Financial Services Ombudsman (Jersey) Law 2014: Law drafting instructions

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While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.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 on 2 November 2020

Decision Reference: MD-E-2020-0051
Decision Summary Title	Financial ombudsman law drafting instructions	Date of Decision Summary	24 October 2020
Decision Summary author	Lead Policy Advisor, Financial Services	Decision Summary: Public or exempt?	Public
Written Report title	Financial ombudsman law drafting instructions	Date of Written Report	24 September 2020
Written Report author	Lead Policy Advisor, Financial Services	Written Report: Public or exempt?	Public
Subject: Drafting instructions to amend the Financial Services Ombudsman (Jersey) Law 2014
Decision: The Minister approved drafting instructions to amend the Financial Services Ombudsman (Jersey) Law 2014.
Reasons for Decision: The drafting instructions are required for a change in the law that will provide greater flexibility for the future in the timing of the recruitment of board members of the Office of the Financial Services Ombudsman. It follows a request from the Chair of the Board of to extend the terms of existing board members by one year. This is required because the planned recruitment process for current members was disrupted by the Covid-19 pandemic and has not taken place.
Resource Implications: The decision will require to allocation of a Law Drafter’s time to draft minor amendments to the Financial Services Ombudsman (Jersey) Law 2014.
Action required: The Lead Policy Advisor, Financial Services is to inform the Principal Legislative Drafter of the decision.
Signature: Senator Lyndon Farnham		Position: Minister for Economic Development, Tourism, Sport and Culture
Date signed:		Date of Decision (If different)

Financial Services Ombudsman (Jersey) Law 2014: Law drafting instructions

Economic Development,

Tourism, Sport & Culture

Ministerial Decision – Written Report

Drafting instructions: Financial Services Ombudsman (Jersey) Law 2014 amendment to appointment to Board

Date: Thursday 24 September 2020

Author: Lead Policy Advisor, Financial Services

Summary

The Chair of the Financial Services Ombudsman, commonly referred to as the Channel Islands Financial Ombudsman (“CIFO”), has requested that a Board member’s term is extended by one year. In order to do this a law change is required, which is the matter of these drafting instructions.

The Board appointments expire on a rotational basis, so each member’s term expires one year after the previous. This is to ensure continuity. One Board member’s term of office is due to expire at the end of 2020, and the original proposal was to carry out a recruitment process. However, this has not happened due to the disruption caused by Covid-19. Originally the Chair had proposed to extend all Board members’ terms by a year. However, following conversations with representatives of the States of Guernsey, it is now proposed that the term of office for one member which term expires at the end of this year is extended, and any extension in relation to other members will be considered at the relevant time.

Regardless of the particular approach, an amendment to the Financial Services Ombudsman (Jersey) Law 2014 (“the Law”) is required. Schedule 1 of the Law states that “The Minister must, in the instrument appointing a board member, specify a period for that appointment of not less than 3 years”. An amendment is therefore required to appoint or reappoint a Board member for less than 3 years.

It is proposed to amend paragraph 1(8) so that it is possible to appoint a person for less than 3 years. Schedule 1 of the Law allows for this to be done by Regulations. It is however important to ensure that the Board member’s independence from Government and Ministers is preserved, and any change does not allow the Minister to influence Board members by using short-term extension of terms as leverage in return for any particular outcome with sits within the Board’s purview.

Equally, it is important to ensure that there remains appropriate flexibility, should any disruption similar to that experienced during 2020 happen again in the future, and the Chair considered that a short-term extension was in the best interests of the governance of CIFO. For example, whilst the initial driver behind the proposed amendment has been disruption caused by Covid-19, there may be reasons not related to Covid-19 which warrant an extension for fewer than three years, on the recommendation of the Chair, in the future.

It is therefore proposed that any appointment for fewer than three years is subject to the following conditions:

The power only applies to reappointments;
Where the reappointment is not for the Chair, the reappointment must be at the recommendation of the Chair where it is considered that a full new appointment is impracticable in the circumstances; and
Where the appointment is for the Chair, an extension of less than three years can only happen one time for that particular individual, where it is considered that a full new appointment is impracticable in the circumstances.