Crown Dependencies - Justice Committee Contents


2  Relationship between the Ministry of Justice and the Crown Dependencies

10. The Ministry of Justice is the Department charged with administration of the relationship between the UK Government, on behalf of the Crown, and the Crown Dependencies.[11] In evidence to us on 7 October 2008, the Justice Secretary, the Rt Hon Jack Straw MP, described the responsibilities of the Ministry of Justice as including international relations; defence; ensuring that the Crown Dependencies meet their international obligations, including human rights obligations; and the "good government" of the islands.[12] The limits of these responsibilities in relation to its Dependencies have never been tested, and this contributes to the Justice Secretary's description of the constitutional relationship as a "subtle one".[13]

11. The Ministry of Justice has outlined the broader work of the Crown Dependencies Branch, which sits inside the International Directorate of the Ministry of Justice.[14] The Crown Dependencies Branch:

  • holds the policy responsibility for the UK's relationship with the Crown Dependencies;
  • provides the main channel of communication between the Crown Dependencies and the UK Government on a full range of policy concerns and issues raised by both the Crown Dependencies and the UK;
  • ensures the development of UK policy takes the interests of the Crown Dependencies into account, where appropriate;
  • processes legislation submitted for Royal Assent by the Crown Dependencies (in the case of the Isle of Man, the Lieutenant Governor possesses a delegated power to grant Royal Assent for many types of legislation and the Ministry of Justice will signal to him whether or not it is appropriate for him to use that power)consults with the Islands on extending international instruments and UK legislation to them; where appropriate;
  • recommends crown appointments in the Islands.[15]

The Ministry of Justice emphasises the extent to which the relationship with the Crown Dependencies is a shared responsibility across government, with the Ministry relying on other departments for advice, assistance and international representation.[16]

12. Within the Ministry of Justice policy team dedicated to the Crown Dependencies, three operational staff deal with Island legislation, Crown appointments and honours. A further three policy officials deal with a range of policy issues and provide practical advice and support to the Crown Dependencies when required. It is their responsibility to ensure that the Islands' interests are taken into account in UK policy development and they work with the Islands on the development of their own policies, particularly where these have relevance to the UK or an international dimension. This team is supported by four lawyers, who advise the policy team and other UK Government departments. They also work directly with the Islands, for example, when working on the extension of UK enactments to the Crown Dependencies by Order-in-Council or to resolve questions about insular law submitted for Royal Assent.[17]

13. The Crown Dependency governments are, with some important caveats, content with their relationship with the Ministry of Justice.[18] When we visited the Channel Islands and the Isle of Man, we were told that Ministry of Justice officials generally understood the constitutional position of the Crown Dependencies with respect to the UK; understood that there were differences between the Islands in terms of their constitutions, politics and interests; worked hard to support the Crown Dependencies; and that relationships with Ministry of Justice officials were generally good. We heard some concerns about the extent to which the Justice Secretary was engaged with and understood issues relating to the Crown Dependencies, but it was accepted that Lord Bach, Under Secretary of State for Justice, did take an active role in the relationship.[19]

14. We note that the Justice Secretary agrees to answer parliamentary questions on matters which might be considered domestic issues for the Crown Dependencies and nothing to do with the Ministry of Justice. He acknowledges that some people argue that he should not do so and should leave such matters for the Islands themselves.[20] Nevertheless, he told us that:

    … No-one has ever said to me, "You should not answer this parliamentary question because the Crown Dependencies are not part of the United Kingdom" because it is part of my ministerial responsibility. It does not directly arise from being Lord Chancellor, it is the distribution of business. I did it when I was Home Secretary because it used to be in the Home Office.[21]

The problem with the Justice Secretary's justification is that it does not distinguish between his constitutional responsibilities for the Crown Dependencies—which are limited to certain issues including good government, international relations, international obligations and defence—and other, more general matters which may be of policy relevance to the UK but are not within his responsibilities as Justice Secretary and Lord Chancellor. This can give rise to an expectation amongst some Islanders that the Justice Secretary has responsibilities and powers in areas which are, in fact, outwith his constitutional duties.

15. We believe that, in agreeing to answer Parliamentary Questions on topics which are essentially domestic matters for the Crown Dependencies, the Justice Secretary is clouding the issue of what, constitutionally speaking, is properly the responsibility of the UK Government and what should properly be left to the Island governments. The Justice Secretary should make explicit in his answers to Parliamentary Questions whether or not he considers the matter addressed to fall within his constitutional responsibilities.

16. All of the Island governments, either in written evidence or during our visits, have been explicit that they believe the Ministry of Justice Crown Dependencies team to be under-resourced.[22] As a result, the Guernsey government considers the team to be reactive, rather than proactive, and suspects it of creating "bottlenecks" in transmitting information to the Island.[23] This is manifested in two ways. First, there are sometimes serious delays in processing Island legislation prior to Royal Assent.[24] Second, there are sometimes delays in communicating to the Islands matters which require their attention or consent, leaving them with a very limited amount of time to consider the issues and with a feeling that they have been pressured into making a decision quickly against their interests. The Isle of Man government, for example, states that the UK Government has, on occasion, failed to leave adequate time for consultation on international treaties which are to be applied to it.[25] It calls for greater awareness across the UK Government of the need to consult the Crown Dependencies in a timely manner on issues affecting them.[26] The authorities in both Alderney and Sark have told us that communication between them and the UK Government is sometimes very slow or even non-existent, either because they are forgotten or because communication with them may be routed through Guernsey.[27]

17. Given that the Crown Dependencies team at the Ministry of Justice appears to struggle with the resources it has, we suggest that a reappraisal of the constitutional duties of the Ministry of Justice might be a timely step in the right direction. The Ministry of Justice should prioritise those duties and restrain itself from engaging in areas of work which are outwith its constitutional remit.

Relationship between other Whitehall departments and the Crown Dependencies

18. The Crown Dependencies team at the Ministry of Justice is responsible for ensuring that other Whitehall departments have the necessary advice and information about the constitutional position of the Crown Dependencies and are aware of their responsibility to take the Islands' interests into account in formulating UK policy and legislation.[28] The Ministry of Justice told us that the team takes a "proactive approach to this, engaging key stakeholders across government on issues concerning the [Crown Dependencies] and using opportunities such as the recent seminars organised by DEFRA to explain the constitutional position of the [Crown Dependencies]".[29]

19. There are other resources which provide UK Government departments with information about the Crown Dependencies. For example, the Cabinet Office provides a Guide to Making Legislation, which includes a checklist of tasks to be completed by departments in preparation for the introduction of a Bill.[30] This checklist refers to the constitutional position of the Crown Dependencies; the need to obtain consent from the insular authorities in appropriate cases; and the need to make contact through the International Directorate of the Ministry of Justice.[31] Departments can also access a Background Briefing and a Guide to Government Business involving the Channel Islands and the Isle of Man prepared by the former Department for Constitutional Affairs.[32] Both these documents set out similar information about the constitutional position of the Crown Dependencies; the considerations Whitehall departments much take into account when conducting business which may affect the Crown Dependencies; and the correct lines of communication when making contact with the insular authorities.

20. If the insular authorities wish to discuss policy in a particular area with the relevant Whitehall department, or vice versa, the Ministry of Justice is charged with mediating that contact.[33] The lack of an established relationship with the policy department, coupled with the need to communicate through the Ministry of Justice, means that the insular authorities often feel at a significant disadvantage and unable to put across their point of view effectively. The Guernsey government has stated that it would like more direct contact with other UK Government departments in order to ensure that its position is represented accurately and believes that awareness of Crown Dependencies issues across the UK Government is inadequate.[34] It told us that:

    On occasions, it appears that other UK Departments [other than the Ministry of Justice] 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.[35]

21. Nevertheless, there are occasions when the insular authorities talk directly to Whitehall departments with which they have an established relationship, usually at official level. Where this works, the insular authorities say they find it helpful as they are able to present their interests and views directly to those charged with the relevant policy area, rather than relying on the advocacy of the Ministry of Justice.

22. The Island governments expressed serious reservations about the extent to which their constitutional position is understood across Whitehall, arguing that this lack of understanding had led to some unfortunate consequences.[36] First, there is concern that the UK Government is interfering illegitimately with policy formulated by the democratically elected governments of the Crown Dependencies. Second, the Island governments are frustrated that the Islands' interests are not always taken into account in the formulation of UK policy, either at all or in sufficient time for them to have significant input into the outcome of the policy-making process. Third, where the interests of the UK and the Crown Dependencies conflict, the insular governments have a sense that their interests will always be subordinate to those of the UK.

23. These factors are major barriers to an effective relationship between the Crown Dependencies, the relevant Whitehall policy departments and even, to a certain extent, the Ministry of Justice itself. The Islands have a highly developed sense of their own independence as democracies and, what is more, they see significant differences between themselves in terms of constitution, government and interests. There is an additional layer of complexity: within the Bailiwick of Guernsey, there are three democratically elected bodies—the States of Guernsey, the States of Alderney and Chief Pleas in Sark—each with varying degrees of legislative and executive power.

24. Representatives of all five democratically-elected authorities have expressed to us frustration that those they are dealing with in the UK Government sometimes fail to distinguish between them, confuse their interests—which may be different—and even confuse them with the Overseas Territories. The latter is a particularly sore point in relation to the financial services sector, where the insular authorities are at pains to point to the conclusions of the Foot Report that the Crown Dependencies are, in fact, extremely well regulated, whereas the same could not universally be said of the Overseas Territories.[37]

25. The question of "identity" is of great concern to the Crown Dependencies and its presentation, both within the UK and internationally, is of the highest importance to them. Whilst it is the express duty of the Ministry of Justice to inform others across Whitehall of the constitutional position of the Crown Dependencies and the appropriate approach of the UK Government towards them and their interests, the Justice Secretary himself told us that:

    … although they are self-governing Crown Dependencies, plainly, it is quite complicated to explain that. It is quite complicated to explain it here to the cognoscenti, it is still more complicated to explain it to perhaps abroad or to international organisations …[38]

26. There is no doubt that the Ministry of Justice is trying, with the resources it has at its disposal, to raise awareness about Crown Dependency issues in Whitehall. It is true that the constitutional position of the Crown Dependencies is not obvious, but nor is it as complex as the Justice Secretary seems to suggest. In spreading the message, it would be helpful if more use were made of secondments of officials between UK Government departments and the Crown Dependencies, which would assist in spreading understanding in each of how the other functions.

27. We recommend that the Ministry of Justice redoubles its efforts to produce a simple account of the constitutional position of the three Crown Dependencies. This should highlight their essential independence from the UK, their independence from each other, and the fact that their interests need to be considered routinely by all UK Government departments in any area of policy-making likely to impact on them. Those departments should be left in no doubt about the limits of legitimate intervention in Island policy and legislation and about their duties in considering their interests. In achieving these aims, we believe that it would be helpful if more use were made of secondments of officials between UK Government departments and the Crown Dependencies in order to increase mutual understanding.

The Reciprocal Health Agreements

28. In 2008, the Department of Health decided to terminate the long-standing Reciprocal Health Agreements with the Crown Dependencies under which Island visitors to the UK and UK visitors to the Islands received free health care.[39] This was, apparently, on the ground that the Agreements did not represent value for money for the UK taxpayer. The Department of Health judged that more was spent by the UK on treating Crown Dependencies visitors to the UK than was spent by the Crown Dependencies on UK visitors to the Islands. Following termination of the Agreements, emergency treatment will remain free, but further treatment will be subject to charge.

29. At some point in the first half of 2008, Jersey and Guernsey were informed that their Reciprocal Health Agreements with the UK would be terminated. The Ministry of Justice was told by the Department of Health on 4 June 2008 that the future of the Reciprocal Health Agreements with the Crown Dependencies was "about to be considered by Department of Health ministers". The Ministry of Justice was then made aware of the final decision on 30 June 2008, the day before a meeting between Department of Health officials and representatives of the Crown Dependencies.[40] At that meeting, Jersey and Guernsey were given formal notice that their Reciprocal Health Agreements would end and the Isle of Man was told for the first time that its Reciprocal Health Agreement would also be terminated.[41] No Ministry of Justice official was present at that meeting and the Ministry of Justice accepts that this was unfortunate, but denies that it would have affected the outcome.[42]

30. The Reciprocal Health Agreements with Jersey and Guernsey were terminated with effect from 1 April 2009; the Reciprocal Health Agreement with the Isle of Man was due to be terminated with effect from 1 April 2010, but an extension of a further six months was negotiated at the last minute pending further talks.[43]

31. Island residents have been advised to obtain health insurance for travel to the UK from now on. This has caused serious concern to Island residents, particularly the very elderly or those with pre-existing conditions who find it hard or impossible to obtain health insurance yet wish to visit friends and relatives on the mainland. The same is true for UK residents wishing to visit the Crown Dependencies. However, the UK Government has emphasised that it does not fund healthcare for UK residents travelling abroad and visits to the Crown Dependencies should, in its view, be no different.

32. Islanders have expressed outrage to us at the abrupt ending of the Reciprocal Health Agreements and have called for them to be reinstated.[44] Particularly vocal have been Isle of Man residents who have served in the UK's armed forces, many of them conscripts in the Second World War. Unless they receive a war disability pension, they will not receive free treatment in the UK following termination of the Agreements. They argue that, since they have in the past risked their lives for the UK, the very least they are entitled to is free healthcare when they visit that country.[45]

33. The issue for us is not so much the substance of the decision itself, but the way in which the proposal was developed, considered and executed. All three Island governments have complained that the decision was taken summarily by the Department of Health, without consultation. The Island governments have said that the decision to terminate the Agreements was imposed on them in a high-handed manner, with no opportunity given for discussion about alternative resolutions or financial packages.[46] We have been told that the Ministry of Justice tried to assist the Islands in setting up meetings with the Department of Health, to no avail. The Isle of Man government did eventually meet with the Health Secretary, but this meeting was set up following the intervention of Andrew Mackinlay MP, not with the assistance of the Ministry of Justice.[47]

34. This case is a good example of how relations between the Crown Dependencies and the UK Government can be badly damaged by insensitive handling of an important issue. We say nothing about the decision itself. However, the Department of Health should have been aware, and the Ministry of Justice should have made it aware, that the issue of healthcare is an emotive one for islanders, many of whom have strong family links with the UK mainland. The need to obtain medical travel insurance will present a real obstacle to elderly or infirm islanders who wish to visit friends and family on the mainland, and vice versa. This was a decision which required sensitivity of approach and, at the very least, an opportunity for discussion about alternative options such as a new financial package which would redress the financial balance to remove the burden from the UK taxpayer.

35. We believe the lack of consultation, and discussion of possible options, with each Crown Dependency was a failing in the UK Government's approach to its responsibilities in deciding the future of the Reciprocal Health Agreements. The fault appears to lie primarily with the Department for Health but we are left with the clear impression that the Ministry of Justice failed to take responsibility for intervening to ensure that a proper procedure was followed. It is simply unacceptable for the Isle of Man to be told, without warning, at a meeting on 1 July 2008 that the Reciprocal Health Agreement would be terminated; and this in the absence of an official from the Ministry of Justice, the department charged with ensuring representation of the Island interests within the UK Government. Nevertheless, we welcome the extension of the Reciprocal Health Agreement with the Isle of Man for a further six months pending further negotiations.


11   Prior to the creation of the Ministry of Justice, both the Home Office and the Department for Constitutional Affairs have had responsibility for the relationship with the Crown Dependencies. Back

12   Qq 14, 17, oral evidence on The Work of the Ministry of Justice, 7 October 2008, HC 1076-i Back

13   Q 15, oral evidence on The Work of the Ministry of Justice, 7 October 2008, HC 1076-i; Crown Dependencies: evidence taken, First Report of the Justice Committee Session 2008-09, HC 67, Ev 6 Back

14   Q 45 Back

15   Ev 87 Back

16   Q 87; Ev 88 Back

17   Ev 87 Back

18   Ev 46; Ev 50; Ev 71; Ev 92 Back

19   See also HC Deb 23 March 2010 Col 123 Back

20   Q 15, oral evidence on The Work of the Ministry of Justice, 7 October 2008, HC 1076-i Back

21   Q 19, oral evidence on The Work of the Ministry of Justice, 7 October 2008, HC 1076-i Back

22   Ev 71; Ev 93-94  Back

23   Ev 93-94 Back

24   Ev 46 Back

25   Ev 70 Back

26   Ev 71 Back

27   Ev 96; Ev 104; see also Qq 76-77 Back

28   Q 84 Back

29   Ev 88 Back

30   Q 105; http://www.cabinetoffice.gov.uk/secretariats/economic_and_domestic/legislative_programme/guide_html.aspx Back

31   http://www.cabinetoffice.gov.uk/secretariats/economic_and_domestic/legislative_programme/guide_html/
preparing_the_bill.aspx; http://www.cabinetoffice.gov.uk/secretariats/economic_and_domestic/legislative_programme/guide_html/crown_dependencies.aspx 
Back

32   http://www.dca.gov.uk/constitution/crown/bg-info-crown-dependencies.pdf Back

33   Q 85 Back

34   Ev 94 Back

35   Ev 93 Back

36   Ev 93; see also Q 68 Back

37   Foot, M., (2009) Final report of the independent Review of British offshore financial centres. Available at http://www.hm-treasury.gov.uk/indreview_brit_offshore_fin_centres.htm; see Appendix 3 for a summary of the main recommendations. Back

38   Q 25, oral evidence on The Work of the Ministry of Justice, 7 October 2008, HC 1076-i Back

39   The Agreements with Jersey and Guernsey have already come to an end; the Agreement with the Isle of Man was due to terminate with effect from 1 April 2010 but has recently been extended for a further six months pending further negotiations. Repatriation costs following illness were not covered under the Reciprocal Health Agreements, so termination has no effect on repatriation costs incurred by patients. In addition, the termination of the Reciprocal Health Agreements does not affect the arrangements by which the Islands purchase treatment on the UK mainland for Island patients whose medical needs cannot be met on the Island.  Back

40   Q 117 Back

41   Report to Tynwald October 2009: The ending of the Reciprocal Health Agreement between the United Kingdom and the Isle of Man, available from http://www.gov.im/dhss/reciprocal_agreement/ Back

42   Q 121. See also Ev 82. Back

43   HC Deb 23 March 2010 Col 32WS Back

44   Ev 101 Back

45   Ev 48 Back

46   Lord Bach disagreed that the manner of the Department of Health was "high-handed": Q 119 Back

47   Q 123 Back


 
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