Memorandum submitted by the Ministry of
Justice
EXECUTIVE SUMMARY
Current Relationships
— The Islands are not and never have been
part of the UK but have their own systems of government. Each
Island has different systems, concerns and policies.
— The Crown has ultimate responsibility
for the Islands' good governance and the UK is responsible for
their defence, representation and performance of international
obligations.
— The relationship between the UK and the
Crown Dependencies has evolved over time; the modern relationship
is reflective of the confidence of the islands to determine their
own direction of travel and their readiness to engage directly
with the international community.
Role of the Ministry of Justice
— There is a dedicated policy team responsible
for the Crown Dependencies. Three operational staff deal with,
processing Island legislation, crown appointments and honours.
There are also three policy officials who deal with a wide range
of policy issues and provide practical advice and support to the
Islands when required. The team is also supported by four lawyers.
— Responsibility for the CDs is a shared
government responsibility and the Ministry of Justice is reliant
on access to policy expertise across government. This ensures
that the CDs have access to the best policy advice and that the
CDs' issues are fully considered in the light of UK policy. It
is the role of the Ministry of Justice to ensure that the UK's
responsibilities towards the CDs are understood across Whitehall.
International Representation
— The UK recognises that the CDs have international
identities which are different from that of the UK. As with all
aspects of the CD relationship this is a shared government responsibility
and the department which holds the policy on the particular issues
involved is responsible for their international representation
in that area.
Future Work
— The Ministry of Justice takes a risk-based
approach to the management of the CDs. Our priorities are to maintain
good relationships and work with them to ensure their future as
well-governed, economically stable democracies.
INTRODUCTION
1. This Memorandum is submitted in response
to the Justice Committee's inquiry into the role of the Ministry
of Justice in relation to the Crown Dependencies. It takes account
of the committee's wish to focus particularly on the role of the
Ministry of Justice in managing the United Kingdom's relationship
with the Crown Dependencies and how in practice the UK Government
represents the Crown Dependencies internationally.
2. The purpose of this document is to provide
information on the work of the Crown Dependencies team in the
Ministry of Justice and the UK Government's policy in respect
of its relationship with the Crown Dependencies (CDs).
CURRENT RELATIONSHIPS
3. The relationship between the UK and the
CDs has evolved as a result of historical processes leading to
a body of accepted practice. The CDs are not part of the UK and
they have never been considered as such. They have their own directly
elected legislative assemblies, administrative, fiscal and legal
systems and courts of law. They are not represented in the UK
parliament and in the ordinary course Parliament does not legislate
for them without their consent. In addition to the elected government,
each Island has a Lieutenant-Governor who is Her Majesty's representative.
The role of the Bailiff is also prominent in the Channel Islands
as the civic head of the Island, the speaker of the legislative
assembly and the chief judge. Systems of governance, financial
interests and policy positions vary from Island to Island and
they can never be treated as a single entity.
4. The UK and the Islands have not only
rights but also obligations towards each other. The Crown has
ultimate responsibility for the Islands' 'good governance'. The
UK is responsible for the CDs' defence and international representation.
As they are not sovereign states, the UK is responsible for the
performance of their international obligations such as those contained
in the European Convention on Human Rights. It should be noted
that it is the practice for the CDs to be consulted before an
international agreement is reached which would apply to them.
5. The most recent statement of the constitutional
relationship between the CDs and the UK can be found in the 1973 Kilbrandon
report, although this did not purport to be an authoritative statement
of the relationship. At the time of this report a key concern
was the UK's imminent signature of the Treaty of Rome. The outcome
of that issue was that the CDs now have a special relationship
with the EU under Protocol 3 of the UK's Treaty of Accession
to the European Community. Since that point the relationship with
the UK has continued to evolve, especially to reflect an increasing
international dimension, in part because of the economic output
of the CDs and their focus on providing international financial
services.
6. The modern UK/CD relationship also reflects
the changing constitutions of the CDs and the emergence of systems
of governance in the Islands which increasingly focus on the democratically
elected government. The Islands' stated wish to clarify how the
modern relationship works and their desire to engage internationally
on a more independent basis led to the agreement of a Framework
for Developing International Identity (Framework Agreement) which
was drawn up in 2006. This was intended to clarify (but not vary)
existing constitutional relationships. In these each Island was
recognized as "A responsible stable and mature democracy
with its own broad policy interests and which is willing to engage
positively with the international community on a wide range of
interests." All the Framework Agreements follow the same
wording—a sample one is attached for your information.
7. The Framework Agreement is indicative
of the trend towards the increased desire and willingness on the
part of the Islands to engage directly internationally. The Ministry
of Justice is supportive of this wish, within the parameters of
the constitutional relationship, and sees it as indicative of
a positive trend towards the Islands taking control of their own
identity and long-term goals. The team of Officials responsible
for the CDs within the Ministry of Justice very much operate on
the basis that the CDs are confident in the desired direction
of travel for each Island and have a clear idea of how they wish
to engage with relevant bodies both in the UK and internationally.
8. To enable the CDs to play a more direct
role in the conduct of their international relations a system
has developed whereby the Islands have been entrusted to negotiate
specified agreements (Tax Information Exchange Agreements) directly
with certain other states. As the UK remains responsible for the
Islands' international relations, the entrustment is subject to
the condition that the proposed final text of the agreement is
submitted to the Ministry of Justice for approval before signature.
This represents an important way in which the Ministry has supported
the CDs in developing their own international identities. The
process has been working well and the MOJ see entrustments as
very much as part of way forward in terms of the Island's international
aspirations.
ROLE OF
THE MINISTRY
OF JUSTICE
AND UK GOVERNMENT
GENERALLY
9. There is a dedicated policy team responsible
for the CDs. Three officials are involved in the operational aspects
of the work, processing Island laws for royal assent, crown appointments,
and honours. There are also three policy officials working exclusively
on CD issues with line management support as appropriate. They
deal with live policy issues ensuring the concerns of the CDs
are taken into account as UK policy develops and working with
the CDs on the development of their own policies especially where
these have a UK or international dimension. There are also four
departmental lawyers involved in providing advice to the policy
team and other government departments in respect of the CDs. Lawyers
also work directly with lawyers in the CDs, where appropriate,
for example when working on the extension of UK enactments to
the Islands by Orders-in-Council or in order to resolve queries
in respect of Island laws submitted for royal assent.
10. The Crown Dependencies Branch within
the International Directorate has a number of roles:
— Holding the policy responsibility for
the UK/CD relationship
— Providing the main channel of communication
between the CDs and the UK government on a full range of policy
concerns and issues raised by both the CDs and the UK
— Ensuring development of UK policy takes
the CDs into account where appropriate
— Processing legislation from Jersey, Guernsey
and the Isle of Man which is submitted for Royal Assent or for
agreement that the Lieutenant-Governor of the Isle of Man may
exercise his delegated power to grant Royal Assent
— Consulting with the Islands on extending
international instruments and UK legislation to them where appropriate.
— Recommending crown appointments in the
Islands.
11. The Crown has ultimate responsibility
for the good governance of the Islands which means that, in addition
to the above duties, the Ministry of Justice takes an active interest
in a wide range of issues, especially anything that could have
potential ramifications for the current and future governance
of the Islands and their long-term sustainability. The term "good
governance" is not one we have defined in this context and,
in respect of our day-to-day discussions with the Islands, we
consider it proper to assist the Islands in dealing with a broad
range of constitutional, social and economic issues. We are available
to actively assist the Island authorities, providing practical
help to deal with these important issues and ensure that when
needed the authorities are able to access appropriate UK advice
and support. For example, we have provided assistance to Alderney
to allow them to further develop their tidal power scheme which
has the potential to generate significant income for the Island.
We have also been recently contacted by the Government of Sark
who are seeking our support as they undertake long-term population,
resource and infrastructure planning.
12. A crucial aspect of the team's work
is to maintain and build excellent relationships with officials
and governments in each of the CDs. This is vital to be able to
ensure open and honest dialogue on a multitude of issues. The
CDs recognise this need as well and together we have been able
to develop very helpful, mutually beneficial relationships. We
have had to discuss a variety of difficult issues over the years
such as the import of "tasers" which is discussed below;
it is the nature of our overall relationships which allow us to
discuss these issues frankly and reach mutually acceptable ways
forward.
13. It is important to emphasise that overall
responsibility for the CDs is a shared government responsibility.
We frequently rely on other government departments to either provide
advice and assistance to the CDs or represent them internationally.
The team deals with an enormous variety of live policy issues.
A sample of live issues includes finance and tax, entrustments,
crime and policing, environmental issues, human rights, constitutional
reform, shipping and space. The team is small and it would clearly
not be possible for the team to hold in-depth policy expertise
on such a wide range of issues.
14. Relying on policy expertise across government
ensures that the Crown Dependencies have access to the best expertise
available and that the UK can ensure that the Crown Dependencies
issues in this area are handled appropriately in the context of
the UK's policy concerns. While not every other government department
has prior experience of the UK's constitutional relationship with
the CDs, it is part of the role of the CD team at MOJ to provide
advice and information to other UK government departments to ensure
that both the UK's and CDs' policy concerns are appropriately
taken into account. We take a proactive approach to this, engaging
key stakeholders across government on issues concerning the CDs
and using opportunities such as the recent seminars organised
by DEFRA to explain the constitutional position of the CDs.
15. Both we and our colleagues across Whitehall
have to take into account the CD's policy interests and those
of the UK when reaching a decision. This can be a difficult and
involved process in which the CDs concerns cannot always take
priority. An illustrative example of this was the supply of "tasers"
to the Channel Islands, where their wish to have "taser"
equipment for their police forces had to be balanced against the
UK's concern about maintaining a consistent approach to the application
of EC Council Regulation 1236/2005 concerning the trade in
certain goods which could be used for capital punishment, torture
or other cruel, inhuman or degrading treatment or punishment.
This regulation covers the export of portable electric shock devices,
more commonly known as "tasers".
16. HM Inspectorate of Constabulary Assessment
of the States of Guernsey Police had expressed concern at the
force's lack of "less lethal" firearms. The Channel
Islands therefore applied for export licences so that they could
import "tasers". These were refused. The decision to
refuse the licences was based on the application of the ban. FCO
Ministers felt that an exception could not be made to the export
prohibition. The Channel Islands pressed for the prohibition to
be lifted. FCO, MOJ and BERR met with the Island authorities to
discuss how the Islands could express their concerns on this issue.
17. Discussions across Whitehall went on
for some time afterwards and resulted in a Ministerial approach
from Lord Bach, the Minister with responsibility for the CDs,
to the FCO Minister responsible for licensing policy. The Islands
with the help of MOJ had prepared a detailed case for the FCO
to consider, including their compliance with human rights obligations
and controls on re-export. However FCO Ministers did not feel
it would be right to allow an exception to the ban, on the grounds
that the consistent application of the ban outweighed the case
for making an exception.
INTERNATIONAL REPRESENTATION
18. The Framework Agreements recognise that
the CDs have international identities which are different from
that of the UK. As stated the constitutional obligations of the
UK towards the CDs are a collective government responsibility.
In terms of international representation the policy-holding department
is best equipped to take forward negotiations which the Ministry
of Justice would have neither the expertise nor access to the
correct channels to carry out. The Ministry of Justice supports
this process by providing a channel of communication between the
Islands and the appropriate government department and ensuring
that the constitutional position is fully understood.
19. The issues which arose over the collapse
of the Icelandic banks illustrates this point. HM Treasury has
the requisite policy expertise and access to appropriate channels
to represent the international interests of the Crown Dependencies
in this matter. Treasury had to represent the interests of both
the UK and the CDs on this matter although the position of banks
in the CDs differed significantly from those in the UK. The Treasury
represented the differing concerns of the CDs to the Icelandic
authorities, and in some circumstances assisted the CDs in making
contact with the Icelandic authorities to discuss these issues
in more detail. The Ministry of Justice maintains an active role
in this process as liaison between the CDs and the Treasury to
assist in the discharge of these duties.
Future Work
20. One of our main priorities is to ensure
that the core work the team undertakes is structured in the best
possible way to allow us to provide an excellent service to both
the CDs and other departments alike. The work the team undertakes
is very resource intensive and involves a great deal of consultation
with both the CDs and other government departments, who must in
turn balance the CDs requirements with their own priorities and
resources, so processes need to be as efficient as possible. In
the field of Island legislation for example we processed over
100 Island laws to royal assent stage last year. This required
consultation with the policy holding department on the content
of the law, consideration of the implications of the law by MOJ
lawyers and policy officials and, in some cases detailed discussion
with the Islands about this legislation. This process relies on
all involved understanding clearly the objective of this work
and their role in it. As we are frequently reliant on the support
and advice of colleagues in other government departments we recognise
that finding pro-active ways to improve the knowledge and understanding
of our relationship with the CDs amongst other government departments
is an important part of our work and one where we can improve
and build upon work already underway.
21. As part of this process of clarification
the MOJ is currently revising existing protocols and drafting
new ones to ensure that there is a clear understanding of the
process of extending international instruments and for processing
Island legislation. These are intended to streamline the current
processes and ensure they are carried out in the most efficient
way. The promotion of these new protocols will be a key element
in informing other government departments about the CDs.
22. The CDs' team's approach is to concentrate
on defining core processes and taking a risk-based approach to
the management of issues which arise. Issues are dealt with in
the context of our priorities which are to maintain good relationships
with the CDs and work with them to ensure their future as well-governed,
economically stable democracies.
October 2009
Annex
FRAMEWORK FOR DEVELOPING THE INTERNATIONAL
IDENTITY OF THE ISLE OF MAN
Following the statement of intent agreed on
11 January 2006, the Chief Minister of the Isle of Man and
the UK Secretary of State for Constitutional Affairs have agreed
the following principles. They establish a framework for the development
of the international identity of the Isle of Man. The framework
is intended to clarify the constitutional relationship between
the UK and the Isle of Man, which works well and within which
methods of evolving to help achieve the mutual interests of both
the UK and the Isle of Man.
1. The UK has no democratic accountability
in and for the Isle of Man which is governed by its own democratically
elected assembly. In the context of the UK's responsibility for
the Isle of Man' international relations it is understood that:
— The UK will not act internationally on
behalf of the Isle of Man without prior consultation.
— The UK recognises that the interests
of the Isle of Man may differ from those of the UK, and the UK
will seek to represent any differing interests when acting in
an international capacity. This is particularly evident in respect
of the relationship with the European Union where the UK interests
can be expected to be those of an EU member state and the interests
of the Isle of Man can be expected to reflect the fact that the
UK's membership of the EU only extends to the Isle of Man in certain
circumstances as set out in Protocol 3 of the UK's Treaty
of Accession.
2. The Isle of Man has an international
identity which is different from that of the UK.
3. The UK recognises that the Isle of Man
is a long-standing, small democracy and supports the principle
of the Isle of Man further developing its international identity.
4. The UK has a role to play in assisting
the development of the Isle of Man's international identity. The
role is one of support not interference.
5. The Isle of Man and the UK commit themselves
to open, effective and meaningful dialogue with each other on
any issue that may come to affect the constitutional relationship.
6. International identity is developed effectively
through meeting international standards and obligations which
are important components of the Isle of Man's international identity.
7. The UK will clearly identify its priorities
for delivery of its international obligations and agreements so
that these are understood, and can be taken into account, by the
Isle of Man in developing its own position.
8. The activities of the UK in the international
arena need to have regard to the Isle of Man's international relations,
policies and responsibilities.
9. The UK and the Isle of Man will work
together to resolve or clarify any differences which may arise
between their respective interests.
10. The Isle of Man and the UK will work
jointly to promote the legitimate status of the Isle of Man as
a responsible, stable and mature democracy with its own broad
policy interest and which is willing to engage positively with
the international community across a wide range of issues.
The Rt Hon Lord Falconer of Thoroton QC
Secretary of State
Hon J a Brown MHK
Chief Minister
1 May 2007
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