Minister for Justice and Department of Justice: report.

STATES OF JERSEY

MINISTER FOR JUSTICE AND DEPARTMENT OF JUSTICE: REPORT

Lodged au Greffe on 13th November 2012 by Senator L.J. Farnham

STATES GREFFE

2012   Price code: B  P.120

PROPOSITION

THE STATES are asked to decide whether they are of opinion

to request the Chief Minister to investigate the possibility of establishing a new ministerial office of Minister for Justice in Jersey with an associated Department of Justice and, in consultation with the Council of Ministers, to report to the States with recommendations or proposals no later than 31st July 2013.

SENATOR L.J. FARNHAM

REPORT

Impartiality and independence of the judiciary and prosecuting authorities

All modern systems of government can be divided into 3 main elements: the executive (also known as the Government), the legislature (the law making body or parliament, in Jersey's case an Assembly), and the judiciary (the law courts and public officials who administer justice). Within a modern system of government it is vital that the judiciary are impartial and independent of all external pressures so that the public can have confidence that cases will be decided fairly and in accordance with the law. Judges must be free of any improper influence which might arise from a range of sources,  including  the  executive  or  the  legislature,  individual  litigants,  pressure groups,  the  media,  self-interest  or  other  judges.  It  is  also  vital  that  there  is independence for the prosecuting  authorities  in  taking  prosecution  decisions. The principle of impartiality and independence for  both  the judiciary  and  prosecuting authorities  is  reflected  in  the  constitutional  arrangements  of  most  democratic countries.

Executive Government in Jersey is performed by the Council of Ministers, supported by Assistant Ministers to whom functions may be delegated and whom may deputise for the Ministers. Whilst this proposition asks that the proper role of the executive Government in justice matters is considered, the proposition does not seek to interfere with, or override, the principle of impartiality and independence for the judiciary and prosecuting authorities.

United Kingdom

Whilst  our  unique  constitutional  arrangements  may  mean  that  it  is  not  always appropriate to consider parallels with the United Kingdom (UK), we share a number of common features in our respective constitutional arrangements and so the UK structure provides a helpful background. The main elements of the UK structure are summarised below.

1. The Lord Chief Justice became Head of the Judiciary of England and Wales in 2006, a role previously held by the Lord Chancellor, and is also President of the Courts of England and Wales.
2. The UK Attorney Generalis responsible for providing legal advice to the Crown  and  also  for  superintending  the  prosecuting  departments,  which comprise the Crown Prosecution Service, Revenue and Customs Prosecutions Office and the Serious Fraud Office. Whilst the Law Officers are part of the executive, a protocol  was  published in 2009  which  clarifies  the  Attorney General's  relationship  with  the  superintended  prosecuting  authorities  and underlines  the  independence  of  the  prosecutors  in taking  prosecution decisions.
3. The  Home  Office  is the  lead  UK  department  for  immigration,  passports, counter-terrorism, policing, drugs and crime. Four agencies, the UK Border Agency, the Identity and Passport Service, the National Fraud Authority and the Criminal Records Bureau, provide directly  managed frontline services from within the Home Office. The Home Office is headed by the  Home Secretary and 5 other ministers.

4. The UK Ministry of Justice was formed in 2007, superseding the Department of Constitutional Affairs (formerly the Lord Chancellor's Department) and incorporating some functions from the Home Office. The Ministry of Justice is responsible  for  policy  on  the  overall  criminal,  civil,  family  and administrative justice system, as well as the courts, tribunals, legal aid and constitutional  reform.  The  Ministry  is  also  responsible  for  strengthening democracy and safeguarding human rights. The Ministry oversees a number of arms-length organisations, including the Courts Funds Office, the Judicial Appointments and Conduct Ombudsman, the Sentencing Council, the Law Commission, and the National Offender Management Service which includes the  Prison  and  Probation  Services.  The  Ministry  is headed  by  the  Lord Chancellor and Secretary of State for Justice and 4 other ministers. The Lord Chancellor has a special responsibility to defend judicial independence and to consider the public interest in respect of matters relating to the judiciary. The Lord Chancellor is also under a general duty to provide sufficient resources to support the business of the courts in England and Wales. The Privy Counsellor with  responsibility  for  the  Crown  Dependencies  is currently  the  Lord Chancellor.
5. The  creation  of  the  Ministry  of  Justice  in 2007  established  a  trilateral arrangement, with the Secretary of State for Justice working with the Home Secretary and the Attorney General to deliver improvements in the criminal justice  system.  This  trilateral  arrangement  was  supported  by  a  National Criminal Justice Board, which brought together the Ministry of Justice, Home Office and Attorney General's Office.

Jersey

With the exception of a Minister for Justice, the structure is similar in Jersey, as summarised below.

1. The Head of the Judiciary in Jersey is the Bailiff , assisted by the Deputy Bailiff who may also deputise for, and exercise the functions of, the Bailiff .
2. H.M. Attorney Generalis the head of the Law Officers' Department, which provides legal advice to the Crown and the States, including States ministries and other departments, and is also responsible for the provision of a criminal prosecution service. The Attorney General and the Law Officers' Department do not form part of the executive.
3. The Home Affairs Department aims to improve the quality of life of everyone living in Jersey by helping create  a  safe, just  and equitable  society. The Department also oversees criminal justice policy, guided by the policy agreed by the States Assembly in 2007. In addition, the Home Affairs Department oversees the following States' departments: States of Jersey Police; States of Jersey Fire and Rescue Service; Jersey Prison Service; Jersey Customs and Immigration Service; Jersey Field Squadron; and Office of the Superintendent Registrar. The Department is headed by the Minister for Home Affairs and supported by an Assistant Minister.
4. There is no Minister for Justice in Jersey. As in the UK, some aspects of criminal justice are picked-up by the Home Affairs Department, but there is

no  function  within  the  executive  with  specific  responsibility  for  justice matters. In the States Assembly, questions on matters relating to justice are often answered by the Chief Minister, or are addressed as an extension to the impartial legal advice provided to Members by the Attorney General, given that there is no Minister for Justice to be held to account or scrutinised by the Assembly.

5. There is already in place a Jersey Justice System Board, chaired by the Bailiff , whose role isto set the strategic direction for the delivery of justice services in Jersey. Membership of the Board includes the Chief Minister and the Minister for  Home  Affairs.  The  Board  is supported  by  a  Justice  Working  Group, chaired by the Attorney General.

In  light  of  the  gap  in  the  executive  function  highlighted  above,  and  against  the background of the on-going evolution of our system of government, it would appear sensible to consider the creation of a Minister for Justice with an associated Justice Department.

Representative democracy and justice policy

This  proposition  does  not  seek  to  criticise  or  undermine  any  existing  policy  or procedure. It is borne solely out of an interest in protecting and, where possible, improving our island's unique system of government. It therefore aims to ensure that, within our system of representative democracy, due consideration has been given to how those elected into office and exercising executive functions can take appropriate responsibility for justice matters and so be held to account by Islanders and their representatives.

The States may by Regulations establish and abolish Ministers and confer functions upon a Minister. Only the Chief Minister may lodge such draft Regulations. Therefore this proposition is not prescriptive, but requests the Chief Minister to investigate the possibility  of  establishing  a  new  Ministerial  office  and  Department  and  to  bring forward appropriate proposals after a period of due consideration.

In considering the need for a Department of Justice to support such a Ministerial office, it is anticipated that the Chief Minister will be mindful of the programme for public sector modernisation and the need to operate within the constraints of the spending limits set within the Medium Term Financial Plan.

This course of action proposed in this proposition will ensure that a properly informed debate on the subject can be held at the appropriate time when the Chief Minister returns to the States with proposals and recommendations in 2013.

Financial and manpower implications

The Chief Minister's Department has indicated that they are able to complete this task from within the existing resources of the department and accordingly there will be no additional financial or manpower implications arising from this proposition at this stage.