Crown Dependencies: developments since 2010 - Justice Committee Contents

3  Insular legislation and treaty extension

Insular legislation
2010 Recommendation: We do not see the need for multiple layers of intense scrutiny of insular legislation, prior to Royal Assent, for laws which are obviously of domestic application only. In such cases, the judgement of the insular Law Officers should normally be relied upon, with a reduced level of scrutiny by Ministry of Justice lawyers. (Paragraph 65)

For more complex legislation [...] scrutiny should be carried out expeditiously. To this end, the Ministry should endeavour to educate the relevant officials in other departments in relation to their precise responsibilities and, importantly, the constitutional limits on any intervention they may feel inclined to make. (Paragraphs 66)

We urge the Ministry of Justice and the governments of the Crown Dependencies to redouble their efforts to agree a revised set of protocols for the scrutiny of insular legislation. (Paragraph 67)

2010 Government Response: In completing the scrutiny process, the Ministry of Justice does not generally check for congruence with UK policy unless divergence would demonstrate risk of breaches of the ECHR or breaches of EU or international law, and we would not accept that we carry out scrutiny beyond what is constitutionally legitimate. [But] we accept the Committee's view that this can, on occasion, amount to a duplication of effort with both the Islands' Law Officers and UK Officials undertaking a similar analysis. We consider that if the Islands' Law Officers provided a detailed report of their analysis of a Law and how it might touch upon international or constitutional issues then the need for such questioning from the Ministry of Justice would be substantially reduced [...] We will work with the Crown Dependencies Law Officers to put an appropriate procedure in place.

We are confident that the guidance currently being developed between the Crown Dependencies Law Officers and the Ministry of Justice will clarify and improve arrangements for handing Crown Dependency legislation [...] The new guidance should, as the Committee suggests, set out with clarity the means by which the UK's responsibilities for insular legislation may be discharged; the constitutional grounds on which insular legislation may be challenged; the responsibilities of ministers and officials at each stage of the scrutiny process; and appropriate time limits for processing legislation prior to Royal Assent.

23. Primary legislation passed by the Crown Dependencies requires Royal Assent. The MoJ examines each piece of legislation to ensure that there is no conflict with international obligations or with any fundamental constitutional principles, in order to advise the Privy Council whether Her Majesty should make an Assenting Order. Seventy-one Crown Dependency Laws received Royal Assent in 2012.[34] Lord McNally acknowledged that in the past, as highlighted by our predecessors' inquiry, "we had lawyers second­guessing Crown Dependency lawyers. One of the things that has struck me is the very high quality of lawyers and civil servants within the Crown Dependencies. In reality, second­guessing them was paternalistic and unnecessary."[35] This duplication of effort frequently led to long delays in insular legislation coming into effect.

24. A trial arrangement for processing legislation has been in place since September 2012, along the lines suggested in the 2010 Report and in the Government's Response. It involves a more detailed analysis of the legislation being provided to the MoJ by the Crown Dependencies via a revised form of Explanatory Memorandum, which concentrates on areas relating to international obligations, such as the risk of successful challenge under the ECHR.[36] According to the MoJ, it will now only refer a law to another Department, which can slow the process, where absolutely necessary. The Crown Dependencies agreed there is less evidence that this is happening than in the past. We also found no evidence that the present UK Government has used the Royal Assent process as a bargaining lever over other matters, as had happened in earlier years, and Lord McNally said he "would not support such a way of going about business."[37] Finally, a new process of prioritising legislation has been introduced, whereby the Crown Dependencies provide advance notice of legislation so the MoJ can prioritise legal resources accordingly and advise the Crown Dependencies on which meeting of the Privy Council their laws will go to.[38]

25. These reforms have contributed to a substantial reduction in the average time taken for a law to be processed. Cathryn Hannah advised that:

    There is no backlog of Crown Dependency legislation any more. Legislation is dealt with in an average of 20 working days and usually for the next Privy Council sitting, and that is something that the team and lawyers and Ministers are very keen to continue, so we have that kind of process that works. Because there is no backlog, it is a lot easier to deal with legislation as and when it comes in.[39]

All parties appeared satisfied with the new processes and the progress they had achieved.[40]

26. At a meeting we held with Members of the Sark Chief Pleas (known as conseillers), it was suggested that—although only three of their laws were awaiting Royal Assent at the time of our visit—where delays did occur, the UK was not sufficiently transparent about the cause of the delay. When asked about this in evidence, Cathryn Hannah said:

    I hope there are not too many cases where that is not the case. We definitely encourage them [to pick up the phone and talk to officials]. In fact our lawyers [...] are in contact with lawyers in the Crown Dependencies and, if we do have an issue with a law, the first step is to pick up the phone to the law officers in the Crown Dependencies and get them to talk through and explain where they are coming from on the law.[41]

27. The 20 day period referred to in paragraph 25 above does not include the subsequent time taken by the Privy Council to consider the MoJ's recommendation. This has improved; for example the Government of Jersey reported in May 2013 that it was taking around 2-3 months for its laws to gain Royal Assent, whereas previously it could take as long as 12-18 months.[42] However, delays can still occur during periods where the Privy Council meets infrequently. Cathryn Hannah told us:

    What does delay [Royal Assent] and where there is a slight difference is the fact that for a lot of Jersey and Guernsey legislation it has to go through the Privy Council time scales, which are roughly nine a year, and over the summer and the winter period there can be quite a gap between the Privy Councils.[43]

28. Isle of Man legislation receives Royal Assent under a different system: by prerogative order the Island's Lieutenant­Governor can sign off for Royal Assent certain legislation that does not affect the constitutional relationship and the MoJ informs the Lieutenant-Governor directly when the Secretary of State is content that he may exercise this delegated authority. The MoJ has suggested to Jersey and Guernsey that they consider adopting the same system to avoid Privy Council-related delays; it is ultimately a matter for each jurisdiction to decide and both are currently giving it consideration.[44]

29. Other than this further potential change, Cathryn Hannah told us that:

    In terms of our role, we have streamlined it as far as it can go. Our lawyers do need to review the legislation. The Royal Assent memorandums are incredibly useful for them in terms of showing how the legislation is compatible with ECHR requirements and also how it fits in with constitutional relationships, which enables an effective review from our lawyers, but that process still needs to happen.[45]

30. Frequent long delays in recommending legislation made in the Crown Dependencies for Royal Assent were a particular concern highlighted in the 2010 Report. In our view, the Ministry of Justice and the Crown Dependencies have carried out our recommendations by implementing a more appropriate and proportionate system for scrutinising insular legislation, with significant success. It is for Guernsey and Jersey to decide for themselves whether to adopt the system used in the Isle of Man, whereby Royal Assent is largely delegated to the Island's Lieutenant-Governor, but we agree that it could help to avoid the remaining delays that can occur during periods when the Privy Council does not sit.

Pro-active requests for treaty extension

31. While the situation in relation to insular legislation appears to have been satisfactorily resolved, we were alerted to an outstanding issue in relation to processing requests for treaty extension, which was not discussed in the 2010 Report. The Crown Dependencies are not recognised internationally as sovereign states in their own right but as "territories for which the United Kingdom is responsible". As such they cannot sign up to international agreements under their own aegis but can have the UK's ratification of such instruments extended to them. They are reliant on the UK for this.

32. We heard that the Crown Dependencies are proactively requesting treaty extension far more often than they used to, and are experiencing frequent delays in such requests being met. For example, Guernsey's request in October 2011 to extend the Protocol of 2003 to amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage was not actioned until February 2013. The Government of Jersey also cited "significant delays"[46] and during our visit treaty ratification was described as a huge cause of frustration, with one outstanding request dating from 2006.

33. It was suggested to us that this is due, at least in part, to a failure of the Foreign and Commonwealth Office to accept what the MoJ has accepted about the capability of the islands to carry out the necessary legal scrutiny themselves. When we put this to Cathryn Hannah, she considered that:

    It is not the Foreign Office so much as the fact that treaties are owned by different Departments, so a treaty on intellectual property would be IPO [Intellectual Property Office] and BIS [Department for Business, Enterprise and Skills].[47]

Lord McNally also made the point that:

    What the Crown Dependencies do and how they do it, particularly in the international sphere, carries a reputational risk for the United Kingdom as a whole. Therefore, I suspect that in the international dimension there will always be a little bit of time delay as opposed to the purely insular legislation that we do.[48]

34. However, while it may be true that processing treaty requests will take longer than insular legislation, it should be possible to reduce the current delays. Guernsey's Policy Council suggested that, as both parties become more accustomed to the process, a 'presumption of consent' be introduced for the extension of treaties (and the processing of legislation).[49] Jersey Ministers proposed that the matrix of compliance prepared by its law officers in respect of treaties be accorded the same status as the explanatory memorandum prepared to accompany legislation, to prevent duplication of effort which can lead to delays. They gave an example of a treaty relating to intellectual property, in respect of which the UK Intellectual Property Office asked Jersey to pay them to carry out the same legal scrutiny they had already carried out themselves.

35. In response to these suggestions, Cathryn Hannah replied that:

    One of the things we are doing at the moment is working with the Crown Dependencies to try and work out what information they need to provide to Departments to make sure it is consistent in terms of their legislation—it makes them compliant with international treaties so it can be extended. [A member of] my team ran a workshop over the summer with the Crown Dependencies to look at this issue and work out what information Departments need and how the Crown Dependencies can best give their Departments that information. We are trying to take a very collaborative approach with the Crown Dependencies so that we can agree a process that the Departments will be happy with and that gives them that important ability to check that the Crown Dependencies are compliant with an international treaty, but, equally, does not second­guess and does not end up being a forensic redoing of the work that the law officers within the Crown Dependencies have done.[50]

She went on to argue that:

    The UK is ultimately responsible for any treaty that is entered into and then extended to the Crown Dependencies. So we, as the UK Government, need to satisfy ourselves that the Crown Dependency concerned is suitably compliant. We might not be fully satisfying ourselves with a presumption of consent, but we want to ensure that it is a risk-based proportionate response to that compliance check and it is not redoing the work that very competent law officers within the Crown Dependencies have done.[51]

36. We recognise the frustration that exists in the Crown Dependencies about the length of time it can take to extend treaties to them, and support the Ministry of Justice's efforts to establish exactly what is required of them by Government Departments, in order to speed up the process. We understand the Ministry's caution about a "presumption of consent", given the UK's international obligations, but we recommend that the Ministry of Justice explore the potential to streamline the process for granting treaty extension so that it is more risk-based and proportionate, perhaps via the matrix of compliance prepared by Dependency law officers, who are Crown officials, as suggested to us by Jersey.

34   MoJ (CDF 01)  Back

35   Q 6 Back

36   The Justice Secretary can recommend that Assent be withheld if the legislation would put the relevant Island in breach of an international obligation which applies to the Island and for which the UK is responsible, including the ECHR. Back

37   Q 17 Back

38   MoJ (CDF 01)  Back

39   Q 6 Back

40   See, for example, Policy Council of the States of Alderney (CDF 23)  Back

41   Q 7 Back

42   Government of Jersey (CDF 09)  Back

43   Q 14 Back

44   Ibid. Back

45   Q 15 Back

46   Government of Jersey (CDF 09) Back

47   Q 18 Back

48   Q 23 Back

49   Policy Council of the States of Guernsey (CDF 06) Back

50   Q 18 Back

51   Q 23 Back

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Prepared 16 January 2014