Machinery of Government - establishment of Scrutiny Panels and Public Accounts Committee

STATES OF JERSEY

r

MACHINERY OF GOVERNMENT: ESTABLISHMENT OF SCRUTINY PANELS AND PUBLIC ACCOUNTS COMMITTEE

Lodged au Greffe on 10th June 2003

by the Privileges and Procedures Committee

STATES GREFFE

PROPOSITION

THE STATES are asked to decide whether they are of opinion

to r e fer to their Act dated 28th September 2001 in which they agreed that there should be established a

small number of scrutiny committees comprised of members of the States not involved in the Executive, and a Public Accounts Committee comprised of the chairmen of the scrutiny committees together with at least one other member of the States not involved in the Executive; and to their Act dated 26th March 2002 in which they agreed that the Privileges and Procedures Committee should bring forward for approval by the States the terms of reference, conditions and facilities for scrutiny committees and the Public Accounts Committee and –

(a ) to agree that from the date of the introduction of a ministerial system of government there shall be

established four scrutiny committees, to be known as Scrutiny Panels, with the following areas of responsibility –

(i ) C o r p orate Services, Policies and External Relations; (i i) E n v i ronment and Public Services;

(i ii ) E c o n omic Affairs and Development;

(i v ) S o c i al, Education and Home Affairs;

(b ) to agree that each Scrutiny Panel, within its designated area of policy, shall have the following

terms of reference –

( i) t o h old reviews into such issues and matters of public importance as the Panel, after

consultation with the Chairmen's Committee, may decide, and to report to the States with recommendations if appropriate;

(i i) t o c o nsider and report on the existing and proposed policy of the Executive;

( ii i) t o s crutinise all primary legislation, consider possible amendments if appropriate, and

report thereon to the States before the legislation is adopted by the States;

(i v ) t o c o nsider subordinate legislation before it is made by the States, or after it is made by a

Minister as appropriate, and, if the Panel so decides, scrutinise such legislation and report thereon to the States and the Executive with recommendations;

(v ) t o s c rutinise proposed international conventions and agreements before they are extended

to the Island;

(v i ) t o s c rutinise the draft annual Resource Plan and Budget and other financial proposals of the

Executive and report thereon with recommendations;

(v i i) t o l ia ise with the Public Accounts Committee through the Chairmen's Committee to ensure

appropriate co-ordination of the scrutiny function;

(c ) to agree that –

( i) e a c h Scrutiny Panel shall be comprised of a Chairman and four other members of the

States who are not members of the Executive;

(i i ) t h e C hairmen of the four Panels shall be appointed by the States after the appointment of

the Chief Minister, the Ministers and the Chairman of the Public Accounts Committee;

(i ii ) n o m ember of the States shall be a member of more than one Scrutiny Panel;

(d ) to agree that the terms of reference of the Public Accounts Committee shall be as follows –

(i ) t o r e ceive reports from the Comptroller and Auditor General on the results of the audit of

the annual accounts of the States, associated organisations and companies as well as the annual accounts of the Social Security Fund, the Social Security (Reserve) Fund and the Health Insurance Fund and to report to the States on any significant issues arising from these audits;

( ii ) t o r eceive reports from the Comptroller and Auditor General on the adequacy of the

corporate governance arrangements within the States and associated organisations and companies;

( i ii ) to receive reports from the Comptroller and Auditor General on the results of

investigations into the value for money achieved by States' Departments and other public bodies, and to report to the States on any significant issues arising;

(i v ) t o a s sess whether public funds have been applied for the purposes intended by the States,

that extravagance and waste are eradicated and that sound financial practices are applied throughout the States administration;

(v ) t o h o ld hearings and to send for persons, papers and records as required for such hearings,

and to report to the States as appropriate on the outcome of any such hearings;

(e ) to agree that the Chairman of the Public Accounts Committee, who shall not be a member of the

Executive, shall be appointed by the States after the appointment of the Chief Minister and the Ministers and that the Chairman shall have the power to co-opt onto the Committee other members of the States not involved in the Executive for such periods as he or she may decide;

(f ) to agree that the Scrutiny Panels and the Public Accounts Committee shall have the power to call

for any papers or records relevant to the matter under consideration and the power to require any person to attend before them;

(g ) to agree that the proceedings of the Scrutiny Panels and the Public Accounts Committee shall be

covered by parliamentary privilege so that no civil or criminal proceedings may be instituted against any member or officer, or against any person giving evidence to a Panel or the Public Accounts Committee, for any act done, or words spoken before, or written in a report to, or by, the Scrutiny Panels or Public Accounts Committee;

( h ) to agree that the Chairman of the Public Accounts Committee, the Chairmen of the Scrutiny

Panels, and 2 other members of the States not involved in the Executive appointed by the States, shall form a Chairmen's Committee to –

( i) a c t as a co-ordinating body for the work of the Public Accounts Committee and the

Scrutiny Panels;

( ii ) o v e rsee the prioritisation and allocation of resources to the Public Accounts Committee

and the Scrutiny Panels;

( ii i) r e p ort to the Privileges and Procedures Committee on the operation of the scrutiny

function and to make recommendations for change as appropriate and, in particular, no later than 12 months after the establishment of the Scrutiny Panels, to make recommendations on the desirability or otherwise of introducing a mechanism to enable the call-in' of Executive decisions;

(i ) t o agree that adequate financial and manpower resources shall be made available to the Public

Accounts Committee and the Scrutiny Panels from the date of their establishment as set out in Appendix Five to

the report of the Privileges and Procedures Committee dated 10th June 2003;

(j ) t o a gree that two shadow Scrutiny Panels shall be established in advance of the introduction of the

ministerial system of government, once appropriate resources have been identified, and to request all Committees of the States to provide the fullest support and co-operation to the shadow Panels to enable them to operate effectively;

(k ) to charge the Privileges and Procedures Committee to bring forward for approval the necessary

legislation, as part of the new States of Jersey Law and Standing Orders of the States of Jersey, to give effect to the proposals in paragraphs (a) to (h) above.

PRIVILEGES AND PROCEDURES COMMITTEE

REPORT CONTENTS

Section

Background

Introduction 1 Scrutiny and the Clothier Report 2 Privileges and Procedures Committee: Terms of Reference 3 Research into scrutiny in other jurisdictions 4 The Committee's proposals for the establishment of Scrutiny Panels

Introduction 5 The number and structure of Scrutiny Panels 6 The terms of reference of Scrutiny Panels 7

1. H o lding reviews into issuesand matters of public importance 8
2. C o nsidering the policy and proposed policy oftheExecutive 9
3. S c rutinising primary legislation oncelodged au Greffe' 10
4. C o nsidering subordinate legislation 11
5. S c rutinising proposed international conventions and agreements 12
6. S c rutinising the annual draft Resource Plan and Budget 13
7. L ia ising with the PAC through the Chairmen'sCommittee 14 The powers and privileges of Scrutiny Panels 15 Composition andappointment of Scrutiny Panels 16 The Chairmen'sCommittee 17 Dedicated staffing resources for scrutiny 18 Specialist and consultancy advice 19 Recordingand transcription ofevidence 20 Publication of reports 21 Facilities for Scrutiny Panels 22 Funding for Scrutiny Panels 23 Legaladvicefor Scrutiny Panels 24

Call-in' of Executive decisions 25 Measuring the results of scrutiny 26 Conditions for effective scrutiny 27 Shadow Scrutiny Panels 28 Public Accounts Committee

Introduction 29 Role of the Public Accounts Committee and relationship with the 30

Comptroller and Auditor General

Terms of reference of the Public Accounts Committee 31 Membership and method of appointment 32 Conduct of meetings 33 Powers and privilege 34 Outcome of the Public Accounts Committee's work 35 Resources for the Public Accounts Committee 36 Relationship between the Public Accounts Committee and the Scrutiny 37

Panels

Conclusion 38 SUMMARY OF RECOMMENDATIONS

Bibliography

Appendix One - Experience of scrutiny in other jurisdictions

UK local government experience of scrutiny I.1 Lambeth Borough Council I.2 Birmingham City Council I.3 Experience of scrutiny in a national context I.4 Scott ish Parliament I.5

Appendix Two – Flowchart showing proposed legislative process for primary legislation

Appendix Three – Examples of Powers in other jurisdictions

Australia Capital Territory – Standing Orders III.1 Canada – Legislative Assembly of Alberta – Standing Orders III.2 Indian Lok Sabha (Lower House) – Standing Orders III.3 Nambia – Extract from the Namibian Constitution III.4 New Zealand – House of Representatives – Standing Orders III.5 Malta – House of Representatives – Standing Orders III.6 U.K. House of Commons – Factsheet produced by the Parliament III.7 Appendix Four – Call-in' of Executive decisions

Appendix Five – Resource Requirements

BACKGROUND

1. I n t roduction

1. F o llowingthepublication in January 2001 of the Reportof the ReviewPanelon the Machineryof GovernmentinJersey (the Clothier' Report), the States took the decisionon the 28th September 2001 to move from a committeeto a ministerial system ofgovernment combined with a systemof scrutiny. The Privileges and Procedures Committee was later established to, amongst other things, bring forward detailed proposals on scrutiny.
   2. S c r utiny and theClothierReport.

1. O n 2nd March1999, the States agreed toappoint a body to undertake a review of all aspects ofthe machineryofgovernmentin Jersey. The Clothier Reportwaspublished in January 2001.
2. T h e Report stated that "an effective democracy requires not just an Executive, but the balance of a strong Assembly which holds the Executive to account and scrutinises its actions as well as contributing to the formation of policy..it is not necessarily adversarial or destructive." The Reportrecommended " the setting up of 3 or 4 Scrutiny Committees to cover between them the whole range of government functions"
3. O n the issue of public expenditure, the Panel recommended that "the Chairmen of these Scrutiny Committees should combine with one other member of the States to form a Public Accounts Committee to oversee and scrutinise public expenditure with powers sufficient for those purposes. This Public Accounts Committee should have the right to co-opt appropriate persons, not being members of the States, to assist them" and further recommended "the institution of the post of Auditor General as an officer of the States with powers to provide the Public Accounts Committee with an investigative capacity"

3. P r i vileges andProceduresCommittee:TermsofReference

3.1 T h e Privileges and Procedures Committee was established on 26th March 2002. In addition to other terms of reference, the Committee was charged with developing and bringing forward, for approval by the States, the terms of reference, conditions and facilities for Scrutiny Committees and the Public Accounts Committee, including the cost implications and budgetary requirements. Following the introduction of a ministerial system of government, the Committee will be charged with keeping under review the arrangements for scrutiny to ensure its successful operation in the new system of government.

4. R  es earch into scrutiny inother jurisdictions.

1. O r ganised or structured scrutiny is novelto Jersey. The Committee felt that it would be prudent initially to undertake visits tosome jurisdictions wherescrutiny is practised to gain the benefit oftheir experience and consider if any of them would present a suitable model for Jersey. Several seminars werealso held to give membersand officers the opportunity of hearing of the experienceof scrutiny elsewhere.
2. F iv e membersof the Committee as previously constituted visited the House of Commons in April 2002, to inform the Committeeas to the operation of Select Committees.SelectCommittees were witnessedin action andmeetingswere held with Clerks involved inthepreparationof work plansandcommissioning research.
3. In June 2002 the President and formerSenatorStein visited the Scott ish Parliamentforaninsight into the Committee system of Scrutiny in that Parliament, as well as taking advantageofthevisit to learn about the production of Hansard, members' questions, information services provided to membersof the Scott ish Parliament and the public, andstandardsand procedures relating tomembers' conduct. There was an opportunity towitness a Committeeinactionas well as the Scott ish Parliament itself in plenary session.
4. A seminarfor States members and Chief Officerswas held in July 2002, atwhichMr. Chris GameBA, MA, Institute of Local Government Studies, University of Birmingham made a presentation on

Scrutiny – Experience from U.K. Local Government'. This event was very informative in identifying the role of

scrutiny in the English local government context, together with the practical considerations necessary in operating  such  a  system.  The  seminar  provided  an  opportunity  for  attendees  to  discuss  issues  and concerns surrounding the process of scrutiny during a breakout group session.

5. T h e Presidentand Deputy LeR.G. Hérissier visited LambethinAugust2002 and metthe Chair of the Scrutiny Panels andtwo officers supporting the Panels. It wassuggested that it wasimportant not to overload  the programme of work which should remain  flexible  to be responsive  to changing circumstances. In addition they were advised that it was necessary to provideappropriate training. Itwas noted that all Lambethcouncillorsworkingon Panels had receivedtraining.
6. In October2002, three members and theExecutive Officer of the Privileges and Procedures Committee visited Birmingham City Council to examine the scrutiny process in place there.The Scrutiny Office is a semi-independentbodyofthe City Councilwhose role istomonitor the performance of the City Council. This is achieved by regularly checking new decisions being made as well as by reviewing existing polices, proceduresand practices in an attempttocontinuallybringabout service improvements.The Committees are primarily concerned with the agreed Council policies, practices and procedures and do not deal with individual complaints which are dealt with by the City Council itself. The delegation observedtheHealth and SocialServices Scrutiny Committeein action and wasstruckby the apparent emphasis  on reviewing  audit and  inspection  information. Members who visited  Birmingham were concerned bytheagenda and officer led approachwhichseemed to replicate the previous Committee system, a model which the Committee would notwanttorecommend for Jersey.
7. In February and March2003, the Committee hosted two seminars formembersand officers, drawingon the experience ofguestspeakers from Lambeth,Birmingham,and the Scott ish Parliament. The latter gave an insight of scrutiny in a national legislature but also referred tolocalgovernmentissues in Scotland and presented someuseful references for theproposals contained further on in this report.
8. I n May2003 five membersof the Committee visited the Greater London Assemblywhose principal function is to scrutinise theworkof the MayorofLondonwho exercises wide executive powerswithin the mattersforwhichheisresponsible.
9. A summary of someof the Committee's research concerning procedures inother jurisdictions isgiven in Appendix One. The Committee is sensitive to the desire expressed by a number of members that a precise, detailed, structure for scrutiny should bedeveloped to ensure that the system can withstand pressure. Nevertheless this desire mustbecounterbalancedwith the incontrovertible evidence from the Committee's research whichshows that successful scrutiny, whilstobviously being adequately resourced, should operate within a flexibleframework,shouldnot be overly-ambitiousat the outset and shouldbe capable of evolving gradually. Once established, Panels will need todecide how they wish toundertake their work within thetermsof reference agreedby the States. It is clear that systems in other jurisdictions have hadto be adapted in the firstmonths or years of their operation. It isvital that this flexibility is retained in Jersey within the broadframework that will be established. In addition itis inevitable that successive Chairmen and members will have different approaches to themannerinwhich they approach scrutiny and they mustbegiven the flexibility todo this within a broadframework that ensures a robust system. TheCommittee is confident that ithasachieved this balance in its proposals.

THE COMMITTEE'S PROPOSALS FOR THE ESTABLISHMENT OF SCRUTINY PANELS

5. I n t roduction

5.1 A l though the Committee has considered scrutiny systems in a number of jurisdictions it is convinced that an appropriate system should be designed for the Island which does not simply replicate systems in place elsewhere. The Committee has no desire to simply import the U.K. local authority scrutiny system as Jersey has its own unique constitution exercising quasi-national responsibilities, including enacting its own legislation, whilst exercising some functions that are more akin to local government responsibilities. Whilst learning from elsewhere a template for scrutiny cannot simply be lifted from other places but must be adapted to the needs and context of the Island.

6. T h  e numberand structure ofScrutinyPanels

1. T h e Committee does not consider that it would be appropriate to mirror the system inplaceinother jurisdictions  where a  scrutiny  or select  committee shadows' every  single  Ministry  or government department. This would clearly be far too complexand costly a structure for a small legislature and there would be a practical difficulty, assumingthenumberofmembersremains the same,asthere would be insufficient non-Executive members to sit on the Panels.
2. T h e Committee proposes that there should befourpermanent Scrutiny Panels, namely –

• C o r p orate Services, Policies and External Relations;

• E n v i ronment and Public Services;

• E c o n omic Affairs and Development;

• S o c i al, Education and Home Affairs.

T h is structure is identical to the one proposed in the Committee's First Report presented to the States on

22nd October 2002 except for the addition of External Relations' to the first proposed Panel which has been added following comments received during the consultation period.

3. It i s possible that changes will need tobemadeto the structure proposed above in thelightofexperience and theCommittee proposes that adequate flexibility shouldbebuilt into the new States of Jersey Law and Standing Orderstoenable the States tomakechangestothenumber of Panels and their areasof responsibility as appropriate.

7 T h e terms of reference of Scrutiny Panels

1. T h e Committee believes that eachof the four Scrutiny Panels listed above, within its designated areaof policy, should have the following termsof reference –

1. to hold reviews into such issues and matters of publicimportanceas the Panel, after consultation with the Chairmen'sCommittee,may decide, and to report to the States with recommendationsifappropriate;
2. t o consider and report on the existing and proposed  policy of the Executive;
3. to scrutinise all primary legislation, considerpossibleamendmentsif appropriate, and report thereon to the States before the legislation is adopted by the States;
4. to consider subordinate legislation before it is madeby the States, or after it is made by a Minister as appropriate, and, if the Panel so decides, scrutinise such legislation and report thereon to the States and

the Executive with recommendations;

5. to scrutinise proposed international conventionsandagreementsbefore they are extended to the Island;
6. t o scrutinise  the draft annual Resource Plan and Budget and  other financial  proposals of the Executive and report  thereon  with recommendations;
7. to liaise with the PublicAccounts Committee through theChairmen's Committee to ensureappropriate co-ordination of the scrutiny function.

2. E a ch of thesetermsof reference is expanded below.

8. ( a ) H o lding Reviews into issues andmattersofpublicimportance

1. T h e Committee believes that the holding ofreviews into issues of public importance will represent one of the most significant andimportantpartsof the workof the Panels. This role is akin to the type ofwork undertaken  by Select  Committees at the  House  of Commons and by similar  Committees in  many Parliaments  around the  world.  In the  United Kingdom reports  from  such Committees often  attract considerable  media  attention  on publication  and  can prove to be extremely  influential  even  if the Executive is not obliged to follow anyof the recommendations.
2. P a nels will preparean annual, orsix-monthly, plan of such reviewsinadvance.Thetermsof reference require the Panel to consult with theChairmen'sCommittee(see Section  17) before finalising topics for review toensure that the overall programmeofthe Panels is co-ordinated.In addition, as specified later in this report, Scrutiny Panels will need to adopt a realistic and achievable work programmewithin the financial andmanpowerresourcesavailabletothem.
3. E a ch review is likely to take a period ofweeksor even monthsand Panels will undoubtedly wish to hear evidence from interested personsorgroups,undertake their own research, call for papers and evidence from Ministers and officers ofdepartments, and consult widely before drawing up a final report with recommendations.Reviews are likely tobe a useful means of engaging the public, professional bodies and special interestgroups in theworkoftheStatesand it is hoped that someofthetechniques the Committee hasseenin use inother places, such as holding meetings in different venues and organising civil  participation  events and seminars, can  be used  in  Jersey.  By simply  announcing that  it  is to undertake a particular investigation a Panelmaypromotepublicdebateonthe subject at issue and it is hoped that the workof the Panels will allow more direct contact between membersof the public and the States.
4. T h e Committeebelieves that Scrutiny Panels will be at theirmost effective if they are able to conductin- depth  reviews  into  issues of their  choice and  produce  a  set  of well-reasoned and  well-researched conclusions andrecommendations.ThePanelsmaybe able to concentrateon issues in a way that would be difficult for the Executiveto do becauseof the pressures of managingday-to-day administration.
5. A l thoughit is hoped that the overall programmeofreviews will be planned inadvance it will alsobe important forthe Scrutiny Panels tobe able to hold ad hoc reviews into issues that arise at short notice and that are ofsignificantpublicconcern.These may, on occasions, besuitable for a sub-committeeor rapporteuras explained in paragraph 16.4 below.
6. S c rutiny Panels will produce reports following their reviews and these will bepresentedto the States. In eachcasethePanel will specify whetherornotitwishes the Executive to respond. It is anticipated that the response of the Executive will be sought in the majority of cases and this will be required within a period not exceeding 8 weeks.

7. W hen requested, the response of the Executive will berequiredtoset out in full its response to the issues and recommendationsmadeby the Scrutiny Panel's report. TheExecutive will alsoberequired to explain what action, ifany, it intendsto take to implement the recommendations.
8. A Panel,oran individual member,maywish to seek a States' debate on a particular report if they remain unsatisfied with the responseof the Executive. Itmust nevertheless be stressed that the recommendations of Scrutiny Panels will notbe binding ontheExecutive as this would, effectively, leadto the creationof two separate forms of executive power in the Island. It is, however, likely that political and public pressure will gosomeway to ensuring that the workofthe Panels is carried through.Members will be aware that SelectCommittee reports from the U.K. House ofCommons often receive extensive media coverage and it is likely that reports from Scrutiny Panels will bewell reported in thelocal media and have a major impacton the Executive.
9. It will beimportantfor Scrutiny Panelsto follow uptheir reports at regular intervals toensure that the recommendationshave not been ignored, especially if the Executivehas given anyundertakings in its responseto take certain action. Officers workingfor the Panels will needtomaintainadequate bring forward' systems to enableregularreviews.Itissuggested that Panels shouldproduceanannual report for theStatessummarising their work over a 12 month period.

9. ( b ) C o nsidering thepolicy and proposed policy oftheExecutive

1. T h e Clothier Reportput forward the recommendation that Scrutiny Panels should have an important role in overseeing the policy and proposed policy of the Executive.
2. S c rutiny Panelsmay wish toconsiderexisting policies oftheExecutiveormay be invited to comment on proposed policies. Unlike the reviews undertaken inaccordance with part (a) of the termsof reference, which will beon issues and topics chosenby the Scrutiny Panels themselves, the review of policy and proposed policy oftheExecutiveunder this part of the terms of reference will be in response to existing or proposed policies of the Executive. It is inevitable, of course, that someof the reviews held by Scrutiny Panels under part (a) above will, directly or indirectly, examine and comment on the policy of the Executive andthere will, therefore, besome overlap between these twopartsof the termsof reference. Furthermore, it is hoped that there can be co-ordination, without overriding the prerogatives of the Comptroller and AuditorGeneral, between auditand scrutiny so that audit reports supportscrutiny reports and vice versa, as explained inSection 37below.
3. E x perience in other jurisdictions hasshown that pre-scrutiny' of decisions can give scrutinycommittees and panels real influence. Those involved in scrutiny feel able to participate in thedecision-making process and have their voiceheard.It is likely that, with the introductionof a more formal system of consultation papers (similar to U.K. Green' and White' Papers), Scrutiny Panels will be invited to comment on and scrutinise draft policies in the course of development. This will also ensure that memberswho are notin the Executivehave new and positivewaysof being involved in policy formation and are able to contribute tothe policy debate.
4. S c rutiny Panels will nevertheless need to consider the extent to which they become involved in scrutinising and consideringdraft policies in the courseofpreparationby the Executive.Althoughthere could, if the present absenceof political parties continues, be some merit in seeking to obtain a consensus through consultation as set out above, the Committee was also interested to note, during the seminar on 28th March2003, that Committeesof the Scott ishParliamentdo not tend toconsider draft policies, as they take the view that it can later be claimed, when the Committees wish to comment on the implementation of the policy, that the lack of any critical comment at the draftstage amounted to a tacit endorsement of the policy. Itmay also be difficult for the Scrutiny Panels to seek the viewsof the public and interested bodiesat a time when the Executive itself isseekingcommentsduringtheconsultation stage. The Committee is neverthelessof the view that pre-scrutiny' is highly desirable aslong as it is made absolutely clear that it does notimplyendorsementoftheproposed policies.
5. T h e Committeebelieves that it cannotbeunduly prescriptive abouttheway in which future Scrutiny

Panels should interpret this part of the terms of reference and the Committee does not intend to propose that

Scrutiny Panels should be required to scrutinise and comment on all draft policy proposals of the Executive even when requested to do so. The Committee is not convinced that failure to comment critically on a draft policy would be seen as tacit approval in the manner described above but this is a matter where Scrutiny Panels will need to develop and adapt working practices in the light of experience.

10. ( c ) S c rutinising primary legislation oncelodged au Greffe'

1. I t isgenerallyaccepted that the present method of dealing with primary legislation in the States is unsatisfactory. The followinggeneral criticisms of the present systemmay be made –

• c o m plicated legislation is frequently not subject to detailed analysis;

• th o s e promoting the legislation are not always required to explain the effect of particular provisions;

• t h e re is frequently a very short delay, sometimes no more than the minimum two week lodging period, between the lodging of the legislation and its adoption, and almost invariably no delay between adopting the draft in second reading and adopting it in third reading;

• t h e p rocess for dealing with amendments does not work as well as it might. Often amendments are

lodged late, or presented with the minimum of 4 days' notice, and on many occasions residual concerns about the draft are expressed during the debate without any formal amendment being presented, meaning that the draft is either adopted or rejected but not developed.

2. T heestablishment of a systemof scrutiny provides the opportunity for structured scrutiny of primary legislation. It is possible that policyproposals leading up to the drafting of the legislation will have been subject to comment by Scrutiny Panels but the Committee is proposing that Standing Ordersshould provide that any draft Lawor draft TriennialRegulationsshould systematically be referred to the relevant Scrutiny Panel for consideration beforethe legislation is finally adoptedby the States.
3. T he proposed legislative process would operate as follows. Afterany particular draft LaworTriennial Regulations had been lodged au Greffe' a date would be fixed for a debate on the general principles of the draft.Thisdebate would be similar to the debate currently describedas the debate onthepreamble', and would allowmembersto discuss issues of principle in relation to the underlying rationale ofthedraft Law or TriennialRegulationsas a whole,or issues of principle raised by particular provisions within the draft. Standing Orders would allow greater latitude to members than at present tocommenton particular Articles at this stageso that concernscouldbenoted.
4. A t the endof this debate the Assembly would vote in the normalway on whether or not toapprove the principles of the draft. If the States rejected the draft it would clearly progressno further butit can be assumed that,as at present,most items will pass this stage.
5. A fter adoption of the principles the draft would be referred systematically to the relevant Scrutiny Panel for a Committee stage.Asmembersmaybeaware, Jersey isalmostuniqueinnothaving such a stage in dealing with legislation and the Committee believes that this stage would gosomewaytoaddressing the present defects listed in paragraph 10.1 above.Foritems such as minor amending laws, the Scrutiny Panel might decide very quickly that no detailed consideration was required and the matter couldbe returned to the States with a brief report to that effect.On occasions the Scrutiny Panelmay even be able to make this decision before a date isfixed for a debateon the principles.Majorand/or controversial items (such as, for example, a newdraft Planning or Firearms Law)couldbegiven detailed consideration bythePanel.
6. S crutiny Panels would beexpected to call the relevant Minister and officers of the instructingDepartment so that they could give details of the reasoning behind the content during an Article by Article consideration of the draft Law. Those promoting the draft will need tobepreparedtobequestioned as to

exactly what each Article means, and to tackle any points of principle or difficulty which arise on each Article. It

is likely that Panels would also wish to hear the views of the members of the Law Officers' Department and/or the Law Draftsman's Office on the draft. Panels could also, in the normal way, invite comments from any interest groups, professional bodies or member of the public who wished to comment on the draft legislation and may, on occasions, wish to commission their own research.

7. T he Scrutiny Panel will be able to consider whether certain Articles in the draftshouldbeamended during this detailed consideration stage. Theseamendmentscouldbe tabled by –

(i ) t h e Panel itself;

(i i) b y the Minister proposing the draft if he/she accepts that changes are needed; or (i ii ) b y any other States member with concerns about particular aspects of the draft.

B e c a use  Scrutiny  Panels  will  be  made  up  exclusively  of  non-Executive  members  of  the  States  the

Committee does not believe that the Panel considering the draft legislation should have the power to incorporate amendments into the draft unless the amendments are accepted by the promoter of the legislation (normally the Minister) although it is hoped that many amendments may be accepted by the promoter at this stage.

8. In order to avoid undue delay, some mechanism will need tobe established in the revised Standing Orders for a timetable tobe agreed bythe States for the committee stage. Atthe conclusion of this stage the draft legislation would be referred back to the States accompanied by the report ofthePanel.Ifamendments had  been  accepted  by the  promoter  of  the  legislation  during  the  committee stage these  would  be incorporated in the revised version of the draft legislation whichwouldbe clearly marked to show the changes.Amendments tabled bythePanel itself, orby an individual member,whichhad been considered during the committee stage, butwhich had notbeenacceptedby the promoter, would be included as an Appendix to the revised draftif the Panelormemberconcernedwishedtoput the amendmentto the full States Assembly for consideration. Theseamendmentswould be accompaniedby the reportof the Panel and, in the case of anamendmentby an individual member,bythereportof that memberaswell.
9. A fter the revised draftwas referred back to the States therewouldbe an appropriatedelaytoenable members to consider the changes (if any) and, if they wished, to present further amendments. The Committee believes it is important for membersto retain this final opportunity to present amendments even though itishoped that memberswhohaveconcernsaboutcertainparts of a piece of draft legislation will seek to engage during the Committeestagewhereamendments will begiven detailed consideration and will receive the commentsof the Scrutiny Panelwhen they are referred to the States.
10. The final stagesof dealing with the draft legislation would be similar to the present second reading' process although there wouldobviouslynotbe a further debate on the general principles of the draft. The Articles would be considered individually and amendments that had not been acceptedby the promoter during the Committee stage wouldbe debated in theusualway as at present.Once all Articles had been adopted, andonce all amendmentshadbeendealtwith,thedraft would begiven its final approval in third reading'. A flowchart setting out the proposed processof dealing with draftLaws and Triennial Regulations isincludedat Appendix Two.
11. The  Committee accepts  that  this  proposed  method of dealing  with  draft  legislation  will  require considerable work by members and by the Scrutiny Panels. It will, nevertheless, addresssomeof the present concernsabout the passageof primary legislation and greater scrutiny will beof benefit in the new ministerialsystemwhen the Minister concernedmaybe the only politician to havehadinputduring the draftingprocess,unlikethepresent situation when all members of a Committee consider drafts.
12. It is accepted that the passing of legislation may take longer than at present but this should beviewedas a positive change because items will be scrutinised in a muchmoresystematicway.Theremay need to be a mechanism for agreeingthe passage ofitemswhich are considered to be urgent but these are likely tobe

rare, especially as all draft Laws must obtain sanction by the Privy Council. This does, of course, mean that new

Laws cannot be enacted at very short notice.

11. ( d ) C o nsidering subordinate legislation

1. S ubordinate legislation (principally  Regulations made by the States  and Orders, currently made by Committeesbutwhich will bemade by Ministersin the new system of government) is usually less significant and far-reaching than primary legislation that requiresRoyalAssent.
2. T heCommittee considered whether all subordinate legislation shouldbereferred to a Scrutiny Panel before beingmadebutconcluded that this was likely to beimpractical and unnecessary.Manyitemsof subordinate legislation relate toextremely minor and routine items and the rationale behind inserting an Order-makingpower in a principal law is that the matter does not need the involvementof the entire States.
3. T here are nevertheless someitemsof subordinate legislation that maybe controversial and that would benefit from closer scrutinyand review than they receive atpresent.In relation to Regulations (that are made by the States) it is proposed that Scrutiny Panels should be able torequest that they bereferredfor a Committee stageafterthedebateon the principles in a similar way to the compulsory referral described in Section 10 above for primary legislation. In practice it is unlikely that this would happen in many instances butthe option wouldbe available to the relevant Scrutiny Panelif it hadconcernsabout a particular item or if it wasaware that an item was particularly controversial.
4. F or Orders, which in the ministerial system will bemadeby individual Ministers, it isproposed that Scrutiny Panels should simply decide, after the Order is made and tabled in the States, whether ornot they wishto review it. If a Scrutiny Panelshould decide to do so, and if, after its inquiries, it has serious concernsabout the content oftheOrder that cannotbe resolved followingdiscussions with theMinister, a proposition to annul the Ordercouldbelodged au Greffe' by the Panel and debated bythe States inthe normal way. In addition individual memberswould,of course, retain the right to bring a proposition to annul the Order as atpresent.

12. ( e ) S c rutinising proposedinternationalconventionsandagreements

1. T he current methodof dealing with the extensionto the Island ofnewor revised international conventions and agreements, with the majority of decisions apparently madeby the Policy andResourcesCommittee after consultation with the LawOfficers,means that the impactof these agreementsis not subject to scrutiny by the majority ofmembersof the States. Atpresentmanymembers are unawareofdecisions that have been taken until the annual, orsix-monthly, report on international conventionsandagreements is presented to the States manymonths later.
2. T heestablishmentof the Scrutiny Panel structure provides the ideal opportunity forsuch agreements to be scrutinised in a more rigorous andopen manner. Itis proposed that,unlessthereis a manifest urgency (in whichcasetherelevant Scrutiny Panelshouldbe notified), nodecisionshouldbetakentorequest the extension to the Island ofany international convention oragreement until the matter has been considered by a Scrutiny Panel. It is likely that the Panel will wish to hear evidencenot only from the relevant Minister butalso from persons with an interest in the subject matter and whocouldhaveconcernsabout the implications ofthe proposed extension. If the Scrutiny Panel had serious concerns it could report to the States setting out details oftheseconcerns.
3. In relation to any European Union legislation whichis applicable, orneeds to begiven legal effect, in the Island the Committee notes that different considerations will apply depending on the nature of the legislation concerned.SomeE.U. legislation has direct effect because it falls within Protocol 3 to the Treaty of Accession and there would notseemtobe any role for scrutiny in these circumstancesasthere is nothing for memberstodoother than to beaware that such legislation exists, something that doesnot always happenatpresent.Other legislation isput before the States AssemblybecauseMember States of the E.U. are required to enact their own legislation and the subject matter requires the Island, pursuant to

Protocol  3, to have appropriate legislation. In these circumstances the function for the Scrutiny Panels would be

similar to the process used for other legislation although the consideration of the principle underlying the legislation would not generally be a matter to consider if Jersey, as a matter of law, was committed to having such legislation in place. There will be some occasions when the Executive in Jersey considers that E.U. legislation ought to be adopted pursuant to the European Communities Legislation (Implementation) (Jersey) Law 1996, not because the E.U. legislation concerned applies or needs to be enacted, but because the Executive considers that it is desirable for the Island. In these circumstances the normal scrutiny processes for subordinate legislation, as set out in Section 11, would apply.

13. ( f) S c r utinising theannualdraftResource Plan andBudget

1. A lthough, asmentioned in paragraph9.4above, Scrutiny Panelsmay wish to exercise caution when deciding whetheror not toconductin-depth inquiries into draft policies of the Executive, the Committee is proposing that the draft annual Resource Plan and Budget and other financial proposals of the Executive shouldbe subjected to systematic scrutiny before they are presented tothe States.
2. W hatever method is used inthefuturefor prioritising resources, the process is likely to be a complexand lengthy task involving discussions over a protracted period betweenMinisters and senior officers. Once the final version ofthe Resource Plan andBudget are presented to the States for approval it will therefore always, in practice, be difficult for non-Executivemembers to proposeamendmentseven if these will, of course, continue to be possible in theory. The Executive will rightly be able to claim that the final Resource Plan and Budgetare the product of a lengthy and systematic process, taking dueaccountof income forecasts and expenditure requirementsand that they are, as such, a complicatedjigsaw' that should notbedismantledbyamendments.
3. A s a result it is proposed that the annualResource Plan and Budgetshouldbe subject to scrutiny before they are presented to the States. Ministersand others couldbeasked to justify the proposalsand priorities used and any concernsexpressedbytherelevant Scrutiny Panelcould be considered bytheCouncilof Ministers before the finalproposals are presentedto the States. If theCouncilwas not responsive to the concerns, the Scrutiny Panelcould present a report to the States accompanied, if the Panel considered it appropriate, byamendments.

14. ( g ) L ia ising with thePublicAccountsCommitteethrough the Chairmen'sCommittee

14.1 T he relationship between the Scrutiny Panels and the Public Accounts Committee is considered in more detail in Section 37 below. The Committee believes that, despite the important differences between the two, there will be a need for close co-ordination between the scrutiny and the audit function. Liaison through the Chairmen's Committee will ensure close co-operation, enabling programmes of work which will maximise the overall benefit of both scrutiny and audit.

15. T h e powersand privileges of Scrutiny Panels

1. E xperience from other jurisdictions has convinced the Committee that Scrutiny Panels must have adequate statutory powers to undertake their task effectively. EugeneWindsor,Clerk Team Leader from the Scott ish Parliament, speakingduring the seminar on28thMarch 2003, stated –

" C o m  m i tt e e s need adequate powers to do the job: I think this is the most important lesson that we have learned over the first session. They need the stick, they need details in the legislation of what they can do and, although they may not always have to use them, powers do need to be there, they need to have the teeth."

2. T he Committee has researched the powersgiven to similar Committees in other jurisdictions and a sample ofextractsofprocedures from other legislatures is attached atAppendix Threeforinformation. The Committee is proposing that Scrutiny Panelsshouldhave statutory power to call for anypersons, papers or records relevant to the subject of the review andto require any person to attend before them.

3. T heCommitteehasgiven careful consideration to this proposal as it isconscious that somemembersmay consider that these proposed powers are heavy-handed and unnecessary. The Committee has nevertheless concluded that scrutiny willbehamperedin the absence ofthesepowersas anything less will mean that vital papersmaybewithheld from Panels orpersonsmayrefuse to attend to answer questions. Itis interesting to note that, although theCommitteesof the Scott ish Parliament aregiven similar powersin Section 23(1)ofthe Scotland Act1998 (with criminal sanctions for non-compliance), officersof that Parliament have confirmed that the powershave, in practice, never been used astheir mere existence is sufficient toobtainwhat is required voluntarily. In Scotland there have apparently been occasionswhen there has been a reluctance to produce certain documents,dueto considerations such as commercial confidence or disclosure ofpersonalinformation, and such situations have beenresolvedbyagreement between the Committeeconcerned and the person beingasked to produce the information.There will undoubtedly be occasions whenPanels will need toconsiderissuesin private if information of a personal or particularly sensitive nature is under consideration.
4. I n the case of reluctance to appear or to produce the information, the Committee believes that the Privileges and Procedures Committee, which will continue in existence under the new system of government as a Committee representing the interests ofallmembers(whetherornot they aremembers of the Executive), shouldbeaskedto adjudicate on the matter. TheCommitteealsobelieves that clear guidelines will needtobedrawnuptocover matters suchasthemanner in which third parties should be asked to provide information to Scrutiny Panels. Although theremaybe occasions whenPanels will wish to obtain information from outside bodies in relation to a particular review or investigation itwould clearly be inappropriate forPanels to use the extensivepowers that will begivento them to obtain information that maybe commercially sensitive orotherwiseconfidential unless such information is clearly of direct relevance to the matter under review.
5. T he proceedings of Panels will be considered to be proceedings that are covered by parliamentary privilege. As a result those participating, whethermembersorthose giving evidence, will beprotected from being sued orprosecutedfor anything they say during the proceedings. Written evidencereceived by Panels, and the reports produced, will be similarly protected.
6. T hecombinationof the powers and privilege will ensure that Panels will be able to getcomprehensive, factual and truthfulinformation.