Draft States of Jersey (Amendment No. 5) Law 200-
European Convention on Human Rights
In accordance with the provisions of Article 16 of the
Human Rights (Jersey) Law 2000 the Chairman of the Privileges and Procedures
Committee has made the following statement –
In the view of the Chairman of the Privileges and
Procedures Committee the provisions of the Draft States of Jersey (Amendment
No. 5) Law 200- are compatible with the Convention Rights.
(Signed) Connétable D.F. Gray of St. Clement
REPORT
Article 2 –
Suspension of Minister in respect of whom a proposition for dismissal is to be
lodged
Article 2 inserts a new Article 21A in the States of Jersey Law 2005.
The report ‘Machinery of Government Review’, R.105/2007 (re-issue) was presented to the States by the Privileges and Procedures Committee on 9th November 2007 setting out a number of recommendations to make improvements to the ministerial system of government. The review was undertaken by a sub-committee of PPC, and concluded its evidence-gathering on the first 12 months of the operation of the ministerial form of government early in 2007, before the events of the summer of 2007 relating to the Minister for Health and Social Services occurred. The sub-committee nevertheless considered the lessons to be learnt from these events.
The sub-committee did not believe it was satisfactory that a Minister should be able to continue performing his duties after the Chief Minister had decided to lodge a proposition for his or her dismissal, and this view was shared by the Council of Ministers during the consultation that followed the publication of R.105/2007. Once the relationship between a Minister and his or her ministerial colleagues has broken down to the extent that the Chief Minister is seeking the dismissal of the Minister concerned, it seems inappropriate that the Minister, who may have extensive statutory powers and duties, should continue to carry out his duties; but should instead be suspended until the States make a decision on his/her dismissal.
The duties of the suspended Minister would either be carried out by the Chief Minister himself or herself or delegated by the Chief Minister to another Minister, in accordance with Article 27(2) of the States of Jersey Law 2005. In practice, a proposition to dismiss a Minister requires a 2 week lodging period, and would normally be debated at the soonest possible meeting, as it would be unsatisfactory for a situation of, ‘de facto’ no confidence, to continue. It should be noted that the proposed new Article 27(4) provides that the Minister’s suspension will cease if the Chief Minister does not lodge the necessary dismissal proposition within 3 working days to ensure that a Minister cannot be suspended for an unduly long period before the States debate.
Article 3 – Delegation of
functions by Ministers
Article 3 substitutes current Article 30 and inserts a new Article 30A in the States of Jersey Law 2005.
During the above Machinery of Government Review, the sub-committee noted confusion as to who was responsible for general and statutory functions during the temporary, or longer term, absence of the Minister. The manner in which Assistant Ministers are delegated to act for Ministers in their absence is also somewhat unclear. In practice, most Assistant Ministers deputised for their Minister when he or she was unwell or out of the Island. In most cases this extended across the entire spectrum of ministerial responsibility, although there are certain matters that cannot, in law, be delegated to an Assistant Minister. These include, importantly, the ability to make Orders and, in the absence of a Minister, these must be made by the Chief Minister or another Minister appointed by the Chief Minister to undertake the functions of the absent Minister.
The publication of delegation of functions is not very straightforward –
· Under Article 30 of the States of Jersey Law 2005 as currently drafted, the Chief Minister has a duty to maintain a list of responsibilities carried out by Ministers and Assistant Ministers and the functions exercisable by them. This report is an overarching report which is not detailed, and which might not be up to date as time wears on in the life of the Assembly.
· In addition, each Minister publishes a report in the ‘R’ series when statutory functions have been delegated. This has not been a statutory requirement but has been considered to be the most effective way forward. For a number of departments, several of such reports exist.
· Delegations of general areas of activity will be recorded in a Ministerial Decision which will be available on the www.gov.je website (and again there may be more than one) and will be a matter of public record.
· Temporary delegations have not been recorded.
As there are a number of documents in a number of places setting out the delegations, it is difficult therefore track down and verify all the functions delegated by a Minister to an Assistant Minister.
The purpose of the amendment is to provide that –
1. When statutory functions are delegated, they must be reported to the States Assembly (except that very short-term delegations do not need to be reported). This reflects the current practice but makes it a formal statutory requirement.
2. The Chief Minister shall establish and maintain a published list of the functions of each Minister, and of the functions which have been delegated to others. This will provide that there is one list in one place that will give all the necessary information on delegated functions.
3. This list may be published and maintained on a website. In practice it is intended that the list will be published on a website so that it will be capable of being updated simply and will be easily accessible.
Article 4 – Remuneration
of elected members – pension provision
Article 4 amends Article 44 of the 2005 Law.
Following an amendment adopted during the debate on the original States of Jersey Law 2005, Article 44 was drafted so as to ensure that all States members would receive equal remuneration, regardless of official responsibility. The Article currently reads as follows –
44 Remuneration of elected members
No scheme, agreement or
other arrangement whatsoever for the remuneration of, or the payment of any
allowance to, elected members out of the general revenue of the States shall
provide for different elected members to receive different amounts of
remuneration or allowance.
When the States Members’ Remuneration Review Body reported in 2005 it made it clear that, although it might have wished to make recommendations on a possible pension provision for States members, it did not feel able to do so because Article 44 precluded this and the Body did not think it was appropriate to make recommendations that were contrary to an existing statutory requirement (the Body had received legal advice that any pension scheme would almost certainly fall foul of Article 44 because the Body had received advice from a pensions expert that any formal pension scheme would require different contributions for different members because of the age range of members).
In response to the Body’s views PPC lodged an amendment to the Law in 2006 to repeal Article 44 (P.126/2006) but that was rejected on 16th January 2007 by 23 votes to 28. It was clear during the debate that the main concern of those opposing the repeal was that the absence of Article 44 would lead to the possibility of differential pay for Ministers and other officeholders. The current amendment to Article 44 is therefore restricted to one single matter which is pension provision.
PPC wishes to stress in the strongest terms that, at this stage, the amendment does not in any way mean that a pension scheme should necessarily be introduced. However, the amendment will enable the States Members’ Remuneration Review Body to consider this matter and make appropriate recommendations for consideration by the States when it reports on remuneration levels for 2009 and beyond later this year.
Financial and manpower implications
In order to provide an up-to-date list of all delegated functions, there will be a need to maintain an electronic list on the www.gov.je website. The resource implication should nevertheless be minimal and the change can be undertaken within existing resources.
The amendment to Article 44 enables the SMRRB to consider the issue of pensions. Any proposal to actually implement pension provision for elected members, which could have significant financial implications, would be the subject of a separate proposition.
European Convention on Human Rights
Article 16 of the Human Rights (Jersey) Law 2000
requires the Minister in charge of a Projet de Loi to make a statement about
the compatibility of the provisions of the Projet with the Convention rights
(as defined by Article 1 of the Law). On 28th July 2008 the Chairman of
the Privileges and Procedures Committee made the following statement before
Second Reading of this Projet in the States Assembly –
In the view of the Chairman of the Privileges and
Procedures Committee the provisions of the Draft States of Jersey (Amendment
No. 5) Law 200- are compatible with the Convention Rights.
Explanatory Note
Article 1 defines the States of Jersey Law 2005 as the “principal Law”.
Article 2 inserts a new Article in the principal Law.
21A Suspension
pending dismissal
Article 21(5) to (7) of the principal Law already provide that the Chief Minister may, with the agreement of the majority of the Council of Ministers, lodge a proposition for the dismissal of a Minister. This new Article describes the consequences that may follow once the majority of the Council of Ministers have given that agreement.
This Article empowers the Chief Minister to suspend the Minister whose dismissal is being sought. From the time that the Chief Minister does so, the Minister who is suspended ceases to have any of the powers of his or her office. The Chief Minister is under an obligation to inform persons affected by the suspension of it, but is not required to do so before the suspension takes effect.
The suspension remains in place until the proposition for dismissal is voted upon or withdrawn. In addition, if the Chief Minister, having suspended the Minister, then delays in lodging the proposition for dismissal, the suspension will end after 3 working days. This is to ensure that the Chief Minister cannot suspend a Minister indefinitely, without the matter being debated by the States.
Whilst a Minister is suspended, the Chief Minister can discharge the functions of that office personally or designate another Minister to discharge them.
Article 3 substitutes Article 30 of the principal Law. Currently, Article 30 requires the Chief Minister to establish, maintain and publish a list of Ministers and Assistant Ministers and the functions exercisable by each of them. The substituted Articles are as follows –
30 Ministerial
delegations to be presented to States
This Article codifies a practice already adopted by Ministers by requiring them to present to the States a report of any functions delegated by them, and to whom. A report is not required if the delegation is spontaneous rather than pre-planned and will be in place for such a short period of time that the delegation will have ended before the report is presented.
30A List of
delegations to be published
This Article expands upon the duty currently imposed on the Chief Minister by the existing Article 30. The Chief Minister is charged with maintaining an up-to-date list containing the following information –
· the functions for the time being delegated by Ministers and
· in the event of the absence, incapacity or suspension pending dismissal, of a Minister or in the event of a vacancy in the office of a Minister, the name of the other Minister who is, for the time being, discharging the functions of the first-mentioned Minister’s office.
It would be sufficient for the information to be published on a website. There is no requirement to publish if the delegation or ‘standing-in’ of one Minister for another is spontaneous rather than pre-planned and will be of such brief duration that it will have ended before the information can be published.
Article 4 relaxes the rule that all States members shall receive the same remuneration and allowances. It allows different amounts of pension contributions to be made, whether directly or by way of allowance to the States member concerned, in respect of different States members.
Article 5 provides for the citation and commencement of this draft Law.
