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Statement by the President of the Policy and Resources Committee

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Wednesday 25 September 2019

Brexit, the UK political situation and Guernsey's constitutional resilience

Mr Bailiff,

Thank you for allowing me to make this Statement to update (to the extent possible) on political developments in the UK in relation to Brexit as they might impact Guernsey.

When I made a general update statement to the Assembly earlier this month, I talked about events evolving rapidly in the UK and advised that I had written to the United Kingdom's new Prime Minister to remind him of the Bailiwick's long-established constitutional relationship with the Crown, the positive working relationship with the UK Government during the Brexit process to date and Guernsey's position remained that a disorderly UK exit from the EU would not be in our interests.

As members may be aware, the Prime Minister has now replied, and said that he wanted "to be clear that the UK Government appreciates the special relationship that the UK has with the Crown Dependencies"characterising it as a"deep historical relationship in which we work collaboratively together on matters of mutual interest".

We have been consistent and clear that the UK Parliament does not legislate for Guernsey without our consent on domestic matters, including in regard to registers of beneficial ownership, and I welcome Mr Johnson's reaffirmation of the UK Government's - again in his own words - unambiguous stance in supporting us in that regard. The Prime Minister welcomed our recent joint announcement with Jersey and the Isle of Man, laying out a step-by-step action plan to move to public registers of beneficial ownership, in line with the EU's 5th Anti-Money Laundering Directive, adding his view (correctly) that it underlines our commitment to the fight against financial crime.

Mr Johnson also provided further confirmation that the UK Government will continue to take our interests into account during the Brexit process and beyond. It was heartening to read that despite the current uncertainty in UK politics, Her Majesty's Government wants to strengthen further our already close working relationship in future.

Seeking these commitments was the purpose of the letter and getting these in writing following the change in Prime Minister is significant, given the departure from a Brexit approach that was policy just a few months ago. And while I fully understood and expected that the Prime Minister's current diary commitments would make a meeting in the short term highly unlikely, as the old adage goes: if you don't ask you don't get....

Sir, the current political situation in the UK is unprecedented. It is turbulent, uncertain and its institutions are clearly highly stressed. Members will no doubt have followed closely developments surrounding the UK Parliament's prorogation and yesterday's ruling of the Supreme Court that it was unlawful. Not in any of our lifetimes have so many been talking about complexities and nuances of the British constitution.

It is also party conference season. Those conferences form part of our ongoing engagement with UK politicians, so I attended the Labour Party Conference earlier this week - and Deputy Trott is due to represent the island at the Conservative Party Conference next week, assuming it proceeds.

The political parties are using their conferences as an opportunity to crystallise and clarify further their positions on Brexit and the approach being taken by the UK Government. In part that is inevitable as the UK's Brexit deadline of 31 October looms ever nearer, and in part it is in readiness for what currently seems like an inevitable General Election. The decisions made at these conferences will shape the election and it is important that we are able to prepare for the impact a potential change of UK Government could bring.

While facing seemingly daily twists and turns in UK domestic politics, the UK Government has continued its discussions with the EU to try and find a Brexit solution that would avoid a no deal exit. As we have said many times before, our position remains that a disorderly exit is not in the Bailiwick's interests - and we unashamedly lose no opportunity to communicate that message to everyone and anyone who will listen. However, as a responsible government we must of course continue to plan for all scenarios.

Discussions with colleagues in Her Majesty's Government are continuing apace to extend the territorial scope of the UK's membership of the World Trade Organization to include the Bailiwick. The Secretary of State for International Trade has agreed to the extension and officers have been meeting regularly with colleagues from the Department for International Trade to ensure all necessary steps are taken so that the extension is in place if and when the UK becomes an independently represented member of the WTO upon any exit day. To date this is a complex and technical undertaking but I am confident that we are nearly there.

Moving now from trade to people, our EU Settlement Scheme provides a mechanism to secure the immigration rights of EU citizens, and their families, living in the Bailiwick on exit day if they apply through the process.

This is a free scheme and provides certainty for residents and businesses, and I would take this opportunity to remind EU citizens living in the Bailiwick to contact the Guernsey Border Agency who can guide them through the process. It is important that there is no doubt about our commitment to respect the rights of EU nationals resident in Guernsey in exit day.

We have been ramping up our no deal preparations recently. Operational structures originally put in place earlier this year have been re-established to ensure cross-government and key external stakeholders' engagement on no deal plans. This has benefitted from the huge amount of planning that occurred before the original March leave date, but has involved reviewing and updating plans factoring in changes to both the political landscape but also the different season as the year moves on. The Brexit Transition Group is meeting every other week to provide political input and direction, with no deal oversight also provided by the Civil Contingencies Authority, which will meet regularly in the lead up to 31st October and immediately following exit.

The UK has also stepped up its engagement with us in recent weeks. We have daily contact with departments across Whitehall and meet with colleagues once a week.

The official UK position remains that it is working towards a deal, however it is clear that at department level a significant amount of focus is also on no deal planning. I will attend the next Chief Ministers' Quarterly meeting in early October with James Duddridge, Minister at the Department for Exiting the European Union and I expect this to cover a wide spectrum of no deal planning - but also further discussion on the UK's position on future trade.

Ensuring the continued supply of essential goods, including medicines and medical supplies, remains a key element of our no deal contingency planning. We continue to work closely with the UK Department of Health and Social Care, and have received political assurances, including this week, that we are included in their multi-layered plans to ensure that health services have uninterrupted access to the medical products needed. Advice from the UK has been that stockpiling medicines is neither needed nor helpful, however where practicable the Committee for Health & Social Care is bolstering on-island resilience for medical supplies and consumables - for the avoidance of doubt these products are not medicines. I hope that we will have a meeting with the relevant minister in the next few weeks.

We are currently updating all our Brexit-related content on the States' website and will be relaunching the new pages in the coming weeks.

This will include an updated no deal guide for the community. We have already issued updated guidance for businesses. The flow of information and cooperative approach between the UK and Guernsey is good and is ensuring we are as well placed as we can be to face the potential challenges of a no deal exit.

Sir, notwithstanding our no deal preparations we must also remember that the present UK government's preference is to leave the EU at 11pm on 31St October with a deal. As such we must plan for a scenario where a Withdrawal Agreement is approved at the European Council in mid-October with the UK then seeking ratification through Parliament by 31 October. Should this occur, my Committee's intention would be to put a Parliament-agreed Withdrawal Agreement and Political Declaration to the States for debate so that this Assembly can express its view and understand these arrangements. Timing for this will be tight and it may prove impossible to do this before 31 October but it is our intention to ensure we bring a Policy letter to the States as soon as practicable.

For completeness, there remains the possibility that the Article 50 period may again be extended. Were there to be an extension, Protocol 3 would continue to govern Guernsey's relationship with the EU, as now.

The complexity of the Brexit process has thrown up a number of constitutional challenges for the UK, in particular in the last few weeks. It is to be expected (and indeed it is a duty) that the Lord Chancellor should publicly defend both the rule of law and the independence of the judiciary, even when disagreeing with their judgement, but it speaks volumes about the political times in which the UK finds itself that he should find it necessary to do so in light of government briefings or comments from other ministers. What is clear is that the political upheaval in the UK has not finished. While our own constitutional relationship is not directly impacted by these conundrums, we must ensure that we safeguard our interests.

In addition, our own relationship with the UK Parliament has been in the spotlight in the last few years, in particular since March of this year. We continue to work on our own constitutional resilience following attempts by some backbench MPs for Parliament to legislate for us, Jersey and the Isle of Man on the subject of beneficial ownership registers.

We engaged with MPs at the Labour Party Conference on these issues and further engagement is planned with both Conservative and Liberal Democrat MPs in the coming weeks.

The step-by-step action plan we jointly published with Jersey and the Isle of Man in June, outlining our commitment to move to public registers of beneficial ownership in line with the EU's 5th Anti-Money Laundering Directive, has been widely welcomed.

Our relationship with the UK relies on mutual respect for and adherence to centuries' old constitutional principles, conventions and rules - many of which are unwritten. It is notable and important that the Supreme Court ruled that constitutional propriety must be upheld. But given the uncertain political picture in the UK, the time is now right for us to revisit and develop the work of the Constitutional Investigation Committee in the last States' term. This will need to look at issues such as the further development of our international identity and the process by which our legislation receives Royal Sanction. I would hope that we can begin engagement with the UK on this in the not too distant future. I also expect that our interests and those of Jersey in this matter are closely aligned and therefore hope that we will be able to work proactively with the Government of Jersey on this agenda.

Fundamental to our constitutional resilience is the UK's understanding that it does not legislate for us on domestic matters without our consent. I was unsurprised this position was acknowledged by the Prime Minister, as it was by his predecessor, but welcomed it nevertheless.

However, we must ensure that our independence and domestic autonomy cannot be undermined by any future UK government in Whitehall or parliament in Westminster. Put simply, we will not allow our ancient constitutional rights to be infringed.

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