Crown Dependencies - Justice Committee Contents


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 law—you 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 recent—and I say this with hesitation—example 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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