Crown Dependencies - Justice Committee Contents

4  Legislation and treaties

Island legislation

    The [Privy] Council's main business in connection with the Island is to deal with legislative measures submitted for ratification by Order in Council. The [Justice] Secretary is the member of the Council primarily concerned with the affairs of the Islands and is the channel of communication between them and the Crown and the United Kingdom Government. He has the duty to see that the Islands' legislative measures are scrutinised and that there is consultation with any other Ministers who may be concerned, including, if necessary, the Law Officers of the Crown, before the measures receive the Royal Assent.

    — Kilbrandon Report, para 1361

50. Legislation passed by an Island parliament is then passed to the UK for scrutiny prior to the granting of Royal Assent.[63] The Sovereign (or the Lieutenant Governor in the case of much Manx legislation) grants Assent on the advice of her Privy Council. For these purposes the Justice Secretary is the relevant Privy Councillor.

51. The Justice Secretary can recommend that Assent be withheld, although the grounds for doing this are not entirely clear and it is a rare occurrence.[64] It would certainly be legitimate to withhold Assent if the legislation would put the relevant Island in breach of an international obligation which applies to the Island and for which the UK is responsible. Island legislation must comply with international human rights obligations, for example, and it was on this basis that Sark's first attempt at a Reform Law was refused.[65] The need to ensure "good government" of the Islands is another possible ground for legislative intervention, although more difficult to determine. The UK Parliament also appears to have competence to legislate for the Crown Dependencies in the areas of defence, nationality, citizenship, Succession to the Throne, extradition and broadcasting, by implication limiting the competence of the Island jurisdictions in these areas. Nor are these areas thought to be exhaustive.[66]

52. It is clear is that the UK has, on occasion, leant heavily on Island governments to modify legislation at stages prior to submission for Royal Assent. This may have been on the grounds that the legislation was in some sense constitutionally defective, although we have been told about cases where intervention was clearly on policy grounds. In practice, it is informal dialogue, rather than the formal withholding of Royal Assent, which is usually the mechanism for bringing about a change in Island legislation.[67] The Isle of Man has gone a step further than the Channel Islands and has formalised the process of passing draft legislation to the Ministry of Justice before it is passed by the Manx legislature, although it is still scrutinised again by the Ministry of Justice afterwards.

53. The Ministry of Justice told us that, in 2008, it processed over 100 Island Laws to Royal Assent. For each piece of insular legislation, there are multiple layers of scrutiny. First, legislation is checked for compliance with international and other obligations by the Attorney General of the relevant Island jurisdiction. It is then checked again by lawyers at the Ministry of Justice. Where there are particular policy issues which are within the remit of another Whitehall department, the legislation is then passed to the lawyers in that department for further, specialist, scrutiny.[68]

54. The processing of Island legislation prior to the granting of Royal Assent is sometimes subject to significant delay and this is a matter of considerable concern to the insular authorities.[69] Within the Bailiwick of Guernsey, delays are sometimes exacerbated for Alderney and Sark because their legislation has an additional level of scrutiny from Guernsey before it goes to the UK for Royal Assent.

55. The Guernsey government told us that, under normal circumstances, it is expected that Royal Assent will take between 16 and 20 weeks. However, where it takes considerably longer than this, there is sometimes no "adequate communication explaining the reasons".[70] There may be practical consequences for Island residents of delays in getting legislation on the statute book, for example they may be unable to solve a problem or close a loophole until the law is passed. More fundamentally, however, the Island governments state that insular legislation represents the will of an independent parliament, democratically elected by its people; and delays in obtaining Assent frustrate the will of that parliament. The government of both Jersey and the Isle of Man make similar calls for a formalised agreement on processing times for legislation, tracking procedures and an annual assessment of performance.[71]

56. It is worth noting that an application by Guernsey for Royal Assent was rejected in relation to primary legislation which contained provisions which would have allowed the States of Guernsey to amend by way of ordinance (secondary legislation) provisions contained in primary legislation. Such provisions are commonly known as "Henry VIII clauses". Since ordinances are not subject to the need for Royal Assent and, therefore, scrutiny by the UK Government, such a mechanism would have reduced substantially the delay between a law being passed by the States of Guernsey and its coming into effect. The Ministry of Justice did not agree that this was appropriate, although we note that the use of Henry VIII clauses in UK legislation is not uncommon.[72] A side-effect of this dispute was that Royal Assent for Laws passed by Chief Pleas in Sark and the States of Alderney was held up pending resolution of the issue with Guernsey.

57. There are several factors which may contribute to delay in the scrutiny process within the UK Government. First, officials in the Ministry of Justice and other Whitehall departments are extremely busy and, where the scrutiny of insular legislation is competing for resources against urgent UK policy and legislation, the latter is likely to be prioritised.

58. Second, it is argued by the insular authorities that the process of vetting by UK Government officials is inefficient because three separate sets of lawyers are essentially performing the same function. They suggest that delays could be cut significantly if the certificate of the insular Attorney General that the legislation does not breach international obligations were relied upon, without detailed scrutiny by UK Government lawyers (Ministry of Justice and policy department), particularly where the legislation is of domestic application only. Indeed, the vast majority of insular legislation passed for assent is domestic in nature, so a considerable amount of time and resources might be saved in this manner.

59. Third, there is suspicion that UK Government officials, both in the Ministry of Justice and in relevant policy departments, are not clear on the constitutional grounds for UK Government intervention in Island legislation and are, in fact, checking the legislation for congruence with UK policy. In doing so, they are actually doing more work than is strictly necessary or, indeed, constitutionally legitimate. However, despite the Ministry of Justice's efforts to educate other Whitehall departments, we were told during our visits that the Island governments believe that the strict constitutional position is not widely understood.

60. Even where the position was understood, the Ministry of Justice itself admits that balancing UK and Island interests, which may conflict, when reaching a policy decision "can be a difficult and involved process in which the [Crown Dependencies] concerns cannot always take priority".[73] This suggests that, where there are conflicting interests, interference by the UK Government in the policy of the Crown Dependency administrations may be motivated by wider political concerns, even though it is not legitimate on constitutional grounds. This is particularly so where there is an international dimension to the issue and there is a risk of an adverse reputational impact on the UK which arises out of the lack of international understanding of the independence of the Crown Dependencies.[74]

61. There are other areas of Island policy which, whilst not having a reputational impact on the UK, may affect the ability of the UK to carry out its own policies. An example would be the e-gaming legislation in Alderney, which allows the provision of a gambling service based in Alderney which is accessible by UK residents but is not subject to UK gaming regulation. As a jurisdiction, Alderney is almost completely dependent on its e-gaming industry as a source of income and so it has a very strong interest in the continuation of that business. A further example is the controversial sale of "health foods" by mail order to UK residents. We were told that the retailers of these products appear to be based in a third country, but correspondence is through a Jersey Post Office Box which, to its embarrassment, the Jersey government finds itself unable to close down for legal reasons. The controversy arises out of the fact that UK retailers of health foods are subject to UK and EU regulations which do not apply in the Channel Islands. The claim is, therefore, that the UK retailers are experiencing unfair competition from companies operating through the Channel Islands: first, because those companies are able to make claims for their products that UK retailers would be prevented from making; and, second, because they are selling products containing ingredients which would be illegal if sold in the UK. It is claimed that companies operating through the Channel Islands are also subject to a more beneficial tax regime which means that they can undercut the prices offered by UK companies.[75]

62. Such cases do not raise constitutional issues, but do raise questions of whether the Islands are "good neighbours".[76] The need for and legitimacy of discussions between the UK and the Crown Dependencies on such issues was recognised by the Island governments, particularly in the Isle of Man, but the Island governments may not always appreciate that what is financially beneficial to them and creates local jobs may have a disproportionately adverse effect on UK social policies and UK business.

63. Returning to the constitutional grounds for UK scrutiny of Island legislation, Farida Eden, a constitutional law specialist at the Ministry of Justice, explained the process of scrutinising Island legislation to us:

    What happens is that a piece of legislation comes into us and we think maybe the drafting is not quite tight enough or we think there might be a human rights point, and we will get on the phone to our opposite numbers in one of the Crown Dependencies and talk them through it. It is a sort of partnership rather than us taking a hard line and saying we are going to refuse Royal Assent. Sometimes they will explain something to us and we will say that makes sense or sometimes we might seek assurances as to how a piece of legislation is actually going to be operated in practice. It is perhaps a more fluid process than just simply refusing Royal Assent to a piece of legislation.[77]

The Justice Secretary also told us that there is sometimes intervention on a drafting point and gave the example of provisions relating to criminal offences which he considered rather broad and which he did not think "would have had an easy passage" in the UK.[78] We considered that these two answers gave a rather broad account of the circumstances in which the Ministry of Justice considered it legitimate to intervene in Island legislation. It is the informality of this process, together with these rather broad responses, which leads us to suspect that the UK Government does, indeed, influence Island legislation at the policy level. There seems to be a rather paternalistic approach to Island legislation, almost as if the UK Government is unwilling to let its junior Island partner make a slip. This is not, however, the Ministry of Justice's role. The Islands are more than adequately advised by their own Law Officers and parliamentary counsel. It seems a strange use of Ministry of Justice resources which, we are told, are stretched, to engage in a kind of legislative oversight which does not restrict itself to the constitutional grounds for scrutiny.

64. The Ministry of Justice is currently working on a revised set of protocols for processing Island legislation in order to make the process more efficient and timely, although we understand that this work is being held up by a lack of consensus amongst the Crown Dependencies themselves.[79]

65. We do not see the need for multiple levels of intense scrutiny of insular legislation, prior to Royal Assent, for laws which are obviously of domestic application only. In such cases, the judgement of the insular Law Officers should normally be relied upon, with a reduced level of scrutiny by Ministry of Justice lawyers.

66. For more complex legislation where it is desirable to have further scrutiny by the Ministry of Justice and other Whitehall departments, such scrutiny should be carried out expeditiously, so as not to frustrate the will of a democratically elected parliament. To this end, the Ministry of Justice should endeavour to educate the relevant officials in other departments in relation to their precise responsibilities and, importantly, the constitutional limits on any intervention they may feel inclined to make.

67. We urge the Ministry of Justice and the governments of the Crown Dependencies to redouble their efforts to agree a revised set of protocols for the scrutiny of insular legislation. We consider that this is an ideal opportunity to set out with clarity the means by which the UK's responsibilities for insular legislation may be discharged; the constitutional grounds on which insular legislation may be challenged; the responsibilities of ministers and officials at each stage of the scrutiny process; and appropriate time limits for processing legislation prior to Royal Assent. In streamlining the system, best use can be made of the limited resources available within the UK Government in general and the Ministry of Justice in particular.

UK legislation and international treaties applying to the Crown Dependencies

    The Islands are not represented in Parliament. Acts of Parliament do not extend to them automatically, but only if they expressly apply to the islands or to all your Majesty's dominions or do so by necessary implication. … By convention Parliament does not legislate for the Islands without their consent in matters of taxation or other matters of purely domestic concern.

    — Kilbrandon Report, para 1362

    It is the practice for the insular authorities to be consulted before an international agreement is reached which would apply to them. This is particularly necessary in any case in which application of the agreement to the islands would require legislation of a kind which would ordinarily be enacted in the Island legislatures.

    — Kilbrandon Report, para 1363

68. Some say that Acts of the UK Parliament can only be extended to the Islands with their express consent.[80] The Kilbrandon Report seems to suggest a somewhat different position, whereby Acts of Parliament apply to the Islands where this is expressly stated or by necessary implication. However, the Report adds that, by convention, Parliament does not legislate for the Islands on domestic matters, including taxation, without their consent.[81] This formulation of the constitutional position fits with the idea that the UK should not have responsibility without power, an argument made forcefully by the Home Office, then the department with responsibility for the Crown Dependencies, to Kilbrandon.[82]

69. Nevertheless, it is normal practice that consent is sought and the process is generally unproblematic.[83] However, the insular authorities have expressed concern that they have, on occasion, not been informed in a timely manner of important measures affecting them.[84] In general, the relevant legislation has been within the remit of a Whitehall department other than the Ministry of Justice. This lack of consultation has been characterised as disrespectful and arrogant, although an alternative view would be that it is simply a function of ignorance in Whitehall of the constitutional position of the Crown Dependencies rather than any particular malice towards them.

70. In cases where the Crown Dependencies have been made aware of measures affecting them at a very late stage, there has been limited, if any, opportunity for consultation and negotiation on the terms of the relevant measure. The Island administrations have, therefore, felt as if these measures were imposed by the UK Government in a clumsy manner.

71. A good recent example was a clause introduced into the Borders, Citizenship and Immigration Bill (later the 2009 Act) which would have modified the terms of travel within the Common Travel Area[85] so that residents of the Crown Dependencies would legally be subject to immigration controls when entering the UK, even if those controls were not universally applied.[86] The Government introduced this clause and, although it was ultimately removed, the manner of its introduction caused offence in the Crown Dependencies, a large majority of whose residents are, after all, British citizens. It is interesting to note that the UK Border Agency states that "We remain committed to seeking [the introduction of these measures] at some point in the future".[87]

72. The Island administrations also express concern about late notification of EU measures which, whilst not applicable to them directly, nevertheless have a practical effect on their administration and policy. The same is true of international treaties, particularly where the Crown Dependencies are not at the negotiating table. The international dimension will be discussed further in the next chapter, but the point to be made here is simply that the constitution dictates, and common courtesy demands, that the Crown Dependencies be consulted in good time in relation to UK and international measures which are to apply to them.

73. We recommend that the protocols currently being developed by the Ministry of Justice set out clear guidelines for consultation with the Crown Dependencies on UK legislation, EU measures and international treaties affecting them. Reasonable time limits should be built into the system so that the Island governments do not find themselves rushed into important decisions without an appropriate amount of time for reflection, discussion and negotiation. It may be helpful to include the category of Crown Dependencies more prominently on the legislative checklists consulted by UK Government departments when drawing up proposals for new legislation.

63   For Channel Island legislation, Royal Assent is granted by the Queen in Council. For Isle of Man legislation, the granting of Royal Assent is delegated to the Lieutenant Governor for many purposes. The Ministry of Justice will still review the legislation prior to indicating to the Lieutenant Governor that he may grant Assent. Back

64   Q 90 Back

65   Qq 14, 17, 34, oral evidence on The Work of the Ministry of Justice, 7 October 2008, HC 1076-i Back

66   Young, R., (2001) Jersey Law Review 5(2), available at  Back

67   Qq 11, 47 Back

68   Ev 89 Back

69   Q 99; Ev 46; Ev 89 Back

70   Ev 94 Back

71   Ev 47 Back

72   Qq 51, 95; Ev 40 Back

73   Ev 88 Back

74   Q 25, oral evidence on The Work of the Ministry of Justice, 7 October 2008, HC 1076-i Back

75   Ev 61; Ev 90 Back

76   Q 45 Back

77   Q 92 Back

78   Q 26, oral evidence on The Work of the Ministry of Justice, 7 October 2008, HC 1076-i Back

79   Q 75; Ev 89 Back

80   Ev 38; Ev 46 Back

81   Part XI of Volume 1 of the Report of the Royal Commission on the Constitution, 1969-1973, Cmnd 5460, para 1362 Back

82   Part XI of Volume 1 of the Report of the Royal Commission on the Constitution, 1969-1973, Cmnd 5460, para 1433 Back

83   Q 55 Back

84   Ev 92; see also Q 103 Back

85   The Common Travel Area includes the UK, the Republic of Ireland, and the Crown Dependencies. Back

86   Ev 83 Back

87 Back

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