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While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.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 20 December 2013:

Decision Reference: MD-C-2013-0162
Decision Summary Title :	Draft Security Interests (Application of Law – Exceptions) (Jersey) Order 2013		Date of Decision Summary:	20th December 2013
Decision Summary Author:	Officer, Finance Industry Development, Financial Services		Decision Summary: Public or Exempt? (If 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 :	Order under the Security Interests (Jersey) Law 2012		Date of Written Report:	18th December 2013
Written Report Author:	Director, Finance Industry Development, Financial Services		Written Report : Public or Exempt? (If exempt, state clauses from Code of Practice booklet)	Public
Subject: Security Interests (Application of Law – Exceptions) (Jersey) Order 2013
Decision(s): The Deputy Chief Minister made the Security Interests (Application of Law – Exceptions) (Jersey) Order 2013
Reason(s) for Decision: Article 4 of the Security Interests (Jersey) Law 2012 (“the Law”) deals with the Application of the Law. Article 4A of the Law allows Security Interests to be prescribed to which, in all or any prescribed circumstances, any prescribed provision of this Law shall not apply or shall apply only to the extent prescribed. It is recommended that Article 4(a)(vii), (ix) and (x) are partially dis-applied as a result of advice received from the Security Interests Steering Group and the Chief Minister’s external subject matter expert.
Resource Implications: There are no manpower or financial implications arising from this decision
Action required: That the Minister signs and seal the Order and it be returned to the States Greffe for immediate publication as well as a request being made to the Greffier of the States to arrange for its notification to the States Assembly.
Signature:		Position: Deputy Chief Minister
Date Signed:		Date of Decision (If different from Date Signed):

Security Interests (Application of Law - Exceptions) (Jersey) Order 2013

FINANCIAL SERVICES

Chief Minister’s Department

5TH Floor, Cyril Le Marquand House, The Parade

St Helier, Jersey, JE4 8UL

Tel: +44 (0)1534 440449

ORDER UNDER THE SECURITY INTERESTS (JERSEY) LAW 2012

A: BACKGROUND & RECOMMENDATION

An issue has been identified in relation to various parts of Article 4(a) of the Security Interests (Jersey) Law 2012 (the “Law”) concerning the applicability of the Law to certain types of security interests with a foreign law dimension. Industry has requested that the Law should be amended in this complex area to give time for further reflection on the position with regards to such security interests. Consequently an Order titled the Security Interests (Application of Law – Exceptions) Jersey) Order 201- (the “Order”) has been drafted in order to dis-apply certain parts of the Law in relation to such security interests.

It is recommended that the Order is made by the Minister and details of such are published in the Gazette.

B: FURTHER BACKGROUND

This issue has arisen in the highly complex field of the juxtaposition of the conflict of laws and the Law. Throughout the initial policy deliberations consideration of when it is appropriate for Jersey legislation to have implications outside the jurisdiction caused significant discussion. This included the extent to which it is appropriate for Jersey law to apply to certain security interests or assignments where there is a foreign law element.

Articles 4(a)(ix), 4(a)(x) and 4(a)(vii) of the Law require, in certain circumstances, security interests governed by foreign law to be perfected in Jersey (by registration) to avoid non-recognition as a matter of Jersey law in the case of the bankruptcy of the grantor (Article 59 of the Law) and also to avoid a loss of priority in the case of a competing validly constituted Jersey security interest. At the time that the policy was formed, it was believed that in such cases the nexus with Jersey was sufficient to put relevant parties on notice.

However, it was acknowledged that these consequences may not be anticipated by foreign parties and could cause significant repercussions. After the new Law comes into force, where a person does not perfect a foreign law security interest under Jersey law the consequences could be that the interest cannot be enforced under Jersey law. The issue also extends to all past foreign law security interests.

The Law comes into force in relation to security interests on 2 January 2014. Industry is currently advising on new Law security agreements and the industry steering group has formed the view that it would be unwise for the provisions set out above to remain as they stand. The Chief Minister’s Department has carried out consultation on this issue with its adviser, Professor Sir Roy Goode QC and further consultation with members of industry. Professor Goode agrees with the majority view of industry that he would support there being further time to reflect on the ambit of the Law.

It is important that amendments to the Law are made before 2 January 2014. The suggested method is by amending Order to dis-apply parts of the Law to certain security agreements with a foreign law element with a subsequent amendment to the Law itself in due course.

C: RECOMMENDATION

It is recommended that the Order is made by the Minister and that details of such are published in the Gazette.

Director, Finance Industry Development

18 December 2013

1	SIL – Article 4 (a) – Law Drafting Instructions v.2 \| States of Jersey