Memorandum submitted by Tomaž Slivnik
SUMMARY
1. The way the United Kingdom represents
Sark internationally, and the role it assumes in the approval
of Sark legislation, is not compatible with 21st century democratic
principles and principles of self determination, nor is it compatible
with Article 3 of the First Protocol of the European Convention
on Human Rights, nor with Article 25 of the International
Covenant on Civil and Political Rights.
2. It is not appropriate in this day and
age for unelected by, and unaccountable to, the people of Sark,
United Kingdom persons to remain as involved in the Sark legislative
process as they are.
3. International treaties are becoming increasingly
detailed and leave little scope for variation in the way they
are implemented in domestic legislation. They increasingly provide
a back door for the United Kingdom to legislate undemocratically
for the Crown Dependencies.
INTRODUCING THE
AUTHOR
1. I was born in Yugoslavia (in a town which
is now in Slovenia) in 1969. I studied at Trinity College, Cambridge,
where I obtained a BA (and later MA), Certificate of Advanced
Study in Mathematics and PhD in mathematics. I was either employed
or an academic visitor at Louisiana State University in Baton
Rouge, USA, Griffith University, Brisbane, Australia, National
University of Singapore, University of Reading, Reading, UK and
University of Ljubljana, Ljubljana, Slovenia. All the while I
was commercially active, and subsequently became a full time high
technology entrepreneur, investor and business angel. I have established
a number of successful high technology enterprises, and helped
fund a number of other people's startup companies, including recently
a company in which the National Endowment for Science, Technology
and the Arts has also invested in the same funding round.
2. I have lived in a number of countries
but settled on the Island of Sark in 2006.
3. I have taken an active interest in Sark's
constitutional reform and was one of the plaintiffs in the case
of Barclay (and ors) v. The Secretary of State for Justice (and
ors) in the matter of the Reform (Sark) Law 2008, and am now an
appellant in the House of Lords in an appeal from that case, the
outcome of which is not yet known.
RECOMMENDATIONS
1. That the United Kingdom Government and
the United Kingdom Parliament relinquish their claims to be able
to legislate for Sark without Sark's consent, and thus acknowledge
the right of the people of Sark to have a democratically accountable
legislature as is normal in the 21st century, and as is necessary
if the United Kingdom is to comply with its ECHR and ICCPR obligations.
2. That Sark's legislative process be reformed
so as to be transparent and fully democratically accountable to
the people of Sark, specifically, to reform or abolish the undemocratic
legislative roles and powers of Her Majesty's Procureur, unelected
Ministry of Justice officials, and the Minister of Justice in
the legislative process of Sark, as is necessary if the United
Kingdom is to comply with its ECHR and ICCPR obligations.
3. That the Sark legislative process either
be changed so that the relationship between Her Majesty and Chief
Pleas is the same as that between Her Majesty and the Parliament
of the United Kingdom (namely, that Her Majesty grants Royal Assent
to Sark legislation upon recommendation of the Chief Pleas rather
than upon the recommendation of Her Majesty's Privy Council),
or, alternatively, that Sark have its own Privy Councillors owing
allegiance and duty of care to no Government other than the Government
of Sark (and who in particular are independent from the Government
of the United Kingdom), who shall constitute the majority of Privy
Councillors advising Her Majesty on the legislation of Sark.
4. That no international treaties be entered
into by the United Kingdom which create obligations for the Island
of Sark without the consent of Sark's elected government or the
people of Sark.
5. That when negotiating international treaties
with the Crown Dependencies, the United Kingdom acknowledges Sark
and Alderney as jurisdictions on par with Guernsey, Jersey and
the Isle of Man that they are, and seeks their consent, and not
merely assume that the consent of Guernsey also applies to them.
EXECUTIVE SUMMARY
The way the United Kingdom represents Sark
internationally, and the role it assumes in the approval of Sark
legislation, is not compatible with 21st century democratic principles
and principles of self determination, nor is it compatible with
Article 3 of the First Protocol of the European Convention
on Human Rights, nor with Article 25 of the International
Covenant on Civil and Political Rights.
It is not appropriate in this day and age
for unelected by, and unaccountable to, the people of Sark, United
Kingdom persons to remain as involved in the Sark legislative
process as they are.
International treaties are becoming increasingly
detailed and leave little scope for variation in the way they
are implemented in domestic legislation. They increasingly provide
a back door to legislate undemocratically for the Crown Dependencies.
INTRODUCTION
4. I regret that I was not made aware of
this call for evidence until 8pm today, 2 October 2009. I
therefore had less than four hours to prepare this submission.
It would appear that, regrettably, this call has not been widely
publicized on the Island of Sark and that a number of others,
including current Chief Pleas members and former Constitutional
Committee members with a great interest in this topic were likewise
not aware of this call. I apologize therefore that the quality
of this document is not what it ought to be and what I would wish
it to be.
5. The recent constitutional reform process
on Sark has brought to light a certain friction between Sark and
the United Kingdom authorities (particularly the Ministry of Justice)
and anomalies in the constitutional relationship between Sark
and the United Kingdom.
6. Before England became a constitutional
monarchy, both the England and Sark were effectively absolute
monarchies. Following the change, England became increasingly
democratic. But the change to the people of Sark looked instead
more like a change of their absolute monarch, with the Minister
of Justice (as an appointee of the Parliament) today possessing
some remarkable powers over Sark. This is improper and requires
reform.
7. The way the United Kingdom represents
Sark internationally, and approves Sark legislation, is not compatible
with 21st century democratic principles and principles of self
determination.
LEGISLATION
8. Sark legislation, once approved by Chief
Pleas, is sent to Her Majesty's Procureur in Guernsey. He writes
a report and forwards both the law and his report to the Ministry
of Justice. Officials there write their own report and present
it all to the Minister of Justice. Sark is in no way involved
in this process nor is it informed of the content of any of the
reports or recommendations. The Minister of Justice then either
rejects the law or passes it on to the Privy Council Committee
for the Affairs of Jersey and Guernsey for consideration. If the
latter approves it, it is presented to the full Privy Council
and receives Royal Assent.
9. Although in theory, considerations involved
in such advice are intended to be limited to matters of international
obligations of the United Kingdom and the good governance of Sark,
in practice, decisions made seem often difficult rationally to
reconcile with such objectives and appear more easily to be explained
by a political agenda. If decisions made in this approval chain
go against Sark, few effective remedies are available to the people
of Sark. Likewise, pressure is brought to bear on Sark from time
to time to legislate a certain way and again, effective remedies
against improper pressure are scarce.
10. It is not appropriate in this day and
age for unelected and unaccountable (to the people of Sark) United
Kingdom persons to remain involved in the Sark legislative process
in this way. It is not compatible with modern democratic principles,
nor is it compatible with the United Kingdom's international obligations,
in particular with Article 3 of the First Protocol of the
European Convention of Human Rights and with Article 25 of
the International Covenant on Civil and Political Rights.
11. The United Kingdom Parliament (and possibly
the United Kingdom Government) today claim the right to be able
to legislate for Sark without Sark's consent, although Sark has
always formed a part of Her Majesty's dominions separate from
the United Kingdom and has always only been in personal union
with the United Kingdom. Whether or not such claims are correct
within the British constitution, it is not appropriate in this
day and age for unelected and unaccoubtable (to the people of
Sark) United Kingdom persons to retain the right, or to claim
to retain the right, to be able to legislate for the Island of
Sark without Sark's consent. Nor are such powers compatible with
the United Kingdom's international obligations, in particular
with Article 3 of the First Protocol of the European Convention
of Human Rights and Article 25 of the International Covenant
on Civil and Political Rights.
PRIVY COUNCIL
12. The Privy Council advises Her Majesty
on whether or not to grant Royal Assent to Sark legislation. In
doing so, the Privy Council is principally concerned with two
issues: (1) the interests of the good governance of Sark, and
(2) in the compliance of such legislation with the international
obligations of the United Kingdom.
13. It is arguably correct for members of
the Privy Council responsible for advice belonging to category
(2), which is rendered in right of the United Kingdom, to be members
of the United Kingdom Government. However, it seems more appropriate
for members of the Privy Council rendering advice belonging to
category (1), which is rendered in right of Sark, to be persons
with a duty of care only to Sark and the government of Sark and
not to any other government (including the Government of the United
Kingdom) which might create for them a conflict of interest.
14. I submit therefore that the Privy Councillors
(or the majority of them) serving on the Privy Council Committee
responsible for considering whether or not to recommend Sark legislation
to Her Majesty for Royal Assent, ought properly to be persons
owing a duty of care only to the government of Sark and be independent
of the Government of the United Kingdom, or alternatively that
legislation approved by Chief Pleas ought properly to be sent
directly to Her Majesty for Royal Assent in the same way that
legislation approved by the Houses of Parliament in the United
Kingdom is. Otherwise, it is difficult to see how this process
can be compatible with the United Kingdom's obligations under
Article 3 of the First Protocol of the ECHR or Article 25 of
the International Covenant on Civil and Political Rights.
INTERNATIONAL TREATIES
15. When negotiating international treaties
intended to apply to Crown Dependencies, the United Kingdom is
meant to seek their consent, or at least consult with them (it
is not entirely clear which of the two it is intended to be, although
I submit that properly it should clearly be the former), although
both of these appear to be qualified by political and diplomatic
expediency considerations. A number of international treaties
which create obligations for Crown Dependencies have been entered
into without them ever having been consulted, supposedly due to
an omission (see the Kilbrandon Report for details). Sark appears
to get a particularly raw deal, it would seem. It would appear
that the United Kingdom considers the consent of, or the consultation
with, Guernsey, also to dispense their duties to Sark. Whether
Sark then indeed gets asked or consulted seems questionable. The
European Convention on Human Rights, for example, appears to have
been extended to Sark without any reference to it.
16. It is not right, particularly in the
modern day and age when international treaties are increasingly
more detailed and leave little room for manoeuvre in the way they
can be implemented in domestic legislation, for international
treaties to be entered into in this way. In effect, this creates
undemocratic and non-ECHR compatible powers for the United Kingdom
Government to legislate for Sark by the back door.
GENERAL
17. It transpired during Sark's constitutional
reform process that the United Kingdom Ministry of Justice does
not understand Sark, how it works, how it does not work, and how
it cannot work. Ministry of Justice officials did not appear very
interested in learning how Sark worked in practice. Visits to
the Island were infrequent and brief and appeared to involve more
telling of what must be done than listening. Yet, Ministry of
Justice officials felt competent to dictate to the local people,
who do have local knowledge and knowledge of local history, how
they should be governed.
18. It seems clear that reform is necessary.
The Island needs to be governed by the local people with local
knowledge who have to, or choose to, live on the Island.
EUROPEAN UNION
19. The above concerns become particularly
acute as the United Kingdom continues to surrender more and more
of its sovereignty to the European Union. If the United Kingdom
continues to retain, or claim, its non-democratic powers over
Sark and if the United Kingdom cannot guarantee its own sovereignty,
the European Union could increasingly acquire ability to exercise
such powers over Sark, or even to alter unilaterally the constitutional
relationship between Sark and the United Kingdom, or Sark and
the European Union.
20. This is unacceptable to the people of
Sark and is unacceptable in the modern 21st century democratic
world.
21. Sark is not a part of the European Union,
and there is no appetite on Sark to ever be a part of the European
Union or to be controlled by the European Union. Sark does not
influence the composition of the European Union legislature, nor
will the people of Sark ever be able to do so, even were appropriate
electoral mechanisms to be provided, due to the very small size
of its population.
KILBRANDON
22. A number of issues raised in these submissions
were raised to the Kilbrandon Commission and discussed in the
Kilbrandon Report, however that report did not look at them at
all in the light of the European Convention on Human Rights, which
has important implications.
2 October 2009
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