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STATES OF JERSEY
DELEGATION OF FUNCTIONS BY MINISTERS: REVIEW OF REPORTING PROCEDURES
Lodged au Greffe on 25th May 2010 by Deputy P.V.F. Le Claire of St. Helier
STATES GREFFE
2010 Price code: C P.65
PROPOSITION
THE STATES are asked to decide whether they are of opinion
to request the Council of Ministers to review the current system of reporting delegations of functions by Ministers and to report back to the States within 3 months setting out how a new system could be introduced to allow for a clearer and more readily understandable reporting of all such decisions in the future.
DEPUTY P.V.F. LE CLAIRE OF ST. HELIER
The current way that Ministerial Decisions are made, in relation to delegation of functions, has caused me to question whether or not the system is adequate for now and robust enough to guarantee it will be, for the future. In the Report below there are highlighted some of the issues that have been identified. In R.56/2010 presented to the States on 19th May 2010 by the Minister for Transport and Technical Services (see Appendix 1) we see that certain functions have been delegated, but we and the public have no clear understanding as to how and why these decisions have been taken. I am not for one minute suggesting that the Minister or his Assistant Ministers should carry out all of the functions of their departments, but what I am suggesting is that a clearer way of reporting will safeguard the political oversight that is necessary to give re- assurance to members and the public that all is well. It is clearly happening at the moment with some departments and in the Appendix one can see a thorough delegation report (R.17/2010) that was presented by the Minister for Planning and Environment earlier (see Appendix 2). I think the process needs to be standardised and the web pages need to reflect the improvements that can be made also. I also believe that the Minister must be briefed by the officers at the time that he is signing the decision and therefore the knowledge of the delegation and the rationale must be available in a Ministerial Brief of some written form or another at the time the Minister decides. If he is not availed of one, he ought to be.
I wonder if this extract from the proposition below opens any eyes!
Has the Chief Minister complied with his duty under Article 30 of the States of Jersey Law 2005 and where is the list to be found?
Moreover is the report up-to-date as time has worn on as it suggests an area of concern?
EXTRACT FROM DRAFT STATES OF JERSEY (AMENDMENT No. 5) LAW 200- (P.122/2008 Lodged au Greffe' on 29th July 2008 by the Privileges and Procedures Committee)
Article 3 – Delegation of functions by Ministers
Article 3 substitutes current Article 30 and inserts a new Article 30A in the States of Jersey Law 2005.
During the above Machinery of Government Review, the sub-committee noted confusion as to who was responsible for general and statutory functions during the temporary, or longer term, absence of the Minister. The manner in which Assistant Ministers are delegated to act for Ministers in their absence is also somewhat unclear. In practice, most Assistant Ministers deputised for their Minister when he or she was unwell or out of the Island. In most cases this extended across the entire spectrum of ministerial responsibility, although there are certain matters that cannot, in law, be delegated to an Assistant Minister. These include, importantly, the ability to make Orders and, in the absence of a Minister, these must be made by the Chief Minister or another Minister appointed by the Chief Minister to undertake the functions of the absent Minister.
The publication of delegation of functions is not very straightforward –
- Under Article 30 of the States of Jersey Law 2005 as currently drafted, the Chief Minister has a duty to maintain a list of responsibilities carried out by Ministers and Assistant Ministers and the functions exercisable by them. This report is an overarching report which is not detailed, and which might not be up to date as time wears on in the life of the Assembly.
- In addition, each Minister publishes a report in the R' series when statutory functions have been delegated. This has not been a
statutory requirement but has been considered to be the most effective way forward. For a number of departments, several of such reports exist. Delegations of general areas of activity will be recorded in a Ministerial Decision which will be available on the www.gov.je website (and again there may be more than one) and will be a
matter of public record. Temporary delegations have not been recorded.
As there are a number of documents in a number of places setting out the delegations, it is difficult therefore track down and verify all the functions delegated by a Minister to an Assistant Minister.
The purpose of the amendment is to provide that –
- When statutory functions are delegated, they must be reported to the States Assembly (except that very short-term delegations do not need to be reported). This reflects the current practice but makes it a formal statutory requirement.
- The Chief Minister shall establish and maintain a published list of the functions of each Minister, and of the functions which have been delegated to others. This will provide that there is one list in one place that will give all the necessary information on delegated functions.
- This list may be published and maintained on a website. In practice it is intended that the list will be published on a website so that it will be capable of being updated simply and will be easily accessible.
The Explanatory Note went on to say –
Article 3 substitutes Article 30 of the principal Law. Currently, Article 30 requires the Chief Minister to establish, maintain and publish a list of Ministers and Assistant Ministers and the functions exercisable by each of them. The substituted Articles are as follows –
30 Ministerial delegations to be presented to States
This Article codifies a practice already adopted by Ministers by requiring them to present to the States a report of any functions delegated by them, and to whom. A report is not required if the delegation is spontaneous rather than pre-planned and will be in place for such a short period of time that the delegation will have ended before the report is presented.
30A List of delegations to be published
This Article expands upon the duty currently imposed on the Chief Minister by the existing Article 30. The Chief Minister is charged with maintaining an up-to-date list containing the following information –
- the functions for the time being delegated by Ministers and
- in the event of the absence, incapacity or suspension pending dismissal, of a Minister or in the event of a vacancy in the office of a Minister, the name of the other Minister who is, for the time being, discharging the functions of the first-mentioned Minister's office.
It would be sufficient for the information to be published on a website. There is no requirement to publish if the delegation or standing-in' of one Minister for another is spontaneous rather than pre-planned and will be of such brief duration that it will have ended before the information can be published.
Financial and manpower implications
I believe that this can be done within existing resources.
APPENDIX 1
On 17th May 2010, the Minister for Transport and Technical Services made a Ministerial Decision delegating certain of his functions under Article 28 of the States of Jersey Law 2005 (MD-T-2010-046, available at www.gov.je).
The terms of the delegations, and the legislation under which those delegations were made, were recorded in a Schedule attached to the Ministerial Decision, as shown below –
------------------------------------------------------------------------------------------------------------- DRAINAGE (JERSEY) LAW 2005
SCHEDULE OF AUTHORISED PERSONS
Authorised Person | Authorised to exercise power under Articles |
Chief Executive Officer | 8, 12, 13, 14, 15, 16, 17, 18, 19, 22, 23, 24, 25, 26, 27, 30, 31, 34, 35, 37 |
Director of Waste Management | 8, 12, 13, 14, 15, 16, 17, 18, 19, 22, 23, 24, 25, 26, 27, 30, 31, 34, 35, 37 |
Principal Engineer, Liquid Waste | 8, 12, 13, 14, 15, 16, 17, 18, 19, 22, 23, 24, 25, 26, 27, 30, 31, 34, 35, 37 |
Senior Engineer, Drainage Design | 8, 12, 13, 14, 15, 16, 17, 18, 19, 23, 27, 30, 31, 34, 35, 37 |
Records Manager | 8, 12, 13, 14, 15, 16, 17, 18, 19, 23, 30, 31, 34, 35, 37 |
Manager – Liquid Waste Treatment | 22, 23, 24, 25, 26, 27, 34, 35, 37 |
Senior Engineer – Contracts Management | 15, 16, 17, 23, 27, 30, 31, 34, 35, 37 |
Manager – Waste Compliance | 15, 16, 22, 23, 24, 25, 26, 27, 34 |
Assistant Manager Drainage | 15, 16, 31, 34 |
Assistant Manager Drainage Maintenance | 15, 16, 31, 34 |
Leading Chargehand Drainage Investigations | 15, 34 |
Chargehand Drainage Survey | 15, 34 |
Senior Surveyor | 34 |
Surveyor | 34 |
Departmental Duty Officers | 34 |
Article | Title | Brief Description |
8 | Sewers and drains to the sea | Restricts discharge to sea shore without consent |
12 | Adoption of other sewerage facilities | Power to adopt sewerage facilities as public |
13 | Separation of foul and surface water sewers | Power to reserve sewer for foul or surface water only |
14 | Obligation to connect to public sewer | Power to require property owner to connect to the sewer |
15 | Repair of sewers and drains by owners | Power to examine sewer or drain and require property owner to repair |
16 | Restricted discharges into sewers and drains | Restricts surface water from being discharged to foul sewers without consent |
17 | Disturbance of public sewers | Restricts building close to sewer, or connecting to sewer, without consent |
18 | Septic tanks | Restricts use of septic tanks where property is connected to sewer |
19 | Abandonment of public sewerage facilities | Power to discontinue or prohibit use of public sewer |
22 | Trade effluent discharge consents | Power to issue a discharge consent |
23 | Production of plans and furnishing of information | Requirement on owner to provide information on discharge |
24 | Variation, suspension and revocation | Power to amend trade discharge consent |
25 | Transfers | Power to transfer trade discharge consent to new holder |
26 | Information about harmful effluent | Power to request information about nature of trade discharge |
27 | Control of harmful effluent | Power to require person to dispose of harmful trade effluent |
30 | Alternation of designated flood defences | Restricts alterations without consent |
31 | Repair of other flood defences | Power to require work to be undertaken by owner on flood defences |
34 | Exercise of ancillary powers | Powers of entry for inspection, survey purposes, etc. |
35 | Remedial action by person causing damage | Power to require owner to correct damage |
37 | Remedial action by Minister | Power for TTSD to correct damage at owners cost |
APPENDIX 2
REPORT
On 10th February 2010, the Minister for Planning and Environment made a Ministerial Decision delegating certain of his functions under Article 28 of the States of Jersey Law 2005 (MD-PE-2010-0021, available at www.gov.je).
The terms of the delegations, and the legislation under which those delegations were made, were recorded in a Report attached to the Ministerial Decision, as shown below –
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- Planning and Building Services Division
Unless otherwise stated, any reference to an Article in this section is a reference to the Article so numbered in the Planning and Building (Jersey) Law 2002, as amended.
- The Delegations
- By virtue of the power conferred on him by Article 9A of the Planning and Building (Jersey) Law 2002, and subject to the conditions set out in section 2 below, the Minister has delegated to the Planning Applications Panel the functions conferred upon or vested in him under –
- Articles 9, 11(3) to (6), 13(1) to (3), 14 to 17, 19 to 24, 26 and 28 concerning planning applications;
- Articles 40, 42 and 45 concerning enforcement;
- Article 54(2)(a) concerning works to Sites of Special Interest;
- Article 61(1)(a) concerning works to a Protected Tree;
- An Order made under Article 76 concerning the display of advertisements; and
- An Order made under Article 81 concerning movable structures.
- By virtue of the power conferred on him by the States of Jersey Law 2005 the Minister has delegated to the officers specified below (individually, an "authorised officer" and collectively, "the authorised officers") the functions conferred on or vested in him specified below.
- The Minister has delegated to –
- the Chief Officer – Planning and Environment;
- the Director of Planning;
- the Assistant Directors of Planning;
- the Principal Planners, Principal Historic Environment Officer and Principal Building Control Surveyors;
- the Senior Planners and Senior Building Control Surveyors;
- the Planners and Building Control Surveyors; and
- the Enforcement Officers,
and in respect of Articles relating to Sites of Special Scientific Interest –
- the Director of Environment;
- the Assistant Director Environmental Management & Rural Economy;
- the Principal Ecologist,
the following functions –
- the functions specified in paragraph 1.1above;
- the functions specified in Articles 51, 52, 53 and 54(2)(a) concerning Sites of Special Interest;
- the functions specified in Articles 60 and 61(1)(a) concerning Protected Trees;
- the functions specified in Articles 66, 68 and 71 concerning dangerous structures;
- the functions conferred upon or vested in the Minister by the Planning and Building (Planning Fees) (Jersey) Order 2006;
- the functions conferred upon or vested in him by the Building Bye- laws.
For the avoidance of doubt the functions delegated include the granting of permission, with or without conditions, and the refusal of permission.
- The Minister has delegated to –
- the Chief Officer – Planning and Environment;
- the Director of Planning;
- the Assistant Director of Planning (Policy and Projects);
- the Principal Historic Environment Officer,
i. the function to disallow requests for the consideration and reconsideration of the protection of a building or site for inclusion on the List of Sites of Special Interest.
- The Minister has delegated to –
- the Chief Officer – Planning and Environment;
- the Director of Planning;
- the Assistant Director of Development Control;
- the Principal Planners (Development Control),
i. the functions conferred upon or vested in the Minister by the Planning and Building (Environmental Impact) Jersey Order 2006.
- By virtue of the power conferred on him by the States of Jersey Law 2005 the Minister has delegated to the officers specified below (individually, an "authorised officer" and collectively, "the authorised officers") the functions conferred on or vested in him by or under the High Hedges (Jersey) Law 2008 as specified below.
The Minister has delegated to –
- the Chief Officer – Planning and Environment;
- the Director of Planning and Building Services;
- the Assistant Directors of Planning;
- the Principal Planners,
the following functions –
- the functions specified in Article 6 concerning the validity of a complaint;
- the functions specified in Article 7 concerning determination of an application and the requirement for remedial action;
- the functions specified in Article 9 concerning the varying and withdrawal of a remedial notice.
- By virtue of the power conferred on him by the States of Jersey Law 2005 the Minister has delegated to the officers specified below (individually, an "authorised officer" and collectively, "the authorised officers") the functions conferred on or vested in him specified below –
The Minister has delegated to –
- the Chief Officer – Planning and Environment;
- the Director of Planning and Building Services;
- the Assistant Directors of Planning,
the following functions –
i. the functions specified in Article 25 concerning Planning Obligations.
The Minister retains all decision-making and other functions delegated by this document.
- The conditions
- In the exercise of the functions delegated to them, the Planning Applications Panel and the authorised officers will observe and abide by the Code of Practice set out in section 3 below.
- The Planning Applications Panel will not make any decision or otherwise exercise any function in any case where it disagrees fundamentally with the recommendation of the officers of the Planning and Environment Department until it has undertaken further consultation.
- Neither the Planning Applications Panel, nor any authorised officer, will make any decision or otherwise exercise any function in any case in which the Minister has given notice that he wishes to make the decision or exercise the function himself. For the avoidance of doubt, the Minister may give such notice, as the case may be, after the Planning Applications Panel or an authorised officer has begun a consideration of the matter, and at any stage prior to the making of the decision or exercise of the function in pursuance of the delegated powers.
- All decisions made by an authorised officer will be checked and counter- signed by a more senior officer.
- The Code of Practice
- Subject to Sections 1 and 2 above, the Minister will consider, in public, requests for reconsideration if –
- the decision was made by authorised officer; and
- the officer consulted the Minister as part of the process of determining the planning application; and
- the decision was to refuse permission or impose conditions.
Where the Minister was not consulted by the authorised officer as part of the process of determining the application, but all other conditions outlined above where met, the Planning Applications Panel will reconsider the request for reconsideration.
- Where it is considered beneficial, the Minister may sit with the Planning Applications Panel.
- The Minister, or Chair of the Planning Applications Panel in respect of meetings of the Planning Applications Panel, may invite personal presentations by the applicant or objectors (provided always that the applicant has a right of reply to any third party representations). In the case of meetings to determine applications made under the High Hedges (Jersey) Law 2008, the Minister may invite personal presentations by the complainant and hedge owner (as defined by the Law).
- In practice, and subject to the conditions set out in section 2 above, the Planning Applications Panel may decide –
- applications where written political representations have been made, either for or against the proposal;
- applications which have become contentious by virtue of the number or strength of representations made;
- applications which would involve a departure from the Island Plan, any guidelines or policies published in accordance with Article 6, any other approved planning policy but where, in its opinion, there are good grounds to consider approving the application;
- the serving of enforcement notices; and
- any other applications referred toit by an authorised officer or the Minister.
- In practice, and subject to the conditions set out in section 2 above the authorised officers will decide –
- whether it is necessary to make an application;
- the calculation or waiver, in whole or in part, of planning fees;
- applications where the decision isin accordance with the Island Plan, any guidelines or policies published in accordance with Article 6, any other approved policies;
- applications where the decision accords with an earlier decision of –
- the former Environment and Public Services Committee;
- the former Planning Sub-Committee;
- the Minister for Planning and Environment; or
- the Planning Applications Panel;
- applications where there have been representations from the general public, but where those representations have been accommodated by revisions to the application or by the imposition of conditions, are of a non-planning nature, or are not of sufficient weight to influence a decision on the application;
- applications under the Building Bye-laws, including applications for the relaxation of the Bye-laws;
- applications under the Planning and Building (Display of Advertisements) (Jersey) Order 2006;
- applications under Articles 101 to 104 (importation of caravans) or under the Planning and Building (Movable Structures) (Jersey) Order 2006;
- on reserved matters which follow an outline planning permission;
- on requests to vary permissions, including conditions;
- on the content of Notices served under the Law;
- on the provisional listing of Sites of Special Interest;
- on applications, for works that do not necessarily amount to development but which have the potential to affect the special interest of a Site of Special Interest;
- on the inclusion or exclusion on the List of Sites of Special Interest of buildings or places considered to have public importance, where no representations have been submitted or where those representations are not material to determining the special interest of the building or place;
- on the serving of Notices of Intent to include or exclude buildings or places on the List of Sites of Special Interest considered to have public importance;
- on the provisional listing of protected trees;
- applications carry out an action specified in Article 61 to a tree listed as a protected tree;
- applications under the High Hedges (Jersey) Law 2008, where the hedge owner has not submitted a representation,
provided that, in all cases, the authorized officer's decision is endorsed by a more senior authorized officer.
- Environment Division
| ||
Schedule of Delegated Statutory Powers | ||
| ||
Law | Detail / Involves | Delegated to whom |
Animal Welfare (Jersey) Law 2004 Animal Welfare (Amendment) (Jersey) Law 2006 Subordinate
Schedule 1) (Jersey) Order 2007
|
(Article 2,3,4,5,6,7)
The Animal Welfare (Amendment) (Jersey) Law 2006 amends the Animal Welfare (Jersey) Law 2004 to restrict the powers of an inspector appointed under Article 22 prohibiting them from exercising functions in relation to licensing if the licensed activity is also undertaken by the inspector or his/her employers. JSPCA veterinary surgeon to be appointed inspector for purposes of warrant application and inspection outwith licensed premises of same type as JSPCA. |
For the purposes of administration inspection and enforcement
(4) For the purposes of inspection and enforcement of suspected offences (not licensing)
|
Agricultural Land (Control of Sales and Leases) (Jersey) Law 1974 | A Law to control sales and leases of agricultural land Delegated powers are requested under Article 2 – The issuing of consents and permissions on agricultural land at the point of sale or leases using longstanding terms of reference. Decisions not within TOR are referred to the Minister |
|
Agricultural Marketing (Jersey) Law 1953 Subordinate
Order 1972
|
|
Economy For the purposes of administration inspection and enforcement
|
Animals (Trapping) (Jersey) Law 1961 Subordinate
| A law to define approved traps and to regulate and enforce their appropriate use |
|
Artificial Insemination of Domestic Animals (Jersey) Law 1952 (A replacement law has been drafted entitled the Artificial Breeding of Domestic Animals (Jersey) Law 200- but has currently been deferred). Subordinate Artificial Insemination of Domestic Animals (Bovine |
|
For the purposes of enforcement / Inspection
|
Semen) (Jersey) Order 2008 Artificial Insemination of Domestic Animals (Jersey) Order 2008 | above (Article 3) | Head of Agricultural Inspection Agricultural Inspectors (4) |
Conservation of Wildlife (Jersey) Law 2000 |
Article 16 allows for the licensing of normally prohibited activities under the following Articles 6, 8, 9, 10 11, 15 prohibitions :
birds
Licences may only be issued if the thing to be done is for scientific, research, educational purposes, (e.g. ringing, marking, tracking; preserving public health or public or air safety; the re-introduction of a species, the purpose of conservation or the spreading of diseases, preventing serious damage to livestock and crops, AND there is no other satisfactory solution and that anything authorized by the licence will not be detrimental to the survival of the population concerned'.
|
|
Dangerous Wild Animals (Jersey) Law 1999 | This Law provides a licensing requirement to keep an scheduled animal (Article 3) Administration of this law is delegated to the States Veterinary Officer who will seek advice at his/her discretion (Note: Only one licence has been issued under the law) |
For the purposes of enforcement / Inspection
|
Diseases of Animals (Jersey) Law 1956 Subordinate
1958
|
delegated powers.
Notifiable disease orders
|
For the purposes of enforcement / Inspection to report information to SVO
Advisor
|
| 1959
|
|
European Communities Legislation (Implementation) (Jersey) Law 1996 Subordinate Fish Health (Jersey) Regulations 1999 |
|
For the purposes of enforcement / Inspection
(3) |
| European Communities Legislation (Implementation) (Cattle Identification) (Jersey) Regulations 2002 |
|
For the purposes of enforcement / Inspection
|
| Community Provisions (Animal Feeding) (Jersey) Regulations 2005 |
|
For the purposes of enforcement / Inspection
|
| Non-Commercial Movement of Pet Animals (Jersey) Regulations 2006 | Regulate the movement of pet animals arriving from outside the British Isles entering Jersey from the EU and Non EU listed countries and territories. Inspections and enforcement are carried out by States Veterinary Officer or his/her assistants. | Assistant Minister
For the purposes of enforcement / Inspection
Standby Officers (4) |
European Communities Legislation (Bluetongue)(Jersey) Regulations 2008 | Regulate the controls, monitoring, surveillance and restrictions on movements of certain animals of susceptible species in relation to bluetongue. Inspections and enforcement are carried out by States Veterinary Officer or his/her assistants. | Assistant Minister
For the purposes of enforcement / Inspection
|
Fertilisers and Feeding Stuffs (Jersey) Law 1950 Subordinate Fertilizers and Feeding Stuffs (Jersey) Order 1972 | A Law to make provision with respect to the sale of fertilizers and feeding stuffs in the Island and their contents which must not have animal extracts within them. |
For the purposes of enforcement / Inspection
(4) |
Food and Environmental Protection Act 1985 (Jersey) Order 1987 Food and Environmental Protection Act 1985 (Jersey) (Amendment) Order 1997 |
|
|
Pesticides (Jersey) Law 1991 Subordinate
|
|
For the purposes of enforcement
(4) |
Planning and Building (Jersey) Law 2002 |
firing purposes.
|
|
Plant Health (Jersey) Law 2003 Subordinate
|
|
For the purposes of enforcement / Inspection |
|
|
|
Protection of Agricultural Land (Jersey) Law 1964 |
|
For the purposes of enforcement / Inspection/obtain information
|
Slaughter of Animals (Jersey) Law 1962 | The SVO issues slaughterers licences under delegated powers (Article 4) The slaughterhouse is supervised by the Superintendent (Article 2) |
Director of Environment States Veterinary Officer |
Waste Management (Jersey) Law 2005 |
Part 1 – INTRODUCTORY PROVISIONS (Articles 1 to 9) Part 2 – ADMINISTRATION (Articles 10 to 22) Part 3 – WASTE MANAGEMENT WITHIN THE ISLAND
|
In addition for enforcement (Part 5)
|
| (Articles 23 to 37)
Part 4 – TRANSBOUNDARY MOVEMENTS OF WASTE
67)
Part 5 – ENFORCEMENT (Articles 82 to 93) Part 6 – OTHER PROVISIONS (Articles 94 to 113) Any further responsibilities under Schedules 1 to 11. | Inspection. Agricultural Inspectors.
|
Water Pollution (Jersey) Law 2000 | A Law to provide for the control of pollution in Jersey waters, and the implementing of provisions of the Convention for the Protection of the Marine Environment of the North-East Atlantic; the monitoring and the classification of waters; the setting of quality objectives for classified waters; administrative, regulatory, preventive and remedial measures; and related purposes
|
In addition for enforcement (Article 29)
|
|
Delegated powers are requested for the purposes of enforcement (under Article 29) and
38)
| Research and Development |
Water (Jersey) Law 1972 |
|
For the purposes of enforcement
|
Weeds (Jersey) Law 1961 | A Law to provide for preventing the spreading of injurious weeds Delegated powers are requested for enforcement activities to prevent the spreading of injurious weeds (Article 2) performed by the Inspectorate |
*In addition for enforcement
|
Water Resources (Jersey) Law 2007 | A Law to provide for the protection, management and regulation of water resources in Jersey; the promotion of the conservation of the fauna and flora that are dependent on inland waters and of the habitats of such fauna and flora to the extent that those habitats are themselves dependent on inland waters; the conservation and enhancement of the natural beauty and amenity of inland waters; and for related purposes. | Assistant Minister
Head of Water Resources Hydrogeologist For the purposes of enforcement
Officer |