Implementation of European Union Legislation - Ministerial Response - 18 July 2014

Findings

Comments

1

The  Minister  for  External  Relations currently has the authority to make Orders that give effect to EU sanctions measures, delegated authority which dates back to 1999.

Agreed.  The  authority,  originally assigned  to  the  Policy  and Resources Committee in 1999, was subsequently  transferred  to  the Chief  Minister  upon  the introduction  of  Ministerial government and then transferred to the Minister for External Relations in 2013.

2

It  is  not  solely  the  1996  Law  which provides the legal authority for Ministers to  give  effect  to  EU  legislation.  Such legislation  may  also  be  given  effect  by Ministerial Orders under the authority of other Laws. This position would not be affected were the 1996 Law to be repealed and replaced by the draft Law. When any Law  is  adopted  in  which  Order-making powers are given to a Minister, there is therefore  a  possibility  that  such  powers could  be  used  to  give  effect  to  EU legislation.

Agreed.  Ministerial  Orders  under other  Laws  to  give  effect  to  EU legislation would, of course, depend on the necessary vires to exist.

3

Jersey  is  obliged  to  implement  EU legislation  which  is  directly  applicable and  binding  on  the  Island  under Protocol 3.  A  choice  can  be  made  to extend EU legislation voluntarily which is not  binding  but  where  it  is  considered beneficial to do so.

Agreed.

Findings

Comments

4

The  draft  Law  has  been  proposed  as  a means of improving the mechanisms by which  Jersey  gives  effect  to  sanctions measures.

Agreed.

5

Jersey is obliged to implement sanctions measures agreed in resolutions of the UN Security Council.

Agreed.

6

Sanctions measures are now implemented in Jersey more often by the extension of EU restrictive measures to the Island than by the use of a UK Order in Council.

Agreed.

7

There needs to be clarity as to whether or not  sanctions  Orders  adopted  in  Jersey have their origin in a resolution of the UN Security Council.

This recommendation is noted, and consideration  will  be  given  to  the most appropriate way to indicate the origin of the sanctions measures.

8

The  Common  Policy  on  External Relations  of  the  Council  of  Ministers includes provision for the extension and implementation of UN sanctions measures and EU restrictive measures to Jersey.

Agreed.

9

Guernsey and the Isle of Man have similar legislative  frameworks  to  Jersey  for  the implementation  and  extension  of  EU legislation.  Both  the  other  Crown Dependencies  have  provision  whereby decisions  can  be  delegated  from  their respective parliaments to another body.

Agreed.

10

The draft Law has in part been proposed in  order  that  recommendations  arising from  the  visit  of  the  International Monetary  Fund  in  2009  and  identified inefficiencies within the sanctions-making process can be addressed.

Agreed.

11

The draft Law, if adopted, would give the Minister  for  External  Relations  new, limited  Order-making  powers  by  which the Minister could give further effect to any  EU  provision  that  is  directly applicable to Jersey.

Agreed.

12

The draft Law, if adopted, would maintain Order-making powers which the Minister for  External  Relations  already  has  to implement provisions which relate to the EU's  Common  Foreign  and  Security Policy  and  which  typically  involve  the introduction of sanctions measures.

Agreed.

Findings

Comments

13

The introduction of ambulatory references under  the  draft  Law  would  lead  to  the enactment of fewer Ministerial Orders in respect  of  sanctions  measures  than  are currently required. This would lessen the administrative  burden  on  the  Chief Minister's  Department  and  Law Draftsman's  Office.  The  use  of ambulatory  references  would  not  be automatic.

Agreed.

14

Article 3 of the draft Law is intended to address one of the recommendations made in  2009  by  the  IMF  that  Jersey's  legal framework  should  be  amended  to expressly  include  all  types  of  financial services and related activities which are regulated in Jersey.

Agreed.

15

The  States  Assembly's  Regulations- making  powers  in  relation  to  the implementation  and  extension  of  EU legislation  would  not  be  materially affected by adoption of the draft Law.

Agreed.

16

The  changes  to  terminology  and references proposed in the draft Law are to be welcomed.

This view is appreciated.

17

Adoption of the draft Law would not in itself  amend  the  Island's  constitutional relationship with the EU under Protocol 3.

Agreed.

18

Orders made by the Minister for External Relations  to  implement  EU  restrictive measures  in  Jersey  would  refer  to  the EU's  Common  Foreign  and  Security Policy. That Policy is not binding on the Island, however, and adoption of the draft Law  would  ensure  that  the  Policy  was explicitly  excluded  from  the  list  of Treaties under which the arrangements for Jersey  have  legal  effect,  thereby recognising that it is not binding.

Only sanctions Orders would relate to  the  CFSP;  other  Orders  to implement  EU  legislation  which applies  to  Jersey  could  relate  to other policy areas (e.g. trade).

19

Adoption of the draft Law would give the Minister for External Relations the power to make Orders that would ensure Jersey's legislation  in  future  could  be  amended quickly to reflect changes in terminology. This would be a new Order-making power but is uncontroversial.

Agreed.

Findings

Comments

20

Articles 2(5) and 2(6) of the draft Law would establish reasonable limits on the power  to  implement  and  extend  EU legislation, particularly in relation to the Minister's Order-making powers.

Agreed

21

The Minister for External Relations does not  consult  the  Council  of  Ministers before making an Order to implement EU restrictive measures as it is the policy of the Council that such measures should be implemented.

Agreed.

22

The  Order-making  process  contains sufficient checks and balances: Ministerial Orders are published and notification of their  enactment  and  publication  is provided in the Jersey Gazette and on the States  Assembly's  Order  Papers.  The Assembly  is  ultimately  able  to  annul Orders which have been enacted.

Agreed.

23

The Scrutiny Review has raised broader questions about the authority of Ministers to give effect to EU legislation by Order. However, in terms of what the draft Law in itself seeks to deliver, the draft Law provides  appropriate  updates  and amendments  to  existing  legislation,  and there is, as a result, no reason why the draft Law should not be adopted.

The  Minister  welcomes  the recommendation  of  the  Scrutiny Panel  that  this  Law  should  be adopted.

Recommendations

To

Accept/ Reject

Comments

Target date of action/ completion

1

When  signing  future Ministerial Decisions for the implementation of sanctions measures,  the  Minister  for External  Relations  should confirm whether or not the measures have their origins in  a  resolution  of  the  UN Security Council and, if so, provide  the  reference  for that resolution.

ER

Accept

Reference  to  the origin of a sanctions measure  can  be included  in  the reasons  for  a Ministerial Decision.

Immediate