Falklands : FIRS TACKLES LEGISLATIVE DRAFTING WITH THE ATTORNEY GENERAL AND MLA DICK SAWLE
Submitted by Falkland Islands News Network (Juanita Brock) 03.02.2013 (Article Archived on 03.03.2013)
On Wednesday, 29 January 2013 Stacy Bragger discussed problems that have been identified with the laws of the Falklands.
FIRS TACKLES LEGISLATIVE DRAFTING WITH THE ATTORNEY GENERAL AND MLA DICK SAWLE
A Report for FIRS by Stacy Bragger (FIRS)
On Wednesday, 29 January 2013 Stacy Bragger discussed problems that have been identified with the laws of the Falklands. Concerns have been expressed about the extent of availability of the law to the public with laws becoming out of date and difficult to interpret. The Falkland Islands Government is looking to rectify the situation. On the Programme MLA Dick Sawle and the Attorney General, Mark Lewis Outline the work that is currently taking place on the matter.
Recent media coverage suggested that the Government lacks the will to resolve the problem. MLA Sawle says that this is not the case.
DS: This is something which I certainly raised in the pre-election stuff back in 2009 and something I think everybody here has been aware of for quite some time. There are some problems within the Falkland Islands legislation. I think we are very clear on that. In fact there has been a series of papers to Executive Council in 2012 which have attempted to look at this and attempted to see what we can do what sort of progress we can make to sort of unravel some knots that we have in our legislation at the moment.
In very general terms because I am not a lawyer so I canít be specific in very general terms, one of the big questions is which parts of the UK law apply and which parts of English law apply in the Falklands and, you know, we are not certain. Some of those laws that were written prior to 2004 Ė the cut-off date being July 2004, I think, some of those laws have clauses in them that automatically update them, for example. Other legislation doesnít. We have an interpretation of general clauses ordinance which is far from clear as to how to interpret legislation here. The Falkland islandsí laws were consolidated up to about 2004 but then following budget cuts something had to go so they stopped getting consolidated and revised.
The end result of that means that if somebody wants to find out what a particular amendment to a particular ordinance has been so difficult because if you go through the amendments you have to read that and go back to the legislation and cross out words and phrases and substitute them for the words in the amendment and what effect does that have? Itís quite complicated.
There are areas as well concerning criminal procedure and concerning civil procedure which quite frankly donít make sense at the moment. Weíve had the first piece of work on that by Mr John Wilson, who has been here for a week. Heís been looking at criminal procedures and thatís a 28-week job Ė a very able guy and he will sort that one out.
We have also got other problems like in the things like for example sentencing legislation because we sort of have very few sentencing solutions if you like. There are more solutions available which could be better implemented for people in the Falklands.
Thatís the over-all picture but they certainly havenít been ignored but we had a working group set up which has been consulting the Senior Magistrate, the police force for example and various other people involved in Court use. And that group has made its findings known and that resulted in a number of EXCO papers last year.
SB: Mark, in terms of trying to resolve this problem, this will be quite a task for the Attorney Generalís chambers to say the least. Are you hoping to make some good progress with this?
ML: To be fair, I think we are making good progress. Dickís right. There has been a period of lack of investment in the Falkland Islands law and thatís led us to the position where we are today where weíve got a raft of books which havenít been updated, havenít been revised and havenít been consolidated which does make it difficult for people to access the law but there are these two projects as Dickís mentioned which both have been approved by EXCO. Both have resources allocated to and both have moved forward.
Dick mentioned John Wilson, a very experienced guy who has done criminal and criminal procedure drafting in various overseas territories around the world and then has worked in all sorts of weird and wonderful places like Fiji and Turks & Cacos and Gibraltar and St Helena and various other places. He is already underway. He, already having a week down here has already started drafting so we are getting bits of new criminal law and criminal procedure from him. As Dick said, thatís going to be a 6-monthí project but we should end up with two Bills which we can send to EXCO for consideration.
And we are consulting on these and we will refer them to consultation. But at the moment, weíve got the Police and the Senior magistrate and John to talk to the mental health people and and various other parts of Government that are involved in that.
The second project, which is really the big scary one if you like is this whole issue about how do we deal with the problem that the law has not really been given a re-vamp since the cut-off date and since the ending of the revisions back in 2004. And a report was taken to EXCO which approved a sum of money to engage consultants to help us with it. They are due to come down to help us with it in a couple of weeksí time. We are very lucky.
Weíve got a chap called Daniel Greenberg involved, who is an excellent law revision expert and expert legal drafter and heís coming down and working with some other people and they are going to try and give us a new way of interpreting and applying English law alongside Falkland Islandsí law and give us route maps of what weíve got and we then can move forward in what is likely to be a phased approach over a number of years to get to a position where we can make available and publish on internet on disk or whatever, the laws of the Falkland Islands and the English laws that apply to the Falkland Islands in a way that people can access and understand. But I would have to emphasise that thatís a big job and itís going to require more resources from Government to support the project so far and I am confident that they will continue to do so.
DS: I think the end result of this has to be that you can go on line, buy a CD of complete laws of the Falkland Islands that are coherent that link together sensibly with UK law Ė English law. That has to be available to anybody to do their own research. And whether there be a lawyer visiting for a case or practicing here or whether itís a member of the public, it is part of that fundamental democratic process that those things are available to everybody and that will happen.
SB: Mark, you said a phased approach would take a number of years. Is there an argument that this problem should be identified and more money should be forwarded fo resolve this as soon as possible?
Dick Sawle answered: As for the speed, I have no idea as to how long this will take to be quite honest. I have no experience of legislation of drafting legislation but I would imagine itís going to be quite a lengthy process. Is this is something that FIG can afford to not do? No. It has to do it in my view. Itís just a fundamental exercise in democracy and human rights and I donít think FIG can simply ignore it.
ML: And the other comment Iíd like to make is that firstly in relation to time scale, of course it would be possible to spend huge amounts of money and get a great team of legal drafters down here and completely write all of the laws of the Falklands all in one go. That would be incredibly expensive and we wouldnít be able to resource that in terms of every time you want to change the law you need policy direction. You need the politicians and the people to be consulted on changes to the law. Otherwise you will be imposing stuff that they know nothing about and have no say on. So thatís probably not a proper way to go about it in any event. Doing a phased approach means we will be able to tackle the most important areas of law in a sensible order and we will be able to engage with the politicians and engage with the people in the Falklands to give them the laws that they deserve and that they need.
I suppose the other point to make is that all this sort of doom and gloom talk about the laws might give one falsely the impression that we havenít got any laws in the Falklands. Thatís not the case. We do know what crimes are, we do know what murder and theft is, we have laws in place to deal with child protection and all the other things that happen, so whilst there is difficulty in applying and understanding and interpreting the law at times there is still a set of laws that are applied here and work here. Itís not a case of it doesnít work itís more a case of people finding it difficult to access and understand and read it for themselves and thatís what we want to solve.
DS: I think a lot of it is very technical, legal stuff which quite frankly I donít understand but I think it is when you get lawyers trying to interpret things thatís where the problems come. As mark says, there is a Court down there, there are laws and they are applied.
SB: With this project underway, is new legislation that comes from MLAs Ė is that still going to get done while this other work is underway?
ML: Thatís a really good point because we have a programme of legislative priorities and things that the MLAs quite rightly have given priority to and want done. The Minimum wage is something MLAs very clearly want it put in. Obviously we donít want the legislative programme to suffer because of the projects but neither do we want the projects to suffer because we canít resource them.
What has been asked for so far is resources from EXCO to help fund and do these projects and EXCO Ė the Governor has given us those resources to push ahead with those so the criminal law/criminal procedure project is underway and funding is in place to deliver that so thatís in the bag in terms of having resources to do that.
On the other project what we said to EXCO is that we would go back to them with a plan and the cost and will ask them for the resources to go ahead and deliver that. If that is made available and I am sure there is the political will to support it. That should help put in place the resources to deliver the project alongside carrying on delivering legislation that members have said that they want.
DS: And I would just like to add to that that if anybody wishes to do some research on that and look in a bit more detail about the background, 247, October 2012 is the paper which goes forward in more detail if you like and spells it out very clearly as to work that needs to be done and the reasons why we are where we are.
(100X Transcription Service)