Government of Jersey

Information about the publication of Ministerial Decisions

A formal published “Ministerial Decision” is required as a record of the decision of a Minister (or an Assistant Minister where they have delegated authority) as they exercise their responsibilities and powers.

Ministers are elected by the States Assembly and have legal responsibilities and powers as “corporation sole” under the States of Jersey Law 2005 by virtue of their office and in their areas of responsibility, including entering into agreements, and under any legislation conferring on them powers.

An accurate record of “Ministerial Decisions” is vital to effective governance, including:

demonstrating that good governance, and clear lines of accountability and authority, are in place around decisions-making – including the reasons and basis on which a decision is made, and the action required to implement a decision
providing a record of decisions and actions that will be available for examination by States Members, and Panels and Committees of the States Assembly; the public, organisations, and the media; and as a historical record and point of reference for the conduct of public affairs

Ministers are individually accountable to the States Assembly, including for the actions of the departments and agencies which discharge their responsibilities.

The Freedom of Information Law (Jersey) Law 2011 is used as a guide when determining what information is be published. While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.

A decision made (18/06/2007) regarding: Law Drafting Instructions - Recommendations of the Financial Action Task Force on Money Laundering.

Subject:	Law Drafting Instructions - Recommendations of the Financial Action Task Force on Money Laundering
Decision Reference:	MD-TR-2007-0068	Exempt clause(s):		N/A
Type of Report: (oral or written)	Oral	Person Giving Report (if oral):		Caroline Dutot – Assistant Legal Adviser
Telephone or e-mail Meeting?	N/A	Report File ref:		01/18/06/07
Written Report – Title	N/A	Written report - author		N/A
Decision(s): The Minister approved four sets of drafting instructions prepared by the Law Officers’ Department. The amendments addressed in these instructions are considered necessary in order to meet the Recommendations of the Financial Action Task Force on Money Laundering, against which the Island will be assessed during the course of the IMF assessment in the second quarter of 2008. The four sets of instructions that require the Minister’s approval are entitled: Abandoning the list of designated countries – Recommendation 38. Obtaining Customer Information and Account Monitoring Orders – Recommendation 28. Failing to Disclose a Knowledge or Suspicion of Money Laundering – Recommendation 13. Disclosure of Information by a Police Officer – Recommendation 40.
Reason(s) for decision: The States of Jersey has undertaken, as a matter of policy, to implement the 40 Recommendations and 9 Special Recommendations of the Financial Action Task Force on Money Laundering. The amendments sought are considered necessary to implement those Recommendations and therefore the Drafting Instructions prepared should be approved so that they can be submitted to the Law Draftsman to enable work on the carrying out the amendments required to begin.
Action required: Following approval by the Minister the four sets of Drafting Instructions prepared by the Law Officers’ Department will be undertaken.
MD-TR-2007-0068 Signature: (Minister/ Assistant Minister)			Date of Decision: 18th June 2007

Law Drafting Instructions - Recommendations of the Financial Action Task Force on Money Laundering.

Drafting Instructions

Prepared by the Law Officers’ Department on behalf of the Minister for Treasury and Resources

Abandoning the List of Designated Countries and Territories

1. Objective

1.1 The Law Draftsman is instructed to prepare draft amendments to the Laws and Regulations listed at paragraph 1.7 below. The amendments will have the effect of broadening Jersey’s ability to provide assistance to other jurisdictions. It is thought that this amendment is necessary in order to ensure Jersey is assessed as being fully compliant with Recommendation 38 of the Financial Action Task Force (“FATF”) on Money Laundering during the International Monetary Fund (“IMF”) Assessment in the second quarter of 2008.

1.2 Recommendation 38 of the FATF Recommendations is as follows:

“Recommendation 38

There should be authority to take expeditious action in response to requests by foreign countries to identify, freeze, seize and confiscate property laundered, proceeds from money laundering or predicate offences, instrumentalities used in or intended for use in the commission of these offences, or property of corresponding value. There should also be arrangements for co-ordinating seizure and confiscation proceedings, which may include the sharing of confiscated assets.”

1.3 The FATF Methodology for Assessing Compliance with the 40 Recommendations and 9 Special Recommendations, which is designed for use by assessors when preparing their reports and expands on the text of the Recommendation, states the following:

“There should be appropriate laws and procedures to provide an effective and timely response to mutual legal assistance requests by foreign countries related to the identification, freezing, seizure or confiscation of:

(a) laundered property from,

(b) proceeds from,

(d) instrumentalities intended for use in,

the commission of any ML, FT or other predicate offence.”

1.4 Both the full text of the FATF Recommendations and the Methodology can be obtained online at the address below. Copies of Recommendation 38 and the relevant extract from the Methodology are included with these instructions.

http://www.fatf-gafi.org/pages/0,2987,en_32250379_32235720_1_1_1_1_1,00.html

1.5 Currently the provision of assistance to another jurisdiction to enable the enforcement of external confiscation orders under the Proceeds of Crime (Jersey) Law, 1999 (“POCL”) and the Drug Trafficking Offences (Jersey) Law, 1988 (“DTOL”), the enforcement of external restraint or forfeiture orders under the Terrorism Law, 2002 (“TL”) or the enforcement of overseas forfeiture orders under the Criminal Justice (International Co-operation) (Jersey) Law, 2001 (“CJICL”) is conditional on that jurisdiction being listed, in the relevant Regulations, as a designated country or territory to whom assistance can be given.

1.6 Whilst the notion of providing assistance to only designated countries or territories is unlikely to receive adverse comment by the IMF, the list of designated countries has not been kept up to date in recent years and this could receive adverse comment during the IMF Assessment. Whilst compliance with FATF Recommendation 38 could probably be achieved by updating the list of designated countries or territories it is thought that the better solution would be to abandon the list of countries and offer assistance to jurisdictions on a case by case basis. Indeed this is the approach that has been adopted in regards to the UK legislation, on which the relevant Jersey legislation was originally based.

1.7 The objective of the amendments therefore is to change the system so that the provision of assistance is no longer conditional on countries or territories being designated and instead to enable applications for assistance from any jurisdiction to be considered. The Attorney General should be apply to apply to the Court, on behalf of any jurisdiction, for the requisite assistance and it should be a discretionary matter for the Court to consider whether such assistance should be given on a case-by-case basis.

1.8 The following Laws and Regulations will require amending in order to

achieve this objective:

· Drug Trafficking Offences (Jersey) Law, 1988 (“DTOL”)

· Drug Trafficking Offences (Designated Countries and Territories) (Jersey) Regulations, 1997 (“the 1997 Regulations”)

· Proceeds of Crime (Jersey) Law, 1999 (“POCL”)

· Proceeds of Crime (Designated Countries and Territories) (Jersey) Regulations, 1999 (“the 1999 Regulations”)

· Terrorism (Jersey) Law 2002 (“TL”)

· Terrorism (Enforcement of External Orders) (Jersey) Regulations, 2003. (“the 2003 Regulations”)

· Criminal Justice (International Co-operation) (Jersey) Law, 2001 (“CJICL”)

· Criminal Justice (International Co-operation) (Jersey) Regulations, 2001 (“the 2001 Regulations”)

2. Equivalent position in English law

2.1 The current policy in the UK, as alluded to above, is not to have designated territories. The Explanatory Note to the Proceeds of Crime Act 2002 (“POCA”) includes the following information relating to s.444 of the POCA:

Under current legislation, assistance in freezing property and enforcing overseas orders may only be granted to countries and territories which have been “designated” for the purpose. Section 444 dispenses with the designation procedure and has been constructed so that asset recovery assistance can, like other forms of judicial co-operation under the Criminal Justice (International Co-operation) Act 1990 be granted to an external jurisdiction without the need for the country concerned to be designated.

2.2 Section 444 of the POCA provides that,

“Her Majesty may by Order in Council –

(a) make provision for a prohibition on dealing with property which is the subject of an external request;

(b) make provision for the realisation of property for the purpose of giving effect to an external order.”

2.3 The relevant Order made in accordance with s.444 of the POCA is the

Proceeds of Crime Act 2002 (External Requests and Orders) Order

2005, SI 2005/3181 (“the 2005 Order”). The 2005 Order can be viewed online at the address below. A copy of the 2005 Order has not been included with these instructions because not only is it very lengthy but it is also thought unlikely that it will provide the Law Draftsman with any precedent for the amendments sought to the Jersey legislation.

http://www.statutelaw.gov.uk/legResults.aspx?LegType=S.I.+(All+UK)&Year=2005&number=3181&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&TYPE=QS&NavFrom=0&activeTextDocId=2094329&PageNumber=1&SortAlpha=0

2.4 It should also be noted that the Criminal Justice (International Co-operation) Act 1990 has continued to provide for designated countries and territories in its secondary legislation, the most recent of which is the Criminal Justice (International Co-Operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) Order 2005, despite what the extract from the Explanatory Note to s.444 of the POCA states above.

2.5 This discrepancy was queried with Matthew Pyne (“MP”) from the Home Office, to ascertain whether there was a policy reason for retaining designated territories in the 2005 Order (and the 2001 Order). MP advised that the lists of designated territories probably include every jurisdiction, because the intention is to provide assistance on a global basis. The only possible explanation MP could offer as to why, notwithstanding the comments in the Explanatory Note to the 2002 Act, countries were designated in the 2005 Order (at a time when the provision that provides the vires for the 2005 Order was being amended for other purposes, and so could have been amended for the purpose of removing the list of designated territories), was that the proceeds of crime, international co-operation and terrorism legislation had been dealt with by three different sections of the Home Office and this lack of unity may have resulted in this anomaly.

2.6 Overall, however, the proposed amendments to the relevant Laws and

Regulations would be consistent with the approach taken in the POCA

and the UK’s stated policy in relation to international co-operation.

3. Summary

3. The Law Draftsman is instructed to prepare draft amendments to the legislation listed at paragraph 1.7 above so as to remove all references to designated countries and territories. The objective of the amendments is to enable applications for assistance from any jurisdiction to be considered and for the provision of assistance to no longer be conditional on countries and territories being designated. The Attorney General should be apply to apply to the Court, on behalf of any jurisdiction, for the requisite assistance and it should be a discretionary matter for the Court to consider whether such assistance should be given on a case-by-case basis.

Any questions arising from these instructions should be referred in the first instance to Caroline Dutôt, Assistant Legal Adviser, Law Officers’ Department.