This week saw Chief Minister, Hon. Alfred Cannan MHK visit London to speak to the UK’s House of Commons Justice Select Committee along with the External Relations Ministers of Jersey and Guernsey. Whilst a relatively routine engagement and one which was packed with political platitudes, the oral and written submissions provide an insight into the mood in Douglas, St Helier and St Peter Port and crucially gives a readout on the issues and the appetite for reform.
Chief Minister Alfred Cannan MHK at the UK's Justice Select Committee
The full session, which can be watched here, covered a number of topics including the relationship between the Crown Dependencies and the Ministry of Justice and the broader UK Government, the extension of UK legislation to the CDs, treaty negotiations and constitutional reform.
Below is a short summary of some of what we saw as the key points from the session.
TL;DR:
All governments generally happy with engagement from MOJ, have seen more of an uptick in engagement post-Brexit and Covid with direct department-to-department engagements on the rise.
Issues around UK government staffing have meant there have been challenges.
Jersey and Guernsey have expanded their external relations team and are taking a more proactive approach.
Issues surrounding the CPTPP from the UK government meant the Isle of Man and Guernsey were not fully included, despite the fact we asked to be.
Post-Brexit legacy issues exist around fishing and workers for the Isle of Man.
Proper procedure hasn't always been followed by the UK Government, which has seen some attempts to extend legislation to the Channel Islands against their wishes.
Guernsey and Jersey want the ability to enter into more international treaties and agreements.
Why the Justice Committee?
Before we look at the content of the committee The UK’s Department of Justice (MOJ) is responsible for managing the relationship between the crown dependencies and the UK government with the Lord Chancellor and Secretary of State for Justice serving as the Privy Counsellor with special responsibility for Island affairs.
They are supported by a junior Justice Minister who is responsible for the conduct of Crown Dependency business within Whitehall and a small team of civil servants who deal with the day-to-day.
In practical terms, this means the governments of each of the crown dependencies engage with the MOJ on a number of issues, including sharing legislative developments, dealing with key Crown Appointments, processing legislation for Royal Assent and issuing Letters of Entrustment authorising Crown Dependency Governments to negotiate and conclude international agreements.
Direct engagement with other departments does occur but the Ministry of Justice is supposed to be the official conduit through which the Crown Dependencies deal with the UK government, with the MOJ also tasked with highlighting the dependencies' unique status to other government departments when appropriate and feeding information back to the Governments of the Isle of Man, Jersey and Guernsey.
Generally Positive Vibes:
Both written and oral evidence was keen to highlight the benefits of the relationship between the CDs and the UK, repeatedly making reference to the Island’s role as part of the ‘British family’, with Jersey going so far as to call themselves ‘British Jersey’. Ministers highlighted the increased dialogue between the CDs and the UK government, post-Brexit and during COVID, as well as the support of the Crown Dependencies Directorate even if resources were increasingly limited and posts remained unfilled. These issues seemingly have been compounded by the fact that the UK government has taken on additional responsibilities post-Brexit.
Reflecting on a period of instability within the UK Government, Ministers from the CDs stated that there had been increased engagement with the UK in recent months, with Cannan highlighting his recent trip to London to meet with Mike Freer, Parliamentary Under Secretary for Courts and Legal Services. However, staff turnover and staffing issues within the MOJ and more widely across the UK government were repeatedly flagged and may explain some of the problems we’ll touch on later.
There was a sheepish desire expressed for more engagement with senior civil servants and Cabinet Secretaries in departments other than Justice but the Isle of Man in particular emphasised the importance of direct relationships between IOM and UK Government departments.
Similar in status, different in issues:
What is very clear from the evidence session is that whilst all three crown dependencies hold the same status in the eyes of the UK and sometimes take a united approach when dealing with the UK government, there are unique issues based on geography, history and government aspirations and that is not always understood or known by the UK Government and UK parliamentarians.
Benefits of expanded external relations:
Jersey and Guernsey were keen to highlight the investment they have made in external relations teams, with Minister Ozef of Jersey focusing on the value of the Jersey London Office, the Channel Islands Brussels Office and the office in Normandy and the recent placement of a member of staff at the UK’s Embassy in Paris This is a first for any of the Crown Dependencies, although similar arrangements exist for the devolved nations of the UK. Ozef also mentioned something we picked up on in our CLAJ evidence session, that Jersey had recently expanded their external relations team into a full-blown ministry.
Guernsey’s also highlighted their work following the creation of their Constitutional Investigations Committee in 2014, which aims to “investigate proposals on greater autonomy in relation to legislative processes and in relation to its international identity and international affairs.” It is worth noting that Jonathan Le Tocq’s official title is Minister for External Relations and the Constitution.
Whilst the starting point for much of this work is the 2007 International Identity frameworks, oral evidence indicated that the recent expansion and focus had come from capacity issues from the UK and a desire to be proactive from Jersey and Guernsey.
Legacy Issues Post-Brexit:
All three Crown Dependencies indicated that there were a number of ongoing issues as a result of the UK leaving the EU. Whilst Jersey was keen to highlight the fact that there would be no need for British warships in its territorial waters, both they and Guernsey flagged issues around increased paperwork for agriculture and fisheries, ID requirements causing problems at the border and the 90-day within the 180-day rule for ‘British’ Islanders visiting the continent causing problems for those who have houses there.
In an aside which felt more like a sales pitch, Jersey also spent a lot of time, somewhat awkwardly, talking about the quality of its lobsters and their desirability in France.
For the Isle of Man, fishing and a labour shortage were key issues raised. The Isle of Man government is currently in discussions with the UK Government and the devolved nations in order to develop a new fisheries management strategy.
A bespoke visa channel:
Following the conversation about worker shortages in all of the Crown Dependencies, the Chief Minister raised that the Isle of Man was currently looking at its own visa pathway for certain workers and is currently developing the policy. Whilst Manx immigration rules are similar to the UK, they are not identical and the Isle of Man has the power to create its own bespoke system.
However, the Chief Minister did flag that doing so is a complex bit of work and requires negotiation, as the UK would be the point of entry for workers seeking to move to the Isle of Man - as most international passengers need to transit through there. There was not a huge amount of detail given on this and it was not elaborated on in the written evidence.
Issues around the CPTPP:
A lot of time was spent discussing the Comprehensive and Progressive Agreement for Trans-Pacific Partnership and for good reason. Whilst the Isle of Man is self-governing the UK is responsible for representing us and our interests in international agreements and treaties such as the CPTPP.
Both the Isle of Man and Guernsey (although Guernsey really took the lead) expressed their unhappiness with the handling of the UK’s ascension to the CPTPP and the failure of the UK negotiators to communicate updates or engage with CD teams.
The Isle of Man had sought to be fully included in the trade partnership for goods and for services, however during the process it became clear that this was not the case. This only came to light through separate talks between Guernsey and Canada.
Whilst the ministers praised the quick and effective action from Greg Hands (a UK Government Minister), the end result was that the Isle of Man and Guernsey only being included for goods with the Manx Government’s written evidence stating, the “Isle of Man Government had hoped that full cover for the Isle of Man from the outset may be achievable, it did not, in the end prove possible. During the course of negotiations we did, however, complete a great deal of compliance work and although full participation in that agreement, from accession, did not prove to be achievable, the work can be used in respect of other agreements.”
They did state that they do not believe that this will be the case in future and that the CDs will be engaged.
A request to be in the room:
Following on from the conversation on trade deals, there was a suggestion that a representative from the Crown Dependencies be included in trade discussions in the future, to ensure that the needs of the CDs were reflected throughout the process.
Peculiarities around permissive extent clauses:
As we referenced in our report there have been recent examples of the UK government following the incorrect procedure when it comes to ‘Permissive Extent Clauses’.
Permissive Extent Clauses allow legislation passed in the UK to be applied to the Isle of Man. These require consultation with the Governments of the Crown Dependencies and in Jersey and Guernsey, require the States Assemblies of each of the Bailiwicks (and the Island assemblies in Guernsey) to also approve the legislation
Ordinarily, UK legislation is not extended to the Isle of Man or the Channel Islands without a request from their Government.
Guernsey highlighted that twice in recent years there have been issues with the extension of PECs to the Bailiwick. These have included an incorrect attempt to extend Fisheries legislation to the Islands without their consent and the second related to the Illegal Migration Bill, through which the UK Home Office attempted to pass a version of the bill which was not signed off by Guernsey.
Minister Le Tocq stated in Gurensey’s written submission that “Concerns have been raised with relevant Ministers and officers as the consultation process undertaken did not reflect the constitutional relationship and the agreed process” and reiterated that these kinds of oversights by the UK Government may lead to a constitutional crisis.
It should be noted that Pemissive Extent Clauses do not need to be debated or voted on by Tynwald
Entrustment:
Both Jersey and Guernsey were keen to raise their desire to see greater powers given to the CDs in order to begin to negotiate treaties and agreements with other states, countries and nations. At present, the crown dependencies can enter into some agreements with other countries using a principle known as ‘letters of entrustment’, through which the CD governments are ‘trusted’ to negotiate with other countries on some issues, with the ultimate signatory and ‘ok’ falling to the UK. This has been used extensively for double taxation treaties and more recently for social security agreements, however up until now its scope has been limited.
Jersey and Guernsey have set out their support for greater entrustment both in their international relations strategies and at previous committee sessions.
In oral evidence, Guernsey explicitly called for an approach more similar to the Faroe Islands.
The Faroes, are a country within the Danish realm are often considered to be a close equivalent to the Crown Dependencies in terms of status and level of autonomy. In 2005 the Faroes and Denmark passed the Foreign Policy Act which gave full powers to the Government of the Faroes to negotiate and conclude agreements under international law on behalf of the Kingdom of Denmark where such agreements relate solely to matters which have been fully transferred to the Faroese Authorities.
It is clear that both Jersey and Guernsey see a competitive benefit to an extension of entrustment and framed their push for it around supporting the UK, relieving pressure and ensuring that matters are dealt with in a timely manner by the appropriate authority. Minister Le Tocq was clear that it may not be used all the time and there would be limits, as there are in the Faores.
However, the issue does not appear high on the agenda for the Isle of Man, with the Chief Minister stating, “It’s not something that we’re actively engaged in, we do have the ability to for letter of entrustments. But for us at the moment I think we are sharing slightly different relationship with our customs agreements with the UK, with the health agreements. You know, I don’t think we’ve had the need at the moment to use the letters of entrustment so but that’s probably because of the slightly different relationship we’ve got with the UK.”
Summing Up:
Whilst on the surface cordial, the evidence session highlighted a number of issues both with regards to the CDs relationship with the UK and the Isle of Man’s approach to external relations when compared with the Channel Islands.
It is clear that the churn of the UK government is affecting the practical relationship between the CDs and the UK, leading to oversights and embarrassing mistakes at a critical time, when we need the UK to be working in the Isle of Man's interest, particularly in relation to emerging policies and trade agreements which were previously dealt with by the European Union.
These failings have tested our relationship and one could argue have pushed Jersey and Guernsey to take a more active approach to external relations and a desire, disguised as a helping hand, to represent themselves internationally.
The Isle of Man does not appear to share these aspirations. Whilst both Jersey and Guernsey are very different to the Isle of Man, the evidence shows that the Channel Islands see a benefit to a proactive, coordinated and funded approach to international relations.
We at Reayrtys eagerly await the publication of the External Relations Strategy from the Cabinet Office as set out in the Island Plan, which we hope will shed some light on the Isle of Man's next steps.
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