States Meeting Transcript - 17/01/2006

STATES OF JERSEY

OFFICIAL REPORT

TUESDAY, 17th JANUARY 2006

[CONTENTS:

APPOINTMENT OF MINISTERS, COMMITTEES AND PANELS

1. Appointment of 2 members to Chairman's Committee - adjourned

QUESTIONS

2. Written Questions

1. The Minister for Transport and Technical Services tabled an answer to a question asked by Senator B.E. Shenton regarding the school bus contract and recovery ofcosts relating to shift allowance
2. The Minister for Health and Social Services tabled an answer to a question asked by Deputy R.G. Le Hérissier of St. Saviour regarding the suspension of staff.
3. The Minister for Social Security tabled an answer to a question asked by Deputy G.P. Southern ofSt. Helier regarding matters relating to P.282/2005 – draft Employment (Minimum Wage) (Amendment) (Jersey) Regulations 200-.
4. The Minister for Treasury and Resources tabled an answer to a question asked by Deputy G.P. Southern of St. Helier regarding the new ITIS scheme.
5. The Chief Minister tabled ananswerto a question asked by Deputy G.P. Southern of St. Helier regarding R.C. 18/2005 - States Employees Engaging in Political Activities.
6. The Minister for Planning and Environment tabled an answer to a question asked by Deputy G.C.L. Baudains of St. Clement regarding the property known as Lezardrieux', St. Clement .
7. The Chairman of the Comité des Connétable s tabled answers to questions asked by Deputy G.C.L. Baudains of St. Clement regarding the commercial rate' and the position of the Parishes under the Low Income Support Scheme.
8. The Minister for Treasury and Resources tabled an answer to a question asked by Deputy G.C.L. Baudains of St. Clement regarding the shareholding of Jersey Telecom.
9. The Minister for Transport and Technical Services tabled an answer to a question asked by Deputy G.C.L.BaudainsofSt. Clement regarding the possible introduction ofcarpark barriers in place of scratch cards.
10. The Minister for Economic Development tabled an answer to a question asked by Deputy G.C.L. Baudains of St. Clement regarding his strategies for rejuvenating the agricultural and tourism industries.

3. Oral Questions

1. Deputy G.P. Southern of St. Helier of The Chief Minister - Progress on the establishment of a Population Office
2. Senator L. Norman of The Minister for Economic Development - Action on the agreement with Guernsey to give equitable access to Channel Island waters to local fishermen

1. Deputy R.G. Le Herissier of St. Saviour
2. Senator L. Norman
   3. Deputy F.J. Hill of St. Martin of the Chairman of the Comité des Connétable s - Criminal Record Office checks on candidates for honorary police positions

1. The Deputy of St. Martin
2. Deputy R.G. Le Herissier
3. Deputy R.G. Le Herissier
   4. Deputy R.G. Le Herissier of The Minister for Economic Development - Progress on

incorporation of Jersey Post

1. Deputy R.G. Le Herissier
2. Deputy R.G. Le Herissier
3. Deputy G.P. Southern
4. Deputy R.G. Le Herissier
5. Connétable A.S. Crowcroft of St. Helier
6. Deputy P.J.D. Ryan of St. Helier
7. Deputy R.G. Le Herissier

5. Deputy G.P. Southern of the Minister for Economic Development - Progress on securing ferry services on the southern route
6. Senator L. Norman of The Minister for Education, Sport and Culture - Non-employment of persons with a record for sex offences or violence
   1. Senator L. Norman
   2. Connétable K.P. Vibert of St. Ouen
   3. The Deputy of St. Martin
   4. Deputy R.G. Le Herissier
7. Deputy R.G. Le Herissier of The Minister for Health and Social Services- Protection of Health Service staff re. whistle blowing'
   1. Deputy R.G. Le Herissier
8. The Deputy of St. Martin of The Chief Minister - Delay in bringing into force the Human Rights (Jersey) Law 2000
   1. Deputy R.G. Le Herissier
   2. Senator S. Syvret
   3. Deputy R.G. Le Herissier
   4. Deputy G.P. Southern
9. The Connétable of St. Helier of The Minister for Home Affairs - Levels of anti-social, disorderly and violent behaviour recorded in recent months

1. The Connétable of St. Helier
2. The Deputy of St. Martin
3. Deputy S.C. Ferguson of St. Brelade
4. Deputy P.V.F. Le Claire of St. Helier
5. Deputy J.B. Fox of St. Helier
6. The Connétable of St. Helier
7. Deputy G.W.J. de Faye of St. Helier
8. Deputy J.J. Huet of St. Helier
9. Deputy K.C. Lewis of St. Saviour
   10. Deputy S. Pitman of St. Helier of The Minister for Education, Sport and Culture - Plans for a floating youth café facility at the Waterfront

1. The Connétable of St. Helier
2. Deputy S. Pitman
3. The Connétable of St. Helier
4. Senator S. Syvret
5. Senator P.F.C. Ozouf
6. Deputy J.B. Fox

4. Questions to Ministers without notice: The Minister for Economic Development

1. The Connétable of St. Helier - Possible re-launching of a Tourism Board and plans for the Tourism Development Fund
2. The Deputy of St. Martin - Relocation ofJerseyDairy to Howard Davis Farm, Trinity
3. Deputy A.D. Lewis of St. John - Jersey's position the Her Majesty's Government vis-à-vis the film industry
4. Deputy S. Power of St. Brelade - Cost of travelling to St. Malo by sea

5. Deputy S.C. Ferguson - Fulfilment industry
6. Deputy D.W. Mezbourian of St. Lawrence - Support of tourism events
7. Deputy A. Breckon of St. Saviour - Progress on Financial Ombudsman
8. Deputy R.G. Le Herissier - Advice on sea ferry policy
9. Deputy G.P. Southern - Subsidy on school milk
10. Deputy S.Power - Meeting with sea ferry operator
11. Deputy P.J.D. Ryan - Jersey Post costs of delivering the Consumer Council's newsletter
12. Deputy C.J. Scott Warr en of St. Saviour - cross-subsidisation of small packets postal rates

5. Questions to Ministers without notice: The Chief Minister

1. The Connétable of St. Helier - Advertisement of a further Chief Executive Officer post
2. Deputy G.P. Southern - Law drafting time for social justice legislation
3. Deputy R.G. Le Herissier - Collective responsibility for the Council of Ministers
4. Deputy S.C. Ferguson - Human Resources policy
5. Deputy P.N. Troy ofSt. Brelade - Funding for respite care
6. Deputy G.P. Southern - Legal advice for Scrutiny Panels
7. Deputy R.G. Le Herissier - Procurement and strategic procurement
8. The Deputy of Trinity - "No comment" responses by Ministers
9. Deputy G.P. Southern - Ban on political activity by civil servants
10. Deputy R.G. Le Herissier - Definition of role of Director of Strategic Procurement
11. Deputy R.G. Le Herissier - Three most important priorities
12. Deputy G.P. Southern - Expansion of fulfilment industry and migration policy
13. Deputy G.P. Southern - Employment of local residents in the fulfilment industry
14. Senator P.F.C. Ozouf - Expectation of questions asked
15. Deputy J.J. Huet - Expectation of questions from Assistant Ministers
16. Deputy J.J. Huet - Need for Chief Executive post at Planning Department

PUBLIC BUSINESS

1. Draft Police Force (Amendment No. 9) (Jersey) Law 2003 (Appointed Day) Act 200- (P.268/2005) - Senator W. Kinnard
2. Planning Applications Panel: membership (P.281/2005) - Senator F.E. Cohen
3. Draft Finance (Jersey) Law 200- (P.279/2005 - Third Reading) - Senator F.H. Walker

Deputy C.J. Scott Warr en

Senator P.F.C. Ozouf

4. Draft Emergency Powers and Planning (Amendment No. 2) (Jersey) Law 200- (P.220/2005) - Deputy P.V.F. Le Claire

Senator F.H. Walker

Deputy C.H. Egre

Deputy J.B. Fox

Deputy P.V.F. Le Claire

LUNCHTIME ADJOURNMENT

7. Senator M.E. Vibert - proposal to vary times

Connétable D.F. Gray of St. Clement

Deputy R.G. Le Herissier

Senator P.F.C. Ozouf

Deputy G.W.J. de Faye

Senator M.E. Vibert

Senator J.L. Perchard

RECOMMENCEMENT

APPOINTMENT OF MINISTERS, COMMITTEES AND PANELS

8. Appointment of 2 members to Chairman's Committee - Deputy R.C. Duhamel NOTIFICATION OF LODGED PROPOSITIONS
9. Draft Companies (Amendment No. 1) (Jersey) Regulations 200- (P.4/2006) - Senator P.F.C. Ozouf

PUBLIC BUSINESS

1. Field 571, la Rue du Puits Mahaut, Grouville : petition (P.147/2005) - Deputy C.F. Labey of Grouville

Senator J.L. Perchard

Connétable D.J. Murphy of Grouville

Deputy C.J. Scott Warr en

Deputy J.J. Huet

Senator P.F.C. Ozouf

Deputy P.N. Troy

Deputy G.W.J. de Faye

Senator L. Norman

The Deputy of St. Martin

Senator F.E. Cohen

Connétable T.J. du Feu of St. Peter

Deputy J.A. Hilton of St. Helier

Deputy J.A.N. Le Fondré of St. Lawrence

Connétable R.E.N. Dupré of St. John

Deputy R.G. Le Herissier

Deputy J.B. Fox

Deputy P.V.F. Le Claire

Deputy S.C. Ferguson

The Deputy of St. John

Deputy K.C. Lewis

The Deputy of Grouville

2. Draft Sexual Offences (Jersey) Law 200- (P.196/2005 - commencement of debate) -

Senator W. Kinnard

Deputy J.G. Reed of St. Ouen (Reference back proposed) Senator S. Syvret

Senator M.E. Vibert

Deputy P.V.F. Le Claire

Deputy J.J. Huet

Deputy K.C. Lewis

H.M. Solicitor General

Deputy G.W.J. de Faye

Senator P.F.C. Ozouf

Senator W. Kinnard

Senator F.E. Cohen

Deputy J.A.N. Le Fondré

The Deputy of St. Ouen

(Reference back defeated)]

The Roll was called and the Dean led the Assembly in Prayer.

APPOINTMENT OF MINISTERS, COMMITTEES AND PANELS 1. The Deputy Bailiff :

We come to F and although there is nothing on the Order Paper, it is the case that under Standing Order 112(10) it is necessary for the Assembly at this sitting to appoint members of the Chairmen's Committee in relation to Scrutiny Panels. Deputy Duhamel, I understand that you are the Chairman. Would you wish to put forward two nominations?

Deputy R.C. Duhamel of St. Saviour (Chairman of the Chairmen's Committee):

Yes, Sir. Two names have been suggested but I am happy to accept further nominations from the floor of the House if Members so wish. The nominations mentioned so far would be Senator Norman and Deputy Le Herissier.

The Deputy Bailiff :

Normally we would proceed to deal with this straight away, but unfortunately as I say, due to an oversight, there was no mention in the Order Paper of this. Would the Assembly feel happier if perhaps this was adjourned until after lunch so that Members can decide whether they wish to nominate anyone else, because it is rather difficult, I think, to do so at such short notice?

Deputy R.C. Duhamel:

I think that would be wise, Sir.

The Deputy Bailiff :

So, perhaps we will consider this at the first convenient moment after the luncheon adjournment, and at that stage I will see whether there are any other nominations.

QUESTIONS

Written Questions -

1. WRITTEN QUESTION TO THE MINISTER FOR TRANSPORT AND TECHNICAL SERVICES BY SENATOR B.E. SHENTON

Question

Would the Minister inform members –

1. whether the current school bus contract has expired and, if so, whether the new contract will be put out to tender and what the expected timetable is? and,
2. whether any actions have beentakentorecoverthe£186,802 paid to Connex inrespectof shift allowance, (as outlined in Recommendation 6 of R.C. 64/2005 of the former Environment andPublicServices Committee – Response to the Committee of Inquiry into the tender process and award ofthe bus contract), and, if not, advise whetherthismoney will be claimed and when, the reason for the delay, and whether interest will also be claimed?

Answer

1. The current contract for the provision ofschool buses expired at the end ofthe summer term 2005. Since then, discussions have been ongoing with the current operator to ensure the service continues and to consider how best to provide the service in the future.
2. The Committee of Inquiry into the BusTenderingprocessrecommendedthatthe Environment and Public Services Committee should take immediate action to determine whetherthe £186,802 payment in respect of the shift allowance can be recovered, either from Connex or from any other person. The previous Committee took that action and sought the advice of H.M. Attorney General. When that advice has been received, I will consider the appropriate action to take which, if it is to seek repayment ofthe monies fromConnex,will include the issue of interest.

2. WRITTEN QUESTION TO THE MINISTER FOR HEALTH AND SOCIAL SERVICES BY DEPUTY R.G. LE HERISSIER OF ST. SAVIOUR

Question

Would the Minister inform members –

1. ofthe number of staff who have been suspended in each ofthe last three years (2002 to2005)as a result ofdisciplinary infractions, if any, and in each case, identify the natureof the alleged infraction, the period of suspension and the means of disposal of the case?
2. whether the Director of Nursing receive any payments upon resigning and, if so, what were they?
3. whether the Directorof Nursing was appointed as Deputy Chief Executive approximately two weeks before departure from office and, if so, the reasons why?

Answer

1. From 2002, the following suspensions took place:

Employee Group Number of Staff in Employee Group

4 Manual Workers 512 2 Social Workers  45 1 Civil Servant 642 1 Residential Child Care Officer  72 2 Medical staff  90 11 Nurses 966

Total 21 Total 2327

(The number of staff in the Social Worker category is an approximate because of how the term "Social Worker" is defined, complicated by the fact that Social Workers are paid as Civil Servants).

The reasons for the suspension and the outcome are listed in the table below:

* This is a complex States of Jersey Police investigation. It has been directed by the H.M. Solicitor General that disciplinary action cannot take place until the investigation is completed.

2. The States of Jersey entered into a mutual confidentiality clause with the previous Director of Nursing which is, by definition, legally binding on both parties.
3. The Director of Nursing was designated as " Deputy ChiefExecutive" on 18th November 2005. This designation was limited and very specific. The Director of Nursing would act as formal deputy when the Chief Executive was absent from the Island, either on annual leave or on States of Jersey business. Such a designation was a formality asthe Director of Nursing has acted in this capacity since the Chief Executive was appointed in May 2004. Further, the Director of Nursing would act as formal deputy when a number of managers, who were of the same level of authority, came together on a project which "cut across" the organisation. In such circumstances, the Director of Nursing would have accountability for the success of that project. (In the event, no such project was actioned).

Needless to say, to comply with best governance practice, the name and designation of the person substituting for the Chief Executive when he is not present should be formally known and that person held accountable for the discharging of the Chief Executive's duties during that period. On a specific theme, the Major Incident Plan formally identifies a leadership role for the Chief Executive, or a designated deputy, should a major incident occur.

The designation of deputy in these circumstances was not a remunerated responsibility and was additional to the current duties of the Director of Nursing.

3. WRITTEN QUESTION TO THE MINISTER FOR SOCIAL SECURITY BY DEPUTY G.P. SOUTHERN OF ST. HELIER

Question

Would the Minister inform members –

1. ofthe names of the 23respondentsto the minimum wage questionnaire conducted by the Employment Forum referred to on page 5 of P.282/2005 – draft Employment (Minimum Wage) (Amendment) (Jersey) Regulations 200-?
2. ofthetwo other issues of importance' relating to the training rate and therapeutic work referred to on page 6 of P.282/2005? and,
3. ofthe issues arising within certain organisations' over the Codes of Practice on the training rate and therapeutic work referred to on page 7 of P.282/2005?

Answer

1. I am not aware ofthe names of individual respondents to the minimum wage review conducted by the Employment Forum. The Forum, as always, conducted its review at the direction ofthe former Employment and Social Security Committee, but independently and confidentially. On the basis of the responses received, the Forum presented the former Committee with a recommendation of the minimum wage rates for April 2006. The Committee did not receive copies of individual responses and it would be improper to release identities of respondents who gave their opinions in confidence.

As the Deputy is aware from previous questions, the Employment Forum has an extensive database. All of those on the database were given the opportunity to respond and the replies can be categorised as from the following respondent types; 12 employers, 2 employees, 4 employer associations, 4 trade union or staff associations and 1 other' respondent.

2. The final question ofthe Forum's questionnaire asked respondents to provide any other comments that they would like the Forum to consider in relation to the minimum wage. The issues of importance' referred towere, as stated, therapeutic work and the minimum wage trainee rate.

One respondent raised the matter of supported employment work placements and suggested that therapeutic work is a special issue which should be monitored and possibly reviewed in more detail. The Forum accepted this comment and agreed to review the matter. The relationship between employment legislation and therapeutic work is very complex and there is already a code of practice dealing with this subject, (attached at Appendix 1); the Forum may need to assess its suitability in future.

Another respondent made the point that, in some trades, there is not an approved' course of study for that specialist area, for example, one provided by Highlands College. There has been concern that employers will have to pay the full rate of £5.08 if they cannot meet the code of practice which sets out the requirements justifying payment of the trainee rate, (attached at Appendix 2). However, the code provides that specific written Ministerial approval may be requested if a course does not appear to meet all of the criteria.

At the time of the review, the codes had been in force for less than 4 months and the purpose of the November 2005 consultation was specifically to seek views on the uprating of the actual minimum wage rates, to provide a decision at the earliest opportunity, allowing businesses time to adjust if new rates were approved.

The Forum would be reluctant to make a recommendation for change when only one comment has been received on each issue and consequently would require further research into these matters. The Forum may undertake further consultation in future, assessing the coverage of the code and the additional written approval system, when test cases are available on which to base considerations.

The Minister is confident that the Forum will consider the two issues when appropriate during 2006.

3. The Social Security Department was already awareof some such issues arising in relation to both the trainee rate (particularly in tradesand hospitality) and therapeutic work(in various different industries). A small numberof queries have beenreceivedrelatingtothe

codes of practice on these topics where employers have requested some assistance  in understanding whether they meet the requirements of the codes, and what action should be taken should they not meet the criteria.

A record has been kept of each of these queries so that when it is time to review the two codes of practice, there is some evidence on which to base consultation and amendments.

It was considered that a full review of the content of the codes would not have been feasible during a specific interim review of the minimum wage.

Both codes of practice were issued in June 2005 and it was not considered practical to review them at such an early stage of implementation. The Forum will be seeking evidence from interested parties in a future consultation and will ask the Department to contribute by providing details of the issues that have been raised.

DRAFT CODE OF PRACTICE

Therapeutic Work and the Employment Law

Introduction

1. Under the terms of Article 9 of the Jersey Advisory and Conciliation (Jersey) Law2003,the Employment and Social Security Committee is empowered to issue orapproveCodes of Practice providing practical guidance for the purposeof promoting the improvement of employment relations. This Code is intended to provide such guidance on therapeutic work and the Employment Law.
2. The provisions of this Code are admissible in evidence and may be taken into account in determining any question arising in proceedings before the Employment Tribunal or a court. Failure to observe any provision of the Code does not, of itself, render a person liable to any proceedings.
3. Whilst everyeffort has been made to ensure that the summary ofthe relevant statutory provisions included in the Code is accurate, only the Employment Tribunal and the courts can interpret the law authoritatively.

Section 1 – Aim of the guidance note

This code is intended to help individuals and organisations understand how the Employment Law applies in relation to therapeutic work'. It is intended to provide guidance on what constitutes employee status for individuals undertaking therapeutic activity to ensure that they are not adversely affected by confusion about the legal position.

Some of the work designated therapeutic' for benefits purposes is similar to that undertaken in open or supported employment. People undertaking this work are potentially entitled to the protections offered by the Employment Law. The basic principle, consistent with the provisions of the legislation, must be that an individual should be considered an employee' unless the employer can demonstrate otherwise.

• The Employment Law only applies to "employees". So the key question is whether or not any particular person is an "employee". If not, then the provisions of the Employment Law do not apply. "Employee" has a legal definition and depends on the existence of a contract.
• Usually, employees have written contracts of employment so it is a straightforward matter to establish their status. But the definition of "employee" says that people can count as employees if they have an oral contract or an implied contract. This leads to some grey areas' where status may be disputed. One such grey area is the issue of people doing work (or work-like activities) for therapeutic reasons.

This is of particular importance in relation to payment of the minimum wage as the onus is on the employer to ensure that they are complying with the requirements of the Law by paying the appropriate minimum wage and maintaining adequate records.

Section 2 – The Legal Position

Who does the Employment Law apply to?

It is important to note that there is nothing in the Employment Law, or the Minimum Wage Regulations, that make any reference to a worker's productivity, ability or effectiveness. There is no distinction between the non-disabled and disabled, and there is no reference to therapeutic work' or therapeutic workers' anywhere in the legislation.

It follows that the criterion for determining whether a person with, for example, a disability or mental health problem is entitled to the protections contained in the Employment Law will rest on precisely the same criterion as for any other person; namely – is he an employee? In addition to the usual tests that would be applied by a Tribunal in determining employment status, this Code provides four criteria that the Tribunal may consider.

This note does not attempt to provide a full analysis of the legislation. Rather, it explains which provisions of the Law are relevant to the issues of therapeutic work, explores some difficult areas and attempts to provide clarity as to whether an individual should be treated as a client' or an employee'.

The definition of an employee

Article 1 of the Employment (Jersey) Law 2003 defines a worker as someone who is an employee (that is, someone who works under a contract of employment, including a contract of apprenticeship) or anyone else who works under some form of personal contract for somebody else, and is not genuinely self-employed.

The usual tests to decide whether someone is an 'employee' are difficult to apply in the case of therapeutic work, as the focus of the 'work' is usually rehabilitation, reintegration and training, rather than on producing outputs' for the employer.

Jersey's definition of employee' goes wider than the UK definition of employee' to include those defined as workers' in the UK. This was a deliberate choice, taken because the Committee wanted to ensure that people such as agency workers, casual workers and workers on short term contracts would still be entitled to the provisions of the Employment Law, even if their contracts were not contracts of employment in the traditional sense.

How to recognise an employee's contract

The Law specifically states that a contract can be express (either oral or written) or implied. It is important to emphasise that an employee may have a contract without having it in writing. The difficulty of establishing the existence or otherwise of verbal and implied contracts is long-standing and is an inevitable result of the many and varied forms of working arrangements that exist. Much of the case law in the field of employment law and contract law in other jurisdictions has centred on this difficult question.

The right to be paid at least the minimum wage is expected to be of particular concern to those involved with therapeutic work because that right is more likely to impact directly on their arrangements (and employees themselves are more likely to enquire about) than some of the other employment rights which will also apply (depending on number of hours worked), but tend to have an impact only occasionally, such as the right not to be unfairly dismissed.

In attempting to establish employment status, the assumption will typically be that the person is an employee, and the burden is on the alleged employer to show that he is not. This reversal is

intended to ensure that an employer cannot avoid his obligation to meet the provisions of the legislation by being non-co-operative or pleading an absence of documentation. However, the following section provides further information that may be taken into account by the Tribunal in determining whether there is employee or client status in therapeutic work activities.

Section 3 – Therapeutic work' and the Employment (Jersey) Law 2003

To recap, why is the notion of therapeutic work' a particular problem?

• There is no reference in the minimum wage legislation to a worker's productivity, ability or effectiveness.
• The legislation also makes no distinction between disabled and non-disabled people, or between people with mental health problems and other people, and contains no reference to therapeutic work'.
• The basic criterion for determining whether anyone is entitled to the minimum wage and the protection of the Employment Law is simply - is he an employee?

Therapeutic work' is not a legal term. It is used to describe a number of arrangements whereby people who have problems functioning in the normal labour market are nonetheless given the opportunity to undertake some form of work-like activity, for which they may receive payment. They are often in receipt of benefits as well. It follows from the legal position described in Section 2 that if a person with, say, a disability or mental health problem is involved in work-like activity under an arrangement that is an explicit or implied employee's contract, then they must be paid the minimum wage and are entitled to the other protections of the Employment Law.

The Employment Tribunal

When the Tribunal or the courts look at whether the Employment Law applies to an individual, the provisions of this Code are admissible in evidence and may be taken into account in determining any question arising in proceedings. In the absence of further evidence presented to a Tribunal, the basic position is set out in (a) to (c) below;

1. Ifthereisnoconsideration(usuallythepaymentofmoneyorthegivingof a benefit)from the employer and no obligation placed on the individual undertaking the therapeutic activity or the work then there would not be a contract between the two parties. The underlying point is that there has to be a mutual obligation between the individual performing the activity and the employer paying a reward in return for that activity. It might be possible to pay genuine expenses and occasional ex gratia' payments to the individual without creating a contract of employment, as long as no expectation of payment for the activity was created and no obligation was placed on the person carrying out the activity.
2. If money is paid by the employer to an individual, there may still be no employment

contract if there is no mutual obligation between the parties i.e. the individual is genuinely not obliged to perform duties and the employer is genuinely not obliged to provide the activity or pay the individual. However a payment is often indicative of a contractual relationship and any payments made will be carefully scrutinised by the Tribunal and courts. If they are genuinely not linked to a mutual obligation between the parties then it is unlikely that a contract will be inferred and the Employment Law will not apply;

3. Ifthetwo factors are combined,sothattheindividualispaidmoneyorgiven a benefitby the employer over and above expenses and is obliged to perform an activity in accordance with the employer's instructions, then there will almost certainly be a contract between the two parties and the individual will  be an employee. In such circumstances,  it is possible that the Employment Law will apply, even where the activity has genuine therapeutic value. Expenses could be paid to those undertaking therapeutic activity at a flat rate if they represent a fair and reasonable estimate of out of pocket expenses (including travel and subsistence) where it would be otherwise administratively cumbersome for the provider of the therapeutic activity to calculate individual expenses. Therefore a figure which represents genuine average expenses for a group of people undertaking therapeutic activity would be acceptable. But if a person is paid more than expenses and is obliged to perform an activity in accordance with the employer's instructions, the individual is likely to be covered by the Law, if the following four criteria are not taken into consideration.

Four Criteria

Set out above are the basic facts that the Tribunal would consider in considering employment status, however the Tribunal may also take into consideration the provisions set out in this code of practice. Due to concerns locally regarding the employment status of therapeutic workers and their potential entitlement to protection under the Employment Law, particularly the requirement to pay the minimum wage, it is recognised that some clarity is required for therapeutic work schemes and their clients.

It is considered that there may be a greater problem locally than in other jurisdictions due to the different types of schemes and the way they are administered. It is possible that some therapeutic schemes in Jersey would become unaffordable or unsustainable if no provision is made when the Employment Law comes into force, or if there is uncertainty as to their obligations and therapeutic workers' rights under the Law.

As the Law currently stands, it appears that therapeutic workers would generally not be exempt from the Employment Law if the basic position and guidelines that are provided in the UK were to be applied in Jersey. This is partly due to the fact that clients working in local schemes are often given a 'contract', are paid a 'wage' and are expected to attend for certain hours per week, which gives the impression of employment'. However the following four criteria may also be taken into account by the Tribunal, which provides more certainty as to client/employee status:

All four of the following criteria should be met for the activity  not to be considered as employment';

1. The activity is demonstrably focused on needs of the individual rather than needs of the organisation (however it is permissible to derive some benefit from the activity, such as selling any output to offset costs). The activity should be intended and designed to serve the needs of the individual rather than the organisation.
2. The tempo ofthe activity, and of any output or delivery target, reflects the needs ofthe individual rather than those of the organisation.
3. The individual is referred tothe activity and monitored/supported by a health or social care professional, (e.g. a GP, social worker, occupational therapist, charity worker).
4. The arrangement is agreed with the individual and not made over his/her head.

The onus should be placed on the business or scheme to arrange their administrative affairs, either within the Employment Law where required, or to be able to provide clear evidence that the four criteria are met. It is important that those responsible for therapeutic work schemes do not simply change the labels' and terms used in their relationships with clients/employees, however if the four criteria are met, terms and conditions may still be provided and a payment of some sort could still be made (e.g. reasonable expenses) without the client becoming an "employee" with entitlement to protection under the Employment Law.

The intention of introducing the four criteria is to balance concerns for the protection of vulnerable workers against the intention of the schemes designed to help in the provision of training, reintegration, work skills and experience. Employers and therapeutic scheme organisers can use the Code of Practice to arrange their work practices and the Code may be referred to a Tribunal as a test of employment status.

However, it must be noted that the facts of different cases will vary and the Employment Tribunal and courts will have to consider those facts in detail, as well as any case law that has developed. In cases of doubt, independent legal advice should be sought.

Section 4 – Types of support and Benefits available Workwise

Workwise is part of the Work Zone at Employment and Social Security. The aim of Workwise is to help people who have a special employment need into suitable employment. This may be in open employment or within a sheltered work environment. Training opportunities can be arranged and advice offered about any aspect of getting a job.

• Open employment is where you carry out an ordinary job and earn the going rate for the job.
• Sheltered employment is for those people who, because of their special need, are presently unable to work in open employment. Training and relevant work is provided in a sheltered environment such as Acorn or Oakfield.

Job Coach Scheme

Job Coaches are available to work closely with individuals and, if required, will start with them in a new job, providing support as they learn their new role. The Coach provides support and liaison between the client and the employer, ensuring a smooth transition into work.

Work experience

Depending on individual circumstances, placements can be arranged to enable people to gain valuable work experience and generate a positive reference. These placements usually last for about six to eight weeks.

The Therapeutic Work Scheme -Benefit entitlement

Usually, people who are receiving benefits from the Employment and Social Security Department, are prohibited by law from working. However, it is recognised that after a long illness it may be necessary to return to the workplace gradually.

The scheme is designed for those people who are on a long-term benefit. It enables a person to undertake work of a therapeutic nature and receive a wage (up to half the standard rate of single benefit), and still retain their Sickness or Invalidity Benefit. This must be approved by the Employment and Social Security Department before the individual starts work. One of the aims of the scheme is to assist people back into work and to enable them to gradually stop receiving benefit.

On 1 October 2004 legislation came into force which provided for new forms of Incapacity Benefits. Under the provisions of the new legislation, any person in receipt of Long Term Incapacity Allowance can work without any restrictions; some will undertake work of a therapeutic nature, other will be doing a normal job. Should a person in receipt of Short Term Incapacity Allowance or Incapacity Pension wish to undertake work they will be required to transfer their benefit entitlement to Long Term Incapacity Allowance.

Other Groups who may be able to help

Jersey Employers' Network on Disability - JEND

There is a growing number of employers in the Island who are committed to providing real jobs for people who have a disability. Employers work in partnership with Workwise in maximising employment opportunities for people with a disability. JEND is an organisation which helps employers access potential employees who have a disability.

Jersey Employment Trust - JET

The Jersey Employment Trust (JET) supports the progress of people with disabilities into sustained supported open employment, while continuing to provide on-going training, support and personal development for all those who fall under their remit.

In partnership with other agencies, JET provides a range of complementary training, development and sheltered work; equipping clients with the skills (vocational and social) necessary for supported open employment.

These include Workforce Solutions Ltd., Sunflower Nurseries and Oakfield Industries Ltd.

Interwork Agency

Interwork is the starting point of job development for people who, because of a disability, cannot compete for jobs. Interwork will collaborate with employer and employee to explore job opportunities, develop competence and maintain agreed levels of performance. By working with Interwork the employer will be showing respect for the right of the disabled person to be employed.

Jobscope

Jobscope is a therapeutic workscheme which provides structured occupation for people who suffer from various mental illnesses. An occupational therapist assesses the functional level of clients in relation to work needs and provides advice and support to workscheme employees and work supervisors. The workscheme programme includes:

• Planning, setting up and monitoring appropriate work placements for individuals
• Offering job tasters to enable clients to make informed decisions about vocation
• Liaising with educational agencies in assessing training courses
• Advising and supporting employers about client needs

Section 5 – Frequently asked questions

Q:  Why  can't the States of Jersey give a definite yes or no  answer in  specific cases of therapeutic work?

A: Only courts and the Employment Tribunal can decide legal cases, and they do so on the basis of all the facts of the case and having heard the arguments from both sides. Neither States Members nor Officers of States Departments can make legal decisions on real cases. The Code is intended to help clarify the situation but ultimately there is no substitute for independent legal advice.

Q: Can disabled or other workers with very low productivity waive their rights to the national minimum wage?

A: No. Part 8, article 79 of the Law prevents workers from contracting out of their entitlement by providing that any provision in a contract or relevant agreement is void in so far as it attempts to exclude or limit any provision of the law or to prevent a person from bringing proceedings to the Tribunal.

Q: Does the Employment Law apply to work experience/short term tasters?

A: It may do. It will depend on whether the individual has been employed under a contract (if he gets paid for the work, is given set hours, and can be disciplined for failing to turn up, for example, he may well be employed under a contract) and whether the four criteria are met. Some individuals will be free to come and go as they wish and will not receive payment for their work, in which case the Employment Law will not apply as they will not count as employees.

Q: Does the Employment Law apply to individuals who, perhaps because of their disabilities or illness, are not productive?

A: An individual's productivity or effectiveness is irrelevant. The question is simply whether or not that individual is working under an employee's contract. If he is working under such a contract he will be protected by the Employment Law, subject to meeting the four criteria specified in this Code.

Code of Practice

Minimum Wage – Accredited training rate 1. Introduction

1. Under the terms of Article 9 of the Jersey Advisory and Conciliation Law 2003, the Employment and Social Security Committee is empowered to issue or approve Codes of Practice providing practical guidance for the purpose of promoting the improvement of employment relations. This Code is intended to provide such guidance on what qualifies as accredited training' for the purpose of the minimum wage trainee' rate.

4. The provisions of this Code are admissible in evidence and may be taken into account in determining any question arising in proceedings before the Employment Tribunal or a court. Failure to observe any provision of the Code does not, of itself, render a person liable to any proceedings.
5. Whilst everyeffort has been made to ensure that the summary ofthe relevant statutory provisions included in the Code is accurate, only the Employment Tribunal and the courts can interpret the law authoritatively.

2. Background

The acquisition of skills remains a priority for employees of all ages, especially those moving into a new sector or returning to work. A new employee who brings no prior knowledge or experience to an employer needs time to be developed and initially they may not contribute fully to the workforce.

Bearing this in mind, the States agreed that a statutory minimum wage should not become a barrier to the receipt of structured training or taking on an inexperienced employee. To achieve this and to provide an incentive for employers to train their employees, it was agreed that those on accredited training programmes and courses should be entitled to a "trainee rate" for a maximum period of one year. This provision will only relate to employees over school leaving age who start a new job with a new employer;

According to a survey carried out by the Low Pay Commission recently, only 5% of employers in the UK were using the development' rate, but it is anticipated that there could be a higher take up in Jersey for a training rate as it would apply to all employees over school leaving age. It is therefore particularly important to keep young people in mind when considering what training courses would be appropriate for accreditation.

It is difficult to define what a trainee' is, and employers could classify younger employees as trainees to justify paying them the lower rate, unless there are strict rules on what can be classed as a trainee. Enforcing such rules to ensure only genuine' trainees are paid at the lower rate could be expensive and difficult to enforce.

Inexperience at doing the job should not be justification for paying the trainee rate. If there was a dispute over hourly rate of pay, it would be up to JACS, the Employment and Social Security Committee, or ultimately the Employment Tribunal, to determine whether the training is "accredited" and the onus would be on the employer to produce the relevant records.

This code of practice outlines what qualifies as "accredited training", but also allow flexibility to change in line with the development of new training schemes in Jersey.

3. The Employment (Minimum Wage) (Jersey) Regulations 200-

The Minimum Wage Regulations provide that trainees' may be paid at a different hourly rate. The Regulations require that a trainee' is;

1. an employee over compulsory school leaving age
2. undergoing an accredited course of training' by written agreement with his or her employer
3. in the first year of employment by that employer, in the particular job for which the employee is being trained.

After one year of employment, with the same employer, on the trainee rate, employees will become entitled to the full rate of minimum wage.

An accredited course of training' is defined as a course of training that is approved in writing by the Employment and Social Security Committee as an accredited course for the purpose of the Regulations. Any training course that meets the requirements of this code of practice is deemed to have met the written approval of the Committee. However, where there is uncertainty as to whether the provisions of this code have been met, a written request may be submitted to the Committee, with appropriate and detailed documentation about the training, asking if the Committee will give it's written approval.

4. Requirements

In addition to those requirements provided in the Regulations, (i.e. points 1 to 3 above), the following requirements must be met in order to justify the payment of the trainee rate.

• Employers must keep a copy of the agreement for three years from the end of the training period and be able to produce it on request.
• Training must be of a sufficient quality and duration to enable the employee to reach the required standard and to complete the course successfully.
• Participation on an accredited training course may be at or away from the workplace but must be primarily during the normal/contractual working hours for that employment and must be paid.
• There must be a formal qualification at the end of the training that is a locally or nationally recognised and certified qualification, although the qualification does not necessarily have to be attainable within one year and the employee does not necessarily have to achieve the qualification within that year.
• There must be some supervision of the training.
• The trainee rate should only be payable while the provision of training is ongoing, i.e. the maximum duration that the trainee rate may be paid is either the time taken to successfully complete training, or one year, whichever is the shorter. Even if the training is not

successfully completed within the year, the employer is not entitled to pay the employee for a longer period than one year.

• The training should be provided at no cost to the employee
• The training should be of relevance to the job for which the employee is being trained.

5. Course types, providers and qualifications

Any of the following count as accredited training' for the purpose of the Minimum wage trainee rate, as long as the requirements described in section 4 are also met;

1. training that is recognised and accredited by a national or international exam board, e.g. City and Guilds.
2. a course which leads to a National Vocational Qualification (NVQ); or to a General National Vocational Qualification (GNVQ), or equivalent;
3. a course which leads to a GCSE or A level;
4. an "access" course for entry to higher education;
5. In-house company trainingwhichhas been certified as including at least 50percentofthe requirements in terms of whole units ofoneor more S/NVQs by the awardingbodyor similar suitably qualified independent organisation.
6. a course designed to assist persons whose first language is not English to achieve any level of competence in English language.
7. a course for basic literacy in English, basic mathematics, or a coursein independent living and communication for those with learning difficulties, which prepares them for entry to the other courses above.

viii)any course that is included in the Economic Development Committee's Training and

Employment Partnership Skills Strategy for Jersey'.

ix) a training course that does not fit into the above categories but meets the requirements outlined in section 4 and would meet formal verification tests of validity, e.g. would meet criteria and inspections in line with the UK's Learning and Skills Council or Adult Learning Inspectorate. In this case the employer must be particularly vigilant in maintaining adequate records to demonstrate that the training and its outcomes meet these criteria and should apply in writing for the Committees' approval of the training scheme or course.

4. WRITTEN QUESTION TO THE MINISTER FOR TREASURY AND RESOURCES BY DEPUTY G.P. SOUTHERN OF ST. HELIER

Question

Will the Minister inform members what justification lies behind the decision to maintain the system of payment of income tax in arrears under the new ITIS scheme, and in particular explain –

1. what consideration, if any, has been given to alternatives to the special transitional arrangements applying to years 6 and 7', as outlined in answer to a question on 29th November 2005, as former President ofthe Finance and Economics Committee, wherein the taxpayer has a reduced tax bill to bring them into line with others paying tax on the previous year's income, and if not, why not?
2. what, if anything, has prevented the adoption of a system, whereby all new entrants to Jersey income tax continue to pay tax on current income?
3. what complexity and significant administrative costs' are involved in a transfertoPAYE, as outlined in answer to a question on 29th November 2005, as former President ofthe Finance and Economics Committee?
4. what difference, if any, in tax returns is produced in the long-term (over 50+ years) between a tax break' in years 6/7 for all new entrants to ITIS, as proposed, or a gradual phasing out of all those paying tax on past income? and,
5. whether any legal advice has been received on this subject?

Answer

1. The only alternative considered was for all new entrants to remain on a current year tax paying basis throughout their working lives. It is considered that would be inequitable as well as leading to the possibility of a challenge under Human Rights legislation. For example, under such a permanent dual system' a situation could arise where two brothers, one who had joined the workforce prior tothe introduction ofITIS and the other who had joined after the introduction of ITIS, would be on two different bases of paying tax until they retired - even if all their other personal and domestic circumstances were identical. To prevent such inequality, and such a permanent dual system' for at least 40 years, and the possibility of a challenge under Human Rights legislation, the transitional provisions for years 6 and 7 were introduced. In his question, the Deputy refers to a taxpayer having a reduced tax bill during the transitional period. Infact, it is the effective rate that is reduced during these two years, and these reduced effective rates during the transitional period will collect the correct amount oftax which that individual is liable to pay. The individual in question does not escape or avoid any of his properly due tax liability. In addition, the introduction of PAYE, whether gradually, as envisagedbythe Deputy , or instantaneously, will create a system which is more complex and administratively difficultthan the ITIS system, which is a simplified formof local tax collection. For all these reasons, it was decided to have the year 6 and 7 provisions for new entrants.
2. The increased complexity and administrative costs that would be incurred in the gradual change to what would effectively be a PAYE system, albeit taking some 40 years during which a dual system' would bein operation, would add to administrative costs both at the Income Tax Office and employers.
3. When a PAYE system, suchasthat in the U.K., is in use, the moment any change occurs in a taxpayer's personal circumstances, that taxpayer will immediately contacttheIncome Tax Office to have a new and revised tax coding issued so that he pays less tax the following week or month. In otherwords, an instantaneous response would be requiredfrom the Income Tax Office to ensure a revised coding was issued within the week. That does not happen withITIS as a taxpayer is paying the tax for the previous year. With PAYE, therefore,the Comptroller ofIncome Tax would need many more staff than he currently has to handle all that constant and significant additional workload. Even more importantly, employers would have a significant additional administrative and resource cost placed upon them, at a time when Government is trying toreduce red tape and other constraints on business. In addition, the shift from the old system of paying tax in a lump sumattheendoftheyearto a PAYEsystemwouldrequiretaxpayerstopaytwotaxbills in one year. This is because they would be paying tax from January on a PAYE system but would also have to find the money to pay the previous years tax bill in the September of the first PAYE tax year. Finally, it was not thought appropriate to have a dual system' of existing and new taxpayers  in existence for some 40 years under ITIS. For all these reasons, PAYE was rejected by the former Finance and Economics Committee.

4. There is no tax break' during the transitional years 6 and 7 as a tax break' suggests a taxpayer has escaped or avoided a tax liability properly due. All that happens is that the effective rate is reduced over these transitional years to collect the tax over a longer period oftimethereby allowing the transition to take place. The taxpayer does not escape or avoid any of his properly due tax liability. The Comptroller will be happy to explain the matter further, with examples, if the Deputy cares to contact him. I am unable to answer this question, therefore, as the premise on which it is based appears to be inaccurate.
5. No formal legal advice has been obtained on this subject as the former Committee considered the options open to it and made a decision based on the arguments for and against both systems.

5. WRITTEN QUESTION TO THE CHIEF MINISTER BY DEPUTY G.P. SOUTHERN OF ST. HELIER

Question

In relation to R.C. 18/2005 of the former Policy and Resources Committee - States Employees Engaging in Political Activities: draft proposals, presented to the States on 22nd March 2005, would the Chief Minister, inform members –

1. whether he will, as the former Policy and Resources Committee had stated, bring forward a reporttothe States for further consideration on the issue of States' employees engaging in political activities and, if so, when?
2. whether the response following consultation to the proposals contained in R.C.18/2005 has been broadly positive and supportive?
3. whether a legal opinion has been received on whether the limitation under Article 17 of the Civil Service Administration (General) (Jersey) Rules 1949No officer shall take a public part in any political manner' is a disproportionate limitation ofthe right to freedom of expression contained in Article 10.1 ofthe Convention on Human Rights and, if so what this states; if not, why has no legal opinion been sought?
4. whether consideration is being given to suspending Article 17 and similar Regulations applying to other public sector workers as outlined in Schedule 1 of R.C.18/2005, pending States consideration of a new set of rules that are compliant with Human Rights legislation?

Answer

1. Yes. Following a recent meeting ofthe States Employment Board, and subject to the approval of the Council of Ministers, it is my intention to bring forward a Report and Proposition to the States on these matters as soon as possible.
2. Yes.
3. The former Human Resources Sub-Committee has discussed this question with the Attorney General and others. The view ofthe former Sub-Committee was that imposing restrictions on olitical activities of public servants will not violate the European Convention on Human Rights so long as the restrictions are prescribed by law, pursue a legitimate aim and are proportionate to the objective to be achieved. The former Sub- Committee recognised that some might take the view that the current overall ban, for example in respect of civil servants, might be considered disproportionate. The issue is therefore where to draw the line in future. This is what the States Employment Board's Report to the States on these matters will be seeking to identify. In presenting proposals, the States Employment Board will take all relevant human rights considerations into account.
4. As noted in my answer to question (a), this issue is being actively progressed, and a report and proposition will shortly be presented to the States for their consideration. It is important that agreement should be reached on the right way forward, and it would be inappropriate to introduce temporary measures in advance of the report and proposition.

6. WRITTEN QUESTION TO THE MINISTER FOR PLANNING AND ENVIRONMENT BY DEPUTY G.C.L. BAUDAINS OF ST. CLEMENT

Question

With regard to the property Lerzardrieux', Rue de la Houguette, St. Clement , and questions asked of the former President of the Environment and Public Services Committee on 29th November 2005, would the Minister inform members –

1. whether any further actions have been taken to assess the new building's visual impact particularly from the north, south, east and west elevations and, furthermore, to determine whether it obscures the Mont Ube lighthouse from the south?
2. whether any further actions, suchason site measurements, have beentakento confirm the height ofthe new building and, if so, how far this exceeds the height ofthe original building; if not, would the Minister confirm that this will be undertaken and reported to the States and that steps will be taken to reduce any dimension not consistent with the submitted plans? and,
3. whether the former Environment and Public Services Committee considered the visual impact ofthe new building and, if so, why it permitted the building to be of increased height?

Answer

"(a) Having visited the site and its surroundings, I agree with the Deputy that the building

currently under construction is far more prominent from surrounding views than its predecessor. In my view, the building does not obscure the light on Mont Ube lighthouse, but does affect views from the south and south west, Pontac and the north.

2. The photographic evidence and the approvedplans demonstrate an increase in overall height of 2.1 metres. Although the sloping roof is considered to reduce the perceived height ofthe building, its dark mass is still prominent. The roof is only partially pitched and therefore has a considerably lower height than a fully pitched roof. As far as I can ascertain, the surrounding foliage does not appear to have been cut.
3. The application was approved in its present form in August 2003, save for a modest revision which does not affect the building's impacton its surroundings. Measurements of the uncompleted building taken some months ago, demonstrate that the building is being built in accordance with the approved drawings.
4. The application was considered by the Department andthe Applications Sub-Committee. I understand that the Sub-Committee considered the impact of the building on its surroundings but deemed it to be acceptable. I was not party to the decision to approve such a conspicuous building.
5. If the building were to be built in excess of the approved drawing then the Minister has the legal power to direct the owner to reconstruct the building in accordance with the approved plans if the increase is considered to be unacceptable. I would have no hesitation in using those powers were that the case."

7. WRITTEN QUESTIONS TO THE CHAIRMAN OF THE COMITÉ DES CONNETABLES BY DEPUTY G.C.L. BAUDAINS OF ST. CLEMENT

Question 1

Would the Chairman inform members whether all details of the commercial rate' have now been finalised and what is the anticipated starting date for the new rate; if there is further work outstanding, what does this include?

Answer

The Rates (Jersey) Law 2005, came into force in December 2005 and provides for an Island-wide rate to be levied according to whether a property is assessed as used for "domestic purposes" or for non-domestic purposes. This rate is to levy the annual Island-wide rates figure as set out in Article 20 of the Law. The commercial rate' to which the question refers is assumed to be the Island-wide non-domestic' rate.

The Island-wide rate will be paid for the first time in 2006 by all property owners and occupiers. The Annual Returns for 2006 will collect information to allow every property to be assessed according to whether it is used for domestic purposes' or for non-domestic purposes'. Owners and occupiers will in due course receive a notice of the assessment and will have the opportunity to seek a review of, and appeal against, that assessment should they not agree with it.

There is further work to be undertaken before the 2006 Island-wide rates per quarter can be set. This includes –

1. determining the annual Island-wide rates figure in accordance with Article 20 – this can only be done once the 2005/2006 audited accounts for each Parish are available; and

2. determining the total number of rateable quarters assessed across the Island – this can only take place once the Rates List for each Parish is approved (not later than 31st May 2006).

Question 2

With regard to Welfare benefit being subsumed into the Low Income Support Scheme, would the Chairman advise whether any mechanism exists to ensure that the Parishes are protected against the need to subsidise any other aspects of the Support Scheme?

Answer

The Comité understands that the proposed Income Support Scheme will replace the current welfare system and be the sole source of funding for those in need. Accordingly the Income Support Scheme must be flexible to deal with exceptional situations and one-off costs such as those which are currently funded through the welfare system and this is, the Comité understands, to be provided for through the proposed Citizens Fund. Whilst the legislative framework for the scheme has yet to be drafted we expect this to ensure that no further subsidy is required from the Parishes.

8. WRITTEN QUESTION TO THE MINISTER FOR TREASURY AND RESOURCES BY DEPUTY G.C.L. BAUDAINS OF ST. CLEMENT

Question

Given that Jersey Telecom is wholly owned by the States, would the Minister advise whether the value of that shareholding or its return has been adversely affected by recent competition and, if so, is the Minister considering disposing of the asset before it reduces further?

Answer

It is generally the case that the introduction of competition and regulation into any market will have an impact upon the value of and dividend streams arising from an incumbent monopoly supplier, particularly in a mature market such as the Jersey telecommunications industry.

Despite this, the introduction of a successful and commercially focussed Board of Directors has improved the net turnover, maintained profitability and increased revenue streams flowing to the States in the guise of dividends and taxation. That Board has mitigated the effects of regulation and increased competition through efficiency measures, developing strategies to meet the threat of competition and the expansion of other markets.

However, as the regulatory framework matures, competition will pose a greater threat over the coming years. Whilst I have full confidence that the Board will continue to be successful, there will undoubtedly be a loss of market share in the local market.

This loss in market share and other pressures that may be brought to bear by the regulator will undoubtedly reduce the value and revenue streams arising from Jersey Telecom from the levels they would have experienced had Jersey Telecom continued as an unregulated monopoly.

This is an inevitable cost accompanying the significant benefits to consumers arising from the introduction of regulation and competition.

The Treasury and Resources Department is currently concluding the development of a proposed strategy in respect of the continued shareholding in States-owned utility companies, in particular Jersey Telecom, in accordance with the existing States Strategic Plan.

The threat to the value of Jersey Telecom arising from the advent of increased competition is one of several reasons why it may appear advisable for the States to sell all or part of its holding in Jersey Telecom. A mature regulatory framework as well as a choice of suppliers would enable the States to do so whilst leaving the consumer with adequate protection.

Whilst competition and regulation will have an impact on the value of and the future revenue arising from Jersey Telecom to the States as shareholder, the value of future dividend streams is the key factor in determining the amount that a prospective buyer will be prepared to pay for the company. For this reason, whether or not it sells Jersey Telecom, the States will suffer any impacts of competition on the profitability of the company, although the degree to which it does so may well vary.

Any disposal of the shareholding of Jersey Telecom will require the approval of the States Assembly in accordance with the terms of Article 32(5) of the Telecommunications (Jersey) Law 2002.

9. WRITTEN QUESTION TO THE MINISTER FOR TRANSPORT AND TECHNICAL SERVICES BY DEPUTY G.C.L. BAUDAINS OF ST. CLEMENT

Question

With regard to the recent announcement by the Minister that he proposes to replace car-park scratch cards with barriers, would he advise –

1. whether such a decision has since been made formally and, if so, when?
2. whether any motorists have been consulted about the change and, if so, how many and

when?

3. what criteria, if any, has been used to assess the superiority of barriers against scratch

cards?

4. whether any assessment has been carried out in relation tothe potential for queues at the exits and, if so, what does this conclude? and,
5. whether any assessment has been carried outto determine the securityof money held inpay machines and any additional time taken by motorists in using a pay machine before exiting a car park similar to those installed at Jersey Airport?

Answer

I can confirm that no decision has yet been made to replace scratch cards with barriers in car parks. It is one option being considered and some preliminary analysis has been undertaken into the implications and feasibility of the proposal. I can assure the Deputy that, prior to any decision being made to change the method of charging for parking, the questions that he has posed will be taken into account and the public consulted.

10. WRITTEN QUESTION TO THE MINISTER FOR TRANSPORT AND TECHNICAL SERVICES BY DEPUTY G.C.L. BAUDAINS OF ST. CLEMENT

Question

With regard to the recent announcement by the Minister that he proposes to replace car-park scratch cards with barriers, would he advise –

1. whether such a decision has since been made formally and, if so, when?
2. whether any motorists have been consulted about the change and, if so, how many and

when?

3. what criteria, if any, has been used to assess the superiority of barriers against scratch

cards?

4. whether any assessment has been carried out in relation tothe potential for queues at the exits and, if so, what does this conclude? and,
5. whether any assessment has been carried outto determine the securityof money held inpay machines and any additional time taken by motorists in using a pay machine before exiting a car park similar to those installed at Jersey Airport?

Answer

I can confirm that no decision has yet been made to replace scratch cards with barriers in car parks. It is one option being considered and some preliminary analysis has been undertaken into the implications and feasibility of the proposal. I can assure the Deputy that, prior to any decision being made to change the method of charging for parking, the questions that he has posed will be taken into account and the public consulted.

11. WRITTEN QUESTION TO THE MINISTER FOR ECONOMIC DEVELOPMENT BY DEPUTY G.C.L. BAUDAINS OF ST. CLEMENT

Question

Would the Minister inform members of his strategies for rejuvenating the agriculture and tourism industries, together with timescales and costings?

Answer

I should start by saying that all policies within Economic Development are being reviewed and where necessary updated as part of the Strategic Plan drafting which is being worked on by the

Council of Ministers. Over the next few weeks I will be prioritising the political objectives for the departments and setting out policies to achieve sustainable and well balanced economic growth for now and the future.

The Agriculture, Fisheries and Tourism sectors are important not only to the economy, but to the community, in terms of the way the sectors support and enhance Jersey's culture, the environment and heritage. The department will work in close partnership with the Ministers for Education, Sport and Culture, and Planning and Environment in reviewing these areas.

Agriculture

The agriculture remit will be formally delegated to one of my Assistant Ministers for the reasons set-out in my declaration of interests statement. An announcement on that will be made later this week, after I have consulted the Chief Minister. Currently, various agriculture matters are being handled ably by both Assistant Ministers for Economic Development.

It would be inappropriate for me to answer this question. I will ask the Assistant Minister with responsibility for agriculture to set-out his answer to this part of the question when he has been appointed later in the week.

In the meantime, I am advised that I can confirm that the Department is implementing the Rural Economy Strategy (P.112/2005) which was adopted by the States on 19th July 2005. Costings are shown within the Strategy document.

Tourism

In the weeks since being elected I have already had a number of meetings with Tourism Industry representatives regarding the revitalisation of the tourist economy as one of the big challenges within the portfolio.

The Tourism Strategy for Jersey needs to evolve to reflect the objectives of the States Strategic Plan. A revised policy will supersede the most recently published Tourism Strategy document of the former Economic Development Committee published in the autumn of 2004.

The need to revitalise the Tourism Industry has been recognised by the Industry itself. There are now many excellent examples of innovation within the sector now coming to fruition. Significant levels of investment are currently taking place. These are strongly supported by the Economic Development Department which recognises that future success will depend upon a partnership approach between the public and private sectors.

I support a well thought out co-ordinated approach to developing a world class waterfront for the economic and cultural benefit of the Island. It is encouraging to see brands such as Radisson and Center Parcs showing great confidence in the Jersey brand.

There is an important opportunity to develop off season business, building a new client base and attracting younger professional couples to a new form of Jersey leisure experience.

The inclusion of Jersey Harbours and Jersey Airport within Economic Development will ensure full integration of transport, tourism and economic development strategy; for example, a strategy where variations in landing charges are used to facilitate growth in visitor numbers during periods of lower demand in the season is planned to be introduced in the late spring of 2006.

Realignment of staff and financial resources within the Economic Development Department will ensure that greater focus is placed on identifying key customer attractions and ensuring that these are connected with accommodation and travel providers so that they can be marketed in an integrated way.

The Tourism Development Fund provides a significant opportunity for government funding for facilities which are capable of generating future growth. A report has been commissioned through OXERA, the States economic consultants, to establish how the Tourism Development Fund might best be used in the future to leverage private sector investment to the overall benefit of the Industry. The Island branding project, which is being managed between the Chief Minister's Department and the Economic Development Department, should enhance Jersey's international standing and, therefore, provide better opportunities for our export industries. The branding project will enhance the sense of pride within the community and lead to a more distinct and single minded positioning for all of our products.

There are excellent opportunities ahead for the tourism industry in Jersey. The strength of our brand and geographical location of the Island are positive factors which will contribute towards future success. However, tourism in the future will be different. Our customers are seeking new experiences and higher quality offerings and we will work towards this success by ensuring that our product development and marketing strategies are geared up to meeting those customer expectations.

Oral Questions -

1. The Deputy Bailiff :

The first question is one which Deputy Southern will ask of the Chief Minister.

Deputy G.P. Southern :

What progress has been made in connection with the establishment of a Population Office as outlined in P25 of 2005 "Migration Monitoring and Regulation"? In the light of this, when will a proposition be lodged for consideration by the States to provide for employers to control their workforce under the proposed system of entitled, licensed and registered only categories?

Senator F.H. Walker (The Chief Minister):

The Population Office has now been established and it incorporates a Regulation of Undertakings Office and the housing law section of the Housing Department. In addition, a head of the Population Office has recently been appointed and he is already working with the office on the development of a 2006 business plan. He will take up his post full-time in mid-March and it is expected that the business plan will be published shortly thereafter. A considerable amount of work remains to be done including drafting legislative changes, policy implementation and the introduction of new procedures. The business plan will include a detailed timetable of activity including the presentation of a report and proposition to the States for their consideration.

2. The Deputy Bailiff :

Any supplementary questions? If not, we will move on to question 2. Senator Norman will ask a question of the Minister for Economic Development.

Senator L. Norman:

What action, if any, is the Minister proposing to take to ensure that the agreement made between the States of Jersey and the States of Guernsey on 26 August 2004 to give equitable access to Channel Island waters for local fishermen is implemented without further delay?

Senator P.F.C. Ozouf (The Minister for Economic Development): The Senator may know that following the meeting he attended in Guernsey in November, a letter was received by the Chief Minister, Senator Walker , from his opposite number in Guernsey. This letter sets out how Guernsey wishes to proceed with the reference to the agreement - the Vanguard Agreement - referred to in the Senator's question. It is clear that the fundamental principles of the Vanguard Agreement remain valid but common ground needs to be found on the type and numbers of access licenses that each side would like implemented. I am in discussions with the Chief Minister about the reply that the Jersey government will make to Guernsey. That letter will press firmly for the re- establishment of access for those Jersey fishermen that have previously fished in waters around

Guernsey but who are now excluded. I am in the process also of establishing contact with my opposite number in Guernsey and for the sake of the Jersey fishing industry I will pursue this question of access as vigorously as I am able.

1. Deputy R.G. Le Herissier of St. Saviour :

Could the Minister inform us whether the approaches taken are likely to unblock this major diplomatic problem that we have had for a couple of years?

Senator P.F.C. Ozouf :

I do not have a crystal ball. What I do have is a firm view that this matter must be resolved in the earliest possible course, and I agree with the underlying sentiment that the Deputy makes, that this is a problem in the whole arrangement of business between Jersey and Guernsey. It runs very deep and we must work to resolve these matters to the satisfaction of our Jersey fishermen and, I hope, to the satisfaction of the Jersey authorities too. We will do our best but this is not easy.

2. Senator L. Norman:

Could I just ask if the Minister is committed to the agreement inasmuch as towards the number of Jersey registered vessels which were agreed by the appropriate Guernsey Minister that should be allowed to have licenses to fish in Guernsey waters? Or is he planning to reduce the number that was agreed in 2004?

Senator P.F.C. Ozouf :

The Senator has a much deeper understanding and a long-standing set of information on this issue than I do, but certainly I have been briefed in-depth about this issue of the number of boats that were negotiated at the time of the Vanguard Agreement, and I see no reason to change Jersey's position from that. That is the negotiating position that we start with. The Chief Minister has indicated that I am to lead the negotiations with Guernsey on this but I will be keeping him and the Council of Ministers and drawing on the experience of other Members such as Senator Norman, to assist me in this difficult issue and resolution. But, no, the position has not changed.

Senator L. Norman:

I am grateful to the Minister and assure him of my support to ensure that the Vanguard Agreement, as he calls it, is implemented in its entirety, Sir.

The Deputy Bailiff : The question was ?

Senator L. Norman:

I was just being decent and respectful to the Minister, Sir.

3. The Deputy Bailiff :

Very well. We will see whether that attitude continues generally. [Laughter] We come to the third question which the Deputy of St. Martin will ask of the Chairman of the Comité des Connétable s.

Deputy F.J. Hill of St. Martin :

Would the Chairman advise whether Criminal Record Office checks were being carried out in respect of candidates for all posts including Connétable s, Procureur du Bien Publique and other honorary police positions? If not, explain the reasons why and what steps, if any, will be taken by the Comité to review the current procedures.

Connétable K.P. Vibert of St. Ouen (Chairman of the Comité des Connétable s): I welcome the opportunity, not only to reply to the Deputy but to inform the pubic that the current procedures will continue. Namely, that a criminal record check will be carried out on all persons standing for election to the Honorary Police - including Connétable and Procureur du Bien Publique - and that the results of such checks will be forwarded to the Attorney General's office as has been the case since the Holland Inquiry.

1. The Deputy of St. Martin :

Could I just have confirmation that these checks will be carried out prior to the elections and not after? Thank you.

The Connétable of St. Ouen :

It is not carried out prior to the election. It is carried out prior to the swearing-in. But the Connétable s are in consultation with the Attorney General to allow a sufficient amount of time to be made available so that checks could be made prior to the actual nomination meeting.

2. Deputy R.G. Le Herissier:

On a point of information, I wonder if the Connétable s could tell us whether people do indeed make a statement which is subsequently checked as part of that CRO check. A statement affirming whether or not they have convictions.

The Connétable of St. Ouen :

What the Connétable s has suggested to the Attorney General is that, at the time of nomination, all candidates for nomination to the post should make a declaration as States Members do at the moment, and that at that time the President of the Assembly - the Connétable s or someone else - would be able to inform the Assembly of any offences which have been declared.

3. The Deputy of St. Martin :

Could I ask the Chairman if he would confirm whether the suggestions made now or being spoken about this morning are in line with the Centeniers Association's report which they made, I think, 2 years ago following an inquiry into the recruitment of an officer who did have a criminal record?

The Connétable of St. Ouen :

At the moment, Sir, the Comité des Connétable s are awaiting the drawing-up of a list of offences from the Attorney General, and once that has been drawn-up we will proceed with all speed.

4. The Deputy Bailiff :

We move to the next question which Deputy Le Herissier will ask of the Minister for Economic Development.

Deputy R.G. Le Herissier:

Would the Minister confirm whether the move to postal corporatisation is proceeding to schedule and on what date the planned incorporation will take place?

Senator P.F.C. Ozouf :

Postal incorporation is proceeding according to the current timetable. I would remind the Deputy and the Assembly of the statement made by the last President of the Finance and Economics Committee, on 25th October 2005, which set out the timetable for incorporation. The President then noted that while it had been intended to bring incorporation of Jersey Post in on 1st January 2006, this had not been possible because of the decision of the previous Chairman Designate, that a potential conflict of interest prevented him from committing at that time to Jersey Post. As a result of that, Mr Mike Liston was appointed as Chairman Designate; however, given the limited time remaining in the previous States session, the Finance and Economics Committee decided that incorporation of Jersey Post would take place in the first quarter of 2006. As a consequence of this change to the incorporation timetable, P.205 of 2005 of the previous EDC Committee was withdrawn and will be replaced in due course by an amended, though similar, proposition reflecting the new schedule. The lodging arrangements for propositions are such that we will be seeking a debate on 14th March 2006 and, if that is successful, the approved incorporation will proceed on 1st April 2006.

1. Deputy R.G. Le Herissier:

Having brought a fresh mind to the situation, is the Minister happy with the conditions under which corporatisation is proceeding? For example, the never-ending increase in local postal rates versus the vast sums being accumulated via fulfilment. Is he pleased, Sir, with the fact that a whole series of Chinese walls - admittedly at the start with good reasons for being erected - have led to an immensely costly local service and an immense accumulation of funds in other areas?

Senator P.F.C. Ozouf :

The Deputy would expect me to, of course, say that I remain committed to that because I was not only a member of the Finance and Economics Committee that progressed this whole matter, but I also was the Member that brought the setting of the independent Competition Regulator Authority which set up, for the first time, independent regulations. So, yes, I remain committed and I remain of the view - even taking a fresh approach - that incorporation is the best thing for Jersey Post in whatever circumstances. Of course he is right when he says that there are some challenges or when he suggests that there are challenges for Jersey Post. I need to tell him though that fulfilment is actually being of benefit to Jersey Postal consumers. Because of the good level of profitability from that business, that means that high postage charges have actually lessened as a result. If we were to lose fulfilment, I have to say to the Deputy that it is likely, in my view, that postal rates would have to rise. In any event, incorporation is the best structure for the postal service, that they should be on a commercial footing and that they are absolutely independently regulated, which is best practice all over the world.

2. Deputy R.G. Le Herissier:

Is the Minister, Sir, aware that the elimination to all countries I think, bar the United Kingdom, of the printed paper rate - and indeed the surface rate - has created enormous problems for people, for example, who use eBay or other internet exchanges? It has created enormous problems and was seen by those people as a fairly minor matter in terms of the finances of the post office which has had an utterly disproportionate effect on people who are trying to trade out of the Island.

Senator P.F.C. Ozouf :

I do understand that issue, but I have to say that it does not make any difference; that is not an issue which turns on incorporation. Incorporation: we are turning a States department into a corporate body and I think the comments that he makes are the same, whether or not we would be continuing as a States department or continuing as a body. The issue fundamentally is What is the regulatory approach to the postal services?' and I am satisfied, and indeed confident, that the JCRA (Jersey Competition Regulatory Authority) is able to deal with these issues.

3. Deputy G.P. Southern :

Is the Minister content that there are no outstanding issues around the position of Jersey Post and the fulfilment industry yet to be resolved which may get in the way of incorporation?

Senator P.F.C. Ozouf :

It is an excellent question because the fulfilment issue is one which covers the whole portfolio within Economic Development, and indeed this morning I have been in discussions with officials concerning the fulfilment policy as it relates to the Regulation of Undertakings. I will be delegating the responsibility for the former Postal Committee to the Constable of St. Lawrence shortly so that there is a split responsibility in the department, with those issues concerning fulfilment in Jersey Post being for the Constable to deal with, and for myself remaining with the knotty issues concerning fulfilment which must be addressed, and are in the process of being addressed. But I say exactly the same thing to the previous comments. The changes that we must make concerning Jersey's fulfilment policy do not change the fact of incorporation.

4. Deputy R.G. Le Herissier:

Would the Minister promise to look into the whole issue of surplus mail on the basis that for relatively minor savings it has had, as I said, a disproportionate impact on a certain group of people and is utterly against the trend of people who are trying to set themselves up - for example, as sole traders and using the mail system to do so - a thing which is done on a vast scale by the likes of, for example, Amazon.

Senator P.F.C. Ozouf :

I am happy to look at it. I am not sure whether I would need to say that I need to research and have a better understanding of some of the fundamental issues, but it does not change the issue. The question was whether or not incorporation is going to proceed, and incorporation proceeds whether or not there are ongoing reviews about surface mail and issues of regulatory approach. I am happy to look at it, but as far as I am concerned it does not change the timetable.