CROWN DEPENDENCIES Memoranda of Evidence Memo no Submission from: CD 01 Tomaz Slivnik CD 02 Sir David and Sir Frederick Barclay CD 03 Ministry of justice CD 04 Senator T A Le Sueur, Chief Minister of Jersey CD 05 Mike Brown, Chief Minister of Guernsey CD 06 National Association of Health Stores CD 07 Health Food Manufacturers’ Association CD 08 Landsbanki Guernsey Depositors Action Group Conseiller Charles Maitland, Chairman, Sark CD 09 General Purposes and Advisory Committe CD 10 Isle of Man Pensioners Association CD 11 Bob Hill, Member, States of Jersey Assembley CD 12 Crown Appointments in the Bailiwick of Guernsey CD 13 Lord Wallace of Soltaire A.T.T.A.C France and from Local A.T.T.A.C Saint- CD 14 Malo Committee CD 15 Michael Dun CD 16 Members of the Committee of Attac Jersey Tristram C. Llewellyn Jones, Positive Action Group CD 17 member, Isle of Man CD 18 Isle of Man Government Policy and Finance Committee of the States of CD 19 Alderney CD 20 Lord Bach, Ministry of Justice CD 21 Paul Carney CD 22 Joseph Livio Angela CD 23 Tax Justice Network CD 01 Evidence The United Kingdom and the Crown Dependencies Tomaž Slivnik 2 October 2009 Summary Memorandum 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. CD 01 Main Memorandum 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 4 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.