This Briefing Paper examines Standing Orders of the States of Jersey 72 and 79: referrals of draft Laws or Regulations for scrutiny and the suspension of debates for the purposes of scrutiny. The paper outlines actions undertaken under the Standing Orders as well as precedents of Presiding Officer’s decisions relating to them.
Standing Orders 72 and 79 were introduced following the adoption of new Standing Orders in 2005 (P.162/2005). This followed the identification of the need to establish a procedure for the scrutiny of propositions, including draft Laws and Regulations, as highlighted in P.79/2003 Machinery of Government - establishment of Scrutiny Panels and Public Accounts Committee.
As of August 2022, these two Standing Orders have been enacted 51 times. This has resulted in the scrutiny of 31 propositions, draft Laws, and Regulations. There have been a number of Presiding Officer decisions relating to the interpretation of when and how the Standing Orders apply, which this paper will also discuss.
Standing Order 72
Standing Order 72 of the States of Jersey establishes that once the States Assembly (the Assembly) agrees to the principles of a draft Law or draft Regulations, the relevant Scrutiny or Review Panel Chair (the Chair) has the absolute right to "call them in" for scrutiny.
It is possible that a draft may already have been delivered to the Panel informally, before debate of its principles, allowing the Panel to conduct scrutiny and pass comment pre-emptively. If this has happened, the Panel Chair is nevertheless still asked whether they wish to have the legislation referred to their Panel.
The Assembly is also able to request the Chair to reconsider, should the Chair not initially wish to have the draft referred to their Panel, with any States Member able to propose such a request. The referral would then be voted upon by the Assembly.
When a draft Law or Regulation is referred to the relevant Panel, the Assembly must agree at which meeting the second reading of the draft will be listed to continue. This cannot be later than the 4th meeting following the debate of the principles. The Chair will propose their intended time frame following announcing their decision to scrutinise the draft - it is rare for a debate on this proposed time to take place, however an example includes the Draft States of Jersey (Amendment No. 9) Law 201- (P.18/2017) in which multiple dates were proposed and debated prior to the Chair's suggestion being adopted.
Standing Order 72 does not apply to a draft Law or Regulation that includes a taxation draft that would implement any part of a Government Plan, as directed by paragraph (10) of Standing Order 72.
A "taxation draft" does not include a provision of draft legislation relating to long-term care contributions under the Social Security (Jersey) Law 1974 or rates (under the Rates (Jersey) Law 2005) and so such legislation is captured by the Standing Order.
Standing Order 79
Standing Order 79 of the States of Jersey establishes that any States Member may propose that a debate on any proposition be suspended in order for the Assembly to request that the relevant Scrutiny or Review Panel consider having the proposition referred to it.
At the next States sitting, if this suspension is adopted, the Chair of the relevant Panel will confirm if the Panel wishes to have the proposition referred to it. Should the Panel wish to carry out scrutiny, the Assembly will decide at which meeting it will debate the proposition - this cannot be later than the 4th meeting following the meeting in which confirmation is given. If the Panel is not minded for the proposition to be referred to it, the Assembly will decide to debate it at either the confirmation meeting or the next meeting.
It was highlighted in the report of P.162/2005, establishing Standing Order 79, that this procedure could be helpful if it becomes clear during a debate that there are concerns or issues that would benefit from review by a Panel.
The Standing Order does not apply to a proposition that has previously been referred to a Scrutiny or Review Panel; a government plan; a proposition lodged by under Article 16 of the Public Finances Law; or a taxation draft that would implement any part of a government plan (see above re definitions of a taxation draft).
Standing Orders in action
As of August 2022, Standing Orders 72 and 79 have been enacted 51 times. This has resulted in the scrutiny of 31 propositions.
Laws and Regulations
Under Standing Order 72(1) the Presiding Officer must ask if the Chair of the relevant Scrutiny Panel wishes to scrutinise any draft Law or Regulation after their principles have been adopted in first reading. This absolute right to scrutinise legislation has been used by Panel chairs in 25 instances.
There have been a further two occasions in which a States Member has enacted Standing Order 72(2), proposing that the Assembly request the Chair to reconsider scrutinising the draft Law or Regulation. However, these propositions for scrutiny referral of P.71/2006 and P.26/2007 were both defeated when the Assembly voted upon them.
If the Chair of a relevant Panel is not present at the meeting the Vice Chair can decide to call in the legislation. If neither is present a member of the relevant Panel will be asked by the Presiding Officer under Standing Order 72(9). There is precedence of no member of a Panel being present. This occurred during the debate of the Draft Employment of States of Jersey Employees (Amendment No. 9) (Jersey) Regulations 201- (P.126/2017) on 18th January 2018 - it was ruled that the legislation could not be called in for scrutiny in that instance.
Standing Order 72(4) states that a draft Law or Regulation shall not be referred to the relevant Scrutiny or Review Panel if it has previously been referred to that Panel. This has been interpreted to indicate a formal referral to the Panel by the Assembly (for example under Standing Order 79). It cannot be used to prevent the Scrutiny Panel deciding to scrutinize legislation it has previously considered 'informally' and cannot be interpreted to cover an informal 'referral' of draft legislation to a Panel by the Minister before the debate.
Should there be a question of which is the "relevant" Scrutiny or Review Panel to scrutinise the topics of the draft Law or Regulation, the Presiding Officer will take the advice of the Scrutiny Liaison Committee President under Standing Order 72(8). This uncertainty within debate is rare as the "main respondent" is generally identified prior to the meeting.
If a Panel Chair informs the Assembly that the draft Law or Regulations are to be referred to the relevant Panel, the date of the debate's resumption must be set at that point under Standing Order 72(5). In practice, the Chair is asked to propose a date and the Assembly is asked to agree or to amend the debate, there is precedent of this in the referral of Draft Telecommunications (Amendment No. 3) and Crime (Miscellaneous Provisions) (Jersey) Law 201- (P.19/2016) on 12th April 2016.
The time undertaken to recommence the debate of the draft legislation following reference to scrutiny under Standing Order 72 has varied. The Draft Social Security (Amendment of Law No. 12) (Jersey) Regulations 202- (P.31/2020) was returned for debate in 6 days - though it can be highlighted that this took place during the COVID-19 Pandemic.
Once the resumption date has been chosen, it is for the Assembly to decide whether a different date should then apply, accordingly the proposer cannot use authority under Standing Order 30(2) to defer the debate still further. As described above, there has been some variation between the proposed and actual return to debate, however the average difference is minimal:
A Chair's decision to scrutinise proposed legislation by virtue of Standing Order 72 has at times changed following further information being provided to them. One such example is that of the Draft Public Elections (Expenditure and Donations) (Jersey) Regulations 200- (P.82/2008) which the Chair called in for scrutiny following adoption of its principles on 17th July 2008. However the Chair reversed this decision the following day upon consideration of a statement by H.M. Attorney General and with regard to the necessity of timely introduction of the Regulations.
Suspension of debates
There have been a total of 26 proposals to suspend debates of propositions for the purpose of reference to scrutiny under Standing Order 79. Just under a quarter (6) of these proposals were adopted by the Assembly, whereas 16 were rejected with a further 4 being withdrawn by the proposer of the suspension prior to being voted upon. Panel Chairs agreed to conduct scrutiny of all 6 propositions referred to them following suspension of their debate. Four propositions returned to the Assembly following scrutiny on referral under Standing Order 79, there had been an average of 80 days taken to resume following the suspension of debate.
Instances of Standing Order 79 have also led to the withdrawal of the main proposition even when the Assembly has decided not to adopt suspension of the debate. Examples include the Committee of Inquiry: Mobile Telecommunications (P.144/2006) debated 22th November 2006, and the Draft Crime (Disorderly Conduct and Harassment) (Jersey) Law 200- (P.151/2006) debated 16th January 2007. In both these cases the Minister conceded to withdraw the proposition following acceptance that scrutiny would likely take place prior to second reading under Standing Order 72 and that further informal discussion was required with States Members and members of the relevant Panels.
Similarly there have been two propositions that have been withdrawn following referral to scrutiny, firstly the Draft Sexual Offences (Jersey) Law 200- (P.196/2005) was withdrawn following publication of the Scrutiny Report 'Age of Consent Review' (S.R.1/2006) which recommended that the Minister for Home Affairs present appropriate legislation to introduce abuse of position of trust provisions prior to any further debate of the Draft Sexual Offences (Jersey) Law. The second example was the Future Hospital Funding Strategy (P.130/2016), withdrawn to allow greater certainty about key aspects of the Future Hospital project, as indicated by the Minister for Treasury and Resources in a statement given to the Assembly on 23rd May 2017.
A proposition under Standing Order 79 can be made at any stage in a debate and such propositions have been allowed during the initial debate on the principles of draft legislation – even though there is requirement for the relevant scrutiny Panel to be asked if it wants to scrutinize the draft after that debate under Standing Order 72. For example the Draft Machinery of Government (Miscellaneous Amendments) (Jersey) Law 201- (P.1/2018) was subject to Standing Order 79 during the first reading - the Assembly chose not to refer it to scrutiny, therefore the Chair of the Corporate Services Scrutiny Panel went on to "call it in" under Standing Order 72 once its principles were adopted.
During the debate on the Draft Banking Business (Depositors Compensation) (Jersey) Regulations 200- (P.86/2009) it was known that the Chair of the Economic Affairs Scrutiny Panel would ask for a referral under Standing Order 72 once the principles were adopted. Ministers did not want this delay and another States Member proposed a reference under Standing Order 79 believing that if put to a vote it would be rejected (which it was by 2 votes to 43). It was intended that this would send a signal to the Chair about the strength of feeling against a referral to scrutiny; but the vote still did not prevent the Chair exercising their right to have the draft referred under Standing Order 72 when the principles were adopted.
As noted there have been 4 propositions for the suspension of debate that have been withdrawn by the proposer of the suspension. In the case of Suspension of States Employees and States of Jersey Police Officers: Revised Procedures (P.46/2009) debated 29th April 2009 it was established that the withdrawal of the proposition to suspend debate required the leave of the Assembly, and a recorded vote was taken. There are other instances, such as the Draft Gambling Commission (Jersey) Law 200- (P.139/2009) debated 1st December 2009, in which the Assembly was simply content for the proposition to suspend the debate be withdrawn.
A somewhat complicated example of the use of Standing Order 79 took place during the debate of the Draft Freedom of Information (Jersey) Law 201- (P.39/2011), held 4th May 2011. The draft Law had been adopted in principle, without Standing Order 72 being enacted, and many of the articles had been adopted in second reading. During their speech Deputy P.V.F. Le Claire stated that they wished for the draft Law to be referred to scrutiny, the Deputy Bailiff accordingly identified:
"Deputy, forgive me for interrupting you, please sit down. Standing Order 79 says that: "Any Member of the States may propose without notice that the debate on any proposition be suspended and the States request the relevant Scrutiny Panel to consider having the proposition referred to it." Now, the States have already approved a large part of this draft Law and it does not seem to me to be clear that it is open to a Scrutiny Panel to scrutinise something that the States have already approved. I concede that your proposition is perfectly able to be made in relation to Part 6 and Schedule 2 and Part 7"
During debate of the suspension the proposer withdrew their proposition to suspend the debate. However, adding to the interesting nature of the case, a second Assembly Member, Deputy R.C. Duhamel, indicated that they wished to propose the same suspension following the withdrawal. This was allowed by the Deputy Bailiff and as such a second debate took place on the suspension of debate on Part 6 and 7, Schedule 2 and Third Reading of P.39/2011 - ultimately the Assembly did not adopt that suspension.
There are other instances in which a proposition has faced multiple potential suspensions for reference to scrutiny. In 2008, the Bailiff ruled, in an e-mail to the Greffier, that it was not out of order to allow Standing Order 79 to be proposed twice in the same debate when the proposed referral was to a different Panel on the second occasion.
There is also further precedent for specific parts of a proposition to be subject to Standing Order 79 - such was the case of the Annual Business Plan 2008 (P.93/2007) debated on 25 September 2007. In this case it was proposed that the debate of part (h) of the proposition be suspended, which was allowed by the Bailiff (although the proposer went on to withdraw the proposal to suspend the debate).