Wednesday 08 March 2017
Triggering of Article 50 of the Treaty on European Union in respect of Protocol 3.
Sir,
I welcome this timely and important debate on this Policy Letter. The title ("Acknowledging the Triggering of Article 50 of the Treaty on European Union in respect of Protocol 3") has been chosen carefully.
This debate is about something that is happening in the UK, a colossal undertaking, which in a much smaller way, will impact Guernsey. Whilst this impact is smaller, it is neither insignificant nor simple for us. It is only right and proper that, as a mature democracy, that is seeking to grow its autonomy and international identity, the States reflect on this impact. This is a proportionate parliamentary process for this assembly to take.
Sir, if I may, I would first like to correct a minor error which was picked up in the Policy Letter. I want to ensure there are no claims of misleading the assembly.
In paragraph 3.4 sub-paragraph 1 of the Policy Letter it states:
"Any traded products must meet the relevant standards and environmental requirements of the EU."
The word "environmental" slipped in and it should not be there, for which I apologise. However, for the sake of clarity, this sentence was included to explain that Protocol 3 requires us to adopt certain standards and processes, where they relate to the obligations which arise in return for being part of the EU customs union. We have adopted standards to provide for the trade in agricultural products which requires certain legislation relating to: animal health, plant health and food as well as standards relating to marketing.
Of course we also adopt certain standards and requirements voluntarily - and these may include environmental standards to facilitate trade for our businesses.
My thanks to Deputy Prow for drawing this error to my attention. It has provided a good example to illustrate that although Protocol 3 is short in length it is by no means simple.
Unpicking over 40 years of integration in respect of this relationship will come with its own challenges. It is a complex area and needs careful analysis.
Why have the debate?
It is by this same need for careful analysis that this debate has come about. We watched with interest when the Miller case judgement was handed down in the High Court in London in November 2016 - and the very high profile appeal process that subsequently followed. TheMiller case has had a profound impact and led to the UK Parliament debating the triggering of Article 50 - a process that is ongoing this week but will soon reach a conclusion.
Whenever there is a constitutional judgment in the UK courts that may impact us, we pore over the detail. It was clear, from very early on, that the triggering of Article 50, would need careful consideration in respect of the impact it will have on the Bailiwick, in the context of the obligations which arise under Protocol 3. With advice from the Law Officers we have been able to carefully construct a proposition that does not risk overstating our case. For once a proposition 'to note' means just that - and is entirely appropriate: in other words, we acknowledge, understand and will respond to the UK's decision (in which we have played no part having not participated in the referendum) to trigger Article 50.
As the report explains, this will lead to a change in our domestic law in Guernsey. It will affect how our European Communities Law 1973 operates. We will need to manage this impact which will be through a local version of the much touted 'Great Repeal Bill.' This is a bill which will not so much repeal, but retainthe body of EU law in UK domestic legislation where the UK needs it to function. This will help smooth the transition period, as the UK leaves the EU.
It is only right that this Assembly recognises this change will happen, before Article 50 is triggered. The States will need to keep pace with this change if we want to influence it.
When the UK Prime Minister takes the action of triggering Article 50, she must do so with an awareness of how that action will impact us as a Crown Dependency for which her government and ministers are responsible in the international sphere on behalf of Her Majesty. Today's debate and proposition will demonstrate to the UK Government at the highest level, that this assembly is engaged with the process - and will seek to be engaged throughout the whole process.
States' engagement
The report provides a summary of the engagement of this assembly when the UK joined the European Free Trade Area, during the two failed attempts to join the EU, both thwarted by President Charles de Gaulle of France, as well as during the successful third attempt. This culminated in the States considering the thrust of Protocol 3 in December 1971, a month after the UK chief negotiator, Geoffrey Rippon, had negotiated it in Brussels. This was by no means without its difficulties. It is clear that there was concern that the UK would force constitutional change on the island; there was a requête in September 1971 and over 14,000 people signed a petition to Her Majesty, leading to an Order in Council in November 1971 that helped safeguard our constitutional position. The States were concerned that being forced to join the European Community would lead to a loss of autonomy, but being left out would cripple the horticultural and tourism industries.
We needed a middle way and those were the reasons for agreeing to Protocol 3.
Most recently, the States were engaged closely with the UK Government throughout its re-negotiation with the EU over 12 months ago. We started planning for the possibility of a leave result. This is what enabled the new Policy & Resources Committee, so early in this States' term, to publish a Policy Letter just days after the referendum, and for the States to agree their high level objectives a few days later, giving a mandate to the Policy & Resources Committee to commence the engagement.
These objectives have served us well. On 17 January, the UK Prime Minister announced the UK's objectives in a speech in Lancaster House. Our objectives are remarkably well aligned.
- We both want to guarantee the rights of EU residents in our jurisdictions; and we want to see that the EU rights that our residents have, are respected. These rights are the subject of negotiation and we want the best possible outcome for the Bailiwick, which may not be the same as what is best for the UK.
- We want to benefit from the free movement with the UK and to maintain the Common Travel Area.
- We want tariff free trade with the EU - and where possible to form new trading relationships.
In respect of the relationship that we have with the UK, we have had reassuring messages from Robin Walker MP, Minister at the Department for Exiting the EU - with whom I spoke again on Monday - and the Rt. Hon Sir Oliver Heald MP, Minister of State at the Ministry of Justice - that state the UK Government does not intend to change the long-standing constitutional and trading relationships with the Crown Dependencies. The UK's White Paper, whose publication followed the Prime Minister's Lancaster House speech, clearly states that the UK will:
- continue to involve us fully in its work;
- respect our interests and engage with us as the UK enters its negotiations; and
- strengthen the bonds between us as we look outward into the world.
Further to this, I have written to the Prime Minister to seek assurances that the UK will not impose change on the islands or unilaterally abrogate the rights and privileges enjoyed by islanders - many of those rights deriving from our Royal Charters and pre-dating the European Union by a number of centuries. We also want to ensure the exit and notification process respects and represents our interests. I understand that a response should be with us shortly.
Our engagement to date has been successful in helping us secure these commitments - as acknowledged by Sir Oliver Heald in his recent evidence to the House of Lords EU Committee and Robin Walker in his evidence to the House of Commons Justice Committee. Our relationship is mature, productive and candid. We have carefully positioned ourselves, so that these channels of communication are primed for the commencement of the UK's negotiations.
Our engagement with Whitehall and Westminster has ensured that there is a far deeper understanding of the Crown Dependencies amongst many more people than there has been before.
They now know we are different constitutionally from the devolved administrations in Scotland, Wales and Northern Ireland. They now understand that our relationship with the EU is unique. They now know that our interests may not be exactly the same as the UK's on every issue but that the UK has a clear responsibility - acting on behalf of the Crown - to represent those interests.
The engagement within this assembly is equally important. This is the second Brexit policy letter and there have been two statements made to update members. I anticipate there will be more debates, statements and questions as we all play our part in this process.
We have established the political leadership we need within the Policy & Resources Committee. We are getting the resources we need to co-ordinate activities.
This will act as the hub that ensures that the Committees with the relevant mandate and expertise can be engaged in the process.
We will need to keep these resources under review, but we will also benefit from public service reform which will help the redistribution of effort into the priority areas when it is really needed. But we will balance the need for resources with the need to exercise value for money and prudent fiscal management.
This Policy Letter helps us to assert our international identity. The island has evolved in how it engages in international affairs since 1971. In 2017 the island is far from passive in its approach to its international identity, as demonstrated by the work of the Constitutional Investigation Committee, agreed in January 2016. This work continues and has taken on a new dimension in light of Brexit.
Liaison with the Other Crown Dependencies
We are working closely with the other Crown Dependencies. We attend meetings together, support each other and we share our approach. Whilst our domestic handling differs because of our different systems of government, there is very little difference in our position when we engage with the UK. This will be important throughout this process. We need to ensure we make the UK's task of engaging with us, as simple and seamless as possible. We will achieve more if we settle and rely on the common ground between us.
This will also enable us to better handle those limited areas where we know we are likely to have some points of difference.
We are also working closely within the Bailiwick; with regular contact with the States of Alderney and Chief Pleas of Sark. At officer level this is on a weekly basis, as well as through the Bailiwick Council, Alderney Liaison Group and Sark Liaison Group. Whilst each island has its own interests and own assemblies, there are many core matters, which the loss of Protocol 3 will engage, that are in the direct competence and responsibility of the States of Guernsey. For Alderney this is by virtue of the 1948 Agreement; and for Sark this is because Guernsey is its port of entry. We have many similar needs and this close liaison will help ensure that all of the Bailiwick has a voice. That voice is inevitably stronger when we act together.
What is next?
Sir, this will clearly not be the only chance the States have to debate Brexit issues as the process unfolds. This next milestone, the triggering of Article 50, will start the negotiation process.
The UK is working on a Great Repeal Bill and we are working closely with the UK on this process. At the appropriate time, when this process becomes clearer, proposals will need to be brought before this assembly to amend the 1973 European Communities (Bailiwick of Guernsey) Law and any other relevant legislation and also to put in place our own version of the 'Great Repeal Bill.'
This is, in some ways, a less daunting process for the Bailiwick of Guernsey than compared to the UK, because the provisions in Protocol 3 mean that not all of the EU body of law applies. However in many respects it will be no less complex, and to some areas it may be more so, particularly given our limited resources. The current propositions help pave the way for that work. The need to work closely with the UK is driven by the need to ensure there are no holes in the statue book come Brexit day, or in the regulatory systems that we all rely on. We need to minimise the uncertainty before the UK unpicks over 40 years of integration - following which we can then manage in a more orderly manner what we wish to retain in how we wish to retain it.
Summary
Sir, this is a well-timed Policy Letter and I welcome this chance to debate this important matter in the States of Deliberation. It is precisely what a mature democracy looking to assert its position and develop its international identity should do. I look forward to the debate.
