6 Good government |
|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
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.
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.
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
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.
[...] 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.
[...] 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.
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.
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.
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
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
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.
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
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.
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.
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.
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.
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
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.
- 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
Q 35 Back
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)
Although the Committee is prohibited from considering individual
Q 35 Back
Q 36 Back
Q 40. We deal separately in paragraphs 61-68 with Lord McNally's
comments on good government in Sark. Back
Q 40 Back
Advocate Dawes on behalf of Sir David and Sir Frederick Barclay
(CDF 28) Back
Q 35 Back
MoJ (CDF 01) Back
Chief Pleas of Sark (CDF 07) Back
Q 37 Back
Q 39 Back
Q 38 Back
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