Memorandum submitted by the Positive Action
Group, Isle of Man
1. The Positive Action Group (PAG) is a
political lobby group in the Isle of Man which encourages people
to have an interest and involvement in Isle of Man politics. The
group is active, as our website's (1) "previous events"
page shows. Our Charter lists specific areas we lobby our government
over including an Ombudsman, Freedom of Information and Conflicts
2. I am a member of this group and I lobby the
Isle of Man Government against the introduction of the e-Borders
scheme and proposed reform of the Common Travel Area (CTA). I
individually responded (2) to the "Strengthening the Common
Travel AreaConsultation Paper" (3) and correspond
with my Member of the House of Keys (MHK) and the Isle of Man
Chief Secretary's Office (CSO) about the local impact of these
schemes. I have submitted Freedom of Information Requests (FOI)
to the UK Border Agency and the Ministry of Justice. I raise awareness
of these issues in the local press and give interviews on local
Manx Radio. Recently I was invited to submit written evidence
to the Tynwald Standing Committee on Constitutional Matters and
will give oral evidence to the Committee on 2 November 2009.
3. The issues I raise arise as a consequence
of the Isle of Man's external relationship with the United Kingdom.
These issues highlight aspects of the relationship that, arising
from my lobbying, do concern me. Some aspects of the Ministry
of Justice's policy and practice, relating to your Inquiries focus,
relate to issues of Good Governance. This memorandum follows the
principle that the Ministry of Justice wishes to set the example
in establishing open and accountable relationships between the
UK and the Crown Dependencies.
4. Specific areas of concern arising from
my lobbying are a potential conflict of interest arising from
the establishment of the Chief Secretary's Office, Freedom of
Information requests concerning relations between officials of
the UK Government and their Isle of Man Government counterparts,
record keeping by UK Government Departments, and the role of the
Parliamentary and Health Service Ombudsman in handling local residents
5. The Crown's relationship with the Isle
of Man is described in a "Background briefing on the Crown
Dependencies" (4) where it is stated that "The Crown
is ultimately responsible for the good government of each Island
" and reference is made to the Kilbrandon Report which stated
"that there were areas of uncertainty in the existing
relationship and that the relationship was complex."
As a member of the public I confirm the relationship seems opaque.
It is unclear who makes the decision as to whether a specific
piece of UK legislation is appropriate for the Isle of Man. The
Isle of Man Chief Secretary's Office website (5) states that:
"The Office supports the good government of the Isle of
Man by providing professional advice and services to the political
leaders of the Government, the Chief Minister and Council of Ministers,
and to the Lieutenant Governor. " This statement is particularly
interesting because it confirms that the Chief Secretary's Office
is positioned between two jurisdictions that are politically different
but constitutionally united.
6. Chief Officer Group meetings are chaired
by the Chief Secretary and the minutes are published on that offices
website. (6) As of 30 September the latest available minutes
are for May 2009. The minutes of the Summary of Proceedings of
the Council of Ministers are published on the Isle of Man Government
website (7) and as of 30 September the latest available minutes
are for June 2009. These minutes often state that "Council
considered a paper submitted by the Chief Secretary "a
standard phrase used to describe matters arising in Westminster
for consideration by the Isle of Man authorities.
7. My concern about the Chief Secretary's
role relates to the political independence and autonomy of the
post. The minutes of Council of Ministers meetings indicate that
the Chief Secretary's Office processes matters arising in Westminster
as a result of UK political action. The minutes seem to indicate
that the Chief Secretary acts as the conduit for matters arising
in Westminster which the UK Government wishes to see progressed
locally. A grey area potentially exists where the Chief Secretary
exercises political discretion as to whether a matter arising
in Westminster is appropriate for the Isle of Man.
8. For example, in April 2009 the UK
Home Office launched a public consultation "Protecting the
Public in a changing Communications Environment". (7) This
UK project proposes that Communications Services Providers (CSPs)
collect personal communications data for further processing and
analysis. Human rights, privacy and data protection issues arise
from the proposal which, although primarily related to possible
legislation in the UK, potentially will affect local residents.
For example, the Isle of Man fixed telephone network exists as
part of the main UK network. Therefore, UK collection of data
on that network means that local residents' communications may
be monitored by the UK authorities even though primary legislation
to allow this may not exist locally.
9. Being concerned about these UK Home Office
proposals I wrote, on 15 May 2009, to the Chief Secretary's
Office asking if the Public Consultation would be progressed in
the Isle of Man. On 8 June the Chief Secretary's Office wrote
to me indicating they had not previously been aware of this issue
and that they would consider the implications for the Isle of
Man. The Public Consultation was not extended to the Isle of Man
and, as such, local communications providers were denied the opportunity
to comment on potential legislative matters which may directly
affect local residents.
10. The question arising from this situation
is who made the political decision not to extend the Public Consultation
to the Isle of Man, and where was the democratic scrutiny of that
decision? Reference is not made to this issue in either the Chief
Officer's or Council of Minister's Minutes to date. No public
record exists to suggest that the Chief Secretary's Office did
other than make a political decision about whether local residents
should be consulted about an issue, arising in the UK, that may
directly affect them.
11. I also question how, with a combined
post of Chief Secretary and Secretary to the Lieutenant Governor,
the post holder can avoid bias towards UK Government policy. The
January 2008 Summary of the Proceedings in the Council of
Ministers (8) states that:
"Council considered a paper submitted by
the Chief Secretary updating Council on the current position in
relation to both e-Borders and the Common Travel Area (which are
inter-related) and seeking Council's further agreement on how
I have two main concerns about these programmes.
Firstly that the Chief Secretary's Office is not taking into account
the data protection concerns about e-Borders expressed by the
UK Information Commissioner (9) and secondly that the Chief Secretary's
Office seemed unaware of the constitutional implications, subsequently
raised by the House of Lords Select committee on the Constitution,
(10) of the possible requirement for passengers to carry passports
between the Isle of Man and the UK.
12. In April 2008 I started corresponding
with the Chief Secretary's Office, via my MHK, to raise these
concerns. I became aware of a pattern in the responses from them.
All the replies were informative but failed to take account of
any balanced local arguments that need to be represented in a
democratic society. What seemed to be continually stated were
the prevailing views of the UK Border Agency. The balanced argument,
typically found in a Westminster committee, was not evident. This
position only changed when Lord Goodlad, Chairman of the Constitution
Committee, wrote (10) to the Isle of Man Chief Minister asking
for his views on Clause 46 of the Borders, Immigration and
Citizenship Bill. The Chief Minister's response dated 2 March
2009, some 13 months after the Chief Secretary's paper, is
the first indication of political oversight of issues which clearly
had the potential to affect local residents. Had the Chief Secretary's
Office been tasked with fully reflecting local residents' concerns
then this position might have been arrived at some time earlier.
13. I am concerned that a conflict of interest
arises from the Chief Secretary's dual role and that this may
adversely affect local residents if there is inappropriate political
interference from the UK Government. In order that the Chief Secretary
can fully represent the political interests of the Isle of Man
Government it might be more appropriate if the Lieutenant Governor's
Secretary was a UK appointment only and not combined with a local
Isle of Man Chief Secretary's position.
14. Arising from my concern about the implications
of the e-Borders programme on local residents I submitted a Freedom
of Information request to the Ministry of Justice asking for information
relating to a meeting held on 5 December 2007 between
the Isle of Man Chief Minister and Michael Wills MP. The request
was poorly handled. I received several holding replies and a final
refusal (11) under Section 27(1) (International Relations) of
the Freedom of Information Act 2000. The Isle of Man is not a
sovereign State but belongs to the Crown and shares common constitutional
relations. How then, can we have an international relationship
with the UK? The letter stated that:
"Disclosure would be likely to undermine
the relationships the UK Government" has with the Crown Dependencies'
and "disclosure would be likely to result in officials being
less willing to provide free and frank advice to Ministers".
British Citizens resident in the Isle of Man
are effectively prevented from scrutinising what now presents
as a key component of our Governmentthe relationship between
the Chief Secretary's Office and the Ministry of Justice.
15. The paucity of information regarding
relations between UK Government Departments and the Isle of Man
is also concerning. On 4 March 2008 Michael Wills MP
made the following statement in a written answer: (12)
"There are regular meetings between officials
in the Ministry of Justice and their counterparts in the Isle
of Man and it would not be possible to list each one. Some of
these meetings have taken place in the Isle of Man, some in the
Ministry of Justice and some in other Government Departments.
In general no formal or permanent record of these meetings is
kept and most often action points are agreed between the respective
"Michael Wills MP then goes on to describe
a range of meetings at which many issues affecting the Isle of
Man were discussed. All of these would be of interest to both
local residents and locally elected politicians. However, such
information is seemingly only accessible to the Ministry of Justice,
the Chief Secretary's Office and the Isle of Man Council of Ministers."
16. An issue of poor record keeping was
also noted by the Treasury Committee (13) reporting on the failure
of the Icelandic banks. They commented:
"We note with concern the suggestion that
the paucity of information provided by the Financial Services
Authority may have impeded the ability of the regulators in the
Crown dependencies to safeguard their own financial systems. This
is a particular concern given the close working relationship that
appears to have existed between the Financial Services Authority
and the Financial Services Commission of the Isle of Man in relation
to previous situations such as that surrounding the failure of
Bradford & Bingley just days earlier. We recommend that the
Financial Services Authority review its existing powers and strategy
for dealing with other jurisdictions, and reports on its efforts
in this respect".
Keeping records of meetings is basic good practice.
The Ministry of Justice surely has a role to play in setting best
practice across Whitehall so that meetings between UK Government
Departments and their Isle of Man Counterparts are properly documented.
17. The Ministry of Justice oversees the
good governance of the Isle of Man. Modern, open, transparent
and accountable government surely requires that local residents
and their elected politicians are fully informed about legislative
matters that may affect them. The Isle of Man currently has a
non statutory Code of Access to Government Information (14) but
necessarily this excludes matters arising in the UK. The only
potential channel for such information is the UK Freedom of Information
Act which, of course, specifically excludes this type of information
too. As an issue of good governance there is a need for the Ministry
of Justice to address this situation. The Isle of Man is constitutionally
united with the UK but politically different. This means that
UK legislation may be inappropriate for our smaller jurisdiction.
Proposed UK legislation needs proper local scrutiny with the opportunity
for local debate. The lack of access to information about relations
between UK Government departments and the Isle of Man counterparts
18. Local residents do not yet have recourse
to a parliamentary ombudsman. On 6 August the Council of
Ministers launched a public consultation15 on a proposed Tynwald
Commissioner for Administration who would be the local ombudsman.
The following exclusions are proposed:
(a) matters certified by the Chief Minister to
affect relations or dealings between the Government and any other
government or international organisation; and
(b) action taken in any country or territory
outside the Island by or on behalf of a listed authority.
19. I contacted the UK Parliamentary and
Health Service Ombudsman to establish if they can process a complaint
from an Isle of Man resident who is directly affected by the conduct
of a UK Government Department. In an email dated 29 September
"in order for the Parliamentary Ombudsman
to consider a complaint about a UK Government department, it would
need to be referred to us by a Member of Parliament (MP)."
Westminster MPs do not represent local residents
so any decision by an MP to process a local resident's complaint
would be at that politician's discretion. This situation is highly
unsatisfactory as a number of contentious UK policy initiatives
may affect local residents. These include the e-Borders programme,
Reform of the Common Travel Area, (3) cancellation by the UK of
the Reciprocal Health Agreement (16) between the two jurisdictions
and the proposed Interception Modernisation Programme. (7) British
Citizens who are adversely affected by actions taken by UK Government
departments should surely have equal right of access to the services
of the UK Parliamentary Ombudsman wherever they reside.
20. I conclude that the management of the
UK's relationship with the Crown Dependencies by the Ministry
of Justice creates a democratic deficit as regards open, transparent
and accountable Government. British Citizens resident in the Isle
of Man, and local politicians outside the Isle of Man Council
of Ministers, are denied the opportunity to properly scrutinise
legislative matters arising in the UK because:
(a) No formal or permanent records of meetings
between the officials of the Ministry of Justice and the officials
of the Isle of Man Government are kept.
(b) The Freedom of Information Act Section 27 (1)
(a) excludes information relating to relations between the United
Kingdom and any other State even though the Isle of Man is not
a Sovereign State but a jurisdiction of the British Crown.
(c) British Citizens resident in the Isle of
Man have no recourse to the UK Parliamentary Ombudsman regarding
complaints about UK Government Departments.
(d) The Isle of Man's Chief Secretary's Office
is potentially politically autonomous as the post is also that
of Secretary to the Lieutenant Governor who represents a different
21. I ask the Justice Committee to consider
the following changes to the Ministry of Justice's management
of its relationship with the Crown Dependencies:
(a) Instructing officials of the Ministry of
Justice to make formal, permanent minuted records of meetings
with the Crown Dependencies Governments and their officials.
(b) Establishing best practice for record keeping
for all Government departments that deal with the Crown Dependencies.
(c) Amending the Freedom of Information Act to
allow access to minutes, briefings and any other records of meetings
arising from the relationship between UK Government departments
and the Crown Dependencies.
(d) Amending the Parliamentary Commissioner Act
1967 so that British Citizens in the Crown Dependencies can
use the UK Parliamentary Ombudsman to resolve a complaint against
a UK government Department.
(e) Review the role of the Secretary to the Lieutenant
Governor to establish whether a conflict of interest arises from
the holder of that office also being the Isle of Man Chief Secretary.
REFERENCES 1 www.positiveactiongroup.org
2 T C Llewellyn JonesResponse to
the UK Border Agency's Consultation on "Strengthening
the Common Travel Area ", 13 October 2008.
3 UK Border Agency, Strengthening the
Common Travel Area Consultation Paper 24 July 2008.
4 Background briefing on the Crown Dependencies:
Jersey, Guernsey and the Isle of Man, The Department for Constitutional
Affairs Crown Division, Crown Dependencies Branch June 2006.
7 UK Home Office, Protecting the Public
in a changing Communications Environment, April 2009.
8 Isle of Man Government, Summary of
Proceeding in the Council of Ministers, January 2008.
9 House of Lords Select Committee on the
European Union, Home Affairs Subcommittee, Inquiry into the "Framework
Decision on Passenger Name Record (PNR)" Evidence submitted
by the Information Commissioner, 19 March 2008.
10 House of Lords, Select Committee on the Constitution
7th Report of Session 2007-08 Part 3 of the Borders,
Citizenship and Immigration Bill Report, 12 March 2009.
11 Freedom of Information Request, Ministry of
Justice response, 11 July 2008.
12 Hansard, 4 Mar 2008: Column 2362W.
13 House of Commons Treasury Committee, Banking
Crisis: The impact of the failure of the Icelandic banks, Fifth
Report of Session 2008-09, 31 March 2009.
14 Isle of Man Government, Code of access
to Government Information, 15 May 1996.
15 Isle of Man Government, Council of Ministers
Consultation on the Tynwald Commissioner for Administration, 6 August
16 Isle of Man Government, IOM UK reciprocal
agreement, 24 March 2009.
Tristram C Llewellyn Jones