Crown Dependencies - Justice Committee Contents

Memorandum submitted by the Policy Council of the States of Guernsey


  1.1  Guernsey and Her Majesty's Government, principally through the medium of the Ministry of Justice ("MoJ"), have a relationship founded on mutual respect and support. The day-to-day relationship generally operates satisfactorily. Conventional practices of consultation through meaningful dialogue relating to policy development and international action have recently been clarified in a statement of principles establishing a framework for the development of the international identity of Guernsey.

  1.2  The essential process of consultation, however, does not always run smoothly. Deadlines fixed for responses are sometimes completely unfeasible. The reason underlying the short deadlines can appear to be attributable to officials elsewhere overlooking the need to engage with Guernsey or might arise from the reduction in staff numbers of those charged with handling Crown Dependencies business. Either way, increasing awareness throughout the UK Government of when consideration of Crown Dependency interests is necessary would enhance the coordination role undertaken by the MoJ, thereby improving the overall management of the relationship with Guernsey.

  1.3  UK representation of Guernsey internationally is about striking the right balance. In order to be effective, Guernsey must be afforded an adequate opportunity to influence the position to be taken on its behalf. Guernsey's authorities should not be presented with a fait accompli and left with a choice as to whether to accept or reject the position negotiated by the UK. However, the States of Guernsey also wishes to play a more prominent role internationally on its own behalf. Accordingly, the evolving relationship with the UK entails the MoJ being prepared, as appropriate, to facilitate that approach. This is particularly important where the interests of Guernsey are different from those of the UK. One consequence of increasing direct international engagement by Guernsey's authorities would be a reduction in the burden placed on the MoJ and other parts of the UK Government.


  2.1  The structure of Guernsey's administration was briefly described in the submission of the States of Guernsey to the Treasury Select Committee's Inquiry into the Banking Crisis.[19] The Policy Council of the States of Guernsey ("the States") is mandated to perform the function of conducting Guernsey's external relations.[20] This submission is made only in respect of the experiences of the Policy Council's political members and officials supporting them and is not made on behalf of other entities within the Bailiwick of Guernsey, including the administrations in Alderney and Sark and Crown appointees.

  2.2  Historically, Guernsey's relationship with the Crown was managed within Her Majesty's Government through the Home Office. In 2001, responsibility was transferred to the Lord Chancellor's Department. Its more overt constitutional remit and overall size fitted better with the status of the Crown Dependencies, being outside the metropolitan territory of the UK. That Department was merged into the Department for Constitutional Affairs in 2003, which in turn was merged into the MoJ in 2007. On each occasion, there was a degree of continuity in handling Guernsey's business because the team of officials within those Departments was similarly transferred.

  2.3  The States recognises that the relationship with the United Kingdom is one of mutual respect and support, ie, a partnership, as was explained on the last occasion on which the constitutional position was reviewed by the Royal Commission on the Constitution 1969-73.[21] This was re-affirmed in the Framework for developing the international identity of Guernsey, signed in December 2008[22] (the "Framework "). The Framework 's principles support Guernsey's stated priority of asserting its independent identity.[23] The relationship depends heavily on there being open, effective and meaningful engagement on both sides.

  2.4  The States believes that HM Government under-resources the personnel within the MoJ charged with handling Crown Dependency matters. The Kilbrandon Report records "a staff of fifteen engaged almost entirely on work relating to the Islands ".[24] The amount and potential complexity of business to be conducted today is certainly not less, and may be more, than it was, but the number of staff involved is noticeably fewer. This necessarily impacts on their capacity for being anything but reactive.


Inter-departmental liaison and coordination

  3.1  For matters that originate elsewhere within HM Government, the MoJ acts as the conduit to relay them to the States. The channel of communication utilised results in correspondence being sent to the Office of HE the Lieutenant-Governor, transmitted to the Bailiff (as Presiding Officer of the States of Deliberation) and then forwarded to the States. Responses, and matters originating within the States for consideration by HM Government, are sent in reverse. The process of effective consultation is the essence of the relationship and requires acceptable management.

  3.2  Modern methods of communication, both within HM Government and between the UK and Guernsey, mean that deadlines for responses are sometimes unrealistically short, particularly given Guernsey's form of government by multi-member Departmental decision-makers. For example, on 17 July 2009, there was informal consultation about the UK's intended ratification of the UN Convention on the Suppression of Nuclear Terrorism with a request for a response by 23 July, with the explanation that the relevant Home Office team needed to confirm the position in advance of the September 2009 annual Treaty event.

  3.3  On occasions, it appears that other UK Departments overlook seeking input from Guernsey until comparatively late in the formulation of their positions, meaning that the consultation process is not as effective as it should be. For example, a clause was introduced into the Home Office's Borders, Citizenship and Immigration Bill (originally as cl. 46) affecting immigration controls within the Common Travel Area without proper consultation. This was acknowledged in a letter from Lord West to the States dated 19 March 2009. Other exchanges between officials in respect of the parliamentary stages of that Bill were often handled within short timeframes, the shortest involving a request for comments on the Government's proposed lines within 70 minutes. Another example was a letter sent by the MoJ on 26 February 2009 seeking a response by the next day in respect of work being undertaken by Defra on a recast EU Regulation on substances that deplete the ozone layer.

  3.4  In other instances, the MoJ itself seems to be creating the "bottleneck" in transmitting material. For example, the draft Iran (United Nations Sanctions) Order 2009, to be made on 8 April 2009, was only forwarded on 1 April 2009, accompanied by the comment that "the opportunity to feed into this order has now passed " and the explanation that there perhaps should have been firmer chasing of the FCO for the relevant explanatory attachments. Another example was a letter sent on 15 June 2009 consulting about the content of the draft Bribery Bill, which had been published by the MoJ itself on 25 March 2009. The States is therefore concerned that it can be inferred from this pattern that there are other relevant matters that are never drawn to its attention, implying that the consultation obligation is not being met.

  3.5  The States relies on the MoJ providing briefings about matters of concern to the rest of HM Government. The States generally supplies material to the MoJ to assist in this process, but is not then usually invited to comment on the final content of resulting briefing documents or the development of lines to be taken. The States wonders whether this results in the key messages it wishes to relay in respect of such matters being misunderstood or misinterpreted to the extent that it impairs the ability of those representing Guernsey to be able to articulate Guernsey's position accurately and completely. For example, the States has made a number of specific points about the proposal to amend Directive 2003/48/EC on taxation of savings income in the form of interest payments both to the MoJ and to HM Treasury for use in the negotiations within the EU institutions. The States has also aired these concerns directly, but informally, to Commission officials. Informally, it has heard from a number of different sources that the particular issues the States has sought to highlight have not been addressed by the UK delegation at relevant meetings in Brussels.

  3.6  In some instances, the MoJ proceeds to act on behalf of the States in discussions with other Departments (ie, a "traditional" approach) rather than adopting a practice of always considering facilitating an invitation to meetings for representatives of the States. A consequence of this is that the States do not know precisely how its position has been portrayed. For example, the States had formally sought a change of FCO policy in relation to the export from the UK of Taser guns and cartridges. The States was informed on 30 July 2009 that, after the discussions had escalated to Ministerial level, the FCO policy position would remain unchanged. The States would have welcomed the opportunity to engage directly with the FCO and has since requested such a meeting.

Parliamentary questions

  3.7  The States recognises that responses to questions have to be prepared quickly and that questions concerning Guernsey are not always posed directly to the MoJ. Where input into drafting responses is sought from and provided by the States, the States would hope that the answer given would, where appropriate, reflect relevant facts applicable to Guernsey. For example, the answer given on 14 July 2009 to a question about the UK's aid expenditure volunteers information about the UK's annual expenditure but did not mention that the Guernsey Overseas Aid Commission independently makes its own aid contributions, which in 2008 were £2.33 million.[25]

Insular legislation

  3.8  A core function of the MoJ is to scrutinise Projets de Loi approved by the States of Deliberation prior to submission to the Privy Council for Royal Sanction. Where the subject-matter of that legislation affects the responsibilities of other UK Departments, officials at the MoJ consult in accordance with an informal timetable, permitting four weeks for comments unless the Department concerned seeks an extension of time. The expected timescale from submission to Royal Sanction is understood to be 16-20 weeks. When the process of obtaining Royal Sanction takes longer than expected, at times without there being adequate communication explaining the reasons, it frustrates the will of Guernsey's democratically-elected legislature. For example, having taken exceptional steps in February and March 2008 to compress the usual timetable for securing approval of the Medicines (Human and Veterinary) (Bailiwick of Guernsey) Law, 2008 by the insular parliaments, the Projet did not obtain Royal Sanction until December 2008, largely, it is understood, arising from the slowness of responses from the MHRA.

Raising awareness

  3.9  The effectiveness of the MoJ liaising on behalf of the States depends on an adequate level of awareness within the rest of HM Government about the occasions on which there is a need to think about and engage the Crown Dependencies. The States understand that a document providing a Background briefing on the Crown Dependencies dating from 2006 (though currently being updated) is posted on the UK Government intranet. However, officials elsewhere in HM Government need to know of the existence of the document, or actively search it out, before being in a position to consult it. The document is clearly no substitute for personal contact between MoJ officials and their colleagues, but staff numbers are such that embarking on a "roadshow" of awareness-raising, ideally in collaboration with officials from the States, appears impractical.


  3.10  The handling by HM Government of important announcements concerning the Crown Dependencies has, however, improved. In 1998, the Review of Financial Regulation in the Crown Dependencies,[26] to be conducted by Andrew Edwards, was sprung upon the States. By comparison, in 2008, when the Chancellor announced the Review of British Offshore Centres,[27] being conducted by Michael Foot, the States were alerted beforehand and liaised with the MoJ and HM Treasury in relation to its terms and the handling of its announcement.


  4.1  The conventional approach, since even before the 1950s when the automatic application of international instruments to Guernsey ceased, has been for consultation to occur before the UK represents the position of Guernsey internationally.[28] The Framework highlights the importance of prior consultation. Because so much more takes place internationally then even in 1973, when the Royal Commission reported, the States is more dependent than ever on timely and effective consultation. The Framework crystallises long-standing practice by confirming that Guernsey can reasonably expect to be informed of how the UK envisages acting internationally so that that position can be taken into account by the States in developing its own position, to which the UK will then have regard. There is explicit recognition that the interests of Guernsey and the UK may differ, particularly in relation to the EU, and that "the UK will seek to represent any differing interests when acting in an international capacity ".

  4.2  Despite the terms of the Framework, it is apparent that HM Government will prioritise UK interests over those of the States. The negotiations in relation to the amendment to Directive 2003/48/EC[29] are a case in point. Similarly, in the discussions between HM Government, conducted by HM Treasury, and the Icelandic authorities following the collapse of that country's banking sector, with consequences for Landsbanki Guernsey Limited, it became clear by July 2009 that the States needed to take steps to advance its own position directly. Consequently, the States commented that month on a draft letter that HM Treasury would send to the Icelandic authorities intimating the States' desire to raise their concerns directly, requesting Iceland's assistance in progressing the matter. Representatives of the States visited Iceland in August 2009. It transpired that HM Treasury's letter was only sent on 23 September 2009.

  4.3  The practical consequences of such incomplete representation are not always known to the States at the time. The MoJ (and its predecessors) tend to inform the States of the outcome of negotiations rather than there being a blow-by-blow account of how the result was achieved. This occurs most frequently in relation to EU developments. For example, there was no consultation with the States during the development of Directive 2006/66/EC concerning batteries. Instead, contact was first made by the MoJ on 18 March 2008, at a time when BERR (as it then was) had concluded its first public consultation in the UK about transposing the Directive, informing the States that HM Government took the view that some provisions of the Directive were required to be implemented in Guernsey law.

  4.4  However, it is also important to remember the evolutionary approach to international representation that has been developing. Historically, the States was passive in the process, relying fully on UK Government representation, usually without knowing precisely how that was being effected. There were, and still are, few opportunities to participate as an integral part of a UK delegation, eg, very occasional invitations to participate in UN periodic reviews and the meetings of Commonwealth Finance Ministers. Increasingly, the States wishes to act internationally directly. This aspiration is now explicitly underpinned by the Framework and developing practice.[30] Accordingly, the States' reliance on UK Government international representation is no longer as absolute as it was previously. Instead, the States looks to the MoJ not only as the representative of Guernsey internationally, or, more often, to engage another UK Department in its performance of that role, but also as a facilitator to support the States' own international participation.

  4.5  In some instances, it has been made clear to the States that differing domestic policy positions make it impossible for HM Government to represent Guernsey internationally. For example, when the OECD commenced its Harmful Tax Practices Project, the States' only option was to become engaged directly rather than relying on HM Treasury to represent it. When the States has its own seat in international discussions, including on the British-Irish Council, the role of "intermediary" usually performed by the MoJ becomes redundant, enabling the States to rely on the effectiveness of its own representation


  5.1  The following suggestions are not simply about allocating more resources within the MoJ to Crown Dependencies business, although that would inevitably assist. Indeed, the States has increased its own external relations resources recently in order to reflect its priorities and to meet the growing demands of that aspect of its governmental business.

  5.2  Ensuring that all relevant UK Departments and their agencies understand the importance of early consultation with the States through the MoJ would provide greater comfort that the consultation obligation is being properly adhered to. The better the comprehension within HM Government of the status of Guernsey, the more effective the relationship can be through meaningful exchanges, both when the UK establishes the position it wishes to adopt and subsequently. More proactive dialogue would be welcomed to foster constructive engagement, consistent with the Framework 's principles.

  5.3  Consideration might also be given to encouraging the States and other UK Departments to engage directly on issues of mutual concern more frequently. The MoJ can properly be kept informed of those discussions but without the need to be perceived to be actively participating as intermediary. There is scope for broadening the ambit of the areas where HM Government "entrusts" the States to act internationally, under which the MoJ, and relevant Departments, continue to supervise but are relieved from the burden of international representation.

October 2009

19   See Banking Crisis: The impact of the failure of Icelandic banks:, Ev 146, section 2. Back

20   See page 29 of download from The relevant functions are delegated to the Council's External Relations Group [comprising the Chief Minister, Deputy Chief Minister and three other Ministers]. Back

21   See Report of the Royal Commission on the Constitution 1969-73 (Cmnd 5460: the "Kilbrandon Report"), especially paragraph 1498: "… both the United Kingdom and the Islands have not only rights but also obligations towards each other. The Islands have a right to respect for their autonomy in domestic affairs and to the observance by Parliament of the convention that it does not in the ordinary course legislate for the Islands without their consent on such matters. But coupled with this is an obligation to give all reasonable assistance and co-operation to the United Kingdom authorities in the exercise of their domestic and international responsibilities. The United Kingdom authorities, for their part, have a right to expect this co-operation and in the last resort to intervene if it is not given and intervention is necessary to safeguard their own essential interests. In turn they have the obligation to give all reasonable assistance to the Islands, to respect their autonomy and to work for its preservation.Back

22   See document appended to Report at page 10 of download from Back

23   See page 13 of download from Back

24   See paragraph 1435. Back

25   See wallac%20of%20saltair&ALL=&ANY=&PHRASE=&CATEGORIES=&SIMPLE=&SPEAKER=lord%20wallace% 20of%20saltaire&COLOUR=red&STYLE=s&ANCHOR=90714w0001.htm_spnew11&URL=/pa/ld200809/ldhansrd/text/90714w0001.htm£90714w0001.htm_spnew11. Back

26   See for the Report (Cm 4109). Back

27   See Back

28   See the Kilbrandon Report, especially paragraphs 1363, 1401-3 and 1435. Back

29   See paragraph 3.5 supraBack

30   HM Government has expressly "entrusted" the States to conclude in its own right various international law taxation agreement, eg, tax information exchange agreements with EU and OECD member states. Back

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