Following our previous inquiry into the representation of the Crown Dependencies during the Icelandic banking crisis, we decided to investigate the relationship between the UK and the Crown Dependencies, and the role of the Ministry of Justice in administering that relationship. During our investigations, we took both written and oral evidence and visited Jersey, Guernsey, Sark, Alderney and the Isle of Man.
The Ministry of Justice is the UK Government department responsible for the administration of the UK's relationship with the Crown Dependencies, although the overall responsibility for that relationship is shared across Whitehall. The major aspects of this relationship involve: the Ministry of Justice informing other Whitehall departments of their obligations in relation to the Crown Dependencies and mediating contact with the Islands where necessary; processing insular legislation prior to Royal Assent; keeping the Crown Dependencies informed in relation to any UK legislation or international treaties intended to apply to or affect them; representing the interests of the Crown Dependencies on the international stage; defence; and advising the Sovereign if there is any threat to the good government of a Dependency which would justify intervention.
The Crown Dependency governments are, with some important caveats, content with their relationship with the Ministry of Justice. We found that the Crown Dependencies team at the Ministry of Justice carried a considerable workload, the burden of which sometimes appeared to prevent the efficient and timely administration of legislative and other business from the Crown Dependencies. We recommend that the Ministry of Justice reappraise the priorities for its Crown Dependencies work; focus more on its constitutional duties; and spend less time on issues for which it is not formally responsible.
The Ministry of Justice should give clearer guidance to other Whitehall departments who conduct business affecting the Crown Dependencies. Such departments should be made aware of the constitution position of the Islands, their essential independence from the UK, their independence from each other, and the fact that their interests need to be considered routinely in any area of UK policy-making and legislation likely to affect them. We consider that secondments of officials between UK Government departments and the Crown Dependencies would help to increase mutual understanding.
The UK Government is responsible for ensuring the good government of the Crown Dependencies. Some witnesses to this inquiry indicated a desire for the Ministry of Justice to step in to address certain grievances they have in relation to the governance of the Islands. However, we consider that the Crown Dependencies are democratic, self-governing communities with free media and open debate. The independence and powers of self-determination of the Crown Dependencies are, in the view of both the UK Government and the Island authorities, only to be set aside in the most serious circumstances, such as a fundamental breakdown in public order or of the rule of law, endemic corruption in the government or the judiciary or other extreme circumstance. However, we note that, in very small jurisdictions, it is possible for the existence of very significant economic, legal or political power to skew the operation of democratic government and this is a possibility in respect of which the Ministry of Justice should remain vigilant.
We found that there was duplication of effort in the processes relating to the scrutiny of insular legislation prior to Royal Assent, with several sets of lawyers sometimes reviewing legislation for the same purposes. In addition, we found that Ministry of Justice and other UK Government lawyers were not necessarily confining themselves to the constitutional grounds for review and were questioning the form and policy content of insular legislation on other grounds. This is inappropriate, both in terms of a non-essential use of scarce resources and in terms of the constitutional autonomy of the insular legislatures in relation to domestic matters. We recommend that the judgement of the insular Law Officers should normally be relied upon for laws which are of domestic application only, with a reduced level of scrutiny by Ministry of Justice and other UK Government lawyers. Where increased scrutiny is required for more complex legislation, the Ministry of Justice should endeavour to ensure that such scrutiny is carried out expeditiously so as to give timely effect to the will of the democratically elected insular parliaments.
We were told that the Islands sometimes find themselves in the position of having to acquiesce in or agree to UK legislation, EU and other international measures affecting them without sufficient time or opportunity for reflection, discussion or negotiation. We recommend that the Ministry of Justice set out clear guidelines on the need for UK Government consultation with the Crown Dependencies as early as possible; and that including the consideration of the interests of the Crown Dependencies on UK legislative checklists may be a useful measure.
The Crown Dependencies expressed concern that their interests were sometimes not effectively represented by the UK Government on the international stage. This is especially problematic where the interests of the UK and the Crown Dependencies are in direct conflict. We note that the duty of the UK Government to represent the interests of the Crown Dependencies faithfullyreflected in the Framework for developing the international identities of the Crown Dependencies agreed between the UK and the Islandsis just that: a duty and not an option. In cases of conflict, the Ministry of Justice should endeavour to find more creative ways of representing the interests of both parties. Appropriate mechanisms may include designating certain officials, either from the UK or from the Islands, within the UK delegation as representing the Islands in international negotiations; and the increased use of Letters of Entrustment, which permit the Island authorities to conclude their own international agreements in specified areas.