Memorandum submitted by the Seneschal
of Sark
I would start by saying that it is my general
experience and perception that the lines of communication with
the Ministry of Justice (MoJ) work well on a bilateral Sark to
MoJ matter. I can certainly pick up the phone and talk or email
a member of the Crown Dependency unit, my main points of contact
being Rose Ashley/Mark Hughes or Janet Tweedale.
Having said that I am left with some concerns
and I would take those concerns in turn:
1. I consider that there is a problem when
the interests of Sark are not the same as the UK Governments and
as an example I would use the Dual Role of the Seneschal which
combines judicial functions as well as non judicial functions
(as do the Bailiff's of Guernsey and Jersey). It became very apparent
towards the end of the journey to Royal Assent for the 2008 Sark
Reform Law that the new Lord Chancellor and Minister for Justice,
Jack Straw, objected to the Dual Role even though his legal advisors
advised him that it was ECHR compliant and on that basis he recommended
to Her Majesty in Council that the law should be ratified. However,
after the Appeal Court overturned the Judicial Review judgement,
which found for the Dual Role, the Lord Chancellor was minded
not to cross appeal to the House of Lords on this issue when the
applicants Sir David Barclay and others did so, on the grounds
which the Barclays had lost at the Appeal Court. I submit that
it was in Sark's interest for this cross appeal to be instituted
but despite representations to the UK, the UK did not put Sark's
interest first. The Dual Role of the Seneschal should have been
tested in the highest Court of the land and I believe that Jack
Straw used his personal political beliefs to deny Sark's legitimate
interest.
2. In the recent past there has been I believe
undue political leverage (some may call it "raw power")
used on the Islands of the Bailiwick either as a group or individually
in regard to the holding up of legislation and other matters and
I will give some examples:
(a) Sark legislation was held up by the MoJ due
to their dispute with Guernsey over granting themselves extensive
Ordinance making powers in Projets de Loi submitted by
Guernsey (known as Henry VIII's clauses). The two Sark laws held
up were the Projet de Loi entitled "The Sark Hall
Trust (Dissolution) Law, 2007" and "The Development
Control (Sark) (Amendment) Law, 2008" with the first law
being approved by Chief Pleas on 5 July 2007 and the second on
17 January 2008, both were held up and not granted Royal Assent
until 18th March 2009. These laws had no international dimension
and were very parochial but were subjected to delay until the
dispute with Guernsey was resolved.
(b) Guernsey was also told that they should bring
pressure to bear on Sark over the apparent lack of progress on
the replacement Reform Law. Actually I believe we have been quite
quick as the UK is still struggling to reform the House of Lords
after more than 100 years. However, Guernsey has no right or power
to interfere with Sark's legislature, processes or constitution
but the issue of hold up for Guernsey was the signing of a framework
document between the UK and Guernsey (excluding Alderney and Sark)
as had already happened with an identical document between the
UK and Jersey and the Isle of Man; I believe I am right in saying
that the document was not signed until Sark's Chief Pleas had
approved its final version of the 2008 Reform Law. We took exception
to the attempt to get Guernsey to interfere in our affairs and
felt it most unfair to Guernsey and showed a singular lack of
respect and lack of understanding by the MoJ of the constitutional
relationships between the Islands individually as autonomous Crown
Dependencies.
3. Having talked about holdups I must also
commend the MoJ for several occasions when really important Sark
legislation has been fast-tracked to Royal Assent, there was "The
Reform (Sark) Law, 2008" but then the UK also had a vested
interest, an Amendment to that Law which needed to be in place
ahead of the General Election in December 2008 and "The Real
Property (Transfer Tax, Charging and Related Provisions) (Sark)
Law, 2007" which was of real financial interest to Sark but
not of any interest to the UK. I am waiting to see how expeditiously
that "The Reform (Sark) (Amendment) Law, 2010" is acted
upon from approval at Chief Pleas on 20 January, as this is important
to Sark but of no consequence to the UK as it does not affect
its international obligations, at that same Meeting the Projet
de Loi entitled "The Charities and Non Profit Organisations
(Registration) (Sark) Law, 2010" was also approved; both
have been sent by me with a Humble Petition to Her Majesty for
Her Royal Assent, the Charities Law is an issue around terrorism
funding but is less important to Sark and I will be interested
in the progress of Royal Assent for these two pieces of legislation
(Guernsey is really interested in the Charities Law due to the
IMF visit in April).
4. I watched your Committee's discussions
with Patrick Bourke and others from the MoJ and noted that a question
was put to them on the issue of who owned the seabed around the
Bailiwick islands, which they could not answer; may I ask if you
have had a written answer from them in the meantime? If not inform
the JSC that the seabed around Sark belongs to the Crown, as it
is for Guernsey but that Alderney, through a quirk when setting
up a Government there after WW2, owns its seabed. It is time maybe
that Guernsey & Sark also owned theirs especially in the light
of tidal energy investigations.
5. My final point would be the status of
the Privy Council in relation to the Crown Dependencies. There
was much concern expressed locally when the Privy Council was
taken under the wing of the MoJ for Secretariat support and other
aspects transferred to the Cabinet Office in a recent (March 2007)
UK governmental reorganisation and it was perceived in the Bailiwick
as a loss of independence by the Privy Council and consequently
may be of significant effect on the conduit between the Crown
Dependencies and Her Majesty in Council in the future, despite
assurances that "The Privy Council and its functions will
remain unchanged", time will tell, so far so good.
10 February 2010
AFTER NOTE
One area that was not covered in any detail
during the formal session of question and answer between the JSC
and the Seigneur, Seneschal and members of the General Purposes
and Advisory Committee (GP&A) of Chief Pleas was that of the
relationship between Guernsey and Sark. Whilst Sark has its own
legislature (the Chief Pleas) it is limited in that it cannot
make criminal legislation as that is an area reserved for the
States of Guernsey and it is they who make criminal legislation
for operation throughout the Bailiwick (Guernsey, Alderney &
Sark). In all other aspects Sark is master of its own destiny
and makes primary (Projet de Loi (or Bill)) and secondary legislation
(Ordinance) for the control of all other aspects of life in its
jurisdiction. There is on occasions tension between Guernsey and
Sark when the interests of the two islands do not coincide and
Sark will not sign up to Bailiwick Laws which are developed for
civil matters and which may be of importance for Guernsey but
of little or no interest to Sark.
One current source of tension is the striving
for international recognition by Guernsey and its dealings with
the UK. Guernsey in striving to develop an international identity
and have the UK cede further powers to them, see my reference
above to Henry VIII clauses, has at the same time been trying
to limit the say that Sark (and Alderney) has over the approval
of Bailiwick secondary legislation being made by the States of
Guernsey. In the past where a Bailiwick Project de Loi needed
to be amended it was usual for an amending Projet de Loi to be
developed and that amendment would need to be approved by all
three legislatures prior to be sent for Royal Assent. What is
happening more frequently now is that Bailiwick secondary legislation
is approved by the States who have given themselves powers to
do so under the primary law and the applicable Ordinance is not
being approved by Alderney and Sark but that primary legislation
contains a clause whereby if Alderney and Sark have not disapplied
it within a certain timeframe it automatically remains in force
for all three island, the Ordinance having been made and brought
into effect in Guernsey usually effective from the day of approval.
However, it is a live issue for the GP&A Committee acting
on behalf of Chief Pleas who remain unhappy about having to disapply
rather than approve a Bailiwick Ordinance.
12 February 2010
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