States Meeting Transcript - 18th January 2017

STATES OF JERSEY OFFICIAL REPORT WEDNESDAY, 18th JANUARY 2017

PUBLIC BUSINESS – resumption ...............................................................4

1. Draft Public Elections (Amendment No. 7) (Jersey) Law 201- (P.124/2016) - resumption................................................................................4

1.1 Connétable L. Norman of St. Clement (Chairman, Privileges and Procedures Committee): .............................................................................4

1. Deputy C.F. Labey of Grouville :.........................................................4
2. The Connétable of St. Clement:..........................................................4

2. Draft Public Elections (Amendment No. 8) (Jersey) Law 201- (P.125/2016)............5

1. The Connétable of St. Clement (Chairman, Privileges and Procedures Committee):......6

1. Deputy J.M. Maçon of St. Saviour:......................................................7
2. Senator S.C. Ferguson:..................................................................7
3. Deputy K.C. Lewis of St. Saviour:.......................................................7
4. Deputy R. Labey of St. Helier:...........................................................7
5. Senator P.F.C. Ozouf :....................................................................7

6. Deputy G.J. Truscott of St. Brelade : .....................................................9
7. Deputy J.A.N. Le Fondré:................................................................9
8. The Connétable of St. Clement:..........................................................9

2. The Connétable of St. Clement:........................................................11

1. Senator S.C. Ferguson:.................................................................12
2. Deputy J.A. Hilton of St. Helier:........................................................12
3. Senator P.F.C. Ozouf :..................................................................12
4. The Connétable of St. Clement:........................................................13 Deputy J.A.N. Le Fondré:....................................................................13 Mr. R.J. MacRae , H.M. Attorney General:....................................................13

3. Draft Amendment (No. 30) of the Standing Orders of the States of Jersey (P.126/2016) ...........................................................................................15

3.1 The Connétable of St. Clement (Chairman, Privileges and Procedures Committee):....15

4. Draft Sea Fisheries (Amendment No. 3) (Jersey) Law 201- (P.128/2016)..............16

1. Deputy S.G. Luce of St. Martin (The Minister for the Environment):...................16

1. The Deputy of Grouville :...............................................................17
2. Senator P.F.C. Ozouf :..................................................................18
3. Senator S.C. Ferguson:.................................................................19
4. The Deputy of St. Martin:..............................................................19

2. The Deputy of St. Martin:..............................................................20

5. Draft Animal Health (Jersey) Law 2016 (Appointed Day) Act 201- (P.129/2016).....20

5.1 The Deputy of St. Martin (The Minister for the Environment):.........................20

6. Draft Animal Health (Consequential Amendments) (Jersey) Regulations 201- (P.131/2016)..............................................................................21

6.1 The Deputy of St. Martin (The Minister for the Environment):.........................21

7. Future Hospital Funding Strategy (P.130/2016)........................................22

1. Senator A.J.H. Maclean (The Minister for Treasury and Resources):...................23

2. Future Hospital Funding Strategy (P.130/2016): amendment (P.130/2016 Amd.)....26

7.2.1 Connétable C.H. Taylor of St. John : ....................................................27 Senator A.J.H. Maclean:......................................................................28

3. Future Hospital Funding Strategy (P.130/2016): amendment (P.130/2016 Amd.) – amendment (P.130/2016 Amd.Amd) ....................................................29

7.3.1 Senator A.J.H. Maclean (The Minister for Treasury and Resources):...................29

4. Future Hospital Funding Strategy (P.130/2016): amendment (P.130/2016 Amd.) - as amended..................................................................................30

1. Connétable D.W. Mezbourian of St. Lawrence:........................................30
2. Senator A.J.H. Maclean:................................................................30
3. The Connétable of St. John:............................................................30

5. Future Hospital Funding Strategy (P.130/2016) - as amended.........................31
6. Future Hospital Funding Strategy (P.130/2016) - Suspend the debate for the Corporate Services Scrutiny Panel to review under Standing Order 79..............32

1. Deputy R.J. Renouf of St. Ouen:........................................................32
2. The Connétable of St. Lawrence:.......................................................34
3. Senator A.J.H. Maclean:................................................................34
4. The Deputy of Grouville :...............................................................35
5. Deputy G.P. Southern :..................................................................36
6. Deputy M.R.Higgins:..................................................................37
7. Deputy J.A. Martin of St. Helier:.......................................................38
8. Deputy A.D. Lewis of St. Helier:.......................................................39
9. Deputy J.M. Maçon:....................................................................40
10. Deputy J.A.N. Le Fondré: ...........................................................41
11. Deputy R. Labey :....................................................................43

LUNCHEON ADJOURNMENT PROPOSED..................................................44 LUNCHEON ADJOURNMENT................................................................44

12. The Connétable of St. John : .........................................................44
13. Connétable J.M. Refault of St. Peter:................................................45
14. Senator A.K.F. Green:...............................................................49
15. Senator P.F.C. Ozouf : ...............................................................50
16. Deputy S.M. Brée of St. Clement:...................................................54
17. Senator S.C. Ferguson:..............................................................55
18. Senator P.F. Routier:................................................................56

19. Deputy K.C. Lewis : .................................................................56
20. Deputy D. Johnson of St. Mary : .....................................................57
21. Senator I.J. Gorst : ...................................................................57
22. The Deputy of St. John:..............................................................59

ADJOURNMENT................................................................................61 M.H. Temple, Q.C., H.M. Solicitor General:..................................................61

ADJOURNMENT................................................................................63 Senator A.J.H. Maclean:......................................................................63 Deputy J.A.N. Le Fondré:....................................................................63 The Solicitor General:........................................................................64 Deputy J.A. Martin:..........................................................................64 Deputy S.M. Brée:............................................................................65

8. Draft Prison (Independent Prison Monitoring Board) (Jersey) Regulations 201- (P.132/2016)..............................................................................65

1. Deputy K.L. Moore of St. Peter (The Minister for Home Affairs):......................66

1. Deputy J.M. Maçon:....................................................................66
2. Deputy J.A. Martin:....................................................................67
3. The Deputy of St. Peter : ................................................................67

2. The Deputy of St. Peter : ................................................................67
3. The Deputy of St. Peter : ................................................................68

ADJOURNMENT................................................................................69

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

PUBLIC BUSINESS – resumption

1. Draft Public Elections (Amendment No. 7) (Jersey) Law 201- (P.124/2016) - resumption The Bailiff :

We finished last night with the Assembly approving the principles of P.124: Draft Public Elections (Amendment No. 7) Law. Deputy Le Fondré, does your panel wish to scrutinise these regulations?

Deputy J.A.N. Le Fondré of St. Lawrence (Chairman, Corporate Services Scrutiny Panel):

No, thank you, Sir.

1.1 Connétable L. Norman of St. Clement (Chairman, Privileges and Procedures Committee):

I shall propose the Articles en bloc, but just say a few words about them as I go through. The Committee has provided Members with a marked-up copy of the law as it would be amended if these Articles are approved, and I hope Members have found that helpful. Article 1 is the interpretation article. Article 2 of this draft law disqualifies from voting those prisoners who have been convicted and sentenced to more than 4 years' imprisonment, or who are unlawfully at large at the time, no matter how long they have been sentenced for. Article 3 of the law sets out the requirements that a person must fulfil in order to have their name included on the electoral register. This amendment makes it absolutely clear that any sentence of imprisonment does not count towards a period of ordinary residence. Article 4 currently provides the Autorisé or Adjoint with discretion to take such measures as he or she considers appropriate for taking the vote of an ill or disabled person on the day of the poll. As amended, this provision will enable the discretion to be exercised to take the votes of prisoners as well. Articles 5, 6 and 7 deal with pre-poll voting and postal voting. Article 7 of the law amends Article 42 of the 2002 law and removes the limited ability of remand prisoners to cast a pre-poll vote. Instead they will be able to cast a postal vote, thereby simplifying matters for the Judicial Greffe. Postal voting currently applies to people who are likely to be out of the Island while the polls are open. The draft law widens this Article to include people who are entitled to vote but will be detained in prison while the polls are open. Article 8 amends the law which enables the Judicial Greffe to receive an application for postal voting after closing time if he or she considers there are exceptional circumstances which justify doing so. This ability refers to all people, not just prisoners. Article 9 is the citation. I propose the Articles and will attempt to answer any questions.

The Bailiff :

Seconded?  [Seconded] Does any Member wish to speak?

1. Deputy C.F. Labey of Grouville :

I would just like Article 5 amended clarified, that if a person is taken into prison when they do not have the qualifying period of being resident in Jersey, they then do not leave prison maybe 2 or 3 years later with that qualification. It is just to be clarified. I think that is what that Article says, but I just wanted some clarification.

The Bailiff :

Does any other Member wish to speak? Then I ask the Chairman to reply.

2. The Connétable of St. Clement :

Any prisoner has to meet the residential criteria and the law makes it quite clear that while they are imprisoned they are not counting time towards that residential qualification for the purposes of voting. I maintain the Articles.

The Bailiff :

Would those Members in favour of adopting the Articles kindly show? Those against? The Articles are adopted. Do you move the Bill to the Third Reading, Chairman?

The Connétable of St. Clement : Yes, please, Sir.

The Bailiff :

Seconded? [Seconded] Does any Member wish to speak in the Third Reading? Would those in favour of adopting the Bill in Third Reading kindly show? The appel is called for. If I could ask Members to return to their seats. The vote is on whether to adopt the Draft Public Elections (Amendment No. 7) Law in Third Reading. I will ask the Greffier to open the voting.

2. Draft Public Elections (Amendment No. 8) (Jersey) Law 201- (P.125/2016) The Bailiff :

We come now to the P.125: Draft Public Elections (Amendment No. 8) (Jersey) Law, lodged by the Privileges and Procedures Committee. I will ask the Greffier to read the citation again.

The Deputy Greffier of the States:

The Draft Public Elections (Amendment No. 8) (Jersey) Law 201-. A Law to amend further the Public Elections (Jersey) Law 2002, the States of Jersey Law 2005, the Public Elections (Expenditure and Donations) (Jersey) Law 2014 and the Connétable s (Jersey) Law 2008. The States, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law.

The Bailiff :

Chairman, do wish to propose the principles?

1. The Connétable of St. Clement (Chairman, Privileges and Procedures Committee):

This draft amendment to the law is the culmination of work started in 2015 and is because of the experience we had in the 2014 elections. It has involved considerable consultation with the Judicial Greffe, the Jurats who are responsible for running elections on the day, and also takes into account matters looked into by the Comité des Connétable s and indeed the Attorney General, and we are grateful to all of them. What this law does I shall run through briefly. One thing that it allows us to do is to appoint election observers, after consultation with the Chief Minister. This would be in accordance with international best practice and is something which I know the Chief Minister was keen to do at the last election but we did not have the vires to do it. What election observers can do is to point out issues with Election Law and practice which ought to be examined and their appointment signals to the rest of the world that Jersey is a functioning and self-confident democracy. Various international organisations, such as the Council of Europe and the Commonwealth Parliamentary Association provide election observers who are usually current or former parliamentarians. If this proposition is successful, we will, with the Chief Minister, consider who to appoint for the 2018 elections. There are various changes to the nomination procedure, including allowing candidates to be described on the ballot paper by their full name, or by the name they are commonly known as if, in the opinion of the presiding officer at the nomination meeting, its use will not confuse or mislead voters and is not obscene or offensive. There is also a new procedure for allowing candidates to withdraw after they have been nominated, a gap in the law which was highlighted when a Senator or candidate sought to withdraw from the ballot in 2014. Some of these proposals simply reflect current practice, but under the current law people who are at polling stations at 8.10 p.m. can vote if they are inside the polling station, but if it should happen that there is a queue outside, technically and legally they are not allowed to vote. The law is being changed to make sure that it is absolutely clear that they can do so. We have special pre-polling arrangements for ill, disabled or illiterate people where votes can be taken on the day. That is going to be extended to carers of ill or disabled people. Jurats and Autorisé have used their common sense in the past and allowed this to happen, but this gives the vires for it to happen. There are a number of changes to the management of public elections in each Parish, constituency or District, the processes in respect of the distribution of ballot papers and the

management of accounts in many cases were to ensure that the law reflects current practice. [9:45]

These changes include provision in certain circumstances for a count to be held in more than one location and the results added together, which currently under the law cannot happen, even though I suspect it does from time to time. Following the experience in 2014, we propose a change to the laws on recounts for Senatorial elections so that the right to request a recount may only apply if the difference between the votes cast for the candidate making the request and the votes cast of the person elected, or if more than one the person elected with the lowest number of votes, is one per cent or less than the votes cast for the person elected, rather than one per cent of the total number of votes cast, which can be a rather huge number. There are also changes to Article 61 of the Public Elections Law which relates to when the Royal Court must declare a vacancy or that an election is void. This is in response to problems with the drafting of the Article which emerged during a court challenge to the result in St. Helier No. 1 in 2014. Also we are asking the States to remove the requirement for candidates to declare convictions for sodomy committed before 12th January 2007, when the law on sodomy changed, if the offence committed before that date would not be illegal now, and also to declare convictions for offences against someone aged under 18 if the candidate was over 18 at the time of the offence. That summarises the changes we are proposing and I propose the principles.

The Bailiff :

Seconded? [Seconded] Does any Member wish to speak on the principles? Deputy Maçon?

1. Deputy J.M. Maçon of St. Saviour :

Very briefly. I just want to thank the committee and the chairman for bringing these forward, particularly with regard to the changes around carers, which was originally my proposition which I brought quite a few years ago, but I am glad to see that it has been put in the legislation. I would also like to praise the Judicial Greffe, along with the chairman, for the pragmatism of the Judicial Greffe in making a workable solution as well. I just want to put that on record and let the committee know that I am fully supportive of these proposals.

2. Senator S.C. Ferguson:

The election observers, would these be available for the postal and pre-poll votes, because that was the area where there were a lot of questions after the 2014 election? It was a good thing to have a recount. It may not have been a good thing when you were going through it, but at least it sorted out a lot of questions. To reduce the ability of people to ask for these sort of things, is that a good thing? Does it reduce the access to democracy? Certainly, the observers, we need them, I think, for pre-poll and postal voting.

3. Deputy K.C. Lewis of St. Saviour :

Just one query regarding travel and accommodation expenses by election observers in the course of their work; is it planned to have off-Island observers coming in, and how far afield are we talking?

4. Deputy R. Labey of St. Helier :

Just on the minimum one per cent within reach of the winning candidate being the criteria for being able to call for a recount, what happens if it is above one per cent but for very good reasons? I am trying to think of some now, but I cannot. Let us imagine the candidate had very good reason for suspecting a ballot box got lost in transit or caught fire, or did not make it to the count, which would potentially make the gap bigger than one per cent, or under one per cent; I am confusing myself. Are there real circumstances in which a candidate does not meet the one per cent but could have a very good reason for wanting a recount and they would have no recourse even if they were correct, to have that recount?

The Bailiff :

Does any other Member wish to speak?

5. Senator P.F.C. Ozouf :

I am a little confused and I wonder if the chairman would confirm what the circumstances in the last recount would be. Would this mean that the request for the recount that, perfectly legitimately, Senator Ferguson made .. and I endorse the comments, I think it was a good day for our Judicial Greffe and our Jurats because effectively I know my vote went up a little, but not by very much. In fact, they were absolutely vindicated in their precision and the way that they go about it. The second issue I wanted to raise on election observing is that the methodology which the .. forgive me, I think I am correct in saying that it is the Judicial Greffier who has provided some guidance to the Jurats who oversee without fear or favour our counts and the modalities of the election process. I think they were absolutely vindicated. In fact, the way that the counting is done has been held up as a model, I know, around the Commonwealth. I think I am the only Member of this Assembly who has ever had the privilege to serve as an election observer and I am still currently a member of P.P.C. (Privileges and Procedures Committee). If I may say, I think this is a really important way of strengthening our democracy and sends out a clear message about the fact that we can be open. It really is a double endorsement you would not need. I think we all know the Jurats and we trust them without hesitation, but when we have to have a recount in order to almost validate their work, their work was audited and it was perfection. They do their work voluntarily and diligently and properly, and they are highly respected. The question about what election observers do, well, in different democracies where there are different risks, the election observing mission is always invited. There are expert bodies which are experts and then they are providing assistance, normally, to experienced parliamentarians or parliamentarians in another place. This Assembly is a member of 2 parliamentary bodies, the Assemblée Parlementaire de la Francophonie, the French A.P.F., and the C.P.A. (Commonwealth Parliamentary Association), and I know another Member is part of the Irish Inter-Parliamentary Union, I think. Those 3 bodies engage in election observing and when election observers in difficult countries, like in Africa .. I was an election observer for the presidential election in Rwanda, and then the Cayman Islands. There were certain reasons why lots of countries have them, just to send out the message that: "We have nothing to hide" that: "We are good and proper and there is a proper election process." The chairman has briefed you on this but having been one I think the chairman encouraged me to forego a holiday and be an election observer and I do not regret a moment of it, and any Member that has that offer when those come around, I would encourage them to take that opportunity, because it is an opportunity of a lifetime and you really learn a lot about democracy. If it is in a difficult place, you learn just how lucky we are, free and fair elections. What they are doing, effectively, is looking at the whole process. Yes, they will be looking at things like postal voting, if they are invited to do so. There has to be an election observing mission and then there are terms of reference, and that can be as wide or as limited as they want. The general view is that you invite in experts; there is an expert body that is based in Prague which provides the experts who go around booking election observers who are experts in elections, free and fair, how you get there. There are all sorts of components of that: whether or not the media has been fair, whether or not there has been fair coverage, whether or not

there has been an explanation of policies in a way that is clear to the voters. All of these issues, they can really add value and they can add constructive value, and it may be of assistance if I sent the 2 election observers reports that I have been involved in in Rwanda and the Cayman Islands. Encouragingly, our friends in the Cayman Islands .. Sir, you welcomed, I think, as Bailiff - perhaps it was your predecessor, I am not sure - we welcomed a delegation from the Cayman Islands and it was with some pride, I think, that the C.P.A. in London announced that all the recommendations of that election observing mission were adopted, in all its parts. I cannot be an election observer in Cayman anymore because I am clearly conflicted because I know the Premier, and I have got to know him and we got to talk about things and he has learned a lot from our system; our counting systems, et cetera. There are always ways to improve, to deepen and to widen democracy and to make it better, because that is why we are here. To have that external validation, which is normally a simple statement: "Has this election been free and fair?" that is the most fundamental thing. And then whether or not the modalities that got you there .. has there been a proper process for nomination? Has there been a free and fair process in allowing anybody who wishes to stand? Are there any impediments to people to stand? Has the media been fair in

the observations of the elections? Has there been a proper scrutiny of candidates so that people can be informed about a real choice? Are there any observations from experience of other places, large and small, that can strengthen that most important of decisions? As we move into a digital age, something which Deputy Wickenden and I .. if I may take this opportunity of drawing Members' attention to a report, I think the first ever report by the Greffier on behalf of the Assembly about how to strengthen democracy in Jersey in a number of different respects. Technology is going to mean an enormous amount. We are not going to do away with the Jurats in their counting oversight, but I am sure that there can be technology, as I have seen in Estonia. That was a very valuable trip, as I went on holiday to Estonia originally and then was so excited by what I saw I asked Deputy Wickenden and an official to come and see for themselves the way they operate their Parliament, their Council of Ministers, their elections. I was convinced by the fact that e-voting can work and can be safe. There are some very interesting things going on, and we can improve, strengthen and deepen and make this Assembly an even stronger place than it is today, and learn from the experience of other places. Those election observers, it is the experts that come with them that then give recommendations to the experienced parliamentarians and then they write the report. But at those Parliaments, it has been an honour to serve with other parliamentarians, a very distinguished Maltese parliamentarian, and in the case of Rwanda I served with an Attorney General of Mauritania, almost a Nelson Mandela figure of the French-speaking world. That was a very difficult election observing mission to do, but it was certainly a worthwhile piece of work and I hope that in sharing that experience, as I did at the time, I will send those reports around. It is a really good thing, and it means that we can then go up and show ourselves. With a good report from good election observers, we can say Jersey democracy is in good shape and we have had a good election and that makes us all legitimate. We all gain; it is a win-win, and I urge Members to support it.

6. Deputy G.J. Truscott of St. Brelade :

I just wondered if the chairman could explain the practicality and the logistics of when people are at the queue at a polling station; how does he intend to administer that, whether it is by ring-fencing or giving out a card. How would he do that, and would there be a particular cut-off point where you would say: "No; no more people can be taken in to vote?" The other one is: I would like an example of why somebody on the ballot paper could name themselves as somebody that they are known by. Can you give me an example of that, and will it open the gates for people .. somebody may be known locally as "Seamus the Lunatic" or something? Is it opening it up to that, and that would give me concern? The legality of that also would be something you could explain.

[10:00]

7. Deputy J.A.N. Le Fondré:

I suppose a minor query for the chairman, again, just going back to the principle of appointing observers, and it sounds fine from a transparency point of view and all that sort of stuff, but the only example I heard seemed to be quite small jurisdictions, of which, obviously, we are one, and of the other countries which have had pressures at varying times. What do the larger western democracies do, like Australia or New Zealand or the U.K. (United Kingdom) or France? Do they have election observers or the ability to bring election observers into the system? I was just curious.

The Bailiff :

Does any other Member wish to speak? Then I call on the Chairman to reply.

8. The Connétable of St. Clement :

I thank Deputy Maçon for his supportive comments. I agree with Senator Ferguson that the right of a recount is important and the law emphasises that what we do. It is just sorting out, familiarising the amount where a candidate has the absolute right to a recount. Of course, if there are some other concerns - somebody mentioned that ballot boxes perhaps go missing or something of that nature - then the Autorisé or the Judicial Greffier, depending on which election it has, has the right to allow a recount, in any event, in circumstances like that. The election observers, if it is decided, and it is not compulsory that we have election observers, but if it is decided that we should have, the P.P.C. and the Chief Minister will decide which organisation to invite. That organisation, be it the Council of Europe, be it the C.P.A., or whatever, will decide who they will invite. It would be wrong to have independent election observers and we have to say exactly who they are going to be. Wherever they might come from, yes, we would be responsible for their expenses; accommodation expenses, subsistence and travel. Talking about observers, as I say, I think large jurisdictions, I am not sure about the others, but certainly the U.K. does not use election observers. I imagine they could if they wished to. What we will have, if the amendment of law is accepted, the ability to have election observers if we so wish and, yes, they will have the right to things like the electoral roll and to be at the pre-poll as well; I think Senator Ferguson asked about that. Deputy Truscott asked how we would administer the queues at polling stations. I wish we had that problem. [Laughter] But, of course, the P.P.C. will not be controlling the queues or administering the queues; that would be a matter for the returning officer, the Autorisé, at the particular polling station. I have seen it during my time; at an election I was involved in a few years ago where a few were queuing outside. It is a matter of common sense, is it not? We want to encourage people to vote. We do not want to turn them away. If they are still queuing at 8.15 p.m., 8.20 p.m. or 8.30 p.m., personally I would let them in and I hope the Autorisé, the returning officer, would do the same. Someone asked about the names on the voting slip. What this Bill will do will allow people who are commonly known by a different name to select that name on the slip. An obvious example, in the last Senatorial election was a gentleman commonly known as Stevie Ocean but he had to have his proper name, his original name, on the voting slip and he felt that was wrong and we agreed with him. Another one is a former Member of this House, in a very simple way, was Bob Hill, who wanted to have Bob Hill on the ballot paper. The law requires that whoever is presiding at the nomination meeting to decide what a person wants is rude, offensive, inappropriate or misleading and that should be fairly easy to establish. But I think it gives candidates just a little more right and a little more satisfaction that things are being done properly. I think I  have answered  all  the  questions.   If  I  have  missed  somebody,  I  do  apologise  and  I  maintain  the

principles. The Bailiff :

Those in favour of adopting the principles, kindly show. The appel is called for. If Members could return to their seats and vote on the principles of the Public Elections (Amendment No. 8) Law and I ask the Greffier to open the voting.

The Bailiff :

Chairman, do you wish to scrutinise these?

Deputy J.A.N. Le Fondré (Chairman, Corporate Services Scrutiny Panel): No, thank you, Sir.

2. The Connétable of St. Clement :

Once again the committee have provided Members with a marked-up copy of the law, as it would be, if these Articles are adopted. I think the simplest way would be for me to propose the Articles en bloc and offer to answer any questions on any particular Article that Members may have and revise the Articles.

The Bailiff :

Seconded? [Seconded]

Senator S.C. Ferguson:

Sir, might we have the Article 17, 52AA separately, please? The Bailiff :

52AA, right. Do you wish to speak to that or not? This is your chance, do you wish to, that is the

Senator S.C. Ferguson:

You do not ask a politician that, Sir, I do not think. The Bailiff :

You do not have to but

1. Senator S.C. Ferguson:

No, it is just that it is the recount set up and I query the one per cent at this point in time. Why one, why not 5? Nobody has told us the rationale of how many percentages they use. Is this a common percentage worldwide? Perhaps the chairman can explain.

2. Deputy J.A. Hilton of St. Helier :

I was just wondering if the chairman could just give me a little bit more information on Article 4, which amends Article 9 of the 2002 Law: "This enables a person to apply to have his or her name and address omitted from the electoral register on the ground that its inclusion would constitute a significant risk or threat of personal harm to the person or another person who resides with him or her." Can the chairman tell me, who makes the decision that somebody is at significant risk or threat? If it is decided after the person makes the application that they are, if they reside with family members or obviously share the same name, would it be automatically accepted that the family members could be exempt from the electoral register as well?

3. Senator P.F.C. Ozouf :

I just think before we vote, Senator Ferguson has asked for a vote on Article 52AA and I would just like the chairman, if he is able because obviously this was discussed at P.P.C., to give the rationale and a good rationale behind the reasons why that was the percentage given. I am standing really to make sure that he has got all his notes, I am sure he has, in relation to it just because it seems to me that there was it is perfectly appropriate to ask if an election, which is a tight one, is going to be different in its outcome and you have a recount; that seems to me entirely right. In the case of a Senatorial election it was on the margin, I think, vindicated the Jurats' diligence. The counterweight of that is the uncertainty that prevails. If it is not going to change because one has a confidence in the counting and there is no suspicion of any wrongdoing by Jurats and the returning officers and all the modalities that are happening, there is, of course, a cost in time. We ask the people to perform their tasks, not only the Jurats but the many other people that are involved; many of them do it in their own time. There just needs to be an appropriate balance between the rights of somebody to properly ask for a recount in exceptional circumstances and the offsetting cost of that and all the uncertainty that prevails. I went through it and Members may think about the things the and, again, it is not what one goes through, it is the things that people that are around you go through, that is the problem and that is on both sides. There is a reasonableness test versus a cost test but at all times democracy and the accuracy of democracy, because that is why we are here, must be paramount. I would just invite the chairman to explain carefully because this was obviously carefully thought about. I think it was fair to say that the ability for Senator Ferguson, while lawful and proper, we found out that in fact it was somewhat of a grey area, if not a lacuna in the previous drafting and I think that is why it happened. I, of course, will be supporting it but maybe the chairman in summing up may explain both sides of those arguments because they are really important.

The Bailiff :

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

4. The Connétable of St. Clement :

Deputy Hilton asked about the persons who feel they might be at risk and having their names not on the electoral roll or have them on a separate register, that decision is made after application by the individual, by the Constable of each Parish who is responsible for the preparation of the electoral register. It very rarely happens, I cannot give any numbers or anything like that but it is the ability for someone perhaps who wishes to be on the register, who wishes to vote but fears, for whatever reason, it might be something like threats, physical threats or whatever. It would be a matter for the Constable to decide if that threat was real enough for them to be off the electoral register on application. The change in this law is that for some strange reason a mistake in the law, as previously drafted, meant that those persons were not necessarily off the list, which is at the library or at the Judicial Greffe. They would be off the list at the Parish Hall but not at the Judicial Greffe. This was improving the security for those particular individuals. The law on recounts, the one per cent, what we are proposing now is what the States originally wished to do a number of years ago in the drafting and it was not picked up. The one per cent, which gives an absolute right of a recount for a candidate is less than one per cent of the number of votes of the successful candidate, now has an absolute right. What happened in the previous law or what currently exists, it is one per cent of the total number of votes cast in that electorate, which can be a huge amount. What it is doing is bringing it to a realistic amount you give but also, and Senator Ozouf is right, the democratic process has to be clear and every candidate has to have confidence in it and it needs to be absolutely right. What this law does is to give the unsuccessful candidate, who is within one per cent of the successful candidate, the absolute right to a recount. As I have said before, if there are other problems, missing ballot papers or so on, then the Autorisé, the returning officer, has the right to call a recount anyway. Anyone can ask for a recount if they feel that things had gone on that might not be right and, of course, if we have election observers they will be there to

comment as well. I hope that makes it clear and I maintain the Articles. Senator S.C. Ferguson:

I am sorry, I asked if the Chairman could explain why they picked one per cent, not 2 per cent, 3 per cent, 4 per cent or 5 per cent.

[10:15]

The Connétable of St. Clement :

The one per cent was a decision of the States the last time we debated the electoral law and, therefore, the P.P.C. did not feel there was any necessity to change it.

Deputy J.A.N. Le Fondré:

If I am allowed to ask, under 52AA we have part (1), which is the I am confused between part (1) and part (2) because part (2), which is the one per cent of the number of votes cast at the bottom end is without prejudice to paragraph (1). Does paragraph (1) still stand? The reason I ask that because in my reading of that - sorry, I could be completely misreading it - is that we then have 2 conditions, either of which apply, which is one per cent or less of the total number of votes or one per cent of the votes in paragraph (b), either one of them.

The Bailiff :

Attorney, do you wish to advise the Assembly on that? Mr. R.J. MacRae , H.M. Attorney General:

Could I invite the Deputy to please repeat the question because I have the law in front of me but I did not quite follow the question?

Deputy J.A.N. Le Fondré:

Under 52AA we have a paragraph (1) and a paragraph (2). Paragraph (2), which I think is where the focus has been as to the new condition of the one per cent, starts: "Without prejudice to paragraph (1)." I am assuming it is a separate condition and, therefore, paragraph (1) seems to say when the difference: "Is one per cent or less of the total number of votes cast in the election." I am trying to marry that up with the comment that we change from going from one per cent of the total votes cast in the election to one per cent of the votes cast for the unsuccessful candidate, the number of votes cast for the person elected. But I may just be misinterpreting it or something.

The Attorney General:

I think the point is that 52AA (2) deals specifically with Senatorial elections, unlike (1). Of course, in the context of those elections, one per cent of the total poll will be much more significant and 52AA (2) states that the one per cent is the one per cent for the successful candidate with the lowest number of votes in such an election.

The Bailiff :

Chairman, we have been asked for taking the vote on 52AA separately and I did not want to give you the ruling just yet while you were speaking but in case you wish to add anything, we cannot take 52AA on its own separately but we can take Article 17 separately, which is 52A and 52AA and 52. In other  words,  Article 17,  as a whole, can be taken separately  because that is the provision. That is the reading in accordance with the usual process of Standing Order 74, which defines a provision as an Article or a regulation. The Article in this law is Article 17, which is substituting for Articles 52 and 52A, Articles 52, 52A and 52AA. When we come to the vote we will have to take Article 17 separately. I mention that only in case there is anything that you wanted to add as a result of that.

The Connétable of St. Clement :

No, thank you for that clarification, Sir, and obviously totally content with that and that is really what I expected. I am also grateful to the Attorney General for his comments and, of course, he is absolutely right, what we are talking about for the one per cent between candidates was for the Senatorial election. If we did that for Deputies and Connétable s the number could be extremely small and the current arrangements remain in place for the Connétable s and Deputies' election and the one per cent between the candidates is simply for the Senatorial election. I maintain the Article and may I ask for the vote on 1 to 16?

The Bailiff :

We will take, first of all, the vote on Articles 1 to 16 inclusive. Those Members in favour of adopting those Articles, kindly show. Those against? The Articles are adopted. We now take the vote on Article 17 that is replacing Articles 52 and 52A with 52, 52A and 52AA. The appel is called for. I invite Members to return to their seats. I am not going to repeat what the vote is all about, I just said so, and ask the Greffier to open the voting.

The Bailiff :

We now come to the remaining Articles, 18 to the end. Those Members in favour of adopting those Articles, kindly show. Those against? The Articles are adopted. Do you move the Bill in Third Reading, Chairman? Seconded? [Seconded] Does any Member wish to speak in Third Reading? Those in favour of adopting it in Third Reading, kindly show. Those against? The Bill is adopted in Third Reading.

3. Draft Amendment (No. 30) of the Standing Orders of the States of Jersey (P.126/2016) The Bailiff :

We come now to P.126, Draft Amendment (No. 30) of the Standing Orders of the States of Jersey and I ask the Greffier to read the proposition.

The Deputy Greffier of the States:

Draft Amendment (No. 30) of the Standing Orders of the States of Jersey. The States, in pursuance of Article 48 of the States of Jersey Law 2005, have made the following amendments to the Standing Orders of the States of Jersey.

3.1 The Connétable of St. Clement (Chairman, Privileges and Procedures Committee): It was back in June of last year that Deputy Wickenden convinced the States to adopt his proposition, which sought to modify Standing Orders to require that any proposition lodged by a Minister would need to include a statement detailing which Ministers and Assistant Ministers were bound to vote in accordance with collective responsibility in respect of the proposition. This is a Standing Order that brings this request or on what the decision was based into effect and I propose the Standing Order.

The Bailiff :

Seconded? [Seconded] Does any Member wish to speak? Those Members in favour of adopting the proposition, kindly show. Those against? The Standing Order change is adopted. Greffier, Deputy Southern said he did not wish to proceed with it but I was not clear whether he is deferring or withdrawing, do you know?

The Deputy Greffier of the States: Which one, sorry?

The Bailiff :

P.127.

The Deputy Greffier of the States: He is withdrawing that

The Bailiff :

He is withdrawing. Deputy Mézec , as Deputy Southern is in your party, perhaps you can tell us, I do not have a note as to whether P.127 Deputy Southern , I do not have a note as to whether you withdrew P.127 or deferred it.

Deputy G.P. Southern :

I withdrew it.

The Bailiff :

You withdrew it, thank you very much.

4. Draft Sea Fisheries (Amendment No. 3) (Jersey) Law 201- (P.128/2016) The Bailiff :

Then we come to P.128: Draft Sea Fisheries (Amendment No. 3) (Jersey) Law, lodged by the Minister for Environment and I ask the Greffier to read the citation of the draft.

The Deputy Greffier of the States:

Draft Sea Fisheries (Amendment No. 3) (Jersey) Law 201-. A Law to amend the Sea Fisheries (Jersey) Law 1994. The States, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law.

1. Deputy S.G. Luce of St. Martin (The Minister for the Environment):

The Sea Fisheries (Jersey) Law 1994 is the overarching law that makes provision for the regulation of sea fishing and conservation of fish, licensing fishing boats and connected matters. Article 8 of the law sets out the requirement that: "Before making any regulations under Article 2, 5 or 6, which apply to our extended territorial sea, the States shall consult with the Secretary of State whose concurrence shall be obtained." The proposed amendment to the law to remove this Article is

required to reflect the current nature and requirements of the Island's relationship with the U.K. This Article was required as part of the original Fisheries Management Agreement, F.M.A., with the U.K. The agreement was signed in 1996 and was a prerequisite of the extension of our territorial waters. At that time it was perfectly reasonable to require that the sensible checks and balances to the new regulations, particularly in light of the fact that the Granville Bay Agreement was in the final stages of being agreed and a certain cautiousness was prudent, given the unprecedented nature of that agreement. However, things have now moved on, both in our relationship with the U.K. and in our relationship with France. The F.M.A. has now been in place for 20 years and it is time that it reflected the nature of the relationship between the Island and the U.K., a relationship that has developed into a more equal partnership with both sides recognising the status of each party and the value of the agreement. Jersey should not and is no longer considered the junior partner. Jersey's territorial waters out to 12 miles or the median line are now well established and accepted by all. In addition, Jersey now also has ownership of the seabed and it is only right that this Assembly is the decision-maker in matters that relate to the regulation of our waters with respect to fisheries matters and the management of those precious stocks that live there. This has been recognised by the U.K. and officers from both the Department of Environment, Fisheries and Rural Affairs and the Ministry of Justice are in agreement that this requirement to obtain the concurrence of the Secretary of State is outdated and does not reflect the type of relationship the Island now has with the U.K. It may be interesting for Members to note that more recent F.M.A.s between the U.K. and other Crown Dependencies do not have this requirement at all. I would want to be clear with all Members that this amendment should not be seen as an opportunity to duck out of any wider international obligations or working with neighbouring jurisdictions. I am very clear that the F.M.A. will set out an explicit requirement in consultation with colleagues in D.E.F.R.A. and through that the other devolved administrations and Crown Dependencies. The Granville Bay Agreement sets out very clearly the requirements to consult and collaborate with the French fishermen and administration. But I am absolutely sure that, ultimately, this Assembly will agree or not, as is the case, any regulations that manage our marine resources. This simple amendment is a natural step forward in a maturing relationship

supported by both sides and I urge Members to support the proposition.

The Bailiff :

Is the proposition seconded? [Seconded] Does any Member wish to speak? Senator Ozouf . Senator P.F.C. Ozouf :

Sir, I know you called me first but I am happy for

The Bailiff :

I saw you first but if you wish to give way, the Deputy of Grouville .

1. The Deputy of Grouville :

Would this not have been an opportune time to renegotiate our Fisheries Management Agreement to achieve a joint Fisheries Management Agreement with the Channel Islands and especially our sister island and the U.K.? Because to close-off this requirement to renew the Fisheries Agreement will surely close-off any opportunity to look at this agreement in the future because the ultimate for us would be to achieve a joint Channel Island Fisheries Management Agreement with the U.K.  In this respect, could the Minister possibly tell this Assembly what progress is being made in restoring our historical fishing rights with Guernsey and, even more, what representation and support is being given to our fishermen who are still being discriminated against in Guernsey waters? While Guernsey will issue licences, Guernsey, as we know very well, are discriminating and issuing conditions on our fishermen, which almost change completely the essence that that licence was made. There are still issues going on now and I would like to know what progress is being made and if this closes the opportunity to achieve a joint Fisheries Management Agreement with our sister islands.

2. Senator P.F.C. Ozouf :

The Minister for External Relations is not in the Assembly today and I do not even attempt to speak on his behalf but having hung out in the London office and having had numerous conversations and having spoken to the Minister for the Environment in a previous life, both when I was Environment and Public Services President, he is doing something here today that is really to be commended.

[10:30]

I think it is a mark of the respect to which the Fisheries Management Agreement and the Granville Bay Agreement is held that the Island is being afforded no longer this requirement, was really, in my view, not necessary. It is necessary when we cannot be trusted. We can be trusted. In fact there are important issues and the Deputy of Grouville has taken a close, personal interest in fisheries when she discharged the Assistant Ministership of Economic Development, and she is right to push at the boundaries yet further. Brexit is going to have an impact, as is being put in the public domain by fishermen and perhaps the Minister will, no doubt, summarise on that. There is an outstanding issue with the rights of Jersey fishermen and U.K. fishermen in Guernsey waters. There has been some rather uncomfortable dialogue between the authorities in the United Kingdom and the Guernsey administration, court cases, summons; it almost seems an unseemly situation. The Deputy looks forward to a Channel Island fishery agreement, so I wish to bring attention to the fact that I issued an April Fool when I said I was going to stand for the elections of Guernsey and I issued a 13-point manifesto. Perhaps it is no joking matter but then I proposed that, as an election, it was in the period of time when you could stand for election in Guernsey and I found, apparently, some unusable clause in the 1771 code that any Member of any island could stand in any one of the elections. It was 1st April; it was a fishy topic. But the fact is is that sometimes in jest there is a serious point. It would be wonderful, would it not, if we could have a Channel Island Fisheries Agreement with our French colleagues, which is held up as a model of good fisheries practice and deshackled from the shackle of the European Union limits, which are painful for Guernsey, in some respects, because effectively they are required to abide by fisheries limits that have no bearing really or on micro subsidiarity, putting the decisions in the right place, not great big rules by Europe or rules by the United Kingdom, which are not bespoke rules for our fishery requirements and our neighbouring fish? I do not think fish think, when they are crossing the border, that they are getting a passport or they are going to go and get caught in the French waters or Guernsey waters; fish swim and so these things need pragmatism and properness. I commend the work of all of the successes, the current work of the Fisheries Department and the Minister in what he is doing. This is a good day for Jersey. It is getting back something that we should have had. There are issues to be dealt with but they are being expertly dealt with by the Minister for External Relations, delicately handled by the Minister and we are going to be better off, I have no doubt, as a result. I note the Secretary of State in the United Kingdom for D.E.F.R.A. made some very interesting and very, I think, worthwhile comments in the House of Commons yesterday about the vision of post- Brexit Britain and the fisheries arrangements that are being thought of there. We will be deshackled from some European obligations, but there is the whole Granville Bay Agreement, our relationship with the French. I had the occasion to speak to former Senator Horsfall this morning and, of course, he was one of the architects, as many other people were, with good legal advice and good Law Officers' advice. We have got a great agreement that is held up as a model. Again, Jersey doing something fantastic and the Minister is doing something that shows that we are doing something fantastic and can be trusted. That is a good thing for Jersey and I am a proud Jerseyman

because of it and I say congratulations to the Minister. The Bailiff :

Can I just give some guidance to Members? This is a very narrow proposition, which is to remove the obligation under the law, the concurrence of the Secretary of State, before the States make regulations. It is not a debate about fishing in Guernsey waters, which would not be the subject of our regulations, in any event.

Senator S.C. Ferguson:

I will try and stay to the point, Sir. The Bailiff :

Yes, please.

3. Senator S.C. Ferguson:

I think people are missing the point. All the fisheries around the U.K. and northern Europe are subject to a supra E.U. (European Union) international agreement. It is governed by the North East Atlantic Fisheries Commission, chaired by Norway. Following Brexit, the U.K. will have their own seat on that Commission, rather than relying on being represented by the E.U., which represents 28 different countries. In this new enlightened agreement with the U.K., what talks has the Minister or his department had with the U.K. as to the probable future ability for Crown Dependencies to represent themselves on the North East Atlantic Fisheries Commission?

The Bailiff :

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

4. The Deputy of St. Martin :

Thank you, and I am grateful for your intervention about the very narrow proposition that I have in front of the Assembly today, which is just referring to Jersey waters and the taking away of the concurrence necessary of the Secretary of State in the U.K. This is not an opportunity for the Minister, whoever that is, to go off particularly on his own. As I pointed out, there are mechanisms in both the Fisheries Agreements whereby we have to consult and work together with our neighbours; that is in France, in Guernsey and in the U.K. In addition, draft regulations will obviously come to this Assembly before they pass. Senator Ozouf mentioned the word "Brexit"; this is nothing to do with Brexit and discussions on this matter have been long and protracted and were commenced a long time before Brexit ever came to be discussed. This is not part of an independent strategy. There is no danger of what I am proposing today being seen in a negative way in the U.K. Officials from both sides, and I mentioned D.E.F.R.A. and the M.o.J. (Ministry of Justice), are fully aware of these proposals. This is not part of other Crown Dependencies' F.M.A.s and I refer to the Deputy of Grouville . Guernsey have their own F.M.A. with the U.K. We have our separate F.M.A. with the U.K. and I will return to that in a second. But I have had discussions and I can tell the Assembly I have had discussions and correspondence, face-to-face discussions, with the U.K. DE.F.R.A. Minister, George Eustice M.P. (Member of Parliament), on our relationship concerning fisheries matters and that is quite wide-ranging discussions. But we are of one accord on this matter when it comes to protecting, conserving and managing our precious fishery stocks. I will finally finish by saying there is no danger of the proposition today being seen in a negative way by the French and this has no impact at all on our Granville Bay Agreement that we have with the French. I would point out that we have, and the Deputy of Grouville will know this only too well, a hugely complicated situation with fisheries in Jersey whereby we have a relationship with the U.K., we have local licensing but we also have an agreement with the French through the Granville Bay Agreement. Making the change to any one of those 3 can impact on the others and we always have to think very carefully about how we move forward. Certainly, it would be my view and I will finish with this, moving forward, and we have had some mention of a Channel Island Fisheries Agreement, that I would like to see all Channel Islands' fishermen treated exactly the same in each other's waters. [Approbation] I have worked hard on this thus far and my attempts via direct correspondence with Guernsey and indirect correspondence with the U.K. have not been as successful as I would have liked. But I, only this morning, sent messages to fishermen confirming that I will continue to work as hard as I possibly can on the difficult arrangements that we have for some Jersey fishermen in Guernsey waters at the moment. Finally, to finish with, the Senator's question about the North East Atlantic Commission, I have not approached the Minister about that but certainly, as we move forward with our fisheries arrangements in the next couple of years, shall we say, with ongoing negotiations with Brexit and with continuing discussions over the Granville Bay Agreement, I will bear that in mind. I make the proposition.