Connétables and other parish officials: explanatory document and new legislation (P.119/2012) – comments.

STATES OF JERSEY

CONNÉTABLES AND OTHER PARISH OFFICIALS: EXPLANATORY DOCUMENT AND NEW LEGISLATION (P.119/2012) – COMMENTS

Presented to the States on 15th January 2013 by the Council of Ministers

STATES GREFFE

2012   Price code: A  P.119 Com.(2)

COMMENTS

The Council of Ministers rejects part (b) of this Proposition, whilst deferring to the Comité des Connétable s with regard to part (a).

1. Whilst the consolidation and, where necessary, codification of the law in any field might be seen as be a worthy objective, the scale and cost of such an undertaking has to be weighed against the potential benefit it is likely to confer. It is not clear from the Report to this Proposition that the nature and scale of the undertaking in this case has been fully appreciated.
2. The starting point for such an undertaking would be to re-cast provisions contained  in the  Code  of  Laws  of  1771  which  contains  oaths  and  other provisions relating to the Connétable , Procureur du BienPublic, Centenier, Vingtenier, Constable's Officer, Roads Inspector, etc. and the Visite Royale.
3. The main enactments in French range from the Parish Assemblies Law of 1804 (last amended in 2010) to the Loi sur la Voirie (last amended in 2005) dealing with the roads committee and the branchage.
4. But it is not only these parochial' Laws that would form part of the project. The role of a Centenier is governed in no small part by the Criminal Procedure Law of 1864 (last amended in 2012) and related legislation (see paragraph 7 below). This major Law, along with others, also would require to be drafted afresh  and  submitted  for  Royal  Assent.  This  in itself  would  be  a  major undertaking – effectively a new Criminal Procedure Law would have to be enacted.  And there is of course  no  expedited  consolidation  procedure  for debate  in  the  States,  and  so  any  such  draft legislation  would  have  to be debated as original' legislation.
5. More minor Laws would include those such as the Loi sur les Rassemblements tumultueux and the Loi sur les Publications dans les églises.
6. It must also be borne in mind that the law governing the administration of the Parish  is not  restricted  to the  secular  Parish.  Parish  officials  include  the Churchwarden  (Surveillant')  and  Almoners  (Aumôniers),  and  Parish Assemblies divide into secular and ecclesiastical, each with its own legal underpinning. The Parish Assemblies Law and the Loi sur les Rectorats, as well as customary law, interact with the recently approved Canons for Jersey. To codify and re-write these laws would require co-ordination between local canon  and  secular  law,  and  in itself  would  amount  to a  major  academic undertaking (barely more than a year after the new Canons were approved by the States and have come into force).
7. An important consideration in any event is timing. This Proposition itself stems from the passing of the Connétable s (Miscellaneous Provisions) (Jersey) Law 2012, which has been registered by the Royal Court but has yet to be brought into force (in tandem with the new States of Jersey Police Force Law –  the  2 Laws  being  partly  interdependent).  For  that  to  be  done, amendments have yet to be passed by the States (by Regulations) to a large amount of Laws that to a greater or lesser extent touch on the subject matter of this Proposition, namely the –

• Rates (Jersey) Law 2005
• Road Traffic (Jersey) Law 1956
• (newly intituled) Honorary Police (Jersey) Law 1974
• Loi (1864) règlant la procédure criminelle (already mentioned above)
• Magistrate's Court (Miscellaneous Provisions) (Jersey) Law 1949
• Loi (1853) pour la répression des moindres délits
• Criminal Justice (Anonymity in Sexual Offence Cases) (Jersey) Law 2002
• Police Procedures and Criminal Evidence (Jersey) Law 2003
• Criminal Justice (Compensation Orders) (Jersey) Law 1994
• Criminal Procedure ( Connétable s and Centeniers) (Jersey) Law 1996
• Loi (1853) au sujet des centeniers et officiers de police
• Customs and Excise (Jersey) Law 1999
• Extradition (Jersey) Law 2004
• Loi  (1797)  sur  les  rassemblements  tumultueux  (already  mentioned above)
• Loi (1885) touchant l'Administration des Marchés Publics
• Harbours (Administration) (Jersey) Law 1961
• Aerodromes (Administration) (Jersey) Law 1952
• Motor Traffic (Third-Party Insurance) (Jersey) Law 1948
• Motor Vehicle Registration (Jersey) Law 1993
• Policing  of  Roads,  Parks  and  Sea  Beaches  (Application  of  Fines) (Jersey) Law 1957
• Nursing and Residential Homes (Jersey) Law 1994
• Places of Refreshment (Jersey) Law 1967.

8. The draft Regulations that amend these Laws – in order to implement the Connétable s  (Miscellaneous  Provisions)  (Jersey)  Law  2012  ("the  2012 Law") – will inevitably contain Reports and Explanatory Notes in the relevant Projet that will give some of the very clarification that the Deputy seeks in his Proposition, in the areas of law concerned. The work required by the Deputy 's Proposition  would  cut  across  the  work  required  to  bring  into  force  the 2012 Law. This would not only be wasteful of resources, but could lead to delay in bringing the 2012 Law into force – which in turn might hinder the bringing into force of the new States of Jersey Police Force Law.
9. In summary, therefore, the preparation of new legislation as proposed would entail not only the translation of existing legislation, but a complete rewrite in order to incorporate the rules of customary law, and this in the middle of what is in  any  event  a  transitional  phase  as  far  as  the  relevant  legislation  is concerned. This would require a significant allocation of policy officer and law drafting resources, not to mention Law Officers' Department time and resources that would have to be superimposed upon the work needed to bring the  2012  Law  into  force.  Before  drafting  could  commence,  the  rules  of customary law would have to be researched and collated. Even with that preparatory work, the drafting of the legislation itself would require, at a minimum,  50 drafting  days,  having  regard  to the  scope  of  the  project described  in  part (a)  of  the  Proposition.  Drafting  time  is currently  fully allocated to projects that deliver the States strategic objectives (including the bringing into force of the 2012 Law which will provide part at least of the clarification that this Proposition seeks). If paragraph (b) of the Proposition

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P.119/2012 Com.(2)

were adopted, time would have to be diverted away from those projects, with a  consequent  delay  in  their  delivery.  It  would  be  ironic  if  work  on  the 2012 Law were hindered, given that that work would itself meet at least in part the aims of the Deputy 's Proposition.

10. When the 2012 Law – with the many consequential amendments referred to above – has been brought into force (assuming the States agree to bring it into force) the Law Officers' Department will be better placed to assist with any initiative to make translations more freely available of Jersey legislation that remains  in the  French  language.  It  is fair  to say  that  translations  have historically  been  piecemeal  and  uncoordinated.  Some  translations  are  a reliable  guide,  some  less so; and  some  may  not  be  fully  up-to-date. The position in this respect could be improved so that translations – although they would still not supplant the actual text of the Law for official court purposes – might routinely be available for purchase at the States Greffe Bookshop. The Law Officers' Department has signalled its willingness to examine whether it would have the resources to assist in checking the translations that presently exist and in helping to bring them up to date.
11. The Council therefore believes that it would be a much better investment of effort and resources – and thus in the public interest – to allow the work to continue on bringing into force the 2012 Law, and to pursue the option of checking, collating and updating translations of all Jersey enactments that are in the French language – and not just those that relate to the subject matter of the present Proposition.

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Statement under Standing Order 37A [Presentation of comment relating to a proposition]

The  Council  of  Ministers  apologises  for  the  late  delivery  of  these  comments. Following  consideration  by  the  Council  of  Ministers,  further  revisions  to  the comments were required which were unable to be finalised until late afternoon on Friday.