Examination of Witnesses (Question Numbers
45-59)
PATRICK BOURKE,
KARL BANISTER
AND STEVEN
EFFINGHAM
2 FEBRUARY 2010
Q45 Chairman: Welcome Mr Bourke,
Mr Banister, and Mr Effingham. We are very glad to have you with
us. The purpose of this session is to help our inquiry into particularly
the role the Ministry of Justice plays in its dealings with the
Crown Dependencies and in facilitating the relationship between
the Dependencies and the UK Government and its departments. Quite
genuinely we are seekers after the truth this afternoon because
there is a lot that simply is not known about how this process
works, and I thought we could start by asking you, particularly
the Ministry of Justice representatives, what you do. I am going
to concentrate in a moment on the legislative process because
that is an on-going process, but if you could give us a slightly
broader indication of what you spend your time doing in the Crown
Dependencies I think that would be helpful.
Patrick Bourke: Certainly, and
can I thank you very much for the opportunity to come and answer
some of your questions. As you rightly point out, Chairman, not
all of this is very straightforward, not all of this is completely
crystal clear, but I hope over the course of the next hour or
so we can at least elucidate a little bit. I am Deputy Director
for the Crown Dependencies and Europe in the Ministry of Justice.
In answer to your question what do we spend our time doing for
the Crown Dependencies, the way we would characterise it, as you
will have seen from our submissions, is that we, the UK that is,
are responsible as a matter of international law for their defence
and international relations, and as a matter of constitutional
law the Privy Counsellor with this responsibility, who happens
at the moment to be Jack Straw, discharges the obligation on the
Crown to ensure their good governance, so in a sense the easy
answer to your question of what we do in the Ministry of Justice
for the Crown Dependencies is we fulfil those obligations, but
that does not tell you very much because what you want to get
into, I suspect, is the practice. Effectively the best way to
go about this is to give you a flavour of what I think our relationship
is. That relationship is a mix of two things. Firstly our stance,
the UK stance, with Crown Dependencies is one of a good neighbour.
We have very deep historical ties, we take those very seriously,
they are geographically proximate to the UK, there is a lot of
movement historically between the Islands and the mainland and
vice versa, so the first thing is a good neighbour. The second
element I would touch on is that as good neighbours we are also
critical friends, and what that translates to in a day-to-day
sense is, where called upon to do so, we assist them in securing
their objectives across a whole range of issues. The number of
issues across our desks is really quite astounding: it can go
from anything to territorial waters to renewable energy via the
space industry, company lawyou name it, in any given week
all these things come across our desk.
Q46 Chairman: Does that mix include
other things than legislation?
Patrick Bourke: Yes, absolutely.
We obviously are there to process legislation, and I know you
want to touch on this in more detail, but effectively we are there
to tell them what is going on, what current UK thinking is and
what current international thinking is on particular issues, bring
them up to speed with things they are interested in, facilitate
where appropriate direct contact between them and other government
departments, so if they had a particular question on export licensing,
for instance, we might point them to an official in BIS who would
be in a position to help them, or indeed on the financial side
with HM Treasury, but essentially our function is really to help
them shape themselves as sustainable, economically prosperous
and sound jurisdictions able to take advantage of the opportunities
that the increasing international nature of the world promises.
That is a broad brush statement but I am happy to give you specific
examples, if that would help.
Q47 Chairman: For all the Dependencies
though, there are slight differences at the moment, there is a
process by which their legislative proposals are offered to UK
government departments for consultation purposes, and the Royal
Assent will depend on, and it is Jack Straw in this case, the
relevant Privy Counsellor being satisfied that he should advise
Royal Assent to be given. Is that a largely informal process which
eventually culminates in some pieces of paper moving about, or
is it from the beginning a formal process, and does that differ?
Are you on the phone saying "We are thinking of putting a
clause in to do this, would that cause any problems with the departments?"
Or is it very formalised process?
Patrick Bourke: As you say, broadly
speaking, the Isle of Man and the Channel Islands do follow the
same process; there are differences but they are not really important
for these purposes. The system we employ is the same across the
board, and it is what you would expect. The legislation comes
into the Ministry of Justice, we make an assessment of its complexity,
what interests are engaged, which other government departments
might be interested. Having made that assessment we then consult
with the relevant government departments and give them the inside
of three weeks to provide their feedback on that. Our lawyers
then go through the draft legislation with a fine toothcomb to
ensure they do not engage international obligations or infringe
against them, because at the end of the day we are responsible
for the international obligations, it will be us in the dock if
it goes wrong, so there is a legitimate interest for the Lord
Chancellor to assure himself through his own advisers that that
situation does not arise, and having made that analysis, if there
are points of drafting or more substantial points, typically we
would then engage in an informal process of trying to understand
what the purpose of this particular clause and that particular
clause is, and 9.9 times out of ten I would say that we are satisfied
with the answers we have and we are happy to put it forward for
Royal Assent. You asked specifically about whether it was a formal
or informal process; it is both. It is formal in the sense that
we have to adhere to very strict timetables for the Privy Council
and there is a whole florid language that goes along with that,
but informal in the sense that the relationship between policy
officials at the Ministry of Justice and the Crown Dependencies
and between lawyers at the Ministry of Justice and the Crown Dependencies
is very good, and we speak sensibly to one another about what
the objectives are and how we can accommodate them.
Karl Banister: I lead the constitutional
law legal team, a team of ten lawyers working across the Government's
constitutional law reform programme, including parliamentary standards,
Constitutional Reform and Governance Bill, the electoral system,
House of Lords reform, and, of course, advice about Crown Dependencies.
Q48 Chairman: This is UK legislation?
Karl Banister: Yes.
Q49 Chairman: Whose relevance to
the Dependencies you have to discuss?
Karl Banister: Yes.
Q50 Chairman: As opposed to Dependency
legislation, whose conformity to international conventions and
so on needs to be discussed?
Karl Banister: That is right.
Patrick has covered the process quite well but, if I go through
the detail, Channel Islands law is slightly different, there is
a variation between the laws, and I will start with Jersey/Guernsey.
The laws are passed by the respective Islands' legislatures and
then sent to the Ministry of Justice. We allow between 14 and
16 weeks to process a piece of law because there are several stages
to go through before it gets to the Privy Council. That is what
we allow but, of course, there are variations depending on the
urgency or prioritisation on behalf of the Islands. We can do
things very quickly if we really have to but that is the normal
timescale. The reason we allow that time is because there is a
process we go through. When the law arrives in the Ministry of
Justice it is registered in our records; we decide which department
or departments need to be consulted, and we allow a bit of time
to do that part of the process. We then go ahead and consult whoever
the departments are who we think have expertise in the particular
policy area addressed in the legislation because we are generalist
lawyers, not specialists in, say, maritime law or whatever, and
we give them 20 working days to respond. That might sound like
a lot but this will be totally new to them and they will have
to decide how much work they want to do on it. Again, we will
give less time if, in discussion with the Islands, we think that
is necessary. The law then comes back to my team and we allow
another 20 or so working days to work through ECHR issues and
so on and breadth of powers. My team are not interested in the
policy at all.
Q51 Chairman: One of our witnesses
suggested that some Guernsey legislation had been held up and
people did not know why, and it was because of what were thought
to be excessive ordinance making powers.
Karl Banister: That is right.
That was in 2007, before my time in the team, but what happened
was there was a period when a series of measures contained powers
the effect of which was to take away the scrutiny function that
we have. It was exactly like the discussion that might go on with
the Delegated Powers Committee here, so there was a period of
negotiation which was resolved and we now have a far better working
arrangement. In those cases, when the Islands have got what they
think might be a broad power, they will come to us ahead of making
the law and talk about that, and in 95% of cases, subject to a
conversation, we are happy, so that did happen but it is not a
concern at the moment.
Q52 Dr Whitehead: Taking it the other
way around, what might be the circumstances where you might consider
it appropriate to ask the Crown Dependencies to initiate their
own legislation, for example, as far as the UK's responsibility
to ensure the compliance of a Crown Dependency with international
law and your conclusions on that and therefore, presumably, a
machinery of some description whereby you might be able to say
to Crown Dependencies: "You really ought to legislate on
this"?
Patrick Bourke: That is a very
good question, and there is a recent example. In fact, you were
taking evidence from my Secretary of State on the day that Sark
had its first democratic elections, and this is one of the instances
where we might encourage, not to put it too weakly, a Crown Dependency
to bring forward alternative legislation. In that case, as you
will recall, the Secretary of State was faced with a Sark reform
law which, in his judgment, did not satisfy our obligations under
the European Convention on Human Rights, Article 6 in particular.
In those circumstances he refused to recommend the law for Royal
Assent. The effect of that was to provoke a period of reflection,
I think might be the best way of putting it, on Sark when they
could think whether they should go a bit further. In the event
a new reform law did emerge and, whilst it still contained, in
the Secretary of State's view, subsequently backed in the House
of Lords, a minor de minimis defect in relation to Article
6, the progress that had been made in terms of securing democratic
elections on what had hitherto been the last feudal region in
the whole of Europe, outweighed this particular defect. So that
is one example of circumstances where we might encourage the Crown
Dependency to adopt legislation. I think Karl may have another
example where perhaps we see a significant UK interest.
Karl Banister: I was thinking
about the evidence given by Professor Alastair Sutton before the
Committee, because that is an example where we have dialogue.
If the question is are there circumstances where we would lean
on the Islands to do something, the only realistic example I can
think of is compliance with international obligations, treaties
and so on. If the UK is entering into a treaty in respect of the
whole of the UK and the Channel Islands it is difficult to be
in a position where the Islands have not legislated appropriately
but, as I think Professor Sutton said, examples other than that
are quite difficult to imagine because they depend on all sorts
of things happening on the Islands that are incredibly unlikely
to happen.
Q53 Dr Whitehead: I assume there
would be a ground for intervention in legislation, presumably
through the offices of the Privy Council?
Patrick Bourke: It is commonly
understood that the Government, or the Crown acting through the
Government, has a residual power to intervene. Now, the circumstances
which would give rise to a legitimate exercise of that right have
never presented themselves, and the most recentand I say
this with hesitationexample that was given when this was
looked at in some detail was in the 1973 Kilbrandon Report, with
which I am sure the Committee is familiar, and examples of what
might constitute a sufficient reason for the UK to legislate without
reference to the Islands, ie without their consent, included,
for instance, a complete breakdown of law and order. Now, things
are very exciting in the Crown Dependencies but we have some way
to go before they reach that sort of level!
Q54 Dr Whitehead: So does this therefore
remain a theoretical possibility, or is advice extant to the Privy
Council, for example, on circumstances under which such arrangements
might be possible or necessary?
Patrick Bourke: I am not sure
I have the answer to that question.
Q55 Chairman: May we ask the Minister?
Karl Banister: You can. I am only
aware of the Royal Commission Report, the Kilbrandon Report, which
sets out what they concluded were the legal parameters, which
were that there is a power to legislate for the Islands, but then
sets out that conventionally we do not do that unless there are
extreme circumstances.
Q56 Dr Whitehead: Perhaps this might
be regarded as an aside, particularly relating to the Channel
Islands, but where you have what might be regarded as domestic
area management arrangements with France, which may relate to
a variety of issues on landing management of joint space, et cetera,
would the relationship there be between France and UK authorities
in terms of how such discussions might proceed, or would they
be relations which proceed directly with Jersey, Guernsey and
the French authorities, either regional or national?
Patrick Bourke: It would rather
depend what the end goal is. If this is a negotiation intended
to lead to an international agreement it would have to proceed
with our knowledge and acquiescence, because they are not sovereign
states and they have no international legal personality, so any
such agreement they purported to make would be unenforceable and,
therefore, not particularly attractive to the French. That is
not to say that we would not encourage the Crown Dependencies
to speak to whomsoever they wish, but the difference is that the
point at which they engage obligations, or they are purporting
to engage obligations, there are obligations and we should have
a corresponding right to take a view on whether or not those obligations
are ones which we are happy to bear on their behalf.
Q57 Mr Heath: I am not clear but
presumably, at least theoretically, the legal position in the
Crown Dependencies could be a bar to UK ratification of treaty
or protocol. I do not recall a circumstance in which the UK has
failed to ratify on the grounds that the legal practice in one
of the Crown Dependencies is not in accord with the provisions
of a treaty, but presumably, theoretically at least, that is the
case. Do people just turn a blind eye to the fact that one or
more of the Islands might not have quite done what we promised
to do?
Patrick Bourke: Whilst it may
be theoretically possible the occasions on which it arises, as
you put it, we have never heard of so I do not know how much of
a serious problem this is, but it may be a theoretical one.
Karl Banister: I think it is a
theoretical problem but the recent activities in relation to the
legislature in Sark suggest the way that is dealt with is that
if we enter into an obligation or a treaty where there is not
compliance individuals can challenge either our decisions or the
decisions of the authorities in the Islands through the courts
to secure compliance, which is what happened in that case.
Q58 Mr Heath: I think I am hearing
a blind eye is turned until somebody points it out, is that right?
Karl Banister: Well, if we do
not know about something we do not know about it.
Mr Turner: Do the people here have any
status in discussions about what happens even on the external
powers? Your own powers? Or is it entirely a matter for the Lord
Chancellor?
Q59 Chairman: Is it a prerogative
power that he is exercising?
Patrick Bourke: At this point
I will look to my learned friend!
Karl Banister: It is the Queen-in-Council
legislating for the Islands, so
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