States of Jersey Law 2005: delegation of functions – Minister for Treasury and Resources – additional delegations March 2020, and appointment of an additional Assistant Minister

2020  R.26

REPORT

On 20th March 2020, the Minister for Treasury and Resources made a Ministerial Decision delegating certain of her functions under Articles 28, 30 and 30A of the States of  Jersey  Law  2005 (see  Decision  reference  MD-TR-2020-0028,  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.

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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.

(1A)  A Minister shall not delegate to an Assistant Minister any function the

delegation of which is wholly prohibited by an enactment.

(1B)  Where a Minister delegates to an Assistant Minister a power to make an enactment, paragraphs (4) and (5) of Article 26 shall apply to the making

of an enactment by the Assistant Minister, in exercise of the delegated power, as they would apply to the making of the enactment by the Minister.

2. A Minister shall not delegate to an officer –

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 wholly, or to an officer, 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.

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

"30  Ministerial delegations to be presented to States

1. A Minister who delegates functions under Article 28 shall present to the States a report specifying the functions delegated and to whom.
2. A Minister shall not be required to present a report under paragraph (1) where the delegation is so immediate and of such brief duration that it is not practicable to present the report before the delegation ends.

30A  List of delegations to be published

1. The Chief Minister shall cause to be established, maintained and published a consolidated list of –

1. the functions for the time being discharged by the Chief Minister and by each Minister;
2. the functions for the time being delegated by the Chief Minister and each Minister under Article 28, and to whom.

2. The list shall also specify which Minister is discharging, for the time being, the functions of another Minister under Article 27(1) or (2).
3. The information described in paragraph (1)(b) or (2) is not required to be incorporated in the list where the period for which the delegation has effect or for which one Minister's functions are being discharged by another is so immediate and of such brief duration that it is not practicable to amend and publish the list to incorporate the information before the end of the period.
4. It shall be sufficient if the list is published on a website."

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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 – _____________________________________________________________________

Increase in ministerial resilience

Considering the current Coronavirus outbreak, it is recommended that the Minister enhances capacity within her Assistant Ministerial team, providing greater resilience over the ability to deliver timely and effective decision-making. The Minister currently only has one Assistant Minister, Deputy L.B.E. Ash of St. Clement .

It is therefore recommended that the Minister for Treasury and Resources appoint an additional Assistant Minister, Senator I.J. Gorst , and delegate all functions to Senator Gorst , having received the consent of the Chief Minister. The normal expectations thereon apply, including that the Assistant Minister so appointed and delegated acts in liaison with the Minister wherever and insofar as practical.

R.26/2020

Legal vires

Article 25(1) of the States of Jersey Law 2005 allows a Minister to appoint elected members as his or her Assistant Ministers. Under Article 25(2) of the Law, a Minister may only appoint an Assistant Minister with the prior consent of the Chief Minister.

Article 28 of the States of Jersey Law 2005 permits a Minister to delegate, wholly or partly, functions conferred upon or vested in the Minister to an Assistant Minister. The Minister can delegate part, or all, of the functions conferred upon or vested in the Minister, unless the delegation of that function is wholly prohibited by an enactment.