Legislative Scrutiny: proposals for further consideration

STATES OF JERSEY

LEGISLATIVE SCRUTINY: PROPOSALS FOR FURTHER CONSIDERATION

Presented to the States on 14th November 2017 by the Privileges and Procedures Committee

STATES GREFFE

2017  R.121

REPORT

Introduction

In July 2017, we published a consultation paper on the scrutiny of legislation by the States Assembly. The original consultation paper can be found at: http://www.statesassembly.gov.je/assemblyreports/2017/r.88-2017(re-issue).pdf.

The impetus for the consultation was a number of concerns expressed by the Bailiff and others  about  whether  the  Assembly's  procedures  for  considering  legislation  were sufficiently rigorous to hold the Executive to account for its legislative proposals, and to ensure that draft legislation achieves the policy objectives for which it is intended. We drew attention to the speed at which legislation is approved by the Assembly – draft Laws  were  each  debated  for  41 minutes  on  average  in  2016 –  and  looking  at international comparators we noted that –

• the short minimum period between lodging and consideration of all stages of the legislation is a challenge to effective scrutiny
• the rarity of detailed scrutiny by a committee is striking
• the absence of input from civil society also stands out.

We set out different models for legislative scrutiny, including one put to us by the Chairmen's Committee, and we asked for views on the following questions –

• What should be the scope of "legislative scrutiny"? Should it be restricted to draft  Laws  and  Regulations  or  extended  to  include  propositions?  Some propositions are legislative in nature (for example, those dealing with the extension of UK legislation to the Jersey); some can be significant in policy terms (for example, P.130/2016 on future hospital funding); but some may not be appropriate for detailed committee consideration (for example, appointments propositions). Is it possible to delineate the class of propositions which should be brought within a system of detailed scrutiny by Committee/Panel?
• When should scrutiny take place? Should Jersey move towards scrutiny before  legislation  (or  other  items)  are  lodged?  Should  there  be  detailed consideration of lodged propositions before debate on the principles? Should scrutiny only take place once the principles have been adopted?
• What timescales should be provided for scrutiny?
• How should the views of stakeholders be taken into account during the scrutiny process?
• Can the current system of Scrutiny Panels take on the additional workload necessary to undertake more effective legislative scrutiny? Would other work by those Panels have to cease and, if so, what effect would that have? If a new Legislative Scrutiny Panel is set up, how could it manage its workload, given the variation throughout the year in the number of legislative propositions lodged? Is there sufficient spare capacity amongst the backbench membership of the Assembly to enable a new Scrutiny Panel to be set up? If not, what would need to give to accommodate this change?

• Is there a case for a second Chamber of the Assembly to scrutinise legislation? What would be its powers and how would its Members be elected? What would be the relationship between the two Chambers? How would a second Chamber be resourced?
• What support do Members require in order to scrutinise legislation? Is there a need for training or additional staff support? How should this be funded given current funding constraints?

Response to the consultation

We received 12 responses from –

Chairmen's Committee  A law draftsman

Chief Minister  Jersey Association of Trust Companies Deputy of St. John  Jersey Bankers Association

Deputy J.M. Maçon of St. Saviour  Early Years and Childhood Partnership Deputy S.Y. Mézec of St. Helier  NSPCC Jersey

Deputy of St. Ouen  Ms. N. Heath

Points raised were as follows: General

• Widespread support for better scrutiny; good scrutiny throws up issues which require time to be considered properly; scrutiny is a quality safeguard; importance of sound law making and a good pace of legislation.
• Effective legislation is the "key to the future of the Island" so scrutiny should be a priority.
• Legislative  scrutiny  is  deficient,  but  the  "entire  parliamentary  system  is dysfunctional and illogical", and it is hard to consider elements of the system in isolation from the general malaise.
• Legislation often lacks a solid policy base.
• One respondent argued for the departmental board' idea where most Members have a role on an executive departmental board and there is a separate legislative scrutiny board.
• Three respondents argued for more input from civil society.
• One respondent argued for more scrutiny of ministerial Orders. Scope
• Legislative  scrutiny  must  be  obligatory  to  avoid  the  perception  that  scrutiny unreasonably causes delay.
• Briefing a Panel about forthcoming legislation is not the same as scrutiny.

• All  propositions  should  be  scrutinised;  just  legislation  should  be  subject  to structured scrutiny as propositions can already be called in if required.

Timing

• Scrutiny before the principles are debated is essential (3 respondents; one said "as early as possible" – no contrary view expressed).
• Debate on principles and Articles must be separated, and public interest argument should not be allowed to enable debates to be brought together.
• 4 weeks should be sufficient for scrutiny.
• Departments should be better at communicating about  Projets in the pipeline (2 States Members; although 2 respondents said they had good sight of ministerial plans in their area).
• Input from scrutiny too often sought as an afterthought. Legislative Scrutiny Panel
• Members want to focus on policy or constituency work, and few will want to serve on a legislative scrutiny Panel (3 respondents).

Resources

• Members need to look more at the detail.
• Perhaps a role for Assistant Ministers in legislative scrutiny (subject to caveats) (one respondent, one argued against this).
• Members need better understanding of what legislative scrutiny entails and how to do it.
• Scrutiny Panels should be better at communicating with stakeholders about their work and might benefit from more technical assistance.
• Could lay members be added to Scrutiny Panels? (one respondent)
• Can the scrutiny budget afford more expenditure on advisers?
• How will Panels cope with peaks in ministerial lodging, e.g. before the summer break?
• Will there be training for Members and legal support?
• Is legislative scrutiny what the Public want Members to be doing? Second Chamber
• Two respondents commented, one strongly in favour, one argued it should be considered only if reform of legislative scrutiny fails.

Proposals for further consideration

The consultation responses support the case for change, and also encourage us to take a far-reaching look at the current system. However, there is clearly need for further consideration of reform, particularly by States Members, before changes to Standing Order  are  proposed.  We  are  therefore  publishing  these  proposals  for  further consideration, with a view to bringing forward changes to Standing Orders in the new year, for implementation after the next election. We invite comments on this broad scheme and detailed points, which we flag up below.

Our proposals for further consideration are as follows –

• With some exceptions (see below) when a proposition is lodged it is referred automatically to the relevant Scrutiny Panel.
• The Panel would have a minimum of 6 weeks to scrutinise and report back on the  proposition  (in  the  case  of  legislation,  scrutiny  could  cover  both  the principles and the Articles/Regulations).
• The Panel and Minister/Member could agree for extra time to be provided for scrutiny (without limit) or the Panel could request the Assembly to allow up to an additional 4 weeks for scrutiny (i.e. on the basis of an application to the Presiding Officer, which would be debated and decided by the Assembly).
• In the case of legislation, the Panel would have the option of automatically triggering a further period of scrutiny of the Articles/Regulations after the Assembly has agreed to the principles: otherwise, it would remain possible for the legislation to go through all its stages in one Sitting.
• This  new  process  of  automatic  referral  to  a  Panel  would  not  apply  to propositions lodged under Standing Order 26(3) [i.e. dismissal of a Minister, votes of no confidence, censure, suspension, annulment of an Order, opposing a land transaction], appointment propositions, amendments, a draft budget or a draft medium term financial plan. It would apply to backbench propositions.

In many cases, the period between lodging and debate of ministerial Projets would remain 6 weeks. However, as we often witness in the Assembly, complex proposals often take longer to scrutinise, and this ought to be reflected in the Standing Orders. Under these proposals, we suggest that the minimum period between lodging and debate could  be  extended  by  the  Assembly  to  10 weeks.  We  invite  comments  on  this proposed timescale. As now, a Minister or Member could agree informally a timescale for scrutiny and simply defer consideration of a proposition until scrutiny's work is concluded.

We would expect in most cases for Panels to conduct all of their scrutiny work before consideration of the principles, but issues may arise at that stage which merit further scrutiny. We suggest that an automatic option for call-in should be retained after debate on the principles, although the time allowed could be reduced. We invite comments on this point.

In our view, it would be sensible to retain a provision in Standing Orders for a lodging period (which would also mean a scrutiny period) to be reduced, if it is in the public interest to do so. However, use of this procedure can be unpopular with Members, and is sometimes seen as an abuse of the Assembly's well-established rules. We seek views on this point.

We also seek further views on whether backbenchers' propositions should be included within the scope of this new approach. Our conclusion is that they should, both to reflect the equal status of Members in the Assembly, and because a backbench proposition can have far-reaching consequences which ought to be scrutinised before debate.

We had previously expressed support for a separate legislative scrutiny committee to look at legislation, but this idea was not welcomed. As existing Panels would not be barred from considering legislation, the legislative Scrutiny Panel would be left the more technical pieces of legislation, and it would be a challenge to find Members to serve on it. We now suggest building consideration of legislation and propositions into the work-streams of existing Panels. This would have resource implications, especially if the calls from pressure groups for more evidence taking on legislation are heeded. The main constraint is likely to be pressure on Members' time, and we seek views on whether Scrutiny Panels should include Assistant Ministers from different policy areas to those scrutinised by a Panel.

Several Members expressed concern at the staff resources available to assist Panels with legislative scrutiny, whether specialist skills were required, and whether Members themselves were equipped to undertake what some saw as a technical exercise for lawyers. In our view, legislative scrutiny is not a technical exercise reserved for specialists. It is core parliamentary work where Members ask questions to test what the Law means, how it will work, and whether it will achieve the policy outcomes Ministers are aiming for. This is a political function, not a legal one, although staff with legal knowledge  could usefully  assist. The  Greffe  can  assist Members  with this work, including by tapping into international networks (such as the CPA) for advice and support from parliamentarians experienced in legislative scrutiny elsewhere. Current scrutiny staff have experience of legislative scrutiny and can be trained to hone their skills: if necessary, the Greffe could seek legal support externally or, if necessary, recruit a lawyer to support the scrutiny process.

It is because we regard scrutiny of legislation as core parliamentary work that we are not tempted by calls to set up a second Chamber to focus on legislation. It is a misunderstanding  of  bicameral  legislatures,  such  as  the  UK,  to  assume  that  one Chamber  focuses  on  legislation,  whereas  the  other  deals  with  policy',  as  some respondents suggested. In reality, both Chambers work together (or, occasionally, in conflict) on legislation. It is also unclear to us how a second Chamber comprised of Connétable s  would  be  more  effective  at  scrutinising  legislation  than  the  current Assembly. There would also be difficulties in defining the respective powers and responsibilities of 2 Chambers.

Finally, it will be obvious that our proposal extends the remit of the scrutiny system significantly to create a system more akin to European parliaments, in which the Executive works together with parliamentary committees to craft legislation. This is closer in some respects to the previous committee system, although without Panels having formal executive responsibilities. It might be worth considering using the term committees for this new structure, should it be agreed.

Case studies

This is how we think the new system should work.

Example 1:

The Draft Health and Safety (Minor Change) (Jersey) Regulations – 3 Regulations which make minor changes to health and safety law to reflect new practice in the UK. The Panel publicises that the Regulations are under scrutiny and 2 letters are received, raising relatively minor points. These are the subject of a letter to the Minister, along with routine questions asking for an impact assessment, more details about the rationale

for  the  Regulations,  and  a  cost  estimate  for  implementation.  The  Minister's comprehensive reply satisfies the Panel, which publishes the letters and makes no further comments. The Regulations are debated 6 weeks after lodging and pass all stages in one Sitting.

Example 2:

The  Draft  Health  and  Safety  (Amendment  No. 17)  (Jersey)  Law –  a  reasonably significant  piece  of  work,  which  the  Department  has  worked  on  for  some  time, comprising 17 Articles. The Panel was aware of the work, but did not know that lodging was imminent. Eight submissions are received from the Public, including some raising concerns about how new rules on ladders will be implemented and what they might mean for small businesses.  The Minister's reply (which  also covers the  standard questions asked about any legislation, mentioned above) raises concerns, and a Public Hearing takes place. More questions are raised about whether the Law is correctly framed, and the Panel asks the Minister for extra time for scrutiny. The Minister does not agree, so the Panel publishes comments explaining the situation and indicating that it will be requesting the Assembly to agree to a further 4 weeks' scrutiny. The matter is debated and the Assembly votes for a further 2 weeks' scrutiny. The Panel rushes to get its report out, in which it gives agreement to the principles but recommends more work on the Articles. After the principles are agreed, the Panel calls the legislation in for a further 2 weeks' scrutiny. This time is used to lodge amendments, which are debated when the principles are discussed.

Example 3:

The Draft Artificial Intelligence (Regulation of Robots) (Jersey) Law – a major piece of work, legislating on the issue of robot ethics for the first time, comprising 100 Articles. The Panel is involved in the drafting work from the outset, seeing 3 drafts prior to lodging, and discussing the issues at length with the Minister and officials. The Panel has also had time to appoint a world-leading specialist adviser on robot ethics, and to talk to Swedish robot ethics experts via Skype. Lodging starts the clock on formal scrutiny, but this is simply a continuation of a pre-existing process. The Minister makes clear from the start that he will delay debate on the principles until the Panel is ready with its report, and the meeting in 8 weeks is identified as suitable for both parties. The Panel's report identified improvements which could be made to the Articles, and the Minister lodges the necessary amendments, which are taken as read when the Articles are debated.

Example 4:

Senator Le Feuvre decided over the Christmas break to lodge a proposition calling for Jersey to introduce a bitcoin regulator. She is the most knowledgeable person in the Assembly on the subject, and her report gives a compelling case for regulation. The Panel receives several submissions on the proposition, including from a number of financial firms, raising concerns. A US academic, contacted online, also provides a critique of the proposition which suggests that if Jersey adopted the form of regulation proposed, international competitiveness could be affected. The Senator agrees that the scrutiny  process  has  thrown  up  some  questions  which  she  had  not  previously considered, and lodges an amendment to ask the Minister to work with her to undertake more research. Her report summarises the outcome of the scrutiny process, and the Panel chairman e-mails Members before the debate to say she supports the proposition as amended, for the reasons set out in the report. The proposition, as amended, is adopted.