October 26, 2020

AY News

First with the Alderney news

Lieutenant Governor: Ordinary residence issue leaves ‘questions’ about Alderney elections

4 min read

The Lieutenant Governor lent his support to Debbie Lewis’ battle to prove she was eligible to stand for election and said the unfortunate matter ‘left questions’ about future elections.

Vice Admiral Sir Ian Corder intervened when Ms Lewis was told by the Alderney’s civil service that she did not meet the requirement in in law that any nominee must be ‘ordinarily resident’ on the Island for a 36 month period leading up to election.

No definition of ‘ordinarily resident’ exists in Alderney or even in UK law.

Returning Officer Elizabeth Maurice and acting Chief Executive Officer Adrian Lewis examined a spreadsheet of Ms Lewis’ flight patterns and found she had spend 60 per cent of the past three years off island. They concluded that the term ‘ordinary residence’ related to time spent on and off the Island.

Ms Lewis appealed to the Lieutenant Governor, claiming the civil service was applying an arbitrary interpretation of a term that is opaque in law.

On his request they agreed to review the case and Ms Lewis produced evidence to back up her claim that Alderney was her permanent home. Evidence offered included her Bailiwick driving licence, GP registration and tax paid to Guernsey. In addition her partner, dogs and possessions are on Alderney.

The only legal guidance on the term – accepted by the Returning Officer – comes from a UK high court case which says a person is ‘ordinarily resident’ if: ‘they habitually and normally resided lawfully in Alderney from choice and for a settled purpose throughout the prescribed period apart from temporary or occasional absences.’

Debbie Lewis

Ms Maurice wrote to Ms Lewis with their final verdict. Actual time spent on the island again underpinned the decision, plus an interpretation of the word ‘throughout’ used in the relevant section of Alderney law.

Ms Maurice wrote:

‘The test is that the person has been ordinarily resident in Alderney throughout the 36 months immediately preceding the date appointed for the election. The use of throughout (as opposed to during) has relevance in that it suggests an extra element of constancy is required.

‘A person who has spent the majority of 2018 and 2019 living and working in the UK would appear unable to meet the test even if that person kept personal connections in Alderney throughout that period.

‘I have also considered the general expectation of the community that those who represent them would be able to demonstrate that they had throughout the course of a material time leading up to the election be fully aware of local issues and would likely be available to participate fully in the role of a States member as a consequence of being ordinarily resident on the Island.

‘Based upon what you have shared I conclude that on the balance of probabilities you have not been ordinarily resident in Alderney throughout the 36 months.’

Ms Lewis wrote to Lieutenant Governor to say she believed the subsequent by-election would be unlawful because of the ‘flawed’ decision.

‘They quoted, but completely ignored and failed to apply, the learned judges’ finding in Shah that whether absences were of long or short duration was of no importance and offered no opinion at all as to how many absences constitute ‘occasional’.

‘They took no account whatsoever of the additional information I had provided in my Further Particulars on the 2nd October, so did not assess the ‘objective evidence’ at all, as per the principles in Shah.

‘[They also] tried to concoct an absurd and unsustainable argument that any absences from the Island I might have had over the qualifying period would impact my ability to serve as a functioning States member going forward, post-election.’

She accused the acting CEO and Mrs Maurice of failing to properly assess and understand the law and then mis-applying it. It meant, she said, that the newly formed States of Alderney was unlawfully constituted.

Marco Ciotti, Chief of Staff to the Lieutenant-Governor, wrote to Ms Lewis saying that His Excellency ‘very much regretted’ the manner in which the issue had unfolded. As the Returning Officer had the statutory authority to adjudicate in the case he could not adjust it. The only route for appeal that remained, he said, was via the courts.

He said:

‘His Excellency has therefore asked the Law Officers, as a priority, to advise the authorities in Alderney on what, if any, further guidance is required regarding eligibility to participate in Alderney’s electoral processes.

‘Furthermore, he has asked that any such additional guidance is promulgated early to prevent a recurrence of this unfortunate matter; not least in the forthcoming general election.

‘I am, however, also directed to say that His Excellency accepts that this decision (and the manner in which it came about), in conjunction with the acknowledged lack of clarity in Alderney’s current laws on the matter, may leave open a number of questions about the conduct of future elections.

‘His Excellency has therefore asked the Law Officers, as a priority, to advise the authorities in Alderney on what, if any, further guidance is required regarding eligibility to participate in Alderney’s electoral processes. 

‘Furthermore, he has asked that any such additional guidance is promulgated early to prevent a recurrence of this unfortunate matter; not least in the forthcoming general election.’

AY News asked Mr Lewis for comment.

3 thoughts on “Lieutenant Governor: Ordinary residence issue leaves ‘questions’ about Alderney elections

  1. It seems curious that even the headline you have is misinterpreting the actual issue this has been seen elsewhere, and is perhaps causing some of the misunderstanding around this matter.
    The issue is not about ordinary residence as in the headline, it is about ordinarily resident. A residence is where you reside, an occupant is a resident. There is a difference. Your ordinary residence could well be Alderney even if you work away for long periods, but the legislation regarding eligibility for participation in elections refers to ordinarily resident. In my humble opinion, ‘ordinarily resident’ means actually here, on island. Also in my humble opinion ‘ordinarily’, would mean most of the time in a given period, in this case it is required over the preceding 36 months.
    It will be interesting to see what the law officers say.

  2. Odd that The Lt Governor can find time to deal with this pot of piffle and yet not address the Absentee CEO issue.

  3. Emma’s article refers to a quote from Ms Lewis as to there being no definition of ordinary residence “in UK law”.

    But people forget that there is no such thing as “UK law”, really. Each of the constituent parts of the UK have their own laws and jurisprudence: Scots Law is quite different from English Law, for example.

    And of course, Alderney Law is quite different again. Both from English Law and from Guernsey Law (except in criminal matters.)

    So an English decided case, such as the case of Shah referred to is NOT binding on the Alderney and Guernsey courts under the doctrine of stare decisis at all.

    At best it is merely something the court might take into account on deciding what the true construction of the Alderney law was.

    And on matters such as rights over realty, domicile, &c it is not too far-fetched to consider that our courts could prefer to look to sources of customary law , rather than the English common law or even the
    Code Civile

    Whether that would make Debbie Lewis more, or less, likely to succeed in her Claim against the Returning Officer is quite literally anyone’s guess.

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