States of Jersey Law 2005: proposal to amend bankruptcy provisions (P.55/2016) – comments.

STATES OF JERSEY

STATES OF JERSEY LAW 2005: PROPOSAL TO AMEND BANKRUPTCY PROVISIONS (P.55/2016) – COMMENTS

Presented to the States on 28th June 2016 by the Privileges and Procedures Committee

STATES GREFFE

2016  P.55 Com.(3)

COMMENTS

Prohibition from holding office as, or standing for election as, a Senator or Deputy due to bankruptcy

At present, a person is prevented from holding office as, or from standing for election as, a Senator or Deputy under the States of Jersey Law 2005 for a number of reasons, including if he or she has become bankrupt or made a composition of arrangement with his or her creditors'.

A bankruptcy disqualification will cease –

1. if the person pays his or her debts in full on or before the conclusion of the bankruptcy proceedings, on the day the proceedings are concluded;
2. in any other case, on the expiry of 5 years from the day the proceedings are concluded.

Disqualification for having made a composition or arrangement with creditors shall cease –

1. if the person pays his or her debts in full, on the day on which the payment is completed;
2. in any other case, on the expiry of 5 years from the day on which the terms of the composition or arrangement are fulfilled.

A reference to a person becoming bankrupt is defined in the Interpretation (Jersey) Law 1954 to include where a person is subject to a désastre, a remise de biens, a debt remission order, or is subject to a bankruptcy procedure which triggers a dégrèvement.

Prohibition from holding office as, or standing for election as, a Connétable due to bankruptcy

A person is prohibited from holding office as a Connétable during the course of a désastre  or  while  an  undischarged  bankrupt  under  a  foreign  proceeding.  This disqualification ceases when the debtor is discharged from the désastre. There is no post-bankruptcy statutory disqualification period for Connétable s.

There are a number of additional disqualifications listed under Article 8 of the States of Jersey  Law  2005  which  are  not  replicated  elsewhere  in  legislation  in relation  to Connétable s. Currently, in the case of Connétable s, the Royal Court has an inherent

jurisdiction to remove a Connétable from office if he or she commits a criminal offence, unless exceptional circumstances apply. The Court may also decline to administer the Oath to a person elected to a parochial office where the Royal Court considers the person unfit for office by reason of a previous conviction, or if the candidate has other functions or  interests  which  are  incompatible  with  the  office  concerned.  For  Senators  and Deputies, only the circumstances provided for in Article 8 of the States of Jersey Law 2005 may disqualify a person from holding office as, or seeking election to office as, a Senator or Deputy .

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Proposal of Deputy M.R. Higgins of St. Helier

The Deputy is asking the States to: (a) bring Article 8 of the States of Jersey Law 2005 into line' with the provisions of Article 40 of the Bankruptcy (Désastre) (Jersey) Law 1990;  and  (b) provide  that the  statutory  disqualifications  relating to  Senators  and Deputies in Article 8 should apply also to Connétable s.

The following is proposed in relation to standing for election as a Senator or Deputy –

• the post-bankruptcy disqualification period in the States of Jersey Law 2005 should be reduced to 4 years from the date of the discharge or conclusion; or
• no post-bankruptcy disqualification should apply, i.e. once a person has been discharged  from  a  désastre,  or  at  the  conclusion  of  other  bankruptcy proceedings, he or she should be able to stand for election as a Senator or Deputy .

The following is proposed in relation to holding office or standing for election as a Connétable –

• the statutory disqualification provisions applying to Senators and Deputies in Article 8 of the States of Jersey Law 2005 should also apply to Connétable s, including the provisions on bankruptcy, whether or not amended as described above.

If the proposition is adopted, the Privileges and Procedures Committee will work with the Law Draftsman to bring forward the necessary legislation to give effect to the proposals.

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Statement under Standing Order 37A [Presentation of comment relating to a proposition]

These comments were received by the States Greffe after the deadline set out in Standing Order 37A, due to a requirement to seek clarification regarding the provisions of the relevant legislation.

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