Can the UK Legislate for the Crown Dependencies?

Although there is now some academic controversy, the power of Parliament to legislate for the Crown Dependencies seems, to me, clear. Parliament has expressly legislated for the Isle of Man, for instance, since at least 1541, and these Acts have been recognised and enforced in the Isle of Man innumerable times. As Miles Walker, the first Chief Minister of the Isle of Man, recognised, this power is not legally fettered by constitutional convention – unsurprising if we take the dominant view of constitutional conventions as not being legal rules enforceable by the courts.   

Constitutional conventions, what Dame Margaret calls the constitutional proprieties, are, however, crucial to understanding the changes in the position of the Crown Dependencies since the peak of the British Empire. Even during the Imperial era, it became seen as increasingly inappropriate for UK structures to act in what its politicians saw as UK interests, without the consent of democratic organs within the possession. In 1880, for instance, the Manx authorities successfully resisted an otherwise unobjectionable piece of legislation on the basis that it was inappropriate for “questions that can be settled by the local legislature [to be] dealt with by the Imperial Parliament in which the people of this Island are unrepresented”.

In 1973, The Kilbrandon Report confirmed that Parliament should only legislate without Manx consent on matters transcending the frontiers of the Isle of Man.[i] Kilbrandon identified three instances which reflected 20^th century practice – defence; matters of common concern to British people throughout the world; and the international responsibilities of the UK. Kilbrandon also suggested that the interests of the Isle of Man, and of the UK, could justify Parliamentary action. This much vaguer idea could not so clearly draw on concrete examples of constitutional practice, and has not formed the basis for later discussion. Analysis of the relationship since has emphasised the exceptional rather than utilitarian use of UK authority. The 2010 Justice Committee Report on the Crown Dependencies,  for instance, recognised that UK responsibility for good governance of the Crown Dependencies is restricted to crises, rather than differences in opinion over policy; and that the UK should not use its remaining authority – for example in relation to treaty making -  to prioritise UK interests.

Since Kilbrandon, the international responsibilities of the UK have, on occasion, prompted the UK to threaten to legislate for the Crown Dependencies. In 1992, for instance, just such a threat compelled Tynwald to pass a law bringing Manx sexual offences into line with UK obligations under the European Convention of Human Rights.  Given that the UK is responsible for Crown Dependency violations of international law, this seems a natural consequence of the non-sovereign status of the Crown Dependencies. Otherwise, as current UK Ministry of Justice policy states, “UK legislation rarely extends to the Crown Dependencies and should not be extended without first consulting the Island’s Authorities and obtaining their consent”.[ii]

In the absence of any democratic representation for the Crown Dependencies in the UK Parliament, this should remain the case, regardless of the views of UK politicians as to UK national interests.

[i] Royal Commission on the Constitution, Report Of The Royal Commission On The Constitution (Kilbrandon Report), 1973 (London, 1973)

[ii] Ministry of Justice, Fact Sheet on the UK’s Relationship with the Crown Dependencies, (2018) at 2.

Peter Edge
Professor Peter Edge from the School of Law, Oxford Brookes University, UK, is an expert in the law of small jurisdictions with a common law inheritance, particularly the Isle of Man. His doctoral work at Cambridge University concentrated on the public law of the Isle of Man, including both constitutional and criminal law, and his publications in the area seek to show how the study of Manx law can illuminate issues of broader scholarly concern (for instance, in a study of the Manx Tynwald aimed at informing reforms to the UK House of Lords). He leads the Small Jurisdiction Service at Oxford Brookes.