Draft Explosives (Jersey) Law 201-
Report
Introduction
- Although the draft Explosives (Jersey) Law 201- replaces the Explosives (Jersey) Law 1970, the majority of provisions in the new law are contained in the current law. However, the law is being replaced because the 1970 Law is dated and the style and standard of law drafting has changed considerably. Although the 1970 Law contains 23 articles compared to 82 in the new law, the content is similar because individual articles have replaced sub-paragraphs to articles in the 1970 Law. For example, Articles 23 to 26 covering the storage of explosives in the draft law have replaced Article 4(1) to 4(7) in the 1970 Law.
- Because the provisions in relation to the import, manufacture, storage, use, transfer and movement of explosives are broadly similar, this report focusses on those aspects of the draft law that are either new or materially different.
Summary of New Provisions and Key Changes to the Existing Law
Definition of Explosives (Interpretation and Article 2)
- A great deal of consideration was given to the appropriate way to define explosives in such a manner that it would be as accessible as possible to the public but at the same time capture all explosives. There are now many more types and categories of explosive than there were in 1970. UK legislation relating to explosives defines them by reference to the United Nations Recommendations on the Transport of Dangerous Goods. On the basis that it would not be appropriate for Jersey to be out of synch with the rest of the British Isles, it was thought prudent to also refer to the UN Recommendations in line with the UK when defining explosives.
- Items that fall within the UN classification are listed on the UK Health and Safety Executive database of explosives and fireworks, which is updated as appropriate and can be found at:
http://www.hse.gov.uk/explosives/information/classification.htm.
- The database, which applies to all fireworks and explosives imported into, or transported within the UK (apart from military explosives) can be accessed online by registered users and holds details of thousands of individual explosives and fireworks. The Department took the view that any other method of defining explosives would be both inefficient to operate and impossible to keep up-to-date.
- In relation to the definition of fireworks, they are defined by reference to the current British Standard Specification (BS7114) or any Specification that subsequently replaces it.
Export of Explosives (Article 4(g) and Part 8)
- The draft Law continues to provide for the control of the import, manufacture, storage, use, transfer and movement of explosives by means of licences granted by the Minister for Home Affairs as in the 1970 Law, but it also introduces the new licensing requirement for the export of explosives.
- There is currently no provision for the export of explosives, presumably because it was never envisaged that Jersey would require such a need. However, there is sometimes a need to return explosives to the point of origin (Article 38(1)). Additionally, in recent years, there have been occasions when we have been asked to assist Guernsey with the provision of explosives. This may be because Guernsey have run out of explosives and it is quicker for them to import the explosives from Jersey or where Jersey has a surplus of explosives at the end of a particular project and they are of use to Guernsey. Further, there is sometimes a business need to take fireworks out of the Island.
Reloading Powder (Article 5)
- Because of the importance to shooters in the Island, it was decided that it would be helpful for the provisions relating to reloading powder to be put into one article, rather than being dealt with in various different articles as is the case under the 1970 Law.
- Currently, under the 1970 Law, a holding of up to 4kgs of reloading powder is permitted by virtue of the Code of Requirements (CoR), which states at 1.12:
`Except for private use where a maximum of 4 kg of small arms propellant only may be kept, all other storage accommodation for explosives must be licensed by the Minister.’
- The Minister has agreed that there should continue to be a general exemption from the requirement to have a licence / certificate in relation to holdings of 4kgs or less of reloading powder. This general dispensation, relating to adults will be done formally by Ministerial Order. The dispensation will cover not only the storage of up to 4kgs of reloading powder, but also the storage, use, transfer and movement thereof. See Articles 23(3)(b), 27(2)(a), 30(4)(a) and 33(3)(a) respectively. The Ministerial Order will set out, inter alia, the requirement for the safe storage of the reloading powder and the manner in which it should be stored.
- It was further agreed (MD-HA-2011-0078 refers) that there should be exemptions from the requirement to have a licence put into place in certain circumstances to enable people to hold more than 4kgs of reloading powder for use in a historical pageant, public display or other purpose. These details would be set out in a Ministerial Order. The rationale for the age of 17 in Articles 5(1) and 5(2) is that it aligns with the age at which a young person can purchase or hire firearms or ammunition under the Firearms (Jersey) Law 2000. Anyone over the age of 17 who requires more than 4kgs of reloading powder for the purposes set out above will be able to apply to the Minister for a certificate to exempt them from the requirements of the Law in respect of the storage, use, transfer and transport of reloading powder.
- It is not anticipated that the Ministerial Order will permit the holding by any one person of more than 10kgs of reloading powder, ie: the upper limit. The Ministerial Order will set out, inter alia, the requirement for the safe storage of the reloading powder and the manner in which it should be stored. Any person applying for a certificate to hold more than 4kgs of reloading powder may have their facilities for the storage of reloading powder inspected by an inspector, as defined under the Law, and the details of their address forwarded to the States of Jersey Fire and Rescue Service for awareness in case of a fire at the premises.
- Possession of a certificate to hold more than 4kgs of reloading powder means that an individual does not require a licence for its storage, use, transfer and movement. However, in accordance with Article 35, any vehicle in which more than 4kgs of reloading powder are being transported will need to have a warning sign displayed.
- There has been extensive consultation on these new provisions with the Jersey Firearms Council, the Muzzleloaders Association and the Firearms Law Liaison Group in order to determine practical and safe provisions in relation to holdings of reloading powder.
Exemptions (Article 9)
- The draft Law gives the Minister for Home Affairs new powers of exemption. These relate to small quantities of reloading powder (as detailed above), but also to matters that involve public safety, such as the destruction of wartime explosives by the EOD officer. They will also relate to other items that are in everyday use, such as seatbelt tensioners and airbags, which will be set out in a Ministerial Order.
Licence for the Storage of Explosives (Article 23)
- The Minister has agreed with the Comité des Connétables to add the Connétable of the relevant Parish to the distribution list for copies of storage and use licences that are issued under the Explosives Law. This will be included in the Codes of Practice issued under Article 73. Explosives licences for storage and use are issued on an annual basis and expire on the 31 December of the year in which they are issued. It should be borne in mind that in the case of the quarries, their magazines are normally almost empty on a daily basis. The quarries do not hold their maximum capacity other than on a day when they intend to blast and they bring the product in early the same morning from magazines at Crabbé. The explosives magazines are routinely inspected and licensed by the Explosives Licensing Officer.
Licence for the Movement of Explosives (Article 33)
- In response to a recommendation from the Education and Home Affairs Scrutiny Panel, the Minister has agreed that the Connétables of the Parishes through which lorries carrying explosives will travel will be added to 33(5), which details those people to whom a copy of the conveyance licence must be sent. The licence issued by the Minister details the route that the lorry must take, times of the day, and other important safety information.
Fireworks
- In relation to fireworks, the draft Law contains new provisions at Articles 44 to 53 for the States to create Regulations for the better protection of persons and animals (including the avoidance of anxiety and distress), and of property. These Regulation-making powers are based on those contained in the Fireworks Act 2003 (c.22) (UK).
- It is generally recognised at present that, whilst the retail sales of fireworks are covered in the current law, it is deficient regarding their wider supply and use, especially in relation to firework displays. Separate Regulations to cover all aspects of their supply, possession and use will be made; Articles 44 to 53 specify what the new Regulations will cover. These will be drafted whilst the new Law is receiving Royal assent and will be laid before the States prior to the Law being brought into force by Appointed Day Act.
Article 48 – Public fireworks displays
- The Minister has agreed with the Education and Home Affairs Scrutiny Panel to establish a system by virtue of which anyone wishing to hold a public fireworks display, of a description specified in Regulations, may have to obtain a licence from the Connétable of the relevant Parish. It is intended that there would be a dual system in which some categories of public display would simply have standard conditions attached to them, which would be set out in the Regulations, whilst others would require the Connétable to issue a licence with specific conditions. Consequently, in Article 48(2), the words ‘of a description specified in the Regulations’ have been added after the words ‘public fireworks displays’ so that it links in with 48(1).
Article 57 – Rights of appeal
- In relation to any application that is considered by a Connétable, for example an application for a licence for a public firework display or to sell fireworks, a first level of appeal to the Connétables will be included in the Regulations. It is intended that any person who is aggrieved by a decision made by a Connétable can give notice in writing that they wish to have their decision reviewed by the Comité des Connétables. The Chairman of the Comité des Connétables would then convene a panel of 3 Connétables (excluding the Connétable whose decision is the subject of the review) to review the decision. The appeal to the Royal Court would remain as a second line of appeal against the decision of the Connétables.
Financial and manpower implications
- There are no financial or manpower implications for the States arising from the adoption of this draft Law.
Human Rights
- The notes on the human rights aspects of the draft Law in the Appendix have been prepared by the Law Officers’ Department and are included for the information of States Members. They are not, and should not be taken as, legal advice.
APPENDIX TO REPORT
Human Rights Notes on the draft Explosives (Jersey) Law 201-
These Notes have been prepared in respect of the draft Explosives (Jersey) Law 201- (the “draft Law”) by the Law Officers’ Department. They summarise the principal human rights issues arising from the contents of the draft Law and explain why, in the Law Officers’ opinion, the draft Law is compatible with the European Convention on Human Rights (“ECHR”).
These notes are included for the information of States Members. They are not, and should not be taken as, legal advice.
The draft Law raises issues in respect of three rights provided in the ECHR: Article 1 of Protocol No.1 to the ECHR (“A1P1”)(right to the peaceful enjoyment of property); Article 8 of the ECHR (right to private and family life); and Article 6 of the ECHR (right to a fair trial). The reasons why the draft Law is compatible with each of these rights are set out briefly below.
A1P1 of the ECHR provides -
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
A1P1 has the potential to be engaged by provisions made in and under the draft Law that impose restrictions on the way in which explosives, as possessions, are used and so forth. A1P1 will also be engaged by some of the powers in Part 12 of the draft Law given to inspectors and to the Royal Court with regard to the inspection, seizure and forfeiture of explosives.
A1P1 is a qualified right, so if the interference can be justified then no breach of A1P1 occurs. Any interference with the peacefully enjoyment of property, whether as a control on the use property or a deprivation of property, must be in accordance with the law and achieve a fair balance between the means employed and the public interest pursued. States have considerable discretion (often referred to as their ‘margin of appreciation’) in determining what is in the general interest. However, as a deprivation of property usually has a more profound effect on the enjoyment of property than a control of use, the task of demonstrating that a deprivation is proportionate is more difficult and the margin of appreciation is smaller.
In general, the system for licencing and regulating the use of explosives detailed in the draft Law may amount to a control on the use of possessions. However, this regime pursues the vital public interest in protecting public safety and is proportionate to that aim. The powers of an inspector under the law to take a sample of an explosive and of a designated inspector to seize an explosive or to dispose of an explosive should also amount to a control on the use of property rather than a deprivation. However, even if they or the Royal Court’s power to order the forfeiture of explosives do amount to a deprivation of property, those powers can be justified as proportionate in the circumstances and in view of the safeguards applied to them. In particular, it is relevant to note that a designated inspector’s powers of seizure and disposal can only be exercised where the designated inspector reasonably suspects or believes that the explosives is defective and may constitute a danger to persons or property. Further that the forfeiture powers of the Royal Court are also limited to specific defined circumstances.
Accordingly, in so far as the provisions of the draft Law may constitute an interference with A1P1 rights, that interference can be justified as proportionate to the public
interest.
Article 8 of the ECHR provides –
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The powers of investigation and the associated means of obtaining evidence provided for in Articles 64 and 66 of the draft Law will engage Article 8 of the ECHR. These include, inter alia, the power to enter and inspect any premises, vehicle, vessel, hovercraft or aircraft in which an inspector has reasonable cause to believe there is or has been an explosive. They also include the power to inspect documents or records, to take copies and, if necessary, to remove them temporarily to do so.
It is well established that corporations, as well as private individuals, may rely on Article 8(1) ECHR rights in respect of business premises. It is also well established that searches of offices or other premises constitute an interference with the right to respect for private and home life. Further, as the documents that may be inspected, produced or seized using these powers may contain correspondence, the exercise of these powers may constitute an interference with the right to respect for correspondence.
Any interference with the right afforded by Article 8(1) ECHR must be justified in accordance with Article 8(2) ECHR if it is to be compatible with the Convention. In order to justify interference, it must be in accordance with the law, be in pursuit of a specified legitimate aim and be necessary in a democratic society. In other words it must be proportionate to that aim.
In this case such interference with Article 8 ECHR rights as is permitted by Part 12 of the draft Law would be deemed to be in accordance with the law. Further, the exercise of these enforcement powers should pursue a legitimate aim of protecting national security and public safety. The exercise of powers to require the disclosure of information and to enter and inspect premises should be seen as proportionate for his this purpose in view of the significant safeguards applied to them. The powers provided by Article 64 and 66 of the draft Law may only be exercised by persons who are appointed as, or who are deemed to be, “inspectors” under Article 61. Except in an emergency, the powers of entry and inspection in Article 64 are exercisable only in accordance with a warrant issued by the Bailiff or a Jurat under Article 65. When exercising their authority, inspectors are required to produce evidence of their authority. The extent of an inspector’s powers are clearly set out and limited and there are also requirements to issue receipts and records of an inspection.
The powers of inspection are, in view of these safeguards, capable of being justified as being in accordance with the law and proportionate to a legitimate aim.
Article 6 of the ECHR - guarantees procedural fairness in the course of civil proceedings and a right of access to a court for the determination of civil rights and obligations. It is generally accepted that decisions affecting the right to operate a business will qualify as an economic and property right, and therefore tend to give rise to a civil right. Therefore, where a Minister makes a decision to refuse to grant a licence or certificate, imposes conditions on the grant of a licence or certificate, or revokes or varies a licence or certificate, that decision may determine civil rights for the purposes of Article 6 of the ECHR.
Decisions that determine civil rights and obligations need not be made by bodies that provide all the procedural guarantees required by Article 6 of the ECHR, so long as there is a right of review or appeal sufficient to render the decision making process as a whole compatible with Article 6. Article 57 of the draft Law provides that an appeal against a decision in respect of a licence or certificate may be made to the Royal Court. The draft Law does not impose any restrictions on the jurisdiction of the Royal Court with respect to such an appeal and having heard the appeal, the Royal Court has the power in Article 60 to make such an order as it thinks fit as respects the licence or certificate. The draft Law is, therefore, compatible with Article 6 of the ECHR.”
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