Memorandum submitted by Lord Wallace of
Saltaire
I have followed the relationship between the
Crown Dependencies and the UK since, as an academic then working
on European international politics at the University of Manchester,
I was asked to provide a memorandum for the Kilbrandon Commission
on the Constitution on the subject of the constitutional implications
of the UK joining the European Community. I read with interest
the parallel submission on the Crown Dependencies, and the lack
of clarity governing their relations with the UK. I then followed
the negotiations over their relations with the EC/EU, in which
the Crown Dependencies chose to remain formally outside, while
Gibraltar as a European overseas territory chose formal association
with UK membership. Since then I have visited the Dependencies,
have held discussions with officials from the Dependencies both
there and in London, have asked a number of parliamentary questions,
and recently have challenged the "Extent" clause of
several bills with reference to them.
Many of the issues which relate to management of
relations with the Crown Dependencies also relate to management
of relations with the Overseas Territories. The Foot Review of
offshore financial centres under UK sovereignty, for example,
which is due to report this autumn, covers both. It is anomalous
in a number of ways that the FCO is responsible for managing relations
with Gibraltar, an Overseas Territory within Europe that shares
with the Crown Dependencies a complex dependent relationship with
the European Union (although with a different pattern of opt-outs
and opt-ins). A staff member of The Guernsey Press told
me some months ago that there are some within Guernsey who think
it would be more rational for the FCO to be their first point
of contact within Whitehall, given the importance of external
interests and representation for them, than the historical anomaly
which has made this the MoJ. I hope that the Committee will press
the MoJ and the FCO in particular on how actively and carefully
they coordinate UK policy on Crown Dependencies and Overseas Territories,
since so many issues of governance and international obligations
apply to both categories.
I would like to note three aspects of the relationship
which would benefit from your scrutiny:
(1) the application to the Crown Dependencies—and
the implementation by the Crown Dependencies—of international
treaties and conventions which HMG has signed;
(2) the appropriate level of reimbursement for
the services the UK provides to the Crown dependencies, in terms
of international representation, defence, assistance to citizens
abroad, etc; and
(3) the issue of external audit of the quality
of governance in the Crown Dependencies.
1. Implementation of international agreements
signed by HMG and their application to the Crown Dependencies
The 1973 Kilbrandon Commission on the Constitution
noted the ambiguity as to how far the Crown Dependencies were
bound by international agreements signed and ratified by the UK
government. In the 35 years since then the progress of globalization
has led to a remarkable expansion of multilateral conventions,
covering environmental protection, climate change, immigration,
policing, and human rights as well as issues such as financial
regulation and taxation which are central concerns for the Crown
Dependencies as financial centres. I moved amendments to the "Extent"
clause at committee stage on two bills during this session—the
Borders Bill and the Marine and Coastal Access Bill—and
received only very limited answers from ministers as to why their
reach did not extend to all three of the Crown Dependencies.
Indeed, I was informally told during discussions
on the amendments I had tabled that "there is a settled reluctance
in Whitehall to address this question." The Extent clause
is almost the last clause in most bills presented to Parliament.
It is reached only at the end of the committee stage in either
house, when most of those involved are anxious to conclude, and
the criteria for the inclusion of some Crown Dependencies and
Overseas Territories and the exclusion of others is rarely challenged.
Under international law, the UK Government signs
treaties and conventions on behalf of all UK territories.
For some international obligations—for example, the maritime
and coastal conservation issues covered in the Marine and Coastal
Access Bill—the Crown Dependencies and Overseas Territories
are responsible for a large proportion of the coast, sea, birdlife
and fisheries concerns to which HMG has signed up. One early paper
on the Marine and Coastal Access Bill illustrated responsibilities
for marine conservation around the British Isles with a map which
had a large white space in the middle of the Irish Sea, surrounding
the Isle of Man. The UK Government consults with the Crown Dependencies
on how far they wish international obligations to extend to them.
The criteria on which these consultations take place, however,
are not clear; nor is it clear whether consultations include any
assessment of the resources available to the Dependencies to implement
obligations agreed, or any subsequent monitoring of how effectively
they have been implemented. On the Borders Bill, ministers made
a number of strong interventions on the need to tighten controls
on the land border with Ireland, as a weak point in the UK's external
borders; but were unable to answer how the Channel Islands, potentially
weak access points to the UK in a period when illegal migrants
in northern France are testing alternative channels of entry to
the UK, were linked in to the Border Agency.
Bills implementing European and international
obligations are presented to Parliament by most Departments across
Whitehall. The question of their extension to Dependencies and
Territories is, for other Departments, at best a secondary issue.
The Ministry of Justice, and perhaps also the Legal Advisers to
the FCO, should play a monitoring role in such legislation, in
considering what implications there may be for the UK's international
obligations of non-implementation in some UK Dependencies and
Territories, and from time to time in initiating checks on how
well such obligations have been implemented by Dependencies (and
Territories) that have agreed to accept them.
The Crown Dependencies are very active in monitoring
and promoting their interests in relation to the European Union.
The Committee may wish to ask how far representations from the
Channel Islands and the Isle of Man in Brussels are coordinated
with the policies that HMG are pursuing, and what consultations
take place with the relevant Whitehall Departments when UK and
Crown Dependency interest in EU proposals do not coincide.
2. Appropriate reimbursement by the Crown
Dependencies for services provided by the UK
The UK is constitutionally responsible for defence
and international representation of the Crown Dependencies, including
consular assistance to their residents in third countries. The
Isle of Man negotiated a Contribution Agreement with the UK in
1994, under which it contributed £2,559,278 in 2008.
Jersey and Guernsey have no such agreements. Both claim that transfer
to the UK of revenue received from the issue of passports constitutes
an appropriate contribution for consular assistance and international
representation. Jersey supports a territorial army unit, 29 members
of which have served with UK forces in the past ten years, as
its contribution to UK defence. Guernsey has claimed in official
documents for many years that the cost (currently around £500,000 per
year) of its maintenance of the Alderney breakwater—a breakwater
constructed in the 1840s to provide safe anchorage for the British
fleet in the event of a French naval threat—is its contribution
to UK defence; but in answer to a Parliamentary Question in June
2009 the Ministry of Defence replied that it had ceased to
have any interest in the Alderney breakwater in 1950.
Lord Myners in a Written Answer in July 2009 (HL4714 and
4764) stated that "in accordance of the provisions of the
Jersey and Guernsey (Financial Provisions) Act 1947, the Bailiwicks
of Jersey and Guernsey occasionally surrender hereditary revenues
of the Crown to the Consolidate Fund. Each payment must then be
returned to Jersey and Guernsey within ten working days."
The last of these apparently circular transactions with Guernsey
took place in 2003; that with Jersey was in 2008. He did not answer
the additional question as to when the Treasury had last assessed
the cost of services provided to the Crown Dependencies.
In the management of relations with the Crown
Dependencies, this is an issue on which the Treasury is the lead
department and the Ministry of Justice plays a monitoring and
coordinating role. The sums involved are small, and therefore
easily left unaddressed. There are, however, questions, at a time
of financial stringency for the UK, of the appropriateness of
providing services to these Dependencies on a different basis
for each of them, at what appears for all of them to be a very
modest contribution—and for which Guernsey contributes significantly
less than the other two. Their low levels of taxation partly reflect
the absence of contributions to international public goods such
as defence and subscriptions to international organizations—though
there are some voluntary contributions to overseas development.
Payment is made for the provision of health
and higher education services, at agreed tariffs. Higher education
fees are currently charged at an agreed intermediate rate between
home and overseas fees, for example; as non-members of the EU
and non-resident within the UK, students from these Dependencies
would otherwise be liable to pay full overseas fees. I am unaware
of the current arrangements for reimbursing the costs of support
to the island authorities from UK police forces. Does the Ministry
of Justice as coordinating department monitor the overall pattern
of services provided and fees charged across Whitehall for these
three (affluent) Dependencies?
3. External audit of the quality of governance
Recent reports on UK Overseas Territories—most
strikingly, the Auld Report on the Turks and Caicos Islands—have
drawn attention to the problems of maintaining good governance
within small communities, where social, economic and political
networks are small and closely intertwined and where challenges
to established practices are therefore particularly difficult.
Within the UK, the minimum population size that the Department
of Communities and Local Government considers appropriate for
effective local government units is significantly larger than
that of any of the Crown Dependencies.
There is, in effect, a pattern of external audit
of some aspects of the governance of the Crown Dependencies, primarily
in financial regulation—the Edwards report of 1998, for
example, and the current Foot review. It is in no way a reflection
on the current good governance of the Dependencies to argue that
public confidence, both within the Dependencies and outside, would
benefit from a more regular and more transparent pattern of external
audit in other areas. Levels of mistrust within Jersey over the
handling of child abuse allegations, for example, stretching back
over many years, investigated by local police and law officers
unavoidably close to some of those under investigation, suggest
that a more formal pattern of external inspection might be preferable
to ad hoc requests for assistance from UK bodies.
The relationship between the Crown Dependencies
and the UK rests upon mutual trust, and on understandings which
are partly unwritten and largely ambiguous. Like the British Constitution,
which has similarly rested on unwritten conventions and on the
expectation that ministers, officials and MPs would follow the
code of gentlemen, this relationship has been strained by social
change, globalization, financial affluence and the weakening of
traditional codes of behaviour. Is it the responsibility of the
Ministry of Justice to decide when external investigation or audit
is desirable, or is this left to particular Departments—such
as the Treasury—to decide? What are the mechanisms through
which the police or legal authorities in the UK respond to requests
for assistance from the Crown Dependencies, and do they report
back to the Ministry of Justice on the assistance given and lessons
learned?
25 September 2009
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