Extracts from the Official Record - 16th July 2007

The Official Record – 16th July 2007

Draft Unlawful Entertainments (Jersey) Regulations

The Deputy Greffier of the States:

Draft Unlawful Public Entertainments (Jersey) Regulations, these States in pursuance of the Order in dated 20th March 1771 have made the following regulations.

5.1 Senator W. Kinnard (The Minister for Home Affairs):

The present Unlawful Public Entertainments (Jersey) Regulations 2004 are due to expire on 20 These are triennial regulations and new regulations are now required to replace them. Triennial reg were first introduced in this area in the 1990s to strengthen the Bailiff 's existing control o entertainment which derives from the late 18th century when it was feared that too much intere theatre on the part of local citizens might encourage idleness or worse, public misbehaviou Poingdestre wrote in the 17th century to the effect that it properly fell to the Bailiff to ensure the ord lawful conduct of places to which the public had resort for drinking and entertainment. These cu powers were reflected in the Bailiff 's Oath under the Code of Law 1771 which required that he shall ke shall cause to be kept the peace. Neither the 1771 Code nor the Act of the States of 1778 laid d powers of the Bailiff over public entertainment. These powers were intrinsic to the office itself. How Orders in Council have provided a suitable authority and law on which to bring forward regulations re such customary powers. While all this background may seem arcane to some I have been asked b Le Hérissier, by way of written questions, why these regulations today are being made pursuant to Order in Council. These draft regulations are a replacement for those made in 2004 and make changes to them. I am advised therefore that it is appropriate that the 2007 regulations should be to the same 1771 Order in Council. The regulations are really a straight re-enactment of previous o the exception of 2 minor changes at Regulations 2 and 6. Turning now briefly to identify those ch Regulation 2 of the draft regulations creates a new offence of contravening or failing to comply conditions subject to which a permit is granted. It would become an offence therefore to fail reasonable steps to ensure that conditions upon which permission has been granted were adhered t events can take place as long as the audience numbers are fixed or the noise levels adhered to other conditions meant. Although this is implicit in the current process the changes make clear an o which will have been agreed in advance following consultation with the Panel which advises the Regulation 6 introduces a standard provision as to the liability of an individual where an offence u regulations is committed by a body corporate or a limited liability partnership. In modern ti regulations were introduced, as I have said, in the 1990s specifically to deal with instances of unau raids taking place in fields and on headlands in the Island when concerns about safety an disturbance made it necessary to be more precise about the requirement for permission and the pen acting without that permission. The regulations which relate to public entertainment in general have force since that time and it is now necessary for the States to agree to renew the regulations for an entertainment requiring Bailiff 's permission to take place. The regulations have never included the d of public entertainment and it was again agreed following discussions with relevant parties that no d of a public entertainment should be included in these draft regulations. This is because of the dif drawing precise boundaries and the fact that existing regulations have been effectively administer their first introduction in 1992. It remains an offence at customary law to organise public enter without the permission of the Bailiff and all major public entertainment events are passed before th Entertainment Panel chaired by the Bailiff 's Chief Officer as a matter of routine. Event plans and assessments are submitted in advance and the Panel provides support advice and offers recomme regarding the safe and appropriate operation of the event before the permit is issued. In practice, th intending to stage an event generally finds it difficult to do so without publicising that event and if pe has not been sought he or she is likely to be challenged by either the Parish or the Bailiff 's Chambe event proceeds without permission it would be very difficult in those circumstances for it to be claim there was no awareness of the requirement to obtain permission. From time to time the exercise Bailiff 's powers has come under review. Discussion in the recent past of whether control of enter should continue to lie with the Bailiff was undertaken by a Legislation Committee Working Party he Deputy Le Hérissier. My understanding is that an alternative means of licensing is likely to be both costly and entail substantial law drafting. For those reasons, I believe, there has been no pressing imperative to change the status quo and thus renewal of the regulations continues to be the means the powers to regulate public entertainment continues to be achieved. The draft regulations were consultation to the Bailiff with feedback also received from Economic Development and Education, S Culture, who have expressed no concerns regarding the proposed amendments to the regulations made recommendations regarding procedural improvements and these observations will be passed Bailiff 's office. Sir, I propose the principles of the regulations.

The Deputy Bailiff :

Are the principles seconded? [Seconded] Does any Member wish to speak on the principles?

1. Deputy J.A. Martin:

Just a small question for the Minister. She draws our attention to a small change under 2(a). Is this an enabling law, in a way, for it to be easier to make -- if one of the Bailiff 's conditions were for the or to pay for policing of an event I can see this could be a condition and I think that is a separate deba want reassurance that this could not happen under this new 2(a) because if it does mean anything could not support it, Sir.

2. Senator S. Syvret:

I understand the need to renew these regulations now so the Assembly has little chance other than them with the relevant amendments. But I do make a plea to the Minister for the future that we rea to be thinking about getting away from the whole notion of the Bailiff , or his subordinate, licensin entertainment or deciding, with the advice of his Panel, what should or should not be permitted place. It really is obsolescent, paternalistic, frankly probably not an appropriate involvement of a me the judiciary who is supposed to be neutral on all matters. Really if there are issues such as publi decency, potential risks, policing issues and so on, then they are relevant laws in those fields relevant law enforcement agencies ought to be able to deal with it. I think the time has come reall the judiciary out of this kind of executive role.

3. Deputy S.C. Ferguson:

I am a bit concerned about this because the amendment to the regulations gives a much stronger the Bailiff 's Panel. Previously it has been more advisory than stipulating things and I query following on from Senator Syvret, we have the Bailiff 's Panel. Well, the Panel are specialists in t fields, perhaps. You know, you have a fire officer, the chief ambulance officer, an inspector from th health and safety and so on. Yes, okay, they are specialists in their own field but they are n specialists. Running an event is quite different to running an ambulance. There are differences. I wrong to allow people with no experience in running an event to dictate the conditions. Now something that I understand that all the people involved in organising events in the Island consider, just particularly talking about one event. As I say, there are a number of people. I would ask the M look to the structure of the Bailiff 's Panel and perhaps discuss ways in which this should include, pe couple of events organisers or somebody involved in this type of business so that you get a more b view about what is an acceptable risk in this sort of organisation. Unfortunately, if you do not h experience in organising an event then your perception of risk and acceptable risk is quite different t who are experienced in organising these things.

4. Senator P.F.C. Ozouf :

I have sympathy with the Minister's position. I fully understand the difficulty that she finds herself in, regulations, as somewhat uncomfortable as they are. She did say in her opening remarks that E Development had been consulted on them. Is she aware that Economic Development has offered t member of Economic Development staff on the Bailiff 's Panel so that they may advise on th concerning the issues that Deputy Ferguson raised about events organisers? Does she not suppo my call for a member of Economic Development to be part of that balanced team? It appears that it only regulators that are part of that team and having personal experience of dealing with the Bailiff ' think that there are issues that need to be improved upon the way in which decision making is m necessarily the accountability of them but certainly the balance in which they make their decisions. people organising events do find the Bailiff 's Panel quite difficult for, I think, unfortunate reasons, an that some of those difficulties would be assisted if they would be in agreement that there would be so from Economic Development or Culture to be part of the Panel.

5. Senator J.L. Perchard:

Under 3(3) of the regulations, Sir, it states the proceeds from any confiscation would be transfe credited to the consolidated fund. Would the Minister welcome some clarity and transparency with to this transfer, and similarly the proceeds of crime confiscation funds and the drug trafficking con funds, being transferred but the transfer being recorded as an addendum to the States' annual acco the use of those funds being associated with that record being made clear and transparent in th accounts of the States?

6. The Deputy of St. Martin :

Just a couple of points. One is following up a little bit from what Senator Ozouf was talking about ago. On page 4 of the report it does mention that: "Draft regulations have been sent for consultatio Bailiff whose comments have been included within the report. Feedback was also received from E Development, Education, Sports and Culture and expressed no concerns regarding the p amendments to regulations but have made recommendations regarding procedural improvements." the Minister in summing up could give us a little enlargement of what those procedural improveme The second one, is raising a -- a little of the issues have been raised again probably by Deputy F was that I get a little bit confused about when we have regulations which do not seem to be comp human rights and laws that are. I note that particularly with some of the areas that we have here a role of the Bailiff , et cetera, giving permission whether, in fact, that is compliant with convention ri why is it not necessary to be shown in this particular regulation, that what is being proposed is convention compliant.

7. Deputy R.G. Le Hérissier:

Just a brief word to support what Senator Kinnard said, in fact, and it will interest Senator Syvret if h look at R.C.26 of 2002, because there the working group did come out against the Bailiff 's role entertainment. The real problem occurred once the working group had reported, Sir, that it was eno difficult and we were likely to enter another bureaucratic nightmare in terms of creating what almost so bit communistic, a Public Entertainments Authority, where somebody would preside the great and th Certainly not the politicians. Of course the arguments for not having a judiciary are as compelling in not having politicians. They would deal with the moral aspects of public entertainment and they wo with the public safety one, Sir. It is probably, in a totally pragmatic sense, the proposal collapsed be the sheer bureaucracy and the sheer need to define every aspect of public entertainment and so fo you removed it from the customary area, as Senator Kinnard said. So, for that reason, the f collapsed. It just was not seen as possible to set up this vast bureaucracy with this vast law which w to define what public entertainment was and was trying to define the grounds upon which discretion exercised in that field. So, I am afraid, Sir, we were in a bit of a conundrum in this regard and I can why the Senator has ended up having to propose something unsatisfactory for fear that it migh something in many respects even more unsatisfactory. All very unfortunate, but that is where it ende

8. Connétable M.K. Jackson of St. Brelade :

Just a couple of brief points, Sir. One is that I am concerned about the over bureaucracy of this, as h mentioned by previous speakers, and I also agree with the Minister for Economic Development in th we need to be a bit pro-active in the leading of event-led tourism and would not wish for it to be squa an over-bureaucratic Committee. Secondly, Sir, I am surprised that in the report there are no menti parishes and Honorary Police being involved. The Minister did mention in her speech the parish would have liked to have seen this written in this report because the Honorary Police, as Members w do play quite a large function in these events.

9. Connétable J.Le S. Gallichan of Trinity :

I would just like to follow the former Connétable but just also bring it out that I have sat on many Panels. They are to my idea, helpful when it comes to something like Jersey Live which happens i which is a major policing event and, of course, the only problem that I find sometimes with the Bailif is when the organisers come with set dates they decide before we sit on what day the festival is go held. Even though we might bring up concerns about it, it seems to be an immovable feast and sometimes question how much power the Bailiff 's Panel has. I think that if there are concerns on and for the safety of people on the egress of these events -- we fully support Jersey Live, do no wrong, Sir. The Parish fully support it but when 10,000 people leave an event at about 11.00 p.m major policing event and it is a major problem if problems occur. So far the event is very well organ have had very few problems but it does become the problem to the smaller parishes who have an H system which are meant to be policing their own Parish. We do have major draws now. Each Co will also, I am sure, say exactly what I am saying, the amount of event-led tourism in the Islan moment is giving cause to the States Police for the policing and more and more the Honorary P being asked to help other parishes. We do this as much as we can but there is a limit to how many t officers are called. We have the Battle of Flowers, Air Display, the Marathon, Jersey Live, w wonderful for tourism but the policing must be taken into consideration. I have a great deal of conce this draft, I think it is quite fair to say it is a very hard one to bring for the Minister. I fully support it bu just say that on major events the Bailiff should still have the power.

The Deputy Bailiff :

I call upon the Minister to reply.

10. Senator W. Kinnard:

First of all, Deputy Martin raised the issue of charging for policing events. This is an entirely proposition. This proposition is not about policing per se, it is purely about the mechanism that is grant permission. So a lot of the comments, I think, are really, in a sense, matters for another day. terms of the charging for policing events, there is no particular rush to bring that piece of legislation as agreement has already been reached with Jersey Live for 2007 for that event to take place, so say that that is out with this proposition. It is not really relevant in this particular perspective. Senato raised the issue about the Bailiff and whether the Bailiff should have executive powers and certain grateful to Deputy Le Hérissier who was the chairman of the working party that looked into this who and I think he gave an excellent response in explaining that what might be needed to replace the Panel could turn out to be a bureaucratic nightmare and would take up quite a lot of resources th can perhaps be better utilised elsewhere at the moment. But, having said that, it is open to any Me this House to bring a proposition, whether it is Deputy Ferguson or Senator Syvret or anyone obviously change that position if they saw fit once having done the research. But I would recommend that they read the report of the Legislation Committee Working Party of the day on this p matter before they jump to any particular conclusions on that matter. Deputy Ferguson did raise t about perhaps those that have more of an interest in events taking place in the Island should be me the Bailiff 's Panel. It is not for me to say who should or should not be a member of the Bailiff 's Pa certainly think that a wider representation from that perspective would certainly do no harm, and on things that I mentioned in my speech was that I would be passing on the comments about pr changes and recommendations that have been made by Economic Development to the Bailiff 's conclusion of this debate, and indeed that is the case, and I am aware of the offer made by E Development to put someone forward, and certainly it is a matter I will be taking up with the Bailiff ' Senator Perchard talked about that anything that is confiscated would go to the consolidated f whether there should be absolute transparency about that. Clearly, that is an issue, I think, more th be better answered by the Treasury Minister. Clearly, I am keen on transparency wherever it can o

as to how it should appear in the accounts, I am afraid I do not feel I am absolutely qualified to ans so perhaps that is a question that could be put to the Treasury Minister on another occasion. The D St. Martin talked about what were the procedural improvements, and again these are matters not sp the regulations today. They are matters that I will be passing on to the Bailiff 's office but they matters to do with organisers being made more aware of the need for permits, ensuring that the pari aware of events taking place in their parishes and, obviously, the involvement of someone from E Development as a representative of the Panel. Those were the procedural improvements th recommended which will be put forward to the Bailiff 's office and that really was about it. The oth were really points of detail in the report that were made by Education, Sport and Culture and their co were taken on board in the re-writing of the draft report. The Deputy of St. Martin also asked why bringing regulations forward there does not have to be a statement about convention rights. I think, that is something I should ask the Solicitor General if she could answer. I cannot remember the rhy reasons and wherefores as to why -- I think regulations do not have to. I think it is because they substantive law but I am sure the Solicitor General will give a much more eloquent explanation. D Hérissier, as I say, I was very grateful to him for his explanation, and the Constables were concern over bureaucracy. Again, I think this will be assisted, if there are concerns about that, if the proposa a member from Economic Development on the Panel was taken forward. Again, the issues are no policing here today, we are just talking about the regulations which is the mechanism for permission. They are designed, the amendments that have been made, to give the Bailiff recommendations greater power and I think that is something that some of the Connétable s will pro looking for because it is important that if events can be allowed to take place with certain restrict those restrictions are adhered to for the benefit of the public. One of the ways in which we are seek you like, bolster the Bailiff 's powers is to make that absolutely clear within the regulations. They a moment, if you like, assumed or taken for granted. But I think it is important that they are now incl the face of the regulations so everybody is clear as to what their responsibilities are. So that is maintain the principles of the regulations.

The Deputy Bailiff :

Do Members wish to hear from the Solicitor General briefly on the point on human rights?

The Deputy of St. Martin :

If I could on convention compliant, please.

Miss. S.C. Nicolle Q.C., The Solicitor General:

The question was why it is that a law has a human rights compatibility statement and regulations these do not. The answer is that Article 16 of the Human Rights (Jersey) Law 2000 says that a Mini lodges au Greffe' a projet de loi must, before the second reading of the projet, make a stateme effect that in his view the provisions of the projet are compatible with the convention rights, or alte make a statement to the effect that although the Minister is unable to make a statement of compat nevertheless wishes the States to continue with the projet, and the statement must be in writing projet de loi is a proposition for a law and that is why when a proposition for a law is presented it human rights statement. But Article 16 refers only to projets de loi, it does not refer to triennial reg which is what these are. But if it is any comfort to Members I have to say I cannot see anythin regulations which is not human rights compliant.

The Deputy Bailiff :

All those in favour of adopting the principles of the regulations kindly show. Those against. The p are adopted. Minister, do you wish to propose the regulations?

Senator W. Kinnard:

Yes, thank you, Sir. Regulations 1, 3, 4 and 5 are re-enactments of previous regulations cove offence, powers of forfeiture and seizure of the proceeds of the offence and the standard provision in of aiders and abetters. Regulation 2 creates the offence of contravening or failing to comply with a c subject to which a permit is granted. As previously outlined, Regulation 6 adds a standard provision bodies corporate and limited liability partnerships and the regulations, Sir, will come into force for from 21st July. Sir, I propose the regulations.

The Deputy Bailiff :

Are they seconded? [Seconded] Does any Member wish to speak on any of the regulations? All favour of adopting all the regulations kindly show. Those against. The regulations are adopted. propose them in third reading?

Senator W. Kinnard: I do, Sir.

The Deputy Bailiff :

Seconded? [Seconded] Does any Member wish to speak on third reading? All those in favour of the regulations in third reading kindly show. Those against. The regulations are adopted in third although I do beg your pardon, should I have referred this to the Scrutiny Panel? I am afraid Mezbourian , I omitted to ask whether your Scrutiny Panel wishes to have this referred to them. Do to?

Deputy D.W. Mezbourian : No, thank you, Sir.

The Deputy Bailiff :

That is a relief. [Laughter]