Human Rights Law: statements of compatibility (P.84/2010) – comments.

STATES OF JERSEY

HUMAN RIGHTS LAW: STATEMENTS OF COMPATIBILITY (P.84/2010) – COMMENTS

Presented to the States on 6th July 2010 by the Council of Ministers

STATES GREFFE

2010   Price code: A  P.84 Com.

COMMENTS

The   Deputy  of   St. Martin 's  Proposition  P.84/2010  asks  the  States  to  agree  that Article 16 of the Human Rights (Jersey) Law 2000 should be amended to require a Minister to state –

1. what  Articles  of  the  European  Convention  on  Human  Rights,  if  any,  are engaged in relation to legislation being brought to the States; and
2. the reasons why the Minister considers the proposed legislation is, or is not, compatible with the Convention rights.

The Council of Ministers is opposed to the proposal because it considers that –

1. the suggested changes would be unnecessary;
2. existing procedures are effective; and
3. the resource implications are not justifiable.

Article 16 of the Human Rights (Jersey) Law 2000 (the Law') states –

1. A Minister who lodges au Greffe a projet de loi must, before the second reading of the projet –

1. make  a  statement  to the  effect  that  in the  Minister's  view  the provisions of the projet are compatible with the Convention rights (a "statement of compatibility"); or
2. make a statement to the effect that although the Minister is unable to make a statement of compatibility, he or she nevertheless wishes the States to proceed with the projet.

2. The statement referred toin paragraph (1) must be in writing and be published in such manner as the Minister making it considers appropriate.

It is not clear what level of detail would be envisaged under the proposed amendment, and  the  existing  provisions  do  not  in  fact  impose  any  limit  on  the  detail  given. Furthermore, it is unclear that any additional benefit would be obtained by providing a detailed analysis of the legal position.

At present, the Attorney General or the Solicitor General attends the States meetings and is available during debates to provide advice to the Assembly in response to specific questions on human rights compatibility, if requested.

In  addition,  the  existing  scrutiny  process  provides  an  important  and  effective opportunity for Scrutiny Panel members to consider any legislative proposal before it is brought to the Assembly, including assessment of any perceived human rights issues.

Moreover, before a Jersey Law receives Royal Assent, it is given further consideration by lawyers within the Ministry of Justice prior to submission to the Privy Council to ensure that it would not place the United Kingdom in breach of its own obligations under the European Convention on Human Rights.

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The Law Officers have an obligation to report to the Privy Council on any Jersey Law and to advise whether or not the legislation would put the United Kingdom in breach of  its  international  obligations.  Accordingly,  the  Law  Officers  would  have  an obligation to bring any such difficulty, including any difficulty with the Convention, to the attention of the Assembly prior to that legislation being passed.

Since the Law came into force in 2006, and previously when voluntary statements of compatibility  were  made,  there  has  been  no  indication  that  the  present  form  of compatibility  statement  has  caused  any  problems  or  that  the  position  would  be improved with a more extensive statement.

It  is  therefore  considered  that  appropriate  and  effective  checks  and  balances  are already in place through independent legal advice, separate Scrutiny review and Privy Council assessment to ensure full appraisal of any human rights implications.

Resource implications

In broad numbers, the States consider around 35 principal Laws each year. If detailed explanations of the legal considerations leading up to a statement of compatibility were required, in lay language, to be published in every case, it is certain to result in significant delay in lodging legislation.

In addition, the workload involved is estimated to require up to one additional Legal Adviser in the Law Officers' Department, with associated costs.

Such additional costs, at a time when the States are looking at reducing unnecessary expenditure,  is  seen  as  unjustifiable  when  the  existing  procedures  are  entirely effective.

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