Memorandum submitted by the Deputy of
St Martin, States of Jersey, States Asembly
I am a Member of the States of Jersey who earlier
this year formed a group of lay people, English lawyers and Members
of the States of Jersey who are interested in Human Rights as
they relate to Jersey.
Our formation as a group is the direct result of
the lack of any proper official initiative in this Island to promote
general public knowledge and awareness of human rights and their
application in everyday life. It is also directly related to the
apparent lack of interest in human rights by Jersey's own legal
profession and it is significant that no members of the Society
of Jersey Lawyers have joined our group.
I would stress to the Committee that being a
small unique jurisdiction would, even in the most favourable circumstances,
present problems in the area of human rights compliance. But Jersey
is not in any way similar to the Isle of Wight or any other little
place in the UK and needs to be considered in the context of obscure
local laws and legal traditions, a monopoly legal profession which
exhibits very little interest in human rights matters and where
discriminatory housing and employment laws and policies are in
force and anti-discriminatory legislation virtually non-existent.
And, furthermore this is a small community of just 90,000 people
of many nationalities, where the Jersey government is largely
fixated upon the promotion of an international finance centre
industry and devotes very little priority, resources or funding
to the
aims and objectives of universal human rights.
Against human rights standards such a background,
I believe the UK Government needs to take a much more positive
and pro-active interest in the promotion and application of human
standards in Jersey and I also suggest that the continuing failure
so to do causes the UK Government to be in violation of its own
international human rights obligations.
1. My submission here is concerned with
such matters as the extraordinary failure of the Jersey government
to promote ratification of the most basic of international instruments
like the UN Convention for the Elimination of Discrimination against
Women or the UN Convention on the Rights of the Child. And I couple
that concern with the failure of the UK Government to ensure that
such international standards might be adhered to here, just as
they are in the UK, less than 100 miles away.
2. I consider that the UK governmental failure
is probably even greater than that of this small Island's administration
because the London government is already geared up to deal with
such matters and already undertakes all the necessary research
and consultation with bodies like the UN that might be onerous
to a small jurisdiction like Jersey—even if it were an enthusiastic
one.
3. I note too that the UK government does
actively promote human rights adherence in other small British
territories all over the world and gives assistance in many ways,
both financially and practically, to their governments and inhabitants,
but no such assistance is known to be offered here.
4. Beyond the basic issue of ratification
of international instruments we are concerned also that locally
enacted legislation such as anti-discrimination laws have still
not been achieved in Jersey. I note and deplore, for example,
that funding, even for the most rudimentary proposals to curtail
discrimination by reason of race or gender is yet likely to be
further reduced and implementation delayed.
5. I do not consider this to be a purely
domestic matter for the Jersey government to determine but is
a matter that ultimately demands the intervention of the UK government,
in accordance with obligations to British people the world over,
besides any arising under the UK's international commitments towards
all peoples within its territories.
6. I am also concerned that the Jersey government
fails to keep the population adequately informed about human rights
matters and that there are no dedicated staff employed to promote
knowledge through education, publication or discussion and that
even a data base or list of international obligations is not available
for public consultation.
7. Ignorance of human rights matters in
Jersey it seems is actually encouraged contrary to obligations
entered into by the Jersey government or the UK as High Contracting
Party for those international agreements that have already been
ratified.
8. I note too that there is secrecy and
mystery in the process by which reports arising under various
international obligations are prepared and submitted to bodies
such as the UN and of the total lack of NGO participation in the
process.
9. Again, I consider that the UK government
is largely blameworthy for these failures as the High Contracting
Party and that there is a need for positive intervention by the
UK to encourage the formation of NGOs in Jersey, for critical
observations to be made on any published reports and assistance
offered to enable individuals to attend hearings or make submissions,
when these are considered by the UN or other bodies.
10. Since access to reliable legal information
and advice lies at the very base of human rights compliance, we,
as a group, are very frustrated by the management of Jersey's
legal profession which seems to be so diverted into and obsessed
with finance industry priorities.
11. I would suggest that the interest of
some lawyers in human rights matters in most jurisdictions would
be expected and normal. But I would also suggest that the obsession
of Jersey lawyers with finance and their neglect of human rights
and social law priorities raise a particular and unusual problem
that is beyond the abilities of this little community to deal
with and that this matter alone warrants the active intervention
of the UK government.
12. I note that Jersey's 250 or so
lawyers enjoy a total monopoly in the provision of legal services
and giving advice on Jersey law and audience in the local courts
and charge very high "city" fees.
13. Yet, their obscure legal aid scheme
is organised on a semi-charitable basis, with lawyers of less
than 15 years experience being required to serve on a next-in-line
basis, regardless of competence or speciality, and with clients
having virtually no say on who might represent them.
14. This needs to be considered against
the background of a unique jurisdiction where laws are often written
in French, published commentaries are mostly ancient, rare collectors'
items, modem text books are virtually unknown and there are absolutely
no books explaining about human rights and their application in
Jersey. Even the Jersey Greffe—now called the Government
Information Centre—offers virtually no explanatory leaflets
on human rights matters and the Complaints Board (the Jersey equivalent
of an Ombudsman for Administrative Decisions) has recently declared
that it is not empowered to consider human rights based cases.
15. In September 2008, I proposed the creation
of an official Jersey Human Rights Committee (P7S/2008 attached)
but it was rejected by the States Assembly. I had hoped that the
Committee would be enabled to properly scrutinize all proposed
legislation for compliance with Jersey's human rights obligations
as well as researching and publishing human rights information
for general public use.
16. It is noteworthy that Equality and Human
Rights Commissions have been established in all the countries
of the British Isles (England, Wales, Scotland and Ireland) in
addition to separate Commissioners for Children's Rights and for
Human Rights in some of these countries.
17. It is significant that no such bodies
have been established in Jersey, Guernsey or the Isle of Man and
I take this to confirm that without UK Government intervention,
this is how matters will remain.
Deputy FJ (Bob) Hill, BEM
28 September 2009
Annex
PROPOSITION
The States are asked to decide whether they
are of opinion:
(i)the necessary amendments to the Standing Orders
of the States to give effect to the proposal, and
(ii)funding proposals in the Annual Business
Plan to cover the cost of operation of the Committee;
(c) to agree that Article 16 of the Human
Rights (Jersey) Law 2000 should be amended to require Ministers
to state what Articles of the European Convention on Human Rights,
if any, have been considered in relation to the legislation being
brought forward and the grounds on which the Minister considers
that the proposed legislation is, or is not, compatible with the
Convention rights;
(d) to request the Chief Minister to bring forward
the necessary amendment to Article 16 to give effect to the
proposal.
REPORT
The United Kingdom's ratification of the European
Convention on Human Rights in 1951 included Jersey. Island
residents who felt their rights had been violated were able to
take their grievance to the European Court of Human Rights in
Strasbourg.
The Human Rights (Jersey) Law 2000 was adopted
by the States on 8 February 2000. However it did not take
effect until 10 December 2006. The Law should act as a lever
to improve public services and although it created no new Rights
it enabled residents to have their grievances addressed through
our Courts.
Another consequence of the Jersey Human Rights
Law is that Article 16 now places a requirement on Ministers
when lodging au Greffe a Projet de Loi. Before the second reading
of the projet they must make a statement to the effect that in
his/her view the provisions of the projet are compatible with
the Convention rights (a statement of compatibility); or make
a statement to the effect that although he/she is unable to make
a statement of compatibility, he/she nevertheless wishes the States
to proceed with the projet.
The statement must be in writing and be published
in such manner as the Minister making it considers appropriate.
The statement is usually included in the Proposition.
Two interesting points arising from the provisions
of Article 16 is that there is no provision for the Minister
to explain what Convention Right is affected and why the proposed
Law is Convention Compliant.
Another important point is that at present there
is no provision for any States body to scrutinise the Minister's
statement for possible violations of the Human Rights Law.
In the United Kingdom on 14 December 1998 the
then Leader of the House of Commons, Margaret Beckett, announced
the establishment of a Joint Committee on Human Rights to conduct
enquiries into "general human rights issues" in the
UK (only), scrutinise Remedial Orders, examine draft legislation
where there is a doubt about its compatibility with the European
Court of Human Rights and examine whether there is a need for
a human rights commission to monitor the operation of the Human
Rights Act.
Before the establishment of the Joint Committee
considerable thought was given as to what would be its purpose
and how it would function. There were a number of proposals from
esteemed academics and organisations for a parliamentary committee
or parliamentary scrutiny of legislation for human rights compliance.
There were a number of competing views on the
purpose of a Human Rights Select Committee. However a common theme
of the various independent proposals for a committee was the need
to assist Parliament in providing independent scrutiny of executive
policies and legislation which impact on human rights. Recognising
the dominant role of the "executive in parliament" under
the constitutional system it was envisaged that a human rights
select committee, in particular a joint committee of both Houses
would strengthen the independence of the legislature in performing
its allotted functions under the Human Rights Law.
Since 1998 events have moved onward and
at present there is Joint Committee on Human Rights which is appointed
by the House of Lords and the House of Commons. It considers matters
relating to human rights in the United Kingdom (but excluding
consideration of individual cases); proposals for remedial orders,
draft remedial orders and remedial orders. The Joint Committee
has considerable powers akin to select committees or our scrutiny
panels.
The Joint Committee scrutinises Government activity
across the board and its work can broadly be divided into three
distinct categories:
— Legislative scrutiny: the scrutiny
of Government Bills, in particular, as well as other bills, draft
bills, statutory instruments, consultation documents and other
legislative proposals;
— Thematic inquiries: inquiries
into issues relating to human rights in the UK, similar to the
inquiries undertaken by departmental select committees except
in that it subsequently considers issues which cut across departmental
boundaries;
— Scrutiny of Government: responses
to adverse judgements by the European Court of Human Rights and
declarations of incompatibility by the UK courts: it monitors,
and periodically report on, the action arising from all relevant
court cases, including those which lead to remedial orders, as
mentioned above.
The strands of work are closely inter-related.
For example, scrutiny of the Government's counter-terrorism proposals
had involved both thematic investigation and scrutiny of specific
legislative provisions.
Understandably there are a number of major international
matters which require the UK's attention but hopefully would not
be relevant to Jersey; however it is evident that Human Right
matters are an integral part of scrutiny.
It is also evident that scrutiny carried out
by the UK Select Committees and our Scrutiny Panels is similar,
with the exception of scrutiny of Human Rights issues, which is
under the remit of the Joint Committee on Human Rights. However
Jersey has no official body with oversight for Human Rights matters
from either the Executive or Scrutiny.
At present Jersey has five scrutiny panels with
responsibility for scrutinising matters within their remit. There
is also the Legislation Advisory Panel and the Law Revision Board;
however, like the five Scrutiny Panels, neither has any direct
responsibility for Human Rights issues.
It is apparent that when the Jersey Human Rights
Law was approved in 2000 and the introduction of Ministerial
Government and Scrutiny Panels in 2005 very little consideration
was given to the oversight or scrutiny human rights matters.
I have had an interest in the Human Rights Law
for some considerable time and have been concerned at how little
attention has been given to a number of human rights issues. It
is also apparent that should anyone wish to draw attention to
possible violations, there is no formal States body to address
the matter.
Now that we have our own Human Rights Law I
believe we have an obligation to ensure there is some mechanism
to scrutinise our legislation to ensure it is Convention compliant.
I also believe that should concerns be raised regarding possible
convention violations occurring within our public bodies there
should be a body with sufficient expertise to address them.
Therefore I believe there are two main issues:
(1) How the oversight of Human Rights matters
should be addressed.
(2) Amend Article 16 of the Human Rights
Law so that Ministers elaborate why they are of the view that
the particular Law being lodged is Convention Compliant.
As mentioned above, prior to the introduction
of its Human Rights Law and having agreed to the principle that
there should oversight of the Law, the UK Parliament then considered
a number of options as to how oversight would be carried out.
One option was for it to come within the remit
of each of the Select Committees. However that option was rejected
on the grounds that the most appropriate way forward was to establish
a stand alone Joint Committee.
Prior to lodging this proposition I carried
out considerable research, including visiting Westminster and
discussing the work of the Joint Committee on Human Rights with
its chairman, Andrew Dismore, MP and Commons Clerk, Dr Mark Egan.
I also submitted two papers to the Privileges and Procedures Committee,
the Chairmen's Scrutiny Committee and the Council of Ministers.
I subsequently had meetings with each of the Committees prior
to and after my visit to Westminster. I had hoped to discuss my
proposals with the Council of Ministers, however it was considered
to be more appropriate to meet after I had lodged my Proposition.
The main points arising from my meetings and
research are:
(1) When the States approved the Human Rights
law in 2000 (P.197/1999), it was recognised that there were
bound to be some manpower and financial implications.
(2) None or very little consideration was given
for the oversight of the Human Rights Law.
(3) There is no official Executive or Scrutiny
body with responsibility for the oversight of the Jersey Human
Rights Law.
(4) There is no independent audit of any of the
Ministers' statements of compatibility.
(5) There is no explanation as to why statements
of compatibility are compatible.
(6) Do all International Human Rights Treaties
ratified by the UK apply to Jersey?
(7) Is Jersey party to all the relevant Treaties
and Conventions? For example, why is Jersey not party to the Convention
on the Rights of the Child (protecting fundamental rights of the
child), ratified in 1991.
(8) Although there was a six year period between
approving the Jersey Human Rights Law and the Appointed Day Act,
not all Laws were subjected to a Convention audit.
(9) If allegations were made about Human Rights
violations occurring within any of our public bodies, who would
address them?
In the UK there is a Human Rights Minister within
the Ministry of Justice. One of his important tasks is to promote
Human Rights and ensure there is adequate training for those involved
in the public sector.
There is also the Joint Committee on Human Rights
to hold the Executive to account.
I am not advocating that we should copy the
UK arrangements; however I believe Jersey has an obligation to
ensure that we have a statutory body with oversight of our Human
Rights Law. I also believe that with the impending Discrimination
Law, consideration should be given to establishing a formal body
to address Human Rights and Discrimination Issues.
Jersey is now an International Finance Centre
with an international presence. As such we are party to a number
of international laws and agreements which have implications for
our finance industry and also our social structure. To address
this issue, I believe we should establish some mechanism for oversight
of our Human Rights obligations. Having looked at various options,
I believe there are only two which are worthy of consideration.
OPTION ONE
One option is for Human Rights issues to come
within the remit of the existing five scrutiny panels. Whilst
this may be the least costly and expedient way, I believe it would
be seen that Jersey is paying lip service to our obligations.
The Human Rights Law is a complex piece of legislation which cuts
across a number of departmental boundaries. This could pose difficulties
in identifying which panel would be the most appropriate to deal
with any enquiries or conduct any review.
Another very important point is that a degree
of expertise is required. Given the existing workload, any additional
responsibility for the existing scrutiny panels could become burdensome
and because of the Law's complexity, Human Rights matters could
be put lower down the pecking order.
It should also be noted that the UK did not
choose the above option.
OPTION TWO
During my discussions with Mr Dismore and Dr
Egan it became apparent why the UK decided to establish a joint
committee on human rights, mainly because of the problems identified
in Option One above. The Westminster model involves members from
both Houses and all political parties; it appears to function
well and many of the initial teething problems have been ironed
out.
Clearly if Option Two was approved there would
be financial and manpower implications. However "if a job
is worth doing, it is worth doing well." Also given concerns
raised recently regarding possible Human Rights violations occurring
in some of our establishments, doing nothing is not an option.
Opting for Option One may be seen as an easy option and quick
fix. However, by proposing a standalone Committee I believe we
would be sending out a positive message that we are fully prepared
to accept our human rights obligations irrespective of cost.
In the Bailiff's Liberation address he said
"I do not believe that Jersey is an uncaring society. On
the contrary, there is a strong political will to protect the
poor and vulnerable in the community and to correct any mistakes
of the past". Similar sentiments were expressed by the Chief
Minister in his Liberation address.
As it is apparent there is a "political
will" we should therefore endorse that "political will"
by establishing a formal body with oversight for Human Rights.
There will be manpower requirements, not only
to form the Committee but also for officer support. I believe
we can use the U.K. model as a template but our joint committee
could comprise of States Members and members of the public. Such
an arrangement currently exists with the Public Accounts Committee.
That Committee has six States Members and five members of the
public with an interest in that field.
There are a number of Jersey residents with
interest in Human Rights and this would be an ideal opportunity
for them to be considered. I would not envisage the committee
being as large as the PAC or the UK Joint Committee.
In addition to officer support; if the Committee
is to be independent, it must have its own legal advisor. Given
the number of Laws lodged each year, the Committee will have to
adopt a "sifting" process. Inevitably, whilst some Laws
will be uncontroversial and will not require undue attention,
others will require closer observation and may require legal opinions
and reviews. It is then that cost will be involved, but that is
inevitable and was envisaged when the Law was approved in 2000 but
not addressed.
I do not believe it will be necessary to appoint
a full-time legal advisor, however legal advice can be sought
when required and the cost will fluctuate depending on the work
required.
In 2006 when the Health, Social Security
and Housing Scrutiny Panel was established (P.64/2006), the financial
and manpower implications amounted to £188.348. Staff cost
was around £98,000 for two staff members with a further
running cost of £90,000. Two years on, these costs have increased.
To assist in providing manpower and financial
implications, the Scrutiny Manager has helpfully provided an estimate
of what the cost of the new Committee/Panel could be if it was
to have proper legal support. Three options have been provided
and the cost will depend on the balance between having "in
house" legal advice as opposed to buying it in.
I am grateful for the information which is as
follows—
Costs for standalone scrutiny panel into Human
Rights
— Housing new officers would necessitate
the loss of the 1st floor meeting room which is regularly used.
— Grading for officers would depend on
qualifications needed. Given that the Law Officers' Department
has concerns that qualified staff are being lured away by offers
of significantly larger salaries [C&AG report on States Spending],
it seems unlikely that officers with legal training could be procured
on the equivalent grade of Scrutiny Officer or even significantly
higher.
— Given that the Deputy of St. Martin has
taken soundings from the Joint Select Committee—this is
how that is staffed:
"One Commons Clerk (team leader)—a
fast-stream civil servant;
One Lords Clerk—also at that level—soon
to be replaced by a part-time new-ish fast streamer;
One Legal Adviser—a full-time employee
and qualified barrister—in civil service terms, pretty high-powered;
Two Committee Specialists—both legally
qualified;
About to get a Chief Office Clerk;
The assistance of a media officer as well who
works for several committees".
— In view of the fact that scrutiny in
Jersey would not undertake as wide a remit as the Select Committee,
it could be reasonably expected that staffing would be considerably
lower. However, consideration of appointing legally trained support
staff needs to be given.
| Option 1—£329,772
| |
| Two Grade 10 officers | £99,264
|
| Legal advice bought in @£300 per hour for 30 weeks
| £180,000 |
| General admin support | £45,438
|
| Accommodation | £3,000
|
| Start-up costs equipment | £2,070
|
| £329,772 |
Option 2—£260,142
| |
| Two Grade 12 officers | £119,634
|
| Legal advice bought in to lesser extent than option 1 @£300 per hour for 15 weeks
| £90,000 |
| General admin support | £45,438
|
| Accommodation | £3,000
|
| Start-up costs equipment | £2,070
|
| £260,142 |
Option 3—£286,030
| |
| Two Grade 14 officers with some legal knowledge
| £145,522 |
| Legal advice bought in @ £300 per hour for 15 weeks
| £90,000 |
| General admin support | £45,438
|
| Accommodation | £3,000
|
| Start-up costs equipment | £2,070
|
| £286,030 |
| |
The above figures are provided as a guide. However for comparison
I believe it is helpful to show the likely cost if the proposed
Race Discrimination Law is approved.
In 1999 a Race Relations Working Party was established
with the view to paving the way for the introduction of a Discrimination
Law. In 2002 the States strongly supported the principle
of a Race Discrimination Law (P.32/2002). It was proposed that
the legislation would have wide-ranging implications for society
in Jersey and for the States, both as an employer and as a provider
of services. It would also support (when Regulations are brought
into force) Jersey's commitments to international standards, in
particular the United Nations Convention on the Elimination of
all forms of Racial Discrimination (CERD).
Six years on, the proposed legislation has not been drafted.
However, on 5 February this year, the Minister for Home Affairs
lodged R.10/2008: Draft Discrimination (Jersey) Law 200-: consultation
report—White Paper. The Report sets out the background to
proposals for the introduction of a Discrimination Law in Jersey.
Under Resource Implications it is estimated that the full
year cost of the Discrimination (Jersey) Law, if approved, may
be in the region of £250,000. In subsequent years it is anticipated
that enforcement costs, and therefore annual cost, will increase
as each set of Regulations introducing an additional attribute,
such as sex or disability, is introduced, up to a maximum cost
of £500,000 annually to implement the legislation once
all phases are in place.
Funding to implement the Law will be subject to States approval
in the 2009 Business Plan.
The manpower implications will include the appointment of
a Discrimination Officer and Administrative Assistant. However,
members of the Discrimination Panel will not fall to be classified
as States employees and therefore will not affect headcount.
I welcome the introduction of Law and the funding being sought;
however I submit that funding should be also be found to establish
a body for Oversight of the Human Rights Law.
AMENDING ARTICLE
16 OF THE
HUMAN RIGHTS
(JERSEY) LAW
2000
As mentioned above, Article 16 of the Law places a requirement
on Ministers when lodging au Greffe a Projet de Loi, and before
the second reading of the projet, to make a statement to the effect
that in their view the provisions of the projet are compatible
with the Convention rights (a statement of compatibility); or
make a statement to the effect that although he/she is unable
to make a statement of compatibility, he/she nevertheless wishes
the States to proceed with the projet.
The statement referred to above must be in writing and be
published in such manner as the Minister making it considers appropriate.
However, there is no requirement for the Minister to explain what
Convention Articles are affected by the Law being proposed, and
why in the Minister's view there is no significant risk that Convention
rights may be violated. Also, if Ministers are unable to make
statements of compatibility, who is responsible for scrutinising
the proposed legislation?
I believe the absence of an explanation is unsatisfactory
and a more detailed analysis should be provided. The provision
of more details should enable Members to be better informed and
more aware of the Human Right implications of the legislation
being proposed.
The provision of more detailed analysis should not impose
too great a burden on the Ministers because they are obligated
to make a declaration of compatibility and will be in possession
of the necessary information. Therefore there should not be any
financial or manpower implications.
| 
