Examination of Witnesses (Question Numbers
100-119)
LORD BACH,
MR PATRICK
BOURKE AND
MS FARIDA
EDEN
2 MARCH 2010
Q100 Mrs Riordan: Yes.
Ms Eden: I think the answer is
that it is not always scrutinised by three sets of lawyers. Obviously
it will always be scrutinised by Crown Dependency lawyers. So
far as the Ministry of Justice is concerned, we have obligations
in advising the Committee of the Privy Council which deals with
Crown Dependencies matters. Our ministers need to be sure that
they are giving Royal Assent on proper advice and we would not
want to leave our ministers without advice on that. We feel we
do need to scrutinise the legislation so that our ministers can
discharge those functions properly. As to the third set of lawyers,
I think the answer is that it does not always go to departmental
lawyers. If we do not think it is necessary, it will not. To give
you an example, there has been a lot of aviation legislation recently
which has gone through all three of the Crown Dependencies and
a lot of that is to do with international aviation conventions
and I certainly would not have had any idea looking at that legislation
whether it met the requirements of the various aviation conventions.
That is a very technical area and it was far more appropriate
to go to my legal colleagues in the Department for Transport who
are much better qualified than me to look at that.
Q101 Mrs Riordan: When you had dealt
with the various lawyers in the Department for Transport, did
it come back to you?
Ms Eden: We would always do a
general health check and look at things like secondary legislation
making powers and we would look at general human right points.
In relation to something like aviation we would really rely on
our legal colleagues elsewhere to point out where the main human
rights areas were. We would always read legislation for sense
and for general constitutional good governance and human rights
points. We think that is necessary so that our ministers can discharge
their functions properly in advising the Queen-in-Council as to
whether to give Royal Assent.
Mr Bourke: I think this goes back
to the nine point nine versus point one point. There are also
a large number of instances where we rush legislation through
at break neck speed, particularly because we have been asked to
do so by the Crown Dependencies. That may be to meet an IMF inspection.
A recent example includes some legislation needed to seize the
proceeds of General Abacha's crimes in Nigeria. There are point
one times when there is a delay but there are probably point one
times when we have accelerated the process massively. I think
you have to look at both to form a complete or full picture.
The Committee suspended from 4.49 pm to 5.00
pm for a division in the House
Q102 Chairman: Mr Bourke, I think you
were interrupted by the bell.
Mr Bourke: I think the point was
heard. At least I hope it was heard!
Q103 Mrs James: In the evidence we
have heard to date the Crown Dependencies have expressed some
concern that they are sometimes not consulted or informed in good
time about policy measures, including things that are related
to UK legislation, EU legislation, et cetera and international
treaties. They seem to be most concerned about consultation time;
there is often no time for consultation and a limited opportunity
to take part in the negotiation. How do you think the Ministry
of Justice could improve this?
Lord Bach: We do appreciate the
difficulties which late consultation causes for the Islands. We
are dependent as a Department on colleagues in other UK Government
departments letting us know when they are working on a Bill or
an international agreement which may have implications of any
kind for the Crown Dependencies. It does work well most of the
time but there are occasions where the implications for Crown
Dependencies may be spotted a little late and, therefore, they
are informed at quite a late stage. All I can say is the Department
is doing what we can to reduce the number of times it happens
by, for example, issuing revised guidance to officials in other
government departments. I do not think it is going to be easy
to see how it can be eliminated completely but we accept it as
a proper criticism and we try to do better.
Q104 Mrs James: Something we have
come across, certainly with the LCO process with the Welsh Assembly
and the Welsh Affairs Committee, when we took evidence from Sir
Gus O'Donnell in that Committee one of the things he was looking
at were more specific measures—review, checklists et cetera—do
you think that would help in some ways?
Mr Bourke: As the Minister was
saying a second or two ago, we are talking steps to issue this
revised guidance and, as I indicated to the Committee last time
I appeared, these impose stricter timetable requirements on ourselves
and this is not something we have been asked by CDs to do but
something we have acknowledged needs revisiting. Some of them
will contain a series of checklists to enable other government
department officials to understand what they are going to be looking
out for and what is required from them in the relatively short
time we have available.
Q105 Mrs James: Revisited and reviewed,
not put on a dusty shelf.
Mr Bourke: There are no dusty
shelves, certainly not where the Crown Dependencies are concerned.
Obviously it is a new process and we will have to see how it works
in practice. The same was true when we first started the operation
of the Freedom of Information Act, where some departments catch
onto things more quickly than others, and that was reviewed and
particular attention was placed on those departments who perhaps
needed greater attention in getting up to speed, and I imagine
the same process will occur in this instance.
Ms Eden: It is perhaps worth mentioning
the Cabinet Office's Guide to Legislative Procedures does
now mention the need to consult Crown Dependencies. It is the
same as with the devolution example you gave us about working
in partnership with the partners to raise awareness. That is definitely
what we are trying to do.
Q106 Dr Whitehead: Lord Bach, when
we met on 10 December 2008 you said, "We represent the interests
of the Isle of Man where it is appropriate to do so. We are part
of Her Majesty's Government and of course that is our prime responsibility."
Do you see that in terms of the constitution, as it were, the
UK government's duty to represent the interests of the Crown Dependencies
is exactly that, a duty, and that therefore the UK government
essentially decides what is in the Crown Dependencies' best interests
where there are discussions on the international stage?
Lord Bach: We consult with the
Crown Dependencies first, of course, and get their point of view.
Then, of course, if we are representing them—as we are duty
bound to constitutionally -we put their point of view as best
we can. That is a rather stark theoretical way of putting it.
What we are trying to do of course—I think we may come onto
this—is advance the Crown Dependencies' status in terms
of internationalism, if I can put it like that. We are doing it
in various ways, entrustment is one. We do see it as our duty
to do that and I think it works and has worked for some time pretty
well. However, we are living in a different kind of world now
than was there when, for example, Kilbrandon reported. Much more
global; movement is much more rapid, Crown Dependencies are brought
in much more often than perhaps they were in those days in various
fields. We need to move with the times too.
Q107 Dr Whitehead: In the context
of the Icelandic banking crisis, and we touched on this, the UK
quite clearly favoured a position in its discussions with the
Icelandic Government which may perhaps have been to the detriment
of the Isle of Man's position. Under those circumstances does
what we have set out as the rather stark constitutional position
prevail or are there other routes—you have alluded to some
of them and perhaps we could unfold some of those in a moment—by
which that constitutional position may be softened somewhat?
Mr Bourke: Our duty to represent
their views does not also imply a duty to privilege their views
over that of the UK's. We have come back to this on numerous occasions
when we have been talking about the CDs in this context. There
are certainly ways in which we are looking at increasing the autonomy
of each of the CDs on the international stage precisely because
the world—particularly the global financial world—has
evolved. If they are to emerge as thriving stable economies, which
we all want to see, then they will need to find their place in
that context. The tools that were bequeathed to us from 1204 onwards
are rather ill-suited to today's context and we accept that. As
I said the last time I was here, we are looking at ways of facilitating
a greater degree of autonomy. That principle is not in question;
it is just how we can make it work to serve both our interests,
ie not signing up to something or not allowing the Crown Dependencies
to sign up to something which would see us in the dock in breach
of our international obligations—they are our international
obligations at the end of the day—but give them the measure
of autonomy they need to conduct commercial and other negotiations
with partner countries.
Q108 Dr Whitehead: It might be suggested
that in terms of that area of negotiation a particular official
could be designated to negotiate separately on behalf of the Crown
Dependencies and could then be supported by Island officials or
perhaps those Island officials could form part of the negotiating
team so they could put the Island's case directly but within the
framework of a UK-led negotiation.
Mr Bourke: It is certainly the
case that we have facilitated direct contact between, not least,
the Isle of Man and Guernsey with the Icelandic Government as
you know, because we were in this relatively unusual situation
of having the third of my three categories which was the conflicting
interest. That does already happen. If I have understood this
correctly, you would be suggesting that a UK government official
be employed specifically to champion the interests of one or more
of the Crown Dependencies within every department perhaps.
Q109 Dr Whitehead: Either on an event
by event basis or on a negotiation by negotiation basis. As Lord
Bach has mentioned there is the issue of entrustments where you
have a wider delegation. Are there methods which would perhaps
include a combination of the appointment of officials together
with entrustments that might blur that line between a very stark
constitutional position and the reality that under modern international
circumstances there will be conflicts which will not necessarily
be resolved simply by the UK saying, "We are negotiating
on your behalf and you had better deal with it".
Mr Bourke: If we come to entrust
a Crown Dependency to conclude a particular agreement then the
question of their being involved in negotiation delegation does
not arise alongside their UK officials because we have ceded to
them full autonomy at the conclusion of that agreement for the
specific purpose and with that partner. We have moved away from
that and broadened the range of partners with whom they can do
that business and, as I alluded to last time I was here, we are
now looking at a sort of standing entrustment for certain whole
categories of agreement (for example double taxation agreements,
asset sharing agreements, tax information exchange agreements
which we have already had for some time) and the hope is that
as we get into a course of dealing with the Crown Dependencies
in that way the range of agreements and the range of partners
will expand with it. We cannot get away from the fact that we
are still constitutionally responsible for those obligations.
It would be completely inappropriate for us not to have some control
over the scope and the content of that agreement because we may
be setting ourselves up potentially for a terrible fall. As to
your other question about the official, I see the attraction on
the face of it; what I am unclear about is how you would actually
make it work in practice, particularly when you might have conflicting
views, because there is then a question of how integrated can
you make this official within the negotiating team of the UK,
what access to what information can you facilitate? I think more
likely and perhaps more successfully is what the Europeans do
in the context of negotiations there. In trade policy the European
Commission negotiates on behalf of all 27 Member States but before
each one of the meetings they have at the WTO in Geneva they have
what is called a coordinating meeting where they take the views
of all 27 Member States and build up a good sense of where the
centre of gravity is, having taken on board the various interests
and very divergent interests that the Members States might have.
I think something like that ahead of set piece negotiations of
some magnitude is more likely to produce the right results than
having an official embedded, if I can put it that way.
Q110 Chairman: The WTO raises a separate
problem which is of course that the European Union negotiates
on behalf of its Member States; the Crown Dependencies are not
members of the European Union. You happen to have mentioned another
sore point which is how they represent their interests at WTO
when the European Union cannot act on their behalf.
Mr Bourke: I think the question
of whether or not they are in fact members of the WTO is still
the subject of some legal debate, except perhaps in the case of
the Isle of Man, but I cannot claim to be an expert on their precise
status at this stage.
Chairman: If you could add anything on
the WTO situation that I have just described by way of a note,
that would be helpful.
Q111 Dr Whitehead: How does that
all then tuck in with the concept of burgeoning international
identities as set out in the framework document, particularly
the Guernsey framework document but Jersey and the Isle of Man
have similar documents in place? Those documents talk, specifically
in the Guernsey case, about Guernsey having an international identity
which is different from that of the UK but it does not really
appear to define what is meant by international identity and how
that sits in terms of the constitutional discussion that we have
just entered into. What would you say, Lord Bach, would be the
central idea of a separate international identity within the framework
that we have discussed?
Lord Bach: It is called the International
Identity Frameworks and that and the entrustment process are,
we would argue, the bedrock of the development for the CD governments
to identify ways of helping them meet their ambitions for greater
international profile and presence and ambitions that we support.
The way in which they display their own identity is something
that is going to advance as the years go by and one of the methods
of doing it has clearly been in entrustment. As time passes it
is quite clear that the Crown Dependencies are getting more expertise
and more knowledge in this field where they have been excluded
for a very long time indeed. This is a continuing process; I do
not think there is one moment where you could say, "They
have an international identity whereas ten minutes ago they did
not". It is a gradual process and one that we are happy to
encourage.
Mr Bourke: The objective behind
the identity document was not really to do anything other than
clarify in layman's terms what the nature of the relationship
between the UK and the Dependencies was for an international audience.
To put it bluntly, it was an alternative to putting Kilbrandon
on the table when they went to meet colleagues in finance from
Washington, New York or Frankfurt. It does nothing to alter the
constitutional relationship; it does nothing to give them greater
legal international personality. It is simply a re-statement,
hopefully in clearer terms, of what the nature of the relationship
is in a format that is intelligible to their interlocutors.
Q112 Mr Hogg: I wonder if you could
be a little more candid about all of this. I have had no contact
or dealings with the Dependencies but I have had an awful lot
of dealings over my professional life with district councils and
I ask myself whether these relatively small units of government
can provide the kind of expertise that one would expect when it
comes both to legislation and indeed to defining international
obligations. I suspect the answer is no. I suspect that you are
dealing within the Dependencies with a very, very small group
of people who are giving professional advice to the local administrations
and they are only half competent and that you have to muscle in
quite often to give your own professional views and support. I
would like your comment on that, Lord Bach, candidly.
Lord Bach: Let me comment on that
first as minister and I will be as candid as always I hope. I
think you are wrong, Mr Hogg, if I may say so. I, too, have great
experience of district councils, big and small, over a number
of years, like you. They are small units but the quality of the
people who advise in terms of their governance—this is just
my judgment, having been around for about 18 months in this field
now—is remarkably high.
Q113 Mr Hogg: Let us take an agricultural
department, it is just one I am familiar with, how many people
within, say, Guernsey, are there advising the administration on
those policies which touch on agriculture? If you cannot tell
do it with regards to agriculture, do not worry, give us another
example.
Lord Bach: I cannot give you an
example of how many in any field. In one sense it does not matter
how many, it depends what quality they have.
Q114 Mr Hogg: If you have two or
three it is a terribly small number.
Mr Bourke: Yes, I accept that,
but the point I am making is the quality is pretty good, it seems
to me. I am not saying it is universally good, but I am saying
it is pretty good. These are competent people with a lot of experience,
for example in terms of finance and the financial world, and learning
gradually in terms of international work too. I do not think their
size—they are very small it is true—really counts
against them in this particular field. My own view is that these
are well governed states with a lot of expertise for the leadership
to be able to rely on.
Q115 Mr Hogg: Do they bring people
from outside? Are they relying on their own home grown civil servants
or do they take consultants or professionals in from outside the
Island's immediate offices?
Lord Bach: I do not know. I suspect
the latter.
Ms Eden: Certainly on the legal
side there is a reasonable amount of traffic. A lot of the people
we deal with have previous government legal service. On the criminal
side I know there is consultation with people from the London
Bar so they do bring people in from outside. I think it is perhaps
worth noting that there are a number of issues—things like
financial services, fisheries and aviation—which come up
time and time again in the Crown Dependencies, so they do develop
an expertise in certain areas.
Q116 Chairman: One of the things
which some people say when they make representations to us as
Members of Parliament—no doubt also to peers—is that
it is inherent in small jurisdictions that some issues are difficult
to deal with. One saw this being said in the course of the historic
child abuse issues in Jersey; one sees it over other issues in
other Dependencies. This leads some people in the Dependencies
and some of their friends elsewhere to argue that the good governance
principle is engaged in a small jurisdiction in ways it might
not be in a large one. Do you stand by the view that good governance—or
breakdown of good governance—would be measured by really
very serious indications like a breakdown in civil order or that
it extends into the sort of areas that members get representations
about?
Lord Bach: I think I would put
it that good governance or good government—our obligation—is
fulfilled in a number of ways, including scrutinising the Island
laws for Royal Assent and dealing with Crown appointments. Also,
that we remain available to assist and advise, if necessary, Island
authorities with a wide range of constitutional, social and economic
issues, but all exercised in such a way as to support the domestic
processes in the Islands. The ultimate responsibility would be
if something very serious occurred. A breakdown in civil order
is an example that is sometimes given and that, if I may say so,
is extremely unlikely to occur in any of the three Crown Dependencies.
Good governance is a bit more than just intervening if something
terrible happened; it is also in scrutinising legislation and
the other things I have mentioned.
Q117 Julie Morgan: Lord Bach, I want
to ask you about the Reciprocal Health Agreement and the fact
that it was ended. First of all, did you know about it beforehand?
Lord Bach: These Health Agreements
were with all three of the Crown Dependencies and the new arrangements
have been accepted by all three of them. My officials were aware
prior to the Isle of Man government being officially notified
of the ending of the agreement that it was the Department of Health
policy—they are the lead UK Government department in relation
to this issue—to keep the UK Reciprocal Health Agreements
under review to ensure that they remained appropriate and represented
value for money. To be more specific, we were informed on 4 June
2008 that the future of the Reciprocal Health Agreement was about
to be considered by Department of Health ministers. No decision
had been made then. We were aware of the outcome by 30 June and
that was the day before the Isle of Man representatives were told
of it at a face-to-face meeting with Department of Health officials.
Q118 Julie Morgan: You were told
before they were told basically.
Lord Bach: Yes, that they were
considering it and at least a day before they were told.
Q119 Julie Morgan: The Island administrators
have said that the decision to terminate the Agreements was imposed
on them in a highhanded fashion and there was no opportunity given
for discussion about alternative resolutions or financial packages.
As I say, they found it difficult to have the opportunity for
discussion. I wondered what steps you took to assist the Island
administration in putting their points of view to the Department
of Health.
Lord Bach: I think they put their
own point of view to the Department of Health very satisfactorily.
It had been decided to terminate the Health Agreement with the
Channel Islands and it was made clear during dealings on that
Agreement that there was no scope for changing the decision which
had been taken by ministers. In the case of the Isle of Man both
the UK and the Isle of Man began to focus on making their respective
preparations for the future. Our stance was to encourage constructive
engagement in that process, but the lead department was the Department
of Health. It was their agreement with the Crown Dependencies
and I would not agree with the expression "highhanded".
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