Conclusions and recommendations
Relationships between the Ministry of Justice
and the Crown Dependencies
1. 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. (Paragraph 15)
2. 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.
(Paragraph 17)
3. 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. (Paragraph 27)
4. 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. (Paragraph 35)
Good government
5. We
note the depth of feeling of some witnesses to this inquiry who
have indicated serious grievances with various aspects of the
governance of the Crown Dependencies and their desire for the
UK Government to step in to address their concerns. However, 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 our view,
only to be set aside in the most serious circumstances. We note
that the restrictive formulation of the power of the UK Government
to intervene in insular affairs on the ground of good government
is accepted by both the UK and the Crown Dependency governments:
namely, that it should be used only in the event of a fundamental
breakdown in public order or of the rule of law, endemic corruption
in the government or the judiciary or other extreme circumstance,
and we see no reason or constitutional basis for changing that
formulation. (Paragraph 41)
6. As a matter of
general principle, we note that, in a very small jurisdiction,
there must always be the possibility that individuals wielding
very significant economic, legal and political power may skew
the operation of democratic government there. Just as the establishment
of democratic government in Sark was a matter of good government,
any threat to the ability of that system to operate fairly and
robustly has the potential to raise good government issues which
might require UK Government intervention. This is a matter on
which the Ministry of Justice needs to keep a watching brief.
(Paragraph 49)
Legislation and treaties
7. 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. (Paragraph 63)
8. 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. (Paragraph 65)
9. 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. (Paragraph 66)
10. 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. (Paragraph
67)
11. 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. (Paragraph 73)
International relations
12. We
support the desire of the Island governments to set up representative
offices in Brussels. We consider that such a step would be valuable,
both in terms of acquiring better access to information about
EU measures which might affect them and in terms of raising their
own international profiles. (Paragraph 78)
13. The representation
of the interests of the Crown Dependencies on the international
stage by the UK Government is not optional, according to whether
or not the interests of the Islands are congruent with those of
the UK: it is the UK Government's duty. In cases of conflict,
the Ministry of Justice must endeavour to find a mechanism for
representation which will faithfully present and serve the interests
of both parties. (Paragraph 89)
14. We recommend that
the Ministry of Justice considers alternative models for the representation
of the interests of the Crown Dependencies internationally. It
is imperative that a means is found by which the Islands are represented
effectively and we strongly recommend that certain officials,
either from the UK or from the Islands, be specifically designated
as representing the Islands in international negotiations. Clear
and unambiguous representation of the Crown Dependencies' interests
on the international stage will assist them in building their
relationships with third countries and international organisations
and, consequently, help them to develop their international identities,
as envisaged in the Framework document agreed with the UK (Paragraph
92)
15. For the same reasons,
in cases where international activity leads to the creation of
legal relations, we strongly support the increased use of Letters
of Entrustment in appropriate circumstances, allowing the Crown
Dependencies to enter into binding agreements themselves without
the need for direct ratification from the UK. (Paragraph 93)
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