PPC Minutes 2nd July 2002

MH/PH/192 31

PRIVILEGES AND PROCEDURES COMMITTEE (6th Meeting)

2nd July 2002

PART A

All  members  were  present,  with  the  exception  of  Senator  C.  Stein,  from  whom apologies had been received.

In attendance -

M.N. de la Haye, Deputy Greffier of the States D.C.G. Filipponi, Executive Officer,

M.P. Haden, Committee Clerk.

Note: The Minutes of this meeting comprise Part A only.

Policy and A1.  The Committee, with reference to its Act No. A8 of 14th June 2002, considered Resources the  draft  report  and  proposition  of  the  Policy  and  Resources  Committee  on  the Committee: draft Structure of the Executive. It noted in this respect the initial comments made by the report and President together with comments made by Mr R. Whitehead, Principal Legal Adviser, proposition on the Law Officers' Department.

Structure of the

Executive. The Committee discussed the following points -

1240/22/1(18)

1. G uidance and Procedure for Ministers (Proposition: paragraph (c)) -

Ex.Off. The Committee noted that it was not normally the practice for such a Code C.E., P&R to require the approval of the States Assembly as it was not an Assembly P.R.E.O. document. However, the Policy and Resources Committee had undertaken P.R.C.C. to do this in its comments on P.175/2001;

2. The use of the term departments' (Report: paragraph2.1) - It wasnoted that therewas currently nolegal status underthe States of Jersey Law 1966 for Departments.There would have to bedetailed consideration ofwhether the new States of Jersey Lawshouldmake provision as to the legal status of DepartmentsandMinisters;
3. T imescale for Budget debate (2.4) - It was agreed that the timetable envisaged in thereportwastoo tight;
4. Role  of  Assistant  Ministers  in  the  Council (2.5) - The  Committee questioned whetherAssistant Ministers shouldhave the right to vote in the Council when replacing a Minister. The view wasexpressed that voting in the Council should be kept to a minimum as far as possible.

I t w as also noted that few other small jurisdictions similar to Jersey had

Assistant Ministers. The view was expressed that the number of Assistant Ministers in the Jersey system should be kept as low as possible in order to reduce the size of the Executive relative to the Assembly;

5. Role of H.M. Attorney General in the Council of Ministers (2.6) - The Committee noted that thedraftreport stated that H.M.AttorneyGeneral

would be entitled to attend all meetings of the Council. The Committee, with

reference to its Act No. A2 of 27th June 2002, recalled that it had discussed this matter with H.M. Attorney General and had put forward the view that the position of H.M. Attorney General as an impartial adviser to the States would be compromised by being too closely associated with the Council of ministers. It was suggested that the term entitled' should be removed in favour of the term invited'. It was felt that H.M. Attorney General, having received the agenda for a meeting, might indicate to the Chief Minister that it would be appropriate for him to attend a particular meeting when legal or constitutional advice was required. However, an alternative view was also expressed, namely that H.M. Attorney General should have the right to address the Council whenever he felt it appropriate to do so. The Committee agreed that it was not possible to resolve this issue at this stage and that it required further careful consideration;

6. D ecision making in the Council of Ministers (2.8) - The Committee agreed that this paragraphneedtobe clarified to distinguish between those decisions which were the responsibility of the Council, namely the overall policy of the Executiveand matters cutting acrossministerial boundaries, and detailed Executive decisions which were the responsibility of Ministers. Furthermore, the new Statesof Jersey Law wouldhaveto make provision for the delegation of statutory or other functions to Assistant Ministers or officers oftheDepartments;
7. Draft legislation to be considered by the Council (2.14) - The Committee wishedto clarify that theCouncilshouldnotberequired to consider all items of legislation. The Council might otherwise be overloaded withunnecessary detail. TheCouncil would beconcerned with principal legislation;

(viii) Subordinate legislation (2.15) - The Committee noted that there was a

question regarding the making of Regulations which might continue to be made by the States.

O r d er making powers under principal legislation would be conferred on

Ministers. The Committee agreed that the review of the parameters within which Orders were made, mentioned in this paragraph, should be conducted by the States as well as the Council.

T h e introduction of a procedure for affirmative resolution for some sorts of

subordinate legislation needed further detailed consideration.

9. O rders in Council (2.16) - The Committee expressed the view that the Assembly should be consulted regarding legislation, or proposals for legislation, emanating from the United Kingdomor Europe, particularly where primary legislation resulted. The current situation was felt to be unsatisfactory as there was no clear list available of Orders in Council affecting the Island;
10. Nomination of Ministers(3.4) - The Committeefelt that further thought was requiredregarding the issue of electing Ministers to the Council. It was suggested that thereshouldbe a secret ballot, the results of which would only be disclosed to the Chief Minister. In this way, he/she mightdiscover whether a certain candidate wasunacceptable to the majority ofmembers;
11. Publication of Decisions of the Council of Ministers (3.10) - The

Committee agreed that this issue required further consideration. It was aware that,

in the United Kingdom, Cabinet Minutes were not made public but that most other jurisdictions were much more open in disclosing information to the public. It was felt that decisions of the Council should be made open to public access but there should be various grades of timing.

T h e Committee also discussed the question of whether States members

should have greater access to information about the Council's decisions. It was agreed that this issue should be addressed in the review currently being undertaken by the Committee of the Code of Practice on Public Access to Official Information;

12. Power of the Chief Executive (3.11) - The Committeewasaware that many membershad expressed concern at the extentofthe authority over other directors which the Chief Executive seemed to be granted in the report. The Committee wished to make clear that when a Minister's function had been exercised on his/her behalf by an officer, the Minister took responsibility fortheofficer'sactions,not the Chief Executive. The Director was answerable to his Minister in any actions delegated to him/her, not to the Chief Executive;

(xiii) Role of Minister in relation to the Council of Ministers (4.4) - The Committee noted that the paragraph made clear that, while the Council of Ministers would take macro' responsibility for policy, which Ministers

were obliged to follow or resign (subject to various exemptions), the legal responsibility for each Department or Ministry, would be with the Minister;

14. Appointment and Dismissal of Ministers (5) - The Committeenoted that the proposed system was a compromisesolutionin that while the States was required to approve the appointment of Ministers the Council was empoweredtodismissone of its number;
15. Appointment of Assistant Ministers (6.1) - The Committeewasof the opinion that the appointment of Assistant Ministers shouldbe subject to approval by the States;
16. Areas of delegation (6.2) - The Committee agreed that a provision similar to Article 36Aof the States of Jersey Law1966 would berequired in the new States of Jersey Law to enable a Minister to delegate to assistant ministers and/or officers of the department the exercise of functions prescribed by the Law;

(xvii)  Assistant  Ministers  serving  more  than  one  Ministry  (6.4) - The

Committee expressed the view that it was not feasible for an Assistant Minister to serve more than one Ministry. The Policy and Resources Committee's report mentioned the possibility of conflicts of interest but made no mention of how these might be resolved;

(xviii)  Consultation with the Privileges and Procedures Committee (9) - The

Committee noted that the current wording of the report could be taken to imply that the Privileges and Procedures Committee agreed with the proposals. It agreed that it should be made clear that the Committee had been consulted in the preparation of the report and proposition and would be producing its own comments in due course;

19. Appendix One - Summary - The Committeeagreed to defer consideration of AppendixOne until such time as its abovecommentson the report and

proposition had been considered by the Policy and Resources Committee;

20. Appendix Two - Guidance and Procedure for Ministers - The Committee agreedtodefer consideration of this appendix until theissueof collective responsibility had been resolved. Italso felt that the term public appointments' need further clarification.

The Committee expressed its appreciation of the work done by Messrs R. Whitehead and S. Drew, Law Officers Department, in preparing comments on the above report and proposition. It requested the Executive Officer to submit its comments to the Policy and Resources Committee.

The Greffier of the States was directed to send a copy of this Act to the Policy and Resources Committee.