Draft Public Records (Jersey) Amendment Law 202- (P.95/2025): comments

STATES OF JERSEY

DRAFT PUBLIC RECORDS (JERSEY) AMENDMENT LAW 202- (P.95/2025): COMMENTS

Presented to the States on 30th January 2026

by the Economic and International Affairs Scrutiny Panel

STATES GREFFE

2025  P.95 Com.(2)

COMMENTS

Background

The  Draft  Public  Records  (Jersey)  Amendment  Law  202-  [P.95/2025]  (hereafter referred to as "draft Law") was lodged au Greffe on 28th October 2025 by the Minster for Sustainable Economic Development (hereafter referred to as "the Minister"). The principles of the draft Regulations were scheduled for debate on 20th January 2026.

The Economic and International Affairs Scrutiny Panel (hereafter referred to as "the Panel") presented Comments [P.95/2025 Com.] on 15th January 2026. On 20th January 2026 the Panel was notified that the Minister had lodged an amendment [P.95/2025 AMD] to the proposition. Due to the timing of the amendment the Panel did not have sufficient time to scrutinise it, and it was agreed by the Minister that the draft proposition and draft amendment would therefore be deferred to the States meeting of the week commencing on 4th February to allow the Panel and States Members appropriate time to consider the amendment.

The Panel has since sought clarification from relevant government officers concerning the purpose and impact of the Minister's amendment. These Comments summarise the Panel's initial concerns and the responses received.

Purpose of the Minister's Amendment – Removal of the Minister's Power to "Direct" Public Institutions (Article 38(2B))

The amendment proposes removing a specific provision (formerly Article 38(2B)) which would have allowed the Minister, if notified of a breach of records management duties, to "direct the public institution to remedy the breach with the assistance of the Archivist." The Panel has asked the followings questions:

• why this power had been included in the original draft,

• why the Minister now proposed to remove it,

• whether its removal would weaken accountability or enforcement, and

• whether alternative means exist to achieve compliance in remedying a breach.

Government Officers advised that under the Law as drafted, the Records Advisory Panel (RAP) identifies breaches and may notify the Minister. The Minister may then take "any steps considered necessary" to address the breach. The term "direction" already appears elsewhere in the Public Records Law in relation to both the RAP and the Archivist. Although "directing" a public institution would carry no legal penalty, the symbolism of ministerial direction over independent institutions could be interpreted as inconsistent with the States of Jersey Law 2005 and the Departments of the Judiciary and the Legislature (Jersey) Law 1965, in which independence from ministerial interference is protected.

Panel's view

The Panel understands the rationale provided. It appears the Minister wishes to avoid any  implication  of  direct  ministerial  authority  over  public  institutions  where constitutional independence must be maintained. The Panel considers this explanation reasonable and asks that the Minister explicitly confirm this reasoning during the debate,

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so  that  Members  can  be  assured  the  power  is  being  removed  for  constitutional consistency, rather than to limit oversight.

Impact of Removing the Power to "Direct"

The Panel's second concern was whether removing Article 38(2B) would materially weaken the enforcement framework for public records management. Specifically, the Panel sought assurance that:

• the Minister would still be able to take suitable action when notified of a breach, and

• the RAP's oversight function would not be diminished.

Officers confirmed that Article 38(2A) remains unchanged. Under 38(2A), when the RAP becomes aware of a breach, it may notify the Minister, who may then take any steps considered necessary, on the advice of the RAP. This provides a broad and flexible power for the Minister to respond to breaches without the specific term "direct". Therefore, the removal of (2B) does not prevent the Minister from requiring remedial steps, it simply avoids the use of the term "direct" which may carry unintended constitutional implications.

Panel's view

On the basis of officer advice, the Panel is satisfied that the removal of Article 38(2B) does not reduce the Minister's functional ability to address breaches. The Minister retains the capacity to act, with the RAP's advice, under the remaining provisions to achieve compliance. However, the Panel emphasises that clarity during the debate will help Members understand that the practical enforcement mechanism remains intact.

Conclusion

Having reviewed the Minister's amendment and received detailed clarification from officers, the Panel is satisfied that:

• The  removal  of  the  Minister's  power  to  "direct"  is  intended  to  avoid constitutional ambiguity regarding ministerial authority over public institutions.

• The core enforcement mechanism (enabling the Minister to act on notification of a breach) remains fully operational under Article 38(2A).

• There  is  therefore  no  material  weakening  of  the  draft  Law's  intent  or effectiveness in remedying a breach.

Accordingly, the Panel remains content to support the draft Law, subject to the Minister clearly setting out the reasoning for this amendment during the debate, ensuring States Members are fully informed when considering the proposition.

Comment under Standing Order 37A

These Comments were submitted after the noon deadline due to the short timeframe afforded by the lodging of the amendment by the Minister, in conjunction with ongoing Panel priorities and workload.

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