- Introduction
1.1 Law drafting is required to provide for the office of the Official Analyst (OA) and associated functions in a new standalone law. Consideration has been given to whether it would be appropriate to include provisions governing the Official Analyst under the Medicines (Jersey) Law 1995. It is suggested that a standalone law may be more appropriate, given that the Official Analyst performs statutory functions under several laws and that, in practice, he or she is required to analyse a wide range of samples including water, medicines, food and forensic samples of human matter such as blood and urine. However, this is, ultimately, a decision for the Legislative Drafting Office.
1.2 The Corporate Services Scrutiny Panel, in its report accompanying the third amendment to the draft Public Finances (Jersey) Law 201- (p.28/2019), stated that if an appropriate alternative proposal is brought to the States Assembly, the office of the OA could be removed from Schedule 1 of the Public Finances (Jersey) Law 2019.[1] As the legislative amendments requested below will guarantee the professional independence and impartiality of the office of the Official Analyst, at the point at which the new law comes into force, the OA should be removed from the list of Non-Ministerial Departments under Schedule 1 of the Public Finances Law.
- Background
2.1 Work is currently ongoing to develop a new Food Safety Law, to replace the current Food Safety (Jersey) Law 1966 (the “1966 Law”). As part of this work, consideration has been given as to whether the new Law should still provide the statutory basis for the Official Analyst. The OA is currently established under Article 2 of the 1966 Law (see Appendix).
2.2 It is important to note that the role of Official Analyst has evolved since it was first established, in 1884, and the role no longer centres on food. The incumbent Analyst has confirmed that very few food samples have been submitted in recent years by Environmental Health Officers. Instead, food samples are sent directly to the appropriate accredited UK laboratories. This is not to say, however, that the OA in Jersey couldn’t provide analysis on food samples if requested to do so. Few food samples are now submitted to the Official Analyst, so it is not economical to maintain sufficient equipment and experience to provide valid results on – what would be – an ad-hoc basis.
2.3 The role is referenced in numerous other pieces of legislation and can involve work relating to, for example, fertilisers and feeds, road traffic incidents, gas, water and medicines. All have relied on an appropriately qualified analytical chemist to provide impartial scientific advice in a wide range of areas.
2.4 The legislation which references the OA, in addition to the 1966 Law, is the:
- Food Safety (Analyses) (Jersey) Order 1967;
- Jersey Gas Company Law 1989;
- Medicines (Jersey) Law 1995;
- Medicines (Aristolochia, Mu Tong and Fangji) (Prohibition) (Jersey) Order 2002;
- Medicines (Certificates of Analysis) (Jersey) Order 1997;
- Medicines (Kava-kava) (Prohibition) (Jersey) Order 2003
- Medicines (Prescription Only) (Jersey) Order 1997;
- Misuse of Drugs (Designation) (Jersey) Order 1989;
- Misuse of Drugs (General Provisions) (Jersey) Order 2009;
- Public Finances (Jersey) Law 2019;
- Rehabilitation of Offenders (Exceptions) (Jersey) Regulations 2002; and
- Road Traffic (Jersey) Law 1956.
2.5 In addition to the review of the 1966 Law, in March 2019, the Council of Ministers (CoM) commissioned a review of the governance of the Government of Jersey’s (GoJ) regulatory functions in order to establish the extent to which existing arrangements accord with the Organisation for Economic and Commercial Development (OECD) best practice principles.[2] The findings of this wide-ranging review were presented to and accepted by CoM on 15 January 2020.
2.6 This review also considered several other GoJ independent functions where queries have been raised about their status. As a result, the role and functions of the OA were included in the review. In relation to the OA, CoM accepted the review’s recommendations that:
a) the OA should be moved out of the Department for Justice and Home Affairs (JHA) to a non-operational department to create appropriate separation for operational functions. The non-operational department will be Strategic Policy, Planning and Performance;
b) a new standalone law should be brought forward to provide for the office of the OA and associated functions. The new law should set out that the OA is an independent function and at the point at which the new law comes into force, the OA should be removed from Schedule 1 of the Public Finances (Jersey) Law 2019 (i.e. they will no longer be required to be a non-Ministerial Department); and
c) the OA should be included on a schedule of officer holders to whom conduct and disciplinary proceedings arrangements would apply. This schedule will be included under the Employment of States of Jersey Employees (Jersey) Law 2005 (the “2005 Law”), and the Law amended to provide for transparency and independence in disciplinary proceedings undertaken in relation to office holders listed in the schedule.
2.7 These law drafting instructions are intended to give effect to recommendation b), above, only. It should be noted that recommendation a) was enacted in accordance with the decision of CoM in 2020, when the office of the Official Analyst was placed under the Department for Strategic Policy, Planning and Performance.
- Purpose of the New Law
3.1 The purpose of the new law is to replace Article 2 of the 1966 Law and to establish the role of the Official Analyst in separate, standalone legislation. The new law will set out:
- the process of appointing and dismissing the Official Analyst;
- the functions and independence of the OA; and
- the resourcing of the office of the OA.
- Appointment and Dismissal of the Official Analyst
4.1 The Chief Minister will be responsible for appointing the OA – a responsibility which is currently exercised by the Minister for Treasury and Resources. This is consistent with the position under legislative provisions underpinning certain other independent bodies and functions, including the appointment of the Chief Statistician (under the Statistics and Census (Jersey) Law 2018). The appointment of the Official Analyst must be conducted in a process which is overseen by the Jersey Appointments Commission. The Chief Minister must therefore be placed under a duty to consult with and to take into account the views of the Jersey Appointments Commission.
4.2 It is intended that the OA will be employed by the States Employment Board and that their appointment will be overseen by the Jersey Appointments Commission. Article 2 of the States of Jersey (Appointment Procedures) (Jersey) Law 2018 should continue to apply to the appointment of the OA. This will ensure that the Chief Minister provides the States Assembly with at least 2 weeks’ notice of his or her intention to appoint the OA upon completion of the recruitment process.
4.3 The role of the Official Analyst is a specialist position. Under UK legislation, public analysts must hold a Mastership in Chemical Analysis awarded by the Royal Society of Chemistry.[3] There are currently fewer than thirty individuals who have attained this qualification (including the current Official Analyst). It should be a requirement under the new law that the Chief Minister may only appoint an individual as Official Analyst if they:
- hold a Mastership in Chemical Analysis awarded by the Royal Society of Chemistry; or
- demonstrate a similar level of knowledge, skill and experience in analytical chemistry and microbiological examination in the context of assessing compliance with the functions of the Official Analyst under Jersey legislation and hold a qualification specifically in analytical chemistry.
4.4 If the Chief Minister determines that it is reasonable to appoint someone who does not hold a Mastership in Chemical Analysis, there should be a further requirement for him of her to set out the reasons why he or she determined it is reasonable to appoint someone who does not hold a Mastership in Chemical Analysis by an instrument in writing/Ministerial Decision.
4.5 As the name and nature of the relevant qualification may change in future, the required qualification for appointment as Official Analyst should be amendable by Order.
4.6 Article 2(5) of the 1966 Law should not be replicated under the new law – it should be deleted. The rationale for including a provision to prevent a person who is engaged in the sale of food in Jersey from being employed as the OA under the 1966 Law was sound, when the major role of the OA was to analyse food samples. However, given the specialist nature of the OA’s role and that the analysis of food is no longer the main function of the role, this is no longer relevant. There may, however, be a requirement for statutory restrictions to be imposed on individuals who are engaged directly or indirectly in certain businesses from being appointed as OA, in future. The Chief Minister should be provided with a power to prescribe by Order certain business or trade activities from which the OA is prohibited from engaging directly or indirectly in. Restrictions on the roles and work that the OA can undertake may also be imposed contractually through his or her contract of employment.
4.7 The legislation should provide that the Chief Minister may dismiss the Official, but only if he or she:
- is incapacitated by physical or mental illness;
- has failed to discharge his or her statutory functions without reasonable excuse; or
- has behaved in a way that is not compatible with his or her continuing in office.[4]
4.8 Aside from the above stipulation, the new law which establishes the OA should remain silent on the process for removing him or her from office. It is envisaged that this statutory process will be set out under the Employment of States of Jersey Employees (Jersey) Law 2005 (the “2005 Law”) and will, in addition, be applicable to a range of office holders which will be specified under that Law. The Legislative Drafting Office (LDO) will be furnished with separate law drafting instructions to request the above amendments in due course. The intention is that in the meantime, the dismissal of the Official Analyst would be governed by their contract for employment with the States Employment Board. The LDO is requested to be mindful of this and ensure that the new law does not preclude the application of a statutory disciplinary process under the 2005 Law to the OA.
4.9 As under Article 2(3) of the 1966 Law, if, for any of the reasons set out in paragraph 4.7, above, the OA is removed from office, the Chief Minister must notify the States Assembly as per Article 3 of the States of Jersey (Appointment Procedures) (Jersey) Law 2018.
- Functions and Independence of the Official Analyst
5.1 As noted in paragraph 2.4, above, the statutory functions of the Official Analyst are and will continue to be provided for under a wide range of legislation. Currently, the OA’s legal responsibilities vary from analysing medicinal products (Article 100(1) of the Medicines (Jersey) Law 1995) to verifying the proportion of alcohol or drugs present in samples taken from defendants in road traffic accidents (Article 34(b) of the Road Traffic (Jersey) Law 1956).
5.2 However, the new law should provide that the Official Analyst has the broad function of using his or her scientific knowledge and expertise in chemical and microbiological analysis to investigate and advise in matters of law and order, public health and safety, environmental protection, consumer interests and other government policies and functions. The new law should not limit the ability of the OA to take on specific statutory and non-statutory functions in future within this broad remit.
5.3 The professional independence of the Official Analyst should be safeguarded in law. This is because the samples which the OA is required to analyse are often used by the prosecution and/or the defence in legal proceedings. It is crucial that the Official Analyst can present his or her findings based purely on the evidence before them, without fear or favour – including in cases where the evidence may point to failings by public authorities. The law should, therefore, establish that the Official Analyst is professionally independent when exercising his or her functions under Jersey Law. This would include when undertaking any scientific analysis and in presenting the findings of that analysis, regardless of whether the Law imposed a duty on the OA to undertake that analysis, as this is the general function of the OA as set out under paragraph 5.2, above.
5.4 To enable the Official Analyst to provide information to the Chief Minister on matters which he or she thinks the Chief Minister should be aware of, the Official Analyst should have the power to report to the Chief Minister on any matter related to his or her functions. Equally, the Chief Minister may at any time request the Official Analyst prepare a report on any matter related to his or her functions. When he or she is requested to report on a matter, the Official Analyst must prepare and provide the report to the Chief Minister as soon as is practicable.
- Office of the Official Analyst
6.1 As the independence of the OA will now be underpinned in the new law, it will no longer be necessary for the Office of the Official Analyst to hold the status of a Non-Ministerial States Body. It should therefore be removed from Schedule 1 of the Public Finances (Jersey) Law 2019.
6.2 To guarantee that the Official Analyst and his or her office is properly resourced in future, the new law should place a duty on the Chief Minister to this effect. Paragraph 9(1) of the Schedule to the Commissioner for Children and Young People (Jersey) Law 2019 places a duty on the States to ensure that the Children’s Commissioner is provided with sufficient resources to enable her or him to fulfil their statutory functions. A similar provision is required to enable the States to resource the Official Analyst to discharge his or her functions under this law and any other legislation free from political interference.
Paragraph 9, Schedule to the Commissioner for Children and Young People (Jersey) Law 2019 (1) The States must ensure that the Commissioner is provided with such financial and administrative resources, and other support, including staff, services, equipment and accommodation, so as to enable the Commissioner to discharge his or her functions under this Law, or under any other enactment, properly and effectively. (2) To the extent that any States’ employee (within the meaning of the 2005 Law), while provided under sub-paragraph (1), performs a function under the direction of the Commissioner, the employee is to be treated as a member of the Commissioner’s staff for the purposes of this Law. |
6.3 As with the office of the Children’s Commissioner, as provided under Paragraph 9(2) of Schedule 1 to the Commissioner for Children (Jersey) Law 2019, those employed in the office of the OA should be treated as a member of his or her staff.
6.4 The OA should have the power to delegate any of his or her functions under this or any other enactment to an officer in his or her office. The Chief Statistician has such a power under Article 3(3) of the Statistics and Census (Jersey) Law 2018. This power may extend to enabling the Official Analyst to designate a deputy Official Analyst.
6.5 There should also be a power for the Chief Minister to appoint an officer to deputise for the Official Analyst. This should be different to the power for the Minister for Treasury and Resources to appoint officers to deputise for the Official Analyst under Article 2(4) of the 1966 Law. The legislation should provide that in the event that the Official Analyst is incapacitated, dies in office, is subject to disciplinary proceedings, resigns and no replacement has been appointed, or is unable to perform his or her duties for any reason, the Chief Minister may appoint an acting Official Analyst. The acting Official Analyst shall be responsible for fulfilling all of the functions of the Official Analyst under the Law. This is simply to ensure that the statutory functions of the OA can continue to be exercised until a permanent appointment can be made.
6.6 The Official Analyst must produce an annual report on the performance of his or her functions during each financial year. The report must include a review of the work undertaken by the office of the Official Analyst and the functions discharged by the Official Analyst. As part of the annual report there must be an accountability report by the Official Analyst, a statement of his or her responsibilities, a governance report and a remuneration and staff report. The Chief Minister should be able to prescribe the information which the annual report must contain by Order so that this provision can be more easily amended in future.
6.7 The report must also include the accounts for the office of the Official Analyst. The Official Analyst must be required to keep proper accounts and proper records in relation to the accounts, as well as to prepare these annually. Similar provisions to those contained under paragraph 12(4), (5) and (6) of Schedule 2 to the Regulation of Care (Jersey) Law 2014 are required. This is to require that the accounts of the office of the Official Analyst are audited and prepared in accordance with generally accepted accounting principles. This should also allow the Minister for Treasury and Resources to make further stipulations about the contents of the Official Analyst’s accounts by Order.
6.8 The annual report, including accounting information, must be presented to the Chief Minister not later than as soon as practicable after the end of the financial year to which it pertains. The Chief Minister must then lay a copy of the report as soon as practicable before the States.
- Transitional Arrangements
7.1 It is important to ensure that the new law retains the Official Analyst role, previously established under the 1966 Law – it does not establish it anew. This legislation should in no way prevent the current OA – appointed under the 1966 Law – from continuing in the role.
7.2 The Official Analyst established under the new legislation should be deemed to be the successor body/the same body for the purposes of fulfilling statutory duties of the Official Analyst listed under any other enactments.
- Limitation of Liability
8.1 The legislation should limit the OA’s liability and those working under his or her direction when acting in pursuance of its functions. It should not be possible to sue the OA, or those supporting him or her in pursuing their functions, unless it has acted in bad faith or has acted in breach of Article 7(1) of the Human Rights (Jersey) Law 2000.
8.2 Article 40 of the Regulation of Care (Jersey) Law 2014 which limits the liability of the Jersey Care Commission could equally be applied to the OA under the new legislation. This sort of provision has been applied widely to statutory bodies in Jersey.
- Consequential Amendments
9.1 As stated in paragraph 7.1, above, when the new law comes into force, the OA should be deleted from Schedule 1 of the Public Finances (Jersey) Law 2019. The independence and resourcing of the OA will be provided for under the new law.
9.2 The Official Analyst is referenced in several laws. The following provisions should be amended to reference back to the new law:
- Article 65(7) Jersey Gas Company Law 1989;
- Article 1(1) Medicines (Jersey) Law 1995;
- Schedule 2 Part 1, Column 1, 2(a) Medicines (Prescription Only) (Jersey) Order 1997;
- Schedule Part 2, 6(b)(i) Misuse of Drugs (Designation) (Jersey) Order 1989;
- Article 2(5)(b) Misuse of Drugs (General Provisions) (Jersey) Order 2009;
- Article 6(4)(g) Misuse of Drugs (General Provisions) (Jersey) Order 2009;
- Regulation 8(3) Rehabilitation of Offenders (Exceptions) (Jersey) Regulations 2002; and
- Article 34(6) Road Traffic (Jersey) Law 1956
9.3 The above provisions have been listed to assist the LDO. There may be further, relevant provisions which require consequential amendment, subject to LDO advice.
9.4 Prior to the conclusion of the ongoing work to update the Food Safety Law 1966, at the same time as repealing Article 2 of the 1966 Law, the interpretation under Article 1(1) should be amended to refer to the new legislation.
- Commencement
10.1 The new legislation should come into force 7 days after the day on which it is registered.
Appendix – Article 2 of the Food Safety (Jersey) Law 1966
“2 Official Analyst
(1) The Minister for Treasury and Resources shall appoint an officer, to be known as the Official Analyst, to perform the functions entrusted to that officer by or under this Law, or by or under any other enactment.
(2) Article 2 of the States of Jersey (Appointment Procedures) (Jersey) Law 2018 shall apply to the appointment of the Official Analyst.
(3) If the Official Analyst is found guilty of any malpractice, or is considered to be incapable or, for any other reason unsuitable, for the appointment, the Minister for Treasury and Resources may remove the Official Analyst from office and Article 3 of the States of Jersey (Appointment Procedures) (Jersey) Law 2018 shall apply to the removal.
(4) The Minister for Treasury and Resources shall appoint one or more officers to deputise for the Official Analyst in the event of the Official Analyst’s illness, incapacity or absence, or in the event of a vacancy in the office of Official Analyst, and an officer so appointed shall, while so deputising, perform the same functions as the Official Analyst.
(5) No person who is engaged, directly or indirectly, in any trade or business connected with the sale of food in Jersey shall be appointed under this Article.”
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