Guernsey’s current Freedom of Information framework, reliant solely on a voluntary and unenforceable Code of Practice, is fundamentally inadequate and inconsistent with its obligations under international law.
It fails to uphold core democratic principles of transparency, accountability, and public scrutiny required in a modern democratic jurisdiction.
The Aarhus Convention1, ratified by the United Kingdom and thus carrying implications for Crown Dependencies including Guernsey, explicitly guarantees the public’s right to access environmental information held by governmental bodies.
This right is essential for meaningful participation in environmental governance and ensuring governmental accountability. Guernsey’s voluntary code provides no enforceable mechanism to fulfill this obligation, undermining public confidence and participation.
Moreover, the European Court of Human Rights (ECtHR), in Magyar Helsinki Bizottság v. Hungary (2016)2, explicitly recognized that access to information held by public authorities is an inherent component of freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). The ECtHR ruled Hungary’s refusal to disclose information on national security grounds violated Article 103. By analogy, Guernsey’s non-binding code, which allows public authorities broad discretion to withhold information without enforceable oversight, similarly risks breaching the rights protected by Article 10. This legal precedent strongly suggests that Guernsey’s current system is incompatible with human rights standards to which it must adhere.
Article 10 of the Convention can be interpreted as guaranteeing the applicant NGO a right of access to information held by public authorities
Grand Chamber ECtHR, Magyar Helsinki Bizottság v. Hungary
Furthermore, Article 13 of the United Nations Convention against Corruption (UNCAC)4, ratified by the UK, mandates that states guarantee effective public access to information as a fundamental strategy to combat corruption. Effective access is explicitly understood to require legally enforceable mechanisms. Guernsey’s reliance on a voluntary code is precisely the opposite—unenforceable, discretionary, and therefore insufficient in safeguarding against corrupt or poor practices.
The argument that Guernsey, as a Crown Dependency, is somehow exempt from these international standards is untenable. As stated in my detailed analysis5, it is vital for Guernsey’s international credibility and domestic legitimacy to align its laws with recognized international norms. The absence of robust Freedom of Information legislation damages trust in public institutions, facilitates potential abuses of power, and undermines democratic governance. Do we wish to remain in the company of North Korea in our absence of a FoI law?
A potential case study demonstrating the risk Guernsey faces by maintaining only a voluntary FoI code involves the scenario where a refusal to disclose information is challenged and escalated to the ECtHR under Article 10 grounds, similar to Magyar Helsinki Bizottság v. Hungary. Should the ECtHR rule against Guernsey, it would create significant legal and diplomatic pressure, obliging the UK—responsible for Guernsey’s international compliance—to intervene, potentially through Privy Council directives. Such a judgment would result in substantial reputational damage, increased scrutiny from international bodies, and could trigger economic and political consequences, highlighting the urgent need for enforceable FoI legislation.
A clear example of the risks posed by Guernsey’s voluntary code occurred when the Committee for Home Affairs refused to disclose the legal costs associated with defending police officers6, despite an independent FoI appeals panel recommending release of the information due to the public interest in transparency. The Committee dismissed the panel’s recommendation as “nonsensical” and refused compliance, explicitly exploiting the lack of enforceable provisions to avoid accountability. This incident starkly illustrates the limitations of the existing system and the ease with which public bodies can evade transparency.
Consequently, Guernsey must urgently implement a comprehensive, legally binding Freedom of Information Law, replacing the existing voluntary code with enforceable provisions. This step is not merely desirable—it is a legal and moral imperative required to meet international obligations, promote transparency, safeguard democratic freedoms, and combat corruption and incompetence effectively.
Ultimately, the repeated resistance from senior levels within Guernsey’s Civil Service and certain Deputies raises legitimate suspicions that the absence of enforceable FoI legislation serves interests opposed to genuine transparency. Guernsey simply cannot afford to be without such an essential tool for combating poor governance and ensuring accountability any longer.
- https://unece.org/DAM/env/pp/documents/cep43e.pdf [↩]
- https://hudoc.echr.coe.int/eng?i=002-11282 [↩]
- https://ks.echr.coe.int/documents/d/echr-ks/guide_art_10_eng-pdf [↩]
- https://www.unodc.org/documents/brussels/UN_Convention_Against_Corruption.pdf [↩]
- https://stateofguernsey.com/freedom-of-information-law/ [↩]
- https://www.bailiwickexpress.com/news-ge/foi-appeals-panel-decision-branded-nonsensical-home-affairs/ [↩]