Second Report - The constitutional relationship with the Crown Dependencies

There is a very positive working relationship between the Crown Dependencies and the Ministry of Justice. Engagement has clearly improved in recent years with both planned and spontaneous contact and communications taking place much more frequently between officials, the Minister and the Lord Chancellor. More regular contact should be established between senior officials in the Ministry of Justice, namely the director, the director general and permanent secretary, and the Crown Dependencies. This should be actively offered, rather than the Crown Dependencies having to request it, and become a routine part of Crown Dependency and Ministry of Justice engagement. The permanent secretary should meet her counterpart in each Crown Dependency at least twice a year.

The Ministry of Justice Crown Dependencies team has a substantial workload which is likely to increase in the coming years. We believe that the team is under pressure as a result and there is a risk that their work, which is currently extremely good, could suffer as a result. While we welcome the recruitment of a new grade seven official to the Crown Dependency team, the Ministry of Justice should increase staffing yet further to manage the increase in work associated with trade deals. This would also enable team officials to undertake regular work placements in Crown Dependency governments, with reciprocal arrangements in place enabling Crown Dependency officials to spend time in UK Government departments.

We believe there is a good understanding of the constitutional relationship across Whitehall as a result of the Ministry of Justice’s awareness-raising work. Nevertheless, to take account of turnover among officials and Ministers, the Ministry of Justice must ensure that these efforts are ongoing. Ahead of the general election, the Ministry of Justice should prepare a programme of education, guidance and awareness-raising on the constitutional relationship in case there is a new administration. The Lord Chancellor should write to each Minister in each UK government department as soon as possible after the general election to remind them of their responsibilities towards the Crown Dependencies. (Paragraph 20) Relationship between other UK Government departments and the Crown Dependencies

The advent of direct engagement between Crown Dependencies and other UK Government departments is a very positive step. It underlines the importance of the Ministry of Justice’s work in raising awareness across Whitehall of the constitutional relationship. To help reinforce relationships and further increase awareness, there should be greater use of secondments between the Crown Dependencies and UK Government departments. We recommend that, to start with, secondments of officials from the Department for Business and Trade and Her Majesty’s Treasury to the Crown Dependencies might be most fruitful. The first of these secondments should begin before the general election. (Paragraph 25) The constitutional relationship with the Crown Dependencies 31

Working relationships between UK Government departments and the Crown Dependencies should be underpinned by early and regular engagement and consultation. This will ensure that they can properly consider what action they may need to take and have time to follow their own democratic processes. The Ministry of Justice should update its existing ‘How To Notes’ to include a specific emphasis of the need for UK Government departments to take the approach to engagement that we have just outlined.

The advent of direct engagement between the Crown Dependencies and UK Government departments raises the question of the Ministry of Justice’s role in the event of a disconnect or dispute arising between a Crown Dependency and a department. We agree with Minister Freer that the Ministry of Justice’s role is to ensure that the Crown Dependencies’ interests are understood and to facilitate dialogue and understanding between the parties and enable them to move forward.

We recommend that the UK Government consider whether the Cabinet Office could potentially have a role, alongside the Ministry of Justice, in facilitating engagement on urgent matters requiring the involvement of several UK Government departments.

The active consideration being given by the Lord Chancellor and Minister Freer to the framework for the relationship between the Ministry of Justice and the Crown Dependencies is welcome. The Ministry of Justice should consult the Crown Dependencies on the feasibility of formalising such a framework and what it could usefully contain, building on the existing International Identity Frameworks. For example, we believe that it could usefully set out expectations for engagement and consultation and clarify the Ministry of Justice’s role in the event of a dispute. (Paragraph 32) Participation in international trade deals

The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) was unusual in that the UK was joining an existing trade agreement and had to comply with an existing text. This had implications for the negotiation process and the outcome it was possible to achieve for the Crown Dependencies. However, the CPTPP negotiation process provides lessons for how the Crown Dependencies could be more effectively involved in negotiations in the future.

We acknowledge that, given their economies and ambitions, it was a disappointing outcome for the Crown Dependencies not to be covered by the Service and Investment chapters of the CPTPP from the outset. The UK Government’s aim for all future trade agreements should be for the Crown Dependencies to be covered by services as well as goods chapters from the outset. Where this does not prove possible, extension mechanisms should routinely be sought.

We are very conscious that trade negotiations are complex, often extremely fast paced and, as Minister Hands pointed out, require the Department for Business and Trade to operate “in a corridor of what is deliverable and negotiable”. Nonetheless, improvements to the process for the Crown Dependencies can and should be made. 32 The constitutional relationship with the Crown Dependencies Therefore, we recommend that for future trade agreement negotiations the Crown Dependencies, Ministry of Justice and Department for Business and Trade should work together to identify a set of principles to guide effective engagement during the negotiation process. We recommend that they should include early and comprehensive engagement from the outset to conclusion; early sight of relevant documents; real time updates; and reasonable timeframes for provision of responses and information. During particularly time-pressured periods, we recommend that there should be officials in the room acting as a conduit for information to and from the Crown Dependencies in real time.

Overall, we believe that the Crown Dependencies should be represented during negotiations by specifically designated officials either from the UK Government or the Crown Dependencies.

Representation of the interests of the Crown Dependencies in international relations is not optional, according to whether or not their interests are in line with those of the UK: it is the UK Government’s duty. In cases of conflict, the Ministry of Justice must endeavour to find a mechanism for representation which will faithfully present and serve the interests of both parties. Having the Crown Dependencies represented during negotiations by specifically designated officials would go some way towards addressing this issue.

The Department for Business and Trade’s approach to the Crown Dependencies’ compliance with international obligations appears to be different at Ministerial and at official level. The position outlined by Minister Hands that “they must be compliant with the international treaty” is correct. The Department for Business and Trade should review the approach its officials are taking to ensure consistency with this. Measures taken by the Crown Dependencies to comply with international obligations are not required to mirror UK legislation but should instead reflect their unique characteristics. Furthermore, the Department for Business and Trade must ensure that comprehensive feedback on compliance assessments completed by Crown Dependencies is routinely and promptly provided so that they can take steps to become compliant, if need be.

Extension mechanisms in several free trade agreements, including the CPTPP, have already been obtained by the UK Government. It is important to proceed with activating these mechanisms so that the approach can be tested and, if necessary, refined and improved. This should happen as soon as possible and the Department for Business and Trade and the Crown Dependencies should proceed immediately with the work necessary to ensure compliance.

Aware that time is often of the essence when negotiating international agreements, we recommend that the Ministry of Justice and the Crown Dependencies work together to identify how the entrustment process could be streamlined, speeded up and improved, and adapt their ways of working where necessary to achieve this, with the objective of achieving a signed off letter within an ambitious timeframe. A useful first step in helping to speed things up would be to improve understanding of the process across Whitehall and, to this end, we recommend the Ministry of Justice publishes a ‘How To Note’ on entrustment, accompanied by awareness-raising training for UK Government departments on the topic. (Paragraph 60) The constitutional relationship with the Crown Dependencies 33

In line with another of our predecessors’ conclusions, we strongly support the increased use of Letters of Entrustment so that Crown Dependencies can enter into their own international agreements and further develop their international personalities. In particular, we recommend the extension of general entrustments to other types of international agreements. We understand that there are legal complexities in doing so but are not persuaded that they are significant enough to act as a barrier to issuing further general entrustments, especially when there are already two in existence. (Paragraph 61) Legislation

We are pleased to hear that the process by which Royal Assent is granted to primary legislation from Guernsey is being streamlined, similar to that which already operates for the Isle of Man, and anticipate that, once implemented, it will avoid the delay which occurs during periods when the Privy Council does not sit. We note that a similar process could readily be implemented in Jersey, but this is obviously a matter for the Government of Jersey to determine. In the meantime, we recommend that the Ministry of Justice explores with the Government of Jersey the potential options for streamlining their process of obtaining Royal Assent.

The inclusion of a Permissive Extent Clause (PEC) in the Fisheries Bill was extremely regrettable and contrary to the constitutional relationship. We do not agree with the Government’s assertion that it was a “legitimate act” and “soundly within the constitutional relationship”, but rather consider it to have been a serious interference in long-established constitutional principles for short-term political reasons. We expect that the usual approach—mandated in the Ministry of Justice’s own guidance—of consultation and consent with regards to all future PECs will now prevail.

We note the concerns raised in the evidence about the extent of the Home Office’s consultation with the Government of Guernsey on the Illegal Migration Bill. The Ministry of Justice’s Crown Dependency team should initiate a dialogue as soon as possible between the relevant officials in the Home Office and the Government of Guernsey so that concerns can be discussed and addressed for the future. The Ministry of Justice should review its guidance on the extension of UK legislation to the Crown Dependencies with a view to ensuring that sufficient emphasis is placed on the need for ongoing consultation—or, as the Minister said, to “remain in touch”—throughout the passage of a bill and as new versions and draft clauses are published.

We also recommend that the Parliamentary Business and Legislation Cabinet Committee and its Chair, the Leader of the House, should include, as part of its regular scrutiny of bills before their introduction to Parliament, consideration of the extent to which UK legislation would impact the Crown Dependencies, as is already done in relation to the Devolved Administrations. (Paragraph 75) Conclusion: The future of the relationship

We wish to emphasise that the UK’s taking responsibility for its own international trade policy affords a real and very significant opportunity to make the most of the 34 The constitutional relationship with the Crown Dependencies economic relationship with the Crown Dependencies. They are valuable members of the British family and their important cultural and economic contributions deserve greater recognition. We recommend that the Department for Business and Trade formally assesses their contribution to the UK’s offer in trade negotiations and how their economic role can be better and more strategically promoted to potential trading partners, including the possibility of including them in the strategic approaches to free trade agreements that it publishes. (Paragraph 77) The constitutional relationship with the Crown Dependencies 35