Crown Dependencies - Justice Committee Contents

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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