Crown Dependencies - Justice Committee Contents

3  Good government

    The Crown has ultimate responsibility for the good government of the Islands.

    — Kilbrandon Report, para 1361

36. Kilbrandon explains that the basis on which the Crown has ultimate responsibility for the good government of the Crown Dependencies stems partly from the fact that, with the UK, they are all part of the British Isles. Whilst this did not make uniformity essential, it was "nevertheless highly desirable that the institutions and the practices of the Islands should not differ beyond recognition from those of the United Kingdom". All parties were in favour of the Crown Dependencies expressing their individuality, but it was recognised that "the British Islands were an entity in the eyes of the world, and the United Kingdom Government would be held responsible internationally if practices in the Islands were to overstep the limits of acceptability".[48]

37. There is a high degree of consensus amongst academics, legal advisors, politicians and officials about the meaning of the term "good government" used in the Kilbrandon Report.[49] They agree that good government would only be called into question in the most serious of circumstances, exemplified by the recent events in Turks and Caicos which did, indeed, lead to UK Government intervention.[50] Such circumstances are likely to include a fundamental breakdown in public order or endemic corruption in the government, legislature or judiciary. Kilbrandon himself gives a restrictive view of the circumstances which would legitimately give rise to the duty of the UK Government to intervene in insular affairs on the ground of good government, whilst recognising that those circumstances need not be too tightly defined:

    There is room for difference of opinion on the circumstances in which it would be proper to exercise that power. Intervention would certainly be justifiable to preserve law and order in the event of grave internal disruption. Whether there are other circumstances in which it would be justified is a question which is so hypothetical as in our view not to be worth pursuing. We think that the United Kingdom Government and Parliament ought to be very slow to seek to impose their will on the Islands merely on the grounds that they know better than the Islands what is good for them; there is ample evidence in the differences between United Kingdom and Island legislation in social matters to show that this policy has in fact been followed for very many years.[51]

Kilbrandon suggests that intervention to preserve law and order or in the event of grave internal disruption would be justifiable, but that an attempt to define the circumstances further would be essentially pointless. He points to ample evidence of a policy of restraint in the use of power on the part of the UK Government as a reason for not pursuing the matter.

38. The current ministerial team are clearly following this non-interventionist policy. The Justice Secretary told us that he has the power to intervene in insular affairs on the ground of good government, but that he had not found it necessary to do so. He favoured a collaborative approach, whereby the UK Government and the Crown Dependencies worked together to anticipate any problems which might conceivably arise and deal with them in good time in order to prevent the need for active intervention.[52] Closely following the Kilbrandon formulation, Lord Bach stated in the House of Lords that intervention in circumstances of "grave breakdown or failure in the administration of justice or civil order" would be justified. However, he added—paraphrasing the Kilbrandon Report—that "It is unhelpful to the relationship between Her Majesty's Government and the Islands to speculate about the hypothetical and highly unlikely circumstances in which such intervention might take place.[53]

39. Some people have argued that certain events, such as those arising out of the historic child abuse inquiry in Jersey, are serious enough to warrant intervention in insular affairs by the UK Government.[54] Underlying these calls for UK intervention is a belief either that UK responsibility for domestic affairs in the Crown Dependencies has been engaged by events serious enough to fall within the definitions set out in the Kilbrandon Report; or that the UK's responsibilities are actually much wider than the definitions set out in the Kilbrandon Report. Either way, such beliefs create expectations of UK intervention which are not fulfilled.

40. Calls for the UK Government to intervene have been declined by the Justice Secretary:

    You have to be very careful about exercising [the power to intervene on the ground of good government] and it will be known that I have had representations in respect of certain criminal proceedings … and I have declined to intervene in those, as far as I am concerned, on good grounds.[55]

41. We note the depth of feeling of some witnesses to this inquiry who have indicated serious grievances with various aspects of the governance of the Crown Dependencies and their desire for the UK Government to step in to address their concerns. However, the Crown Dependencies are democratic, self-governing communities with free media and open debate. 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.


42. Sark is part of the Bailiwick of Guernsey. It has its own legislative and executive body, the Chief Pleas, and legislation from the States of Guernsey can only be applied to Sark with its consent. Chief Pleas has legislative competence in relation to domestic matters except for criminal law, which is reserved for the States of Guernsey.

43. Until 2008, Sark's government was based on a feudal system. The Seigneur, a hereditary position, was the head of government. Chief Pleas was made up of the feudal landholders—the Tenants—and twelve deputies of the people. The Seneschal was the presiding officer and Chief Judge. This arrangement came to be considered untenable in the light of human rights law, and the long process of reform was started.

44. Without setting out the minutiae of the tortuous reform process, it is sufficient to note that, since the Sark Reform Law 2008, Chief Pleas has been a democratically elected body. It is made up of 28 Conseillers, elected by universal adult suffrage for the first time on 10 December 2008, the Seneschal, who remains presiding officer and Chief Judge, and the Seigneur.

45. For the purposes of this Report, Chief Pleas is interesting for two reasons. First, during the reform process, the Justice Secretary rejected the first formulation of the new legislature after it had been passed by Chief Pleas but before it received Royal Assent. He declined to recommend the proposed law for Royal Assent on the basis that it was inconsistent with basic democratic principles, some of which were set out in the European Convention on Human Rights.[56] In other words, Royal Assent was withheld on the basis that the law was not compatible with the UK's duty to ensure compliance with international obligations. Our impression is that the Justice Secretary also regarded this as a "good government issue".[57] When a revised law was resubmitted by Sark, the Justice Secretary judged it to be acceptable and recommended it for Royal Assent, which it duly received.[58] Refusal of Royal Assent is a relatively rare occurrence as most inconsistencies are normally addressed through dialogue and collaboration before an Island parliament passes a law.[59]

46. Second, although Sark now has a democratically elected government which is judged to comply with international human rights obligations by both the Justice Secretary and the Supreme Court[60], a question mark has been placed over its continued ability to function properly. When we visited Sark, we were told of the considerable economic and political power exercised by Sir David and Sir Frederick Barclay. They are major employers on Sark and own a considerable amount of land and businesses there. It follows that the livelihoods of many Sark's people depend on them.

47. This was amply demonstrated by the events which followed the first democratic election on Sark in December 2008. In the poll, all but two of the Barclays' publicly preferred candidates for election to Chief Pleas were rejected, whereas nine of the successful candidates had, prior to the election, appeared on the brothers' published list of candidates described as "dangerous to Sark's future". The following day, the Barclays closed down a number of businesses they owned and stopped their building projects on the Island. As many as 140 (estimates differ) of the 600 inhabitants were out of work until the Barclays reopened most of their businesses a few weeks later.[61]

48. We were also told that the Barclays were engaged in a long-running battle of attrition with individuals, particularly Members of Chief Pleas, whereby the Barclays repeatedly instructed their lawyers to write to individuals demanding retractions or apologies in order to protect their interests and reputation.[62] We were told that such legal action rarely comes to court because the Islanders involved often cannot afford to defend themselves and simply capitulate, however unwillingly. We have not tested these allegations in evidence and we do not intend to take sides or make judgement on these issues.

49. 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.

48   Part XI of Volume 1 of the Report of the Royal Commission on the Constitution, 1969-1973, Cmnd 5460, para 1431 Back

49   Qq 3-5, 15 Back

50   After allegations about corruption in the Turks and Caicos Islands, a Commission of Inquiry was set up in July 2008, under Sir Robin Auld, to examine the conduct of past and present elected members of the legislature. On 31 May 2009, Sir Robin reported confirming a high probability of systemic corruption and/or serious dishonesty and clear signs of political amorality and immaturity and of general administrative incompetence. He recommended the urgent suspension in whole or in part of the territory's constitution and other legislative and administrative reforms. An Order in Council (Turks and Caicos Islands Constitution (Interim Amendment) Order 2009) suspended Ministerial government and the House of Assembly from 14 August 2009. The Governor is leading a programme of reform. Back

51   Part XI of Volume 1 of the Report of the Royal Commission on the Constitution, 1969-1973, Cmnd 5460, para 1502 Back

52   Q 34, oral evidence on The Work of the Ministry of Justice, 7 October 2008, HC 1076-i Back

53   HL Deb 3 May 2000 Col WA180 Back

54   Ev 29; Ev 34; Ev 50 Back

55   Q 17, oral evidence on The Work of the Ministry of Justice, 7 October 2008, HC 1076-i Back

56   Qq 52, 90; Qq 14, 17 & 34, oral evidence on The Work of the Ministry of Justice, 7 October 2008, HC 1076-i Back

57   Q 91; Q 17, oral evidence on The Work of the Ministry of Justice, 7 October 2008, HC 1076-i Back

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

59   Q 18 Back

60   R (Barclay and others) v The Lord Chancellor and Secretary of State for Justice and others [2009] UKSC 9 Back

61   Barclay brothers lose court battle against old ways of ruling Sark, The Guardian 2 December 2009; Return to Sark, The Guardian, 23 March 2009; Barclays reinstate Sark staff sacked after poll, The Independent 30 January 2009; It's the Siege of Sark as islanders keep the Barclay brothers at bay; The Times, 20 December 2008; Leading article: Sark: No island is an island, The Guardian, 15 December 2008; Barclay twins freeze Sark operations, Financial Times 12 December 2008; Feudal state poll unlikely to end feuding, Financial Times 8 December 2008 Back

62   Growing power of Barclays stirs unease, Financial Times 8 December 2007 Back

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