States of Jersey Law 2005: delegation of functions – Economic Development – revised delegations August 2013.

STATES OF JERSEY

STATES OF JERSEY LAW 2005: DELEGATION OF FUNCTIONS – ECONOMIC DEVELOPMENT – REVISED DELEGATIONS AUGUST 2013

Presented to the States on 2nd August 2013 by the Minister for Economic Development

STATES GREFFE

2013   Price code: B  R.94

REPORT

On  31st  July  2013,  the  Minister  for  Economic  Development  made  a  Ministerial Decision delegating certain of his functions under Article 28 of the States of Jersey Law 2005 (MD-E-2013-0077, available at www.gov.je).

Article 28 of the States of Jersey Law 2005 permits a Minister to delegate, wholly or partly, functions to an Assistant Minister or an officer.

The Law states, inter alia –

"28  Power of Minister to delegate functions

1. A Minister may delegate, wholly or partly, functions conferred upon or vested in the Minister by or under this Law or any other enactment or any enactment of the United Kingdom having effect in Jersey, to –

1. one of his or her Assistant Ministers;
2. an officer.

2. A Minister shall not delegate –
   1. any power to make an enactment;
   2. any power to decide an appeal under an enactment;
   3. any function the delegation of which is prohibited by an enactment.
3. The delegation of functions by a Minister under this Article shall not prevent the Minister exercising those functions personally.
4. Where  any  licence,  permit  or  authorization  is granted  in  purported exercise  of  functions  delegated  under  paragraph (1),  no  criminal proceedings shall lie against any person for any act done, or omitted to be done, in good faith and in accordance with the terms of the licence, permit  or  authorization,  by  reason  that  the  functions  had  not  been delegated,  or  that  any  requirement  attached  to the  delegation  of  the functions had not been complied with.
5. In this Article –

"Minister" includes the Chief Minister;

"officer"  means  a  States'  employee  within  the  meaning  of  the Employment  of  States  of  Jersey  Employees  (Jersey)  Law 2005  and includes a member of the States of Jersey Police Force and an officer appointed  under  paragraph 1(1)  of  Part 1  of  Schedule 2  to  the Immigration Act 1971 as extended to Jersey by the Immigration (Jersey) Order 1993.

6. The States  may  by Regulations  amend  the  definition  "officer"  in paragraph (5)."

The terms of the delegations, and the legislation under which those delegations were made,  were  recorded in  a  Report  attached  to the Ministerial  Decision,  as  shown below –

Background

Safety training for fishermen has been compulsory since 2001. This was a direct consequence of the sinking of the Jersey fishing vessel RACHEL HARVEY in 1999 and the resulting loss of the life of one crew member. Subsequent recommendations of the UK's Marine Accident Investigation Board (MAIB) highlighted the lack of a safety  training  requirement  for  Jersey  vessels  and  this  led  to  the  drafting  of  the necessary legislation.

More  recently,  the  MAIB  investigated  the  loss  of  another  Jersey  vessel,  the KERLOCH in 2010 and noted safety training deficiencies in the crew. Since that report was published, minor accidents have continued to occur and on some occasions safety training has again been found to be deficient both here and in the UK. In a recent tragic case, investigation following yet another loss of life (this time in a Belfast-registered fishing vessel) revealed that the dead man did not hold all his safety training certificates and 2 other crew members held none. Prosecution and stiff fines followed.

As a result of the above situation, fishing vessel safety training has come under the spotlight, and in order to improve safety, local fishermen are being asked to prove they are properly trained in accordance with the law.

Exemptions

Under Article 4 of the Shipping (Fishing Vessels – Safety Training) (Jersey) Order 2004,  the  Minister  may  exempt  individual  fishermen  from  the  safety  training requirements. This exemption was introduced for a number of reasons: Skippers of small vessels working close inshore may not find the full life-raft course as relevant as a locally designed course more suitable to their needs, and also in recognition of the fact that these boats are not required to carry life-rafts. Additionally, whilst national standard courses are readily available throughout the year in the UK, access to these courses is more difficult and expensive for Jersey residents. Inevitably, local courses cannot be run with the same frequency, and some lee-way needs to be given therefore concerning the duration and renewal of certificates. It was also found that a skipper may wish to take a new recruit on as crew, who had yet to be qualified or had yet to have the experience to know that he really wanted to make fishing a career.

Given this position, conditional exemptions were stipulated under the original Order. However, scrutiny of the way this has been working in practice revealed anomalies and an inconsistency in interpretation.

Considerations

Over the last decade, the 2 associations have worked hard to offer courses locally, and this has been greatly assisted by the yacht clubs and the Outdoor Education Manager. Progress has been made to increase the number of courses offered locally, and Jersey Harbours has undertaken to underwrite one full sea survival course per year, with the aim of ensuring that at least 3 are available annually. Agreement is being reached to improve the associated management and co-ordination of all 3 course components (First Aid, Firefighting and Sea Survival).

Each of the core reasons for an exemption has been re-examined. Jersey Harbours, the Marine Resources section of the Department of the Environment, and the Shipping Registry, have all worked together to address these matters. This has been in close discussion with the fishermen's associations as well as individual fishermen.

It has been concluded that the basic exemptions are still valid, but that they need clarifying and to be more explicitly applied. The responsibility in law remains for individual fishermen to be fully safety-trained, but the arrangements proposed do now have an agreed and fair degree of flexibility built in.

Amended delegation details

This  is,  therefore,  an  amended  delegation  of  functions  to  replace  the  existing delegation in respect of the Shipping (Fishing Vessels – Safety Training) (Jersey) Order 2004, which was published in R.25/2012.

Conclusion

The changes to the existing exemptions are shown in italics below –

To grant exemptions from the requirement for safety training under Article 4.

Exemption may apply to fishermen operating vessels under 6 metres in length and where they have attended the approved alternative training.

Temporary exemptions for fishermen  new to the industry and being crew under supervision of a trained skipper operating any size vessel, who have not attended  any  approved  training,  must  be  time-  limited  to  a  maximum  of 3 months  and  dependent  on  there  being  on-board  safety  and  emergency briefings. Such exemptions are to be based on a report issued on behalf of the Harbour Master.

Temporary exemptions will be allowed for existing fishermen operating any size  vessel  where  a  certificate  is  due  to  expire  within  the  next  3 months providing  they  undertake  the  appropriate  renewal  course  not  later  than 3 months after the expiry of the current certificate. Certificates for training undertaken before the expiry date of the current certificate may be post-dated up to a maximum of 3 months from completion of the appropriate course.