Rehabilitation of Offenders (Jersey) Law 201-: Amendment: Law Drafting Request

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While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.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 2 July 2013:

Decision Reference: MD-HA-2013-0040
Decision Summary Title :	Amendment to the Rehabilitation of Offenders (Jersey) Law 2001 – law drafting request		Date of Decision Summary:	25 June 2013
Decision Summary Author:	Executive Officer Home Affairs		Decision Summary: Public or Exempt? (State clauses from Code of Practice booklet)	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:	n/a
Written Report Title :	Amendment to the Rehabilitation of Offenders (Jersey) Law 2001		Date of Written Report:	25 June 2013
Written Report Author:	Executive Officer Home Affairs		Written Report : Public or Exempt? (State clauses from Code of Practice booklet)	Public
Subject: Amendment to the Rehabilitation of Offenders (Jersey) Law 2001 – law drafting request
Decision(s): The Minister requested that the Executive Officer, Home Affairs, liaise with the Law Draftsman to request an amendment to the Rehabilitation of Offenders (Jersey) Law 2001.
Reason(s) for Decision: The UK has recently inserted a new section into the UK Borders Act 2007, which has the effect of excluding immigration and nationality decision from the operation of the Rehabilitation of Offenders Act 1974. It is desirable that the Rehabilitation of Offenders (Jersey) Law 2001 be amended to contain the same provisions to give officers of the Jersey Customs and Immigration Service the same level of discretion when dealing with immigration and nationality matters as their counterparts in the UK.
Resource Implications: There are no additional resource or manpower implications for the Home Affairs Department arising from this decision.
Action required: The Executive Officer, Home Affairs, to liaise with the Law Draftsman to request that an amendment to the Law be drafted.
Signature:		Position: Minister for Home Affairs
Date Signed:		Date of Decision (If different from Date Signed):

Rehabilitation of Offenders (Jersey) Law 201-: Amendment: Law Drafting Request

Law drafting instructions

Amendment to the Rehabilitation of Offenders (Jersey) Law 2001

Background

The Solicitor General has recently brought to the attention of the Minister section 140 of the UK Legal Aid, Sentencing and Punishment of Offenders Act 2012, which inserts a new section, section 56A, into the UK Borders Act 2007 and has the effect of excluding immigration and nationality decisions from the operation of the Rehabilitation of Offenders Act 1974 (‘the 1974 Act’).

When a decision is being reached as to whether or not a person is suitable to be granted British citizenship or to be granted permission to enter or remain in the UK it is essential that information is available about that individual’s character and conduct. This amendment to the 1974 Act means that both spent and unspent convictions can be considered when such decisions are being made.

The new section 56A reads as follows:

56A No rehabilitation for certain immigration or nationality purposes

(1) Section 4(1), (2) and (3) of the Rehabilitation of Offenders Act 1974 (effect of rehabilitation) do not apply—

(a) in relation to any proceedings in respect of a relevant immigration decision or a relevant nationality decision, or

(b )otherwise for the purposes of, or in connection with, any such decision.

(2) In this section—

“immigration officer” means a person appointed by the Secretary of State as an immigration officer under paragraph 1 of Schedule 2 to the Immigration Act 1971,
“relevant immigration decision” means any decision, or proposed decision, of the Secretary of State or an immigration officer under or by virtue of the Immigration Acts, or rules made under section 3 of the Immigration Act 1971 (immigration rules), in relation to the entitlement of a person to enter or remain in the United Kingdom (including, in particular, the removal of a person from the United Kingdom, whether by deportation or otherwise),
“relevant nationality decision” means any decision, or proposed decision, of the Secretary of State under or by virtue of—

(a) the British Nationality Act 1981,

(b) the British Nationality (Hong Kong) Act 1990, or

in relation to the good character of a person.

(3) The references in subsection (2) to the Immigration Acts and to the Acts listed in the definition of “relevant nationality decision” include references to any provision made under section 2(2) of the European Communities Act 1972, or of EU law, which relates to the subject matter of the Act concerned.

Section 140 of the UK Act does not, however, impact on the Rehabilitation of Offenders (Jersey) Law 2001 (‘the 2001 Law’) which means that officers of the Jersey Customs and Immigration Service do not, technically, have the same level of discretion as their counterparts in the UK. Mindful that Jersey is part of the Common Travel Area and that there is no border control between Jersey and the rest of the British Isles, there ought to be parity between the jurisdictions. Accordingly, an amendment is required to the 2001 Law to enable all convictions, both spent and unspent, to be considered when dealing with immigration and nationality matters.

Guernsey have recently amended their Rehabilitation of Offenders Law to this effect with their Rehabilitation of Offenders (Bailiwick of Guernsey) (Amendment) Ordinance, 2013. A copy is attached for ease of reference.

It is anticipated that the amendment to the 2001 Law could be brought about by Regulations made under the Law.

Instructions

The Law Officers’ Department has assisted in the provision of the following information and they have suggested that the draftsman who is assigned this piece of work should liaise with Advocate Pallot or the Solicitor General in the first instance to discuss anything necessary to bring forward the draft amending provisions.

The exemption that needs to be created is one whereby the following Articles of the 2001 Law, relating to the effect of rehabilitation

Articles 7(1) and 7(2) – Effect of rehabilitation: subsequent judicial proceedings; and
Articles 10(1), 10(2) and 10(3) – Effect of rehabilitation: other circumstances

(the equivalent of sections 4(1), 4(2) and 4(3) of the 1974 Act) shall not apply in relation to any proceedings in respect of a relevant immigration decision or a relevant nationality decision or otherwise for the purposes of, or in connection with, any such decision.

“Immigration decision” in the Jersey context will mean any decision, or proposed decision, of the Lieutenant-Governor, an immigration officer, or the Minister for Home Affairs under the Immigration Acts (as extended) or Immigration Rules under s.3 of the Immigration Act 1971 (as extended), in relation to the entitlement of a person to enter or remain in Jersey (including, in particular, the granting of a work permit, or the removal of a person from Jersey, whether by deportation or otherwise).

“Immigration Acts” in the Jersey context will mean the Immigration Act 1971, the Immigration Act 1988, the Asylum and Immigration Act 1996, the Immigration and Asylum Act 1999, the Immigration, Asylum and Nationality Act 2006, and any other Acts relating to immigration control having effect for the time being in Jersey.

The equivalent references to any provision made under s.2(2) of the European Communities Act 1972, or of EU law, will be any provision contained in or arising under the Community Treaties or any Community instrument (in each case within the meaning of Article 1 of the European Communities (Jersey) Law 1973).

“Relevant nationality decision” in the Jersey context will mean any decision or proposed decision of the Lieutenant-Governor under, or by virtue of:

- The British Nationality Act 1981,

- The British Nationality (Hong Kong) Act 1990, or

- The Hong Kong (War Wives and Widows) Act 1996

In relation to the good character of the person.

The transitional provisions in the Guernsey Ordinance are a suitable precedent for the Jersey amending provisions, in that such provisions would apply in relation to convictions before, on, or after the commencement date. It is not clear whether transitional provisions can be made by Regulations, but the matter of vires could be discussed between the Law Draftsman’s Office and Advocate Pallot.

Note that s.141 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 provides for s.140 to apply in relation to convictions before the commencement date (as well as convictions on, or after, that date); this is whether or not, immediately before the commencement date –

(a) The person concerned is treated as a rehabilitated person for the purposes fo the 1974 Act in respect fo the conviction, or

(b) The conviction is treated for the purposes of that Act as spent.

However, s.140 does not affect

(a) Any proceedings which have begun, but are not completed, before the commencement date,

(b) Any applications for immigration or nationality decision made, but not finally determined, before the commencement date, or

(c) The validity of any proceedings, or any relevant immigration or nationality decision (within the meaning of the inserted section 56A) which is made before the commencement date.

The Jersey provisions would need to include the same end result.