2 Relationship between the Ministry
of Justice and the Crown Dependencies
10. The Ministry of Justice is the Department charged
with administration of the relationship between the UK Government,
on behalf of the Crown, and the Crown Dependencies.[11]
In evidence to us on 7 October 2008, the Justice Secretary, the
Rt Hon Jack Straw MP, described the responsibilities of the Ministry
of Justice as including international relations; defence; ensuring
that the Crown Dependencies meet their international obligations,
including human rights obligations; and the "good government"
of the islands.[12] The
limits of these responsibilities in relation to its Dependencies
have never been tested, and this contributes to the Justice Secretary's
description of the constitutional relationship as a "subtle
one".[13]
11. The Ministry of Justice has outlined the broader
work of the Crown Dependencies Branch, which sits inside the International
Directorate of the Ministry of Justice.[14]
The Crown Dependencies Branch:
- holds the policy responsibility
for the UK's relationship with the Crown Dependencies;
- provides the main channel of communication between
the Crown Dependencies and the UK Government on a full range of
policy concerns and issues raised by both the Crown Dependencies
and the UK;
- ensures the development of UK policy takes the
interests of the Crown Dependencies into account, where appropriate;
- processes legislation submitted for Royal Assent
by the Crown Dependencies (in the case of the Isle of Man, the
Lieutenant Governor possesses a delegated power to grant Royal
Assent for many types of legislation and the Ministry of Justice
will signal to him whether or not it is appropriate for him to
use that power)consults with the Islands on extending international
instruments and UK legislation to them; where appropriate;
- recommends crown appointments in the Islands.[15]
The Ministry of Justice emphasises the extent to
which the relationship with the Crown Dependencies is a shared
responsibility across government, with the Ministry relying on
other departments for advice, assistance and international representation.[16]
12. Within the Ministry of Justice policy team dedicated
to the Crown Dependencies, three operational staff deal with Island
legislation, Crown appointments and honours. A further three
policy officials deal with a range of policy issues and provide
practical advice and support to the Crown Dependencies when required.
It is their responsibility to ensure that the Islands' interests
are taken into account in UK policy development and they work
with the Islands on the development of their own policies, particularly
where these have relevance to the UK or an international dimension.
This team is supported by four lawyers, who advise the policy
team and other UK Government departments. They also work directly
with the Islands, for example, when working on the extension of
UK enactments to the Crown Dependencies by Order-in-Council or
to resolve questions about insular law submitted for Royal Assent.[17]
13. The Crown Dependency governments are, with some
important caveats, content with their relationship with the Ministry
of Justice.[18] When
we visited the Channel Islands and the Isle of Man, we were told
that Ministry of Justice officials generally understood the constitutional
position of the Crown Dependencies with respect to the UK; understood
that there were differences between the Islands in terms of their
constitutions, politics and interests; worked hard to support
the Crown Dependencies; and that relationships with Ministry of
Justice officials were generally good. We heard some concerns
about the extent to which the Justice Secretary was engaged with
and understood issues relating to the Crown Dependencies, but
it was accepted that Lord Bach, Under Secretary of State for Justice,
did take an active role in the relationship.[19]
14. We note that the Justice Secretary agrees to
answer parliamentary questions on matters which might be considered
domestic issues for the Crown Dependencies and nothing to do with
the Ministry of Justice. He acknowledges that some people argue
that he should not do so and should leave such matters for the
Islands themselves.[20]
Nevertheless, he told us that:
… No-one has ever said to me, "You
should not answer this parliamentary question because the Crown
Dependencies are not part of the United Kingdom" because
it is part of my ministerial responsibility. It does not directly
arise from being Lord Chancellor, it is the distribution of business.
I did it when I was Home Secretary because it used to be in the
Home Office.[21]
The problem with the Justice Secretary's justification
is that it does not distinguish between his constitutional responsibilities
for the Crown Dependencies—which are limited to certain
issues including good government, international relations, international
obligations and defence—and other, more general matters
which may be of policy relevance to the UK but are not within
his responsibilities as Justice Secretary and Lord Chancellor.
This can give rise to an expectation amongst some Islanders that
the Justice Secretary has responsibilities and powers in areas
which are, in fact, outwith his constitutional duties.
15. We believe that, in agreeing to answer Parliamentary
Questions on topics which are essentially domestic matters for
the Crown Dependencies, the Justice Secretary is clouding the
issue of what, constitutionally speaking, is properly the responsibility
of the UK Government and what should properly be left to the Island
governments. The Justice Secretary should make explicit in his
answers to Parliamentary Questions whether or not he considers
the matter addressed to fall within his constitutional responsibilities.
16. All of the Island governments, either in written
evidence or during our visits, have been explicit that they believe
the Ministry of Justice Crown Dependencies team to be under-resourced.[22]
As a result, the Guernsey government considers the team to be
reactive, rather than proactive, and suspects it of creating "bottlenecks"
in transmitting information to the Island.[23]
This is manifested in two ways. First, there are sometimes serious
delays in processing Island legislation prior to Royal Assent.[24]
Second, there are sometimes delays in communicating to the Islands
matters which require their attention or consent, leaving them
with a very limited amount of time to consider the issues and
with a feeling that they have been pressured into making a decision
quickly against their interests. The Isle of Man government, for
example, states that the UK Government has, on occasion, failed
to leave adequate time for consultation on international treaties
which are to be applied to it.[25]
It calls for greater awareness across the UK Government of the
need to consult the Crown Dependencies in a timely manner on issues
affecting them.[26] The
authorities in both Alderney and Sark have told us that communication
between them and the UK Government is sometimes very slow or even
non-existent, either because they are forgotten or because communication
with them may be routed through Guernsey.[27]
17. Given that the Crown Dependencies team at
the Ministry of Justice appears to struggle with the resources
it has, we suggest that a reappraisal of the constitutional duties
of the Ministry of Justice might be a timely step in the right
direction. The Ministry of Justice should prioritise those duties
and restrain itself from engaging in areas of work which are outwith
its constitutional remit.
Relationship between other Whitehall
departments and the Crown Dependencies
18. The Crown Dependencies team at the Ministry of
Justice is responsible for ensuring that other Whitehall departments
have the necessary advice and information about the constitutional
position of the Crown Dependencies and are aware of their responsibility
to take the Islands' interests into account in formulating UK
policy and legislation.[28]
The Ministry of Justice told us that the team takes a "proactive
approach to this, engaging key stakeholders across government
on issues concerning the [Crown Dependencies] and using opportunities
such as the recent seminars organised by DEFRA to explain the
constitutional position of the [Crown Dependencies]".[29]
19. There are other resources which provide UK Government
departments with information about the Crown Dependencies. For
example, the Cabinet Office provides a Guide to Making Legislation,
which includes a checklist of tasks to be completed by departments
in preparation for the introduction of a Bill.[30]
This checklist refers to the constitutional position of the Crown
Dependencies; the need to obtain consent from the insular authorities
in appropriate cases; and the need to make contact through the
International Directorate of the Ministry of Justice.[31]
Departments can also access a Background Briefing and a
Guide to Government Business involving the Channel Islands
and the Isle of Man prepared by the former Department for
Constitutional Affairs.[32]
Both these documents set out similar information about the constitutional
position of the Crown Dependencies; the considerations Whitehall
departments much take into account when conducting business which
may affect the Crown Dependencies; and the correct lines of communication
when making contact with the insular authorities.
20. If the insular authorities wish to discuss policy
in a particular area with the relevant Whitehall department, or
vice versa, the Ministry of Justice is charged with mediating
that contact.[33] The
lack of an established relationship with the policy department,
coupled with the need to communicate through the Ministry of Justice,
means that the insular authorities often feel at a significant
disadvantage and unable to put across their point of view effectively.
The Guernsey government has stated that it would like more direct
contact with other UK Government departments in order to ensure
that its position is represented accurately and believes that
awareness of Crown Dependencies issues across the UK Government
is inadequate.[34] It
told us that:
On occasions, it appears that other UK Departments
[other than the Ministry of Justice] overlook seeking input from
Guernsey until comparatively late in the formulation of their
positions, meaning that the consultation process is not as effective
as it should be.[35]
21. Nevertheless, there are occasions when the insular
authorities talk directly to Whitehall departments with which
they have an established relationship, usually at official level.
Where this works, the insular authorities say they find it helpful
as they are able to present their interests and views directly
to those charged with the relevant policy area, rather than relying
on the advocacy of the Ministry of Justice.
22. The Island governments expressed serious reservations
about the extent to which their constitutional position is understood
across Whitehall, arguing that this lack of understanding had
led to some unfortunate consequences.[36]
First, there is concern that the UK Government is interfering
illegitimately with policy formulated by the democratically elected
governments of the Crown Dependencies. Second, the Island governments
are frustrated that the Islands' interests are not always taken
into account in the formulation of UK policy, either at all or
in sufficient time for them to have significant input into the
outcome of the policy-making process. Third, where the interests
of the UK and the Crown Dependencies conflict, the insular governments
have a sense that their interests will always be subordinate to
those of the UK.
23. These factors are major barriers to an effective
relationship between the Crown Dependencies, the relevant Whitehall
policy departments and even, to a certain extent, the Ministry
of Justice itself. The Islands have a highly developed sense of
their own independence as democracies and, what is more, they
see significant differences between themselves in terms of constitution,
government and interests. There is an additional layer of complexity:
within the Bailiwick of Guernsey, there are three democratically
elected bodies—the States of Guernsey, the States of Alderney
and Chief Pleas in Sark—each with varying degrees of legislative
and executive power.
24. Representatives of all five democratically-elected
authorities have expressed to us frustration that those they are
dealing with in the UK Government sometimes fail to distinguish
between them, confuse their interests—which may be different—and
even confuse them with the Overseas Territories. The latter is
a particularly sore point in relation to the financial services
sector, where the insular authorities are at pains to point to
the conclusions of the Foot Report that the Crown Dependencies
are, in fact, extremely well regulated, whereas the same could
not universally be said of the Overseas Territories.[37]
25. The question of "identity" is of great
concern to the Crown Dependencies and its presentation, both within
the UK and internationally, is of the highest importance to them.
Whilst it is the express duty of the Ministry of Justice to inform
others across Whitehall of the constitutional position of the
Crown Dependencies and the appropriate approach of the UK Government
towards them and their interests, the Justice Secretary himself
told us that:
… although they are self-governing Crown
Dependencies, plainly, it is quite complicated to explain that.
It is quite complicated to explain it here to the cognoscenti,
it is still more complicated to explain it to perhaps abroad or
to international organisations …[38]
26. There is no doubt that the Ministry of Justice
is trying, with the resources it has at its disposal, to raise
awareness about Crown Dependency issues in Whitehall. It is true
that the constitutional position of the Crown Dependencies is
not obvious, but nor is it as complex as the Justice Secretary
seems to suggest. In spreading the message, it would be helpful
if more use were made of secondments of officials between UK Government
departments and the Crown Dependencies, which would assist in
spreading understanding in each of how the other functions.
27. We recommend that the Ministry of Justice
redoubles its efforts to produce a simple account of the constitutional
position of the three Crown Dependencies. This should highlight
their essential independence from the UK, their independence from
each other, and the fact that their interests need to be considered
routinely by all UK Government departments in any area of policy-making
likely to impact on them. Those departments should be left in
no doubt about the limits of legitimate intervention in Island
policy and legislation and about their duties in considering their
interests. In achieving these aims, we believe that it would be
helpful if more use were made of secondments of officials between
UK Government departments and the Crown Dependencies in order
to increase mutual understanding.
The Reciprocal Health Agreements
28. In 2008, the Department of Health decided to
terminate the long-standing Reciprocal Health Agreements with
the Crown Dependencies under which Island visitors to the UK and
UK visitors to the Islands received free health care.[39]
This was, apparently, on the ground that the Agreements did not
represent value for money for the UK taxpayer. The Department
of Health judged that more was spent by the UK on treating Crown
Dependencies visitors to the UK than was spent by the Crown Dependencies
on UK visitors to the Islands. Following termination of the Agreements,
emergency treatment will remain free, but further treatment will
be subject to charge.
29. At some point in the first half of 2008, Jersey
and Guernsey were informed that their Reciprocal Health Agreements
with the UK would be terminated. The Ministry of Justice was told
by the Department of Health on 4 June 2008 that the future of
the Reciprocal Health Agreements with the Crown Dependencies was
"about to be considered by Department of Health ministers".
The Ministry of Justice was then made aware of the final decision
on 30 June 2008, the day before a meeting between Department of
Health officials and representatives of the Crown Dependencies.[40]
At that meeting, Jersey and Guernsey were given formal notice
that their Reciprocal Health Agreements would end and the Isle
of Man was told for the first time that its Reciprocal Health
Agreement would also be terminated.[41]
No Ministry of Justice official was present at that meeting and
the Ministry of Justice accepts that this was unfortunate, but
denies that it would have affected the outcome.[42]
30. The Reciprocal Health Agreements with Jersey
and Guernsey were terminated with effect from 1 April 2009; the
Reciprocal Health Agreement with the Isle of Man was due to be
terminated with effect from 1 April 2010, but an extension of
a further six months was negotiated at the last minute pending
further talks.[43]
31. Island residents have been advised to obtain
health insurance for travel to the UK from now on. This has caused
serious concern to Island residents, particularly the very elderly
or those with pre-existing conditions who find it hard or impossible
to obtain health insurance yet wish to visit friends and relatives
on the mainland. The same is true for UK residents wishing to
visit the Crown Dependencies. However, the UK Government has emphasised
that it does not fund healthcare for UK residents travelling abroad
and visits to the Crown Dependencies should, in its view, be no
different.
32. Islanders have expressed outrage to us at the
abrupt ending of the Reciprocal Health Agreements and have called
for them to be reinstated.[44]
Particularly vocal have been Isle of Man residents who have served
in the UK's armed forces, many of them conscripts in the Second
World War. Unless they receive a war disability pension, they
will not receive free treatment in the UK following termination
of the Agreements. They argue that, since they have in the past
risked their lives for the UK, the very least they are entitled
to is free healthcare when they visit that country.[45]
33. The issue for us is not so much the substance
of the decision itself, but the way in which the proposal was
developed, considered and executed. All three Island governments
have complained that the decision was taken summarily by the Department
of Health, without consultation. The Island governments have said
that the decision to terminate the Agreements was imposed on them
in a high-handed manner, with no opportunity given for discussion
about alternative resolutions or financial packages.[46]
We have been told that the Ministry of Justice tried to assist
the Islands in setting up meetings with the Department of Health,
to no avail. The Isle of Man government did eventually meet with
the Health Secretary, but this meeting was set up following the
intervention of Andrew Mackinlay MP, not with the assistance of
the Ministry of Justice.[47]
34. This case is a good example of how relations
between the Crown Dependencies and the UK Government can be badly
damaged by insensitive handling of an important issue. We say
nothing about the decision itself. However, the Department of
Health should have been aware, and the Ministry of Justice should
have made it aware, that the issue of healthcare is an emotive
one for islanders, many of whom have strong family links with
the UK mainland. The need to obtain medical travel insurance will
present a real obstacle to elderly or infirm islanders who wish
to visit friends and family on the mainland, and vice versa. This
was a decision which required sensitivity of approach and, at
the very least, an opportunity for discussion about alternative
options such as a new financial package which would redress the
financial balance to remove the burden from the UK taxpayer.
35. We believe the lack of consultation, and discussion
of possible options, with each Crown Dependency was a failing
in the UK Government's approach to its responsibilities in deciding
the future of the Reciprocal Health Agreements. The fault appears
to lie primarily with the Department for Health but we are left
with the clear impression that the Ministry of Justice failed
to take responsibility for intervening to ensure that a proper
procedure was followed. It is simply unacceptable for the Isle
of Man to be told, without warning, at a meeting on 1 July 2008
that the Reciprocal Health Agreement would be terminated; and
this in the absence of an official from the Ministry of Justice,
the department charged with ensuring representation of the Island
interests within the UK Government. Nevertheless, we welcome the
extension of the Reciprocal Health Agreement with the Isle of
Man for a further six months pending further negotiations.
11 Prior to the creation of the Ministry of Justice,
both the Home Office and the Department for Constitutional Affairs
have had responsibility for the relationship with the Crown Dependencies. Back
12
Qq 14, 17, oral evidence on The Work of the Ministry of Justice,
7 October 2008, HC 1076-i Back
13
Q 15, oral evidence on The Work of the Ministry of Justice,
7 October 2008, HC 1076-i; Crown Dependencies: evidence taken,
First Report of the Justice Committee Session 2008-09, HC 67,
Ev 6 Back
14
Q 45 Back
15
Ev 87 Back
16
Q 87; Ev 88 Back
17
Ev 87 Back
18
Ev 46; Ev 50; Ev 71; Ev 92 Back
19
See also HC Deb 23 March 2010 Col 123 Back
20
Q 15, oral evidence on The Work of the Ministry of Justice,
7 October 2008, HC 1076-i Back
21
Q 19, oral evidence on The Work of the Ministry of Justice,
7 October 2008, HC 1076-i Back
22
Ev 71; Ev 93-94 Back
23
Ev 93-94 Back
24
Ev 46 Back
25
Ev 70 Back
26
Ev 71 Back
27
Ev 96; Ev 104; see also Qq 76-77 Back
28
Q 84 Back
29
Ev 88 Back
30
Q 105; http://www.cabinetoffice.gov.uk/secretariats/economic_and_domestic/legislative_programme/guide_html.aspx Back
31
http://www.cabinetoffice.gov.uk/secretariats/economic_and_domestic/legislative_programme/guide_html/
preparing_the_bill.aspx; http://www.cabinetoffice.gov.uk/secretariats/economic_and_domestic/legislative_programme/guide_html/crown_dependencies.aspx Back
32
http://www.dca.gov.uk/constitution/crown/bg-info-crown-dependencies.pdf Back
33
Q 85 Back
34
Ev 94 Back
35
Ev 93 Back
36
Ev 93; see also Q 68 Back
37
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;
see Appendix 3 for a summary of the main recommendations. Back
38
Q 25, oral evidence on The Work of the Ministry of Justice,
7 October 2008, HC 1076-i Back
39
The Agreements with Jersey and Guernsey have already come to an
end; the Agreement with the Isle of Man was due to terminate with
effect from 1 April 2010 but has recently been extended for a
further six months pending further negotiations. Repatriation
costs following illness were not covered under the Reciprocal
Health Agreements, so termination has no effect on repatriation
costs incurred by patients. In addition, the termination of the
Reciprocal Health Agreements does not affect the arrangements
by which the Islands purchase treatment on the UK mainland for
Island patients whose medical needs cannot be met on the Island.
Back
40
Q 117 Back
41
Report to Tynwald October 2009: The ending of the Reciprocal Health
Agreement between the United Kingdom and the Isle of Man, available
from http://www.gov.im/dhss/reciprocal_agreement/ Back
42
Q 121. See also Ev 82. Back
43
HC Deb 23 March 2010 Col 32WS Back
44
Ev 101 Back
45
Ev 48 Back
46
Lord Bach disagreed that the manner of the Department of Health
was "high-handed": Q 119 Back
47
Q 123 Back
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