States of Jersey Law 2005: delegation of functions – Economic Development – Harbour Authority Agreement.

STATES OF JERSEY

STATES OF JERSEY LAW 2005: DELEGATION OF FUNCTIONS – ECONOMIC DEVELOPMENT – HARBOUR AUTHORITY AGREEMENT

Presented to the States on 15th December 2015 by the Minister for Economic Development

STATES GREFFE

2015   Price code: B  R.136

REPORT

On 14th December 2015, 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-2015-0109, 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

There are consequential matters that follow the coming into force of the Air and Sea Ports (Incorporation) (Jersey) Law 2015 ("the Law") and the signing of an Agreement between the Minister for Economic Development and the Chairman of the Board of Ports of Jersey Ltd. (POJL). The Agreement covers public service obligations, maritime safety and related matters. These consequential matters are explained below.

Inshore safety entrustment

Prior to the formation of POJL, the Minister had delegated the responsibility for designating inshore sea areas for the purpose of sport and recreational activities to  certain  officers  at  Jersey  Harbours.  Under  the  new  arrangements,  this delegation should be replaced by an entrustment to POJL in its capacity as the Harbour Authority. This is required because it is not legally possible to delegate functions to persons who are not either Ministers or officers employed by the States Employment Board.

Although  it  would  not  normally  be  necessary  for  him  to  do  so,  neither entrustment nor delegation removes the right of the Minister to make a decision or make a direction himself.

Delegation of functions

As a consequence of the  Law, the  Agreement and related amendments  to legislation, a number of other delegations fall away and new ones are required.

Functions previously delegated to the Chief Executive, Harbour Master or other officers of the now defunct Jersey Harbours have mostly been replaced by passing those functions directly to the Harbour Authority. These may in turn be delegated by the Harbour Authority to their employees, at the Authority's discretion. Such delegations  do not  therefore appear in  a list  of delegated ministerial functions.

A number of functions that either were not delegated at all or which the States decided could no longer be delegated to Jersey Harbours are now delegated to officers within the Economic Development Department. A table of the new delegations is attached.

Articles 30 and 30A of the States of Jersey Law 2005 require delegations to be notified to the States by the Minister and for the Chief Minister to see that these are published and a consolidated list maintained. In effect, this means that R.181/2014 should be updated, whilst R.3/2015 will be unaffected.

Decision

The Minister –

1. Entrusted  the  Harbour  Authority  with  responsibility  for  designating inshore sea areas for the purpose of sport and recreational activities.
2. Updated the list of delegated functions as a consequence of the coming into force of the Air and Sea Ports (Incorporation) (Jersey) Law 2015.