare and fitting finish.

This one was very much than the usual clever puns and word-game for the amusement of the alert (you know the sort of thing . . . Medic-i => Vetinar-i).

You never think that at some point there will be no more Rumpole stories to read. The Victorians rose up when they thought there’d be no more Holmes, so much so that Conan Doyle had to resurrect him until he ended his days growing roses.
(The exception here is Harry Potter. We’ve been Potter-ed into submission, and Rowling ended that tale so definitively that the only new Hogwarts stories could be set in the a generation prior or subsquent.)

But one day there shall be no more new Discworld stories.

I Shall Wear Midnight is one of those rare books which makes you sit back, and wonder at the wisdom and compassion of the mind that created it; which mind is, in real life, suffering from one of the cruellest things that could possibly happen to it, and even more, is so courageous that he proclaims it to the world.

This book is even the more remarkable for that.

Read it.

Your UK credit report for pennies (Equifax-Experian)

By nigel on Sunday, 15 May 2011 in General

A little known law in the UK allows you to get your credit report from all three major credit reference agencies for pennies.

Image via CrunchBase

The agencies and service resellers have been promoting ‘FREE’ instant access to credit reports. Of course its not free — you have to agree to sign up to a monthly fee which you are stuck with unless you cancel within the trial period, sometimes as short as 10 days. In addition itappears that at least one reseller uses your personal data for unrelated marketing purposes ‘with your consent’ (it’s in the small print).

The Data Protection Act 1998 (and its predecessor, the 1984 Act) has always provided a right of access to personal data held about you. This is called a Subject Access Request, and you can write to any organisation holding personal data (that is to say, data about living persons) and request a copy of everything they hold on you within 40 days. The Act provides that the data controller or data processor (that is to say, the organistation or person with the data) can charge you.

The law sets a statutory maximum fee. And guess what! It seems that every data controller the law applies to invariably charges the maximum fee allowed, which is ten pounds (just under 12 euros at the time of writing).

There are three major credit reference agencies in the UK. Experian, Equifax and (relative newcomer) CallCredit.

So if you filed a normal Subject Access request with all three, it would cost thirty pounds. And if you did this three or four times a year, it would be a similar cost to paying say ten pounds a month for their paid-for services.

But there’s a little known provision in the law that enables you to get your credit reports for pennies.

Long before the 1984 Act was even thought of the Consumer Credit Act 1974 introduced for the first time in Great Britain, the right of consumers to access their credit file.

At the time the Act was drafted, the credit industry in the UK was very much in its infancy.

VISA and MasterCard as we know them today didn’t exist. The only payment card accepted internationally was American Express (restricted to the sort of people who today have Platinum Amex cards)

Scan of sample original Barclaycard - used in ...

Image via Wikipedia

Before 1972 only one UK bank offered a credit card, which was called ‘Barclaycard’ . Introduced in 1996, it is a brand name which still survives today, but now as one among many VISA cards. It was very cleverly advertised, with cinema ads showing a girl equipped with a bikini and nothing else but her Barclaycard.. (Although there are plenty of other Barclaycard ads on YouTube this one doesn’t appear to have survived). In 1972 the other three of the ‘Big Four’ Banks, launched Access (which became know as ‘your flexible friend’ only to disappear into the MasterCard brand many years later). Prior to this time the only credit available to consumers were expensive ‘overdrafts’ and expensive and onerous ‘hire purchase agreements’.

With all this activity, the UK Government instituted a right to see your credit file at a minimal cost. This was contained in the Consumer Credit Act 1974.and provided that not only could you get to see your credit file for a very small fee, but also that the credit reference agencies must correct it if it was wrong.

When in 1998 the Data Protection Act was updated, this was embedded into the new Act (s.7).

So, to obtain your credit file, simply write to any or all of

Equifax Ltd., Credit File Advice Centre, PO Box 1140, BRADFORD BD1 5US
Experian Ltd, Consumer Help Service, P O Box 8000, NOTTINGHAM, NG80 7WF
CallCredit Ltd, Consumer Services Team, P O Box 491 LEEDS LS3 1WZ

enclosing the statutory fee of two pounds, and stating all addresses you have lived at in the last siz years. They must then provide your full credit file within 7 days.

Sample Cover Letter

Dear Sirs,

I hereby apply for a copy of my credit reference file under the provisions of s.7 of the Data Protection Act 1998.

My current address is 23 Every St LONDON SW1 0AA

My previous addresses within the last 6 years are as follows

1 Other St LONDON W1A 4WW

I enclose the statutory fee of 2.00 and look forward to your reply within the next seven days.

Yours faithfully

Richard Mustermann

Alderney Presidential candidates emerge

By nigel on Thursday, 12 May 2011 in Channel Islands, General

The Presidential Election has been officially announced. It

will be on June 11th.

So far, two candidates have publi cly declared themselves.

First out of the gate was former Renewable Energy guru Stuart Trought

Then in last week’s Journal, former RAF Wing-Commander-turned-biographer William G Simpson (not the bloke from Fifteen To One — that’s William G Stewart!).

But the rumourmill has been in full swing since Sir Norman’s official retirement announcement. And people have been falling over themselves to declare themselves as non-candidates, too many to list. (For the record, I haven’t declared I’m not running!).

But recently more names are being suggested might enter the race.

It’s very likely that at least one more late-declaring candidate will appear (nominations close on 30th May) but if even just one of the dark-horse candidates submit papers then there will be an election with four, maybe five candidates. (UPDATE: another suggested name appears to have ruled themselves out).

But if there are four or more candidates, that could almost turn the election into a lottery.

No matter how efficiently the rumour mill works, it seems to me that any late-declaring candidates will have somewhat of an uphill struggle to get their message across, since both Trought and Simpson have been working hard for some time to raise their profiles and show off their merits as potential Presidential material.

It’s all a highly interesting development in what used to be one of the world’s smallest Parliamentary democracies (Sark is smaller, but has only implemented democracy in the last 3 years or so) since last time there was a Presidential Election, there were no other candidates and Sir Norman was elected unopposed.

This time half the Island could be candidates!

It might be more chaotic, but it’s healthy for democracy

Roaming banditry

By nigel on Thursday, 28 April 2011 in General

David Snyder has had a bad experience with a disproportionately high bill while roaming. His report is at snydersense.com

Image via Wikipedia

Having read it, it seems to me that Verizon is trading in Europe. That is to say, it is selling data access to US subscribers to its service who are in Europe when they receive the service.

It also seems to me it may be likely that European legislation already provides remedies for this kind of behaviour by companies, dealing with consumers with bad faith.

Read what the UK’s Department of Businesshave to say about the Unfair Business Practices Directive particularly the wording which reads ‘contrary to the requirement of good faith’.

What is especially interesting is that the European networks that Verizon uses to deliver the service to Verizon subscribers in Europe will charge approximately 0.1 eurocents per megabyte (that’s around €15 per gigabyte) to domestic consumers.

My VODAFONE.UK contract gives me 3 gB each month for ₤10. I have a VODAFONE.DE data plan where the data costs are similar. Airtel-Vodafone in Guernsey and Jersey charges ₤0.01 per megabyte whch equates to ₤10 per gig. There seems to be a consensus here ..

So how much is Verizon really paying to the European network wholesale if European networks can make these charges retail and still make a profit?

I’d love to see someone take Verizon or another roaming bandit to court in an EU country where such services were delivered.

At some point what is within reasonable range of profit becomes consumer gouging. And while I happen to live in a territory, like the US, whose legal system honours the Victorian principles of freedom of contract, there has to be a limit. (Should we still expect illiterates to be bound when the back of their train ticket has a written notice saying that contractual terms are available in written form upon applying at the railroad ticket office before departure?).

Poker domain seizures in .COM

By nigel on Sunday, 24 April 2011 in Channel Islands, Domain Names, General

Image via Wikipedia

Last week a court in the USA seized control of the .COM domains belonging to several online poker sites, inlcuding Poker Stars, Full Tilt Poker and Absolute Poker.

On the face of the registration records, these domain registration were owned by organisations outside the USA, although there seemed to be some suggestion that one or more of them may have been ultimately controlled by US citizens or residents.

On the one hand, it is entirely right that the courtroom is the right place for decisions like this. No excutive agency, or a law enforcement body, or even worse, domain vigilantes should have such powers.

And the face that these recent temporary seizures were done through a Court is actually good news.

Democratic countries have something called the Rule of Law which protects personal property (which the bundle of rights under a domain registration contract undoubtedly is) and it should take a court order to seize things.

On the other hand, it seems that removing something which in e-commerce terms is equivalent to both the brand and the shop window of a business, is fairly draconian, and should be resorted to in the most egregious of cases. The commercial harm that, if only for a short time, a notice is placed on a company’s website stating it has been shut down on the basis of alleged criminal activity will not be insignificant.

The question which a British or European Court would probably have asked itself before granting a Prohibitory or Mandatory Order, is whether the requested remedy was proportionate.

Image via Wikipedia

Now it seems that at least some those domain names have been returned to use.

At the time of writing pokerstars.com is forwarding to pokerstars.eu.

fulltiltpoker.com looks to be back to normal, although I understand from what I read at gamblingcontrol.org (Full Tilt is licenced here in Alderney) that they have suspended real-money play from the USA. Frankly, I’m surprised that an Alderney company ever allowed US players!

But there’s a big lesson in this episode.

And it’s something that has been obvious to those of us in the domain name industry for years, but self-evidently, it’s not something that the risk management people at online poker sites have ever considered before.

It’s not only ‘foreign’ ccTLDs like Libya that have jurisidictional legal risk to an online e-commerce business. Any company which uses a .COM, .NET or any other ICANN ‘gTLD’ domain name places itself at risk of losing its entire business and voluntarily puts itself within US jurisdiction.

And it’s not only criminal proceedings in above-average risk sectors (such as online poker) that are vulnerable.

Any non-country-code domain name can be disputed in an American court. And well established, legal businesses could find themselves on the end of an expensive, and inconvenient ‘reverse cyber hijacking’ attempt in a US court. It’s happened before, and it will happen again. In 1997the British owners of PRINCE.COM had to take swift legal action in London’s High Court to keep their domain from an American company who, as an American company, believed they had a better right to it

Suddenly your local country-code domain name might seem like a much better to do business in.

And the long-awaited ICANN ‘new generics’ much less so.

Oh, and an amusing postscript and shameless piece of self-promotion.

The country-code for the Bailiwick of Guernsey, which includes Alderney, is actually ‘GG’ which is poker terminology for ‘Good Game’. I can hear Bruce Forsyth in my head already!

Two Poker Sites Can Use Domain Name (online.wsj.com)

Alderney Presidential Election

By nigel on Tuesday, 5 April 2011 in Channel Islands, General

This very afternoon I received in my box, courtesy of the Guernsey Post, the April 2011 Presidential Newsletter.

Image via Wikipedia

Sir Norman explains very well many of the subtleties of the
constitutional legal background to the appointment of the Speaker of the House of Commons, the Bailiffs of Guernsey and Jersey, and of our own Presiding Officer, the President of the States of Alderney.

But then he goes on to state that the President of the States ‘has a mandate’ (that is to say, a political role) because he or she is elected by the People, not appointed.

With respect to Sir Norman’s 10 year Presidential reign, the President’s role as ‘the States’ conscience’ does not derive from the relatively modern innovation of popular election (which has only been the case since 1948) but is inherited from the ancient customary law duty of the Juge (judge) in Alderney, the same duty being upon the Bailiffs in Guernsey and Jersey, to ensure that the States Members were fully informed of the views of the People. That duty came about in ancient times when the majority of Islanders could neither read nor write.

A former Bailiff, quoted in a case in the European Court, said: “In Guernsey, the Bailiff “is the Island’s chief citizen and representative”. Speaking of the casting vote, he went on to say “in Guernsey, in general, the Bailiff uses his voice to ensure a further investigation of questions on which the States are in doubt”.

It cannot be doubted that, in Alderney, that role is carried out by the President, and the Presidential office is the successor-in-law to the last Juge (Judge Sir Frank Wiltshire). Furthermore, it must be the case, as an integral part of the Bailiwick, that same constitutional conventions that applies to the Bailiff in Guernsey must apply to the President when carrying out the same role, such as when the States is faced with an equally divided vote.

Yet in his newsletter, Sir Norman goes on to set out the circumstances in which he believes when the President may take on a political role, although he says these circumstances are limited.

As respected scholar Peter Hogg wrote: “Conventions are rules of the constitution which are not enforced by the law courts. Because they are not enforced by the law courts they are best regarded as non-legal rules, but because they do in fact regulate the working of the constitution they are an important concern ….”

With very the greatest of respect, I feel that Sir Norman’s assessment of the circumstances a President may be political is entirely wrong.

The President should never take on a political role – his job is, above all — in the House — to keep the politicians in line.

And, in plain language, he cannot be a player as well as a referee.

Any time the President joins in to the political fray, it seems to me, no matter how infrequently, he diminishes the respect for, and effectiveness of the office. Fortunately that has not, so far as I can remember, happened on more than one or two occasions in the last 10 or 12 years.

Finally, there seems to be a contradiction in the Newsletter. If we accept after all that the President has any political role (although I say he should not have), it follows that any candidate for that role cannot be inhibited from campaigning for the office. Indeed to do so, would deny the very mandate that President Browse suggests that he has.

In any election it must be for the People, not an elected politician, no matter how respected, to judge if a style of campaigning is appropriate or not, using their ultimate power, that of their vote.

And, as a democracy, we should trust the electorate to decide who is the better candidate.

I therefore look forward to the May Billet and to learning who the candidates for the forthcoming Presidential Election in Alderney shall be.

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