Constitutional clash looms after “provocative” move by UK Gov

Thursday 15 October 2020

Jersey is on course for a serious constitutional clash with the UK government after they took the “unprecedented” and “provocative” step of adding a last-minute clause to the Fisheries Bill without the island’s consent.

The ‘Permissive Extent Clause’ (PEC), which was slipped into the bill shortly before the House of Commons passed it in a vote on Tuesday, paves the way for the UK to exert greater control over Crown Dependencies on fishing matters post-Brexit.

The UK Government said it had included the PEC to ensure the islands remained compliant with international obligations and that it would only be “used as a last resort.” 

This was despite protests from Jersey’s government that there was no need to include such a clause.

Pictured: Jersey's Government protested against the inclusion of the PEC.

“Jersey Ministers have regularly made clear to UK Ministers that Jersey domestic legislation provides comprehensively for the management of Jersey’s fishing opportunities and is sufficient to give effect to international obligations. There is no reason to extend parts of UK legislation and the inclusion of the PEC is unnecessary,” a spokesperson for External Relations said.

While there is no immediate impact on the island’s territorial waters – any extension of the Fisheries Bill to Jersey requires an Order in Council approved by States Members – the move does strike a blow to the island’s longstanding constitutional relationship with the UK.

UK Ministry of Justice guidance specifically states that “a PEC should not be included in a Bill without the prior agreement of the islands.”

Victoria Prentis, Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs, was challenged on this in the Commons by Justice Committee Chair Sir Bob Neill.

“As things stand, the Governments and legislatures of both Jersey and Guernsey object. It is not just that they do not think a permissive extent clause is necessary; they object to its inclusion in the Bill. It is truly unprecedented for the Government to insist upon a permissive extent clause without the agreement of the relevant Crown dependencies. Why, even in an emergency, go down this rather provocative step? Why not wait until such time as an emergency arises and let them legislate, as they have indicated they would?” he questioned.

She replied: “The Government feel that it is important, given that these are significant matters of international law, that we retain the ability to legislate for the Crown dependencies if they do not show the inclination to do so when needed. We very much doubt that this will be necessary.

“I am sorry that they are upset by this stand, but I do feel that it is the right thing to do in the circumstances at the moment.”

Former External Relations Minister and Bailiff, Sir Philip Bailhache, told Express that it was “was contrary to the constitutional relationship for Permissive Extent Clauses to be put in a UK bill without the agreement of the Jersey Government.”

Pictured: Sir Philip Bailhache said the UK Government's actions were "contrary to the constitutional relationship."

He went on to warn that, if the UK Government does activate the PEC, it could lead to a “constitutional crisis because you have one government saying, ‘We want to extend an act to Jersey,’ and Jersey saying, ‘No, we don’t want it.’”

He added: “Having two parliaments clashing is not a good thing. If governments are sensible, they don’t get into that position.”

Sir Philip issued a reminder that it wasn't the first time that Jersey had faced a constitutional crisis.

A cross-party group of MPs had previously tried to force Jersey to create public registers of beneficial ownership of companies, but their bill was withdrawn when the constitutional implications of attempting to directly legislate for the Crown Dependencies became apparent. Some States Members travelled to the UK to directly lobby MPs on the matter.

Amid growing concerns following the Fisheries Bill vote, the States of Guernsey last night released an extract from a letter from the Lord Chancellor penned in response to queries about the impact of the UK’s Internal Market Bill, which appeared to reaffirm the relationship with the islands.

“I can assure you of the UK Government’s support for the longstanding constitutional position that the UK Parliament should not legislate for the Crown Dependencies on domestic matters without the Crown Dependencies’ consent,” it read.

The States of Guernsey noted that the response “comes at an important stage in the EU negotiations”, and that “Its receipt also coincides with the UK Government’s decision to insert a Permissive Extent Clause in respect of the Bailiwick in the UK’s Fisheries Bill which cannot be used to legislate for the islands without consent.”