Draft States of Jersey Law 200-
European Convention on Human Rights
The President of the Privileges and Procedures Committee has made the following statement –
In the view of the Privileges and Procedures Committee the provisions of the Draft States of Jersey Law 200- are compatible with the Convention Rights.
(Signed) Deputy R.G. Le Hérissier of St. Saviour
REPORT
Introduction
This draft Law is the key piece of legislation which will enable the move to a new system of government to take place after the next elections in the autumn of 2005. The Law will replace the States of Jersey Law 1966 although certain parts of the new Law, as explained below, re-enact (with some modifications) certain provisions of the 1966 Law.
The Committee decided at an early stage that it wished to bring forward a new Law that was as simple and short as possible with matters of detail contained in subordinate legislation, in particular the new Standing Orders of the States which the Committee will be bringing forward for approval in early 2005.
As can be seen the draft Law is accompanied by a comprehensive Explanatory Note and this report therefore focuses on the Committee’s reasoning in relation to certain provisions of the Law.
Preamble to the Law
The Committee considered that an opportunity should be taken in the new Law to make a statement about Jersey’s constitutional position as the Law is the central piece of legislation dealing with the structure of government in Jersey. As can be seen the preamble draws attention to the fact that Jersey has autonomy in relation to its domestic affairs and sets out the reasons for making changes to the system of government within the context of maintaining international principles of human rights.
Part 1 – Introductory
The definitions in Article 1 cover the new positions such as Chief Minister and Minister as well as bodies such as the Council of Ministers.
Part 2 – Constitution of the
States
The Committee is not proposing any changes at this stage to the Constitution of the States and the provisions of the 1966 Law are reproduced without amendment.
The Committee is conscious of the need to progress this Law in a timely fashion to allow ministerial government to start on schedule and, for this reason, the Committee did not believe it was appropriate to await any decisions that may be made on the future composition of the States Assembly arising out of the work of the Special Committee on the Composition and Election of the States Assembly or as a result of propositions brought forward by private members. If changes to the future composition of the Assembly are agreed by the States in the coming months it will be necessary for amendments to be made to this Law, and it would be possible for such amendments to be made either before or after the Law was brought into force depending on the timing and nature of the decision. The Committee has built in some flexibility by allowing the Deputies’ constituencies set out in Schedule 1 to be amended by Regulation (although the overall number of 29 Deputies could not be changed in that way). Any more radical change to the composition of the States would, of course, require amendments to the Law itself.
As can be seen from the Explanatory Note the Committee has made minor amendments of a technical nature to clarify the provisions in the 1966 Law on the expiry of terms of office (Article 5) and on the dates of elections for Senators and Deputies (Article 6). In addition a small change has been made to the manner in which a date is fixed to fill a casual vacancy for Senator or Deputy to allow greater flexibility (Article 13).
There are important changes to the rules on qualification for election to, and membership of, the States. At present the residency requirement for a person seeking election as a Senator or Deputy is that they must either be born in Jersey or have been ordinarily resident in Jersey for the two years preceding the day of the election. The Committee believes that this distinction between a candidate who happens to be born in Jersey and one who is not is illogical and outdated, and it has therefore decided that the residency requirement should mirror the provisions for electoral registration found in the Public Elections (Jersey) Law 2002.
The Committee has clarified the minimum age provision for Senators and Deputies. There was an anomaly in the 1966 Law on this point as a person was disqualified if under 21 years old (Article 8(d) of the 1966 Law) but qualified if he was ‘of full age’ (now 18 years old since changes to the age of majority). The new Law makes it clear that a person of 18 is now qualified to stand for election. The Committee believes that, if a person is able to vote in public elections, he or she should also be able to stand for election and it will be for the electorate to decide whether or not candidates have the necessary experience and maturity to serve in the Assembly.
The rules on nationality for Senators and Deputies have been amended so that a person must be a British Citizen to stand for election and becomes disqualified if no longer a British Citizen. In addition a Senator or Deputy becomes disqualified if they are not resident in Jersey for more than 6 months. The Committee gave careful consideration to this point as it could be argued that with regular and reliable transport links it could be possible, for example, for a member to live in France or Guernsey and still fulfil his or her duties as a member. The Committee concluded that this was inappropriate if a Senator or Deputy was to represent their constituents adequately and be available to assist them as required.
Part 3 – Proceedings of the
States
As mentioned above the Committee was keen to retain as much flexibility as possible by not including matters in the new Law that can be contained in Standing Orders. As a result Part 3 is, in some ways, notable for the things that are omitted when compared with the 1966 Law. There are no provisions on the manner in which meetings of the States are convened, on matters such as recording the names of members present or keeping minutes of proceedings. These issues will all be covered in the new Standing Orders. In addition the Committee will be bringing forward proposals in the new Standing Orders to replace the current provisions on lodging matters ‘au Greffe’.
An important change is found in Article 16 of the new Law as the Bailiff’s casting vote has been removed. Under the new provisions any tied vote will simply be decided in the negative as happens at present when an elected member or the Greffier or Deputy Greffier is presiding. By convention, the Bailiff and Deputy Bailiff have always exercised their casting vote to preserve the status quo. However, the Committee, with the support of the Bailiff, has proposed the abolition of the casting vote in order to avoid any public misconceptions and to emphasise by its removal that the Bailiff is never required to exercise what could be seen as a ‘political’ role by voting in the Assembly.
Part 4 – Ministers
Part 4 contains entirely new provisions relating to the establishment of a Council of Ministers and the operation of ministerial government. With one exception explained below the Committee has followed existing ‘in principle’ decisions of the States as far as possible in preparing this Part of the Law.
In accordance with the decision of the States in adopting P.70/2002 on 24th July 2002, the size of the Council of Ministers is fixed at 10 (Chief Minister and 9 Ministers) although there is the ability in Article 18(4) for the number to be amended by the States by Regulation. It is therefore of note that the Chief Minister will not be able to amend the number of Ministers without reference to the States.
Although certain key functions of the Council of Ministers are set out in Article 18 there are no detailed provisions on the modus operandi of the Council as it will be for each Council to agree its own detailed internal procedures. It is important to point out that the Law, and amendments being brought forward to all other Jersey legislation, will confer legal decision-making powers on individual Ministers and not on the Council of Ministers which will simply have a co-ordinating role.
Article 19 sets out the procedures for the selection and appointment of the Chief Minister and Ministers. It should be noted that, in accordance with previous decisions of the States, the Assembly must accept or reject the Chief Minister’s nominations for the 9 Ministers ‘en bloc’ and it will not be possible for alternative names to be proposed by other members. Standing Orders will set out details of the exact procedures and timescales involved in the appointment procedure and it will be necessary to strike a balance between ensuring that adequate notice is given to members of nominations, particularly for Chief Minister, and the need to make appointments in a timely fashion after a general election. The Committee’s current thinking is that nominations for Chief Minister should be submitted to the Greffier of the States some 6 days before the appointment is made.
Standing Orders will prescribe how many times the Assembly can reject the ‘team’ of Ministers proposed by the Chief Minister Designate and it is likely that no more than 3 attempts would be allowed. The Committee accepts that it may be difficult for the Chief Minister to know why the proposed membership of the Council of Ministers has been rejected and, in addition, different members may have different reasons for rejecting the proposals. Nevertheless the Committee believes that a person who is able to command sufficient support to be elected as Chief Minister should be able to take informal soundings and judge what team of Ministers will be acceptable to the States.
The Law, in accordance with existing decisions of the States, places considerable restrictions on the Chief Minister in relation to the appointment of Ministers. When proposing the team of Ministers the Chief Minister will be required to state which office each nominee would fill and he or she will not subsequently be able to ‘swap’ Ministers between ministerial offices without the consent of the States. As can be seen, it will also be necessary for the States to give their approval before the Chief Minister can make changes in the overall number of Ministers, in the names and functions of the various ministerial offices and even before he or she can move existing Ministers between ministerial offices (Article 28). Unlike the ability of, for example, the British Prime Minister to undertake a ministerial ‘reshuffle’ at any time, the Chief Minister in Jersey will be severely restricted.
The provisions on the dismissal of Ministers are contained in Article 20(4) of the Law. In accordance with existing States’ decisions a Minister can be dismissed by the Chief Minister with the consent of a majority of the Council but the Minister concerned must be given the opportunity to address other Ministers before he or she can be dismissed. The Committee has however decided, after consultation with the Policy and Resources Committee, not to include any provision in the Law which would prevent a vote of no confidence being brought in the States in relation to individual Ministers. This runs contrary to existing States’ decisions on this matter but the Committee accepts that it would be preferable to allow such votes and therefore invites the States to overturn their previous decision by accepting that no restriction is included in the draft Law.
The flowcharts attached at the Appendix show how the procedures for the appointment, resignation and dismissal of the Chief Minister and Ministers would work.
The Committee gave considerable thought to the issue of continuity, particularly after general elections when the Chief Minister and other Ministers might have retired from the States or been defeated in the election. It will clearly take a number of days to appoint a new Council of Ministers after the swearing in of new members, particularly if the person appointed as Chief Minister designate is unable to receive support for his or her team of Ministers. The Committee discussed the potential difficulties of leaving Jersey without any ‘government’ for even a short period of time and concluded that this was not acceptable. This decision has to be balanced against the undesirability of allowing a Chief Minister and Ministers who are no longer States members to continue in office, particularly if they have lost their seats through electoral defeat.
The Committee is therefore proposing in Article 20 that the Chief Minister, even if he or she is no longer an elected member, should remain in office until a successor is appointed. (The only exception to this is if the Chief Minister ceases to be a Senator or Deputy by reason of disqualification). The provisions for Ministers are slightly different as they would also remain in office until their successors are appointed if they continue to be elected members, but would immediately cease to hold office as Ministers on ceasing to be elected members. After a general election the practical effect of these proposals is therefore that the Chief Minister, whether or not he or she is still a States member, will remain in office until a successor is appointed together with the Ministers, if any, who are still States members. In the short period between the swearing in of new States members and the appointment of a new Council of Ministers it would be necessary for the powers contained in Article 26 to be used to cover the functions of any vacant ministerial posts. The Committee recognises that some members may be concerned that a Chief Minister who has been defeated in an election could remain in office for a few days but has concluded that it is simply not possible to put in place provisions that could, in theory, leave no single member of the Council in place if all were defeated in the election. It will be desirable to put in place a convention that, in this short transitional period, the Chief Minister and Ministers should only deal with routine and urgent matters that cannot be left until their successors are appointed.
Article 30 contains new provisions designed to ensure that the States Assembly has a greater control over legislation that applies in Jersey. At present Orders in Council extending U.K. Acts to Jersey, or provisions of U.K. Acts that apply directly to Jersey, are not subject to any consideration by the Assembly although, by convention, the U.K. authorities will normally refer the matter to Jersey through the official channels and consultation will take place with relevant Committees, the Law Officers and officials in Jersey. The new provisions in this Article enable the States to signify their views on draft legislation of this nature that will apply to Jersey and, if the Royal Court finds that the States have not signified their agreement when the matter is presented for registration, it will be required to refer the matter to the Chief Minister who will refer it to the States.
Part 5 – Powers, privileges
and immunities
This Part of the Law reproduces, with minor amendments, existing provisions of the 1966 Law. It should be noted that the immunity from legal proceedings for members of the States (Article 33) could be extended to persons giving evidence before Scrutiny Panels and other bodies through the provisions of Article 44 of the Law (in Part 7).
Part 6 – Officers of the
States
The Committee considered it was important to move the provisions regarding the officers of the States from the Departments of the Judiciary and Legislature (Jersey) Law 1965 to the States of Jersey Law. The provisions are reproduced without amendment from that Law. It should be noted that any person appointed as an Acting Greffier of the States is defined in Article 1 of the Law as an officer of the States and will be able, for example, to remain in the Chamber when strangers are asked to withdraw. (It is normal practice for the Assistant Greffier of the States to be appointed by the Bailiff as an Acting Greffier so that he or she can fulfil the functions of the Greffier if both the Greffier and Deputy Greffier are unavailable).
Part 7 – Supplementary
Article 42 contains an important change. At present both the Bailiff and the Lieutenant-Governor have certain powers to dissent, or veto, resolutions of the States. Although the powers have not been exercised in living memory the Committee considered that the powers should be abolished as they detracted from the autonomy and supremacy of the States Assembly as a legislature. Both the Bailiff and the Lieutenant-Governor have expressed their support for this change.
As stated above many matters will be covered in new Standing Orders and Article 43 sets out the matters that must, and matters that can, be included in Standing Orders. The provisions on Scrutiny Panels and the Public Accounts Committee follow previous States’ decisions. Article 44 covers matters that must be done by Regulation and these cover particularly the ability to grant powers and immunities.
The Committee has included an important Regulation making power in Article 45. As has been stated on many occasions there are many hundreds of pieces of legislation that will require modification to move from a Committee system of government to a ministerial one. Unfortunately the Committee realised early in its deliberations that it was not possible to simply change the word ‘Minister’ for ‘Committee’ as each reference to ‘Committee’ needed to be considered to assess what change was appropriate. This work has been undertaken by officers in the Machinery of Government team at the Policy and Resources Department in consultation all Committees concerned and relevant officers. The necessary law drafting for this massive task is progressing in the Law Draftsman’s Office as instructions for different Committees are received. The provisions of Article 45(1)(b) of the Law will enable the changes to be made to primary legislation by Regulation and thereby avoid the need to seek Privy Council approval for each amendment. Further review work in this respect will be undertaken by the Law Officers’ Department before the Regulations can be brought before the States, but it is anticipated that the necessary Regulations will be presented to the States for approval during 2005.
Financial and manpower
implications
This Law, in many areas, gives legal effect to decisions already taken by the States with resource implications that have already been identified, such as the establishment of Scrutiny Panels and a Public Accounts Committee. Additional funding for those items has been agreed in the Fundamental Spending Review process (FSR). The requirement in Article 44(5)(b) for a written transcript of proceedings of the States (‘Hansard’) to be produced is in line with 2 existing ‘in principle’ decisions of the States and the annual cost of such a service is estimated to be approximately £158,000 with a 0.5 FTE post required for the Hansard Editor. As funds for the establishment of this service were not agreed in the FSR process, the Privileges and Procedures Committee will be lodging an appropriate amendment to the Resource Plan which is being debated in September 2004.
European Convention on Human
Rights
Article 16 of the Human Rights (Jersey) Law 2000 will, when brought into force by Act of the States, require the Committee 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). Although the Human Rights (Jersey) Law 2000 is not yet in force, on 28th June 2004 the Privileges and Procedures Committee made the following statement before Second Reading of this projet in the States Assembly –
In the view of the Privileges and Procedures Committee the provisions of the States of Jersey Law 200- are compatible with the Convention Rights.
Explanatory Note
Part 1 - Introductory
Article 1 is the interpretation provision.
Part 2 - Constitution of the States
Article 2 replaces Article 1 of the States of Jersey Law 1966 (the “1966 Law”). There are no changes made to the constitution of the States or the rights to speak and vote in the States.
Article 3 replaces Article 3 and, in part, Article 21(3) of the 1966 Law. There are no changes made to the arrangements for a person to preside in place of the Bailiff or Deputy Bailiff.
Article 4 and Schedule 1 replace Article 4 of and the First Schedule to the 1966 Law. There are no changes made to the constituencies for the elections of Senators and Deputies. However, the States are given power to make Regulations altering the constituencies for the election of Deputies, although the number of Deputies must remain 29.
Article 5 replaces Article 5 of the 1966 Law, relating to the term of office of Senators and Deputies, without any change. The opportunity is taken to make it clear that a Senator or Deputy holds office until a successor is sworn in following an ordinary election.
Article 6 replaces Article 12 of the 1966 Law. No changes are made to the rules for holding ordinary elections for Senators and Deputies. But, the opportunity is taken to clarify the meaning of the third week in October and the last week in November by restating the rule for when ordinary elections must be held. An ordinary election for Senators must be held in the 7 days beginning on the 15th October. An ordinary election for Deputies must be held in the last 7 days of November, beginning on the 24th November. The States are also empowered to make Regulations altering these periods. This Article must be read in conjunction with Article 17 of the Public Elections (Jersey) Law 2002 which requires the Royal Court to order that a public election be held on a Wednesday or on such other day of the week as the States prescribe in Regulations.
Article 7 replaces Articles 6 and 11 of the 1966 Law. Two changes are made to the rule for qualification to stand for office as a Senator or Deputy. First, the candidate must be a British citizen rather than a British subject. Second, the candidate must have been ordinarily resident in Jersey for a specified period. This new rule reflects the residency requirement in Article 5 of the Public Elections (Jersey) Law 2002 for a person to be included in the electoral register. Either –
the candidate must have been ordinarily resident in Jersey for the period of 2 years ending with the election date or
he or she must have been ordinarily resident in Jersey for the period of 6 months ending with the election date and have been previously ordinarily resident in Jersey for an aggregate of 5 years.
Article 8 replaces Article 8(1) of the 1966 Law. Four changes are made.
The rule that a person is disqualified if under 21 years of age is omitted. There are 2 reasons for the omission. The statement was inconsistent with Article 6 of the 1966 Law whereby a person is qualified for office if of full age (18 years). Further, if a person is stated to be qualified for office if they have attained a particular age, it is unnecessary to state also that they are disqualified for office if they are under that age.
The rule that a person is disqualified if he is a patient at an institution maintained by virtue of the ‘Loi (1890) sur l’Asile Public pour les Aliénés’ is replaced as that Law has long been repealed. The new rule is that a person is disqualified if he is compulsorily detained in a hospital or subject to a guardianship order under the Mental Health (Jersey) Law 1969. This rule disqualifies a person both for election and continuing in office.
The following two rules apply to a person in office.
A person becomes disqualified for being a Senator or Deputy upon ceasing to be a British citizen (for example, upon renouncing British citizenship).
A person becomes disqualified for being a Senator or Deputy on not being resident in Jersey for more than 6 months.
Article 9 replaces Article 8(2) - (6) of the 1966 Law and restates the requirement for a candidate for election as Senator or Deputy to make a declaration which includes details of certain convictions. The opportunity is taken to make it clearer that a candidate’s written declaration will be read out at the nomination meeting by the person presiding.
Article 10 replaces Article 9 and, in part, Article 8(1)(b) of the 1966 Law.
It restates the rule requiring an officer or employee in the service of the States or an administration of the States to resign when elected as a Senator or Deputy or on taking office as Connétable.
It also restates the rule disqualifying a Senator, Connétable or Deputy for appointment to any office or employment in the service of the States or any administration of the States.
Article 11 and Part 1 of Schedule 2 replace Article 7 of and the Second Schedule to the 1966 Law, specifying the form of oath for Senators and Deputies.
Article 12 replaces Article 13 of the 1966 Law, regarding the resignation of Senators and Deputies, without any change of procedure.
Article 13 replaces Article 14 of the 1966 Law regarding the filling of casual vacancies in the office of Senator or Deputy.
One small procedural change is made. The present Law requires the Royal Court to order an election to be held within 6 weeks of the Court declaring the office of Senator or Deputy to be vacant. Article 17(2) of the Public Elections (Jersey) Law 2002 requires that the election be held not earlier than 38 days after the date of the Court Order and on a Wednesday or other day of the week prescribed by Regulations. The resultant 4 day ‘window’ of time in which the election must be held is considered too inflexible. Therefore this Law simply requires the Court to order the election to be held as soon as is convenient (subject, still, to the requirement in the Public Elections (Jersey) Law 2002 that the election date is not earlier than 38 days after the date of the Court Order). The States may prescribe in standing orders a period within which the election must be held.
Article 14 replaces Article 15 of the 1966 Law, regarding the term for which a person filling a casual vacancy serves, without change.
Part 3 - Proceedings of the States
Certain matters dealt with in the 1966 Law will be contained in standing orders made under this new Law, for example, the frequency with which the States meet and the convening of States meetings, the penalty for failing to attend a meeting of the States, the requirement to record the names of members present, the arrangements for lodging propositions and the requirement to keep minutes of States proceedings. Therefore, this Law contains no equivalent of Articles 16, 19, 20, 24 and 25 of the 1966 Law as such, although Article 44 requires certain records of States meetings to be kept.
Article 15 replaces Article 18 of the 1966 Law, regarding a quorum of the States, without any change.
Article 16 replaces Article 21 of the 1966 Law. The rule that any matter must be decided by a majority of the members present and voting remains unchanged. However, the Bailiff’s casting vote is removed with the consequence that if, any time, the votes on a matter are equally divided, the matter is decided in the negative.
Article 17 replaces Articles 10 and 26 of the 1966 Law, regarding the validity of acts of elected members and of proceedings of the States, without any change.
Part 4 - Ministers
Article 18 states that there shall be a Chief Minister and 9 Ministers (the “Council of Ministers”) and describes functions that the Chief Minister and Ministers must discharge collectively and functions that the Chief Minister must discharge alone. The Law is silent as to the manner in which the Council conducts its meetings and affairs, leaving the Council to determine its own procedures.
Article 19 requires the States to select a Chief Minister and Ministers who are then appointed to office.
The selection of a Chief Minister is triggered by one of the events in paragraph (2).
The events that trigger the selection of a Chief Minister have the result that the term of office of the Chief Minister and Ministers –
(a) will never exceed 3 years (unless re-selected), because the triennial elections of Deputies always initiate the selection process; and
(b) will be brought to an end before the 3 years expires if the Chief Minister loses his or her place in the States, resigns or dies or if the States decide that they have no confidence in the Chief Minister personally or in the Council of Ministers as a whole.
Paragraph (2)(g) is an additional case which triggers the selection process. It caters for a situation where the States select a person as Chief Minister designate but then reject that person’s nominations for Ministers. Once the Chief Minister designate’s nominations have been rejected a prescribed number of times, that person has effectively failed to present a ministerial team that is acceptable to the States and accordingly ceases to be Chief Minister designate (paragraph (6)). At that point, paragraph (2)(g) provides for the process to be restarted and a new Chief Minister designate to be selected.
If the selection and appointment of a new Chief Minister and Ministers would take place less than 8 weeks before the triennial selection which is initiated by the ordinary elections for Deputies, paragraph (8) gives the States a discretion not to make the new appointments.
Once selected, paragraph (3) requires the Chief Minister designate to bring forward the names of the elected members that he or she wishes to have appointed as Ministers and propose the Ministerial office to which he or she would be assigned. Paragraph (4) requires the States to accept or reject the nominations and ministerial responsibilities