Human Rights Committee and Statements of Compatability(P.78-2008)-amendment

STATES OF JERSEY

HUMAN RIGHTS COMMITTEE AND STATEMENTS OF COMPATIBILITY (P.78/2008): AMENDMENT

Lodged au Greffe on 24th June 2008 by the Chairmen's Committee

STATES GREFFE

HUMAN RIGHTS COMMITTEE AND STATEMENTS OF COMPATIBILITY (P.78/2008): AMENDMENT 1 P A GE 2 –

In paragraph (c), of the proposition, for the words "to agree that" substitute the words "to request the Privileges and Procedures Committee to consider whether", and delete paragraph (d).

CHAIRMEN'S COMMITTEE

REPORT

Following discussion with the Deputy of St. Martin, the Chairmen's Committee, at its meeting of 25th April 2008, agreed that the best way forward in this matter would be for an amendment to Article 16 of the Human Rights (Jersey) Law 2000 to be made. The Committee believes that it is incumbent on Ministers to be accountable and thus to make the necessary information available. In this respect the Committee is of the opinion that the matter should be given consideration by the Privileges and Procedures Committee, with the necessary report and proposition to be brought before the States.

In view of the above, the Committee believes that, as consideration of the amendment of Article 16 is the correct way to proceed, it does not support parts (a) and (b) (i) and (ii) of the proposition.

The reasons for this are as follows –

1. T h e Committeenotes the assertion of the Deputy of St. Martin that at the timeof the introduction of Ministerial Government and Scrutiny Panels in 2005, very little consideration wasgivento the oversight of human rights matters.However, whilst it is agreed that nospecific mention ofhuman rights wasmade, it believes that such matters are incorporated within Section 10 of P.79/2003 "Scrutinising primary legislation oncelodged "au Greffe" and Section 11of the same "Considering subordinate legislation".
2. T h e termsof reference of the Scrutiny Panels containedwithin Standing Orders,whichweredrawnup based on the above projet, and following a period ofShadow Scrutiny state –

"136: (c) t o sc rutinise draft Laws and draft subordinate enactments which are to be made by the

States and consider possible amendments to them, if appropriate".

3. A  ll draft Lawsor Regulations are referred to the chairman oftherelevant scrutiny panelunder Article 72

(2) of Standing Orders and any member of the States may propose, without notice, that the States request the panel to reconsider the decision. It is then incumbent on that Panel to consider whether that Law or Regulation merits further consideration. This initial Panel consideration includes consideration of the Human Rights Compatibility Statement as appropriate.

The Chairmen's Committee, consequently, believes scrutiny of Human Rights falls into the remit of the individual Panels. However, this would be as each Panel considers appropriate given its other work load. It is worth Members noting that the Committee is undertaking a review of scrutiny work undertaken in legislative scrutiny since January 2006 and the issue of Human Rights will be included in this.

4. F o r any viable scrutiny ofHuman Rights Compatibility statements tobe undertaken, an understandingof the rationale behindthedecision is essential.
5. T h i s, in turn,requires scrutiny panels to have access to the legal advice provided to the Minister onwhich (s)he has based the decision.
6. S e c tion 9 of the Codeof Practice for Scrutiny Panels and the Public AccountsCommittee,adoptedbythe States on 12th March 2008, denies access to scrutiny to all legaladvice provided to Ministers bythe Law Officers' Department.

The Chairmen's Committee believes that the constraints placed on the scrutiny function by denying access to the legal advice given to Ministers, will render the scrutiny of Human Rights Compatibility statements unachievable. This would apply to scrutiny by either existing panels or a stand-alone panel.

7. T h e Deputy of St. Martin has been provided figures for staffsupportbasedon the knowledgeof the Joint Select Committee staffingonwhich the Deputy has basedhisproposition.The figures do,however, take into account the likelihood of considerably reduced officer support than that of the Joint Select Committee.
8. A p proximately 52 pieces of legislation withHumanRights Compatibility Statementswere brought to the Assembly in 2007. The Deputy ofSt.Martinsuggests that the Committeewill have toadopt a "sifting" process. Existing scrutiny panelsundertake a similar process whendecidingon a review. In orderto achieve this, experience has shown that a degree ofbackgroundwork will have tobe undertaken before a piece of legislation can be "sifted" out. Thebackground work providing information totheCommittee for it to undertake the "sifting" process will presumably be undertaken by officers, asfor scrutiny panels. Some matters arise from this –

• o f fi c er(s) undertaking "sifting" or review work will need to have a thorough understanding of the

Human Rights Law, related issues and substantial legal understanding;

• i t is worth noting the comments in the States' Spending Review (R.48/2008) by the Comptroller and Auditor General that that review confirmed that the pressure from competitive salaries (from private sector employers) is a significant problem for the (Law Officers) department;

• a p a rallel is drawn in the proposition with the proposed officer support in R.10/2008 "Draft

Discrimination (Jersey) Law 200-". The proposed support for this is dependent on the opportunity of sharing a number of resources (such as the Employment Tribunal premises and panel members in order to minimise costs.). Also Manpower implications will include the appointment of a Discrimination Officer and an administrative assistant. Initially, the latter post is expected to be a part-time post.

9. B a sed on the Deputy of St. Martin's comment "if a job is worth doing it is worth doing well", administrative supports needserious consideration –

(a ) th e re is no possibility of sharing existing resources from within either the Scrutiny section or the

States Greffe;

(b ) it i s highly unlikely to attract a suitably qualified person to the post of support officer for a Human

Rights Compliancy Committee –

(i ) a t t h e same grade as the proposed Discrimination Officer post, (i i) a t t h e same grade as a Scrutiny Officer or even slightly above, (i ii ) o r e v en on the highest Grade of the costing options provided.

10. If officer support is toundertakebackgroundand related work for the revision of all HumanCompliancy Statements, more than one officer wouldbe required.
11. E x perienceofscrutinyhas shown that full administrative support is vital; this needstobemore than secretarial, as proposed and full-time.
12. T h e Deputy ofSt. Martin contends that for the proposed Committeetobeindependent, "it must have its ownlegaladviser". It is proposed that "legal advice can besoughtwhenrequiredand the cost will fluctuate dependingon the workrequired".
13. I f the proposed Committee has established independent legal advice, thereis a strong possibility that memberswillbefaced with receiving conflictinglegaladvice [from a private legalrepresentativeof the Committee andtheLawOfficers'Department].Inthesecircumstancesit is notat all clear how the conflict wouldbe resolved, particularly asanylegaladvicetomembersintheChamber during a debate could only come from the Law Officers.
14. T h e Deputy ofSt. Martin quotes costing options provided by the Scrutiny Manager.The Committee is of the view that funding for this is unrealistic when the mattercouldberesolvedthrough the cost-free mechanismofamending Article 16of the Human Rights (Jersey)Law 2005.

The Committee noted that the proposal is not one of "in principle" approval, and in consideration of that, the Committee believes that there are outstanding matters which have not been sufficiently addressed –

1. C o mmittee/electedMembership:theReport states ".our joint committee couldcompriseof States Members and Membersof the public." It is recognised that in the UnitedKingdom the membershipismadeup from twoHouses. In Jersey this structure does not exist. Furthermore, the experience ofthe scrutiny panels during 2006to date has shown that there have been a numberof occasions when it has been apparent that there havenot been sufficient members available to sit on Panelsand/orSub-Panels.
2. N o consideration has been given to the fact that a further Committee will provide a drainon Member resources, whichcould have a detrimental effecton future scrutiny panels andsub- panels.
3. T h ere is a lackof clarity about the numberonthe proposed Committee:The proposal is for a membershipof both electedandnon-electedMembers but no indication isgivenas to the number of the full Membershipquotaor the balance between electedandnon-electedMembers,other than it would befewer than the membershipofthePublicAccountsCommittee.
4. T he Chairmen's Committee presumes that the HR Committee Chairman will sit on the

Chairmen's Committee, thereby increasing the membership to nine. No consideration appears to have

been given to this.

5. A c commodationappearsalsonotto have been addressed. Is there is a presumption that this Committee would sit within the scrutiny function? If so,it can alsobe presumed that the office would beaccommodatedwithin the States Greffe inMorierHouse.In turn this means that itis highly likely that the 1st floor scrutiny office meeting room would be identified for conversion. This isanextremely valuable, well-utilised asset, the loss ofwhich would have a detrimental effect on the work oftheexistingscrutiny panels.

There are no financial and manpower implications arising from this amendment