1 Introduction
Background to the inquiry
1. At the start of the 2008-09 Session, we conducted
a short inquiry into the Ministry of Justice's performance in
representing the interests of the Crown Dependencies within the
UK Government's overall response to problems arising as a result
of the Icelandic banking crisis.[1]
That inquiry highlighted some of the problems that can arise when
one partner in a relationship is charged with representing, not
only its own interests, but also those of the other partners,
especially in circumstances where those interests may conflict.
Such was arguably the case during the negotiations with the Icelandic
government which followed the collapse of that country's banks.
2. Our inquiry into the representation of the Crown
Dependencies during the Icelandic banking crisis threw up broader,
constitutional issues about the precise relationship between the
UK and the Crown Dependencies and the role of the Ministry of
Justice in administering that relationship. The current inquiry
was, therefore, intended to pursue these broader questions.
3. We issued the terms of reference for the inquiry
and a call for written evidence on 5 August 2009. We have been
advised during this inquiry by Professor Andrew Le Sueur, of the
Department of Law, Queen Mary, University of London; and by Professor
St John Bates, Visiting Professor and Director of the Centre for
Legislative and Parliamentary Studies at the University of Strathclyde,
Associate Senior Research Fellow at the Institute of Advanced
Legal Studies, and Visiting Professor at the Isle of Man International
Business School.
4. Between December 2009 and March 2010, we took
oral evidence from Professor Alastair Sutton, an expert in the
Crown Dependencies' international relations; officials from the
Ministry of Justice and HM Treasury; and Lord Bach, Parliamentary
Under Secretary of State for Justice. In February 2010, we visited
Jersey, Guernsey, Sark, Alderney and the Isle of Man in order
to gather first-hand information from the Crown Dependencies and
add depth to our thinking and, ultimately, to our report.
5. We wish to thank our specialist advisers, those
who submitted written and oral evidence to the inquiry, and all
those we met on our visits to the Islands. Their cooperation and
assistance during the course of this inquiry has been invaluable.
Scope of this inquiry
6. This inquiry considers the administration of the
relationship of the Crown Dependencies with the Crown. For reasons
explained below, the Ministry of Justice is tasked with the administration
of this relationship.
7. The Bailiwicks of Jersey and Guernsey and the
Isle of Man are Dependencies of the Crown, with Her Majesty The
Queen as Sovereign.[2]
The Sovereign is represented in each jurisdiction by a Lieutenant
Governor. Although they are proud of their British associations,
the Crown Dependencies are not part of the United Kingdom and
are autonomous and self-governing, with their own, independent
legal, administrative and fiscal systems. The Island parliaments
legislate for themselves. UK legislation and international treaties
are only extended to them with their consent. It has been argued
that Westminster retains a residual legislative power over the
Islands in order to avoid "the impossible position of having
responsibility without power".[3]
We are not aware of any example in recent times of such a power
being exercised. The Crown Dependencies are to be distinguished
from the UK's Overseas Territories, which have a different constitutional
relationship with the UK.[4]
The Crown Dependencies are not part of the EU or EEA but they
are in the Customs territory of the EU by virtue of Protocol 3
to the UK's Act of Accession 1972 so that they can benefit from
free movement of industrial and agricultural goods.[5]
They are also part of the Common Travel Area (CTA), along with
the UK and the Republic of Ireland, which permits movement without
immigration controls for all CTA nationals.[6]
8. Her Majesty the Queen is Sovereign in each of
the Crown Dependencies for historical reasons which are different
for each Island.[7] In
each case, however, she executes her responsibilities for the
Crown Dependencies on the advice of her Privy Council and her
executive responsibilities are carried out by Her Majesty's Government.
Within HM Government, the Ministry of Justice is the point of
contact for the Crown Dependencies, and communications in both
directions are passed through its offices. Whilst this inquiry
deals with the relationship between the Ministry of Justice and
the Crown Dependencies, it is important to realise that their
relationship is technically with the Crown and that HM Government's
responsibilities are derived from this fact. As Jack Straw told
us on 7 October 2008:
The relationship between us and the Crown Dependencies
is a subtle one. They are dependencies of the Crown, they are
not part of the United Kingdom, so the responsibilities I have
for them are as a privy councillor.[8]
9. Part XI of Volume 1 of the Report of the Royal
Commission on the Constitution, published in 1973 and known as
the Kilbrandon Report, sets out an account of the duties of the
Crown in relation to its Dependencies.[9]
The Crown's responsibilities include:
- ultimate responsibility for
the "good government" of the Islands;
- the ratification of Island legislation by Order
in Council (Royal Assent) following scrutiny by the relevant Privy
Councillor (at the time of the Kilbrandon Report the Home Secretary,
now the Justice Secretary);
- international representation, subject to consultation
with the insular authorities prior to the conclusion of any agreement
which would apply to them;
- ensuring the Islands meet their international
obligations; and
- defence.[10]
The precise extent, and limitations, of these responsibilities
are unclear, however, and we have sought clarification on these
issues throughout our inquiry. This Report focuses, not only on
the Ministry of Justice's administration of these responsibilities,
but also on its management of the UK's relationship with the Crown
Dependencies more widely, including the Ministry of Justice's
role in the interactions between the Crown Dependencies and other
Whitehall departments. We make recommendations about the changes
which are required, in terms of both policy and practice, in order
to improve the Ministry of Justice's management of the relationship
between the United Kingdom and the Crown Dependencies.
1 Crown Dependencies: evidence taken, First
Report of the Justice Committee Session 2008-09, HC 67 Back
2
See Appendices 1 and 2 for an overview of the geography, people,
government, economy and constitutional position of each jurisdiction. Back
3
Part XI of Volume 1 of the Report of the Royal Commission on
the Constitution, 1969-1973, Cmnd 5460, paras 1370-1372;
paras 1430-1434 Back
4
Foot, M., (2009) Final report of the independent Review of
British offshore financial centres. Available at http://www.hm-treasury.gov.uk/indreview_brit_offshore_fin_centres.htm Back
5
Ev 69 Back
6
See UK Borders Agency's Final Impact Assessment of Common Travel
Area Reform, available at http://www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/consultations/strentheningthecommontravelarea/final_ia_of_cta_reform.pdf?view=Binary;
see also http://www.ukvisas.gov.uk/en/ecg/commontravelarea Back
7
See Appendix 2 for a short summary of the historical position. Back
8
Q 15, oral evidence on The Work of the Ministry of Justice,
7 October 2008, HC 1076-i Back
9
Part XI of Volume 1 of the Report of the Royal Commission on
the Constitution, 1969-1973, Cmnd 5460 Back
10
Part XI of Volume 1 of the Report of the Royal Commission on
the Constitution, 1969-1973, Cmnd 5460,
paras 1360-1363; Ev 86 Back
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