States Meeting Transcript - 19/07/2011

STATES OF JERSEY OFFICIAL REPORT TUESDAY, 19th JULY 2011

PUBLIC BUSINESS..............................................................................5

1. Roads and Pavements: legal liability in case of negligence (P.75/2011).................5

1. Deputy F.J. Hill of St. Martin : ...........................................................5

1. The Connétable of St. Brelade:..........................................................9
2. Deputy T.M. Pitman of St. Helier:......................................................12
3. The Deputy of St. John:................................................................12
4. Deputy M. Tadier :......................................................................13
5. Connétable J.M. Refault of St. Peter:...................................................14
6. Connétable K.P. Vibert of St. Ouen:....................................................16

2. Roads and Pavements: legal liability in case of negligence (P.75/2011) - referral to Corporate Services Scrutiny Panel......................................................16

1. Deputy J.A. Martin:....................................................................17
2. Senator S.C. Ferguson:.................................................................17
3. Connétable A.S. Crowcroft of St. Helier:...............................................18
4. Deputy M. Tadier :......................................................................18
5. Deputy D.J. De Sousa of St. Helier:....................................................19
6. Deputy G.P. Southern :..................................................................19
7. Connétable J. Gallichan of St. Mary : ...................................................19
8. The Deputy of St. Martin:..............................................................20
9. Deputy J.M. Maçon of St. Saviour:.....................................................20
10. The Connétable of St. Brelade:......................................................21
11. The Deputy of St. John:..............................................................21
12. Deputy P.V.F. Le Claire of St. Helier:...............................................21
13. Connétable P.F.M. Hanning of St. Saviour:..........................................22
14. Deputy R.G. Le Hérissier of St. Saviour:............................................22 Mr. T.J. Le Cocq Q.C., H.M. Attorney General: ..............................................23
15. The Deputy of St. Mary:.............................................................23
16. Deputy K.C. Lewis of St. Saviour:..................................................24
17. The Connétable of St. Ouen : ........................................................24 Senator B.E. Shenton:........................................................................25

3. Roads and Pavements: legal liability in case of negligence (P.75/2011) - resumption.25

1. The Connétable of St. Helier:...........................................................25
2. Deputy P.V.F. Le Claire: ...............................................................26
3. Deputy J.G. Fox of St. Helier:..........................................................28
4. The Connétable of St. Mary:............................................................29 The Attorney General:........................................................................29
5. Connétable S.A. Yates of St. Martin:...................................................32

6. The Deputy of St. Martin:..............................................................33

The Attorney General:........................................................................34

2. Draft Security Interests (Jersey) Law 201- (P.88/2011)................................35

1. Senator A.J.H. Maclean (The Minister for Economic Development):...................36 Deputy C.F. Labey of Grouville (Chairman, Economic Affairs Scrutiny Panel):..............38
2. Senator A.J.H. Maclean:................................................................38
3. Senator A.J.H. Maclean:................................................................38

1. Deputy R.G. Le Hérissier: ..............................................................39
2. The Deputy of St. Martin:..............................................................39
3. Senator A.J.H. Maclean:................................................................40
   4. Senator A.J.H. Maclean:................................................................40

1. Deputy R.G. Le Hérissier: ..............................................................41
2. Senator A.J.H. Maclean:................................................................41

5. Senator A.J.H. Maclean:................................................................41

1. Deputy R.G. Le Hérissier: ..............................................................42
2. Senator A.J.H. Maclean:................................................................42 The Attorney General:........................................................................42

6. Senator A.J.H. Maclean:................................................................43
7. Senator A.J.H. Maclean:................................................................43
8. Senator A.J.H. Maclean:................................................................44

1. Deputy R.G. Le Hérissier: ..............................................................45
2. Senator B.E. Shenton:..................................................................45
3. Senator F. du H. Le Gresley:............................................................45

4. Senator A.J.H. Maclean:................................................................45 Senator B.E. Shenton:........................................................................45 The Attorney General:........................................................................45

9. Senator A.J.H. Maclean:................................................................45

1. Deputy J.B. Fox:........................................................................46
2. The Deputy of St. Martin:..............................................................46
3. Senator A.J.H. Maclean:................................................................47

10. Senator A.J.H. Maclean:................................................................47

1. Senator P.F.C. Ozouf : ...............................................................47
2. Senator S.C. Ferguson:..............................................................47
3. Deputy A.E. Jeune : ..................................................................47
4. Senator F. du H. Le Gresley:........................................................47
5. The Deputy of St. Martin : ...........................................................48
6. Senator A.J.H. Maclean:.............................................................48

3. Draft Medicines (Amendment No. 3) (Jersey) Law 201- (P.94/2011)..................50

1. Deputy A.E. Pryke of Trinity (The Minister for Health and Social Services):...........50

1. Deputy A.E. Jeune :.....................................................................51
2. Deputy R.G. Le Hérissier: ..............................................................52
3. Senator S.C. Ferguson:.................................................................52
4. Deputy D.J. De Sousa:..................................................................52

5. Deputy P.V.F. Le Claire: ...............................................................52
6. Deputy I.J. Gorst of St. Clement:.......................................................53
7. Deputy T.A. Vallois of St. Saviour:....................................................53
8. The Deputy of Trinity :..................................................................53 Connétable D.W. Mezbourian of St. Lawrence ( Deputy Chairman, Health, Social Security and Housing Scrutiny Panel):...............................................................55

LUNCHEON ADJOURNMENT PROPOSED..................................................55

LUNCHEON ADJOURNMENT................................................................55

2. The Deputy of Trinity :..................................................................55
3. The Deputy of Trinity :..................................................................56

3.3.1 Deputy R.G. Le Hérissier: ..............................................................56

4. Draft Public Finances (Amendment No. 3) (Jersey) Law 201- (P.97/2011)............56

1. Senator P.F.C. Ozouf (The Minister for Treasury and Resources):......................57

1. Senator P.F. Routier: ...................................................................60
2. Deputy T.A. Vallois: ...................................................................60
3. Senator S.C. Ferguson:.................................................................60
4. Deputy J.A. Martin:....................................................................60
5. Senator A. Breckon: ....................................................................61
6. Deputy P.V.F. Le Claire: ...............................................................62
7. The Deputy of St. Mary:................................................................63
8. Senator F.E. Cohen:....................................................................64
9. Deputy J.M. Maçon:....................................................................65
10. Deputy E.J. Noel of St. Lawrence : ..................................................65
11. Deputy G.P. Southern : ..............................................................65
12. Senator B.I. Le Marquand:..........................................................67
13. Senator A. Breckon:.................................................................68
14. The Connétable of St. Saviour:......................................................68
15. Senator P.F.C. Ozouf : ...............................................................68

2. Senator P.F.C. Ozouf :..................................................................72
3. Senator P.F.C. Ozouf :..................................................................72

1. Deputy J.A. Martin:....................................................................75
2. Deputy T.A. Vallois: ...................................................................75
3. Deputy R.G. Le Hérissier: ..............................................................76
4. Deputy M. Tadier :......................................................................76
5. Deputy P.V.F. Le Claire: ...............................................................77
6. Deputy G.P. Southern :..................................................................77
7. The Deputy of St. Mary:................................................................77
8. Deputy M.R. Higgins of St. Helier:.....................................................78
9. Senator P.F.C. Ozouf :..................................................................78 Deputy P.V.F. Le Claire: .....................................................................80 The Attorney General:........................................................................81

4. Senator P.F.C. Ozouf :..................................................................83
5. Senator P.F.C. Ozouf :..................................................................83

1. Deputy P.V.F. Le Claire: ...............................................................84
2. Deputy M. Tadier :......................................................................85
3. Deputy R.G. Le Hérissier: ..............................................................85
4. Deputy J.A. Martin:....................................................................86
5. Deputy T.A. Vallois: ...................................................................87
6. Deputy G.P. Southern :..................................................................87
7. Deputy R.C. Duhamel: .................................................................88
8. Senator S.C. Ferguson:.................................................................89
9. Senator T.A. Le Sueur:.................................................................89

10. Senator P.F.C. Ozouf : ...............................................................89

STATEMENTS ON A MATTER OF OFFICIAL RESPONSIBILITY........................91

5. The Chairman of the Policing of Beaches and Parks Scrutiny Sub-Panel will make a statement on the Education and Home Affairs Scrutiny Panel's Policing of Beaches and Parks report ........................................................................92

5.1 Deputy J.M. Maçon (Chairman, Policing of Beaches and Parks Scrutiny Sub-Panel):..92

1. The Connétable of St. Mary:............................................................93
2. Deputy P.V.F. Le Claire: ...............................................................93
3. Deputy T.M.Pitman:...................................................................93
4. Deputy J.B. Fox:........................................................................93
5. Senator F. du H. Le Gresley:............................................................93
6. Deputy T.M.Pitman:...................................................................94
7. Deputy K.C. Lewis :....................................................................94
8. The Connétable of St. Brelade:.........................................................94
9. The Connétable of Grouville :...........................................................95
10. Senator F. du H. Le Gresley:........................................................95
11. Connétable J.L.S. Gallichan of Trinity : ..............................................95

PUBLIC BUSINESS - resumption..............................................................95

6. Draft Fire and Rescue Service (Jersey) Law 201- (P.98/2011) .........................95

1. Senator B.I. Le Marquand (The Minister for Home Affairs): ...........................96

1. Deputy A.E. Jeune :.....................................................................97
2. Senator B.I. Le Marquand:..............................................................97 Deputy R.G. Le Hérissier (Chairman, Education and Home Affairs Scrutiny Panel):.........98

2. Senator B.I. Le Marquand:..............................................................98
3. Senator B.I. Le Marquand:..............................................................98

1. Deputy K.C. Lewis :....................................................................99
2. Senator P.F. Routier: ...................................................................99
3. Deputy R.C. Duhamel: .................................................................99
4. Deputy R.G. Le Hérissier: ..............................................................99
5. The Connétable of Grouville :..........................................................100
6. The Deputy of St. John:...............................................................100
7. Senator B.I. Le Marquand:............................................................100

4. Senator B.I. Le Marquand:............................................................101

1. The Deputy of St. John:...............................................................103
2. Deputy K.C. Lewis :...................................................................103
3. Deputy S.Power:......................................................................103
4. Deputy D.J. De Sousa:................................................................104

5. Deputy J.B. Fox:......................................................................104
6. Senator B.I. Le Marquand:............................................................104

5. Senator B.I. Le Marquand:............................................................106

1. The Deputy of St. John:...............................................................106
2. Senator F. du H. Le Gresley:..........................................................106
3. Deputy K.C. Lewis :...................................................................106
4. Senator B.I. Le Marquand:............................................................106

6. Senator B.I. Le Marquand:............................................................107

1. Deputy R.C. Duhamel: ................................................................107
2. Deputy P.V.F. Le Claire: ..............................................................107
3. Senator B.I. Le Marquand:............................................................107

ADJOURNMENT..............................................................................109

[9:00]

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

1. Roads and Pavements: legal liability in case of negligence (P.75/2011)

The Greffier of the States (in the Chair):

Very well. We now turn to Public Business and the first item is in the name of the Deputy of St. Martin, P.75 Roads and Pavements: legal liability, and I will ask the Greffier to read the proposition.

The Deputy Greffier of the States:

The States are asked to decide whether they are of opinion (a) to agree that appropriate legislation should be brought forward for approval to make the States, in respect of main roads (grandes routes') and the Parishes in respect of Parish roads (chemins vicinaux), legally responsible for damage to individuals suffered as a result of negligence caused by a failure by the relevant highway authority to maintain the roads and pavements in a proper state of repair and (b) to request the Minister for Transport and Technical Services to bring forward the appropriate amendments for States approval.

1. Deputy F.J. Hill of St. Martin :

My proposition is about the world of potholes, nonfeasance, misfeasance and misplaced fear. We have States Members travelling to far-reaching parts of the world, extolling the virtues of Jersey as being a highly modern international player. Yet, in reality, in some instances, we are still akin to an Anglo-Saxon fiefdom which denies a duty of care to its citizens who may be injured on our highway as a result of acts of omission or neglect. My proposition seeks to bring Jersey into line with most other jurisdictions within the Commonwealth and asks Members to allow our citizens the right of redress given to those citizens over 50 years ago. It seems likely that historically the duty to repair roads in the Island lay with the Parishes in which the roads fell. Certainly the Code of 1771 under the heading "Règlement Pour La Réparation des Chemins" expressed such a duty. The position remained essentially unchanged until a Loi of 1914, sur la Voirie, which provided the States to draw up a list from time to time of the roads that needed to be repaired and contribute an annual sum towards the repair of such roads in the Parish. The 1914 law also set up the Roads Committee within each Parish to supervise the repair and the upkeep of the roads in that Parish. In passing, I would like to commend the work undertaken by members of the Roads Committees throughout the Island. If my proposition is adopted, their role will be enhanced for they are indeed the eyes and ears of the Constable. They will be required to ensure that any work is undertaken on Parish roads, they are not left unguarded or are fully repaired. My proposition should ensure greater safety on the roads as there will be a requirement for greater care being given when potholes appear or road repairs are undertaken. That point seems to have been missed or ignored by those who choose not to support my proposition. The 1914 Loi, which is still in French, has remained mainly unamended apart from in 1941 when responsibility for the main roads was transferred to the States. At present, the Loi places no duty of care on the Parishes or the States via T.T.S. (Transport and Technical Services) to repair its highways. Also, there is no common law duty of care to repair the highways. The position in England until 1961 was that a highway authority was not responsible to people who suffered injury as a result of the failure to carry out repairs, in legal terms nonfeasance or an exemption from liability. The highway authority was, however, responsible for injury which arose as a result of repairing the highways negligently. For example, creating a hole and leaving it unguarded, that, in law, is known as misfeasance. The Highways Miscellaneous Provisions Act was adopted in 1961. However, it was repealed by the Highways Act of 1980 so as

to provide that the highway authorities were responsible for injury where it failed to undertake any repair (nonfeasance), but, and it is very important, it gave a defence to the highway authority if it could prove that it had undertaken all responsible steps to prevent injury. My proposition asks Members to agree that appropriate legislation should be brought forward for approval to make the States and the Parishes legally responsible for damage to individuals suffered as a result of negligence caused by a failure by the relevant highway authority to maintain their roads and pavements in proper state of repair. Presumably, a defence provision will be drafted into the law. My interest arose following a call from a parishioner last Christmas. The lady and her husband were walking on the pavement on the unlit Route de Saint-Martin. As one can see from the photograph - and I hope Members have got a photograph now in front of them on their desks - at that particular juncture, the pavement is pretty narrow, which meant the husband was walking on the road and showing his torch to oncoming traffic. Unfortunately, his wife fell, unintentionally stepping into the pothole that one can see in the photograph. The lady suffered extreme pain to her leg and ankle and subsequently returned home to rest. She saw no sign of visible injury. However, over the Christmas period, she suffered extreme pain and inconvenience. The lady is of good St. Martin 's stock and not given to complaining or even swinging her leg and she returned to work soon after Christmas. She was, of course, conscious of the pothole, and had contacted T.T.S. to inform them of the danger. The T.T.S. officer thanked her and stated if she wanted to make a claim for the injury suffered, then she should write in. The lady contacted me and explained what had happened and complained about the severe pain she was in and the difficulties she was experiencing as her job as a cleaner required her to be on her feet all day and moving furniture. I advised her to have an X-ray. The X-ray revealed hairline fractures to her leg and ankle and she was immediately placed on the sick list and told to rest. I visited the scene of the accident and, as one can see, there had been work carried out around the manhole cover. I too made contact with T.T.S. and the pothole was eventually repaired. When I first made contact, I was informed that the pothole had been created by Jersey Telecom but was later informed that this was not the case and T.T.S. had no idea who had carried out the work next to the manhole cover. I ask Members to look at their photograph. As one can see, there has been work carried out there by the manhole cover,

but the work to the right of it has been left. [9:15]

Ideally, that should have been covered in at the time when the work was carried out, but the law at present means, of course, that T.T.S. does not need to be told when anyone carries out work on the roadway and indeed we hope there will be legislation in time to put that correct. So there we have the situation.

Connétable M.K. Jackson of St. Brelade :

Just on a point of clarity, if the Deputy would allow me just to point out that that is not the case. There is an obligation on anyone digging up the public road to advise the authority.

The Deputy of St. Martin :

I may well beg to differ. One can see that the hole was left unguarded and of course at the States there is no need for anyone to do anything about it because there is no law that requires people to repair after them. As advised, the lady entered into correspondence with T.T.S. insurers but was eventually told that they were not liable for any compensation due to the absence of a statutory obligation. Members who will have read my proposition will have seen that on page 3 I have included the reply from T.T.S. For the benefit of those who are listening, I will read it. This is the letter the insurers sent back to my lady parishioner: "We are sorry to hear that you are injured and hope you are progressing swiftly towards a full recovery. Our understanding of the law in Jersey is that in the absence of an express statutory provision [and there is none], the States of Jersey cannot be held legally liable for injury to a third party as a result of failing to maintain a public highway in

a good state of repair. There is no equivalent Highway Act in Jersey. While we are sorry to hear of your injury and subsequent disruption of your celebration of the Christmas season, we regret we have no offer to make in the way of financial compensation on behalf of our insured." So, as one can see, it could be any member of our family or indeed any member that we are responsible for as elected Members. That could be any constituent walking along there, seriously injuring herself, and we owe no duty of care to those people as indeed this insurance company make it quite clear. Having been informed of the letter, I made further inquiry to the T.T.S., the Law Officers, Parish secretaries and Connétable s and learnt that the law in Jersey was certainly different from other countries. I was also made aware of a Royal Court judgment dated 3rd September 2003, which is attached as an appendix to my proposition, and I ask that Members will read it. In the judgment, Members will have noted that a resident of Jersey had sought redress through the court for injury he had suffered after falling on the pavement. The case was dismissed on the grounds that the 1914 Loi did not create any right of action against a Parish or States for injury for the failure to carry out its maintenance. That indeed was the reply that my lady parishioner received. However, the Royal Court was clearly troubled by the situation and, although it acknowledged that there might be a resource implication, it felt it was not a matter for it to decide but that reform must be dealt with by legislation. In the final paragraph of his judgment, the judge at the time - who was Mr. Michael Birt - had this to say about the lack of legislation in Jersey. If Members will look at page 17, I will read out what Mr. Birt had to say: "I should add that, as experience has shown in other jurisdictions, this may not be regarded as a satisfactory outcome in current times. Individuals who suffer damage through failure by a highway authority repairing the highway should be entitled to recompense subject to appropriate safeguards for the public and parochial purse. I would therefore invite the relevant committee to consider introducing appropriate legislation. It might well find it helpful to refer the matter to the Jersey Law Commission in the first instance. The Commission will no doubt be able to review the solutions adopted by various jurisdictions throughout the Commonwealth with a view to recommending what is most suitable for Jersey." Quite clear. That statement was made in 2003. However, successive Presidents and Ministers have failed to refer the matter to the Jersey Law Commission and neither have they lodged any amendments. It is also highly likely the matter would have remained dormant had I not brought it to anyone's attention. It is also likely that it will remain dormant unless we support my proposition today. I personally do not think there is any need to refer the matter to the Jersey Law Commission. That is a get out of jail card for Members that do nothing or procrastination party. It is patently obvious that the English Highway Act is a good model. Members will have noted the comments on page 2, and I refer Members to the comments from the T.T.S. It says: "Most Commonwealth countries have adopted a law change that provides a solution to the intent of the proposition by imposing a common law duty of care to maintain the highway as an absolute obligation but then provides for a statutory offence. In Guernsey, they share the same legal situation as Jersey by not permitting any claims for damages against the highway authority." It is unfortunate Jersey and Guernsey are in the dark ages. Never mind; we may well move forward. However, whereas the Isle of Man does accept claims but they are low in number and they have not experienced a claims culture like the

U.K. (United Kingdom), it is reported that the Isle of Man legal licensing laws restrict influx of no- win no-fee for solicitors. I did not put that. This is the evidence from T.T.S. who are not going to support my proposition today. I would maintain, particularly with reference to the Isle of Man, what is good enough for the Isle of Man is good enough for Jersey. No doubt we shall hear claims that we are opening the door to a compensation culture, which says very little about the residents of Jersey if we can think so poorly of them. That does not happen in the Isle of Man. As I say, there is no evidence of abuse in the Isle of Man and I believe we should have no fears in Jersey either, particularly - most important - as the Parishes have a roads committee whose role is to supervise its highways. Also, T.T.S. is going to lodge very soon, I hope, a draft law which will require utility companies who wish to carry out work on the roads to seek consent from T.T.S. with certain obligations, including making sure that the road is repaired completely when they finish or is left with some form of warning signs. I have had several discussions with the Minister for T.T.S. and his officers and I have also had discussions with individual Connétable s and met Constables at a formal Comité des Connétable s meeting, which was also attended by the A.G. (Attorney General) and the T.T.S. officers. There is concern that by approving my proposition, it could lead to increased premiums being required from insurance companies. However, on the plus side, my proposition would .. I repeat the word "would" lead to greater safety for all our Island residents. Therefore, if the highways are kept in good condition and the road works are properly supervised, there should be fewer accidents and fewer insurance claims. Some may say a win-win situation. At present, the Parishes and T.T.S. already pay a third party cover. However it appears that insurance companies are accepting the premiums but are not liable for paying any compensation for neglect. There has been evidence from the experience from my lady parishioner. At the Connétable s meeting, it was generally accepted that the current situation was unfair but it would involve considerable cost to implement the law in Jersey. I strongly dispute that claim. My understanding of the outcome of that meeting was that I, along with T.T.S. staff, should meet the law draftsman with the view to possibly including my proposed amendment into a new law which is currently being drafted which will require the utility companies to inform T.T.S. before new road works are undertaken. Also, I did discuss the matter with the officers. The general feeling was that unless the Connétable s and the Ministers agree in principle to support my proposition, nothing can go ahead. My belief is supported as a result of my meeting with a law draftsman and the Connétable of St. Peter. The law draftsman quite correctly stated that she could draft anything provided she was given a brief but that brief could not be submitted until the States had approved my proposition. Again, this asks Members to support the principle that the Parishes and the States should be legally responsible for the maintenance of their highways. As one can see, the Connétable has not presented his own comments but appears to be in agreement with the Minister for Transport and Technical Services. That is to do nothing. The Minister considers my proposition to be laudable, and I am grateful, but cannot at this time support it. Unfortunately, he does not say when will be a good time. I submit that it will never be a good time for those who put cash before care. No doubt we shall hear claims that a law change will cause hundreds of thousands of pounds and my proposition is a lawyer's dream ticket. I hope that when those claims are made, evidence will be produced to support those claims. However, it will be for Members to decide whether to support my proposition. I welcome their comments and, more importantly, their

support. I make the proposition.

The Deputy Bailiff :

The proposition is made. Is it seconded? [Seconded] I call on the Connétable of St. Brelade .

Deputy A.E. Jeune of St. Brelade:

May I ask a point of clarity from the opening speech, if I may? We were all offered a photograph and I am looking at it and in his speech the Deputy said it was work carried out on the manhole cover but it would appear there is an opening right above. Is that correct?

The Deputy of St. Martin :

I think the photograph is quite clear. If Members will look at the photograph, one can see that the manhole cover is to the left, and just to the right there appears to have been some work carried out which has not been completed. If one looks afterwards, underneath there, we can see what should really have happened. In fact that happened after T.T.S. were informed. However, what I am saying is that that should have been repaired at the time the work was carried out. That is not just a wear-and-tear pothole. That has been manufactured. No doubt the Attorney General may well agree with me that that would then amount to negligence as opposed to the wear and tear of a pothole.

The Deputy Bailiff :

But the point of your photographs is that your constituent tripped in that area underneath the wall, and what looks like a gap to the left of the manhole cover is irrelevant. That is the point.

1. The Connétable of St. Brelade :

If I may just elaborate on the photograph before speaking. It is quite clear that the work done on the pavement in the upper photograph was as a result of the change from a surface water situation, and Members will note the hole in the wall you can just see to the right of the repair. Originally, water would have come over the pavement and clearly it was decided by the householder or under direction that that needed to be connected to the surface water sewer, which is mandatory these days. Work has been done by the householder and not been adequately repaired.

Deputy P.J. Rondel of St. John :

Could I challenge the Minister on his comments there, because that in fact is an air vent to a property, not a drain.

The Connétable of St. Brelade :

That is the Deputy 's opinion. As Members will appreciate, Transport and Technical Services is the highway authority for the States' main roads, les grandes voies.

[9:30]

Any change in the law that permits T.T.S. and the other 12 Parish highway authorities, the Parish highway authorities being responsible for the chemins vicinaux, to become liable for claims for negligence need to be very carefully considered. There is a fear that the impact of such a proposed law change on the Island's highway authorities will lead to an increase in claims, an increase in legal fees to defend those claims and increase in insurance premiums that may develop into a claims culture that is so prevalent in the U.K. I shall expand further on these points in a moment, but firstly I do agree that it is time to review the current legal situation. A situation that sees the public without any real hope of redress for negligence cannot be acceptable, but I cannot agree with the introduction of legislation without extensive consultation and consideration of all the legal, financial and technical implications that might follow. The proposition asks the States to agree the appropriate legislation which should be brought forward for approval to make the States in respect of main roads and the Parish and the respective Parish roads legally responsible for the damage to individuals suffered as a result of negligence caused by a failure of the relevant authority to maintain the roads and pavements in a proper state of repair. I cannot agree to bring legislation

back to the House without knowing if such legislation is required or whether it is appropriate or in the interests of the public as a whole. In the judgment of the appeal case, Dobson v Public Services Committee, the judge, being the former Deputy Bailiff at the time, Deputy Bailiff Michael Birt, was careful in phrasing the summary to emphasise the appropriate safeguards the public purse would need to be introduced. He invited the then Public Services Committee to refer the matter to the Jersey Law Commission. I believe that is what we need to do. I hope this House will agree with me that asking the Jersey Law Commission to conduct a thorough review of all the implications of highway liability is the right course of action. This review timescale should allow effective consultation and research. This is a sensible way forward to address the main purpose of this proposition and not to agree to a law change just simply to follow the U.K. model which has led to extensive costs, bureaucracy and red tape. The U.K. law referred to is the Highways Act 1980. It charges all highway authorities in England and Wales with a statutory duty to maintain the highway. Each highway authority may become liable for the damage or loss as a result of a failure. The Act also provides a statutory defence for them when they find themselves in court. They need to be able to convince the court that their policies on highway maintenance are robust, reasonable and are being complied with, they are exercising a reasonable duty of care in inspecting the highway for condition and safety, the individuals making the inspections are suitably trained and

qualified. I would say that while T.T.S. are generally meeting this level of defence for most of its highway assets, because my department tries to adopt best practices, the situation with the Parishes may, as a result of historic practice in the Island, be different. Such a law change will nevertheless expose the States and each Parish to considerable risk if a claim is taken to court. If such a claim was to come to court now as a civil action, the States and Parishes are not presently liable for personal injury caused by the disrepair of roads and pavements. So what would be the additional risk or cost that each highway authority could experience should a U.K.-style law be introduced? The U.K. is spending between £100 million and £500 million a year managing highway claims. This is documented. This includes compensation and legal fees. The U.K. have seen an 88 per cent increase in claims over the 10-year period 1999 to 2009. Over £10.6 million paid out in 2010 to 2011 was for the road user compensation alone. In the U.K., authorities have had to develop robust claims handling administration that is not currently needed in Jersey. That costs an average of nearly £100,000 or, to be exact, £98,000 for each authority per year. In addition to the claims handling administration, legal costs can add considerably to defending a claim. In the U.K., legal representation costs in court between £7,500 and £15,000 per day. Legal costs may be higher in Jersey and defending claims is not a service the Law Officers can provide without increasing staff and that being charged for. These are sums of money that the Island's highway authorities do not currently have in their budgets. Using U.K. figures, each claim could cost between £9,000 and £22,000 to defend in court. This is the reality. For other jurisdictions, the situation is varied, as has been alluded to by the Deputy . Guernsey has the same legal framework as Jersey, providing Guernsey states with exemption from liability for non-repair and nonfeasance, and there is no move to change. The highway authority in Guernsey is recommended by their insurers to settle small- value claims of £750 to prevent such claims becoming major time-consuming issues. The Isle of Man nonfeasance has been replaced by legislation similar to the U.K. The highway authority there defends all claims by using best practice and following the U.K. guidelines. The issue is a more complex one than just the introduction of a new highway law. Whether it is by pragmatic guidance from insurance companies or limiting risks through licensing, there are other solutions that need to be explored. This is an area that requires research and may form the basis for setting up policies or laws to provide a similar situation in Jersey. This research falls within the expertise of the Jersey Law Commission and T.T.S. would invite them to investigate and review. The proposition claims that there is no financial or manpower implication to the introduction of the law. This is totally incorrect. It is certainly totally incorrect. Evidence gathered to date demonstrates that if the U.K. model was followed, substantial costs would be incurred assessing, managing and dealing with claims that would require the recruitment of additional staff, resources that are not currently available. In addition, there is the risk that the introduction of such a law could encourage the development of a local claims culture. This is the real fear for all of us. The true cost of potential claims to T.T.S. and the Parish is unknown. The current nonfeasance legal situation stops cases coming to the attention of the highway authorities, thereby preventing an assessment of the quantum of claims from being estimated. However, what can be evidenced from the U.K. is that insurance premiums will inevitably rise to take account of the additional volume of claims that are likely to be received as a result of the proposition. Law Officers have indicated that additional and significant legal representation would be required to assist highway authorities in defending claims. One lesson that can be drawn from the U.K. experience is that while additional cost is incurred in implementing systems to protect the highway authority from third party claims, this does not necessarily result in safer roads or better maintenance. The cost of claims and claims management comes from the highway maintenance budget which invariably results in less money available for repairs. In Jersey, unless Treasury would be able to increase budgets to compensate for successful claims, the only recourse to T.T.S. would be to reduce road maintenance funding at a time when the roads really need improvement. The Parishes, without recourse to Treasury, may have no option but to increase rates. In the U.K., the claims culture and damaging court settlement costs have recently been the subject of reviews by Lord Justice Jackson - that is no relation, by the way - and has led to the Justice Secretary, Ken Clarke, announcing changes in March 2011 to the no-win no-

fee arrangements. These arrangements have often discouraged defendants to settle, even when they are in the right, simply because of the fear of huge legal bills. It is therefore imperative with the potential for allowing claims to come to court that the Jersey Law condition need this review. The proposition, as I have indicated, will lead to a massive increase in bureaucracy, red tape, and I think totally unnecessary inconvenience to the general public. Our present system enshrined in the 1771 code, of which I have a copy here, and I think it has stood the Island in extremely good stead over the years with its later amendments, is, I think, a law that should not be changed on a whim. I simply do not think we should change it to follow what I consider are unsatisfactory arrangements in other  jurisdictions. I cannot agree with this proposition because it will lead to significant financial risk for T.T.S. and all the Parishes. The true cost to T.T.S. and the Parishes is unknown but I am absolutely certain, should the proposition be adopted, there would be a significant increase in compensation claims. There would be an increase in the Parish rates. There would be an increase to insurance premiums. Additional staff and training to handle claims would be required. There would be an increase in legal representation needed to provide a robust defence and an associated increase in the T.T.S. roads maintenance budget would be necessary for those roads and pavements and I think the inconvenience to the general public on the grounds of having to close off roads because of health and safety issues would be unpalatable from the point of view of the general public. Just before closing, I would say that prior to being elected I was a roads inspector for the Parish of St. Brelade for some 6 years and I can assure Members that those roads inspectors in the Parishes do a diligent job. They pick up all sorts of omissions in the road surfaces and I would say that the bulk of those issues are created by third parties digging up the public roads and I will refer to the new street works law which the Deputy mentioned earlier on and I am keen that this becomes on the statute book and I certainly think it will be during the course of next year. It is in the later stages of preparation and that will certainly assist my department in managing the utility companies  during their  trenching processes, which are undertaken at the  moment. Finally, I applaud the Deputy for bringing this as a result of his constituent's unfortunate fall. I do not think this is the right way to approach it, but I think the Deputy 's proposition will stimulate activity in the

terms of road inspection and I do not think there is any reason why that should not be sharpened up.

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

May I ask a couple of points of clarification? The Minister gave us a lot of figures which frankly would have been better in the comments because it is quite difficult to absorb them now. Firstly, he mentioned a figure of £100 million per annum and I have no idea what that was for or about - I just cannot write fast enough and I cannot hear fast enough - so could he tell us what that figure was for? He mentioned also 2010, 2011 and he mentioned a figure for road user compensation. Could he repeat that figure and say what it was for?

The Connétable of St. Brelade :

Certainly. The U.K. are spending between £100 million and £500 million a year managing highway claims. This includes compensation and legal fees and the £10.6 million paid out between 2010 and 2011 was for road user compensation alone.

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

What was that figure, the road user compensation figure?

The Connétable of St. Brelade : £10.6 million.

Deputy M. Tadier of St. Brelade :

Can I ask clarification? The Minister has quoted U.K. figures there. What would that work out pro rata for Jersey considering the U.K. is a lot larger?

The Deputy Bailiff :

Perhaps the Minister will work on that and come back to it at a later stage.

2. Deputy T.M. Pitman of St. Helier :

If the first 2 speeches are anything to go by, the road ahead might not have holes but it is going to be long and winding, I think. I am going to speak very briefly. I have to say I do not think the argument of potential, possible, hypothetical costs is any reason for a jurisdiction to stay in the dark ages. I have had a similar experience to the proposer and certainly the person I was involved with had the same advice from the Citizens Advice Bureau that really there was no adequate statutory law in Jersey. On a slightly different basis, I think, back to last Christmas - and the Constable would be aware - I had a constituent who, thanks to a dispute over who had not prepared the roads adequately, that constituent had her Christmas and that of her 97 year-old mother absolutely ruined because a torrential downpour flooded their flat; resulted in 3 or 4 months of absolute stress moving out; could not live there; stress-related illness. I think anything that can be done to make this clearer has got to be a good thing. So I am going to support the proposition and leave it there because, judging by the cartoon we have been given, I think the Deputy of St. John is probably going to speak for a very long time, so thank you.

3. The Deputy of St. John :

I think the photographs that we have been given by the proposer say it all, and that is only the beginning. In my time as a Member and also Vice-President of the Public Services Committee of the day, we did put in place research on the condition of our roads.

[9:45]

As I think most Members have been now given a copy of this Al Thomas cartoon and where it says (this was back in the late 1990s): "Roads will be improved by 2004." I think the President of the day has now left the Chamber, he is the balding one at the end and the other balding one is myself, about 2004. But we all know what has happened since the 1990s and when I came into the House in 1994, prior to that, 10-15 years before, it was in the millions of pounds that were being spent on having good quality roads in Jersey. We were proud to have some of the finest roads in this Island. In latter years, our infrastructure has been allowed to go, to fall into total disrepair, and I am not surprised that the Deputy of St. Martin has brought this to the House; I am not surprised one iota. I was given promises that there would be funding back in the late 1990s. 2004, I obviously raised it because, once again, Al Thomas had made another cartoon, and I have got several of these cartoons at home. I thought: "Well, we are now 2011, coming on 2012, and we are talking about £1 million- odd to be spent on that part of the infrastructure in 2012 when, in fact, if we were spending £8 million and £9 million in the early 1990s, and in one year in particular I think we touched nearly £15 million in road repairs or road resurfacing, we are now not even touching the potholes." We are hearing the Minister asking the public to report potholes. The Parishes have got their own inspectors, they are doing their bit, and the Parish roads generally are in very good fettle. It is us, the States of Jersey, who in the good years have not been investing in our infrastructure. We have now got our back to the wall because of the 2008 world crisis and the recession we have got ourselves in and yet with the fiscal stimulus we decide to spend £7.3 million on doing the work on Victoria Avenue, or re-engineering it when possibly all it needed, given that they have only given it a 20-year re-engineering life, instead of doing the job properly and giving it a 30-40 year re- engineered life, we could have spent half that figure, resurfaced it, or a third of that figure, and then done X number of miles of roads in other parts of the Island. What are we doing? A lot of the research has been done. We had teams of people come over from the U.K. taking cores of various roads over the years when I was on the Public Services Committee; where is all this research? What has happened to all that evidence? Last week, a fortnight ago, I was with officers from the department who are telling me we are now re-engineering the area in front of Commercial

Buildings. I have been aware that this needed re-engineering for the last 10 or 15 years. I was expecting to be told that we were going to be doing a proper job, that it would be re-engineered for something in the region of 30-40 years and I am told we are engineering it for a period of 20 years. This is false economy, Chief Minister, through the Chair. I would expect the Council of Ministers to do what is right. We must have a programme looking up to 50 years ahead and not go down the road of short-termism because, in my view, short-termism is 20 years. This is why the U.K.'s roads are probably as bad as they are because they work on a 20-year programme. You go into France and Germany where they work on a much longer timescale, 40, 50 years, their roads are in far better fettle. We must do what is right by the people who use these roads. Because the Minister pulled out the 1771 code, which, yes, it served us well, but were they not the days when we used to have people who paid their rates, gave the horse and cart and the red gravel treatment to the roads a day a year or 2 days a year to pay their rates and looking after our roads? Those people who were manual labourers would have to give 3 or 4 days a year to the Parish spreading that red gravel. The code is fine, but it needs updating. Where is all the research that has been done? I am sure the Parishes who know how to look after their roads could give the Connétable , a former roads inspector himself, a few tips when they are all sitting around the table how to work within his department and instruct his men who have done all the research on getting on with the job. As I said yesterday, I expect the Minister for T.T.S. to fight his corner within the Council of Ministers. It is all well and good for us to hear we are setting up new departments like Foreign Affairs ministries and all the rest. There is a cost implication; let us look after our infrastructure first. Put in the right checks and balances. I am not 100 per cent sure I can go with the proposition, although my heart is telling me I have got to, but we have to put laws into place to make it happen. I know the Minister has spoken and it is a shame he spoke early. Possibly his Assistant Minister might be able to put my mind at rest that we get something put in place right away that is going to resolve the problems that we have and that we get all the research that has been done in the 1990s and 2000 up- to-date, put in a package, worked on, and put a law in place so we do protect the people who use our roads, whether it is on foot, on bicycles, or in vehicles, people who are getting injured. It is important that we do what is right. Once again, I know the Minister for Treasury and Resources is not in the House, but I see one of the Assistant Ministers - yes, only one of them, not 2 - within the Chamber. I believe they need to get around the table and look at putting the proper funding in place to make sure that Transport and Technical Services have the necessary funding for our infrastructure. I know I go on about this year on year; I go on about the state of roads or our drains or sea defences and the like, but at the end of the day, we have got to leave what is right for our children. We are just creating problems for them. Short-termism is not acceptable. Do what is right and do the job properly now. Get the funding, stop all these grandiose ideas of wanting to build on the Waterfront and the like, look after what we have got. Put all that in good fettle before we do anything else. Really, I am getting very passionate about this, I think I have probably said

The Deputy Bailiff :

You are also getting off the point, Deputy . This is not really a debate about the quality of roads, although, clearly that is part of the discussion, but keep to the main points.

The Deputy of St. John :

It is when I see that photograph. I have probably said sufficient, and they know where I am coming from, the Minister knows where I am coming from. 99 per cent of the research has been done, it is all there, it just needs updating. So, please ask your officers to dig through their files and find it, Minister. Thank you.

4. Deputy M. Tadier :

We were told by the Minister, pretty much, in his opening gambit that adopting this proposition may lead to more claims. Now, we are often accused on this side of the Chamber of seeing things half full rather than half empty. What it could lead to and what I think it would lead to is roads being better maintained in the first place, jobs being done properly in the first place, so that claims - but more importantly, accidents - do not happen in the first place. I think we have to put this back in the context; this is not about money, it is not about lawyers' fees, this is about best practice, it is about the responsibility of the States doing what is right for the people of the Island. I think also, we do not have to presume that everybody out there - every lawyer out there, for a start - is some kind of ambulance chaser, but more to the point, that every member of the public is going to turn around and sue just because they trip over. I do have to say this is a matter that is close to my own heart because yesterday my mother had a fall and she has ended up in hospital for at least 2 weeks; she has cracked her hip. That is very unfortunate and I am not suggesting that was to do with the roads being badly maintained, but I do know that in my Parish, for example, there have been incidents because there have been areas that are maintained by Property Holdings which are badly lit and which are unstable for walking. I know that at least 2 or 3 years ago a similar incident did happen with an elderly lady who also fell over and broke her hip, which led to Property Holdings putting a handrail in, but they have not put any lighting in. So, there is an ongoing question with them as to, first of all, whose responsibility and liability it is, whether they are likely to be sued, and whether it is more cost effective to put lighting in there to stop accidents happening in the first place or to just wait and see if a claim does arise. So there is a cost to society and to the individual when an injury occurs and that is irrespective of whether or not it is malfeasance, nonfeasance, or any other kind of feasance, and that is irrespective of whether or not there are going to be any claims pursuant. Because we have to remember, anybody who ends up in a hospital bed for 2 weeks or a month, that is going to happen at the cost to the public anyway. So, I think the reality of it is we have had a lot of unverified figures from the Minister. We have got figures which are based on the U.K., we have had figures of £100-500 million, which have been suggested. Now, I appreciate the Minister is in a position where he does not know what the costs are going to be because we are in an unknown area, but if we transfer those same figures to Jersey pro rata, they are not significant at all. But more to the point, if we did the work in the first place, this puts an onus back on the States of Jersey because there will be a liability to maintain the roads. Now, that is not

to say that our staff do not maintain roads properly, but there is an issue here. Prevention is better than cure, I think, is the message that needs to come over loud and clear and I think that is all that needs to be said; prevention is better than cure. We need to invest to save and I think this is an invest to save.

5. Connétable J.M. Refault of St. Peter :

Moving back to the proposition, I think the Deputy of St. Martin has brought forward a well- meaning and responsible proposition that protects the public from injury. However, it is unfortunately, I believe, out of sync with the reality of where we are. We are just months away now from seeing the Street Works Law, which is being put together by Transport and Technical Services, come into fruition, hopefully around about June next year, which puts a lot of responsibilities on the people that damage the roads deliberately because they are the utilities and they have to open the roads to get to their services. The new Street Works Law also makes

provisions to ensure that the repair is done to a far higher standard and also to involve the area of influence of the works that they are doing. All too often we see, particularly after wet periods and cold periods, where on the interface between the old and the new asphalt potholes will appear overnight. It is very difficult to get out there and resolve it first thing in the morning because it takes somebody to report them before the work can be done. Certainly, St. Peter has a far higher proportion, I think, than most of the rural Parishes of parochially maintained roads. It is a big problem for us when the utilities keep opening roads. Very often in an emergency we are not even advised that they are being done and that gives us a big problem if we are going to be made legally responsible for a pothole which has appeared overnight or within the last day or 2 on a rarely-used road and somebody trips in them. One of the things that I do tend to do particularly on early mornings - I am an early-morning riser unfortunately - and particularly in the winter I do go out walking the Parish roads and I always carry a torch because it is unreasonable to expect, as the last speaker has suggested, that we have street lighting all around the Island to make sure people can see where they are going. I think we all have responsibilities of our own to ensure that we protect ourselves and we take the necessary steps to ensure we do not get injured by carrying a torch. One of the other comments I would make is that pavements are not necessarily the safest places to walk on in the dark because all too often - we have this problem in St. Peter and I am sure other Parishes have the same problem - where property owners will perhaps modify the pavements to make it easier to get in and out of their driveways without permission. So, we get these ups and downs on a pavement, which you will not get on the associated roadway. So, in the dark it is quite often easier and safer to walk on the roadway and step on to the pavement when some traffic comes along.

[10:00]

I think one of the other things I would like to really comment on was a comment that our roads were in total disrepair. Well, I would challenge that; I think they are in very good repair in the main. There are some examples of very poor roads, or what I would consider very poor roads, some are T.T.S. and possibly some are Parish roads. But in the main, I travelled both into France and the U.K. and I enjoy driving and I enjoy driving an old car which suffers from bad roads and I know where I would rather be driving; that is back here in Jersey in my old car than dodging potholes and loose surfaces in France and very poorly maintained roads and byroads in the U.K. The main roads clearly are generally of much better condition, but other than one or 2 exceptions in Jersey, I think the main roads are generally fairly good. One of the comments I think that may well be levelled is that the Connétable s are against this proposition because they are worried about the costs to the Parish. That is partly correct, but they are also looking after the interests of the parishioners overall as well as in the States here today to ensure the jobs are done properly and the funding streams are put in place to do that. The difficulty for Parishes are the finite budgets that they have and without the ability to move monies around because they do not have that luxury, is that we may be in a position where we will just have to shut a road because there is a pothole we cannot afford to repair. Is this in the best interest of parishioners? I am certainly marking it as a first option. These are the considerations we need to put in place. What I would respectfully say to the Deputy of St. Martin that I agree with his principles in bringing this forward. It is entirely right; we need to protect the innocent from injury, but I would ask him to consider the impact of the Street Works Law and all of that and make the utilities and people who do works on our roads party to the responsibility rather than put the responsibility purely on the States and the Parishes. Thank you.

The Deputy of St. Martin :

I did not want to interrupt the Connétable , but I just wondered whether the Connétable understood what my proposition was about? It is not about

The Deputy Bailiff :

Deputy , I am sorry, you will be able to reply at the end of the debate.

The Deputy of St. Martin :

I know, but I am just asking whether it might be convenient at this stage to maybe just ask the Attorney General the difference between malfeasance, misfeasance and nonfeasance because I just believe that people believe this is a charge and if a pothole appears overnight the Parishes are liable. It is not that.

The Deputy Bailiff :

Deputy , you are able to sum up at the end of the debate and it is really not right to intervene at this stage.

6. Connétable K.P. Vibert of St. Ouen :

I think it is important to realise that the Connétable s are not against this proposition per se. In fact,

the Connétable s have been asking for the Loi sur la Voirie to be looked at. Certainly, in the 6 years that I have sat on the Council of Ministers, it has come up every year and every year it just falls off the bottom of the list so it never gets done and the Connétable s are well aware that that particular law does need looking at. But I think where we come at odds with the Deputy 's proposition is the fact that the Court clearly said, and I quote from the bottom of page 4 of the Deputy 's report: "The Court acknowledge, however, that creation of a liability for injury from failure to repair could have significant resource implications for the States in respect of main roads and for Parishes in respect of minor roads." This is where we come at odds with the Deputy because I am fairly sure that if this proposition had been brought by the Council of Ministers the Deputy would be the first to say: "There has been no cost analysis of this proposition." The Deputy says that he does not believe there is any cost to this proposition. I respectfully tell the Deputy that I believe there is a cost to this proposition and a cost which has not properly been worked out before this proposition comes to the States. I think that is what should have happened. Deputy Tadier , when he raised a point of order following the Minister's response to this proposition, highlighted how no one could tell him the cost of each incident that will occur. I think this work needs to be done. I am not convinced that the Law Commission is necessarily the place for it to be done. I would now mention the Deputy of St. John, whose speech was all about the cost of maintaining roads, very little about the proposition and the problems we have with the potholes. Many of the potholes, of course, are not created by the authority themselves, but are created by a third party that undertakes work on our byroads and on our main roads. I say, in a way I would like to support this proposition, but I do not believe that sufficient work has been undertaken to properly support it. Therefore, I would like to invoke Standing Orders of the States of Jersey, Article 79, and ask for this matter to be referred to a Scrutiny Committee so that proper Scrutiny of the full costs and benefits can be assessed.

2. Roads and Pavements: legal liability in case of negligence (P.75/2011) - referral to Corporate Services Scrutiny Panel

The Deputy Bailiff :

Just so that Members are clear as to which panel it would be referred to, would it be the Corporate Services Panel? Standing Order 79 provides that any Member of the States may propose without notice that the debate on any proposition be suspended and the States request the relevant Scrutiny Panel which, notwithstanding the face, if I may put it that way, that Senator Ferguson pulled a moment ago, I think it is the Corporate Services Panel to consider having the proposition referred to it. Is that proposition seconded? [Seconded] Does any Member wish to speak on the proposition? Deputy Martin.

Deputy J.A. Martin of St. Helier :

Well, mine was more of a question. Are you sure it is Corporate Services? It comes under Environment, I thought, T.T.S.?

The Deputy Bailiff :

I will ask Members on this.

Deputy J.A. Martin:

I know the Constable needs to direct to which Scrutiny Panel because although the law comes under Corporate the contents of all this proposition comes under T.T.S., so we need to know where we are going before we have the debate; whether we refer to Scrutiny.

The Deputy Bailiff :

Deputy , I entirely agree with you; we do need to say where we are going before we have the debate. [Laughter] Connétable , have you identified the Scrutiny Panel? It does seem to me that Corporate Services is the most obvious one, but

The Connétable of St. Ouen :

I believe it should be Corporate Services and I would like to reply to what Deputy Martin just said. This is not all about T.T.S. Over half our Island's roads are administered by the Parishes.

The Deputy Bailiff :

You will have a chance to respond at the end of the debate on whether the debate should be suspended and the States request the Corporate Services Scrutiny Panel. Now, Deputy Martin, do you wish to speak? You have started speaking.

1. Deputy J.A. Martin:

Yes, please. Here we go again; games that we will play. I do know the Standing Order; if we refer it back to the relevant Scrutiny Panel, they have to come back on our next States sitting, which is in September, so knock it back into the long grass and, you know, hopefully it might even find Senator Perchard if it is kicked far enough. My objection to this is it is the exact speech that the Constable of St. Ouen gave because he said there is lots of work to be done. Now, all of a sudden it has got to be done by Scrutiny. If anybody reads the Deputy 's proposition, it is (a) to agree that appropriate legislation - appropriate legislation - now, he maybe should have put in there for Jersey and not the U.K.; you know, 70-80 million people, he may have put that, but of course we know that is what he means; it will be done by our Law Officers - and (b) to request the Minister for Transport and Technical Services to bring back appropriate amendments. It is not anything more. Again, knock it into Scrutiny is really just a way I cannot support this. You have the convictions: we have the Deputy of St. John; with his heart he feels he should support it. He is the one who has been on about roads and highways for many, many years. I think the proposition is doable. It will take a lot of research, but it will be research by whom? We have waited years now. I must admit, I did not realise we went back to 1771 and that people were not being covered for accidents. What are we paying insurance for? This is probably the reference-back speech because I have a lot more to say. We have heard it all. I nearly fell off my chair when the Constable of St. Peter said: "We are best walking in the road with a miner's helmet on with a light on it." I think we would all be if we were in 1771, but it would have been a candle or something, I suppose. Anyway, to just refer again to the Constable of St. Ouen's speech, and if this had been brought by the Council of Ministers I am sure the Deputy of St. Martin would have his question: "No, no, no, this should have been brought by the Council of Ministers. It has been waiting too long and now knock it back again until the next House." Corporate Services is not going to do this. They have no time. If you have at least the courage of your convictions in this House, knock this one out, vote against the Deputy of St. Martin, but do not use this - again, a quirk of our Standing Orders - to basically move on to the next item. Vote one way or the other, but do not support this, the

Constable of St. Ouen's suggestion that Scrutiny can do something now. Never. Thank you. [Approbation]

2. Senator S.C. Ferguson:

Obviously, we are in the hands of the Assembly. Quite honestly, time is extremely limited. I think the only thing we could have produced is a comment, but we have August looming and September will be taken up with the Business Plan. It is possible this could be started and continued by a subsequent panel after the elections, but I merely emphasise to the Assembly that time is extremely short. We would obviously endeavour to report back by the first meeting in September regarding this but, as I say, we are in the hands of the Assembly.

3. Connétable A.S. Crowcroft of St. Helier :

I disagree with Deputy Martin. I do not think this is the same as moving on to the next item. I think that disparages the Scrutiny function considerably [Approbation] to say that. Also, I would query the chairman of the panel, who has just spoken, saying that it will be difficult to do. I have been involved in a very effective sub-panel chaired by Deputy Maçon, which has produced a report that is certainly making waves and I would have thought that Corporate Services could quite easily appoint a sub-panel to do this work. I would be very happy to be on that sub-panel. So, I do not see any threat from this; it does not seem to me to be a delaying tactic. As I say, I think the simple question of should Scrutiny be able to review the legislative issues here, the potential costs to Parishes and the States, and crucially whether this decision by the States we are being asked to make by the Deputy of St. Martin will make our roads any safer, particularly for the more vulnerable road users. That seems, to me, the crucial question: what can we do to make our roads safer? One of the things that I am most worried about is any delay to the long-awaited Street Works Law and effectively that is what will happen if the Deputy 's proposition is passed. T.T.S. effectively seems to me to be required to make space in their work that will be delayed and, from my point of view, the majority of things we are dealing with result from utility companies digging up highways and pavements and other third parties, not just utility companies. The sooner we can get a handle on that and legislate and make them do the job properly, the safer our pavements and highways will be. In practical terms, I think referring to Scrutiny to a sub-panel as motivated as Deputy Maçon's on litter and anti-social behaviour will achieve a lot and I shall certainly support the proposition.

Deputy J.A. Martin:

On a procedural matter, the Constable has just said: "It is not the same as moving on." The Standing Order the Constable is trying to invoke, 79.1, if you read down to 79.4: "At the next meeting the Presiding Officer will ask the relevant panel." Now, the next meeting is September and then you get 4 sittings after that. We will be in a new House. So, you cannot bind a new House and the sub-panel if all the stompers of Scrutiny had really realised what Scrutiny can do, they would understand nothing can be done until the Corporate Services Panel chair sits down with the thing and it comes back to the House in September with either a yay or a nay.

[10:15]

The Deputy Bailiff :

This is beginning to sound like a separate speech.

Deputy J.A. Martin:

I just would like them to understand the Standing Orders.

The Deputy Bailiff :

This is beginning to sound like a separate speech.

4. Deputy M. Tadier :

This is essentially a bluff that we are seeing from the very shrewd Constable of St. Ouen. He knows that this cannot be referred to Scrutiny in any way. First of all, there is not time. Second of all, there is not the appetite. We have heard from the Corporate Services Panel that they do not want to do it. It would be interesting to hear from the Environment Panel before we kick this out anyway and then go to the main vote. Whether or not Deputy Martin is correct in saying this is akin to a reference back, it certainly is a device which is being used to avoid having to register one's vote pour or contre a couple of months before an election. [Approbation] My first question is - well, a suggestion, first of all - I think P.P.C. (Privileges and Procedures Committee) should consider that any time somebody refers something to Scrutiny in the future that they should be on a sub-panel to look at it. I would ask how many of the 12 Constables with their expertise are currently on a Scrutiny Panel; I think zero are currently on Scrutiny.

Deputy G.P. Southern of St. Helier : I've got 2.

Deputy M. Tadier :

On a panel? Okay. So there are 2 out of 12, is that right, who are currently on a Scrutiny Panel?

The Deputy Bailiff :

Deputy , will you please make your speech? You do not have questions to put to the Assembly; just make your speech.

Deputy M. Tadier :

It is a rhetorical question; these are the devices which one uses in rhetoric in order to try and convince Members one way or the other. The point I am making is that it is very easy to refer something to Scrutiny; the actual Scrutiny part of it is much more difficult, especially 2 or 3 months before an election. Of course, I do not know if my suggestion would even be viable seeing as the Constable in question has a seat on the Council of Ministers, so presumably he would be precluded from serving on Scrutiny anyway, although he should be. So, the point I am making is that, I think Deputy Martin said it already, we simply have to take a vote on this, yes or no. It may be uncomfortable for some of us, but I think a reference to Scrutiny at a point when Scrutiny is pretty much in dire straits I think is not the right way to go.

5. Deputy D.J. De Sousa of St. Helier :

Deputy Martin basically made my speech. I am on the Corporate Services Panel and I would implore Members not to refer this to Scrutiny. Let us go to the vote. We do not have the time. We are doing C.S.R. (Comprehensive Spending Review) and other things and we would not be able to give it justice.

6. Deputy G.P. Southern :

I will just rise to my feet to back up the words of Deputy Martin, who has pointed out that in fact this would have to come back to a new House and we cannot bind a new House, so for technical reasons what is being proposed is out of order, I think. But to just contradict Deputy Tadier , at the moment the 2 Constables that serve on my Scrutiny Panel are the backbone of my panel; they are the ones that turn up every time and they are the ones that are doing the work. I urge the Constables especially not to fall for this trick, because it is a trick. The Constable of St. Helier, a promoter of cycling, a promoter of pedestrianisation, of pedestrians and their safety, time and time again says: "Oh, we should just kick this into the long grass of Scrutiny." It seems to me contradictory that my own Constable should be saying that in order to sabotage a vote on this issue. I urge Members, do not fall for this absolutely time-wasting trick, but to vote on this proposition for or against, so reject this proposition to refer it to Scrutiny.

7. Connétable J. Gallichan of St. Mary :

Very briefly, just to put Deputy Tadier 's mind at rest, I have got absolutely no problem coming to a decision on how to vote on this and that is because I am informed. I have been informed by meetings with the Attorney General, with meetings with T.T.S., with meetings with my Roads Committee, by reviewing the law, by discussions with insurance brokers, I have had meetings with the Deputy of St. Martin. There are 2 very different ways to look at this issue. I think everybody would look at achieving the same ultimate outcome, which is driving forward safety and making sure there is equity for people, but what we do not have is the evidence. We have 2 different views looking at different things. With the greatest respect to the Deputy of St. Martin, he is very well

known for being tenacious, but he has, on every occasion, chosen not to listen to evidence that has been given to him and he is within his rights to do so. He has got a particular view. What reference to Scrutiny would do - and I challenge the fact that there is not time or resources, because as has been said, amply and well before, a sub-panel is surely the way to tackle this - what we would get from that is the evidence. It is all very well for me to say: "The costs of this are going to be considerable" and for the Deputy of St. Martin to say: "There are no cost implications." Somewhere in the middle of that is the reality and the fact and that is what the Scrutiny Review will get to and enable this Assembly to make the right choice that will achieve what everybody seems to want to do. I am fearful that the proposition, as it stands, will achieve something, but not what people expect. Thank you.

8. The Deputy of St. Martin :

I am known for the work and research I do and I would say this was a well-researched, evidence- based proposition. My evidence, to answer the Connétable of St. Mary , is quite simple: I did check with all the Parishes and all the Parishes are paying insurance. So, therefore, providing the roads are kept in good condition, in fact, I believe my proposition will indeed improve and enhance the roads because the Parishes will know if we do not do something about it we could be liable. So, I believe it is a win-win situation. But I have been involved in this now for over 6 months with the Constables and T.T.S.; no one has put an amendment. Opportunity: there could have been an amendment and no one has chosen to. One of the reasons why the Constable of St. Ouen wants it is because they have thought about this over the years, but it has been too painful to adopt. Really, at the end of the day, one has got to make a decision. You have got to face your electorate and say: "I did not vote for it because I do not think it is good for you. It may cost you money." Well, I do not know. I do not have a problem with it, obviously, that is why I brought it here. I think Constables and everyone should have the courage of their convictions. It is a simple proposition asking us to accept responsibility when we are negligent. That is what it is; it is not for potholes appearing overnight. Again, I despair at times when people do not read reports fully; they just believe it is just something: "Well, we will find out on the day." But here we are. There is no point going to Scrutiny. Only last week the House rejected a well-presented Scrutiny report produced, indeed we had a Connétable on that panel and yet people voted against it and when we hear why: "Well, we did not understand it." Well, of course they do not understand it. If Members do not read propositions and do not remain in the Chamber, how will they ever learn it? This is a ruse. I am disappointed in the Constable of St. Ouen because, really, this is another reason to procrastinate. Let us do nothing. If we do not want to do something, let us vote for the Constable of St. Ouen. I am not of that opinion. I would hope Members will share it with me.