States Meeting Transcript - 14/07/2009

STATES OF JERSEY

OFFICIAL REPORT

TUESDAY, 14th JULY 2009

PUBLIC BUSINESS – resumption ...............................................................5

1. Draft Residential Tenancy (Jersey) Law 200- (P.74/2009) ..............................5

1. Deputy S. Power of St. Brelade (rapporteur):............................................5
2. Deputy R.G. Le Hérissier of St. Saviour:................................................6
3. Deputy G.P. Southern of St. Helier:......................................................6
4. Deputy D.J.A. Wimberley of St. Mary:..................................................6
5. Senator A. Breckon: .....................................................................6
6. Deputy J.A. Martin of St. Helier:........................................................7
7. Deputy F.J. Hill, B.E.M., of St. Martin : ..................................................7
8. Senator B.I. Le Marquand:...............................................................7
9. Deputy S.Power:........................................................................8
10. The Deputy of St. Martin:................................................................9
11. Deputy R.G. Le Hérissier: ...............................................................9
12. Mr. W.J. Bailhache Q.C., H.M. Attorney General:......................................10
13. Deputy S.Power:.......................................................................11
14. Deputy R.G. Le Hérissier: ..............................................................12
15. Deputy G.P. Southern :..................................................................12
16. Deputy P.V.F. Le Claire of St Helier: ..................................................13
17. Senator B.I. Le Marquand:..............................................................14
18. Deputy S.Power:.......................................................................15
19. Deputy T.A. Vallois of St. Saviour:....................................................17
20. Deputy G.P. Southern :..................................................................17
21. Deputy R.G. Le Hérissier: ..............................................................19
22. The Deputy of St. Mary:................................................................19
23. Deputy P.V.F. Le Claire: ...............................................................20
24. Senator T.J. Le Main: ..................................................................20
25. Deputy G.P. Southern :..................................................................20
26. The Attorney General:..................................................................21
27. Deputy J.A. Martin:....................................................................21
28. Senator P.F. Routier: ...................................................................21
29. Deputy S.Power:.......................................................................21
30. Deputy J.A. Martin:....................................................................24
31. Deputy R.G. Le Hérissier: ..............................................................24
32. Deputy G.P. Southern :..................................................................25
33. Deputy P.V.F. Le Claire: ...............................................................25
34. Deputy J.B. Fox of St. Helier:..........................................................25
35. Deputy T.M. Pitman of St. Helier:......................................................25
36. Senator T.J. Le Main: ..................................................................25
37. The Deputy of St. Mary:................................................................25
38. The Very Reverend R.F. Key, B.A., The Dean of Jersey:...............................26

39. Deputy S.Power:.......................................................................26

2. Draft Amendment (No. 11) of the Standing Orders of the States of Jersey (P.75/2009) ...........................................................................................27

1. Connétable J. Gallichan of St. Mary (Chairman, Privileges and Procedures Committee): .........................................................................................28
2. Deputy K.C. Lewis of St. Saviour:......................................................28
3. The Deputy of St. Martin:..............................................................28
4. Deputy I.J. Gorst of St. Clement:.......................................................28
5. The Deputy of St. Mary:................................................................28
6. Deputy T.M.Pitman:...................................................................29
7. Deputy J.M. Maçon of St. Saviour:.....................................................29
8. The Connétable of St. Mary:............................................................29

3. Esplanade Quarter and Waterfront Development: deferral (P.77/2009)..............30

1. Senator P.F.C. Ozouf (The Minister for Treasury and Resources):......................30
2. Senator P.F. Routier: ...................................................................31
3. The Deputy of St. John:................................................................31
4. Deputy A.E. Jeune of St. Brelade:......................................................32
5. Connétable D.J. Murphy of Grouville :..................................................32
6. The Deputy of St. John:................................................................32
7. Connétable A.S. Crowcroft of St. Helier:...............................................32
8. The Deputy of St. Mary:................................................................32
9. Connétable J.M. Refault of St. Peter:...................................................32
10. Deputy J.A. Martin:....................................................................33
11. Deputy K.C. Lewis :....................................................................33
12. The Deputy of St. Martin:..............................................................33
13. Deputy C.H. Egré of St. Peter:..........................................................33
14. Senator P.F. Routier: ...................................................................33
15. Senator T.A. Le Sueur:.................................................................34
16. Senator P.F.C. Ozouf :..................................................................34
17. Deputy A.K.F. Green, M.B.E. of St. Helier:............................................34
18. Senator P.F.C. Ozouf :..................................................................34
19. Deputy M.R. Higgins of St Helier:......................................................34

4. Annual Business Plan 2009: variation in respect of pay freeze (P.78/2009)............35

1. Senator P.F.C. Ozouf (The Minister for Treasury and Resources):......................36
2. Deputy J.A. Martin:....................................................................36
3. Connétable K.P. Vibert of St. Ouen:....................................................37
4. The Deputy of St. Martin:..............................................................37
5. Deputy T.A. Vallois: ...................................................................37
6. The Connétable of St. Brelade:.........................................................37
7. The Deputy of St. Martin:..............................................................37
8. The Connétable of St. Peter:............................................................38
9. Deputy A.K.F. Green:..................................................................38
10. Deputy G.P. Southern :..................................................................38
11. The Deputy of St. Mary:................................................................39
12. Deputy M. Tadier of St. Brelade:.......................................................41
13. Deputy R.G. Le Hérissier: ..............................................................42
14. Deputy T.M.Pitman:...................................................................43
15. The Deputy of St. John:................................................................44
16. Senator T.A. Le Sueur:.................................................................44

17. Deputy M.R.Higgins:..................................................................45
18. Deputy A.E. Pryke of Trinity :..........................................................45
19. Senator P.F.C. Ozouf :..................................................................45

LUNCHEON ADJOURNMENT PROPOSED..................................................49

LUNCHEON ADJOURNMENT................................................................49 Senator T.J. Le Main: ........................................................................49 Deputy G.P. Southern :........................................................................50

STATEMENTS ON A MATTER OF OFFICIAL RESPONSIBILITY........................50

5. The Chairman of the Income Support Sub-Panel regarding income support review.50

1. Deputy G.P. Southern (Chairman, Income Support Sub-Panel):........................50
2. Deputy I.J. Gorst : ......................................................................50
3. Senator P.F.C. Ozouf :..................................................................51
4. Senator P.F. Routier: ...................................................................51
5. Deputy R.G. Le Hérissier: ..............................................................52
6. Deputy I.J. Gorst : ......................................................................53

PUBLIC BUSINESS - resumption..............................................................53

6. Draft Income Tax (Amendment No. 33) (Jersey) Law 200- (P.82/2009)...............53

1. Deputy E.J. Noel of St. Lawrence (Assistant Minister for Treasury and Resources - rapporteur):.............................................................................53
2. Deputy E.J. Noel: ......................................................................54

6.2.1 Deputy I.J. Gorst : ......................................................................54

7. Public Finances (Jersey) Law 2005: Funding Requests under Article 11(8) (P.83/2009) ...........................................................................................54

1. Senator P.F.C. Ozouf (The Minister for Treasury and Resources):......................54
2. Senator A. Breckon: ....................................................................55
3. Senator B.E. Shenton:..................................................................56
4. The Deputy of St. Martin:..............................................................56
5. Senator B.I. Le Marquand:..............................................................56
6. Senator B.E. Shenton:..................................................................57
7. Senator B.I. Le Marquand:..............................................................57
8. The Deputy of St Martin:...............................................................57
9. Senator B.I. Le Marquand:..............................................................57
10. Deputy K.C. Lewis :....................................................................57
11. Deputy T.A. Vallois: ...................................................................57
12. Deputy G.P. Southern :..................................................................58
13. The Deputy of Trinity :..................................................................58
14. Senator S.C. Ferguson:.................................................................59
15. Deputy R.G. Le Hérissier: ..............................................................60
16. Deputy M. Tadier :......................................................................60
17. Deputy I.J. Gorst : ......................................................................61
18. Deputy M.R.Higgins:..................................................................62
19. Deputy P.V.F. Le Claire: ...............................................................62
20. The Deputy of St. Peter : ................................................................63
21. Deputy P.V.F. Le Claire: ...............................................................63
22. Senator P.F. Routier: ...................................................................63
23. The Deputy of St. Mary:................................................................64

24. Deputy A.E. Jeune :.....................................................................64
25. Senator S. Syvret:......................................................................64
26. Senator P.F.C. Ozouf :..................................................................66

8. Draft Banking Business (Depositors Compensation) (Jersey) Regulations 200- (P.86/2009)...............................................................................70

1. Senator A.J.H. Maclean (The Minister for Economic Development):...................70
2. Senator S.C. Ferguson:.................................................................74
3. Deputy T.A. Vallois: ...................................................................74
4. Senator S.C. Ferguson: ................................................................74
5. Senator A. Breckon: ....................................................................74
6. Deputy P.V.F. Le Claire: ...............................................................74
7. Deputy J.A. Martin:....................................................................76
8. Deputy R.C. Duhamel of St. Saviour:..................................................77
9. Senator T.A. Le Sueur:.................................................................79
10. Deputy R.G. Le Hérissier: ..............................................................81
11. Senator T.J. Le Main: ..................................................................82
12. The Deputy of St. Mary:................................................................84

ADJOURNMENT................................................................................87

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

PUBLIC BUSINESS – resumption

1. Draft Residential Tenancy (Jersey) Law 200- (P.74/2009) The Greffier of the States (in the Chair):

Very well. The debate continues on the Draft Residential Tenancy Law. The Assembly had adopted up to Article 7. Rapporteur, you propose, therefore, Articles 8 to 13, Part 4 of the Law?

1. Deputy S. Power of St. Brelade (rapporteur):

Part 4 deals with remedies. If I run through it very briefly and perhaps then I will be at the behest of Members as to whether they want to go though it in more detail. Article 8 deals with the termination of service elements. If a service element fails and agreement is not in writing, it deals with a number of matters including situations where the residential tenancy agreement includes a service agreement and the service element can no longer be provided. For example, if a tenant is removed from his job it may not be fair to expect the landlord to allow him to stay in his accommodation or if a tenant was to be unable to carry out his or her employment which related to this accommodation it may not be reasonable for the landlord to serve the tenant with notice immediately. Article 8(2) allows the court upon the application of either party to consider the matter and vary the agreement or terminate it in certain circumstances. Article 8(c) deals with the letting of movables. The landlord lets a unit of accommodation to a tenant. It deals with separate agreements such as antique furniture, furniture, anything specified within what can be called movables. Article 8(d), the letting of any immovable property for business purposes. An example of this would be a landlord lets a residential unit with a workshop at the back; the lease can specify that the tenant may be recognised as a craftsman and needs to use the workshop. Article 8(e) deals with the letting or use of a garden or a swimming pool and the works that might need be carried out in a filtration system. Article 8(3) gives the court, upon application by a tenant, powers to make an order or vary or terminate an agreement. 8(5) recognises the importance of good practice in Article 8(4) regarding a 24-hour grace period before signing an agreement. That essentially is Article 8 and I just say that landlords who comply with these provisions would have absolutely nothing to fear. If I may move on to Article 9, Article 9 deals with premises which are uninhabitable. Again some comments from the 1990 working party suggested that minimum conditions of habitation should be laid down. The Residential Tenancy Law does not do this as minimum conditions of habitation, it is felt, is dealt with in a better way by both the Planning

Department and public health legislation. Health is reviewing public health legislation at this time and Planning have brought in new regulations regarding room sizes. However, the Residential Tenancy Law does grant protections to any tenant where his or her residential unit becomes uninhabitable through an event rather than his or her malicious act. In these circumstances Article 9(a) and 9(b) allow the court to vary or terminate an agreement. Article 10 deals with breaches by a landlord. 10(1) deals with a landlord having a requirement to give a tenant quiet enjoyment of a residential unit. Article 10 outlines for tenants the right to what quiet enjoyment comprises. Quiet enjoyment includes not doing anything that would prevent a tenant from occupying all or part of any residential unit. Article 10(2) to (4) states that any breach of this requirement by the landlord is considered as a breach of the agreement and the tenant can apply to the court for assistance to again vary or terminate the agreement. Article 11 deals with eviction where notice .. failure to give possession. Articles 11 through to 15 deal with those issues raised by the working group on security of tenure. Article 11 makes provision for a landlord to go to court and seek an eviction order in circumstances where the residential tenancy agreement has ended because of the termination date. Article 12 states that a breach of tenancy agreement does not by itself give grounds to terminate the agreement. Article 12(2) introduces a new power for a landlord to serve notice on a tenant who has breached a residential tenancy agreement asking him or her to cease the conduct that has caused the breach. Article 12(3) makes it clear that the process

does not depend on a notice to quit being served. There is no need for a landlord to give notice on a periodic tenant as is currently the case if he has breached the agreement beforehand. Article 12 covers all these breaches. Article 13 deals with the execution of an order for eviction. Articles 13, 14 and 15 clarify the process that will be followed and the issues the court will consider when dealing with eviction orders. For instance, Article 13(1) provides that the eviction orders made by the court will be served by the Viscount's Department as is currently the case and that Viscount's officers will put the landlord in possession of the property. Article 13(2) deals with the provisions of the residential tenancy agreement, clearly outlines the Viscount's powers in such circumstances. Article 13(3) states that the Viscount can sell or otherwise dispose of the property. Article 13(5) allows for the proceeds of any sale made by the Viscount go to the States Consolidated Fund. I move Part 4.

The Greffier of the States (in the Chair):

Yes, Articles 8 to 13, Part 4, are proposed and seconded? [Seconded] Does any Member wish to speak on any of the Articles?

2. Deputy R.G. Le Hérissier of St. Saviour :

Under 8(3), I note that there is not a power of the court to give the ability to come up with a written agreement. In other words, it is all negatives that seem to be contained there rather than continuing the situation but with a written agreement. I wonder if the rapporteur could speak to that. Under 9, premises uninhabitable, how does number 9 deal with issues where there is a suspicion that they have been rendered uninhabitable by malicious action but it cannot be proved? What right does it give the tenant in terms of resuming residency? Under 10, breaches by the landlord, again there is no provision, it strikes me, there for a written agreement to be either imposed, reinstated or whatever. Rather it goes immediately into what you might call the punitive or the negative mode. So is there that possibility there?

3. Deputy G.P. Southern of St. Helier :

Yes. Again I come back to Article 9 as did Deputy Le Hérissier but on a far simpler question. What body is to rule on whether a premise is inhabitable or uninhabitable? There are all sorts of levels of damp and spores that render a household unhealthy but not necessarily uninhabitable. Who is to decide and why are the arrangements not organised in this Law to indicate who is the arbiter?

4. Deputy D.J.A. Wimberley of St. Mary :

Gosh, I did not know I had even flashed my light. Very perceptive. But I do wish to just ask the rapporteur about Article 8 and just make absolutely clear what this is about because it looks to me as if it is about tied accommodation and, if it is, then what exactly are the remedies? If somebody loses their job and then the next minute loses their accommodation that is quite drastic. I just wanted you to clarify exactly what is going on in that Article because obviously you went through it quite quickly and I am not clear as to what the situation is.

5. Senator A. Breckon:

I think that it will be a problem with changes to migration. If we are granting status to employers to employ people by post rather than by person then I think there needs to be some clarity there. The other thing regarding "uninhabitable" where I have had some concerns, people in some instances - and the Minister for Housing will be well aware of this - will re-house because of the state of a property and within a couple of weeks somebody else had moved in. The Environmental Health Department did not have the authority to say: "No, it is not fit for occupation." This became a bit of a merry-go-round and a bit of a nonsense. So although the Assistant Minister has touched on that, I wonder if he could give the House some clarity as to how the health system will be able to

beef-up the powers they have got so that in fact they can stop a property from being occupied. If it is unfit for one person then it should be unfit for another until it is appropriately renovated.

I wonder if the Assistant Minister could explain exactly to the House the difference now and the difference that will be introduced under Article 11, except for the court not being the Petty Debts Court but being the court with tenancy division, because I would like him to expand on this. It may be a difference in one month to 3 months. I would like him to explain that this is exactly how it is now and for the tenants that do not know that and for States Members who have even approached me from me talking yesterday. It is only a court of this Island that can evict. Is this any different under this new Article except for the name?

7. Deputy F.J. Hill, B.E.M., of St. Martin :

I would like to follow on a little bit from my question yesterday of the Minister for Home Affairs and put Article 13 to the Assistant Minister. This is the execution of an order for eviction. If, indeed, the people executing the warrant find the owner out of the premises and they wish to get in and they then damage the door to gain entry, who will be responsible for repairing that door? Or if, indeed, the owner is in and refuses to allow the execution of that warrant, who will be responsible for the damage?

The Greffier of the States (in the Chair): Does any other Member wish to speak?

8. Senator B.I. Le Marquand:

Members may be aware that I am trying to act as a first line of response in relation to this. I had a great deal of input into the Law. There is a danger, of course, that my response might be different to that of the Assistant Minister and, if so, of course he is the authority and not myself in relation to such matters. I will just try to deal with some of the questions which have arisen in order to try and help my colleague in this. Firstly, the Deputy of St. Mary's issue about tied accommodation. The Deputy is absolutely right. This is dealing partly with service tenancies and, of course, this is giving new and additional rights because as the law stands at the moment if you have a tenancy with a service element, when the service element ends the tenancy ends as well. What happens here is the court effectively in this and in other situations has a right to make an order to decide how to deal with the matter fairly. That is an improvement in relation to rights. There was an issue raised in relation to Article 8(3). This is dealing with a situation in which there is not an agreement in writing or it has not been signed, and again this allows the court to intervene to decide what would be the fair and right terms to be imposed in the situation. Of course there are implied terms in the schedules already but that is the purpose of that. In relation to comments on Article 9, this is a specific provision in relation to premises becoming uninhabitable. It is normally good practice in any eventuality in a lease for there to be what is called a rent abatement clause. That is a clause which says that if the premises are damaged in whole or in part then the rent is reduced proportionately. But if that is not in a lease - and I acted in the Royal court in a case in this very area - then there is no rent abatement provision. What this has tried to do is write in a provision for the most serious case, which is where the premises become uninhabitable. They might be completely burned down and without this sort of provision the tenant might still have to carry on paying rent for a period, which would be grossly unfair. The court again has discretion as to how to deal fairly in relation to matters under Article 9(b). In relation to a question that was raised under Article 10(1) - I think by Deputy Martin possibly or it may have been by somebody else - in relation to the enforceability of the provision in Article 10(1). Clearly there is a criminal offence

being created for the first time where a landlord blatantly interferes with the terms of the tenancy. This could happen by turning the electricity off or cutting off the water or something of that nature as a device to get people out. Clearly there needs to be a criminal penalty to prevent that sort of serious action. But in addition to that, the fact that Article 10(1) creates a duty in my view would give rise to a right in the tenant to bring an action before a court for enforcement of that duty and that alongside any criminal issue. In relation to the point that was raised - I think this time by

Deputy Martin - in Article 11, I think she is absolutely right. This does not change the Law as it is at all. It merely restates it clearly that once the period of a tenancy has ended or notice has expired, the person cannot just be thrown out. They can only be removed from the premises by virtue of a court order; in this case an order made by the Petty Debts Court. That is the law of Jersey. I am slightly surprised that the general public do not know that but it is a matter that ought to be publicised. It may explain why my workload in this area was  less than it would have been otherwise. But there it is. Finally, a comment on Article 13 which is a very interesting comment made by the Deputy of St. Martin in relation to who would be responsible for damage done during the course of an eviction. Of course if the court has made an order and an individual has failed to comply with that order and the Viscount is carrying out that order, in my view that would be the responsibility of the tenant who was in breach. But that would be a matter for courts to decide. But in practice it is well known that the Viscount exercises a discretion and acts very gently in dealing with  matters and tries to cajole people; sometimes gives them a  little extra time to organise themselves. It is only in the final resort where people are really being very stubborn, failing to comply with a court order, where those sorts of powers would be required. I hope that assists Members in understanding these points.

The Greffier of the States (in the Chair):

Does any other Member wish to speak? I call on the Assistant Minister to reply.

9. Deputy S. Power:

Again, I thank the Minister for Home Affairs for his expertise. Can I run briefly through my queries, not wishing to dampen the expertise of the Minister for Home Affairs? Article 8(3) gives the court, upon application by the tenant, powers to make an order varying an agreement. This change was felt very important because it was generally felt by both landlords and the Citizens Advice Bureau that one of the main reasons for misunderstandings over tenancy agreements is the fact that Jersey has a high proportion of individuals for whom English is not their mother tongue. Even for English speakers, signing a rental agreement is a big step that incurs responsibility and the clauses should always be understood. The clause will allow time for individuals to seek advice during the time when the advice agencies are open. If I can reinforce some comments about premises that are uninhabitable, a landlord has a duty to keep their premises habitable. As a matter of policy it has been decided to leave the issue of whether premises are uninhabitable or not as one for the court to decide. It is a discretionary thing. It is up to a court under Article 9 to decide as a matter of fact if the premises are uninhabitable. However, protection is given to the tenant here so that he is not responsible for rent if the premises are uninhabitable. The Residential Tenancy Law leaves the tenant responsible for rent if the damage was caused by his malicious act and I think I have already referred to that. Reference has not been made to damage arising as a result of a tenant's negligence. Negligence is a very tough issue to prove. Such matters should be dealt with under the landlord's insurance. For example, for falling asleep while in an alcohol-induced slumber and a fire starting as a result, taps left running and a flood occurring. As the Home Affairs Minister said, rent abatement can be provided for and a suspension of rent payments. Article 10, there was a question on breaches by the landlord and an example of where the court can vary an agreement. If a landlord interferes with a tenant's enjoyment of the property, because of the behaviour the tenant can go to court to seek a variation. This time the application can be made by the tenant; the act of breaking the peaceful enjoyment of a property by the landlord. An example of this would be the landlord consistently popping in to check that the property has been kept in good

order. That is a breach of the tenant's enjoyment. He or she must ask for the tenant's permission. The landlord may play loud music, for example, in an adjoining wing but not to the discomfort of the tenant. There were a number of questions on Article 11, which is eviction. I think the Minister for Home Affairs has covered that. I do not wish to repeat that. Then there was a final question on Article 13 which I think the Minister for Home Affairs also covered, which was the execution order and the costs of the forced entry. If I have missed something I move ..

10. The Deputy of St. Martin :

With respect, I know the Minister for Home Affairs was trying to give an answer on behalf of Housing, but in respect to the Minister for Home Affairs it is a Housing proposition. I did ask quite an easy question and I would like the answer. If indeed premises are damaged as the result of trying to get an entry when the owner is out, is the owner responsible for paying for it? If the owner is in and refuses entry, who then is responsible for it? I do not think that answer was given by the Minister for Home Affairs.

Deputy S. Power:

Under Article 13(3) it states that the Viscount can sell or otherwise dispose of property if the tenant does not remove property before the court order is made and the landlord is put in possession. I think also under Article 13(3) the Viscount can if necessary force entry and that will have to be paid for by the tenant. That is under Article 13(3).

The Deputy of St. Martin :

Could I just press the Assistant Minister? It does not say that in the Law. Are we making a policy on the hoof or is that just a decision that the Assistant Minister wishes to make today?

Deputy S. Power:

I come back to Article 13(3) and Article 13(2) and that relates to the provisions in the Residential Tenancy Law clearly outline the Viscount's powers in such circumstances, including the manner in which any movable property left by the tenant can be dealt with. This provision adds clarity to the position in the 1946 legislation which means that the Viscount can enter premises by force.

The Greffier of the States (in the Chair):

An unanswered question, Deputy Le Hérissier?

11. Deputy R.G. Le Hérissier:

In a way this is a case for legislative scrutiny, I should add, but we all have to eat humble pie on that.

The Greffier of the States (in the Chair):

The issue is you cannot raise new points. Is it a question you raised? Deputy R.G. Le Hérissier:

No, I wanted clarification. I asked in reference to 9 and 10 could the court reinstate or impose a written agreement. Those provisions do not appear to be there in 9 or 10 because it may be proven, for example, as I think the Minister for Home Affairs - who is becoming the Minister for Housing de facto - I think he said people could maliciously .. or might switch off electricity, for example, and that may be the cause or there may be an apparent breakdown in water supply, blah, blah, blah. I wonder could the court simply say: "Look, there is a problem here but really from the evidence we have heard to date, the written agreement will be imposed and the tenant at a suitable time will move back into the property and here is the agreement to that effect."

The Greffier of the States (in the Chair):

Are you able to answer that point, Assistant Minister? Deputy S. Power:

I am not quite sure where the Deputy is coming from. Article 9, I think I have outlined quite specifically where premises are uninhabitable. It is quite clear where the Law is, that the Residential Tenancy Law does grant protection to any tenant under the courts where a unit becomes uninhabitable. It is at the discretion of the courts as to how you define that. A landlord has a duty to keep premises habitable. If the tenant has decided that the premises are uninhabitable, he has the protection of the courts both in the termination of rent and the agreement where applicable. A landlord's insurance can cover for the loss of rent and building repair if this situation occurs. I hope that answers the Deputy 's question. Article 10, he again brought me back to breaches by the landlord. I think I covered that where a landlord frequently pops in without asking a tenant's permission. That is wrong. Article 10(1) deals with a landlord has a requirement to give a tenant quiet enjoyment. Articles 10(2) to (4) state that any breach of this by the landlord is considered as a breach and the tenant again has the protection of the courts. Other than that I cannot add anything more to my response. I move Part 4.

12. Mr. W.J. Bailhache Q.C., H.M. Attorney General:

I wonder would it be helpful if I just addressed this matter from a legal perspective. There is an established line of authority which says a landlord is required to provide an essential water supply to a premise. I am not aware of a similar case in relation to electricity but it would not surprise me if the court were to find that the same implied obligation existed on the landlord. What Article 9 is doing is simply dealing with the position where the premises cannot be inhabited and ensuring the tenant then does not pay rent. Article 10, which is picking up Deputy Le Hérissier's point, does 2 things. First of all, it creates a right on the part of the tenant to peaceful and quiet enjoyment of the premises. That is often a right which is included as one of the rights in the lease anyway but this creates it statutorily if the lease does not include the right. So if the landlord were to breach it by cutting off the water supply or cutting off the electricity or anything like that, the tenant can go to court and get an order to enforce his right. The second thing Article 10 does is because going to court to get an order to enforce the right sometimes takes some time and could be expensive, it creates a criminal offence  if the  landlord does  it. So if the  landlord does something which interferes with that right to quiet and peaceful enjoyment then the tenant could make a complaint to the police who could go along and investigate and probably that would create a much quicker dynamic for the landlord putting things right.

The Greffier of the States (in the Chair):

Very well. The appel is called for. The vote is for or against Articles 8 to 13 of the law. If Members are in their seats, the Greffier will open the voting. If all Members who wish to do so have cast their votes, the Greffier will close the voting. The Articles have been adopted; 28 votes were cast in favour, 1 vote against.

The Greffier of the States (in the Chair):

Do you propose now Part 5, Assistant Minister, Articles 14 to 18?

13. Deputy S. Power:

Yes, if I may. The section deals with jurisdiction and proceedings. The first item that it deals with is under Article 14(1). Article 14(1) enables the court to stay or postpone the implementation of an eviction  order  of  its  own  accord  or  upon  application  by  either  the  landlord  or  the  tenant. Article 14(2) states that if a stay is ordered by the court, the court has the power to vary the rent payable  or  other  conditions  of  the  tenancy  agreement  as  it  considers  just  or  fit  in  these circumstances.  Then Articles (3) and (4) of the Residential Tenancy Law state that the court can impose such conditions at the time it makes the order for the stay once an order is made upon the application by either the tenant or landlord. Article 14(5) states that the court cannot impose any condition  that  would  be  void  or  in  breach  of  the  Residential  Tenancy  Law.   Moving  on  to Article 15, matters to be considered in deciding on a stay, Article 15(1), the court shall consider whether any rent is outstanding, whether either party has breached any provisions of the residential tenancy agreement, whether there has been continued or repeated breaches and that reasonable steps have been taken to remedy the breach; and (d) is if a stay were to be ordered, where the balance of hardship would fall as between the landlord and the tenant. Running down to this Article there are many other matters that the court may decide. For example, if it is a fixed term tenancy, whether it has expired or not, whether other accommodation is available if it is (b) and (c) and whether the tenant has looked for it; (d) is whether a deposit has been paid; (e) is whether there is a contract concerning movables in force. This may have an impact on the practicality of the tenant leaving the property and the impact may be on the landlord. He may be left with property on the premises that belongs to someone else if the tenant cannot dispose of it. (f) and (g) deal with use of the premises by the tenant for illegal or immoral purposes - I cannot imagine what that is but I think it is fairly explanatory - and anything that causes a nuisance in the unit or interfered with peace of a neighbour. (h) is whether the premises have deteriorated or have been maintained properly or improved. (i) deals with whether the tenant has given notice and the landlord has relied on that and would be disadvantaged. (j) deals with whether a vacant possession would benefit or disadvantage the landlord; and (k) deals with the pattern of evictions by a landlord in various properties. For example, was this a unique or rare eviction or does the landlord evict people all the time and why. The court can take that into consideration. (l) deals with is the property dangerous or bad for occupants? Public Health  may become an issue here. Does the landlord have a

responsibility to improve the property? (m) would deal with would it be easier to rectify an issue if the property was vacant? In other words, can the landlord justify removing the tenant in order to carry out works? (n) deals with hardship. Is hardship to be caused to people other than just the landlord and tenant if a stay is not ordered? For example, the tenant goes in to look after an elderly neighbour every day and needs to change for replacement care or services. (o) deals with any other matters that the court may consider relevant. Article 16 deals with jurisdiction. Article 16(1) gives the court exclusive jurisdiction in all matters relating to a residential tenancy or a Residential Tenancy Agreement. Articles 16(2) and 16(4) state that the court can make an order relating to any matter that has come before it on an application, for example, relating to a residential tenancy.

Article 16(3) means that the court can make such an order even if an order was not mentioned in the application and the effect of such an order was not contemplated. This provision in Article 16 will simplify current processes whereby the cancellation of a tenancy agreement with an annual rental of more than £15,000 has to be dealt with by the Royal Court which then refers the case back to the petty debts court. I move the Articles.

The Greffier of the States (in the Chair):

Very well. Articles 14 and 18 are proposed and seconded? [Seconded] Does any Member wish to speak on any of these Articles?

14. Deputy R.G. Le Hérissier:

I wonder if under 14(2) one of the issues that underlies this, which I cannot find, is what is the limit? Is there a limit on a stay of eviction? You hear these stories, particularly from the U.K. (United Kingdom) .. not as much now because there is a fast-track system, as I understand it, in place but where people basically are able to manipulate the legal system and to stay for long, long periods of time. How is that situation dealt with where it is thought that there is that kind of manipulation going on? Secondly, under 15(j), vacant possession, has there been a problem, for example, if a landlord were to say: "I wish to move in relations who have suddenly arrived" or: "I am expanding the number of employees in my business and I need to find accommodation for them"? What kind of contribution would that make to the decision? I think we did get 17, Appeals. We know - and the Deputy knows because he did some excellent work on the Third Party Appeals Committee - the whole issue of costs. We have an appeal against a decision and obviously it is quite possible the appeal will be by the landlord against the court's upholding of a tenant's position, for example. Where there is such a situation quite clearly if a tenant feels that costs are going to be awarded against them, how are they going to be able to cope with appeal where they feel that there is perhaps an injustice? We know the major problem that that has posed for the third party planning appeal system.

15. Deputy G.P. Southern :

Before I start, my £10 is on its way to your coffers. But before I was interrupted by a constituent so rudely I was about to make a point or 2. The first one: neither a gambler nor a borrower be. Yes, exactly. The Deputy can speak for himself rather than for me. Under Article 15, yes, I just thought I would again raise the point that Deputy Martin has raised several times in this debate. The Article that allows the court for a stay of eviction, most commonly used on the tenant's behalf, is time to seek other accommodation. In an Island where accommodation is not exactly plentiful and higher priced, that is the vital element. What I wanted to do was to ask the Assistant Minister today whether he would more widely advise tenants facing an eviction or threat of eviction from a landlord they have this right because what often happens is that people receive this letter from the landlord or their agent in most cases and they immediately think that they have got to get out within a number a weeks, whereas the fact is that if they go through the process through they courts they in all likelihood will get a stay of execution in order that they can find suitable alternative accommodation. That is the case. But as the Minister for Home Affairs was surprised that not everybody knew this, I think it probably falls on the Housing Department to more widely advertise that this is the case and that people should not be panicked into leaving their accommodation under the mere threat from a landlord who might just decide that he wants you out and that is it. That is not the case and there is some protection in the law and it should be more widely advertised. Secondly, I come on to part 18 and it comes down to a question I have been asking several times through this debate and I have yet to receive a satisfactory answer as to why we can introduce this law - the Residential Tenancy Law - which takes care of residential tenancies but does not and apparently cannot bring in at the same time a protection scheme for rental deposits. I am doing this at 18 because it says here: "Nothing in this law shall affect the operation of the Housing (Jersey) Law 1949." It seems to me we have been told so far that we cannot bring in a rental deposit protection scheme because in that case it has to apply to all lettings including lodging houses and we cannot do that until the migration law is in place which will not happen .. it is going to be lodged in probably the summer of next year, debated towards the end of that year, in place some time in 2011. We cannot have a rental deposit protection scheme because we have got to have migration law in there. Why does this not say then under 18: "Nothing in this law shall affect the operation of the Lodging Houses Law" or whatever is required in order to make the exemption? Why can we have a law here which applies to only residential leases and not to lodgers, which contains the outline and the regulation - the powers to start a rental deposit protection scheme - but we are told that that cannot be brought in applying only to leaseholders because it has to apply to lodgers. How can we have one law which does not apply to lodgers and that is okay but another part of that same law must apply to lodgers and that is not okay? It cannot be a Human Rights issue. We have consulted with the Attorney General on human rights issues and our Housing (Jersey) Law 1949 is okay by human rights standards so it is not a human rights issue. Why is it that we cannot have this and why do we have to wait until 2011 to see a tenants rental deposit protection scheme in place? That question has not been answered. At this stage will the Assistant Minister have another go explaining to Members why we have to wait so long to see a rental deposit protection scheme when we can have this law in place with its exceptions but not a rental deposit scheme with an exception? Why not? That has not been answered. Until he does, I do not see why this should be passed because I did not particularly withdraw my proposition that we should have a rental deposit scheme set up along the lines I suggested, and we appear to be a long way down that in terms of discussions and debates about how we can set it up but yet we are told we have got to wait on migration law and that is going to take for ever. Do not forget the migration law is coming hand in hand with a names and addresses register which contains all sorts of complications and little devils in the detail that we may have serious problems with. So it may not even be a straightforward noddy that we will just let through on the nod. It has got some serious implications and yet we are told we have to wait for that - for this particular aspect of the law - and I, for one, do not see why we should be and I do not see why these regulations are not here to produce a rental deposit protection scheme as well in the very near future. Why is it not

happening? That has not been answered. Will the Assistant Minister please answer that question?

16. Deputy P.V.F. Le Claire of St Helier:

These 2 areas that have been highlighted by Deputy Southern probably are the most important 2 areas for tenants; certainly from tenants that I have spoken to in the 10 years that I have been in the States. I have on a number of occasions been contacted by people who have been distraught on the telephone asking me for help because of the fact that they are about to be evicted by their landlord. Normally it is my practice to pass these straight over to Senator Breckon because do not be a damn fool about it, at the end of the day give the work to somebody who knows what they are doing. In this particular area I have found over the years that Senator Breckon has always come forward and helped people in these areas that I have not had the expertise to give advice to. It certainly has saved a number of people some distressful situations. I would like to thank him personally and publicly for those incidents, many of which funnily enough happen at around about Christmas time. For some bizarre reason people get evicted at around about Christmas time. I have said this before in the States. Thanks to the Minister for Housing giving me some support, I found myself one Christmas Eve walking down the street in the rain with a sofa on my head to re-house a Portuguese man who had been evicted because he had suddenly become diabetic and had been told that he needed new housing. So he contacted his landlord - it was a Jersey landlord - and said: "Look, we have been living here for 11 years [or whatever it was] in this room with no water and we have been carrying our bucket of water up the stairs every day to wash our dishes, to live in our room. But unfortunately because of our medical hygiene requirements now we need to look for something else and we have to give you a month's notice." The landlord said: "Fine, right, out tomorrow." Years of paying rent by the week: "Right, out tomorrow" was the answer for them. The gentleman has now passed away, but if it had not have been for the Housing Department they would not have

had anywhere to go. They moved into a place just down the road, which I helped them to do over Christmas time, with no carpets. It was shameful. I have recounted this story before. The Housing Department and the States need to make better aware the protection for tenants. I do welcome the law that is being brought by the Assistant Minister today. But in this area, in particular letting people know their rights in terms of eviction, we have not gone anywhere near as far as we need to go in that regard. The second part which was brought up by Deputy Southern - and I realise I am standing not to repeat but to reinforce these 2 points; they are important points - is the rental deposit protection scheme. It is something that I have been speaking about in my experience to the Minister for Housing and the Assistant Minister in the past about the fact that in other jurisdictions if you rent a property, for example a flat, and you give the landlord a month's deposit, that deposit has to go into a bank account and every year as part of your tax return that landlord has to show you what interest has been earned on that money pegged at the level that the bank would give you. So if you have been in a property for 10, 12, 13 years - and let us not forget that we have those sorts of onerous requirements on people to qualify - then you can certainly count on a £1,200 deposit a decent amount of interest on that money over that period. If we are 2 or 3 years down the road before even beginning this scheme then there is another 2 or 3 years of that interest in the landlord's pocket.

The Greffier of the States (in the Chair): Does any Member wish to speak?

17. Senator B.I. Le Marquand:

I wanted to comment on some of the questions raised by Deputy Le Hérissier. Firstly, he raised a question under Article 14(2) as to whether there was any limit on the length of delay that could be ordered by the court. The answer to that is no. But of course any order made by the court would be subject to appeal if it were unreasonable. The sorts of lengths of delay granted by courts have varied greatly during the period when I have been in the legal profession. It was not uncommon when I was a young lawyer for there to be delays of up to 3 years because of people needing to be re-housed by the Housing Department. Once the rent rebate system came in, it made life a great deal easier. There were also extreme cases such as the Troy Court case which was mentioned where the courts took a very strong view when somebody had bought a block of flats and was evicting everybody in order to sell them off and gave very long delays. In my experience, in the period when I was Magistrate, which was from 1999 until last year, 2008, it was unusual to get delays of much more than 12 months. There might be occasionally but the availability of accommodation was so much better. The really key issue when you are talking about lengths of delay is Article 15(1)(d) which is the balance of hardship test. This law has slightly changed that because the previous law had a system which was certainly construed by myself as a judge whereby if someone was in serious breach of the terms of their tenancy the court really could not give them any length of delay other than an exercise of mercy. This is different because breaches of tenancy are rare in the earlier sections of 15(1) but the balance of hardship test still remains. Of course in the case referred to by Deputy Le Hérissier where someone might have a family member who would need to move in or whatever, that would be a key issue in terms of the balance of hardship test being applied in relation to that. At the end of the day that is the key area. That is the key decision the courts will still have to make, in my view, under this law. What has happened is all the different possible criteria and matters to take into account have been set out in a way which I am sure that the judges will find very helpful when they are exercising their discretion. A point was

also raised in relation to costs on appeal. The position there is there is no special provision made in Article 17 and, therefore, the normal situation will apply in relation to costs; namely that they will be in the discretion of the court - in this case the Royal Court - dealing with such matters. This is a very different situation to the situation that used to apply under the law whereby whenever an eviction order was made against a person the landlord was entitled to his costs. That was very unfair because the tenant might have been a very good tenant and behaved perfectly properly. The States eventually changed the law to give a discretion to the court in that; a discretion which I often dealt with. My personal policy was if there was no fault on the part of the tenant, I saw no reason to make an order against him. But when you are dealing with appeals it is a different matter because a court has already made a decision - has made an order - and a person might be unreasonably appealing against that either way. It seems to me quite proper that the court should retain the power to decide whether costs should be ordered against the appellant or not in that kind of way. Again, I hope that helps Members in understanding these provisions.

The Greffier of the States (in the Chair):

Does any other Member wish to speak on the Articles? I call on the Assistant Minister to reply.

18. Deputy S. Power:

I do not intend to repeat what has just been said. I think it has been said eloquently. I hope Deputy Le Hérissier is happy with the explanation on the huge variations that can take place in the stay of execution. I would just add one other comment to what the Minister for Home Affairs has said. As he said, under Article 15(1)(d), hardship is a key issue but I would also say that Articles 15(1)(b) and (c), whether other accommodation is available and whether tenants have looked for it, is also a key issue because the court has the discretion to decide whether he or she has seriously looked for other accommodation and can take that into account. I want to come back to Deputy Southern 's repeat requests for clarification on why we are not bringing a deposit protection scheme here. I will try and repeat clearly what I said yesterday. [Interruption] No, I am not going to rejig my words. I am going to add to my words. Sorry, Sir, through the Chair. The first thing I would like to point out is that the Residential Tenancy Law applies to qualified people as we understand qualified people at the moment. At the moment an unqualified person or a person living in the unqualified sector cannot and will not be entitled to a lease. I hope the Deputy understands that. That is inequitable. It is absolutely inequitable. When Senator Routier's migration law comes in next year with his name and address register - and I apologise for my mistake yesterday; I was considering the consultation period - there will be a tenant deposit scheme ready. That tenant deposit scheme will apply to licensed, entitled and registered. I am not giving way, Deputy . It will apply to licensed, entitled and registered. I am not finished. The Minister for Housing advised the Assembly last October, on 10th October when the consultation findings report was released, that he thought it likely that there would be a tenant deposit scheme brought in once the Residential Tenancy Law was adopted. That was pointed out to this Assembly last October. The issue of a tenants deposit scheme has attracted considerable comment right throughout the consultation process and, indeed, there are some landlords that felt it was overly bureaucratic, but the consultation process had advice from such organisations as the Citizens Advice Bureau, the Jersey Consumer Council, the Jersey Rights Association and many other organisations who were trying to obtain the return of deposit monies for tenants. Additional research the Deputy will be aware of was carried out last year in the 2008 Jersey Annual Social Survey. The results did not support the view that the issue was a big concern with 5 per cent of people reporting the issue with the return of the deposit as being an issue in the previous 5 years. That was the result of the 2008 Jersey Annual Social Survey. The result of that is that on balance it was deemed appropriate that the proposal for a scheme be brought to the States for a debate to establish a deposit scheme by means of a

Regulation.

The Greffier of the States (in the Chair):

Deputy Southern , we do not need a commentary, please. Deputy S. Power:

That is what will happen. I am trying to answer the Deputy 's question and I do not need a running commentary [Approbation]. Can I remind the Deputy that I came to Jersey when the qualification period was 20 years. I have lived in rooms where there were old bedspreads as curtains, where people charged £1,500 - £2,000 for worn-out carpets, all that kind of stuff. I have been there, Deputy , I know what I am talking about. I will be the first person to say that the system is inequitable at the moment and it will be changed. It will be changed through this Residential Tenancy Law and it will be changed through the new migration policy and it will be changed through the deposit protection scheme. I am not finished. There are preparations going on now with a view to bringing a proposition for a regulation to establish a tenants deposit scheme. In order to do this we have to bring in this Residential Tenancy Law first and then we have to bring in a migration policy. There is one other reason why we should not bring in a tenants deposit scheme right now, in that it would discriminate even further against those in the unqualified sector. We have to close the gap, Deputy . The intention is that the scheme will be compulsory, managed by a third party and funded through interest received on deposits retained in the scheme. As I have said yesterday, the Housing Department and the Population Office estimate that a deposit scheme which will be compulsory could hold up to £4 million to £5 million in it so we have to pay some due diligence to how that money is managed. I do not think I need to say anything else about the deposit protection scheme except to say that it is going to come in. It has taken some time to bring a Residential Tenancy Law. To date I have been in the Housing Department 7 months. I had an interest in housing even before that. It is going to happen. I do not want to duplicate what the Minister for Home Affairs has said. There was one other question I think on .. I will just gather my thoughts as I am getting slightly excited here. I think the queries on Article 17 were covered by the Minister for Home Affairs and I think the queries on Article 18 were covered by the Minister for Home Affairs. I do not intend to repeat those. I move Part 5.

The Greffier of the States (in the Chair):

I put Articles 14 to 18. Those Members in favour of adopting them, kindly show? Those against? The Articles are adopted. You come finally, Assistant Minister, to Part 6, Articles 19 to 26, and you can propose Schedule 3 as well.

Deputy S. Power:

Yes, if I may move to Part 6, Articles 19 through to 26. I will be as brief as I can. Article 19(1) requires a landlord to provide a tenant with a signed copy of a residential agreement and a signed copy of any  varied or  renewed agreement.   The provision  meets the recommendation of the working party. Article 19 of the Residential Tenancy Law has been revised to take account of comments made during the consultation period. There are many examples within this. I am quite willing to go through those if Members have specific queries. The original proposal is for a landlord to come under an obligation to provide a tenant with a statement at least once every 6 months and, as was clarified yesterday, that is now not necessary. Some people felt that this was unnecessarily bureaucratic. It relates to the comments of the Deputy of St. Mary in the way in which a landlord records receipt of monies. It was felt that with modern banking and electronic banking facilities it was stated that the majority of tenants pay their rent by standing order and payments can be readily identified from the parties' bank statements, both landlord and tenant, and this was considered to be a change of practice from the mid 1990s when the working party considered these issues. Article 20 deals with a termination by agreement. Article 20 confirms that the parties are at liberty to agree to terminate a residential tenancy agreement by agreement of their own at any time. This is an exception to the general contracting out prohibition contained in Article 21. Article 21 makes it an offence for anyone to try and enter into an agreement to avoid the provisions of the Residential Tenancy Law. That includes any agreement whether it is oral, partly oral or partly written and includes one entered into before the tenancy agreement. Article 22 relates to general provisions. 22(1) makes those active in certain capacities for limited liability partnerships or body corporates liable under the terms of the Residential Tenancy Law for acts that they commit. Article 22(2) applies paragraph 1 to members who manage the affairs of a body corporate. Article 22(3) applies to anyone who aids or abets such an offence shall also be guilty. Article 23 deals with orders. Article 23 gives the Minister an order-making power to introduce certain extra provisions into this Residential Tenancy Law. The version of the Residential Tenancy Law that was consulted upon had no provision for the Minister to make orders. The issues now listed in Article 23(2) are matters suitable for addressing the making of an order and were previously subject to the need for a regulation. The issues covered in Article 23 include provisions relating to: (a) the completion of reports about the condition of a property; (b) the content of those reports; (c) the provision of information or documentation to the tenant prior to the commencement of a tenancy; (d) the content of that information; (e) the maximum charge for the preparation of a tenancy agreement; (f) the service, contents and form of any notices to be served other than court documents; (g) is the provision of a standard form of tenancy agreement; (h) are the forms to be used under the law; (i) and (j) together the status of and rights relating to the disposal of fixtures and fittings; and (b) the tenants movables left in a residential unit once the tenant has departed; (k) to (l) deal with the supply of services or imposing limits on charges for the supply of these services. An example of that would be a review being undertaken though not necessarily practical for suppliers to be split up at the source if it has been suggested in the case of a landlord that a query .. the landlord should provide the tenant with an itemised account showing his element of the bill. For example, if a block of apartments were sharing electricity that would come under that one. Article 23(3) specifies that the Order-making powers under (k) and (l) can deal with the re-supply of services under the control of the landlord. Article 23(4) is a standard clause allowing for Orders to be made for matters to be determined. Article 23(4) allows for offences to be created, punishable by fines at level 3 which is currently £2,000 maximum. Article 23(5) is a standard one relating to transitional arrangements. Article (f) deals with a standard form of tenancy agreement. (h) deals with there are no current plans to introduce further standard tenancy agreement under the Residential Tenancy Law in order to adopt standard form agreements. Article (i) deals with the tenancy agreement currently used by the Housing Department for States tenants. Occupying States rental accommodation managed by the department is already compliant with the terms of the Residential Tenancy Law. Moving on to Article 24: Regulations. Article 24(1) allows for the setting up of a tenants deposit scheme. Deputy Southern will be pleased to hear that. Article 21 allows for a Regulation to come into effect on the day the Residential Tenancy Law comes into effect. I have already covered most of that, Article 24. Article 25 and 26 finally, these Articles include provisions dealing with the amendments to enactments and citation and commencement of the Residential Tenancy Law. Schedule 3 refers to the amendments that will be necessary to the 1919 and 1946 legislation that I have already said will be kept so that it is clear that those laws will now remain in force only so far as they relate to premises or tenancies not affected by the

Residential Tenancy Agreement. I move Part 6.

The Greffier of the States (in the Chair):

Are the Articles and the Schedule seconded? [Seconded]

19. Deputy T.A. Vallois of St. Saviour :

I wonder if the Assistant Minister could just confirm with regard to Article 19 where it says documents to be provided to the tenant whether there is a requirement for the landlord to make reference to this law within any contractual agreement or any lease to the tenant.

20. Deputy G.P. Southern :

The first point I want to make is that we have got a whole raft of Orders here and the only reference to these Orders is made on page 22 where under item 4, Article 23, Order-making powers are introduced to deal with most of the issues previously listed as to be dealt with by Regulation. So they were previously under Regulations, which I remind Members come before this House and are vetted fully and properly as is appropriate, but for some reason - but we are not given the reason - half of those Regulations are now Orders. Orders, I remind people, are laid before the House but cannot be amended by this House and can only be changed retrospectively. Once they are in place you can have a go at changing them. They are wide-ranging indeed. There are occasions which are

so minor that I believe this House would not want to be dealing with them and they should be appropriately left with a Minister or an Assistant Minister or the department to deal with. That is entirely appropriate. There are issues where an Order is an advantage where speed of response is required  because a Regulation requires  6 weeks  lodging,  needs to  be  looked  at, have proper examination, might be called in by Scrutiny to see if it is appropriate. An Order can get on with something and might be appropriate but we are given no reason. If we examine some of the things which are contained in an Order, there seems no rhyme or reason to putting them in an Order apart from the fact that it is convenient for the department or Minister to have those in an Order and he can do things as he wishes without reference to this body; without reference, in fact, to issues such as data protection. You can just say I have done this under an Order under the law; therefore, it is legal. Therefore, once it is in place, data protection cannot investigate it and put up any objections to it. That spectacularly happened with the 26-pager that we got for Income Support. There were serious date protection issues raised but it was brought in on an Order and nobody discussed it and the Data Protection Commissioner did not have the opportunity to prime this Chamber and say: "Are you aware that there are, for example, issues around one person in a household declaring another person's income to a third body, i.e. an elderly parent living in your home and you are asked to declare as the applicant their income when it is their private information?" That issue was never resolved. It was just put into the Law by Order. So we have got on page 41 on 2(a), 2(b), 2(c), the completion by a landlord and tenant of reports about the condition of the residential unit before occupancy starts. If that is not a condition around deposit protection I do not know what is, and lo and behold deposit protection, the deposit required, and this says the state of the flat or house before the tenancy commences, the state of the place is under an Order. Why when the deposit required and the conditions around that deposit are under Regulations? For example, why not (a), (b) and (c), that information, why is that under Regulations? That Regulations can come to this House. It is not urgent. Things can be done in response to anything. There is no need for an Order apart from it is a convenience for the Minister. Time and time again under Ministerial government we have seen Ministers appropriating powers to themselves, not bringing them to this House, doing things effectively in secret on the Q.T. because it is convenient. We can do it because we have made an Order. Again the control comes away from this House. The legitimate review .. we are reviewing this today and as it is amended by Orders that come along, do we get to review that and see if it is still the effective and appropriate way forward? No, we do not because it will be done by Order, we are told, and we will get to see the Regulations when they arrive over deposit protection. But we will not get to see all these bits on page 41 because they will be done by Order and the only time we will get to see them and view them is in retrospect once they have been lodged; once they have been laid before us. This tendency of Ministers to take everything in on an Order which gives them total control and they do not have to tell us about what is happening is a position which I believe is a noxious one that we should resist. We have had no justification for any of the .. I do not know how many items that is on page 41 being put into an Order with no reason at all apart from convenience of a Minister. He can do some of these things as he wishes and he does not have to wait and he does not have to tell us about it until he has already done it. That is not good enough, I believe, and I shall certainly be voting against this particular grabbing transfer from Regulation to Order just for its own sake with no reason given. That is to be objected to. Then finally I make my final question on the rental deposit protection scheme. We are told now that it will be brought in after we accept this Law. My understanding was it will not be brought in until we have got migration law in place which may not happen until the middle of 2011. I believe that is reneging on a promise made to me that if I withdrew  my proposition for a rental deposit protection scheme, which was virtually identical to the one which is being proposed in any case, that they would bring it in post haste. What we have got is probably end of 2010 but more likely middle of 2011 we will get some rental deposit protection scheme, not because they have to but because the Minister and his Assistant have chosen to. They have chosen to put this on the backburner at this moment on the convenience that it is further discriminating against those in lodging houses. They decided of their own volition not to bring this and to renege on promises

made to this House that they will be bringing it. Unless of course the Assistant Minister stands up and says during the course of next year it will be in place and we will fix it to make lodging houses included in it later. There is no reason why they should not be doing that, yet that is not the approach they have adopted. They have adopted to put it on the shelf and just leave it until 2011 when we have sorted out all of the kafuffle around migration policy and the names and address register and the new categories - the whole new system - when that is place then we will finally get round to it. I think that is not good enough and unless I get a commitment from the Assistant Minister now to bring in a rental deposit protection scheme in the coming year, 2010, I shall be voting against this because I think it is just a means to delay, defer and to fudge.