Written evidence submitted by the Isle of Man Government (RCD0003)

House of Commons Justice Committee evidence session on 23 May 2023 on relations between the UK and the Crown Dependencies

On behalf of the Isle of Man Government I would like to thank the Justice Committee for its ongoing interest in the operation of the United Kingdom’s constitutional relationship with the Crown Dependencies (CDs).

I am happy to accept the invitation sent by the Committee’s Second Clerk to appear before the Committee on Tuesday 23rd May 2023 and I can confirm that I am able to attend in person.

As requested, in advance of that session I would like to offer some thoughts on the themes set out in the Clerk’s email.

Working relationship with the Ministry of Justice (MoJ)

I believe that the Isle of Man Government’s working relationship with the Ministry of Justice (MoJ) continues to be generally sound.

As you may be aware, when I was in London recently I had a productive meeting with Mike Freer MP, Minister of State in the MoJ, and I have invited him to visit the Isle of Man to further his understanding of the Island and the issues that are important to us. The Minister is accessible and makes himself available to discuss matters of mutual interest.

In addition, our Deputy Chief Minister, along with the Chief Ministers of Guernsey and Jersey, and Jersey’s External Relations Minister recently had the opportunity to meet with the Lord Chancellor, alongside Minister Freer. Again, this demonstrates that the Lord Chancellor takes his duty to support and protect the relationship between HM Government and the Crown Dependencies.

At official level, there are regular contact group meetings with the Crown Dependencies team in the MoJ at which we, along with Jersey and Guernsey, can raise any issues that may be of concern or interest in respect of the relationship between one or more of the CDs and the UK. MoJ officials will often facilitate discussions with other UK Government officials, from other Departments, when necessary and relevant.

The Crown Dependencies team facilitates and participates in our engagement across Whitehall, such as with the Department for Business and Trade (DBT) and the Department and the Department of Environment, Food & Rural Affairs (DEFRA), on relevant issues as necessary.

The processing of our Bills for Royal Assent, although generally delegated to our Lieutenant Governor, is carried out in a timely manner by MoJ colleagues, and if a Bill is particularly urgent the Crown Dependencies team seeks to expedite the process whenever possible, although we only ask for this in exceptional circumstances.

Working relationships across Whitehall departments

The importance of effective and meaningful engagement between the Isle of Man Government and Whitehall departments on relevant issues cannot be over-emphasised. The ability for our departments to engage directly with their counterparts across Whitehall is certainly more effective than the system in the past when all official communication was channelled through a single point of contact in the UK and IOM Governments.

Normally our engagement meets the standard we would expect and difficulties are generally rare.

However, in recent times there have been some occasions when our engagement with certain Whitehall departments, and the outcomes for the Island from that engagement, has fallen short of our expectations. Those issues are elaborated below in relation to the negotiation of international trade agreements.

UK’s withdrawal from the EU – current situation & legacy issues

The UK’s withdrawal from the EU represented the most significant change in the relationship with our European neighbours in a generation and there were bound to be some issues arising from that change. The majority of issues, however – such as different formalities for travelling to or exporting to the EU – are the same for the Isle of Man as for the UK.

One legacy issue arising from UK’s withdrawal from the EU that is still being dealt with concerns the current fisheries management agreement (FMA) between the Isle of Man and the UK’s four fisheries administrations. That FMA, from 2012, is predicated on the UK being an EU Member State and the need for the UK and IOM to comply with the EU’s Common Fisheries Policy. The Isle of Man Government considers that the FMA became obsolete when the UK left the EU and therefore in 2022, when the UK’s Joint Fisheries Statement was published, it gave notice that the Island would suspend participation in the agreement in November 2023. The Isle of Man Government is now engaged with DEFRA and the Devolved Administrations to develop a memorandum of understanding to replace the EU era FMA.

We are conducting the discussions on a new fisheries agreement under the stewardship of the DEFRA, and we are indeed indebted to them, and to the MoJ for their support in ensuring that the discussions take place in the appropriate context. Whilst it is still early on in the process, we believe that we can achieve a new arrangement that satisfies our needs, and those of the UK and the Devolved Administrations for the future.

Participation in international treaties and trade agreements, including CPTPP

As you and the Committee will be aware, when the UK was an EU Member State the EU’s free trade agreements (FTAs) could only cover the Isle of Man and other CDs for trade in goods, due to the limited scope of Protocol 3, which effectively limited the scope of the EU’s competence in respect of the CDs.

With the UK negotiating its own trade agreements after leaving the EU, we had hoped that we would also be covered by the services chapters of these new FTAs but, to date, that hope has not been fulfilled. The UK’s accession to the CPTPP is perhaps a good example, whereby even though 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.

We recognise the resource and time pressures on DBT in dealing with multiple FTA negotiations, and we also recognise that the UK’s negotiation partners may have views on the inclusion of the Isle of Man and other Crown Dependencies within the full scope of an agreement.

I would also stress that we do recognise the value of the UK Government securing extension provisions for the services chapters in the FTAs with Japan, Australia, New Zealand and in the Accession Protocol to the CPTPP. Those mechanisms are still untested but we remain hopeful that the extension of the services chapters of these agreements will take place in the future.

Therefore whilst we believe that it is highly desirable for the Isle of Man to be included “all in” from day 1 as part of the UK’s negotiation package for the British family, we are grateful to the DBT for considering this approach for any future negotiations, many of which are currently in the process of negotiation.

Extension of UK legislation to the Crown Dependencies

Of course in almost all cases it is more appropriate for the Island to legislate for itself through Acts of Tynwald and subordinate legislation made under those Acts.

However, the Isle of Man Government has traditionally been pragmatic about the inclusion of a permissive extent clause (PEC) in UK Acts and the extension of UK legislation to the Island, whether by Order in Council or, very rarely, by explicit direct extent.

In some cases it has been beneficial to have UK legislation extended so that the Isle of Man is part of the UK system. A good example of this benefit is the extension of UK legislation on registered intellectual property rights so that Isle of Man resident companies and persons can apply to the UK Intellectual Property Office for a patent, trademark or registered design in exactly the same way as their counterparts in the UK.

In other cases it has been considered that there would be no reason for, or advantage to, the Island legislating for itself, such as with legislation on HM Armed Forces given the UK’s responsibility for the defence of the Isle of Man.

The caveat to our approach is that the inclusion of a PEC or extension of UK legislation must only be with the prior approval of the Isle of Man Government. I am not aware of any examples in modern times of UK legislation being extended to the Isle of Man without that consent. In the unforeseen circumstances where that did happen it would cause significant difficulty for the constitutional relationship between the Island and the UK.

My only observation would be that UK Departments should be encouraged to engage directly with us, or through the MoJ, when they are considering the inclusion of a PEC within UK legislation as early as possible, in order to give as much time as possible for its consideration by our Council of Ministers.

Future of the constitutional relationship between the UK and the Crown Dependencies, including on legislative processes and letters of entrustment

The Constitutional and Legal Affairs and Justice Committee of Tynwald is currently carrying out an inquiry into the constitution of the Isle of Man.

I would not wish to pre-empt any conclusions or recommendations by the Tynwald Committee in due course, or any Isle of Man Government response to such conclusions or recommendations. I will say, however, that I am not aware of any current difficulties with the effective operation of the process for obtaining delegated Royal Assent to our Bills, or for entering into bilateral agreements under entrustment.

I look forward to discussing these themes with the Committee on 23rd May.

Alfred Cannan

Chief Minister, Isle of Man Government

May 2023