Public Finances Law Amendments - Ministerial Response - 9 October 2013

Findings

Comments

1

Without reference to a baseline of recognised professional Financial Management  Standards  the proposed  amendment  relies  too heavily on the professionalism of individuals.

The  Public  Finances  (Jersey)  Law 2005 requires that the role of Treasurer of the States is independent and specifically states that "the Treasurer may not be directed on how a function of the office of Treasurer is to be carried out".

The  baseline  of  professional  Financial Management  Standards  followed  by  the States  of  Jersey  is  Generally  Accepted Accounting  Principles  (GAAP)  and International Financial Reporting Standards (IFRS)  as  interpreted  for  the  States  of Jersey by the Financial Reporting Manual (JFReM). The JFReM is based on the UK version  of  the  same  document,  which  is prepared by H.M. Treasury and is subject to scrutiny by an independent board, the Financial Reporting and Advisory Board. Accounting Standards are not static and the JFReM is updated on an annual basis.

Below  this  level  there  are  Financial Directions  which  are  regularly  reviewed, revised  and  updated  to  reflect developments in accounting standards and practice.

Findings

Comments

The level of detail in these documents is best  left  outside  the  Public  Finances (Jersey) Law to allow for such updates and modifications.

2

Clarity  on  what  constitutes appropriate  Financial Management  Standards  and appropriate Accounting Standards is required.

The  Law  in  Article  34  states  that  the Treasurer of the States may issue financial directions which are –

1. required  by  the  Public  Finances (Jersey) Law 2005 ; and

2. deemed  necessary  or  expedient  for the proper administration of the Law and of the public finances of Jersey.

In Article 32 the Treasurer is also required to issue Accounting Standards to enable the annual financial statement to be produced. The  Accounting  Standards  issued  by  the Treasurer are deemed appropriate as they are  those  issued  by  the  International Accounting Standards Board, as adapted by H.M. Treasury  and  approved  by  the Financial Reporting Advisory Board for the public sector. (See comments in 1 above also).

3

The Treasurer already carries out a  continuous  advisory  role  with the Council of Ministers.

The  post  of  Treasurer  of  the  States  is independent and cannot be directed on how the role of Treasurer is to be carried out.

The Treasurer of the States has  an open invitation to attend all Council of Ministers meetings  and  provides  advice  and  input into those meetings on matters that have financial implications of significance.

4

The Chief Minister is of the view that there must only be one line of accountability  to  the  Council  of Ministers  and  that  must  be  the Chief Executive as defined in the Employment of States of Jersey Employees (Jersey) Law 2005.

The Minister for Treasury and Resources endorses the Panel's view that the deletion of  the  paragraph  which  states  " the Treasurer  shall  advise  the  Council  of Ministers  upon  the  public  finances  of Jersey"  would  not  affect  the  Treasurer's existing responsibility to continue to offer independent financial advice to the Council of Ministers should she so wish. In light of this  the  Minister  for  Treasury  and Resources  lodged  an  amendment  which resulted  in  the  withdrawal  of  the aforementioned  proposal  to  amend  the Treasurer's duties "to advise the Council of Ministers  upon  the  public  finances  of Jersey".

Findings

Comments

5

The  rationale  provided  by  the Minister  for  Treasury  and Resources  for  proposing  a  new responsibility  for  the  Treasurer does not seem to justify the need to include such a provision within Legislation.

See point 4 above.

6

The  primary  Legislation  already specifies  that  the  Treasurer  is responsible  for  advising  on  the preparation of the Medium Term Financial Plan.

See point 4 above. There is no proposed change  to  alter  the  Treasurer's  existing responsibility  to  provide  advice  on  the preparation of the Medium Term Financial Plan.

7

An obligation forced in primary Legislation to provide advice to a specific  group  such  as  the Council of Ministers may create conflict  through  how  this reporting  is  perceived.  Any advice provided by the Treasurer to the Council of Ministers must remain to be seen as independent.

See point 4 above.

8

The Panel supports the proposal to  expand  upon  the  Treasurer's current role to report directly to the  States  if  public  money  has been dealt with unlawfully. It is felt that the proposed change will further  strengthen  compliance requirements  and  reporting options available to the Treasurer.

The Law already enables the Treasurer to provide  reports  to  the  States  (after consulting  the  Comptroller  and  Auditor General) where money has been dealt with improperly.  The  amendment  merely extends  the  current  provision  and introduces the new Article 30(b) (ii).

9

The  Panel  agrees  with  the principles contained within draft Article  15  and  the  rationale behind its proposal.

Noted.

10

The term proper practices' would be more appropriate than the term Accounting  Standards',  which has  been  proposed  in  draft Article 15.

The  term  "Accounting  Standards"  is recognised internationally and any change in terminology may cause confusion. The States  follow  International  Accounting Standards.

11

It  has  been  proposed  that Articles 17 and 18 of the principal Law  are  amended  to  allow  the Minister  for  Treasury  and Resources to approve the transfer of  funds  between  all  heads  of expenditure for any reason.

Agreed.

Article  18  of  the  Primary  legislation already  enables  funds  to  be  transferred between Heads  of Expenditure in certain circumstances this amendment proposes to extend this facility.

The  Law  prevents  funds  being  moved

Findings

Comments

around with impunity – transfers between heads  of  expenditure  have  to  be  fully justified  and  agreed  by  both  the relinquishing  and  receiving  Ministers before being considered by the Minister for Treasury and Resources.

12

Reporting  on  Budget  transfers does  not  occur  within  a significant  proximity  of  time  to the  actual  decision  to  transfer funds in order to allow Scrutiny to take place.

This point is not accepted. Budget transfers are the subject of timely public ministerial decisions  by  the  Ministers  of  the transferring and receiving departments, and the Minister for Treasury and Resources. Budget  transfers  are  reported  in  the Minister  for  Treasury  and  Resources' 6 monthly  report  on  Financial  matters which  is  presented  to  the  States.  The current arrangements have not caused any problems  in  practice.  This  more  detailed Report is a new initiative and is produced in response to previous requests from the Corporate Services Scrutiny Panel.

13

The unlimited ability to transfer funds within a Department, which already  exists,  coupled  with  the impact  of  the  draft  amendment will  allow  levels  of  in  year flexibility that CIPFA has never encountered previously.

The  current  Law  amendment  does  not propose  any  change  to  this  area  – Departmental  Accounting  Officers  are responsible  for  ensuring  that  a  head  of expenditure is not exceeded and is used for the  purpose  it  was  appropriated.  Policy decisions within a Department are set by the Minister with the Chief Officer being responsible  for  implementing  these decisions.

The  Treasurer  has  regular  meetings  with Departmental  Accounting  Officers  to discuss financial matters, especially areas of financial pressure.

14

The  inherent  flexibility  which will be available to Chief Officers and  Ministers  may  have  the potential to undermine the rigour of  the  Medium  Term  Financial Plan if budgetary resources can be moved  about  with  impunity and/or transferred to contingency "for any reason".

Funds are not moved around with impunity

– transfers have to be fully justified and agreed  by  both  the  relinquishing  and receiving Ministers and only then by the Minister for Treasury and Resources.

Flexibility gives Departments the ability to manage resources to meet service pressures and  changing  demands  within  pre-set spending limits. Although an  Accounting Officer is able to vires funds within their Departmental Head of Expenditure at the end of a financial year they are required to report against the original detailed budget allocations produced in the Medium Term

Findings

Comments

Financial  Plan  Annex  in  the  Annual Accounts document.

The Public Accounts Committee has a role to  play  in  the  scrutiny  of  the  Annual Accounts being able to question Ministers and  Accounting  Officers  as  to  why virements have been approved.

15

In  2011  the  Minister  proposed, and  the  States  agreed  to,  a tightening of the provisions that allowed  variations  of  heads  of expenditure.  Consequently,  the Panel found it difficult to grasp the  underlying  rationale  for bringing  this  amendment  to  the States 2 years later.

In  2011,  the  Minister  for  Treasury  and Resources  brought  amendments  to  the Public Finances Law which introduced the medium  term  financial  planning  process which also made changes that resulted in a general  tightening  of  the  provisions  that allowed variations to heads of expenditure. Experience has shown that it is necessary for there to be greater flexibility in the rules surrounding the transferability of funds and therefore by proposing these changes the Minister for Treasury and Resources can approve  any  transfer  of  funds  between heads of expenditure. As stated above these transfers have to have the prior agreement of  both  the  relinquishing  and  receiving Ministers before being considered by the Minister for Treasury and Resources.

Learning from practical experiences which means  previous  decisions  are  overturned should not be criticised. Recognising that by  setting  Heads  of  Expenditure  over  a MTFP period of 3 years means adjustments are  more  likely  to  be  needed.  Service changes, changes in regulation and States decisions are all reasons why such transfers may be necessary.

The Minister for Treasury and Resources can  assure  States  Members  that  there  is absolutely no intent to allow Departments the ability for unlimited transfers between Heads  of  Expenditure;  that  is  transfers between departments or capital projects, as opposed to within a department.

16

The concerns raised by the Panel during its review of the MTFP in regards to Departmental spending limits  have  not  been  adequately addressed  and  could  potentially be exacerbated if the States agree this draft amendment.

It is important to remember that one of the reasons  the  States  Assembly  wanted  to introduce  the  concept  of  medium  term financial planning was to give the States greater control of overall States spending limits.

Departments  have  been  allocated  tighter

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Comments

spending limits for the period of the MTFP and there must be the flexibility to move funds between heads of expenditure so that changing priorities can be met at the same time  as  maintaining  the  spending  limits approved by the Assembly.

17

A system of checks and balances must  be  in  place  to  ensure  that funds  are  being  appropriately transferred  between  heads  of expenditure after those heads of expenditure  have  been  approved in the MTFP.

All transfers between heads of expenditure will  continue  to  be  approved  by  the relevant departmental Minister, (or in the case  of  the  Non-ministerial  departments their  Accounting  Officer),  both relinquishing and receiving the funds prior to the Minister for Treasury and Resources being asked to approve any such transfer. The Minister for Treasury and Resources cannot agree to these transfers unless both departments agree in advance. The States will  continue  to  be  notified  of  all  such transfers in the 6 monthly Financial update reports.

As  stated  in  14  above  although  an Accounting Officer is able to vires funds within  their  Departmental  Head  of Expenditure at the end of a financial year they  are  required  to  report  against  the original  detailed  budget  allocations reported  in  the  Medium  Term  Financial Plan Annex (which was sent to all States Members)  in  the  Annual  Accounts document.

The Public Accounts Committee has a role to  play  in  the  scrutiny  of  the  Annual Accounts being able to question Ministers and  Accounting  Officers  as  to  why virements were approved.

18

The  Minister  for  Treasury  and Resources has brought forward an amendment  to  permanently  re- instate 11(8) requests despite the introduction  of  a  Contingency Fund  and  the  previous  States decision to remove this provision.

The purpose of the central contingency will continue to provide essential flexibility to enable  the  Minister  for  Treasury  and Resources,  following  consultation  where appropriate,  to  manage  unforeseen unexpected items within overall spending limits  as  part  of  the  Medium  Term Financial  Plan.  However,  the  level  of contingency  held  is  not  huge  and  it  is extremely  difficult  to  provide  for  every urgent eventuality and even more so now that the States have agreed spending limits for 3 years hence.

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Comments

The  Minister's  amendment  to  this  area builds upon and strengthens the content of the  old  11(8)  funding  route.  The Amendment  limits  additional  funding requests  to  be  brought  forward  by  the Council of Minister if they are satisfied, on the  recommendation  of  the  Minister  for Treasury  and  Resources, that  there  is  an urgent need for expenditure and the balance currently available in Heads of Expenditure and  the  Contingency  are  insufficient  to meet the requested expenditure.

The  States  have  the  ultimate  power  to approve or veto an urgent funding request.

19

In  2011  the  States  was  advised that one of the main reasons for proposing  a  Medium  Term Financial Planning process was to assist  in  a  more  disciplined approach  by  the  Assembly  to growth in expenditure.

Noted.

20

The  States  was  satisfied  that central  allocations  for contingencies,  growth expenditure  and  the  ability  for departments  to  vary  heads  of expenditure  provided  enough flexibility that the need for, and the use of, 11(8) requests was no longer warranted.

Noted. See comments in 18 above.

21

The  proposed  amendment contradicts  the  views  that  have previously been expressed by the Minister  for  Treasury  and Resources  regarding  the  use  of additional funding requests.

The amendment reflects experience  since the  States  approval  of  the  legislation creating the Medium Term Financial Plan, and  the  production  and  operation  of  the first  year  of  that  Plan.  It  has  become apparent that there must be a mechanism to allow  the  Council  of  Ministers,  on  the recommendation  of  the  Minister  for Treasury  and  Resources,  to  seek  States approval where there is an urgent need to increase  expenditure  approvals  over  and above  those contained  within the  MTFP, where  previously  approved  contingencies are  insufficient.  The  States  have  the ultimate  power  to  approve  or  veto  an urgent funding request.

Findings

Comments

22

The  Panel  does  not  understand the  exact  purpose  of  this  draft amendment given that Article 20 of  the  Public  Finances  (Jersey) Law  2005  already  provides  for the  approval  of  expenditure  in emergency situations.

The amendment is quite specific in that the revised funding route will only be used if there  are  insufficient  funds  in  existing heads of expenditure and the Contingency and there is an urgent expenditure need and only  if  the  Council  of  Ministers,  on  the recommendation  of  the  Minister  for Treasury  and  Resources  agree  that  a request should be made.

The existing Article 20 of the Law only deals with Emergency expenditure. There have  been  totally  unavoidable  requests which fall outside of the areas highlighted in the existing Article 20 (and Article 9) which may require funding. As quoted in correspondence to the Panel the States may be  struck  with  huge  Arbitration  costs  or indeed totally unavoidable Court and Case costs.

It  is  not  agreed  that  there  is  confusion around  the  existing  Article  20  and  an urgent funding need.

23

There were inconsistencies in the evidence  we  received  from  the Minister  for  Treasury  and Resources  in  regards  to  the intended use of this provision.

The purpose of this amendment is to allow flexibility  to  deal  with  the  unanticipated and  unexpected  which  do  not  meet  the current definitions in Articles 9 and 20. As purposes are unanticipated and unexpected it is clearly difficult to be more specific.

24

The Panel supports the proposal to  extend  the  Accounting Officer's current role to include a responsibility  for  the  proper financial management of all non- departmental  States  Income  and Special and Trust Funds.

The Corporate Services Panel's support for this proposal is appreciated.

The  Amendment  builds  on  this  role empowering  the  Minister  to  appoint  an accounting  officer  for  all  States  income, which includes income tax and impôts and also incorporates the same responsibilities for trust and special funds within the main Law.

25

The  draft  Legislation  now proposes  that  the  Minister  for Treasury  and  Resources,  rather than the States, is responsible for appointing Members to the Fiscal Policy Panel.

The  appointments  process  follows  the procedures recommended in P.205/2009.

The Minister for Treasury and Resources is highly supportive of the need for the Panel to be independent which is why the Law requires that the Minister seek the views of the Appointments Commission prior to an appointment. The Minister is also required to notify the States of his intent to appoint a person to the Panel 2 weeks before making

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the formal appointment.

26

The  involvement  of  the Appointments  Commission  and the  two  week  breathing  space' for  Members  will  make  the process  more  robust.  However, we do not believe that the draft Legislation  will  eliminate  issues concerning  the  Panel's independence.

See comments in 25 above.

27

Extra  safeguards  should  be established  for  the  appointment process to ensure that the Fiscal Policy  Panel's  independence  is not compromised in any way.

The Law recognises the importance that the independence of the Fiscal Policy Panel is maintained  and  ensures  that  the  Panel continues  to  provide  important  unbiased, independent  economic  advice  and  make recommendations  on  the  prevailing economic  climate  both  within  the  Island and on a wider basis.

Membership of the Panel will continue to be  made  up  of  at  least  3  high  calibre individuals  who  have  the  relevant knowledge and experience to carry out the role.

28

The  Fiscal  Policy  Panel  is  an independent advisory body to the States and this position must be reflected  in  every  aspect  of  the primary  Legislation  –  including the appointment of Members.

The  appointments  process  follows  the procedures recommended in P.205/2009.

See comments in 25 above.

29

Despite  the  Fiscal  Policy  Panel being  an  independent  advisory body to the States, the Panel has a strong  accountability  to  the Minister  for  Treasury  and Resources.

The inclusion of the appointment and role of  the  Fiscal  Policy  Panel  in  primary legislation  is  an  indication  of  the importance that the Minister for Treasury and Resources attributes to the work of the Panel.  This  amendment  strengthens  the position of the Fiscal Policy Panel, and in no way weakens its independence.

The  Law  amendment  specifically  states that  the  Panel  may  not  be  directed  by anyone  on  any  advice,  comments  or recommendations it makes.

The Panel will be expected to report on the Draft  Medium  Term  Financial  Plan,  at other times when the Minister for Treasury and Resources requests, whenever there is

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a significant change in States expenditure or new States expenditure is agreed or if there  is  a  proposal  to  dispose  of  a significant States asset. These reports will be issued directly to all States  members. The Council of Ministers and Minister for Treasury and Resources will need to have regard to the information provided in these reports.

The  Panel  will  continue  to  produce  an Annual Report commenting on the global and  Island  economy  and  States  finances, including  transfers  to/from  the  Strategic Reserve. The amendment has been drafted so as to ensure that this Report is produced in sufficient time for it to be considered by States Members prior to the annual Budget debate.

30

The  consolidation  of  Insurance arrangements  and  the establishment  of  the  Insurance Fund within Primary Legislation would  be  a  welcomed,  positive step forward.

The Corporate Services Panel's support for this  proposal  is  appreciated.  This amendment will facilitate the brokering and administration  of  insurance  arrangements across the States and other admitted bodies within a stand-alone Fund. This is not a new  initiative  –  the  Treasury  already operates  comprehensive  insurance arrangements.

These arrangements have and will continue to  enable  the  States  to  make  substantial financial savings on insurance premiums; as  well  as  ensuring  better  coverage  and management  and  awareness  of  risk throughout  the  organisation;  and  greater value  for money from external insurance policies.

A  Financial  Direction  will  provide  the necessary advice and information on this area  but  detail  of  this  nature  is  not appropriate for inclusion in the Law.

31

Further  clarity  is  required  on overall Risk Profiles arising from the  proposal  including;  issues around the participation by other persons  and  bodies  and  the determination of cost parameters required to service the Fund; and the level required for subsequent re-distribution  to  the

The Insurance Fund is already operational

– the amendment does not give effect to any  operational  changes.  It  merely formalises  the  current  arrangements  and makes these more transparent.

The  existing  arrangements  enable  the Minister  for  Treasury  and  Resources  to enter  into  insurance  arrangements  with bodies  which  have  connections  with  the

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Consolidated  Fund  or Contingency.

States. These bodies are charged for any insurance cover provided and will only be accepted into the States scheme once full consideration has been taken of the level and type of insurance cover required and any associated risks.

An  Insurance  Risk  Forum  and  Insurance Group meets regularly and discusses any emerging  risks  that  may  need  insurance consideration.  The  outcomes  of  these meetings  are  discussed  with  all  insured bodies which allows the States to monitor insurable risks more regularly.

32

Due to the safeguard of required States approval the Panel accept draft  Articles  20  and  21,  which will  enable  the  Minister  for Treasury and Resources to make Regulations to amend Parts 3 and 4 of the principal Law.

Any future changes to Parts 3 and 4 of the Law through the issuance of Regulations will  still  require  States  approval  in  the normal way.

The  change  does  not  allow  unlimited Ministerial intervention to amend the Law

–  the  amendment  proposes  that  certain areas  of  the  Law  can  be  amended  via Regulation,  which  still  requires consideration  and  approval  by  the Assembly  but  would  not  require  further approval  by the  UK Privy Council. This gives greater flexibility to the States and enables  faster  implementation  of  States decisions.

Recommendations

To

Accept/ Reject

Comments

Target date of action/ completion

1

The  Minister  for  Treasury  and Resources should not propose this amendment  until  a  baseline  of recognised  professional  Financial Management  Standards  has  been established  within  the  draft Legislation.

Reject

The  Public  Finances (Jersey) Law requires that the  role  of  Treasurer  of the States is independent and  specifically  states that  the  Treasurer  may not be directed as to how a  function  of  the  office should be carried out.

A baseline of professional Financial  Management Standards followed by the

Recommendations

To

Accept/ Reject

Comments

Target date of action/ completion

States of Jersey is already set  in  that  the  States follow  Generally Accepted  Accounting Principles  (GAAP)  and International  Financial Reporting  Standards (IFRS) as interpreted for the States of Jersey by the Financial  Reporting Manual  (JFReM).  The JFReM  is  based  on  the UK version of the same document,  which  is prepared  by H.M. Treasury  and  is subject to scrutiny by an independent  board,  the Financial  Reporting  and Advisory  Board. Accounting Standards are not static and the JFReM is  updated  on an  annual basis.

Below this level there are Financial Direction which are  regularly  reviewed and  updated  to  reflect developments  in accounting standards and practice.

The  level  of  detail  in these  documents  is  best left  outside  the  Public Finances (Jersey) Law to allow  for  such  updates and modifications.

2

The  Minister  for  Treasury  and Resources should not propose that the provision for the Treasurer to advise the Council of Ministers on the  Public  Finances  of  Jersey  is included  within  primary Legislation.

Accept

The Minister endorses the Panel's  view  that  the deletion  of  the  wording does  not  affect  the Treasurer's  existing responsibility to continue to  offer  independent financial  advice  to  the Council  of  Ministers

Completed

Recommendations

To

Accept/ Reject

Comments

Target date of action/ completion

should she so wish.

Draft  Public  Finances (Amendment  No.  4) (Jersey)  Law  201- (P.73/2013):  second amendment  was  lodged and  approved  by  the States  and  removed  the inclusion of the provision which  required  the Treasurer  to  provide advice to the Council of Ministers  on  financial matters.

3

The  Minister  for  Treasury  and Resources  should  amend  draft Article  15  by  inserting  proper practices'  in  order  to  address  the issue raised by the Comptroller and Auditor General.

Reject

The  term  "Accounting Standards" is used in the Public  Finances  (Jersey) Law  2005  and  is recognised throughout the States and any change in terminology would cause confusion.

4

The  Minister  for  Treasury  and Resources  should  give  due consideration  to  proposing  an alternative approach similar to that of  Standing  Order  168,  for  the transfer of funds between heads of expenditure.

Reject

This  recommendation  is not accepted.

Funds cannot and are not moved between heads of expenditure  with impunity – transfers have to  be  fully  justified  and agreed  by  the  Ministers where  the  transfers  are taking place and are only then  considered  by  the Minister for Treasury and Resources. Decisions are reported  in  public Ministerial Decisions.

5

The  Minister  for  Treasury  and Resources should not propose draft Article 12 to the States Assembly.

Reject

This  recommendation  is not accepted.

Departments  are  already able  to  transfer  funds between  heads  of expenditure  within certain  specified restrictions  this

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To

Accept/ Reject

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Target date of action/ completion

Amendment  extends  the circumstances  in  which transfers can be made.

As stated in the response to  the  previous recommendation  Funds cannot and are not moved between  heads  of expenditure  with impunity – transfers have to  be  fully  justified  and agreed  by  the  Ministers where  the  transfers  are taking place and are only then  considered  by  the Minister for Treasury and Resources. Decisions are reported  in  public Ministerial Decisions.

6

The States Assembly should not be asked to approve the draft proposal to  permanently  re-instate  the provision which will enable 11(8) Requests.

Reject

This  recommendation  is not accepted.

Since the States approval of the legislation creating the  Medium  Term Financial  Plan  it  has become  apparent  that there  must  be  a mechanism  to  allow  the Council of Ministers, on the  recommendation  of the Minister for Treasury and  Resources,  to  seek States  approval  where there is an urgent need to increase  expenditure approvals over and above those  contained  within the  MTFP,  where  there are  insufficient  funds  in existing  heads  of expenditure  and previously  approved contingencies  are  not sufficient.

It  must  be  emphasised that States approval must

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Target date of action/ completion

be  sought  for  any  such additional approvals.

7

The  draft  proposal  should  be amended  to  allow  for  FPP Members  to  be  appointed  by  the States on a Proposition signed by the  Minister  for  Treasury  and Resources and the Chief Minister.

Reject

This  recommendation  is not accepted.

The appointments process follows  the  procedures recommended  in P.205/2009  and  involves consultation  with  the Jersey  Appointments Commission  and  a 2 week  notice  period  to the  States  prior  to  final appointment  of  a  Panel Member.

8

The  Minister  for  Treasury  and Resources should present a report to the Assembly before the debate outlining  the  full  details  of  the Insurance Fund arrangements.

Accept

The  Minister  issued  a report  on  the  Insurance Fund  prior  to  the  States debate.

Completed