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RLT WITH UK & INT TREATIES (INTERNATIONAL (Process ((4) Entrustment…
RLT WITH UK & INT TREATIES
Crown Dependency : Interpretation Act 1978 (G part of 'British Islands' (not UK).
not represented in UK Parliament
1560 Royal Charter - immunity from UK process
executive, judicial & legislative autonomy (but UK
CLAIMS
right to Leg for G
X v UK 1982
exceptional const. rtlp btw G&UK - any complaint can't vote in UK and that is breach of
A3/P1ECHR
ill founded
Subject to the rule of the Crown not Gvt
JOWELL
2005
disagrees with Kilbrandon
Limited by Constitution convention
UK judges bound to give effect to convention rights; so if UK leg for G may say Act of P is incompatible with ECHR and unconstitutional for UK to impose will on G domestic matters w/o consent
no rep in UK P (contrary to
A3/P1ECHR
if can't vote for those who legislate for you (
Matthews V UK
Gibraltar case: Gibs inability to vote in elections violation A3/P1 (member EU and bound by laws so should have right to vote)
Any powers of UK over G suggested exist in Kilb lie with the Crown under RP and not P
Crown doesn't ever refuse assent
UK OiC (made by the Crown in Council)
Royal Prerogative
Primary legislation : Not depend on statute (but Act of P may change it) (less common)
statutory instrument (the OiC)
"HM, in pursuance of {relevant leg} is pleased by & with advice of HPC, to order, & it is hereby ordered, as follows:"
OiC specially just for G or extending UK Act (i.e extending as below) to G via OiC with prior consultation (
permissive extent clause
: pg16)
Communicated to Royal Ct for registration
When Effective ?
In practice OiC states state reg will take place and Act only come into effect then BUT reg is not essential to the applicability to the CI (but remains contentious issue
Smuggling Act 1805
- delay in registration only affected notification not when in force, used RP in case where G objected to the Act and refused registration)
G position needs to be reg before effective (particularly criminal matters so people aware of them ECHR considerations ) Refuse to reg suspensory vs power to make representations. UK power when come into force vs reg.
No Consent?
Jsy : Orders in Council 1852
PC made orders relating creation new Cts. but States not agree and petition PC. PC said doubts existed about use of RP to legislate over these issues without consent of the states
Jsy Prison Board Case
PC issued OiC amending const prison board w/o states consent - RC suspended registration and petitioned PC. PC said States consent needed to make changes to Jsy const/institutions
Normally consent obtained & current practice (as noted in the reports)
Extending UK Act of Parliament as of right (rare to extend as of right - now through OiC)
UK const law (1) have leg power where not renounced those areas (2)sovereignty of P not dependent on scope of authority of the crown (BUT view not accepted by modern commentators)
Commuicated to Royal Ct for registration
States of Jsy Law (a31)
where Act or OiC Chief M will lodge proposal with states for views. Where put for registration to RG and states not agreed to it - RC shall refer it to Chief M who shall in turn refer it to the States: Argued PC accepted limitation on UK ability to leg by approving this law
Barclay v Sec State for J (2014)
obiter comments Supreme Ct: UKP has power to leg over CI, but the practice is for the Act to have power and extend to CI by OiC. Practice to consult before act extended. SCt also noted in Kilb. that in light of view of PC in
Madzimbamuto
UK theoretically did have power to leg on any matter w/o consent, but shouldn't do as per past practice (BUT obiter and about colony which has diff const status to CD)
w/o consent - theoretical power as a last resort
KILBRANDON
1970s
UK continues to assert leg powers: Defence, citizenship, succession to throne, extradition, broadcasting, Int Resp, domestic interests within UK
P not leg for CIs w/o consent on taxation/domestic matters. However, despite convention P can leg on any matter being sovereign
Crown (via PC) has resp for good gvt of CIs (not P)
Right of UK to intervene on grds good governance
Recommended strengthen consultation process
Dispute Resolution
consent i.e. discuss /modify/agree
Suspend Orders (Preg OiC & Stat Inst - not apply to Acts)
Court
UK Intervene in Legislation
Convention/Int Law compliance - UK resp ensuring G complies and if G breaches ///UK needs to ensure domestic laws comply with those obligations
"good Gvt" - breakdown law & order or times of grave emergency
Ex P Northumbria Police Authority 1989
2002 Dept Const Affairs Guide (by Lord Cs dept)
confirmed
Bach
- noted how extreme things must get
but report noted UK can extend Act by either act itself (but unusual and G would be consulted if necessary to do this or OiC with G act)
Permissive extent clauses inc only with consultation
Dawes
by analogy Gvt apply
Wednesbury
principles to demonstrate CIs actions go beyond what 'reasonable' good gvt
Lord Bach
2000 for the Gvt in HofL exchange as to meaning and scope of 'good gvt' - "breakdown/failure of justice/civil order:residual power of the
crown NOT P
to intervene" Not helpful to try and define
Sark Reform Law 2008
Assent rejected by MoJ - non compliant ECHR - exercised control by withholding assent
2008 Framework
btw UK & G to develop G int. identity
Jsy: Finance Law passed by states: PC not approve until 3 yrs later: (claimed harmful tax measures). Att G Jsy threatened issue proceedings if not submitted to PC
Jsy Fishermans Assoc v SoG 2005
in judgment "accepted HMinC could in theory leg but in practice prior consultation"
CONSULTATION
Kilbrandon
: breach of convention & could be unconstitutional. BUT not beyond Ps powers and would not invalidate act ( at time of report no power to JR an act/OiC)
Bancoult
OiC may be leg in nature, is an act of the executive and can JR
Barclays 2009
sought JR of decision of SecSofJ to recommend R.Assent
Barclay No2
English courts jurisdiction to hear JR of OiC for Sark BUT Bailiwick Cts are appropriate forum to challenges on incomp with ECHR (by virtue of the 2000 Bailiwick HRL)
Lack of consultation breach of HR G citizens, placing UK in breach of ECHR obligations
Lack of consultation unconstitutional
Turks & Caicos
intervened as corrupt and UK passed OiC suspending the constitution & Judiciary - (but not a CD) - e.g of how bad things get before intervene on grds go 'good gvt'
Dev. convention not to legislate
Edwards report (see commentators)
2002 report - need consult/consent
Kilb. P has power to leg for CIs but in practice does not
2006 Dept Const Affairs background briefing on CDs: Uk leg not normally extend to CDs and never to be extended w/o consent
Campbell v Hall
Greneda case - Rule that where Cr parted with power to leg to a delegated leg assembly no longer competent for Cr to resume that leg power
BUT convention in unwritten form - Flexibility?
INTERNATIONAL
2008 Framework Agt
- UK ctment not to sign treaties affecting G w/o consultation (is this now a const. convention?)
Unlikely JR Preg power to enter into treaties on behalf of CIs
Const. Reform & Gvn Act 2010
(UK) can't ratify a treaty w/o P consent (Ltds PP) 21 parliamentary days must elapse (consult/debate)
A69/Vienna Convention on Law of Treaties
Treaty binding on all territories unless otherwise stated
Neg & signing treaties by the Crown under the Preg P (in practice by ministers)
BUT
If UK enters treaty for G, then for G to enact domestic leg for it to comply - if didn't Kilbr. states UK could do so directly
Conflict
(2) March 2010
CD Justice Ctee -
criticised above approach -CD no voice so reliant on UK. That stance conflicted with Framework agt. Noted if conflict should find resolution work for both. Inc G officials in delegations.
(3)Nov 2010
UK gvt response
to CD Justice Ctee: duty to also represent G interests - but will but UKs first if conflict. Where conflict find way to represent both parties. Use of entrustment letters. Still remained resp. for CIs to implement and comply with treaties.
(1) UK made commitments for G re EU tax directives w/o consent (2) UK sided with EU to force G enter bilateral tax acts despite no right to interfere in G fiscal business (3) Iceland bank crisis - UK prioritised own interests - UK admits where conflict will prefer UK
Process
(2)When UK ratifies a treaty it does not include G (but scope widen enough to do so at later stage if necessary)
(3)SoG proactively requests UK treaty to inc G
Deleg to Policy & Resources Ctee; (1) request goes to SoD
(2) submitted to relevant Uk dept.
(3) when convention extended - reg by RC & report ext. to G as appendix to a billet.
UK still remains resp. to other party for G compliance
(1)When UK enters into new treaty does so on behalf of G
(4) Entrustment
can enter into Int Agts. under letter
UK still remain resp. for compliance
Enter agts re. domestic competency
Scope and authority set out in letter /no need to further ratify
Termination agts made under this? Jsy reserves power in the letter
G reps. at OECD, British-Irish Council, MONEYVAL But not ind. member of commonwealth/
In practice consultation too short notice - decisions rushed
TREATY AQUIESCENCE
UK invites G to agree the treaty during period of consultation
YES
Initial UK signature covers G
Need to pass domestic law to give the treaty effect (project de loi)
OR
UK agrees treaty w/o G consent
UK consults G to consider whether agt extends to them
#
G deals with by
States Resolution 1987
#
Each agt referred by Bailiff to P&R to make recommendation whether bound in whole or with reservation
If involves HR must come before SoD
Subject matter concerns other tee - refer for views (if disagreement btw p&R and that Ctee then refer to SoD
P&R can submit it to SoD if thinks required
If P&R not wish to bring before SOD relays non-aquiescence to UK
If agree , amended ratification instrument
G has no responsibility for external relations of A or S
REQUEST TO JOIN TREATY
E.g to comply with a convention not extended to G
Convention to eliminate disc agst women (not ext by UK to G). Baliiwick passed Prevention Discrim Enabling legislation - to allow secondary leg on all forms of discrimination - Sex Discrim Ordinance
G can pass EU compliant legislation by (1) extending UK act via OiC (2) PdL leading to an OiC (3) Ordinance under EC (Implementation) Law
Will initiate steps By
States Resolution
procedure (see above)
When leg drafted goes Bailiff - Lt G- MoJ - Foreign Office to sign on G behalf. once ratified registered at RC
Request does not bind whole of B (G not resp for A & S - individual consultation required with each . Implementation - G only leg for A&S on ltd matters - if treaty outside those A&S need to either agree B wide PdL or pass their own if they want to be bound
INDEPENDENCE
If Ind need to deal with:
Int relations - have access to UK diplomatic services
Common currency & % rates
Business btw G & UK
Nationality - G entitled to British citizenship
Monetary authority and currency policy required
Impact on Common Travel Area under Immigration Act
Airline slots (present a 'regional UK"
Technically possible ( UN Declaration on granting independence to colonies ) BUT G a CD
G said during A3 nego that would need to be will of people - so referendum
Ref possible under Jsy Law (no env in G although motion to introduce was agreed by SoD but not progressed
Commentators that G better to avoid independence
G est - Const Advisory Panel 2008 - report advised (1)financial stability rests on assoc with Uk (2) Int Framework 2008 beneficial provided UK keeps side (3) considering in detail ind. not necessary and undesirable
Constitutional Investigation Ctee
est 2014
Jan 2016 Billet proposals - approved by SoD
recommends improved procedures
(2)Extension of Treaties
(1) Cert that extending to G would not breach any other T
(2) As (2) above - extension need to be debated until agt or withdrawn
(3) If granted w/o objection or by Agt, Crown makes declaration to relevant T body that the T extends to G. This dec to T body registered with RC
(3) General Entrustment
Valid save where agt deals with
(1) Defence/security
(2)Restricts HR
(5) nego w/n int organisation UK member of
(3) also apply to UK
(4) requires them to be a sovereign state
Objection procedures as above would still apply
(1) Primary Leg
(3) PdL & expl memo to MoJ, inc same cert as (1) (as currently)
(4) MoJ 6 weeks reply - objects at auto passage of PdL into Law on grounds (i) conflict with G Int obligations (ii) places UK in conflict with its Int T obligations (iii) breach of good Gvt (iv) was the subject of a petition to HM r'd w/n 28 days - then have to debate
(2) PdL approved by SoD (as currently)
(5)No objection or agt reached - PdL ratified by Lt G (if LtG not available Blf could but pot conflict as presides - reserve to PrivC)
(1) Draft PdL, cert if enacted not conflict with treaty obligations or good gvt (currently takes placed)
No change to const relationship with UK - e.g sit in P - undermine autonomy
No merit in written constitution (inflexible and not one in UK)
Proposed next steps for P&R to Discuss with MoJ how recommendations can be implemented. Discuss with A&S on potential impact. Discuss Jsy & IoM pot impact
MEMBER OF:
OECD; convention extends to G by UK - not member in own right - UK is
Commonwealth: Not independent member but active in it
UN: no- but via act UN resolutions can be implemented and extended by OiC
Council of Europe: Not member, represented by UK for those conventions that are extended to G.
HISTORICAL
(6)1259 TofParis
mainland normandy no longer part of Eng. but CIs are
(7)1441 Royal Charter
- no G man be actioned outside G
Precepte d'assise
(5)1254
CIs granted to Edward I on basis never separated from the crown
(8) 1538
Soft meets - Jurats elected
(4) 1204 Commise
Normandy conquered by French - CIs remain loyal to England - King John grants privileges of self governance and non-incorp to England
(9) 1560 Eliz 1st Royal Charter
confirms 7 substantial rights - BUT retains Crown sovereignty
(3)
1066 Bof H
- William King of England CI remain loyal to Dukes of Normandy
(10)1581
queen commissions report on state of G Law - order to follow Terriens commentary on the GC in what becomes
L'Approbation
(2) 933
Annexs CIs
(1) 911
Rollon conquers Normandy
RP
Derived from customary principles
In practice exercised by crown on advice of PC (who members of UK Gvt)
Crowns inherent legal power
Used by gvt where no statue governing the exercise of power (eg negotiating treaties, leg by OiC, declaration war
Can JR use of RP
No charters gave up right Cr to leg for CIs
EDWARDS
1998
Const convention P not legislate for CIs on tax and other matters
An extension of a UK Act exceptional
By convention leg applicable to CIs first subject to consultation btw UK&CIs
Press Release LCs Dept
2001
Consult with CIs on any UK/EU leg affecting CIs
P resp for defence/int rel/good gvt
LChanD.
"Guide to Gvt Business"
2002
Permissive extent cls. only inc. in Bills after consultation and consent with CIs
Guide referred to in Jsy case
Hotchkiss
Bailiff of G (1) Crown let CI leg bodies get on with own business of leg/admin and generally not intervened (2) by convention states propose laws eg tax subject to Crown approval (3) CIs not sovereign states - Cr retained defence/Int R, PC 'claims' right interfere on grds good gvt
CD Justice Ctee Report
March 2010 &
Uk Gvt Response
Nov 2010
Approach ignores CI have no direct rep and reliant on UK - stance conflicted with Framework agt
See conflict points in Int above
Critised UKs approach to prefer own interests when conflict