Last month the UK’s House of Commons Justice Committee published their second report into the ‘Constitutional Relationship with the Crown Dependencies’.
As we’ve explained before, the UK’s Justice Committee is charged with examining the Crown Dependency/UK relations as the UK’s Ministry of Justice is the designated UK department with responsibility for the islands. These Committee inquiries and reports are an opportunity for the Crown Dependencies to air grievances, talk about potential sticking points and sometimes even celebrate the successes which stem from our relationship. They generally contain some great insights into the functioning of policy, law-making and constitutional processes between us and the UK.
The most recent report from the Committee, The Constitutional Relationship with the Crown Dependencies, was published last month and has a lot of recommendations. We’ve analysed the report and highlighted some of the ones which we think are the most interesting.
1/ Increased awareness could improve the relationship between the UK Government and the Crown Dependencies
The report is keen to highlight that the Ministry of Justice (MOJ) and the Crown Dependency Governments have a good working relationship. The MOJ is the UK Government Department responsible for the relationship with Jersey, Guernsey and the Isle of Man and through their Crown Dependency team facilitate communication between our Government and the wider UK government.
It’s clear from the evidence that the MOJ has a good understanding of the constitutional set-up and the limits which apply to the UK when dealing with the Crown Dependencies. However, the report also highlights that that knowledge doesn’t extend to all government departments and recommends that a programme is put in place to remind UK Civil Servants (and Ministers) that we aren’t the Isle of Wight, both through education and training and possibly seconding them to the Isle of Man Government.
The written and oral evidence also highlights the fact that the relationship between the Island Government’s and the MOJ has changed over the years, most notably as a result of Brexit and Covid, creating a lot more direct engagement with individual departments. As a result, the committee suggests that the UK should explore whether another department (specifically the Cabinet Office) should have more of a role to play in managing interactions.
We’re all for greater expanding the understanding of our constitutional status in Whitehall. It has the potential to speed up working a limit potential overreach and misrepresentation.
2/ Formalising International Identity
Whilst seemingly forgotten by the Isle of Man Government, 2007’s ‘International Identity Framework’ agreed by the CDs and the UK is supposed to form the basis for our external relations approach. It’s relatively short and is more focused on broad principles rather than the details. The committee recognised the importance of this document and highlighted that in its current form, it is comparatively weak and can (should the UK wish) be ignored as it’s not backed up by an Act of (the UK’s) Parliament. The report suggests updating and formalising the framework.
We think that this could be a good opportunity but that it should be approached with caution. A stronger framework document would empower the Isle of Man Government to take action on external relations and clearly set out its responsibility. However, the potential exists for a power-grab and rolling back of the role of the Crown Dependency governments in external relations by the UK - something we don’t believe is in the Island’s interest. Guernsey and Jersey are making great strides in developing their international identity. The Isle of Man should align with the other Crown Dependencies to gain maximum benefit from the 2007 framework.
3/ Extending UK legislation to the Islands
To get your head around this recommendation we first need a ‘quick’ recap on the extension of UK legislation to the Crown Dependencies (sorry)...
UK legislation doesn’t ordinarily apply to the Crown Dependencies. However, UK legislation can be extended to them should a Government wish. This is done by including a ‘Permissive Extent Clause (PEC)’ in the UK’s bill allowing for certain parts of, or the entire document, to apply to the Islands. Ordinarily, it takes place following consultation between the UK Government and the Governments of the Isle of Man, Jersey and Guernsey. In the Channel Islands, the legislation also has to be approved by a vote in their respective parliaments before it can be applied. This is something the Isle of Man doesn’t need to do.
This process has been used a fair amount in recent years by all three CD governments and on the face of it, has some benefits. It can quickly and simply bring the Islands in line with the UK, without taking up the time of domestic legislative drafters. However, there are several pitfalls to this approach and many of these were flagged in the committee sessions.
The most glaring issue was flagged by Guernsey, who raised two instances where the proper process had not been followed. The first of which saw the UK include a provision in a Fisheries Bill despite the explicit request by the Channel Islands not to do so. In his evidence, Jonathan Le Toq called the PEC “a surprise, a disappointment and a serious concern” and said that it showed a “political shift in the UK demonstrating a willingness to interfere with longstanding constitutional principles for short-term political gain.”
The second incident came in 2023, during the Illegal Migration Bill Debate. Whilst Guernsey had signed up to a PEC, much to their surprise the bill they agreed to ended up looking significantly different to the one which was presented to the UK parliament.
Whilst the UK Government continues to argue that it was within its rights on fisheries legislation and that it does its best to ‘keep in touch’ with the Governments of the Crown Dependencies as the legislation progresses, the Committee didn't accept this line and agreed with Guernsey’s assessment.
These failures should be concerning to the Isle of Man Government and highlight that the current system has some significant opportunities for things to, at best, fall through the cracks and, at worst, be used to deliberately extend the legislation to the Crown Dependencies which they dont want. We’re glad to see that both the UK’s Justice Select Committee and Tynwald’s own CLAJ committee have called for this process to be reviewed and tightened up.
4/ Let’s talk trade
The headline of this report was firmly centred around trade. Post-Brexit, the UK has been scrambling to sign trade deals with other countries (something which it hasn’t really done in a while). As the Isle of Man is not an independent country, it cannot ordinarily be a signatory or a partner in a trade deal in its own right but it can tell the UK that it wants to sign up to what they’re doing.
In these cases, the UK is responsible for representing us, on the advice of the Isle of Man Government. It’s important to note that in these negotiations, our Government isn’t in the room and the UK is supposed to be the voice of the Isle of Man, even when its position differs from what the UK wants.
What’s clear from the committee’s report is that the process as it currently stands has had some serious issues.
The most significant of these being with the CPTPP - the UK’s flagship trade deal. From problems with communications and updates being shared, (which put Jersey off), to most critically, the UK’s failure to include Guernsey and the Isle of Man in the ‘services’ aspect of the deal - something which is fairly for a service-based economy like the Isle of Man, the report is clear that things could have been handled better by the UK.
Whilst it’s not a surprise that the committee highlighted these issues as a problem, what is perhaps surprising is the strength of their recommendation. The committee calls for formal representation for the Isle of Man, Jersey and Guernsey in future trade deals negotiated by the UK and a formalisation of the process for the UK Government to engage with the Government's of the Islands to keep them in the loop.
This would mean that in future the Crown Dependencies would be formally represented on the negotiating panel (either by UK Civil Servants or officers from the Island Governments) with a specific remit to represent the interests of Jersey, Guernsey and the Isle of Man.
5/ Entrustment
Linked to trade are the recommendations around ‘Letters of Entrustment’. These are essentially a process by which the UK acts as a guarantor for the Crown Dependencies to enter into international agreements. This arrangement has been used (to some success) in the past with specific agreements on tax and health but the scope of what these can cover is limited and as this process is managed through the MOJ, it can take an ‘excruciating’ amount of time to get anything agreed.
In their evidence submissions, both Jersey and Guernsey were keen to expand the policy areas covered by entrustment and pointed to the Faroe Islands as an example of how this could operate. The Faroe Islands, which are a country within the Kingdom of Denmark, have broad powers to negotiate international treaties on matters which are the responsibility of the Faroese Government.
Whilst the UK Government was sceptical that this could work and was resistant to it being explored, the Committee’s recommendations seemed to side firmly with the Islands. Their recommendations called for the “increased use of Letters of Entrustment so that Crown Dependencies can enter into their own international agreements and further develop their international personalities.” and recommended the “extension of general entrustments to other types of international agreements.”
Both of these recommendations present significant opportunities for the Isle of Man to a more active role on the international stage, collaborating with countries and regions on specific policies and ensuring that trade deals and agreements reflect the needs and wishes of the Island.
Summing Up
Put simply, we think this report and its recommendations present some pretty good opportunities for the Isle of Man. If implemented, they would help to prevent UK overreach in Manx affairs, clarify our role in terms of external relations and allow us to engage with other countries much more regularly and in a potentially more beneficial way.
But it’s important not to get too excited. Many of the more progressive suggestions were met with opposition and scepticism from the current crop of UK ministers and civil servants and are contrary to the ‘centralising power push’ that the UK Government has been on post-Brexit.
Regardless, we believe the Isle of Man Government should continue to work with our colleagues in the Channel Islands to advocate for the Committee’s recommendations and also should work domestically to ensure that the potential issues raised within the report (i.e. PECs and lack of understanding of our status in Whitehall) are addressed as a matter of urgency.
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