By Gavin St Pier
ONCE again, a technical UK legislative drafting tool, which is normally of little interest to few people, other than the drafter and a few officials, is – or at least ought to be – causing a few ripples on our shores.
A Permissive Extent Clause, or PEC, in a UK Act of Parliament is pretty rare. What it does is create a pathway which enables, at some future date, a particular piece of Westminster wisdom to be directly applied as the domestic law of the land in our islands, as effectively as if that law had been passed in our parliaments. In practice, this is done by an “Order in Council” approved by His Majesty in the Privy Council.
The Cabinet Office and Ministry of Justice (MoJ) guidance to their staff is unambiguously clear: we should be both consulted and have consented before a PEC is dropped into a legislative Bill. So when the UK government fails to do this, we all need to sit up and take notice. In 2020, a PEC was put into the Fisheries Act, not only without our consent but, worse, in spite of our clearly expressed opposition. They did this with the justification that it would only ever be used as a “last resort” – which is no justification at all, of course, merely an explanation as to why they wanted it in. The Guernsey government, in its 2023 submission of evidence to the House of Commons Justice Committee, used language that is unusually frank for such submissions when it said that there seemed to be a political shift in the UK which demonstrated “a willingness to interfere with longstanding constitutional principles for short-term political gain”. Disappointingly, a UK minister dismissed the Channel Islands as “grumpy”. All the more disappointing, given the minister was the one with designated responsibility in the MoJ for representing and guarding our constitutional relationship with the Crown, through HM Government.
The Justice Committee’s report published last month was also unusually direct in its criticism of the UK government when it concluded that the inclusion of a PEC “was extremely regrettable and contrary to the constitutional relationship”. They said they did not agree with the UK government’s assertion that it was a “legitimate act” and “soundly within the constitutional relationship”, but rather they considered it to have been “a serious interference in long-established constitutional principles for short-term political reasons”.
The language may have been strong – at least in the rarefied circles of parliamentary select committees – but the fact that this stinging rebuttal didn’t make any news cycle, tells you all you need to know about how much proverbial sleep the UK government is going to lose worrying about the Justice Committee’s report. Select committee reports may be well researched and evidenced. They may be well presented and articulated. They may even be persuasive but, at the end of the day, the government can ignore them entirely and file them on a shelf – or in the bin.
As if to prove the point, even as the Justice Committee’s report was being proofread and printed, the UK Government managed to slip another PEC into the Safety of Rwanda Bill, which is currently ping-ponging between the House of Commons and the House of Lords (as the latter keeps re-inserting amendments the government doesn’t like.) This Bill is the one that decrees, as matter of law, that Rwanda is a safe country. Whether it is or not as a matter of fact for those asylum seekers who attempt to land in small boats at Dover and risk being carted off to Kigali, is by-the-by. The Bill was the only way the government could get around the Supreme Court’s ruling last year that the country wasn’t safe. As we all know, the “Rwanda policy” has everything to do with UK domestic politics ahead of the general election there this year, with little prospect of meaningfully shifting the dial on illegal migration numbers, at least in the short term. More importantly, it has nothing to do with Guernsey or Jersey domestic politics and certainly a PEC allowing the Bill’s extension to us, unequivocally should not have been inserted without our prior consultation and express consent. This time, the UK Government’s very weak excuse cited “tight timeframes” as a result of which the Home Office could not engage in advance. Given the even tighter timeframes in the Brexit process, which somehow did not prevent meaningful dialogue between the governments, this is clearly arrant nonsense. Local officials wagged their fingers at their UK opposite numbers. And undertakings have been given, at least in Guernsey, that representations will also be made at a political level, but the damage is done. Now this has happened twice in four years, firstly without our consent and then without our prior knowledge, there is little in practice to stop it happening again – or more frequently.
The backstop in both islands is that if a PEC is triggered, the requisite Order in Council will need to be registered with the Royal Court in each island and that can only be done if the local assemblies have had a chance to express a view. If they were to express a view that the order ought not be registered, then we are in unknown legal and constitutional territory. That would be a deeply unsatisfactory place to be and so the pressure on our political establishments to rollover and not object would be huge.
This is another reason for the islands having their own Privy Counsellors advising His Majesty on Channel Islands’ affairs. They would be well placed to advise the UK government of the associated risks of embarrassment to the Crown if an Order in Council is prepared that is unlikely to win the approval of the islands’ assemblies. Let’s hope that our external relations’ teams are using this present opportunity as a reason to bang that drum.
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Gavin St Pier is a Guernsey politician. He previously served as the President of the island’s Policy and Resources Committee.
