4 Legislation and treaties|
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. 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.
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.
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.
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.
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
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.
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
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
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
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.
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.
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".
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.
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.
62. Such cases do not raise constitutional issues,
but do raise questions of whether the Islands are "good neighbours".
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.
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.
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.
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
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.
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
Kilbrandon Report, para 1363
68. Some say that Acts of the UK Parliament can only
be extended to the Islands with their express consent.
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. 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.
69. Nevertheless, it is normal practice that consent
is sought and the process is generally unproblematic.
However, the insular authorities have expressed concern that they
have, on occasion, not been informed in a timely manner of important
measures affecting them.
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
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.
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".
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
Q 90 Back
Qq 14, 17, 34, oral evidence on The Work of the Ministry of
Justice, 7 October 2008, HC 1076-i Back
Young, R., (2001) Jersey Law Review 5(2), available at http://www.jerseylaw.je/
Qq 11, 47 Back
Ev 89 Back
Q 99; Ev 46; Ev 89 Back
Ev 94 Back
Ev 47 Back
Qq 51, 95; Ev 40 Back
Ev 88 Back
Q 25, oral evidence on The Work of the Ministry of Justice,
7 October 2008, HC 1076-i Back
Ev 61; Ev 90 Back
Q 45 Back
Q 92 Back
Q 26, oral evidence on The Work of the Ministry of Justice,
7 October 2008, HC 1076-i Back
Q 75; Ev 89 Back
Ev 38; Ev 46 Back
Part XI of Volume 1 of the Report of the Royal Commission on
the Constitution, 1969-1973, Cmnd 5460, para 1362 Back
Part XI of Volume 1 of the Report of the Royal Commission on
the Constitution, 1969-1973, Cmnd 5460, para 1433 Back
Q 55 Back
Ev 92; see also Q 103 Back
The Common Travel Area includes the UK, the Republic of Ireland,
and the Crown Dependencies. Back
Ev 83 Back