Crown Dependencies: developments since 2010 - Justice Committee Contents


6  Good government

General
2010 Recommendation: The independence and powers of self-determination of the Crown Dependencies are, in our view, only to be set aside in the most serious circumstances. We note that the restrictive formulation of the power of the UK Government to intervene in insular affairs on the ground of good government is accepted by both the UK and the Crown Dependency governments: namely, that it should be used only in the event of a fundamental breakdown in public order or of the rule of law, endemic corruption in the government or the judiciary or other extreme circumstance, and we see no reason or constitutional basis for changing that formulation. (Paragraph 41)

2010 Government Response: We respect the right of the Crown Dependencies to self-determination and agree that it would take a very serious circumstance indeed for the UK Government to contemplate overriding these powers.

56. The 2009-10 inquiry prompted much speculation about the circumstances in which the UK might exercise its constitutional responsibility to enforce good government in the Islands. The Government agreed with the position taken by our predecessors, as described above. In evidence, Lord McNally confirmed that:

    […] both this Committee and Kilbrandon[75] set out a very high line to clear before the British Government would intervene. Tempting as it sometimes is to say, "We will go in and put them right," I would say this Committee has been very wise and the Government will still hold to the fact that, unless there is real evidence of a breakdown either in the policing or the integrity of the judiciary or general law and order, we would not.[76]

57. However, the issue of "good government" is cited by some individuals in evidence to our inquiry to contend that, by not intervening to deal with their grievance the Ministry of Justice has failed to carry out its responsibilities in this area. The calls for intervention generally allege a lack of open media, inadequate separation of powers, disregard for the rule of law and international human rights and related standards, the failure of the police properly to investigate allegations of unlawful activities by officials, and conflicts of interest arising from a small legal profession and judiciary.[77]

58. In many cases these calls mirror the kinds of concerns raised with us as constituency MPs by our own constituents and on occasion as members of the Justice Committee[78] in relation to institutions and events in the UK. But our constituents cannot look to an external jurisdiction to assess whether there has been a failure of "good government" in the UK. What is important for the issue of good government in the Crown Dependencies is whether adequate democratic and legal processes are in place in each of the jurisdictions to enable grievances to be pursued; and whether the small size of the jurisdictions prevents issues from being properly dealt with.

59. We noted Lord McNally's assessment that the Islands, other than Sark, are governed well. In his judgement:

    There will always be criticisms of governance and we would have to take them on board in deciding our own relations.[79] [...] When attacks are made on any particular institution in the Crown Dependencies, there are already in existence machineries to test those accusations and to make judgment on them.[80] [...] There is a regular habit of bringing in expert judicial and policing expertise, which, as you say, gives confidence to the operation of both the judiciary and the police in the Dependencies.[81]

We discussed with each of the Lieutenant-Governors how they assess the various complaints that are made to them about good governance and we are satisfied that they take this part of their role very seriously. The habit of bringing in external expertise is particularly useful in small communities. We asked Lord McNally if he was happy that appropriate steps were taken by the Isle of Man Government following criminal allegations made against their Attorney General. He was.[82]

60. The Government agreed with the Committee's interpretation of the circumstances in which the UK Government could intervene in a Crown Dependency on the grounds of "good government", and we have heard nothing in this follow-up inquiry to convince us that this requires review. We acknowledge that a number of individuals in the Crown Dependencies have genuine concerns about governance, and that conflicts of interest are more of a risk in small jurisdictions. However, we are satisfied by what we have been told publicly and privately that there is no complacency on the part of the UK authorities and that complaints are properly considered. We are also satisfied that mechanisms are in place in the Crown Dependencies to test and rectify such concerns. In particular, we commend the habit of bringing in outside expertise where there may be the possibility or the risk of a perception that the smallness of the political or legal community might prevent a matter being dealt with fairly and impartially.

Sark

2010 Recommendation: As a matter of general principle, we note that, in a very small jurisdiction, there must always be the possibility that individuals wielding very significant economic, legal and political power may skew the operation of democratic government there. Just as the establishment of democratic government in Sark was a matter of good government, any threat to the ability of that system to operate fairly and robustly has the potential to raise good government issues which might require UK Government intervention. This is a matter on which the Ministry of Justice needs to keep a watching brief. (Paragraph 49)

2010 Government Response: We will continue to keep a watching brief on all relevant matters and maintain our strong relationships with the Islands that will help enable us to resolve any problems which may arise in a collaborative way. We will provide advice and support to the government and Chief Pleas of Sark as the new democratic government matures.

61. Sark is a beautiful island much of whose charm lies in the fact that it is different, with a slower pace of life, an absence of motor vehicles other than tractors, and a strong sense of its distinctive constitutional history; until recently, it retained an essentially feudal constitution. The need to comply with the European Convention on Human Rights has required constitutional changes to be made, and previous constitutional arrangements have been challenged in the courts by Sir David and Sir Frederick Barclay, who have significant investment on the Island and have a residence on the neighbouring island of Brecqhou. Tension between the Barclay brothers and the Island's elected parliament, the Chief Pleas, was manifest at the time of the previous Committee's report, and has continued. Elected conseillers complain that they are subjected to threats of legal action against them as individuals and to abusive and intimidating attacks in the Sark Newsletter, edited by the Barclay brothers' manager on Sark; while the Barclay brothers complain of legislation which they say discriminates against them[83] and pursue legal actions against Island legislation as a consequence of their belief that further constitutional change is necessary. This is a very difficult atmosphere in which to work towards a sustainable economic future for the community on Sark.

62. The particular situation in Sark was discussed in paragraphs 42 to 49 of the 2010 Report. Sark has continued along the path of reform begun in 2008 and has recently appointed a Senior Administrator as the Island's first civil servant, but many challenges remain. In oral evidence to us, Lord McNally commented: "when I say the Dependencies are governed well, I make an exception in terms of Sark. I do not give Sark a clean bill of health."[84] He added that "by any standards I have kept a watching brief on Sark, whilst being conscious of the high hurdle that has to be cleared in terms of direct intervention". The MoJ described how it has implemented this recommendation:

    We have been working to support the efforts of the Chief Pleas in Sark to strengthen itself for the future. Officials have held workshops on strategic planning for the Chief Pleas, as well as supporting them in administering a perception survey of the population and ensuring there was an independent election observer at their recent election. We have also provided advice to Sark on the features of good governance. While the direction Sark takes is, of course, a matter for the people of Sark, the UK Government stands ready to offer support and technical expertise.[85]

63. The Chief Pleas of Sark noted their "much greater engagement" since 2010 with the MoJ, "whose strong level of support has provided welcome and practical encouragement." However, they were unhappy about occasions when the MoJ has indicated or insisted that certain things must or ought to be done, such as the timing of the split of the dual role of the Seneschal and the late suggestion in 2012 that there should be an external election observer.[86]

64. In response, Lord McNally said:

    My only interest in Sark is good governance. I have no missionary zeal to push them one way or the other, other than the fact that, for example, on the question of the Seneschal, the Supreme Court told them that the combination of judge and presiding officer was incompatible with a functioning democracy. To say that we had rushed them when it took them three years to implement it may be "rushing" in Sark terms, but it was a reasonable time to expect action to be taken.

    On the election observer, we had had talks for a number of months and I did twist arms a little towards the end, partly because I wanted to avoid having an election where immediately afterwards there would be cries of foul. If they reflect, the fact that they had an external observer avoided that.

    I can see the attractions of going back to the quieter, more leisurely, more certain age it has, but it also has to provide a living for people. It has to have some economic future other than for retirees who have pensions that they have already made. It has to give a future for young people and for a working population.[87]

    In relation to the conflict between the two points of view prevalent on the Island, he said:

    I understand it is going to be a slow process, but I think it would be better if we could take some of the poison on both sides out as well, because, as well as the Sark Newsletter, I also see some of the blogs that are alive in the Island, which are equally intolerant of the other point of view. In such a small community, these things hurt, they cause resentment and they make progress more difficult.[88]

65. On a more encouraging note, Cathryn Hannah advised that in October, with colleagues from Guernsey and Jersey, the MoJ organised some economic development workshops on Sark so that the Islanders can start planning for the future. She said:

    There is a lot of impetus from some people within the Chief Pleas to take these bits of work forward and to strengthen Sark for the future, and a recognition that in order to keep what is special about Sark it needs to have these governance arrangements in place so that it can function effectively.[89]

66. Since the evidence session, we have been contacted by parties on both sides of the dispute to express their unhappiness with Lord McNally's views on the matter, particularly his assertion that the fault lies on both sides.[90] Their arguments can be found in our written evidence. As our predecessors stated in their 2010 Report, we do not intend to take sides or make judgments on the various allegations made; our role is to assess the UK's Government's role in relation to ensuring "good government".

67. Lord McNally and his officials at the MoJ have diligently implemented the Committee's recommendation to keep a "watching brief" on good government in Sark. In this they have received welcome assistance from other Crown Dependencies, for example. Sark's progress on the path to democracy and more efficient administration has been slow, but we commend the conseillers in the Chief Pleas who have worked hard to strengthen governance on the Island, without administrative support, and we hope that the appointment of the new Senior Administrator will make their job easier in future.

  1. We deeply regret the apparently intractable discord on Sark, as witnessed on our visit and in the written evidence we have received. We reiterate our conclusion that, just as the establishment of democratic government in Sark was a matter of good government, any threat to the ability of that system to operate fairly and robustly has the potential to raise good government issues which might require UK Government intervention. Disputes between different interest groups on the Island should not be allowed to get in the way of the responsibility of the authorities on Sark to continue to implement democratic processes and plan a sustainable future for the Island, and the UK Government should continue to encourage and support them in achieving this.



75   The Royal Commission on the Constitution, published in 1973. Back

76   Q 35 Back

77   See Deputy Michael Higgins (CDF 08), Nicholas Le Cornu (CFD 05), Jonathan Irving (CDF 12), Michael Dun (CDF 14), A resident of Jersey (CDF 15), Ian Evans (CDF 17) and Maria Le Fustec (CDF 18)  Back

78   Although the Committee is prohibited from considering individual cases. Back

79   Q 35 Back

80   Q 36 Back

81   Q 40. We deal separately in paragraphs 61-68 with Lord McNally's comments on good government in Sark. Back

82   Q 40 Back

83   Advocate Dawes on behalf of Sir David and Sir Frederick Barclay (CDF 28)  Back

84   Q 35 Back

85   MoJ (CDF 01)  Back

86   Chief Pleas of Sark (CDF 07)  Back

87   Q 37 Back

88   Q 39 Back

89   Q 38 Back

90   See Seigneur of Sark (CDF 24), Paul Arditti (CDF 27), Advocate Dawes on behalf of Sir David and Sir Frederick Barclay (CDF 28), Advocate Dawes on behalf of Kevin Delaney (CDF 29). Lord McNally subsequently wrote an open letter to the Chief Pleas, which we have seen.  Back


 
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Prepared 16 January 2014