European Union Legislation (Implementation) (Jersey) Law 201-

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While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.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 12 December 2013:

Decision Reference: MD-C-2013-0145
Decision Summary Title :	Draft European Union Legislation (Implementation) (Jersey) Law 201- lodging		Date of Decision Summary:	12th December 2013
Decision Summary Author:	External Relations		Decision Summary: Public or Exempt? (State clauses from Code of Practice booklet)	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:
Written Report Title :	Draft European Union Legislation (Implementation) (Jersey) Law 201-		Date of Written Report:	27th November 2013
Written Report Author:	External Relations		Written Report : Public or Exempt? (State clauses from Code of Practice booklet)	Public
Subject: Draft European Union Legislation (Implementation) (Jersey) Law 201- lodging
Decision(s): The Minister for External Relations decided to lodge au Greffe the draft European Union Legislation (Implementation) (Jersey) Law 201-.
Reason(s) for Decision: The draft Law repeals and replaces the European Communities Legislation (Implementation) (Jersey) Law 1996 (“the 1996 Law”), to improve and update the powers to give effect in Jersey to EU legislation, particularly sanctions, whether or not that legislation is directly applicable to Jersey under Protocol 3 to the Treaty of Accession by which the United Kingdom joined the then European Economic Community. It also amends and renames the European Communities (Jersey) Law 1973, and amends references to Europe in other enactments, to reflect the Treaty of Lisbon, replacing the European Communities with the European Union.
Resource Implications: There are no manpower or financial resource implications arising for this legislation.
Action required: Chief Minister’s Department to request the Greffier of the States to arrange for the draft Law and Report to be lodged ‘au Greffe’.
Signature:		Position: Minister for External Relations
Date Signed:		Date of Decision (If different from Date Signed):

European Union Legislation (Implementation) (Jersey) Law 201-

REPORT

Draft European Union Legislation (Implementation) (Jersey) Law 201-

Since 1996 a number of important changes have taken place with regard to the European Union (EU), most notably implementation of the Treaty of Lisbon, which entered into force on 1 December 2009. The Treaty makes significant amendments to the Maastricht Treaty (also known as the Treaty on European Union) and the Treaty establishing the European Community (‘TEC’; also known as the Treaty of Rome, now renamed as the Treaty on the Functioning of the European Union, ‘TFEU’).

It is necessary to replace certain references in Jersey law to the previous treaties and to update a number of provisions relating to subsequent treaties.

The draft Law repeals and replaces the European Communities Legislation (Implementation) (Jersey) Law 1996 (“the 1996 Law”), to improve and update the powers to give effect in Jersey to EU legislation, particularly sanctions, whether or not that legislation is directly applicable to Jersey under Protocol 3 to the Treaty of Accession by which the United Kingdom joined the then European Economic Community.

It also amends and renames the European Communities (Jersey) Law 1973, and amends references to Europe in other enactments, to reflect the Treaty of Lisbon, replacing the European Communities with the European Union. An amendment to Article 2 of the 1973 Law is to remedy inconsistency in the practical implementation of the legislation.

The opportunity has been taken to clarify the circumstances and the extent to which the States may by Regulations, and the Minister may by Order, introduce legislation to give effect to any EU provision. The draft law will also clarify the effect of ambulatory references, facilitate the speedy and effective implementation of EU sanctions measures, and clarify the interpretation of expressions used in the legislation.

Resources

There are no manpower or financial resource implications arising from this Law.

Human Rights Note

These notes have been prepared in respect of the draft European Union Legislation (Implementation) (Jersey) Law 201- by the Law Officers’ Department. They summarise the principle 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.

Articles 2 and 3 of the draft potentially engage Article 1 of the First Protocol of the ECHR (“A1P1”) which guarantees the right to property.

A1P1 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 of to secure the payment of taxes or other contributions or penalties.”

The draft law is, prima facie, unlikely to directly engage the rights afforded by the ECHR because it is a law providing for legislative process rather than provisions accommodating policy outcomes which may specifically engage A1P1. However, it is likely that the provisions in the draft Law will affect items which may be deemed to be “possessions” under the ECHR. Such “possessions” include moveable and immovable property and encompass “financial services” businesses. Accordingly, such businesses and their associated products are “property” for the purposes of A1P1.

Articles 2(1) and 2(2) of the draft Law provides an ability for the Minister to give effect to certain EU provisions by Order and for the States to give effect to any EU provisions by Regulation. The aim of these secondary measures may include the imposition of an obligation or prohibition in respect of financial services business undertaken with a connection to Jersey as set out in Article 3(3). This means that the draft Law provides the ability for the Minister and the States to potentially deprive a person of their property, or interfere with their peaceful enjoyment of it. Although the respective Orders and Regulations would contain the further legislative detail, the powers granted to the Minister and States may have the effect of being an interference with property which, in order to be permissible, must (i) serve a legitimate objective in the public or general interest (ii) be proportionate to realising that objective and (iii) comply with the principle of legal certainty.

Accordingly, the objective behind the draft Law can be identified as maintaining consistency with EU standards and is held to be a legitimate aim within the scope of A1P1. Given the importance of this objective, the interference with the A1P1 rights can thus be regarded as proportionate. Finally, the scope of the interference provided for in Articles 2 and 3 constitute a clear and precise legislative statement with no obvious room for ambiguity. Accordingly, the interference instigated by Articles 2 and 3 is ‘in accordance with the law.’

Therefore, Articles 2 and 3 of the draft Law (i) serve a legitimate objective in the public or general interest, (ii) are proportionate, and (iii) comply with the principle of legal certainty.”