Written evidence - Susie Alegre (CDP0002)

Brexit: Crown Dependencies

Introduction

  1. This short note is submitted following a request from the House of Lords EU Select Committee and the submission is made in my capacity as an independent international human rights lawyer and Associate Tenant at Doughty Street Chambers. There is still very little clarity on what Brexit will look like in practice but this evidence will highlight some of the potential challenges and opportunities posed by Brexit for Crown Dependencies from a rights based perspective[i].

International Relations and the Right to Self Determination

  1. The right to self-determination is the right of peoples to decide their own destiny in the international order.  It is a core principle of international law arising out of customary international law and recognised in the United Nations Charter and the International Covenant on Civil and Political Rights.  The right to self-determination has come to be understood as encompassing ‘internal’ self-determination aside from the traditional idea of self-determination within the context of colonisation.  The Crown Dependencies have never been colonies and the constitutional relationship between them and the UK is complex.  They have their own Governments with a directly elected legislature independent of the UK.  They raise their own taxes and pass their own domestic legislation.  The UK Government is generally responsible for defence and international representation of the Crown Dependencies although in certain circumstances, they may be authorised to conclude their own international agreements by a process of entrustment. 
  2. The UK’s withdrawal from the EU will end the special relationship Crown Dependencies have with the EU under Protocol 3 of the UK’s Accession Treaty to the European Community.  Although they are not in the EU, Brexit will clearly have significant consequences for the Crown Dependencies, their residents, and their diaspora, not least through fluctuations in the value of sterling and the impact on the cost of living. But most residents in Crown Dependencies were excluded from voting in the referendum despite the consequences for them and It is unclear how much influence the Crown Dependencies will have on the UK negotiating position, the outcome of the negotiations, or on subsequent legal developments in the UK outside the EU.
  3. In its response to the House of Commons Justice Select Committee 2010 report on Crown Dependencies, the UK Government dismissed the Committee’s recommendation on representation in international negotiations saying:

The Crown Dependencies are not sovereign States and cannot represent themselves; the UK represents the Crown Dependencies internationally [...] it is difficult to envisage how equal billing could be given to the interests of a Crown Dependency if they are incongruent with those of the UK. We do not think that it would be appropriate for the Crown Dependencies' position to be separately represented in international negotiations. It would be unrealistic to expect a UK official to put the interest of a Crown Dependency above that of the UK and in extreme circumstances this may hamper the ability of the UK to operate effectively on the international stage. Where international issues do engage the Crown Dependencies' interests their views can be taken on board as the UK line is developed [...] and we will encourage Government Departments to seek to identify matters which engage such interests, and to consult with the Crown Dependencies, at an early stage.”

  1. But when it comes to international negotiations with impacts as wide ranging as Brexit, it is hard to see how Crown Dependencies will really be able to make their voices heard to protect the interests of their people alongside the broader interests of the UK as a whole and the potentially differing interests of the devolved nations.  The way this is managed will set a precedent for future decisions on the international stage that could have even more serious consequences for Crown Dependencies and their people.
  2. For example, indications that the UK Government may consider a withdrawal from the European Convention on Human Rights following Brexit are of serious concern.  This would have a direct detrimental effect on human rights protections in Crown Dependencies whether or not their governments supported such a move if they are unable to represent themselves internationally.  Without the constraints of EU commitments to international standards of human rights, democracy and the rule of law, it is difficult to predict what the UK’s position might be on other international agreements that touch on these issues.  The wider consequences of Brexit could also see a reduction in the UK’s weight in international negotiations on issues of existential importance to the Crown Dependencies.  The seismic shift in UK international relations signalled by Brexit should be met with an equally significant shift in the way Crown Dependencies are able to engage on the international stage to protect their own interests and the fundamental rights of their people.  Without reform in this area, it is difficult to see how the Crown Dependencies can effectively decide their own destiny in the international order.

Citizenship and Freedom of Movement

  1. Citizens of Crown Dependencies are British Citizens and have the right to live and work in the UK.  Those who have “Islander Status” (because they don’t have links with the UK and have not completed a continuous 5 year residency in the UK) do not have the automatic right to live or work in the EU.  But most residents in the Crown Dependencies are EU citizens by virtue of their British citizenship which gives them and their children the right to freedom of movement in the EU.  For some, the removal of EU citizenship will be a significant loss of opportunity for the future.  And the rights associated with EU citizenship will be taken from them without their having had the opportunity to exercise their democratic rights through voting in the referendum.
  2. The Crown Dependencies are close neighbours of other EU Member States (France and Ireland) and have close historical ties with them.  Although they don’t operate the same rules on freedom of movement for EU citizens as the UK does, any changes in the status of EU nationals (including Irish nationals) in the UK could have an impact on the status of people and their families currently residing in the Crown Dependencies.

Data Protection

  1. While the Crown Dependencies are not in the EU, they do have significant service industries that rely on their ability to trade internationally.  The EU passed the General Data Protection Regulation (GDPR) earlier this year, significantly strengthening data protection for people in the EU.  Article 3 of the GDPR sets out the territorial scope:

 

“1.   This Regulation applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union, regardless of whether the processing takes place in the Union or not.

2.   This Regulation applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to:

(a)    the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union; or

(b)    the monitoring of their behaviour as far as their behaviour takes place within the Union.

3.   This Regulation applies to the processing of personal data by a controller not established in the Union, but in a place where Member State law applies by virtue of public international law.”

 

This means that, if Crown Dependencies want to continue to provide goods and services to people in the EU, they will need to ensure that their data protection laws and frameworks conform to the GDPR, even if the UK chooses to depart from EU standards of data protection once it leaves the EU.  This will require a careful and ongoing assessment of the impact of UK legal developments on the data protection regimes of the Crown Dependencies.

Environment

  1. Much of the UK’s environmental law is based on EU law.  When the UK leaves the EU, there is a risk that the legislative frameworks and environmental protections applicable in the UK will be weakened.  The Crown Dependencies are geographically part of the British Isles sharing seas with the UK.  The environment is important for island communities that can be vulnerable to climate change and environmental degradation - the Isle of Man became the first whole jurisdiction to be awarded UNESCO Biosphere Reserve status in 2016.  Reductions in environmental protection in the UK that affect air and water quality, for example could have a serious detrimental effect on Crown Dependencies and on the health, well-being, and livelihoods of their residents.  It is difficult to predict what changes will occur over time and how environmental law will be affected.  The House of Commons Environmental Audit Committee has highlighted the need for a new law to limit the environmental impact of Brexit.  But even with a new law in place, the loss of international mechanisms for enforcement will make it harder for those in Crown Dependencies to hold the UK to account if standards slip. 

Conclusion

  1. The Crown Dependencies have been carrying out their own assessments of the risks and opportunities posed by Brexit for them.  In its Third Interim Report on the Implications of Brexit for the Isle of Man, the Manx Government identified a number of risks for the Island but noted that none of the possible benefits asserted by the leave campaign in the referendum relating to increased sovereignty would apply to the Island. 
  2. From a rights perspective, the risks to Crown Dependencies of a reduction in protections in the UK in the environmental area and in the field of data protection are significant because of their potential impact offshore.  For individual citizens, the loss of EU citizenship may have a serious impact on their future opportunities.  There are also risks to the Crown Dependencies arising out of the change to the UK’s position in the international arena once it leaves the EU and the threat of further changes such as withdrawal from the European Convention on Human Rights which would have a direct effect on the Crown Dependencies and their populations.  In the face of such fundamental changes in the UK’s international relations, there is potentially an opportunity to recalibrate the constitutional arrangements between the UK and the Crown Dependencies to make sure that, in the future, they are in a better position to decide their own destiny in the international order and protect the rights of their residents while retaining their important ties with the UK.

5th January 2017

 

[i] Related to this evidence, I have also made submissions on the human rights implications of Brexit to the House of Lords EU Justice Sub-Committee Inquiry into acquired rights and, along with colleagues from Doughty Street Chambers, to the Joint Committee on Human Rights Inquiry into the human rights implications of Brexit which touch on issues for Crown Dependencies.  Originally from the Isle of Man, I am particularly interested in the potential impact of Brexit on Crown Dependencies and Overseas Territories and have published commentaries on this issue highlighting the future challenges and the implications for economic, social, and cultural rights for the islands.  In September 2016 I co-organised a seminar with Queen Mary University London Centre for Small States for Crown Dependencies and Overseas Territories bringing together representatives from the majority of territories to discuss the issues that concern them around Brexit.