Examination of Witnesses (Question Numbers
80-99)
LORD BACH,
MR PATRICK
BOURKE AND
MS FARIDA
EDEN
2 MARCH 2010
Q80 Chairman: Lord Bach, Mr Bourke, Ms
Eden, welcome. Mr Bourke, your job is leading the team on Crown
Dependencies. We have seen you before of course and your name
is often spoken of in Crown Dependencies.
Mr Bourke: I am
delighted to hear it, I think!
Q81 Chairman: Ms Eden,
are you in the legal team?
Ms Eden: That is right, I lead
the constitutional law team at the Ministry of Justice.
Q82 Chairman: You are not wholly
devoted to Crown Dependencies.
Ms Eden: No.
Q83 Chairman: Do you think there
is sufficient awareness across Whitehall of the constitutional
position of the Crown Dependencies or do departments, other than
yourselves, start with a lack of understanding?
Lord Bach: I think there is a
pretty good appreciation. I would say that I think it is best
in my department of the Ministry of Justice. That is not just
pure boasting, it is of course because it is our job; we are the
channel really for the Crown Dependencies and other government
departments and vice versa. Other government departments have
a great deal on their minds and on their plates at particular
times, and it may be that sometimes they are not as up to scratch
as we are as far as the Crown Dependencies are concerned, but
on the whole we think they are aware of problems as they arise.
Q84 Alun Michael: To what extent
does it make sense for the Ministry of Justice to be the single
point of contact with Crown Dependencies?
Lord Bach: I think it is something
that the Crown Dependencies themselves welcome. It ensures, for
a start, that they are kept informed of UK and international thinking
on a wide range of issues. We provide a first point of contact
for UK government departments that want to approach the Crown
Dependencies on aspects of their work and similarly for governments
of the Crown Dependencies wishing to approach UK departments.
It also facilitates direct contact between the Crown Dependencies
and other government departments on matters of concern or interest
to the Islands where that is appropriate. It is also of course
important because we have a duty to process the Crown Dependencies'
legislation to Royal Assent. We are considering at the moment
how we can improve the way we exercise this rather special role—peculiar
role if you like—and we are currently developing guidance
for the benefit of all parties including UK government departments,
which goes back to the Chairman's first question, on how we deal
with legislation extending to or originating from the Crown Dependencies.
Q85 Alun Michael: Can I put to you
something that came up when we were looking, for instance, at
the issues over Kaupthing and the Isle of Man which is that whereas
I think all that you have said makes excellent sense, and in general
may well work, are there not situations where a particular area
of policy is so clearly that of another government department
and where communication needs to be open and seen to be open when
facilitating an open discussion with another department would
make sense? On the Kaupthing example, for instance, the answers
from the Department for Justice rather suggested that the policy
lead lay with the Treasury. I know it was a complex issue so I
am not oversimplifying the situation, but it was difficult to
get clarity from the Treasury as to what was going on, so it made
government as a whole look pretty defensive and was not clear.
Certainly in that case people within the Dependency felt that
they were out on some sort of loop because they were contacting
Justice but the action was with Treasury. Do you see what I mean?
Lord Bach: Yes. I will ask Mr
Bourke to comment.
Mr Bourke: I would stress the
fact that we are the first point of contact, not the only point
of contact. As the Minister made clear just a second or two ago,
where it is appropriate we facilitate direct contact between Crown
Dependencies and specialist government departments.
Q86 Alun Michael: Do you feel confident
to make it clear that is what is happening in a particular set
of circumstances?
Mr Bourke: Yes I do. I gave the
example of Alderney Energy last time I appeared before this Committee.
Clearly the MoJ is not the place to come and have detailed discussions
about tidal power energy so the access has gone to Lord Hunt and
we are facilitating discussions between Alderney and the relevant
department.
Q87 Alun Michael: Just closing on
this point, can I suggest that it would be helpful to be explicit
and public when the ball is being passed in that way?
Mr Bourke: I do not see it so
much as the ball being passed, it is a shared responsibility the
whole of government has towards the Crown Dependencies so it is
not a question of passing the ball or the hot potato; it is a
question of getting together the best possible advice.
Q88 Alun Michael: It can look a bit
muddy from outside.
Mr Bourke: Perhaps it can, but
I have to say that nine point nine times out of ten it seems to
work to mutual advantage.
Q89 Chairman: We hear about the other
one.
Mr Bourke: The point one.
Lord Bach: We hear about the other
one too!
Q90 Chairman: The process of getting
Royal Assent for legislation technically differs slightly between
the different Crown Dependencies but is essentially similar in
principle. It provides an opportunity for the UK Government to
object to or to delay the legislative process which has been engaged
in by the democratic legislatures of the Dependencies. What do
you think are the constitutionally legitimate grounds on which
the UK Government can do that?
Lord Bach: I think the grounds
upon which we can do it constitutionally are limited. In the result
it is extremely rare that we do it. Where we can, for example,
is where it affects the UK's international relations with third
countries because of our responsibility for defence and international
relations as far as the Crown Dependencies are concerned. That
is one area we can do it and as to the other I think you will
remember the Lord Chancellor himself telling you about the decision
on Sark because he considered it, after due reflection, to be
in breach of the ECHR.
Q91 Chairman: You have since written
to me to point out that actually his grounds were primarily arising
out of the good governance responsibilities which the UK has towards
Sark in the context of modern democracy. I have the letter here.
Lord Bach: It is an example of
both the twin paths, good governance, one of our responsibilities,
and the other the defence and international obligations of the
Crown Dependencies.
Q92 Chairman: Is congruence with
the United Kingdom policy, other than covered by those two previous
points, a legitimate ground for review?
Ms Eden: The difficulty is that
there are not going to be many areas which do not relate to good
governance or international obligations which also covers the
European Convention on Human Rights. It is very unlikely that
you will find a piece of legislation that is not at all about
human rights or good governance in some way. We certainly would
not expect the Islands to have the same policy aims as ours but
I think, if it falls within the ambit of good governance or international
relations, that would open up a dialogue and we might want to
talk to them about a piece of legislation. I think it is perhaps
a bit of a false distinction to say would we refuse Royal Assent;
I do not think that necessarily reflects what happens in practice.
What happens is that a piece of legislation comes into us and
we think maybe the drafting is not quite tight enough or we think
there might be a human rights point, and we will get on the phone
to our opposite numbers in one of the Crown Dependencies and talk
them through it. It is a sort of partnership rather than us taking
a hard line and saying we are going to refuse Royal Assent. Sometimes
they will explain something to us and we will say that makes sense
or sometimes we might seek assurances as to how a piece of legislation
is actually going to be operated in practice. It is perhaps a
more fluid process than just simply refusing Royal Assent to a
piece of legislation.
Q93 Chairman: That leaves me a bit
confused because it is quite clear that if there are issues about
international relations for which Britain is responsible and the
drafting does not satisfy those obligations you must discuss that
with them. If, however, it is simply that the policy they are
planning to pursue is in a rather different direction from the
policy of the relevant UK department, is that a ground on which
you ring up and say, "Well, actually I think you'd better
change the drafting here" or "Do you really want to
do this?"
Lord Bach: No, I would not, as
Minister, think that was ground. Ms Eden mentioned poor drafting,
for example, and that would be a ground. If it is drafted too
widely, for example, whatever the policy may be, so that it allowed
for too much to be put into secondary legislation, then I think
we would be absolutely right and the Crown Dependencies would
thank us, but not on policy.
Q94 Chairman: Just a minute, there
is no other body which picks up our legislation in this Place
and says, "You'd better not do this because there's too much
going into delegated legislation, it is too framework in character,"
so why should somebody do it for the Crown Dependencies?
Lord Bach: With the greatest respect,
you say in your House, Chairman, but in my House the Delegated
Powers Sub-Committee are constantly telling us—
Q95 Chairman: That is in the legislature.
They have their own legislature; they draft their legislation.
Do you turn round and say to them, "We don't like the way
you're drafting this legislation"?
Lord Bach: No. If it is poorly
drafted we tell them it is poorly drafted and, again, I do not
think that happens very often. Ms Eden will be able to tell you
more. If it is too widely drawn—probably more widely drawn
than they sometimes intend—then I think they are pleased
that we tell them. They may say "No, we want it this widely
drawn", in which case we would have to go back, but the same
kind of rules that apply to the UK Parliament in terms of what
you should put in primary legislation and what you should not
put, do apply in the Crown Dependencies.
Ms Eden: I think there is particular
constitutional point about secondary legislation in that the Queen-in-Council
retains the power to give or refuse Royal Assent to legislation
and some of the powers we have seen have been very broadly drafted
to amend any piece of primary legislation or even to amend UK
legislation and that circumvents the Queen-in-Council's power
to give Royal Assent. It means that basically there is a power
to do primary legislation by secondary legislation and it circumvents
the scrutiny power. That is a constitutional point and we would
see that separately from general drafting where we would just
try to be helpful and make sure the legislation did what it was
intended to do.
Q96 Mr Hogg: I suspect that your
relations with the Dependencies are conducted at a fairly low
level within your Department. If I were to pry into the hierarchy
I would find that the people who were the desk officers were fairly
junior in the hierarchy. Secondly—this is a quite different
question—to what extent do you regard yourselves as the
trustees of the civil, political and legal rights of those who
live in the Dependencies so that you would be able, willing and
ready to intervene if you felt that their domestic legislators
were trampling on those rights?
Lord Bach: I think there are discussions
between the Crown Dependencies and the Ministry of Justice on
many levels on a regular basis, ministerial perhaps most infrequent
but still quite regular; at Mr Bourke's level I think the discussions
are pretty regular.
Q97 Mr Hogg: I am afraid I do not
know the level of Mr Bourke.
Mr Bourke: I am Deputy Director
so that makes me a senior civil servant.
Lord Bach: Of course many every
day conversations will take place at a lower level than Mr Bourke;
you are obviously right about that. We do absolutely respect—and
I hope the Committee understands this—that the Crown Dependencies
are free parliamentary democracies who govern themselves, but
we do have some kind of constitutional responsibility, one in
terms of good governance and secondly in terms of international
obligations. That is the way we prefer to see it and, I have to
say, speaking personally, I do not see myself as a trustee for
the protection of the rights of the people of the free Crown Dependencies;
I think their rights are very well protected by their democratic
system.
Q98 Chairman: The Crown Officers—the
attorneys and solicitors general of the Dependencies—presumably
do have a direct responsibility to the Crown in that respect,
do they not?
Lord Bach: That is right.
Ms Eden: It is also worth noting
that all of the Crown Dependencies have their own human rights
legislation and that protects their human rights on the domestic
level and they can always go to the courts in their own jurisdiction
if they feel their rights are being infringed.
Q99 Mrs Riordan: The Crown Dependencies
express concern about the serious delays sometimes encountered
when Island legislation is processed by the UK government. Would
the process be streamlined if ministers gave a clear direction
to the Ministry of Justice and other UK departmental officials
of the limited grounds for review of the Island legislation? Is
it strictly necessary for Island legislation to be scrutinised
by up to three separate sets of lawyers?
Lord Bach: I will give a general
answer and then ask my colleagues to comment. I think officials
know that ministers would want this legislation put through as
fast as is possible but in accordance with what is accepted on
all sides as our duty here. Of course there have been cases where
there have been delays and I should imagine a one day delay is
too much sometimes if you are in government and you want something
to take effect. It normally takes some 14 to 16 weeks to complete
the consultation process before a piece of legislation can be
submitted for Royal Assent. However, in the nature of things,
delays occur, queries arise on the legislation which have to be
taken up with the Island concerned and sometimes there is a large
amount of legislation arriving at one moment. There is no question
of officials delaying legislation unnecessarily. We want to get
that legislation through as fast as possible but in accordance
with what our duty is.
Ms Eden: Can I just clarify, the
three lawyers are the Crown Dependency lawyers, Ministry of Justice
lawyers and departmental lawyers. Is that right?
| 
