Memorandum submitted by the Policy Council
of the States of Guernsey
1. EXECUTIVE
SUMMARY
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. CONTEXT
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.
3. THE ROLE
OF THE
MINISTRY OF
JUSTICE IN
MANAGING THE
UNITED KINGDOM'S
RELATIONSHIP WITH
GUERNSEY
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.
Announcements
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. HOW, IN
PRACTICE, THE
UK GOVERNMENT REPRESENTS
GUERNSEY INTERNATIONALLY
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. SUGGESTIONS
FOR CHANGES
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: http://www.publications.parliament.uk/pa/cm200809/cmselect/cmtreasy/144/144ii.pdf,
Ev 146, section 2. Back
20
See page 29 of download from http://www.gov.gg/ccm/navigation/government/states-members-and-committees/mandates-and-memberships/.
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
http://www.gov.gg/ccm/policy-and-hr/billets--resolutions/2008/-billet-dtat---xv-2008-november.en. Back
23
See page 13 of download from http://www.gov.gg/ccm/policy-and-hr/billets--resolutions/2007/blllet-dtat---xviii-2007-july.en. Back
24
See paragraph 1435. Back
25
See http://www.publications.parliament.uk/cgi-bin/newhtml_hl?DB=semsimple&STEMMER=en&WORDS=lord%20
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 http://www.archive.official-documents.co.uk/document/cm41/4109/4109-i.htm
for the Report (Cm 4109). Back
27
See http://www.hm-treasury.gov.uk/indreview_brit_offshore_fin_centres.htm. Back
28
See the Kilbrandon Report, especially paragraphs 1363, 1401-3 and
1435. Back
29
See paragraph 3.5 supra. Back
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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