Written evidence submitted by the Government of Guernsey (RCD0001)

1.              Introduction

1.1              This document includes information on each of the six topics identified by the Committee for consideration, whilst Annex 1 sets out some general information about the Bailiwick of Guernsey, the government of Guernsey (known as the ‘States of Guernsey’) and Guernsey’s relationship with the UK.  This document follows one from August 2021[1] which was submitted to the Committee before a non-Inquiry session in September 2021[2].

2.              Summary

2.1              The Bailiwick of Guernsey’s (‘the Bailiwick’) constitutional, political and operational relationships with the UK have been put under the spotlight and faced some challenges as a result of the UK’s exit from the EU, and more recently by some difficulties during consultation on both international agreements and legislative matters.   However, the governments of the Bailiwick and the UK Government continue to work closely to address any such challenges, resulting in overall gains in the management of the relationship. Engagement with the Ministry of Justice[3], and other UK government departments, has become more frequent and detailed in recent times. 

2.2              It is felt that there are still areas for improvement in the relationship between the governments. An example is parts of the UK Government recognising, understanding and respecting the constitutional relationship and ensuring there is early and effective engagement on matters which may impact the Bailiwick.  It is also important to ensure that UK parliamentarians fully understand the Bailiwick’s constitutional position.

2.3              It is critical that working relationships continue beyond the recent challenges and are used to support the constitutional relationship which the Bailiwick has with the UK and other Crown Dependencies[4] via the Crown.  This will ensure stability in the long-term management and development of the constitutional relationship.

3.              Working relationship with the Ministry of Justice

3.1              During the UK’s withdrawal from the EU and the response to the Covid-19 pandemic, there was more frequent and detailed engagement at Ministerial level between the Guernsey and UK governments than there had been for many years; this was welcomed. Since 2021, when the Committee last reviewed the working relationship between the Crown Dependencies and the Ministry of Justice, meetings have taken place both virtually and in person, with travel largely returning to normal following the end of Covid-19 related restrictions. The improved travel should assist the organisation of meetings as the various options, including virtual meetings, should enable them to be held more frequently. However, the frequency of Ministerial engagement has reduced since 2021; there have also been frequent changes to holder of the Minister with responsibility for the Crown Dependencies, with four Ministers having held this role since 2020.

3.2              There is a good working relationship at official level with the Ministry of Justice, which provides support to the Bailiwick in a diverse range of policy areas, either directly or through supporting engagement with other UK government departments. It is important that the Ministry of Justice continues to encourage and facilitate other departments to engage effectively with the Bailiwick, ensuring that its constitutional position (and that of the other Crown Dependencies) is recognised, understood and respected.

3.3              The relationship between the Ministry of Justice and the Crown Dependencies has been explored in several inquiries into the Islands by the Justice Committee and corresponding government responses from the Ministry of Justice[5], [6], [7], [8], [9].

3.4              As referenced in the evidence provided to the Committee in 2021, the Committee’s 2010 report noted the Ministry of Justice’s Crown Dependencies team struggled with a lack of resources. Staff resources were increased in readiness for the UK’s withdrawal from the EU. These additional resources have since been stood down, although the volume of work being undertaken by the Crown Dependencies team does not seem to have proportionally reduced. The 2021 non-Inquiry session recognised that effective resourcing for the team within the Ministry of Justice is key to ensure that it can carry out the work within its mandate.  It is also necessary to ensure that Guernsey’s external relations team is adequately resourced to ensure that bottlenecks are not created on either side, which might hamper effective working or the ability to respond to issues generated within the Bailiwick, the UK, or further afield, which may affect the islands.

4.              Working relationships across Whitehall departments

4.1              Since the UK’s withdrawal from the EU and the Covid-19 pandemic, more UK government departments have established teams with responsibility for engaging with the Crown Dependencies and Overseas Territories.  This has enabled more direct discussions on matters of mutual interest and resulted in a greater awareness and understanding of Crown Dependency issues within departments. However, as outlined in the 2021 note, rapid staff turnover can be detrimental to these relationships.

4.2              Direct engagement with departments has led to a number of positive recent developments in the relationship between the UK and the Bailiwick, as part of the ‘British family’. Following discussions with the Department for Education, Regulations were amended to confirm that Crown Dependency students should be treated the same as UK students with regard to home fee status at universities in England from 1 August 2021[10]. Engagement with the Department for Health and Social Care (‘DHSC’) has led to the implementation of a new Reciprocal Health Arrangement between the Bailiwick and the UK, which came into effect on 1 January 2023[11]. This has been welcomed by the Bailiwick and highlights the positive relationship that has developed with DHSC, which was also evident throughout the response to the Covid-19 pandemic. Extensive engagement with and support from the Department for the Environment, Food and Rural Affairs (’DEFRA’), since the UK’s withdrawal from the EU, has enabled the Bailiwick to implement the fisheries part of the UK-EU Trade and Cooperation Agreement (‘TCA’).

4.3              While there have been numerous positive developments, there are concerns that the relationship with some departments, including the new Department for Business and Trade (‘DBT’), are not functioning as they should (as set out in section 6). Concerns were raised with the Home Office regarding insufficient consultation on a recent Bill (as in section 7). Officials from the UK and Guernsey continue to work together to improve the relationships, processes and communication where needed.  The efforts from those Departments in that regard is much appreciated.

4.4              It is vital that the UK government engages with the Bailiwick’s three governments at an early stage about any intention to change legislation or government policy, or to enter into any international agreements, which may have a direct or indirect effect on the Bailiwick.  This gives the Bailiwick the opportunity to properly consider whether any particular action needs to be taken by one or more of the Bailiwick’s jurisdictions. This ensures that effective and meaningful engagement can take place.

5.              UK’s withdrawal from the EU - current situation and legacy issues

5.1              When the UK withdrew from the EU, the relationship between the Bailiwick and the EU changed[12].  The effects of the UK’s withdrawal from the EU remain a key external influence for the Bailiwick.  The States of Guernsey resolved in March and July 2021[13] that dealing with the continuing implications of the UK’s exit from the EU is one of its four key strategic priorities. 

5.2              The three separate parliaments of the Bailiwick[14] each resolved in December 2020[15] to participate in the TCA, insofar as it applies to the Bailiwick, in particular for fisheries and the trade in goods. The Bailiwick continues to work closely with the UK Government to ensure implementation of its international obligations under the TCA and to address any issues, such as those set out below. 

• Fisheries - The TCA requires vessels which will qualify to fish in Bailiwick waters to demonstrate at least 11 days fishing activity in any one year, during a specified three-year reference period (01 February 2017 to 31 January 2020).  The ongoing access to Bailiwick waters reflects the “actual extent and nature” of fishing activity during that reference period.  Following significant and detailed data analysis and complex policy development, working closely with the UK Government (in particular, DEFRA) and the European Commission alongside the French authorities, the Bailiwick has:
• Licensed 44 EU (French) vessels to fish in Bailiwick waters under the terms of the TCA. Licences took effect from 01 February 2022.
• Agreed licence conditions (with effect from 01 February 2023) reflecting the actual extent and nature of fishing demonstrated in the reference period.
• Agreed a replacement vessels policy (with effect from 01 February 2023) to ensure that if any licences are surrendered or any vessels leave the fleet, those licences can be redistributed.

• Implementation of local border measures:

• Biosecurity checks - The Bailiwick takes its role as a southern border to the Common Travel Area (‘CTA’) seriously, as well as its wider international obligations. However, the character and circumstances (and sometimes the limitations) of the Bailiwick mean that a more effective and proportionate approach is to tailor UK solutions to Island conditions.  Any additional complexity can often be overcome by effective working relationships at policy and operational level.  It is important that the UK Government continues to recognise that there may be different ways to achieve the same outcome, while respecting the constitutional relationship and the nuances of small island communities. Discussions are ongoing between Guernsey and the UK Government following publication of the UK’s Target Border Operating Model in April 2023.

• Passports - Following the UK’s withdrawal from the EU, passports are required for entry for all passengers travelling directly to the Channel Islands from outside the CTA. Prior to this change, national identity cards were accepted for EU, EEA and Swiss Nationals. 2022 Guernsey port arrivals remained below 2019 levels. While some reduction in passenger movements could be due to behaviour change post lifting of Covid-19 restrictions, it is likely that some is related to reduced availability of daytrips and, for passengers from the EU, the requirement to have a passport to enter the CTA[16].

• A pilot scheme, developed following discussions with the Home Office, is operating during 2023 to enable French nationals to travel to the Bailiwick on a day trip using a national identity card[17], but only for direct travel between France and the Bailiwick on designated commercial ferry services.  It does not allow for transit or any onward travel from the Bailiwick to other parts of the CTA. It will be reviewed regularly to ensure compliance and to monitor its impact on visitor numbers into the Bailiwick, as well as any implications for the CTA.

6.              Participation in international treaties and trade agreements, including CPTPP

6.1              The UK Government has a responsibility to represent the Bailiwick’s interests even where those interests differ from those of the UK.[18]

6.2              It is vital that the UK Government ensures that the Bailiwick’s three governments are told at an early stage about any intention to enter into international agreements, including Free Trade Agreements (‘FTAs’), even when negotiated at pace. This gives the Bailiwick the opportunity to properly consider whether and to what extent they wish the international agreement to apply to them, and if so, whether any particular action needs to be taken by one or more of the Bailiwick’s jurisdictions, including modification or implementation of domestic legislation, regulations or policies and fulfilling their own parliamentary and governmental processes.

6.3              Early consultation and regular engagement by all relevant UK government departments is essential to ensuring that all these issues can be discussed, and any issues resolved in good time to enable the Bailiwick (or any part of it) to participate in any international agreements should it so wish.

6.4              Regarding FTAs, it is particularly important that the UK Government (represented by DBT) understands the Bailiwick’s interests and constitutional relationship and then clearly and accurately presents them to international trade partners during negotiations in a timely manner.

6.5              As the UK negotiates new FTAs with other countries, Guernsey/the Bailiwick seeks to be included for goods and services, investment and supporting and enabling elements of FTAs.  That baseline level of participation was agreed by Guernsey’s parliament in September 2022[19].  (There was a previous baseline level for participation in goods elements which was set by Guernsey’s parliament in September 2021[20].)

6.6              It is important that the UK and partner countries understand the Bailiwick’s approach clearly. If full participation within a FTA is not achievable from the outset, then there should be commitment from the UK and the international trade partner to enable extension of services chapters to the Bailiwick at the point when the Bailiwick is (if it wishes) ready to take part.

6.7              In addition to the consent to be bound by any new FTA, there needs to be consideration as to how termination of the Bailiwick’s participation in any FTA can be achieved.  This is to maintain the principle that the islands should only be bound whilst their consent is in place.

6.8              Guernsey sought to participate in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (‘CPTPP') in its entirety (including provisions relating to trade in goods and to trade in services and all supporting chapters), as set out in the report considered by Guernsey’s parliament in September 2022[21]. Some issues were encountered during the negotiations, which could have been ameliorated by more effective consultation/communication by and with DBT (and previously the Department for International Trade) to ensure that the Bailiwick’s position was understood, considered and effectively represented on the international plane by the UK Government. The whole Bailiwick will be included in the CPTPP for trade in goods from the outset and Guernsey has a clear pathway and mechanism, contained within the legal text, to be included for trade in services and investment.  This meets the objectives decided upon by each of the parliaments of the Bailiwick in late 2021.

7.              Extension of UK legislation to the Crown Dependencies

7.1              UK legislation rarely extends to the Crown Dependencies and should not be extended without first consulting the islands’ authorities and obtaining their consent. The process for any possible extension of UK primary legislation to the Crown Dependencies is set out in a note published by the Ministry of Justice[22].

7.2              There has been recent concern about the consultation process undertaken with Guernsey regarding the Illegal Migration Bill (which is now being considered by the House of Lords, having completed passage in the House of Commons). Whilst Guernsey was consulted on an earlier version of the Bill, it was not consulted on the version of the Bill that was published on 07 March 2023, regarding particular nationality and immigration provisions which would either apply directly or could be extended to the Bailiwick (using a Permissive Extent Clause 'PEC’ which would be usual practice).  The published version of the Bill did not contain a PEC, which was added by Government amendment later with Guernsey’s prior consent.  Concerns have been raised with relevant Ministers and officers as the consultation process undertaken did not reflect the constitutional relationship and the agreed process. There have been other instances (before and since) where the Home Office has engaged with Guernsey very effectively on legislation, policy development and operational matters. 

7.3              Guernsey can respond to matters very quickly (as demonstrated during the Brexit negotiations) and expediency should not be a reason for not consulting on relevant measures.

8.              Future of the constitutional relationship between the UK and the Islands, including on legislative processes and letters of entrustment

8.1              The Bailiwick is neither part of, nor a former colony of, the UK.  The UK parliament does not, in line with long-standing constitutional convention, legislate for the Bailiwick in respect of the Bailiwick's domestic affairs without its consent. The UK has responsibility to represent the Bailiwick’s interests when conducting international relations on its behalf, even where the Bailiwick’s interests differ from those of the UK[23]. Recent UK governments have taken this responsibility very seriously, as demonstrated in letters from Prime Ministers May, Johnson and Sunak, and in a letter from the Lord Chancellor dated 24 December 2020[24].

8.2              Enhancing the Bailiwick’s constitutional resilience, including asserting the Bailiwick’s constitutional position and the continued development of Guernsey’s international identity, has been identified as one of Guernsey’s governmental priorities (the States of Guernsey’s objectives) in the Government Work Plan, Stages 1 and 2[25].

8.3              The constitutional relationship has been tested in recent years, including in relation to the UK’s withdrawal from the EU and the subsequent negotiation of a new relationship, but is fundamentally unaltered.  Of course, the context in which the ancient relationship operates is transformed, in particular because of the cessation of Protocol 3[26].

8.4              As the Committee was aware previously, there have been recent troubling examples of UK Parliamentarians seeking to legislate for the Bailiwick without its consent, including in respect of beneficial ownership[27].  This may be due, in part, to some UK Parliamentarians not fully understanding the constitutional relationship between the UK and the Bailiwick. Separately, but of similar concern, the UK Government included a PEC within the UK Fisheries Act 2020, even though the request to include a PEC was declined by the Bailiwick.

8.5              Guernsey has Letters of Entrustment, granted by the UK Government, to negotiate directly with the relevant authorities of sovereign states on certain topics and in certain circumstances, particularly where those affairs relate to matters within the domestic competence of the government of Guernsey. These have been used on numerous occasions in relation to tax matters since 2003, and in 2020 Guernsey agreed the first social security agreement directly with Latvia.  Guernsey continues to seek opportunities where it would be appropriate to negotiate agreements directly.

8.6              Guernsey’s Constitutional Investigation Committee (‘CIC’) was established in January 2014[28], following earlier decisions of the States of Deliberation[29], in order to investigate proposals on greater autonomy in relation to legislative processes and in relation to its international identity and international affairs. 

8.7              Work has progressed to implement the recommendations of the CIC, including the introduction of a formal referral process of UK Acts of Parliament and Orders in Council to Guernsey’s States of Deliberation to enable the States to signify their views [30].

8.8              The Bailiwick’s three parliaments are due to consider a report in May 2023[31] about the introduction of a new process which would allow most Bailiwick legislation to be granted Royal Assent by the Lieutenant-Governor on island, rather than at Privy Council meetings. Discussions are ongoing with the UK Government regarding the introduction of a new process and the making of an appropriate Order in Council. The granting of Royal Assent by the Lieutenant-Governor will allow greater flexibility on timing, will better reflect how the constitutional relationship works in practice and will underline the Bailiwick’s domestic autonomy.

8.9              Successive UK governments have noted the concept of the ‘British family’, and Guernsey considers this to be a useful term that acknowledges the centuries-old links the island has with the Crown. There are areas where further work is needed with the UK Government to ensure fair and equal treatment for all members of the British family. However, recent engagement seems to demonstrate a positive commitment from this UK Government to working collaboratively with the Bailiwick as a member of the British family on matters of mutual benefit.  This is important as the UK moves away from the former requirements under EU Law, which sometimes saw EU/EEA nationals treated with greater preference than the treatment afforded to the Bailiwick and its residents.

Policy & Resources Committee

States of Guernsey (the government of Guernsey)

05 May 2023

Annex 1: The Bailiwick of Guernsey

A1.1              The Bailiwick of Guernsey (‘the Bailiwick’) is made up of the jurisdictions of Guernsey, Alderney and Sark. The Islands are located in the Gulf of St Malo off the north-west coast of France.  Although the Islands form part of the British Isles they are not, and never have been, part of the United Kingdom.

A1.2              The Islands have a long history of being self-governing and self-funding. Guernsey has been independent for more than 800 years (since 1204). The Islands are not sovereign states but are dependencies of the British Crown. The King is the Head of State for each island, as the latter-day successor to the Duke of Normandy, and the Lieutenant-Governor is His Majesty’s personal representative in the Islands, based in Guernsey.  The constitutional relationship with the UK is maintained through the Crown and is not codified in a single constitutional document.

A1.3              Guernsey is the principal Island of the Bailiwick of Guernsey. It is not, and never has been, part of the UK.  Indeed, Guernsey’s relationship with the Crown is older than the existence of the UK.  It has never been a colony, or a British dependent or Overseas Territory and its status constitutionally is, and always has been, distinctly different from that of the British Overseas Territories. It has its own government, legal system and independent courts of law.

The government of Guernsey

A1.4              Guernsey is not, and never has been, represented in the UK parliament.  It has its own directly elected legislative assembly, the States of Deliberation, comprising 38 independent members[32], and its own administrative, fiscal and legal systems.

A1.5              The administration of public affairs and exercise of executive authority is undertaken through committees of the States including a senior committee (Policy & Resources Committee) and six Principal Committees.  Those committees are each led by a minister[33] with four other elected members of the States of Deliberation[34].   The government of Guernsey is known as the States of Guernsey.

A1.6              Guernsey’s right to raise its own taxes is a settled constitutional principle. Guernsey raises its own taxes and pays for its own public services without any funding from any other jurisdiction (including the UK).

Guernsey’s international identity

A1.7              The International Identity Framework[35] sets out a framework for the further development of Guernsey’s international identity and the role of the UK Government in this context, and amongst others included the following statements:

• The UK will not act internationally on Guernsey’s behalf without prior consultation.
• Guernsey has an international identity which is different from that of the UK.
• The UK has a role to play in assisting the development of Guernsey’s international identity.  The role is one of support not interference.
• The UK will clearly identify its priorities for delivery of its international obligations and agreements so that these are understood, and can be taken into account, by Guernsey in developing its own position.
• The UK when acting in the international arena should, so far as practicable and appropriate, have regard to Guernsey’s international relations, policies and responsibilities.

A1.8              At the time that the international identity framework was signed with Guernsey, the UK also signed similar agreements with Jersey and the Isle of Man.

Government of Guernsey

May 2023