This content has been automatically generated from the original PDF and some formatting may have been lost. Let us know if you find any major problems.
Text in this format is not official and should not be relied upon to extract citations or propose amendments. Please see the PDF for the official version of the document.
STATES OF JERSEY
JERSEY LAW COMMISSION TOPIC REPORT IMPROVING ADMINISTRATIVE REDRESS IN JERSEY': INITIAL RESPONSE
Presented to the States on 2nd January 2018 by the Chief Minister
STATES GREFFE
2018 R.1
REPORT
Introduction
- On 18th October 2017 the Jersey Law Commission published a Topic Report, entitled Improving Administrative Redress in Jersey' (No.1/2017/TR) ("the Topic Report"). The Topic Report is publically available from the Jersey Law Commission website1.
- The Topic Report is the product of a Jersey Law Commission project which had 2 principal aims –
- To answer the research question: "In Jersey, what procedures and institutions are available to people who need to challenge the correctness of administrative decisions"?
- To evaluate the procedures and institutions in order to generate policy recommendations for improving the quality of administrative redress in Jersey2.
- The author of the Topic Report for the Jersey Law Commission is Andrew Le Sueur , Professor of Constitutional Justice at the University of Essex, United Kingdom.
- The Topic Report was produced following lengthy and detailed research, interviews and the publication by the Jersey Law Commission in April 2016 of a consultation paper, Improving Administrative Redress in Jersey: Consultation Report' (No.1/2016/CP)3 which was the subject of public consultation.
- The recommendations in the Topic Report cover the following areas: oversight of administrative redress processes; complaints procedures; the administrative justice system; the States of Jersey Complaints Panel; the establishment of a Public Services Ombudsman for Jersey (also recommended by the Clothier Review); judicial review; and the use of alternative dispute resolution.
- The Chief Minister, Senator Ian Gorst and Chair of the Legislation Advisory Panel, Senator Sir Philip Bailhache have welcomed the publication of the Topic Report by the Jersey Law Commission. It is an important and substantial piece of work which aims to contribute to the wider project of building trust and confidence in the processes for complaining about public administration.
2 See Annex D of the Topic Report 3https://jerseylawcommission.files.wordpress.com/2016/04/jsylawcom_improvingadminredress _final.pdf
Initial Response
P.108/2017 Independent Jersey Care Inquiry: Implementation of Recommendations
- On 16th January 2018, the States Assembly will consider P.108/2017 – Independent Jersey Care Inquiry Report: implementation of recommendations'[4] which has been lodged by the Council of Ministers.
- Recommendation 7 of the Independent Jersey Care Inquiry (IJCI) Report identified that action should be taken to"Ensure that the Island's children and young people will be looked after in a caring and compassionate system that is underpinned by a system of governance in which there is the utmost confidence among all of the Island's citizens" (ICJI Para. 13.43: p.64: Vol. 3 of 3: Recommendations and Appendices).
- P.108/2017 provides that, in respect of –
- Administrative Redress – the recommendations set out in the Topic Report will need to be considered by the Chief Minister in the context of the Independent Jersey Care Inquiry 2017 (Recommendation 7) as they relate to the system of checks and balances and accountability by which government and public institutions are held to account, and are intended to contribute to the wider project of building trust and confidence in processes for complaining about public administration.
- Engaging the Community – in order to better understand the views, concerns and needs of the whole community, it is proposed that the Chief Minister co-ordinates work to develop policy priorities aimed at building public engagement and transparency in government deliberation and decision-making.
- In order to achieve this, P.108/2017 proposes that, in order to improve accountability, integration, openness and confidence in our system of governance, the Chief Minister co-ordinate work to –
- develop proposals for improved governance structures that will enhance accountability and integration, and will enable the effective and ongoing delivery of the Care Inquiry recommendations;
- review best practice approaches and available benchmarks in respect of accountability, integration, openness and generally improving confidence in government and, using those indicators, review Jersey's current performance and set future objectives; and
- review the recommendations of the Jersey Law Commission Review on administrative redress and the administrative justice system, and Clothier recommendations in respect of the establishment of a Jersey Public Services Ombudsman and develop proposals to implement those recommendations.
- P.108/2017 also sets out the following key deliverables and timeline in respect of this work –
Actions | Key Miles tone | Lead Agency |
Initial response to the Jersey Law Commission Report on Improving Administrative Redress in Jersey | December 2017 | Community and Constitutional Affairs |
Complete scoping exercise and planning for projects on –
| September 2018 | Community and Constitutional Affairs |
Obtain Ministerial approval for project implementation | December 2018 | Community and Constitutional Affairs |
Begin phased project implementation | January 2019 | Community and Constitutional Affairs |
Actions
- It is clear that reviewing and, if agreed, delivering and implementing the recommendations made in the Topic Report will be a significant piece of work, involve a number of different stakeholders, including Ministers, Departments, the States Assembly, the Judiciary and non-Ministerial Departments. It is also clear that substantial legislative, organisational and procedural change would be required if the Topic Report recommendations are to be implemented. Further, a number of recommendations would be contingent on the delivery of other projects and resourcing.
- The Chief Minister has requested that officers from the Department for Community and Constitutional Affairs report to him in co-ordinating and delivering the project as set out in the timeline above. The Department for Community and Constitutional Affairs is in the process of identifying sustainable resource to be able to carry out this work as detailed at page 50 of P.108/2017.
- The Chief Minister has also requested the Legislation Advisory Panel (LAP), in its advisory role to the Chief Minister, to consider the recommendations made in the Topic Report and make policy recommendations to him. This is advantageous, not only because LAP undertakes the role of the link with the Jersey Law Commission on behalf of the Chief Minister and, as such, has sponsored the Jersey Law Commission work in respect of administrative redress since its inception, but also because this will enable a broader number of States Members (executive and non-executive) to be involved in considering the wide ranging recommendations made in the Topic Report. LAP will also be supported by the Department for Community and Constitutional Affairs in carrying out this work in order to ensure a coordinated approach.
- LAP has started initial work in order to consider whether the recommendations made in the Topic Report should be accepted and has requested officers to –
- Identify those recommendations made within the Topic Report which –
- subject to agreement, could be progressed during 2018 (i.e. because they would not require legislative change or on which a decision would be required during 2018 in order to progress more substantial resourcing, organisational or procedural change); or
- subject to agreement, would be for phased implementation during 2019 (i.e. because they would require legislative or more substantial resourcing, organisational and procedural change).
- Ascertain the preliminary views of public sector stakeholders who would be impacted if the recommendations were to be accepted and progressed.
- The tables at the Appendix set out –
- The Recommendations, Method of Implementation and Costs, Benefits and Risks identified in the Topic Report;
- In respect of each Recommendation, a preliminary list of public sector stakeholders who may be impacted if the recommendations were to be accepted and progressed; and
- In respect of each Recommendation, an indication of whether the recommendation, subject to agreement, could be progressed during 2018 or would be for phased implementation from 2019.
Scrutiny – Care of Children in Jersey Review Panel
- The Chairmen's Committee has established the Care of Children in Jersey Review Panel (the Review Panel)[5] to examine the policies, legislation and actions of the Council of Ministers as a result of the recommendations made by the IJCI. The Review Panel has been established to make sure that these recommendations are implemented correctly and that any proposals put forward to achieve them are adequately examined.
- Membership of the Panel includes: Deputy S.Y. Mézec of St. Helier (Chairman); Deputy T.A. Vallois of St. John (Vice-Chairman); Deputy J.A. Hilton of St. Helier ; Deputy M.R. Higgins of St. Helier and Senator S.C. Ferguson.
- The Chief Minister appeared at a public hearing with the Review Panel on 8th December 2017. At that hearing the Review Panel enquired about progress on the Topic Report, and in particular in respect to the recommendation to establish
a Public Services Ombudsman, complaints systems and tribunals. It was agreed that a copy of this Initial Response would be provided to the Review Panel when available6. It is anticipated that the Review Panel will continue to review progress on the response to the Topic Report.
APPENDIX Summary of Recommendations
The tables below set out –
The Recommendations, Method of Implementation and Costs, Benefits and Risks identified in the Topic Report;
In respect of each Recommendation, a preliminary list of public sector stakeholders who may be impacted if the recommendations were to be accepted and progressed; and
In respect of each Recommendation, although all Recommendations will be considered during 2018, an indication of whether the recommendation:
o Subject to agreement, could be progressed during 2018 ("2018") – i.e. it would not require legislative change or a decision would be required during 2018 in order to progress more substantial resourcing, organisational or procedural change; or
o Subject to agreement, would be for phased implementation from 2019 ("2019") – i.e. it would require legislative or more substantial resourcing, organisational and procedural change.
Key:
AJJL Administrative Justice (Jersey) Law. Many of the recommendations
contained in the Topic report would need to be implemented through a new Law. The Topic Report uses the working title "Administrative Justice (Jersey) Law".
ADJL Administrative Decisions (Jersey) Law 1982
BC Bailiff 's Chambers
CCA Community and Constitutional Affairs
CMD Chief Minister's Department
DPC Data Protection Commissioner
EDU Education
EDTSC Economic Development, Tourism, Sport and Culture
ENV Environment
HSS Health and Social Services
INF Infrastructure
JG Judicial Greffe
LOD Law Officers' Department
Panel States of Jersey Complaints Panel
SCR Scrutiny
SEB States Employment Board
SPBs Scheduled Public Bodies. The Topic Report proposes that the public authorities to which the AJJL applies should be listed in a Schedule.
SS Social Security
TR Treasury and Resources VD Viscount's Department
Chapter 2: Overarching Issues in Administrative Justice in Jersey
Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
Recommendation 2.1 Create a legal duty on the CM to issue guidance to public bodies about fair and effective handling of complaints | Article in AJJL creates duty CM issues non-statutory guidance (and keeps under review); consideration to be given to the mechanisms by which the States Assembly can best scrutinise this guidance. | All | 2018 | |||
- Individual users of public services in Jersey will benefit from improved complaints handling - The process of developing and consulting on the contents of the guidance will encourage sharing of good practice across SPBs - Guidance will help SPBs to improve the quality of complaint handling - Guidance will encourage greater transparency in handling of complaints by SPBs - Guidance will encourage a more consistent approach to |
|
| ||||
Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
|
| handling of complaints across public services - Requirements in the guidance to publish information about complaint handling will improve public understanding of rights to complain Risks - Risk that SPBs may fail to comply with the guidance or view it as a "paper exercise", leading to patchy improvements across the public sector |
|
| ||
Recommendation 2.2 Create a legal duty on the CM to present an annual report to the States Assembly on administrative redress across the Government of Jersey and other public bodies | Article in AJJL creates duty CM prepares and presents annual report | CMD, CCA | 2019 | |||
- Annual report provides good quality information to support evidence-led policy-making and actions by Government - Annual report will enable members of the States Assembly to provide more systematic accountability over the administrative justice system - Ultimately, individuals, business and organisations using public services in Jersey will benefit from more effective coordination and improvements in the operation of the |
|
| ||||
Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
|
|
|
| |||
- SPBs may fail to collect and report accurate data to the CM - The CM and officials may adopt an insufficiently reflective and critical approach to evaluating data, lesson learning and taking remedial action where systematic problems arise - States Members may not regard scrutiny of the annual report as a political priority and will fail to provide independent challenge and accountability to Government |
|
| ||||
Recommendation 2.3 The States Assembly should scrutinise the CM's annual report on administrative justice | Scrutiny Chairmen's Committee to consider how best to provide scrutiny of the CM's annual reports (e.g. through a committee or scrutiny panel) | SCR | 2019 | |||
- Annual report will enable States Members to have an overview of where problems are arising across the whole administrative redress system and make strategic decisions about how best to scrutinise those problems - Annual report subject to public scrutiny will provide an incentive for SPBs to engage in continuous improvement and address systematic problems openly - Ultimately, individuals, business and organisations using public services in Jersey will benefit from more effective coordination and improvements in the operation of the |
|
| ||||
Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
|
|
|
| |||
- States Members may not regard scrutiny of annual report as a political priority and will fail to provide independent challenge and accountability to Government - The CM's annual report and subsequent scrutiny may to yield insufficient practical improvement in the quality of public services and administrative redress |
|
| ||||
Recommendation 2.4 CM and Minister for Health and Social Services should commission a study of complaints handling relating to health and social services decision- making and services, with a remit to make recommendations | Ministerial decision | CMD, CCA, HSS | 2018 | |||
- An independent review will provide basis for evidence- led policy making by the Government of Jersey in the area that produces the largest number of internal complaints - Ultimately, individuals using health and social services in Jersey will benefit from improvements in the operation of the administrative justice system Risks The independent study may make recommendations that are not acceptable to Government of Jersey or the States Assembly |
|
| ||||
Recommendation 2.5 Create a legal "right to good administration" based on models developed in some other jurisdictions | Article in AJJL | CMD, CCA | 2019 | |||
- Existence of the right benefiting individuals will become a point of reference |
|
| ||||
Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 |
|
| for the Government of Jersey, the States Assembly and the judiciary when developing and applying rules relating to administrative justice and redress - Reputational benefit to the Island of signalling to the world Jersey's commitment to the rule of law in public administration - Ultimately, individuals, business and organisations using public services in Jersey will benefit from a commitment by the Government of Jersey and States Assembly to respect and uphold a right to just administration Risks - The new right may have little practical impact on improving quality of administrative justice and redress |
|
|
Chapter 3: Modernising Jersey's Tribunals System
Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
Recommendation 3.1 Create a new tribunal (the Jersey Administrative Appeals Tribunal) with a broad jurisdiction to hear appeals against administrative decisions | Articles in AJJL | CCA BC, JG, VD, LOD | 2019 | |||
- The creation of a single tribunal will eliminate anomalies, reduce the number of separate legislative provisions relating to tribunals, and |
|
| ||||
Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
|
| simplify and modernise the law relating to tribunals in Jersey - Efficiency gains and cost savings from running one tribunal rather than 8 separate tribunals - When in future new administrative decision- making functions are created in Law by the States Assembly, it will be straightforward to have a right of appeal to JAAT (rather than having to create a new tribunal or specify a right of appeal to the Royal Court, which may be disproportionate) - Ultimately, users of the appeal process will benefit from a better coordinated and more effective tribunal appeal system Risks - Perception that expertise and experience of existing tribunals may diminish (but see Recommendation 3.20.a) |
|
| ||
Recommendation 3.2 Transfer jurisdiction of the following tribunals to JAAT and abolish them:
| Articles in AJJL Amendments and repeals to existing Laws | CMD, CCA, SS, TR, HSS, EDU JG, BC, VD, DPC, LOD | 2019 | |||
- The creation of a single tribunal will eliminate anomalies, reduce the number of separate legislative provisions relating to tribunals, and |
|
| ||||
Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
|
| simplify and modernise the law relating to tribunals in Jersey - Efficiency gains and cost savings from running one tribunal rather than 8 separate tribunals - Ultimately, users of the appeal process will benefit from a better coordinated and more effective tribunal appeal system Risks Perception that expertise and experience of existing tribunals may be lost (but see Recommendation 3.20.a) |
|
| ||
Recommendation contained in Chapter 4 Amend legislation to transfer rights of appeal from Ministers to JAAT | Amendments and repeals to existing Laws and Orders | Cross-refer to Recommendations 4.1, 4.2, 4.3, 4.4 and 4.5. | CMD, CCA, SS, TR, HSS, EDU JG, BC, VD, DPC, LOD | 2019 | ||
Recommendation contained in Chapter 7 Amend approximately 54 Laws to transfer right of appeal from Royal Court to JAAT. | AJJL will make amendments and repeals to existing Laws | Cross-refer to Recommendation 7.1 | CCA JG, BC, VD, LOD | 2019 | ||
Recommendation 3.3 Create new judicial post of "Chairman of the Jersey Administrative Appeal Tribunal" | Article in AJJL | CCA JG, BC, VD | 2019 | |||
- Post will provide judicial leadership capacity in new tribunal system - Ultimately, users of the appeal process will benefit from a better coordinated |
|
| ||||
Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
|
| and more effective tribunal appeals system Risks - It may be difficult to recruit and retain suitable candidates for the role |
|
| ||
Recommendation 3.4 Create new judicial office of " Deputy Chairman of the Jersey Administrative Appeal Tribunal". | Article in AJJL | CCA JG, BC, VD | 2019 | |||
- Post will provide judicial leadership capacity in new tribunal system - Designated Deputy Chairman role will enable efficient decision-making by JAAT when the Chairman is unavailable or conflicted from deciding - Ultimately, users of the appeal process will benefit from a better coordinated and more effective tribunal appeals system Risks - It may be difficult to recruit and retain a suitable person for the role |
|
| ||||
Recommendation 3.5 Include all members of JAAT within the definition of members of the "judiciary of Jersey", including
| Depending on the sequencing of the legislation, this would either be in the AJJL or included the projet de loi implementing CM's proposals on "Judicial Independence and the Establishment of a Judicial and Legal Services Commission" (published in July 2017) | CCA JG, BC, VD | 2019 | |||
- Will ensure all members of JAAT benefit from the proposed "guarantee of judicial independence" and are subject to the responsibilities of members of the Jersey judiciary - Will enhance the status of JAAT as an independent and impartial judicial body, |
|
| ||||
Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
|
| to the benefit of users of tribunal appeals |
|
| ||
Recommendation 3.6 Members of JAAT should be appointed by the proposed Judicial and Legal Services Commission (JLSC) | Depending on the sequencing of the legislation, this would either be in the AJJL or included in the projet de loi implementing CM's proposals on "Judicial Independence and the Establishment of a Judicial and Legal Services Commission" | CCA JG, BC, VD | 2019 | |||
- Appointments by the JLSC will enhance the independence of the JAAT compared to existing appointments procedures, to the benefit of users of tribunal appeals Risks - It may be difficult to recruit and retain members of JAAT |
|
| ||||
Recommendation 3.7 The proposed JLSC should have legal duty to "have regard to the need to encourage diversity in the range of persons available for selection for appointments" to JAAT. | Depending on the sequencing of the legislation, this would either be in the AJJL or included in the projet de loi implementing CM's proposals on "Judicial Independence and the Establishment of a Judicial and Legal Services Commission" | CCA JG, BC, VD | 2019 | |||
- Diverse panels of JAAT will increase and maintain public confidence in the independence and impartiality of hearings - Panels of JAAT composed of members with diverse life experiences will make better decisions than homogenous panels, to the benefit of users of tribunal appeals - Placing a diversity duty on the JLSC will contribute to |
|
| ||||
Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
|
| the realisation of an "effective island diversity strategy essential in addressing the challenges of an increasingly diverse community" recommended by the Report of the Independent Jersey Care Inquiry 2017. Risks - The JLSC may lack commitment to achieving diverse appointments in JAAT appointments - It may be difficult to attract people from diverse backgrounds to apply to serve as members of JAAT |
|
| ||
Recommendation 3.8 The professional eligibility criterion for appointment as Chairman and Deputy Chairman of JAAT should be 7 years relevant legal experience | Article in AJJL | CCA JG, BC, VD | 2019 | |||
- This will simplify and remove anomalies seen in the criteria for appointments to the existing tribunals - Will ensure that the Chairman and Deputy Chairman have sufficient legal experience to carry out their functions effectively - Criteria for senior legal membership of JAAT will be brought into in line with those of the Chairman and Deputy Chairman of the Jersey Employment and Discrimination Tribunal |
|
| ||||
Recommendation 3.9 The professional eligibility criterion for appointment as a "legal member" of JAAT should be 5 years relevant legal experience | Article in AJJL | CCA JG, BC, VD | 2019 | |||
- This will simplify and remove anomalies seen in the criteria for appointments to the existing tribunals - Will ensure that legally qualified members of |
|
| ||||
Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
|
| JAAT have sufficient experience to carry out their functions effectively Risks - It may be difficult to recruit and retain suitable persons for the role |
|
| ||
Recommendation 3.10 Appointment as a judge to JAAT should be on a permanent basis. Open-ended terms of office should be able to be brought to an end by resignation, reaching a mandatory retirement age of 72 years, or removal from office on the same basis as other judges | Article in AJJL | CCA JG, BC, VD | 2019 | |||
- Open-ended appointments will enhance the independence and impartiality of JAAT Risks - A move from fixed terms to open ended appointments may have an adverse impact on achieving a more diverse tribunal judiciary if the rate of renewal of membership slows |
|
| ||||
Recommendation 3.11 The Chairman of JAAT should have a legal duty to prepare an annual report on the operation of the Tribunal and submit it to the CM The CM should have a legal duty to present a copy of report to the States Assembly | Article in AJJL Annual Ministerial decision to present a copy of report before the States Assembly | CCA JG, BC, VD | 2019 | |||
- Annual report will provide transparency about the work of JAAT Risks - States Members may not regard scrutiny of JAAT Chairman's annual report as a political priority, |
|
| ||||
Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
|
| diminishing its usefulness as a means of accountability - The JAAT Chairman's report may attract little attention from the news media, civil society organisations or the general public, diminishing its usefulness as a means of accountability |
|
| ||
Recommendation 3.12 The Chairman of JAAT and the Judicial Greffe should have a legal duty to make arrangements for the training of all JAAT members | Article in AJJL | CCA JG, BC, VD | 2019 | |||
- Will address unmet need expressed by current tribunal members for training opportunities - Will improve the efficiency, fairness and quality of judgments made by JAAT by having better trained members |
|
| ||||
Recommendation 3.13 Create a legal duty on the Superior Number of the Royal Court, with the advice and assistance of a Rules Committee, to make JAAT Rules to regulate the conduct of appeals | Article in AJJL conferring rule-making power on Royal Court Royal Court will adopt rules (and revise from time to time as needs be) | CCA JG, BC, VD | 2019 | |||
- One-off cost of drafting article in AJJL (cost to Government of Jersey) and scrutiny of projet de loi (cost to States Assembly) - One-off cost of drafting the JAAT Rules and consulting on them (cost to Judicial Greffe); we envisage that a "JAAT Rules Committee" would be established, including an external adviser with experience of developing |
|
| ||||
Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
|
|
|
| |||
- The JAAT Rules may be insufficiently focused on the needs of tribunal users, |
|
| ||||
Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
|
| especially those who do not have access to legal advice and representation - Individual appellants without legal advice and representation may find the JAAT Rules complex and confusing |
|
| ||
Recommendation 3.14 on content and style of the JAAT Rules The JAAT Rules should be designed and written with appellants' needs in mind and expressed in user-friendly style | Detail to be developed by Rules Committee having regard to Jersey Law Commission proposals | CCA JG, BC, VD | 2019 | |||
- Will help accessibility of tribunal system - Ultimately, users of the appeal process will benefit from a better coordinated and more effective tribunal appeals system |
|
| ||||
Recommendation 3.14 on content and style of the JAAT Rules (continued) The JAAT Rules should include provision for determining the composition of panels to hear different types of appeals; this should include provision that the Chairman of JAAT, the Deputy Chairman or another legally qualified member should preside over any panel | Detail to be developed by Rules Committee having regard to Jersey Law Commission proposals | CCA JG, BC, VD | 2019 | |||
- This provision in the JAAT Rules will enable panel members to be assigned to cases in light of their expertise and training to ensure appropriate composition of panels - An express requirement that the presiding member of any panel is legally qualified will ensure better adherence to the |
|
| ||||
Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
|
| constitutional principle of the rule of law - Ultimately, users of the appeal process will benefit from a better coordinated and more effective tribunal appeals system Risks - If the Rules are not sufficiently transparent, some appellants may perceive the panel hearing their appeals as "fixed" |
|
| ||
Recommendation 3.14 on content and style of the JAAT Rules (continued) The JAAT Rules should include an "overriding objective" of enabling JAAT to deal with cases fairly and justly | Detail to be developed by Rules Committee having regard to Jersey Law Commission proposals | CCA JG, BC, VD | 2019 | |||
- The use of an "overriding objective" in procedural rules is well-established; in relation to the operation of the JAAT it will assist as a point of reference in the development of the JAAT Rules and in their application by panels in particular cases - Ultimately, users of the appeal process will benefit from a better coordinated and more effective tribunal appeals system |
|
| ||||
Recommendation 3.14 on content and style of the JAAT Rules (continued) The JAAT Rules should include a power for appeals to be transferred between JAAT and the Royal Court and vice versa | Detail to be developed by Rules Committee having regard to Jersey Law Commission proposals | CCA JG, BC, VD |
| |||
- This will facilitate flexibility in hearing appeals, to ensure that each appeal can be heard by the most appropriate judicial body - Ultimately, users of the appeal process will benefit from a better coordinated and more effective tribunal appeals system |
|
| ||||
Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
Recommendation 3.14 on content and style of the JAAT Rules (continued) The JAAT Rules should include power for the Chairman of JAAT to regulate the publication of judgments and other documents relating to appeals | Detail to be developed by Rules Committee having regard to Jersey Law Commission proposals | CCA JG, BC, VD | 2019 | |||
- More systematic publication of tribunal judgments, or summaries of judgments, will increase transparency and open justice - Better dissemination of judgments will improve the knowledge of all tribunal members of decisions taken by panels on which they do not sit - Appellants' advisers and representatives will have access to previous tribunal judgments as an aid to preparing their cases - A publication scheme will assist in ensuring that JAAT satisfies the requirements of Article 6 of the European Convention of Human Rights (incorporated into Island law by the Human Rights (Jersey) Law 2000) on fair trials - Ultimately, users of the appeal process will benefit from a better coordinated and more effective tribunal appeals system |
|
| ||||
Recommendation 3.14 on content and style of the JAAT Rules (continued) The JAAT Rules should state that a | Detail to be developed by Rules Committee having regard to Jersey Law Commission proposals | CCA JG, BC, VD | 2019 | |||
- One-off cost of providing resources to the JATT Rules Committee to develop the rule (cost to the Judicial Greffe) |
|
| ||||
Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
party may appoint a legally qualified or lay representative |
|
|
| |||
- Will provide clarity on the issue - Ultimately, users of the appeal process will benefit from a better coordinated and more effective tribunal appeals system |
|
| ||||
Recommendation 3.15 The Chairman/ Deputy Chairman of JAAT should have power to order that an appellant receives legal advice and representation paid for by public funds where this is necessary to ensure a fair hearing | Article in AJJL CM to make resources available via the Judicial Greffe | CCA JG, BC, VD, LOD | 2019 | |||
- JAAT hearings will comply with requirements of Article 6 of the European Convention of Human Rights (incorporated into Island law by the Human Rights (Jersey) Law 2000) on fair trials - Ultimately, users of the appeal process will benefit from a better coordinated and more effective tribunal appeals system |
|
| ||||
Recommendation 3.16 There should be a right of appeal on a question of law from JAAT to the Royal Court | Article in AJJL | CCA JG, BC, VD, LOD | 2019 | |||
- Will ensure senior-level judicial supervision of the legality of decisions made by JAAT |
|
| ||||
Chapter 4: Appeals and reviews determined by Connétable s and Ministers
Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
Recommendation 4.1 JAAT should hear appeals from property owners about Connétable s' administrative decisions relating to wedding and civil partnership venues instead of the Minister for Home Affairs | Amendment and Civil Status (Approved Premises) (Jersey) Order 2002 and Civil Partnership (Approved Premises) (Jersey) Order 2012 | CCA, LOD | 2019 | |||
- Appellants will have more specialist, expert and structured adjudication by JAAT than can typically be provided by Connétable s - Simplification of administrative appeals system will help people better understand their rights of appeal - Better adherence to the constitutional principles of the rule of law and separation of powers by ensuring that disputes are adjudicated on by an independent and impartial judicial body Risks None have been identified |
|
| ||||
Recommendation 4.2 JAAT should hear appeals relating to decisions of Agent of the Impôt instead of the Minister for Treasury and Resources | Amend Article 68 of the Customs and Excise (Jersey) Law 1999 This can be done in the AJJL | TR, LOD | 2019 | |||
- Appellants will have more specialist, expert and structured adjudication by JAAT than can typically be |
|
| ||||
|
| provided by the Minister and officials - Simplification of administrative appeals system will help people better understand their rights of appeal - Better adherence to the constitutional principles of the rule of law and separation of powers by ensuring that disputes are adjudicated on by an independent and impartial judicial body |
|
| ||
Recommendation 4.3 JAAT should hear appeals relating to assessment of children's special education needs instead of the Minister for Education | Amend Article 31 of the Education (Jersey) Law 1999 This can be done in the AJJL | EDU, LOD | 2019 | |||
- Appellants will have more specialist, expert and structured adjudication by JAAT than can typically be provided by the Minister and officials - Simplification of administrative appeals system will help people better understand their rights of appeal - Better adherence to the constitutional principles of the rule of law and separation of powers by ensuring that disputes are adjudicated on by an |
|
| ||||
|
| independent and impartial judicial body |
|
| ||
Recommendation 4.4 JAAT should hear appeals about decisions of the Inspector under the Motor Vehicle Registration (Jersey) Law 1993 | Amend Article 8 of the Motor Vehicle Registration (Jersey) Law 1993 This can be done in the AJJL | INF, LOD | 2019 | |||
- Appellants will have more specialist, expert and structured adjudication by JAAT than can typically be provided by the Minister and officials - Simplification of administrative appeals system will help people better understand their rights of appeal - Better adherence to the constitutional principles of the rule of law and separation of powers by ensuring that disputes are adjudicated on by an independent and impartial judicial body |
|
| ||||
Recommendation 4.5 JAAT should hear appeals about disciplinary matters at H.M. Prison La Moye instead of the Minister for Home Affairs | Amend Prison (Jersey) Rules 2007 | CCA, LOD | 2019 | |||
- Better adherence to the constitutional principles of the rule of law and separation of powers by ensuring that disputes are adjudicated on by an independent and impartial judicial body - Appellants will have more specialist, expert and |
|
| ||||
|
|
| structured adjudication by JAAT than can typically be provided by the Minister and officials |
|
|
|
| - | Simplification of administrative appeals system will help people better understand their rights of appeal |
|
|
Chapter 5: Ending the role of the States of Jersey Complaints Panel
Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
Recommendation 5.1 The States of Jersey Complaints Panel should be replaced by a Jersey Public Services Ombudsman Note: Chapter 5 contains alternative recommendations for improving the Complaints Panel if our principal recommendation is rejected by the CM; these are also listed in Annex B. | Repeal of the Administrative Decisions (Review) (Jersey) Law 1982 by article in AJJL or in separate legislation creating the Jersey Public Services Ombudsman | CCA, CMD, EDU, SEB, INF, EDTSC, TR, ENV, SS SG, Panel, LOD | 2019 (contingent on Recommendation 6.1) | |||
- Replacing the States of Jersey Complaints Panel would enable the creation of a Jersey Public Services Ombudsman. |
|
| ||||
Chapter 6: Creating a Public Services Ombudsman for Jersey
Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
Recommendation 6.1 The Government of Jersey should make an "in principle" decision to support next steps in the creation of a Jersey Public Services Ombudsman (JPSO) | Ministerial decision Creation of the JPSO would require legislation, either as part of the AJJL or in separate legislation | CCA, CMD, EDU, SEB, INF, EDTSC, TR, ENV, SS SG, Panel, LOD | 2018 | |||
- One-off cost of drafting legislation to create the JPSO (cost to Government of Jersey) and scrutinising it during the legislative process (cost to States Assembly) - Ongoing costs of operating the office of the JPSO. This will be off-set to some extent by savings from the abolition of the States of Jersey |
|
| ||||
Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
|
|
|
| |||
- The creation of the JPSO may not lead to significantly more people using its services compared to the States of Jersey Complaints Panel - The JPSO may encounter resistance within the Government of Jersey and other SPBs to implementing recommendations in particular cases and on broader systematic issues |
|
| ||||
Recommendation 6.2 The Government of Jersey should request the Jersey Law Commission to develop institutional design options for the JPSO | Ministerial decision | CCA | 2018 | |||
Developing more detailed proposals will enable Ministers, officials and States Members to evaluate different options for the PSOJ, drawing on published research, analysis |
|
| ||||
Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 |
|
| of the local context, and lesson learning from other ombudsman systems Risks The detailed proposals for a JPSO may not receive support from the Government of Jersey or the States Assembly |
|
|
Chapter 7: The role of the Royal Court in Jersey's administrative redress system
Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
Recommendation 7.1 Amend 54 Laws that currently provide a right of appeal from an administrative decision to the Royal Court to provide instead for the appeal to be heard by the JAAT | Amendment of Laws. This can be done in the proposed AJJL |
| CCA JG, BC, VD, LOD | 2019 | ||
(unnumbered recommendation because no change in law proposed) Retain approximately 19 rights of appeal from administrative decision-making to the Royal Court | No action needed | No change is proposed | CCA JG, BC, VD, LOD | 2019 | ||
Recommendation 7.2 Amend the Royal Court Rules to enable the Royal Court to transfer the hearing of a case from the Royal Court to JAAT, and vice versa (See also Recommendation 3.16, which proposes a counterpart of this | Amendment of the Royal Court Rules by the Superior Number of the Royal Court under powers from Article 11 of the Royal Court (Jersey) Law 1948 | CCA JG, BC, VD | 2019 | |||
- This will facilitate flexibility in hearing particular cases, to ensure that each appeal can be heard by the most appropriate judicial body |
|
| ||||
Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
provision in the JAAT Rules) |
| - Ultimately, users of the appeal process will benefit from a better coordinated and more effective tribunal appeals system |
|
| ||
Recommendation 7.3 There should be a standard time limit for making administrative appeals (unless there is a strong public interest in specifying a different limit in a law). The standard time limit should be 28 days from the appellant receiving notice of the decision appealed against | Amendment of Laws. This can be done in the proposed AJJL | CCA JG, BC, VD, LOD | 2019 | |||
- Simplification of administrative appeals will help people better understand the system and their rights of appeal - Reduce unfairness to individuals of unjustified differences in time limits for appealing against different administrative decisions |
|
| ||||
Recommendation 7.4 A Royal Court Rules Review Group should consider reviewing Part 16 of the Royal Court Rules (Applications for Judicial Review in Civil Proceedings) | Decision of the Bailiff | CCA JG, BC, VD | 2018 | |||
- Opportunity to identify improvements in the Part 16 procedure |
|
| ||||
Chapter 8: Using Alternative Dispute Resolution (ADR)
Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
Recommendation 8.1 Further research should be carried out to develop proposals for mediation and other forms of ADR related to disagreements about administrative decision-making in the Island | Detail to be developed by a Rules Committee having regard to Jersey Law Commission proposals | CCA JG, BC, VD, LOD | 2018 | |||
- The rule will provide flexibility to JAAT to dispose of cases other than by a formal hearing, where this is appropriate and the parties agree - Ultimately, users of the appeal process will benefit from a better coordinated and more effective administrative redress appeals system |
|
| ||||
List of Alternative Recommendation relating to the States of Jersey Complaints Panel
The Topic Report, at Chapters 5 and 6, set out principal recommendations for improving the external complaint handling provision in Jersey. Its primary recommendation is that the States of Jersey Complaints Panel (Chapter 5) should be replaced by a Jersey Public Services Ombudsman (Chapter 6). The Topic Report proposed that should its primary recommendation not be accepted by the Government of Jersey or the States Assembly, it has developed a set of alternative proposals designed to improve the functioning of the States of Jersey Complaints Panel: these are explained and analysed in Chapter 5.
Alternative Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
Alternative recommendation 5.2 The States Greffe should have a legal duty to provide a programme of training to members of the Panel | Amendment to ADJL | CCA, CMD SG, Panel | Contingent on Recommendations 5.1 and 6.1 | |||
- One-off cost of drafting amendment to ADJL (cost to Government of Jersey) and scrutinising it during the legislative process (cost to States Assembly) - Ongoing resources sufficient to provide induction to new members and continuing professional development |
|
| ||||
Alternative Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
|
| to all Panel members to address currently unmet training needs (cost to States Assembly) Benefits - Panel members will be better equipped to fulfil their role - Ultimately, users of the complaints process (complainants and public bodies) will benefit from improved quality of complaint resolution |
|
| ||
Alternative recommendation 5.3 The States Greffe should invest resources in developing a website and other material to explain and publicise how the Panel can help aggrieved people | Decision of the States Assembly | CCA, CMD SG, Panel | Contingent on Recommendations 5.1 and 6.1 | |||
- Members of the public will gain greater awareness of the existence and role of the Panel - More people with complaints will use the Panel Risks - Better public information may not lead to significantly better public awareness of the Panel - Better public information may not generate significantly greater demand for use of the Panel as a form of redress from people with complaints |
|
| ||||
Alternative recommendation 5.4 The remit of the Panel should be widened beyond Ministers and States of Jersey | Amendment to ADJL | CCA, CMD SG, Panel, LOD | Contingent on Recommendations 5.1 and 6.1 | |||
- One-off cost of drafting amendment to ADJL (cost to Government of Jersey) and scrutinising it during the legislative process (cost to States Assembly) |
|
| ||||
Alternative Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
Departments to cover all SPBs |
| - The States Greffe and Chairman of the Panel will need to develop and deliver induction and training to key personnel in SPBs not currently within the Panel's remit about the role of the Panel and the implications of being brought within it remit (cost to States Assembly) Benefits - Will create a better match between (a) the Panel's remit and (b) how public services are delivered and the bodies making administrative decisions |
|
| ||
Alternative recommendation 5.5 The grounds on which people can complain to the Panel should be reformulated | Amendment to ADJL | CCA, CMD SG, Panel, LOD | Contingent on Recommendations 5.1 and 6.1 | |||
- The Panel's work will be better aligned to the techniques, skills, and membership of a Panel consisting mainly of non- legally qualified members - Ultimately, users of the complaints process (complainants and public bodies) will benefit from improved quality of complaint resolution |
|
| ||||
Alternative recommendation 5.6 The Panel should not accept complaints where the aggrieved person has or had
| Amendment to ADJL | CCA, CMD SG, Panel, LOD | Contingent on Recommendations 5.1 and 6.1 | |||
- The Panel's work will be better aligned to the techniques, skills, and membership of a Panel consisting mainly of non- |
|
| ||||
Alternative Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
3. it would be reasonable for the person to challenge the legality of the administrative decision by making an application for judicial review to the Royal Court. |
| legally qualified members - Ultimately, users of the complaints process (complainants and public bodies) will benefit from improved quality of complaint resolution |
|
| ||
Alternative recommendation 5.7 All members of the Panel (not only the Chairman and Deputy Chairman) should have power to attempt informal resolution of complaints | Amendment to ADJL | CCA, CMD SG, Panel, LOD | Contingent on Recommendations 5.1 and 6.1 | |||
- The Panel's capacity to offer informal resolution of complaints will be increased - The reform will improve efficiency and effectiveness of the Panel (e.g. preventing the Chairman or Deputy Chairman from presiding at a hearing after he has attempted informal resolution, which has failed, because this would create a conflict) Risks - Too few people may continue to use the Panel to justify a full training programme for all Panel members on informal resolution |
|
| ||||
Alternative recommendation 5.8 The Chief Minister should prepare a report reviewing responses to Panel recommendations since October 2011 | Ministerial decision | CCA, CMD SG, Panel, LOD | Contingent on Recommendations 5.1 and 6.1 | |||
- One-off cost of Ministers', officials' and Law Officers' time in conducting the review (cost to the Government of Jersey) |
|
| ||||
Alternative Recommendation | Method of Implementation | Costs, Benefits, Risk | Public Sector Stakeholders | 2018/2019 | ||
and making proposals for the Government of Jersey's future working relationship with the Panel |
|
|
| |||
- Review and report will provide greater transparency about Government of Jersey thinking about its past and future relationship with the Panel - Review and report will contribute to evidence- base for policy-making about the future of the Panel. |
|
| ||||