If I may just comment on the fact that today is a remarkable day because Connétable Norman has now been included in the roll call in this Assembly for the last 30 years. [Approbation] His fantastic record of service is that he was first elected to the States on 17th June 1983 as a Deputy of St. Clement. He was re-elected as Deputy for that Parish in 1987, 1990 and 1993. He was then elected as a Senator in 1996 and re-elected on 12th December 2002. He was then elected as Connétable of St. Clement on 8th December 2008 and again in 2011. I hope Members will join me in congratulating the Connétable and thanking him for his service to his Parish, Island and this Assembly during his 30 years of service. [Approbation]

Connétable L Norman of St. Clement:

I am not usually lost for words but I would like to thank Senator Routier for his very kind words and the appreciation of the Assembly shown in the traditional manner. Clearly, I must have done something extremely bad in a previous life. [Laughter]

The Bailiff:

Thank you very much, Connétable.

COMMUNICATIONS BY THE PRESIDING OFFICER

2. The Bailiff:

May I welcome His Excellency, particularly on this occasion as it comes shortly after the service to celebrate 60 years since Her Majesty’s Coronation. [Approbation]

QUESTIONS

3. Written Questions

3.1. DEPUTY J.A. MARTIN OF ST. HELIER OF THE MINISTER FOR TREASURY AND RESOURCES REGARDING THE PROPOSED ELECTRICITY SUB-STATION AT WESTMOUNT:

Question

Will the Minister provide details (by use of a map if necessary) of what part of St Helier the proposed electricity sub-station at Westmount is intended to service and, in view of his comment in the States on 4th June 2013 that “there are going to be problems in the future in relation to the J.E.C.’s ability to deliver supply to homes” in St. Helier if the scheme does not go ahead, would he set out the likely timescale for any such disruption?

Would the Minister also give a list (using a map if necessary) of the other potential sites considered for the substation and explain, in each case, why the site was ruled out?

Answer

The Minister considers that the need to provide a reliable power supply to homes and businesses is a core requirement for the JEC and he is seeking a swift resolution to avoid any disruption to power supplies.

The Minister is advised that this is an urgent issue that needs to be resolved without delay and has sought to expedite the preferred solution with the Parish, as landowner, and the JEC.

The preferred option and other sites considered, together with a commentary provided by the JEC in respect of the pressure on capacity, are set out below.

St Helier West Primary Substation

The electricity network in the central and western part of St Helier is presently near full capacity and demand is growing. Several cable circuits and related equipment between Queens Road and Esplanade were installed over 50 years ago and are becoming aged as well as ‘stressed’ due to the high electricity loadings. This could lead to a reduced asset life as well as increased risk of disruption of supplies to existing customers.

There is limited backup infrastructure available to maintain supplies in the event of an ‘electrical fault’ situation especially if an event occurred during the winter months. A sustained fault at either Queens Road Primary or Esplanade Primary would mean that Jersey Electricity could have difficulty supplying customers for up to 1,250 peak hours over the 6 winter months until the fault was repaired. A major fault could easily take 6 months to repair, requiring procurement of assets from specialist manufacturers’ off-island.

Such an event would therefore lead to repeated supply (rota) disconnections and re-connections during the afternoon and evening when the electricity network loads are at their highest (and when the electricity is most needed). Customers affected could include domestic customers as well as existing businesses including those located in the commercial district of St Helier.

Two thirds of St Helier could be at risk depending on the nature and timing of the fault (darker area in Figure 1 below). In addition services to some customers in adjacent Parishes could also be similarly affected as the network topography is not delineated by Parish.

Figure 1 – Potential Area at Risk

Area of increased risk within St Helier Parish

An additional consequence of this is that Jersey Electricity is unable to provide new supplies to new developments, including the hospital development, housing schemes as well as new supplies to businesses and the commercial district of St Helier.

Jersey Electricity has been looking for a suitable site for a substation for several years. Parish and States officials have been extensively involved in this process. In order to securely reinforce the network in this part of St Helier, the substation needs to be physically located between the Esplanade Primary and the Queens Road Primary. The location is critical as it must be sited close to the load to offer secure integration to the existing Jersey Electricity network with minimal cable lengths and maximum cable separation that is necessary for resilient connections. The network design showing cabling, is shown diagrammatically in Figure 2 below.

Figure 2 – Diagrammatic Representation of the 11Kv Network

Existing 11kV Network Network showing new St Helier West

The new proposed St Helier West Primary substation will take load from the Esplanade Primary and from Queens Road Primary relieving those substations of their overload operation. It will also offer additional capacity for existing and new customers in the north, west and central St Helier.

Several options for the new substation have been extensively explored. These are shown in Figure 3 and described in detail below.

Figure 3 – Site Options Considered

The options considered were:-

A) Part buried in the crescent of Peoples Park - former fountain

B) In the car park adjacent to the Inn on the Park site

C) In the old disused quarry opposite Lower Park

D) As a direct replacement for Fergusson’s Folly

E) In Victoria Park

F) In the Overdale Grounds Val Andre

The preferred site, taking into account the various trade-offs, is option C. This site was chosen after discussion with both Planning and Parish Officers for four primary reasons:

It was felt that the substation was easier to conceal and landscape than would be the case if sited in the open parkland alternatives
Whilst more expensive for Jersey Electricity in terms of site preparation and despite some technical compromise, the site was considered acceptable given the minimal loss of amenity, ease of concealment and ease of access for installation and for emergency repair
The site is remote from residential areas, minimising any safety risk or noise to neighbours
From a Parish perspective, they would no longer be responsible for any future contingent liability risk (and cost) associated with an old and potentially unstable quarry

Details for each option are listed as follows.

A) Part buried in the crescent of Peoples Park (former fountain location)

This location has been discussed with the Parish who welcomed the installation if it included Public Toilets and offered a viewing platform. These facilities could be included in the design.

Proposed St Helier West Primary Substation at People’s Park

This is Jersey Electricity’s preferred location. It is good secure location to connect into the existing 11kV circuits and 90kV circuits. This proposal was not supported by planning officers.

B) In the car park adjacent to the Inn on the Park

The primary substation could be located in the car park. It could be walled for security as required.

Its location is good for secure connection to the existing 11kV and 90kV cables. This proposal was supported by Planning Officers. Significant objections may emerge from apartment owners who would be within a few metres of the site, and therefore this site has not been progressed.

C) In the old disused quarry opposite Lower Park

This location was proposed by the Parish. The substation would be mostly concealed but the 11kV cable installation would still be challenging as 6 circuits would need to run along the inner road past West Park. However this is deemed achievable. Planning Officers agree with this proposal subject to design criteria.

Disused quarry - Existing Site

Substation cut into disused quarry opposite Lower Park - Proposed

D) As a direct replacement for Fergusson’s Folly

The building shell is not quite large enough to accommodate the equipment but the style could be very closely followed if required and certain plant installed underground (under St Aubins Inner Road). The 11kV cable installation would be very difficult as 6 circuits would need to run along the inner road past West Park. If part of the installation was installed under the road, the road would likely have to be closed for about 18 months pending the build process leading to significant traffic problems. This proposal was not supported by Planning Officers.

E) In Victoria Park

This location is good for connection to existing 11kV and 90kV circuits, but it was not supported by Planning Officers due to the sensitivity of the location.

F) In Overdale Grounds Val Andre

This location was proposed by Property Holdings as an alternative site to those previously considered. It is a very difficult (near impossible) location to install large plant and equipment and very difficult to resiliently connect to existing 11kV and 90kV circuits.

3.2 DEPUTY G.C.L. BAUDAINS OF ST. CLEMENT OF TO THE MINISTER FOR PLANNING AND ENVIRONMENT REGARDING EMISSIONS FROM COMPRESSED AIR POWERED VEHICLES:

Question

Following the Minister’s recent statement suggesting that compressed air powered cars are environmentally superior to petrol powered ones has the Minister researched the overall energy requirements of using these vehicles compared to other vehicles such as modern diesel cars and is he satisfied in promoting the use of compressed air vehicles that the cleaner environment they may create in the vicinity of the vehicle in question is not offset by a greater environmental problem elsewhere in relation to the generation of the necessary energy to power the vehicle?

Answer

I believe Deputy Baudains is referring to the comments I have made in relation to the recently launched Air Quality Strategy, included in the article published in the JEP on the 28th May entitled ‘Call for greener cars in air quality drive’.

Emissions produced from energy used to fuel cars are the main contributor to air pollution on the Island and the Air Quality Strategy provides a framework for ensuring that our air quality is maintained and improved.

We must encourage people to use lower emission and more environmentally friendly powered cars such as electric, hydrogen or compressed air vehicles in the future.

In relation to the total environmental impact of these alternatively powered vehicles, much depends on how clean the source of power to manufacture and run the cars is. As identified in the ‘Pathway 2050: An Energy Plan for Jersey’, tidal and wind power may play a role in the future for the island and help us towards reducing carbon emissions and improving our air quality.

3.3 SENATOR S.C. FERGUSON OF THE MINISTER FOR HEALTH AND SOCIAL SERVICES REGARDING SUICIDE RATES:

Question

How many attempted suicides and actual suicides have there been over the past 5 years?

Answer

Between 2008 and 2011 there were an average of 13-14 suicides each year, ranging from in any one year from seven to 25 (see Figure 1). However figures have dropped significantly during the last 3 years.

Figure 1: Numbers of suicides and open verdicts in past five years

Year	Total	Open Verdict
2008	16	0
2009	25	1
2010	9	1
2011	11	0
2012*	7	1

*provisional: subject to sign-off by Deputy Viscount

In the UK open verdicts are included in research on suicide, for this reason they are also included here.

Initial indications from 2013 suggest that the trend towards a reduction in the number of deaths from suicide is continuing.

Attempted suicide

Attempted suicide is a more difficult question to answer and is usually estimated by looking at attendances at local Emergency Departments.

The Jersey Emergency Department data for 2012 showed 51 attendances coded as ‘deliberate self harm’, the majority of these were for people under the age of 35.

Some of these cases would be attempted suicide, but they could equally have been a ‘cry for help’ or a behavioural issue. We have no way of knowing for sure and, therefore, it is not possible to ascertain with any degree of certainty how many emergency DSH cases were actual attempted suicides.

3.4 DEPUTY G.P. SOUTHERN OF ST. HELIER OF THE MINISTER FOR HEALTH AND SOCIAL SERVICES REGARDING THE RE-INTRODUCTION OF HOSPITAL PRESCRIPTION CHARGES:

Question

Prior to her decision to lodge P.72/2013 on the reintroduction of hospital prescription charges, (‘Hospital Outpatients- re-introduction of prescription charges’) what consideration, if any, did the Minister, in conjunction with the Minister for Social Security, give to measures to address the underlying problem of the high cost of accessing primary health care through GPs and, if none, why not?

As part of the longer term plans for the reform of primary care will the Minister work with the Minister for Social Security so that appropriate proposals can be brought to the States to address the issue of prescription charges?

Answer

The cost of GP consultations is not within the scope of this proposition, but the Minister for Social Security and I are both committed to working together to develop a more sustainable future model for primary care, which includes the cost of accessing GP services.

The reintroduction of community prescription charges will be considered as part of that wider review of primary care, agreed as part of P.82/2012: Health and Social Services: A New Way Forward; which will be undertaken in collaboration with Social Security and other stakeholders, as appropriate.

In this sense the two departments will continue to work together on prescription charges, just as they have during the development of this proposal, in arriving at the list of exemptions which might apply to those on low incomes or other vulnerable groups.

It is important to remember that a number of exemptions to Hospital Pharmacy Outpatient Prescription Charges have been agreed between HSSD and Social Security, including:

Individuals who receive a personal-care component under the income support scheme
Individuals who receive assistance from Social Security with their Residential Care fees
All children under 16 years of age
Vulnerable groups such as some psychiatric patients

In addition, certain medicines would also continue to be free for all people, including:

all cancer treatments
those prescribed for public health reasons

3.5 DEPUTY G.P. SOUTHERN OF ST. HELIER OF THE MINISTER FOR SOCIAL SECURITY REGARDING THE HIGH COST OF ACCESSING PRIMARY HEALTH CARE THROUGH G.P.s:

Question

What consideration has the Minister, in conjunction with the Minister for Health and Social Services, given to measures to address the problem of the high cost of accessing primary health care through GPs and if none, why not?

What plans, if any, does the Minister have to address the issue of prescription charges, and if none, will he commit himself to assess this issue and to bring proposals to the States in the next 18 months?

Answer

Both the Minister for Social Security and the Minister for Health and Social Services are fully committed to working together to deliver a sustainable health and social care system, properly funded and delivering services to Islanders in the most appropriate, cost-effective manner to meet their needs. Affordable access to high-quality primary care will be an integral part of this system, and Ministers will be co-operating over the coming years to develop a more sustainable future model for primary care, including access to GP services and the availability of prescription medicines.

As outlined in P.82/2012 (as amended) Health and Social Services: A New Way Forward, a Primary Care Governance Team has been established and the Team is currently co-ordinating an independent review of primary care, leading to the production of a Primary Care Strategy by September 2014. Both the current co-payment system for GP consultations and the possible reintroduction of community prescription charges will be considered as part of this review.

The bulk of the current costs faced by people in Jersey for primary health care is in respect of the GP co-payment, given that medicines and charges for dispensing community prescriptions are free to Islanders, met by the Health Insurance Fund (HIF) pharmaceutical benefit. GPs operate as private businesses and the States do not control the fees they levy. The States does however subsidise the cost of each GP consultation in the form of a medical benefit, currently set at £20.28 per visit, paid directly to GPs to contribute towards the cost of a consultation with a patient.

The number of visits to GPs has remained relatively steady over recent years, although there has been a steady annual increase in the number of prescriptions issued and paid for by the Health Insurance Fund. In total, the HIF provided £8.6M towards supporting the cost of GP fees in 2011 and a further £17M in respect of drug costs and the dispensing thereof.

In addition, substantial investment has been provided to establish and maintain the local Primary Care Governance Team and separately the HIF has provided funding of approximately £1 million to improve the IT systems that support GP surgeries.

In addition to the funding provided through the HIF, households with low incomes are able to access additional financial support via the Income Support benefit. Income Support contains dedicated components which are designed to address the extra costs associated with long term medical conditions and additional GP visits.

I must emphasise that community prescriptions are currently free to all Islanders covered by the Health Insurance Fund and that I have no plans to reintroduce prescription charges. Community prescriptions will continue to be available free of charge until the review of primary care is complete; if that review recommends a reintroduction of prescription charges then proposals will be put to the States for debate as part of the overall model of primary care.

3.6 DEPUTY T.M. PITMAN OF ST. HELIER OF THE MINISTER FOR HOME AFFAIRS REGARDING THE ARREST OF MEMBERS OF THE PUBLIC FOR PLANNING INFRACTIONS:

Question

Can members of the public be arrested by the Police for alleged planning infractions and, if so, can such individuals also be legally required by the Police to report to the police station on a daily basis whilst these allegations are investigated?

Answer

The Police have the power of arrest under Article 3 of the Police Force (Jersey) Law 1974 where they with reasonable cause suspect “that any person has committed, is committing or is about to commit, an offence…” That would, therefore, also include a planning offence.

However, in practice the Police do not carry out criminal investigations for infractions of the Planning legislation (Planning and Building (Jersey) Law 2002). These are ‘policed’ or investigated by the Planning and Building Department.

Planning officers do not have a power of arrest and any person who breaches Planning legislation would be invited for interview with Planning officers. If the person refuses to be interviewed, as is their right, Planning officers would submit a file to the Attorney General for consideration of prosecution, without the accused’s input. That person may then be warned or summoned for Court.

However, if the person were to refuse to answer to a summons to attend Court, their arrest could be ordered by the Court and they could then be arrested by the Police for failing to appear in Court. If, subsequently, they were released on conditions, these would be conditions imposed by the Court and not the Police or Planning officers. Such bail conditions imposed by a Court could include a requirement to report periodically to the Police. If they did not adhere to these conditions, the Court could order their arrest for breach of bail conditions and they could then be arrested by the Police.

3.7 DEPUTY T.M. PITMAN OF ST. HELIER OF THE MINISTER FOR HOME AFFAIRS REGARDING INVESTIGATIONS INTO HISTORIC ABUSE:

Question

Since police investigations began in 2007 in relation to historic abuse can the Minister advise if there have been any cases investigated by the States of Jersey Police where abuse was alleged by both another perpetrator of abuse and corroborated by a victim yet no prosecution was then brought and, if so, what was the reason for this?

Answer

The investigations which began in 2007 in relation to historical abuse are both voluminous and complex. Deputy Trevor Pitman, on the afternoon of 13th June 2013, in response to a request from the Minister, gave the name of the relevant accused person. However, despite this, it has not been possible to produce an answer by noon on Monday 17th June 2013.

The Minister will provide an answer as soon as possible but that answer will anonymise the details.

3.8 DEPUTY T.M. PITMAN OF ST. HELIER OF THE MINISTER FOR HOUSING REGARDING THE RE-REGISTRATION OF LODGING HOUSES:

Question

Would the Minister advise whether, in the case of the owner of a self-catering property who has re-registered the premises as a lodging house yet retained one unit out of ten as a (third party) manager’s flat, all of the tenants are still classed as private tenants in law?

Answer

Following the introduction of the new Control of Housing and Work (Jersey) Law, 2012, on the 1st July, 2013, the Residential Tenancy (Jersey) Law, 2011, which itself came into force on the 1st May, 2013, will apply equally to all new residential tenancy agreements entered into for residential units that meet the definitions under the Law, whether the unit is a manager’s flat or any other unit, irrespective of the residential status of that unit, or any registration under the Lodging Houses (Registration) (Jersey) Law, 1962.

The relevant provisions of the Residential Tenancy (Jersey) Law, 2011, are included in Article 1 and 2 of the Law, as outlined below.

1 Interpretation

“residential tenancy” means the right to occupy a residential unit under a residential tenancy agreement;

“residential tenancy agreement” means an agreement –

(a) for the exclusive occupation, by one or more natural persons who are party to the agreement, of a residential unit as a dwelling;

(b) for value; and

“residential unit” has the meaning set out in Article 2;

“ tenant” means, in relation to a residential unit, residential tenancy or residential tenancy agreement, the person who has the right to occupy the residential unit that is the subject of the residential tenancy under the residential tenancy agreement

2 Premises to which this Law applies

(1) In this Law, “residential unit” means a self-contained dwelling, that is, a dwelling that has, for the exclusive use of the inhabitants of the dwelling, a minimum of all of the following, whether or not in separate rooms –

(a) a shower or bath (or other facility, no less convenient than those, in which a person may wash);

(b) a washbasin;

(d) a sleeping space; and

(e) a lavatory.

(2) For the purposes of paragraph (1), the fact that a dwelling has (or is associated with the use of) a garden, a swimming pool, a parking space, a garage or other space or facility does not make the dwelling any less a residential unit.

(3) For the purposes of paragraph (1), any of the following parts of premises is not a residential unit unless used solely as a place of residence by a person employed on the premises –

(a) any part of a hotel;

(b) any part of premises ordinarily used for holiday purposes;

(d) any part of a club offering sleeping accommodation to its members.

3.9 DEPUTY T.M. PITMAN OF ST. HELIER OF H.M. ATTORNEY GENERAL REGARDING THE IMPACT OF THE REFERENDUM ON ST. HELIER VOTERS:

Question

Would the Attorney General advise whether individuals who are aggrieved by the fact that Option B of the Electoral Commission (which gives greater representation to residents of the smaller rural parishes at the expense of St. Helier and other urban parishes) would have any recourse against the States of Jersey via the European Court of Human Rights if this Option is implemented?

Answer

No human rights arguments arise here.

The European Convention of Human Rights does not impose any legal requirement that each vote in an election must have equal value in determining the composition of the legislature. On the contrary, the European Courts have consistently held that that there is no obligation on a State to introduce a particular voting system. For example, first-past-the-post elections are considered human rights compliant even in countries whose constitutions protect equality of voting as a fundamental right. In 1979, the Liberal Democrats secured 18.8 % of the votes in a general election in the United Kingdom but only obtained 1.7% of the seats in Parliament. The European Court rejected their complaint that there had been a breach of human rights law.

The European Court affords jurisdictions a wide margin of appreciation and has regard to the particular political history of the jurisdiction. In this case, Option B seeks to preserve the role of the Connétables and, given their historic link to the States Assembly, that is a feature of Option B that would carry significant weight with the European Court.

The European Court would also be struck by the number of politicians that are elected in Jersey, and would be elected in St Helier and other urban areas if Option B is implemented, having regard to the Island’s size and population.

The Vienna Commission guidelines are guidelines that do not change the legal position as described above.

4. Oral Questions

4.1 Deputy J.H. Young of St. Brelade of the Minister for Planning and Environment regarding complaints received from members of the public alleging maladministration:

I have no more questions, thank you.

Senator P.F.C. Ozouf:

May I ask a question?

The Bailiff:

No, Senator. I think as one Minister to another, you can go and discuss it elsewhere.

4.4 Connétable P.J. Rondel of St. John of the Chief Minister regarding the rationale and criteria for sending Jersey delegations to U.K. party political conferences:

Could the Minister inform the Assembly what the rationale and criteria are for sending Jersey delegations to U.K. (United Kingdom) party political conferences?

Senator I.J. Gorst (The Chief Minister):

Jersey’s most important political relationship is with the U.K. Due to our status as a Crown Dependency, there are a number of policy areas, such as immigration, citizenship, tax and financial services, aviation and maritime issues, where Jersey’s interests can be affected by U.K. Government policy. We therefore need to put forward Jersey’s position and interests in relation to these issues directly to those who are developing U.K. policy in both government and opposition. Ministerial attendance at the U.K. party conferences is an important means of ensuring enhanced engagement with U.K. Government Ministers, Shadow Ministers and prominent parliamentarians. It has never been more important that Jersey’s message is heard so that we can develop a better understanding among U.K. policymakers of our constitutional position, our key economic and social interests, and the value we provide to the U.K. economy.

4.4.1 The Connétable of St. John:

Given that U.K.I.P. (United Kingdom Independence Party) are polling consistently as the third most popular political party in the U.K. and a Survation poll in the Mail on Sunday on 26th May have them within 2 percentage points of the Conservative Party, would the Minister look into the possibility of sending a delegation to the U.K.I.P. party conference?

Senator I.J. Gorst:

I would not wish to make government policy on the back of an opinion poll taken out in a different jurisdiction. I do not think anyone in this Assembly would thank me for that. I perhaps could simply remind the Connétable of the amount of representation that that party has in the U.K.’s Parliament itself and perhaps when that increases, Jersey’s Government policy will change as well.

The Connétable of St. John:

In other words, the answer is no?

The Bailiff:

I will come back to you, Connétable.

4.4.2 Deputy M. Tadier of St. Brelade:

Perhaps the Constables can be sent to the U.K.I.P conference as a delegation. I would ask the Chief Minister just to clarify how are the delegations … how do they work? Is it by invite or are the invites sought directly by the Comms. Unit, by the Chief Minister’s Department? If the Chief Minister could explain.

Senator I.J. Gorst:

I am not sure what the Deputy is asking. The invitation in what regard?

Deputy M. Tadier:

Let us phrase it in a different way. When Ministers or whoever attends from the Jersey Assembly at party conferences, are they invited by the individual parties or do they simply pay a subscription and attend and in what capacity do they attend?

What an embarrassment the Chief Minister’s responses are but I thank him for revealing to the public that he is not fit, in my opinion, to lead this Government. If I could just refer him to his Assistant Minister’s answer, because he is not a Back-Bencher, as we just heard. He said: “I have already said that the document is fictitious and malicious” and he said I produced a document purporting, i.e. pretending, to be an email from a member of the public. The Chief Minister has met those 2 gentlemen. He knows they are telling the truth. He knows they can identify documents that the Assistant Minister said that he did not have. Is he going to do something appropriately and at least ask his Assistant Minister to apologise to me and to this Assembly and to those 2 members of the public or is he going to do what he normally does, show utter weakness and do nothing?

Senator I.J. Gorst:

I have been quite clear in my answers this morning. Members are trying to get me to act as investigator and judge on these matters. That cannot be appropriate. Perhaps I could say, however, in Senator Bailhache’s defence in this regard, it was the questioner this morning who thrust into my hand 5 minutes before a States sitting, at the last but one States sitting… and I passed that on to Senator Bailhache. There was no name attached to that. It could not from that document be ascertained whether it was a fictitious document or not.

Deputy T.M. Pitman:

It is a leading answer. I must put that on the record.

Senator I.J. Gorst:

I beg to differ. That is exactly the point as was at that point in time and I believe now 2 weeks ago.

Deputy T.M. Pitman:

And the Senator has met with 2 physical people.

4.6 Connétable J. Gallichan of St. Mary of the Minister for Education, Sport and Culture regarding the development of a language immersion school in Jersey:

As language immersion schools have become increasingly popular in North America and are now appearing in Britain, has any research been undertaken into the benefits of these schools and if so, does the Minister consider that Jersey should develop this concept to the advantage of our own students to increase the Island’s skills base?

Deputy P.J.D. Ryan of St. John (The Minister for Education, Sport and Culture):

I thank the Connétable for her interest in language teaching, particularly French. We are going to visit a bilingual school in London in the early part of the autumn term and, at the same time, we will be investigating the question of total immersion schools as well. There is much research that we need to do. The research is at a very early stage and while there may be significant advantages to bilingual education generally, including immersion schools, it might not be suitable for all pupils, particularly those that have difficulty learning their first language and there are also other factors that will need to be carefully considered and a lot of consultation will have to take place.

4.6.1 The Connétable of St. Mary:

The thrust of my question is really to talk about language immersion and not about bilingual education because the research that I am reading is showing that the benefits to pupils, particularly those who are not linguistically able, the benefits across the curriculum in other subjects apart from languages are proving to make the worth of these schools … make it stand alone and I would like to know whether the Minister will be looking specifically at benefits to non-linguists?

Could she just answer the second part of the question which is in relation to the third sector?

The Deputy of Trinity:

Could he repeat that on the third sector?

Deputy R.G. Bryans:

Yes, I could.

The Deputy of Trinity:

Is he talking about voluntary and community services?

Deputy R.G. Bryans:

Yes, I am.

The Deputy of Trinity:

Sorry, I forgot that bit of the question.

Deputy R.G. Bryans:

Sorry, it is just again we have got this situation where the third sector is feeling that the commissioning structure is not resolving the situation that they find themselves in and there is a growing dissent.

The Deputy of Trinity:

I disagree with Deputy Bryans. The voluntary and community sector - known as the third sector - have really appreciated the commissioners because they have taken the time to understand their services and negotiating a way forward. As I said at the very beginning, up to now it has been a one-way traffic what the States of Jersey expect but this time now the voluntary sector is very much what the voluntary and community sector expects from the States of Jersey.

4.7.7 Senator S.C. Ferguson:

To return to the original question, how does the Minister justify the annual expenditure of £269,450? Can she say that that money has been saved within the first 5 months or that it will be saved in the future?

The Deputy of Trinity:

It is very difficult to put an amount on the salaries. Part of it is negotiating better contracts with service providers to endorse patient care and it is very difficult to put a sum of money on patient care because we need to endorse … especially with all the 80 different hospitals that we negotiate with the U.K., we need to ensure that we have the right data back from them and that we understand what their services are and what our Islanders need and be much sharper in achieving that.

4.7.8 Senator S.C. Ferguson:

That was not my question. My question was: we did a service last year; we did a service this year - how much have we saved?

The Deputy of Trinity:

I have not got … as I said, it is very difficult to come up with exactly … you cannot do so because how can you put a cost to improving patient care?

4.7.9 Deputy R.G. Le Hérissier:

Given that the whole justification was based on money to be saved, I am afraid that is a bit of a cop-out. I wonder could the Minister again inform us why, for internal Jersey-based partnerships why were not the strengths of line managers … why were they not given new skills and why was their role not strengthened rather than insert yet another layer of bureaucracy in the health system of people who have to speak to people who then have to speak to further people. Secondly, will they be moving to payment by results?

[10:30]

The Deputy of Trinity:

People think there is a lot of management in the health service. Let me say that there is not and we have had various reports saying that there is not. As I said, we are talking about an awful lot of money and we need to make sure that we get value for money at the end of it of all negotiations whether it is here on-Island or off-Island.

Deputy R.G. Le Hérissier:

But will they be moving to payment by results?

The Deputy of Trinity:

No, we will not.

4.8 Deputy J.A.N. Le Fondré of St. Lawrence of the Chief Minister regarding the terms of reference for the Dame Heather Steel investigation into the Korris Review:

Further to his answer of 4th June 2013 when he stated he had requested the Bishop to make public the terms of reference to the Dame Heather Steel investigation into the Korris Review, would the Chief Minister advise whether he has received an update relating to this matter, given that a visitation connected to the investigation has just commenced for which the terms of reference are available?

Senator I.J. Gorst (The Chief Minister):

I have again requested that the terms of reference are made public and I have also confirmed that there are no objections to their publication from a Jersey perspective. I understand that this matter is being considered by the Bishop in consultation with Dame Heather Steel and hope that the terms of reference will be made public in due course.

4.8.1 Deputy J.A.N. Le Fondré:

A question that does spring to mind is that given that the Steel review is apparently considering areas surrounding the validity of the Korris Report while the visitations are currently predicated on … or already assumes the validity or reliability of the findings of the full Korris review, what is the Chief Minister’s opinion on having … the Gladwin visitations start, I believe, today, before the Steel Review is reported. In addition, what possible justification could there be in keeping the terms of reference of the Steel Review secret?

Senator I.J. Gorst:

Perhaps if I take the last item first, I can see no possible reason for not publishing Dame Heather Steel’s review. With regard to the opening question, the Deputy makes a very good point. I would expect that the Steel review would be completed in advance of the visitation and would then feed in and help in the visitation process.

4.8.2 Deputy M. Tadier:

Is the Chief Minister answering this as a private member of the Church of England or as Chief Minister and if it is the latter, can he explain what responsibility he has as Chief Minister with regard to this area?

Senator I.J. Gorst:

Not being a private member of the Church of England, I could not answer in that capacity. It seems that on the one hand, Members want me to answer on every given question that they might have and on the other, we are now suggesting that I should not be answering such a question. Of course, the relationship with the Church and State in Jersey is a very important one. The church is intertwined almost indivisibly from our parochial system and therefore I would expect that Members would expect me to have an interest in this matter, being Chief Minister.

4.8.3 Deputy M. Tadier:

Could I ask, then, where does the Chief Minister stand on the separation of Church and State?

The Bailiff:

That does not arise out of this question, Deputy.

Senator I.J. Gorst:

But I would like to answer it.

4.8.4 Deputy T.M. Pitman:

You certainly should separate the Church and the State. However, could I ask the Chief Minister, given the concerns expressed by many within the church, but to use the words quoted on the media: “This issue has been hijacked by crackpots”, will the Chief Minister be stressing to the Bishop that we must, in the interests of refocusing on the actual abused young woman here, that all political interference is kept from any investigation?

Senator I.J. Gorst:

The Deputy is right. There should be absolutely no political interference. I met in a courtesy call yesterday with the Bishop John and the visitation team and they seem already to be understanding the great and what will be a timely task ahead of them. There needs to be a healing process but at the same time, they need to focus squarely on safeguarding and ensuring that there are appropriate safeguarding processes in place and that the interaction of those processes in the church interacts smoothly with those that we have in regard to the State’s processes.

4.8.5 Deputy J.A.N. Le Fondré:

Could I just add that I entirely endorse the comment that there should not be any political interference in the investigation side at all and also just make the comment that obviously the Chief Minister’s predecessor did obviously lodge the Canons of the Church of the England in this Assembly and also has responsibility for international relations and the Bishop of Winchester is a Member of the House of Lords. So I think, putting all that into the mix, the question I would like to ask is does the Chief Minister have a view as to whether there is presently an increased risk of the relationship between Jersey and the Diocese of Winchester being permanently and irrevocably damaged?

Senator I.J. Gorst:

As I have said on a number of occasions in this Assembly, I personally, and I believe that this Assembly is saddened that an individual suffered while they were in Jersey and we must not forget that and we must make sure that appropriate processes and procedures are in place to deal with the vulnerable and those with very complex needs and that is the first thing I should say. Having said that, it is quite apparent to me that the way that some of the issues have been handled and where we have arrived at today have caused great distress also to the church in Jersey and members of that church and I am hopeful that the visitation recognise that and they see that part of their role is to act as a healing process between the Jersey Deanery and the Diocese of Winchester. For some people, they may not be able to go on that journey and it may be too much for them because, as you know, Jersey is proud of its history. It has changed dioceses in the past and for some people, that is more recent in their minds and therefore they have perhaps looked at that as an option on this occasion again.

4.9 Deputy M. Tadier of the Chief Minister regarding aggressive tax planning:

Given the Chief Minister’s commitment that Jersey wants no part of aggressive tax planning, why in his letter to the U.K. Prime Minister did the Chief Minister confirm his commitment to fight tax evasion but not avoidance, aggressive or otherwise?

Senator I.J. Gorst (The Chief Minister):

The letter from the U.K. Prime Minister to which I responded on 20th May focused mainly on the G8 summit and transparency of beneficial ownership which is concerned with combating tax evasion. That is why my letter focused on our shared commitment to fight tax evasion. By way of contrast, of course, in my letters of the same date to the Irish Presidents of the E.U., I wrote to welcome the conclusions of the European Council in recognising the need for further efforts at national E.U. and global levels to combat tax fraud, tax evasion and aggressive tax planning and I remain fully committed to my previous statements that Jersey wants no part of aggressive tax planning.

4.9.1 Deputy M. Tadier:

The letter from the Chief Minister spoke both of tax avoidance and evasion. I hope the Chief Minister acknowledges that but will the Chief Minister, given the fact that he has reconfirmed his commitment to being against aggressive tax planning - whatever that means - can he say whether he has now identified the company which was used by Jimmy Carr and many others for the K2 scheme which was based in Jersey? Does he know which trust company was administering that scheme?

Senator I.J. Gorst:

The Deputy seems to fixate on a particular case that I have quite clearly said is not part of Jersey’s future and there is no doubt that the Jersey Financial Services Commission, together with government, together with the promoter, needs to develop a policy for ensuring that in the future that sort of business does not find a home in Jersey and, as I said at the last States sitting, we have already set up a Sound Business Practice Committee and they will have the job of ensuring just that. So the Deputy, while wanting to fixate on one, and he knows my answer from the last sitting, can rest assured that we are taking this issue seriously.

Deputy M. Tadier:

May I ask a supplementary?

The Bailiff:

No, you have had one supplementary already, Deputy. You can come back at the end.

Deputy M. Tadier:

The Chief Minister did not answer the question. He was asked a specific question, does he know the name of the firm. He was not asked to tell us the name of the firm but does he know who was behind that scheme and he has not answered the question.

The Bailiff:

Well, that was fair, that was the question. Do you know the identity of this person?

Senator I.J. Gorst:

I thought I had answered it, Sir, albeit perhaps in a roundabout fashion. Ministers have access to large amounts of confidential information and therefore I suspect that while, as the Deputy said, he does not want me to make it public, which I am not in a position to do, I am obviously aware.

4.9.2 Deputy G.P. Southern:

Yes, the Chief Minister is being very light on his feet today. Does the Chief Minister accept that since we are clearly in the business of tax competition with our neighbours under Zero/Ten, we must therefore be in the business of tax avoidance, aggressive or otherwise?

Senator I.J. Gorst:

Tax competition is a perfectly acceptable competitive position for jurisdictions to take. The Prime Minister, when he wrote to not only myself but also the other Chief Ministers of Crown Dependencies, himself reiterated the U.K.’s commitment to tax competition and he would like to reduce the tax rate in the United Kingdom. We have long known that tax competition is important and it helps us deliver the quality well-regulated financial services sector that we have and so we must continue to retain that competitive advantage.

4.9.3 Deputy G.P. Southern:

If I may, a supplementary. Does the Chief Minister accept then that inviting companies to register here and thereby pay zero tax, this is aggressive marketing of a fundamental tax avoidance mechanism?

Senator I.J. Gorst:

Absolutely not.

4.9.4 Deputy R.G. Le Hérissier:

I wonder, given the Chief Minister’s absolute commitment on our behalf to tax transparency, this clearly has caused a lot of concern among the population. Could he tell us where he sees the sources of the financial industry’s success in the future coming from?

The Bailiff:

Is there a precise answer in 30 seconds there?

Senator I.J. Gorst:

I am not sure I can do that. The question was indeed rambling and covered a very broad subject. It is hardly fair to expect me to answer it in 30 seconds. I am absolutely confident about Jersey’s future and the future of its financial services sector. We have taken decisions as a Government and this Government has continued that but our differentiating factor is being a quality jurisdiction, being a well-regulated jurisdiction, being a F.A.S. (Financial Accounting Standards) follower, complying with relevant international standards, having an independent and well-respected judiciary, having a stable Government, having a balanced budget, having a skilled workforce and they are things that we should be proud of, that we should protect …

Deputy R.G. Le Hérissier:

Where is it coming from?

Senator I.J. Gorst:

… and that we should be promoting and this last weekend was an opportunity like we have not had in many a year to promote what Jersey does to acknowledge and have acknowledgement from around the world that we are part of the solution, not part of the problem, that we have a long track record and I believe that we will see the use of our financial services increase because of that.

Deputy R.G. Le Hérissier:

A wonderful riposte but where is it coming from?

The Bailiff:

Deputy, you asked such a general question that it is not surprising that the answer was very long. There is a supplementary. Where is it coming from, Chief Minister?

Senator I.J. Gorst:

From around the world. We have ...

One last question, Sir? The answer, I do not think, hardly encourage me to believe that much work has been done in this area. Could the Minister please confirm to all States Members and indeed those involved in the aircraft business and economy exactly what is being proposed before any introduction of G.S.T. on this general fuel?

Senator P.F.C. Ozouf:

Ministers deal with policy. The policy on this was set when G.S.T. came in. I am happy to circulate to Members the definition of what is private aviation, if that assists the Deputy. It is all about the size of aircraft, whether it is less than 8 tonnes, whether it has been designated or adapted for recreational use. The definition is really quite complicated. But, aviators understand it very well. I will circulate a note for the Deputy’s benefit.

4.10.8 Senator S.C. Ferguson:

Just following on from the Deputy of St. Ouen. I think this is quite simple. If a private plane comes from England, stops in Jersey to refuel and goes on to France then that is a visiting aircraft. It is very useful for the tourist trade. These are the ones that, if they go to Guernsey, they will pay less for their fuel than they pay in Jersey. So, we do not want to put any more cost on the fuel in Jersey to send them away, because of the tourism effect. Does the Minister understand this?

Senator P.F.C. Ozouf:

The Minister understands this very well. One Minister - the Chief Minister - is asked questions on tax avoidance and the next minute I am being asked to put in place effectively a tax avoidance mechanism outside of the Jersey area. We do, as Ministers, get mixed messages sometimes. I do not believe that the imposition of 5 per cent of G.S.T. on aviation fuel is the barrier to visiting our fantastic Island. I have always received and the department has always received representations from industry. The bigger issue is setting Jersey up as an aircraft registry, which is not going to be affected by G.S.T. It is not, because corporate aviation is not covered.

4.10.9 Senator S.C. Ferguson:

Supplementary, Sir. The Minister has lost me entirely. Is he now saying that planes coming in as tourists from England, stopping off here to refuel, because they have nearly run out and then going on to France for a tour will pay G.S.T. on the fuel that is taken up in Jersey?

Senator P.F.C. Ozouf:

It depends on the size of the aircraft. It depends whether or not they are undertaking that trip for financial reward. I think the Senator knows better probably than I do the definition of what is commercial and what is not commercial aviation. It depends on a number of circumstances whether or not G.S.T. will be applied. Certainly we collect tax and tax is the right thing to do. In the same way that we have imposed G.S.T. on the marine… there is a cost for the environment of using fuel, there is a cost of using facilities and governments need to collect an appropriate level of tax. G.S.T. is a very low level of tax for private, domestic, pleasure use. If it is commercial then it is not charged for G.S.T.

Senator S.C. Ferguson:

The Minister is saying that he is changing the practice and he will be charging. Is that correct?

The Bailiff:

Senator, we have spent a long time...

Senator P.F.C. Ozouf:

That is not what I have said.

The Bailiff:

We come next to the next question which Deputy Southern will ask of the Chief Minister.

[11:00]

4.11 Deputy G.P. Southern of the Chief Minister regarding the exact terms of the Organisation for Economic Co-operation and Development (O.E.C.D) agreement on tax information exchange:

Yes, I hope Members are not busy reading the side and a half related to this question that has just arrived on our desks. I will try not to impinge upon that. Will the Chief Minister inform members of the exact terms of the O.E.C.D. (Organisation for Economic Co-operation and Development) agreement on tax information exchange which has been put to the Crown Dependencies and British Overseas Territories by the U.K. Prime Minister and under what terms he has agreed or will agree to ratify the agreement?

Senator I.J. Gorst (The Chief Minister):

The main terms of the O.E.C.D. multilateral convention on an administrative assistance in tax matters are to provide for exchange of information and to assist in the recovery of tax claims. As the convention can only be signed by sovereign states, Jersey will join the convention through the U.K. issuing an agreed letter of declaration that will provide for the extension to the Island of the U.K.’s existing ratification of the convention. The implementation of the convention will be subject to the States approving the necessary Regulations.

4.11.1 Deputy G.P. Southern:

Could the Chief Minister inform Members whether the exchange of tax information is automatic or on request only?

Senator I.J. Gorst:

As the Deputy should know from having looked at the convention, regulations will give effect to the ability to transfer information automatically. Although it is a multilateral agreement there have to be bilateral agreements or documents agreed with each country underneath that.

4.11.2 Deputy M.R. Higgins:

Just having quickly read the statement, I know this is pre-empting in a sense, you have mentioned the fact that Jersey does have a register of beneficial ownership. But, this is not a public document. It is held by the Financial Services Commission and the information is given on request. Will that now become a public document so everyone can see it? Secondly, is the Minister also committing to moving away from a system where the knowledge of who owns trusts is held by the trust companies to having a central register held by the Financial Services Commission, which will contain that information? Will that also be a public document?

Senator I.J. Gorst:

I cannot see how that question arises from the O.E.C.D. convention. It does arise, of course, from my statement which I will be making in due course.

The Bailiff:

I do not know enough about the convention to know whether it arises out of it or not.

Deputy M.R. Higgins:

I think he could just give us an inkling now before later.

Senator I.J. Gorst:

The central register is not covered by the O.E.C.D. convention. That is a separate issue. I am looking forward to reminding Members of this particular area, because it is one where we lead the world.

The Bailiff:

We do have a statement on this, so perhaps we will deal with it then.

4.11.3 Deputy T.M. Pitman:

It is fine for the Minister to talk about the register and it is available on request. Is it not a fact that you almost have to know what is in there before you can ask about it? Is it not subject to what people might term fishing expeditions? If that is the case, how useful is it?

Senator I.J. Gorst:

I am not trying to be obstructive. But, I have at least another question on these related matters. If I answer in regard to every single issue that I have been involved in over the last number of weeks and commitments that I have given each time I stand up then we will be here all week.

The Bailiff:

Deputy, perhaps you can repeat the question, because I found it difficult to follow. Was it relating to registers or was it relating to the conventions ...

Deputy T.M. Pitman:

Yes, Sir. I was saying the Minister is making fairly big play out of the register, we have heard. All I am asking: do you almost have to know everything that is in that register ...

The Bailiff:

I think I have already said, the register apparently does not arise out of this convention, so we will deal with that when we get to the next matter. So, final question, Deputy Southern.

Deputy G.P. Southern:

I do not know what I can and cannot ask.

The Bailiff:

You can ask about ...

Deputy G.P. Southern:

I will ask about the automatic exchange of information, Sir.

The Bailiff:

Deputy, please do not continue talking when I am talking.

Deputy G.P. Southern:

Sorry.

The Bailiff:

You can ask questions which relate to your question.

4.11.4 Deputy G.P. Southern:

Right then, what consideration was given at these talks over the weekend or otherwise to country-by-country reporting for companies?

Senator I.J. Gorst:

I am afraid I would have expected the Deputy to have understood what he was asking in his question with regard to the convention. Of course, the convention does not cover country-by-country reporting either. There was no discussion in the meeting with the Prime Minister with regard to country-by-country reports, but as I am sure Members would expect, there was indeed discussion of that subject at the Open for Growth G8 meeting on Saturday afternoon. While it makes for an interesting proposal there are some issues which would need to be considered very carefully. Some companies are already providing information on that basis and there are arguments about how that should be done in the future.

Deputy G.P. Southern:

Supplementary, if I may, Sir. It relates to the answer.

The Bailiff:

The answer does not relate to the question originally posed, because your supplementary question apparently did not.

4.11.5 Deputy G.P. Southern:

Never mind. Does the Minister accept that country-by country-reporting is an essential step along the way to true transparency?

Senator I.J. Gorst:

That is a debate which is yet to be had. From my past experience, I know that it is indeed very difficult to get common accounting standards across Europe. It was a whole other issue when we introduced the American accounting standards. There is work that needs to be done there, because there is no point having country-by-country reporting unless the accounting basis upon which it is reported is, again, universal and is global in its application. Having said that, of course, some countries are already producing information on a country-by-country basis. Of course, part of the discussion on Saturday ‑ totally unrelated to the original question, I hasten to add again - was about building capacity in developing countries. That is something that Jersey again is absolutely committed to.

4.12 Deputy M.R. Higgins of the Attorney General regarding the accountability of the Chief Officer and Deputy Chief Officer of the States of Jersey Police:

Will H.M. Attorney General advise Members to whom the Chief Officer and Deputy Chief Officer of the States of Jersey Police are accountable for their conduct and who would determine whether they should be investigated in circumstances in which they are alleged to have perverted the course of justice?

Mr. H. Sharp Q.C., H.M. Solicitor General:

In respect of disciplinary matters concerning the Chief Officer and Deputy Chief Officer, then of course the Minister for Home Affairs is responsible for such issues. In the event of a criminal allegation being made, as described in the question, the Attorney General would advise as to whether or not a criminal investigation is merited. If the Attorney General advises that there should be a criminal investigation then the Minister for Home Affairs has various powers at his disposal, that include appointing police officers from another police force in the British Isles, to investigate the matter.

4.12.1 Deputy M.R. Higgins:

Supplementary, Sir. Can I ask the Solicitor General, if the Minister for Home Affairs has not consulted with the Attorney General or will not admit to having consulted with the Attorney General and takes no action whatsoever, what recourse is there for members of the public or anyone else who is interested in the integrity of the criminal justice system?

The Solicitor General:

I would not expect a Minister to say whether or not they had taken advice from the Attorney General. That is a well-known rule.

The Bailiff:

I think there was a supplementary question there as to what would a member of the public do then if he thought there was criminal conduct.

The Solicitor General:

If the member of the public thought the Minister was doing nothing then I suppose the member of the public could make direct contact with the Attorney General.

The Bailiff:

Let me just see if there are any questions. No. Final question then, Deputy Higgins.

4.12.2 Deputy M.R. Higgins:

This is not a political question for the Solicitor General. If the Minister for Home Affairs takes no action whatsoever and will not explain his actions, what course is available to the Members of this Assembly’s interest that regard?

The Bailiff:

I do not think that is a matter which falls within the Attorney General’s purview. It is to give political advice to States Members. Very well, we will come to the next question which Deputy Higgins will ask of the Chief Minister. Deputy.

4.13 Deputy M.R. Higgins of the Chief Minister regarding grounds for instant dismissal for gross misconduct for public sector employees:

Would the Chief Minister agree that a public sector employee should not knowingly lie or try to deceive a civil or criminal court or tribunal and that such an act would constitute grounds for instant dismissal for gross misconduct?

Senator I.J. Gorst (The Chief Minister):

There is a clear requirement under the Civil Service Code of Conduct and an individual’s contract of employment for all civil servants to act with integrity and honesty. In the unlikely event such an episode occurs the matter would be investigated under the relevant employee’s disciplinary policy and an appropriate penalty applied which is consistent with the facts of each case.

Deputy M.R. Higgins:

I shall be bringing a case to the Chief Minister for that action to take place.

4.13.1 Deputy T.A. Vallois of St. Saviour:

Can I ask the Chief Minister if the code for civil servants is available to all Members?

Senator I.J. Gorst:

I will check that, but I believe that it is.

4.13.2 Deputy T.A. Vallois:

Could the Chief Minister also confirm whether there is a requirement for a duty of care by civil servants to the public and to States Members?

Senator I.J. Gorst:

I do not have the code with me this morning, so I cannot confirm. One might imagine that there would be, but I cannot confirm that.

4.13.3 Deputy T.A. Vallois:

Can I just ask a supplementary, Sir? Does the Chief Minister believe that there absolutely should be and what the remedy if a Member or a member of the public believe that a civil servant has broken that duty of care.

The Bailiff:

Deputy, we are getting a long way off the original question which was lying and deceiving at court as grounds for misconduct. We are now on to a very wide-ranging issue whether civil servants should have a general duty of care.

Deputy T.A. Vallois:

I understand, Sir, it was about a public employee whether lying or deceiving.

The Bailiff:

That has been answered, but you are now asking about duty of care which is a very wide-ranging concept.

Deputy T.A. Vallois:

Okay. Thank you, Sir.

Deputy M. Tadier:

Sir, my question was going to be even further away from the subject, so I doubt it will be allowed. I will sit down.

The Bailiff:

Deputy Higgins, do you wish a final question?

4.13.4 Deputy M.R. Higgins:

Yes, Sir. I will just try and help Deputy Vallois. Would the Chief Minister publish to all Members the Code of Conduct for Civil Servants, please?

Senator I.J. Gorst:

As I said, I believe it is in the public domain, but I will double-check and if not I will ascertain to try and do so.

4.14 Deputy R.G. Le Hérissier of the Chief Minister regarding an independent inquiry into allegations that the Assistant Minister for External Relations obtained and read in public confidential documents associated with the suspension of the Dean:

Would the Chief Minister establish an independent inquiry to report expeditiously about the allegations that the Assistant Minister for External Relations has obtained and read in public confidential documents associated with the suspension of the Dean and, if not, why not?

Senator I.J. Gorst (The Chief Minister):

If an offence is alleged under the law, a Statutory Code of Practice has been breached or a Code of Conduct for Elected Members has not been complied with then a complaint should be submitted to the relevant authority or body who will then investigate.

4.14.1 Deputy R.G. Le Hérissier:

Despite having drawn a line between people in their Back-Bench and their Executive role, would the Chief Minister not acknowledge in order that the integrity of the individuals concerned and of the House be upheld that a proper independent inquiry would be a much better way rather than avoiding the issue continually.

Senator I.J. Gorst:

Personally I have to say I agree with P.P.C.’s proposal for a commissioner that would deal with these exact issues, because then it takes the politics out of them and they can be reviewed appropriately once appropriate complaints, if they are to be made, have been made.

4.14.2 Deputy T.M. Pitman:

Given that the Minister himself is very keen to make complaints about people when they tell the truth - I have been a victim of that - should he not now, as Chief Minister, put a complaint in when someone is certainly not telling the truth. My 2 businessmen, good, honest, hard-working contributors to the economy stand accused of being malicious, fictitious and liars, as I do myself.

[11:15]

Senator I.J. Gorst:

I do not believe that they do stand accused of that. The Deputy will know that I had a meeting with them. Unfortunately since that meeting the first time I have seen Senator Bailhache was this morning in the States Building. Of course, I will relay the contents of that meeting, but as I have said previously I stand by the answer I gave. That certainly is not my interpretation of what Senator Bailhache said in answering the question previously.

4.14.3 Deputy T.M. Pitman:

Can I have a supplementary? If I may refer back to that meeting with the 2 businessmen, if I can pretty much quote the Chief Minister’s words to the 2 gentlemen. He said they should consider complaining to P.P.C., but must be aware that the person they would be complaining about sat on that committee. Does he agree that that was a bit of intimidation there?

Senator I.J. Gorst:

Absolutely not. It was merely a reflection of that body. I would not wish for those particular individuals to be unaware of that prior to making a complaint. If a complaint was made about a Member of this Assembly to P.P.C. and a Member of this Assembly sat on that body I would have no doubt whatsoever that the Member of P.P.C. would remove themselves for the purposes of both hearing and dealing with such a complaint.

4.14.4 Deputy T.A. Vallois:

The code of conduct for the Ministers is fairly open and wide and also includes the code for the Assistant Ministers. Could the Chief Minister advise whether the complaints that have been made have been made about the Assistant Minister or whether they have just been made about Senator Bailhache?

Senator I.J. Gorst:

That is a very good question. I have maintained, as Senator Bailhache did when he has been dealing with these particular issues that he was acting, yes, as a Member of this Assembly, but more importantly as a lay member of the Church of England in Jersey. That is where the differential arises from.

4.14.5 Deputy M.R. Higgins:

As the documents that Senator Bailhache was supposed to be reading on the plane included police statements and various other documents, if he was a member of the church, where did he get those documents? He is a Member of the States, just as we are, he is no longer a member of the Judiciary, how did he get access to official documents of that sort that has the names?

Senator I.J. Gorst:

I am not sure how I am expected to answer such a question. This is part of the problem I find myself in today. I am being expected to be investigator, judge and jury in a particular case. I do not think that is the role of the Chief Minister. Having said all that, I do understand that Senator Bailhache is intending, whether it is able to happen today or not is in doubt, because of the workload, with your permission, Sir, to make a personal statement on this matter.

The Bailiff:

Very well. Deputy Tadier and then final question Deputy Le Hérissier.

4.14.6 Deputy M. Tadier:

I am concerned with the Chief Minister’s response both to this question and the previous one, because it seems to me the Chief Minister could quite happily respond to these by saying the reason we do not need an investigation and the reason that I am not going to take any action is because my Assistant Minister has not acted inappropriately. He has done nothing wrong. In the absence of the Chief Minister making that statement to the Assembly it forces Members to read between the lines and to presume that there is a grey area as to the allegations that have been made by another Member in this Assembly. So, will the Chief Minister take swift action, whatever that may be, whether it is an independent investigation or his obligations under the code of conduct to give a response to ascertain whether or not the Assistant Minister has acted entirely appropriately or inappropriately.

Senator I.J. Gorst:

As I have just indicated, a number of questions this morning really would be more appropriately and rightly addressed to Senator Bailhache, who is in a position to be able to answer them. As I said, I think it is his intention to make a public statement and we shall await that statement.

Deputy M. Tadier:

Sir, a point of order, if it a statement by the Assistant Minister in his independent capacity, surely that is a personal statement which does not allow the questions to be asked of the Assistant Minister.

The Bailiff:

That is correct. Final question then Deputy Le Hérissier.

4.14.7 Deputy R.G. Le Hérissier:

Would the Chief Minister not acknowledge that in order that the impugning of both sets of individuals does not continue, we should stop trying to take sides - or people do - and that he will make a strong recommendation to P.P.C. to set up in anticipation of the commissioner role… to set up an independent investigation, so that we do not have to continue hearing 2 very different sides of a story. Thank you.

Senator I.J. Gorst:

I am afraid I do not understand why this party is in limbo. As I say, assuming that I have understood correctly that there is a costs order in his or her favour then they were entirely entitled to seek taxation of the costs, get a cost certificate and if the other party will not pay, for whatever reason, then the party who is owed the money can enforce it through the court. I do not understand at the moment why it is said that somebody is in limbo. If they have a costs order, they are not in limbo they have a right that they can properly exercise.

Deputy T.M. Pitman:

I would just thank the Solicitor General for his answer and perhaps I can come and visit him and I might be able to give him some details I cannot give here. Thank you.

Senator B.I. Le Marquand:

Sir, may I ask a question?

The Bailiff:

May you ask a question?

Senator B.I. Le Marquand:

Yes, Sir.

The Bailiff:

No, you are a Minister. We do not usually allow Ministers to ask questions.

Senator B.I. Le Marquand:

Oh, I was going to try to help elucidate the position, Sir, by a helpful question.

The Bailiff:

Very well.

Senator B.I. Le Marquand:

May I, Sir?

The Bailiff:

Yes.

4.15.3 Senator B.I. Le Marquand:

Would the Solicitor General agree that because the test applied by the court on taxation is a reasonable sum reasonably incurred in favour of the receiving party that there is sometimes a substantial gap left because the costs incurred have either been unreasonable in amount or unreasonable in the ambit of the work done?

The Solicitor General:

Yes, I can confirm that the principle purpose of taxation is to have an independent party, i.e. the Judicial Greffe, in the first instance, assess the costs claimed and they consider the amount claimed, having regard as to what was reasonable, taking into account the issues and complexity of the case.

4.16 Deputy M. Tadier of the Chief Minister regarding action undertaken to assess whether Jersey’s limited involvement in Associated British Foods avoidance of tax via subsidiaries based in the Island constituted ‘aggressive tax avoidance’:

Further to the response given to a written question on 19th February 2013, regarding the Action Aid report Sweet Nothings concerning Associated British Foods’ avoidance of paying taxes to Zambia via subsidiaries based in Jersey, what action, if any, has been undertaken to assess whether Jersey’s limited involvement in this case constituted “aggressive tax avoidance”?

Senator I.J. Gorst (The Chief Minister):

As was said in February, the Jersey company involved has ceased to be active for some time. For this reason no action has been taken to assess whether Jersey’s past limited involvement in this case constituted aggressive tax avoidance. Furthermore, Associated British Foods issued a statement strongly denying that it is engaged in aggressive tax planning. However, action has continued to be taken to support jurisdictions such as Zambia in building up their own defences against harmful tax measures including aggressive tax avoidance. Jersey has agreed to join the O.E.C.D. multilateral convention on mutual and administrative assistance in tax matters and has offered to join with the African tax administration forum and others in providing technical assistance to developing countries.

4.16.1 Deputy M. Tadier:

The involvement of Barclays Trust in this in Jersey may not have been an aggressive tax avoidance measure at all. It may have been perfectly legitimate. But, does the Chief Minister acknowledge that this does have reputational damage for the Island? Does he acknowledge that this Sweet Nothings report has had reputational damage for the Island?

Senator I.J. Gorst:

Negative publicity, publicity which is not based upon fact, supposition and such like can indeed have negative implications for Jersey which is why I made the comments I did with regard to some of the comments that Members of this Assembly have made in recent days. However, it must be remembered what the sugar company’s response was with regard to the factual accuracy of this report.

4.16.2 Deputy M. Tadier:

Presumably it is not for the Chief Minister to act as a spokesperson for the sugar company. However, he has implied in his statement that the Action Aid report was not based on fact, yet having read it, all 48 pages, it seems to me that very much research was done in there. So, can the Minister confirm which parts of the Action Aid report was fictitious?

[11:30]

Senator I.J. Gorst:

I am not an apologist for the sugar company, as I am sure the Deputy is not an apologist for Action Aid, Tax Justice Network or any other N.G.O. (non-governmental organisation) in this Assembly. If I simply read the statement that the sugar company themselves, who one would expect would know their own business, would make declarations in the relevant jurisdictions, would pay taxes in the relevant jurisdictions at the relevant rates, denies emphatically that it is engaged in anything illegal, immoral or in any way designed to reduce the tax rightly payable to the Zambian Government.

Deputy M. Tadier:

Sir, a point of order. The Chief Minister refuses to answer the question. Again, I have asked a simple question. He said that reports which are not based on fact will ruin the reputation of Jersey. But, will he tell me which part of the Action Aid report was fictitious or will he retract the statement?

Senator I.J. Gorst:

I simply reiterated what the sugar company has said in their correspondence and in their letter that parts of that report were factually incorrect.

4.17 Deputy J.H. Young of the Minister for Planning and Environment regarding the delegation of powers to officers to enter into planning obligation agreements which require land transactions and monies to be paid:

Will the Minister inform the Assembly whether he has delegated powers to officers to enter into planning obligation agreements which require land transactions and monies to be paid, as proposed for the Plémont development and, if so, does the delegation allow those powers to be exercised where there is a formal complaint pending under the Administrative Decisions (Review) (Jersey) Law 1982 which could justify independent investigation?

Deputy R.C. Duhamel (The Minister for Planning and Environment):

I can confirm that I have delegated powers to officers from my department to enter into planning obligation agreements relating to land transactions and the payment of monies. Having sought advice from the States Greffe, I can also confirm that there is no statutory requirement under the Administrative Decisions (Review) (Jersey) Law 1982 for me or my department to delay or stop the issue of the Plémont Bay Holiday Village planning approval and expect to issue the approval once the planning obligation agreement has been signed by both parties.

4.17.1 Deputy J.H. Young:

The Minister has said that there is no statutory requirement, but is there not a requirement of good justice and equity in the affairs of the way government makes its decisions that where a body puts forward a complaint using a procedure, which in his previous answer the committee explains is a vital component safeguard. Is it right? Is there not an argument that that transaction should be held back pending the outcome of the chairman’s decision on that whether an inquiry goes ahead or not?

Deputy R.C. Duhamel:

I am not sure to what extent I should answer that question. Other than to say that no complaint as yet been made. The protocols for making that complaint have been suggested to me, that complaints can only be made once the decisions have been formally taken.

4.17.2 Deputy J.H. Young:

Can I seek clarification from the Minister? The Minister suggested there that a complaint has not been made in relation to the Plémont decision. Could he reconsider that? He suggested also that this decision on the planning obligation agreement is a new matter. Surely that is not the case. It is an integral part of this permission and a complaint has been made. Could he not confirm that?

Deputy R.C. Duhamel:

The complaint is to be made to the States Greffe.

The Bailiff:

Could the Chief Minister advise how zero hours contracts meet with his Strategic Plan objectives?

Senator I.J. Gorst:

If they are helping to create jobs albeit on a very temporary basis, we know that it has been easier to get work from work. Therefore, I do not think we should say that they cannot be appropriate in certain circumstances. If they are doing that then it is very much in line with the Strategic Plan priorities. If they are being used in appropriately then no they are not. The Deputy is right is that is what she is intimating.

4.18.6 Deputy G.P. Southern:

Will the Minister encourage his Minister for Social Security to examine his own practices and to see whether his use within his department of zero hours contracts is appropriate. Also, to engage with the Minister for Economic Development to see whether a simple addition of one further question to the Manpower Survey which takes place twice yearly would solve the problem of assessing how extensive this practice is?

Senator I.J. Gorst:

I do not know how the Minister is intending to undertake his investigation nor if it has started. But the Deputy makes a very good suggestion and the Social Survey is a very good way of gathering information right across the community and helps to information government policy.

Deputy G.P. Southern:

Point of correction: not the Social Survey, but the Manpower Survey.

Senator I.J. Gorst:

The same principles apply.

The Bailiff:

Very well. That brings questions to an end.

5. Questions to Ministers without notice - The Minister for Education, Sport and Culture

The Bailiff:

We now come to questions without notice. The first period is to the Minister for Education, Sport and Culture. Deputy Trevor Pitman.

5.1 Deputy T.M. Pitman:

Could the Minister for Education, Sport and Culture, whether confirm or deny, that a child suffered a gunshot wound to the face from a starting pistol handled by a teacher at Le Rocquier School and that that teacher was subsequently and is still suspended?

The Deputy of St. John (Minister for Education, Sport and Culture):

I think normal course under these circumstances would be to suspend that teacher pending a police inquiry. In fact a police inquiry is underway. As I understand it, is still underway so I can make no comment further.

5.1.1 Deputy T.M. Pitman:

Supplementary, Sir? I respect what the Minister said there. But can he at least advise us that the child is in fact okay and, on the same lines, can he advise, assure us, that teacher’s suspension has been continually reviewed as this inquiry goes?

The Deputy of St. John:

All teacher suspensions are kept reviews, yes. My understanding is that the child is okay. But, it is still subject to a police inquiry.

5.2 Deputy S. Power of St. Brelade:

My question will relate to Les Quennevais School. The Minister has been in office since the end of 2011 - 19 months. What options are being considered for what is now regarded as a major investment to be needed in a second level school in the west of the Island? Has the redevelopment of the existing school been considered, given that many consider it to be in a congested residential part of a 2-estate housing residential area?

The Deputy of St. John:

I thank all States Members - Deputy Power is one of them - who have expressed their support for the school generally. Officers from E.S.C. (Education Sport and Culture) and Property Holdings have reviewed the original proposals, which date from 2002. They have produced a feasibility study with all of the realistic options. In fact, there is another one just been added only in the last few days. That includes the refurbishment and building of a new school and all of the various options that go with it. Additional work, however, is underway and I am hoping to be able to present the options by October.

5.2.1 Deputy S. Power:

Can the Minister clarify whether an intensification of the use of the existing site that the school sits on, given that it is already regarded as congested, is being regarded as an option?

The Deputy of St. John:

That is one of the options, yes, but it is only one of 10 options.

5.3 Deputy S. Pinel of St. Clement:

With reference to P.36 on 30th April - the proposition for the music service user pays - I asked the Minister 2 questions, both of which he said he would look into. The first one was: will the loan of an instrument at a small charge be indefinite or will the students have to purchase their own instrument after a year. The second one was: will shared lessons be charged at the same rate as individual lessons, £55, a term for one-to-one tuition instead of a group? Thank you.

The Bailiff:

Your question, Deputy, is: will he answer them now. Is that right?

You have had 2 already. [Laughter]

5.11.2 The Deputy of St. Ouen:

Will the Minister inform this Assembly when he can update this Assembly on the potential actions that would follow this meeting?

The Deputy of St. John:

I am not sure what the actions are but, as I say, my Assistant Minister has delegated responsibility for Art and Culture and would cover this area. I have no doubt that he will be informing the Deputy and any other Member that is interested and I believe he can do that pretty well straight away.

The Bailiff:

Very well. That completes questions to the Minister for Education, Sport and Culture. So we now come to the questions to the Minister for Health and Social Services. Deputy Tadier?

6. Questions to Ministers without notice - The Minister for Health and Social Services

6.1 Deputy M. Tadier:

Will the Minister explain whether waiting lists for joint replacements includes the time that it takes to see the consultant in the first place and then when the extra period of time ... whether those are amalgamated in the official waiting lists that are published?

The Deputy of Trinity (The Minister for Health and Social Services):

The length of waiting lists have been - and quite rightly - cause for concern within the hospital. I can reassure the Deputy that once a referral comes into the hospital - and it depends obviously upon which consultant - that the clock starts ticking, so to speak. We try and keep to a 3-month waiting list to see a consultant and if they need to go on and have an operation, we try and keep to that 3-month operation time. The outpatient list, especially in orthopaedics, is long just because there is a lot of pressure from people needing to see the orthopaedic surgeon. But 82 per cent, I think, are patients who need an operation and we try and do within the 3 months.

6.1.1 Deputy M. Tadier:

A supplementary, Sir. How does the Minister measure the success of keeping to the 3 months for waiting to see a consultant? I ask this because I have heard people who say they have waited 6 months to see the consultant and then they wait another 6 months for the referral and in all that time, the pain in their knees, for example, is getting worse and worse. So, what measures are there to measure the success of keeping to those aspired waiting times?

The Deputy of Trinity:

Every referral letter that comes in for a G.P. outpatient appointment is what we call, “triaged”, so the consultant would review the letter and depending on what the referring G.P. says, if it is urgent, it can go and be on the list. That is how it is done. The G.P.s are in very close contact with consultants but the outpatient department is a very, very busy department. There are over ... well, there is nearly ...

The Bailiff:

I think you are moving on to another matter now, Minister. So, Deputy of St. Peter?

6.2 Deputy K.L. Moore of St. Peter:

Could the Minister describe what checks and balances are in place to ensure that the accommodation provided by her department is of a good standard and suitable for the staff members that they are housing?

The prescription charges did come to the Council of Ministers twice. The first time, it was fair to say that it did not have overwhelming support. When it came back again, we had support from the clinicians within the hospital who are very keen that this is reintroduced. So, it will help to make sure that the G.P.s continue to follow-up with their own patients rather than patients continuing to come back to hospital time and time again. That is why the work within primary care is so important.

The Bailiff:

Very well. I am afraid that brings questions to the Minister for Health and Social Services to an end.

STATEMENTS ON A MATTER OF OFFICIAL RESPONSIBILITY

7. The Minister for Social Security will make a statement regarding proposals for the long term care scheme

The Bailiff:

There are no matters under J. and then we come to K: Statements on a Matter of Official Responsibility, and the Minister for Social Security will make a statement regarding proposals for the long-term care scheme. Minister?

7.1 Senator F. du H. Le Gresley (The Minister for Social Security):

In May last year, I issued a Ministerial Statement on the timetable for the introduction of the long-term care benefits. Today, I am very pleased to announce, that substantial progress has been made on the development of the new benefits over the last 12 months and I can confirm that I will be lodging a proposition next month for debate in September setting out the full details of the scheme. Subject to the approval of States Members, I will be introducing the new benefit from 1st July 2014 with contributions being collected from 1st January 2014. As Members are aware, the Island faces a substantial increase in both the number and proportion of older residents over the next 30 years. Care costs are predicted to more than double by 2044. The younger generation, just starting out on their working lives, will bear a significant burden in terms of supporting not only the long term care costs, but also the health costs and the pensions of the baby boomer generation as they reach the age of 80 and beyond. The original long term care proposals outlined in 2011 would have led to a contribution rate of approximately 4.6 per cent by 2044 and I do not believe that that is acceptable for the current generation to knowingly impose such a heavy burden on our children and grandchildren. Over the last 12 months, detailed research has been undertaken to identify a benefit scheme that will provide significant assistance to homeowners and those facing very high care costs, while at the same time setting the long-term contribution rate at an acceptable level.

[12:15]

I believe that my current proposals achieve this balance and share the responsibility for care costs fairly between individuals who are receiving care and the general population who will provide the funding for the long-term care fund. A ring-fenced, long term care fund will collect contributions from across the community and provide benefits to support the costs of those of us who may need long term care. As suggested in my previous statement, long term care contributions will be leveraged on both earned and unearned income and the Jersey Taxes Office, acting as the agent of Social Security, will use existing methods to collect the contributions. In future, anyone who pays income tax will also make a contribution to the ring-fenced, long term care fund. My proposals will limit the maximum amount that anyone will have to pay for their long term care to £50,000, putting an end to the current uncertainty and concern generated for homeowners and their families when faced with unknown and potentially very significant care costs. Once the cap of £50,000 is reached, the on-going care costs will be met from the new ring-fenced fund. People receiving care in a care home will make a separate co-payment of £300 per week towards their accommodation and living costs throughout their time in care. The proposed scheme will also protect homeowners. The value of the family home, up to the average value of a 2-bedroom house, which is currently £391,000, will be excluded from any assessment as well as at least £25,000 of other savings. Individuals with larger properties will be able to register a charge against their property in respect of the £50,000 care cap. A similar exemption will apply to the savings of people who do not own their own home. By sharing the cost of care in this way, the contribution rate in 2044 is reduced by nearly 40 per cent from the original estimate of 4.6 per cent, down to 2.8 per cent. In the short term, rather than the 1.5 per cent contribution rate previously suggested, I will be proposing an initial long-term care rate of one per cent. However, as existing income tax allowances thresholds and marginal rates will be used in the calculation, the effective rate for most long-term care contributors will be well below the headline rate of one per cent. It is my intention that this one per cent rate will remain fixed for at least 5 years. Sharing the cost of care in this way has several major advantages. The scheme can be introduced next year in 2014 knowing that the long-term care costs are affordable. Individuals and their families will no longer need to worry about how they would meet potential care costs of hundreds of thousands of pounds. People will be able to plan for their future care costs by setting aside this fixed amount and all standard care fees in excess of £50,000 will be met by the long-term care fund. Lower income claimants will continue to receive support to cover the cost of both their care fees and their living costs on a means tested basis. The new benefit will be available to individuals receiving care in their own home and the details of the scheme are being designed to encourage care at home as far as possible. Over the next year, while these arrangements are being put into place, the existing income support residential care scheme will continue and anyone worried about the cost of care fees should approach the department for advice. Thank you. [Approbation]

The Bailiff:

Very well. Opportunities to ask questions? Deputy of St. Ouen?

7.1.1 The Deputy of St. Ouen:

The Bailiff:

Very well. I am afraid that brings questions to the Minister to an end. Before we move on to the next statement, can I just inform Members that 2 matters have been presented for their reading. One is R.63- Pension Increase Debt: options for early repayment - presented by the Minister for Treasury and Resources, and R.64 - Land Transactions under Standing Order 168(3): Southwood 30-31 Belmont Road, St. Helier – Lease - also presented by the Minister for Treasury and Resources.

Senator L.J. Farnham:

I wonder if I could register the fact I am slightly disappointed that the report on the pension repayment has been lodged. I was discussing the issue with the Treasurer, as I lodged the original proposition and I understand there was a dialogue ongoing, so I just wanted to register that.

Can I congratulate the Chief Minister and the Minister for Treasury and Resources for their strong representation of the Island in London at the weekend, and can I ask the Chief Minister what assurances he received from the Prime Minister on the subject of an even playing field, and given Britain’s position with their dependencies and territories, were they not to receive the same amount of commitment from the other G8 members, what would be the position?

Senator I.J. Gorst:

I thank the Senator for his words there, and perhaps I would like to publicly thank the Minister for Treasury and Resources and my official that accompanied me on Saturday in London. The reason I have confidently been able to support the United Kingdom Prime Minister’s approach and his agenda for the G8 summit is because it is in Jersey’s best interests to see standards globally applied and for standards to be global standards, and I believe that, I hope, the Prime Minister is successful in his conversations with other G8 members today and that they will indeed produce action plans which will be able to be delivered in due course, because I believe it will increase Jersey’s competitive advantage if all comply and have the same high standards that we currently have.

8.1.6 Deputy M. Tadier:

Does the Chief Minister agree that tax is not simply a budgetary consideration, but that it is also a moral issue?

Senator I.J. Gorst:

It seems I am trying to be drawn on a number of areas, which I do not think effectively are my competency.

[12:45]

I do not see it in those terms. Tax allows governments to provide services for the community, and each government makes sometimes difficult decisions about its tax rates, where it will gather tax from and then therefore where it will apply them to. Therefore, I suppose in that regard it is about social cohesion and one could argue that there is a moral implication to how governments and communities approach tax.

Deputy M. Tadier:

A supplementary, Sir, if I may. It was ...

The Bailiff:

I am sorry, Deputy, time has run out.

Deputy M. Tadier:

I was trying to put in the good training that the Solicitor General gave us.

The Bailiff:

Oh, I see.

Deputy M. Tadier:

That is a shame.

The Bailiff:

There will be other occasions, no doubt, when you can put it into practice. Very well.

LUNCHEON ADJOURNMENT PROPOSED

The Bailiff:

So the adjournment is proposed, so ...

Senator P.F. Routier:

May I also remind Members, if they wanted an update on the Control of Housing and Work Law, there is a briefing in the Church House at lunchtime. There are sandwiches available.

Senator P.M. Bailhache:

Before the Assembly rises, an accusation was made by Deputy Trevor Pitman this morning that I had misled the Assembly and I hope you will allow me to say, Sir, that that allegation is strongly refuted and I would like also to correct a number of other misapprehensions that have emerged during the course of questioning this morning. It seems to me that the only way in which I can do that is through a personal statement, as I have no Ministerial capacity, and I shall therefore be submitting it to you as soon as I can - but it probably will not be before the end of the day - a draft statement for your approval.

Deputy T.M. Pitman:

Can I say that I will be seeking a request to make a personal statement, given the Senator’s insinuation that I am a liar.

The Bailiff:

Very well. The Assembly will adjourn and reconvene at 2.15 p.m.

[12:47]

LUNCHEON ADJOURNMENT

[14:15]

PUBLIC BUSINESS

9. Draft Wills and Successions (Amendment No. 2) (Jersey) Law 201- (P.38/2013)

The Bailiff:

Very well, we now come to Public Business and the first matter on the Order Paper is Projet 38 - Draft Wills and Successions (Amendment No. 2) (Jersey) Law - lodged by the Chief Minister. I will ask the Greffier to read the citation.

The Greffier of the States:

Draft Wills and Successions (Amendment No. 2) (Jersey) Law. A Law to amend further the Wills and Successions (Jersey) Law 1993. The States, subject to the sanction of her Most Excellent Majesty in Council, have adopted the following Law.

Senator I.J. Gorst:

This is a legislative change that has arisen from the Legislation Advisory Panel, and as such, I would like to ask my Assistant Minister, who is chairman of that panel, to act as rapporteur.

9.1 Senator P.M. Bailhache (Assistant Chief Minister - rapporteur):

The purpose of this Bill is to achieve 2 amendments to the Wills and Successions (Jersey) Law 1993. The Bill has been promoted by the Chief Minister following the conclusions of a report commissioned by the Jersey Community Relations Trust. The report by Professor Meryl Thomas, visiting Professor at the Institute of Law, who teaches the law of succession to aspiring advocates and solicitors, concluded that it was arguably contrary to the European Convention of Human Rights that the treatment of men and women in relation to the reserved rights of the surviving spouse in a testate succession were different; in other words, the different rules applying to a widow’s right of dower and the widower’s right of viduité Professor Thomas thought ought to be changed. The Chief Minister referred the report to the Legislation Advisory Panel, which considered it and reached the conclusion that there was no longer any tenable reason to differentiate between the rights of widows and widowers and instructed the Law Draftsman to prepare the necessary legislation. The draft Bill, once in existence, was circulated to the Law Society of Jersey, and in due course the panel received a report and some constructive comments from the members of the society. Not surprisingly, because the members of the Law Society are independent advocates and solicitors with independent views, there were significant differences in some of the comments expressed. Some members wanted dower abolished and replaced by a life interest in the matrimonial home; some members wanted it abolished and replaced by a life interest in the matrimonial home and an uncertified interest in any other immovable property owned by the deceased; some wanted a wholesale review of the law of succession, the introduction of total testamentary freedom and right to ask the Court to decide whether any provision should be made for a widow or other dependant. The panel considered all these views and decided that reform should proceed one step at a time. Many of the views expressed by members of the Law Society were controversial, but there was unanimous approval for the proposition that men and women should, in this context, be treated equally. The panel accordingly recommended to the Chief Minister that this reform should be taken forward. Deputy Young has circulated to Members a summary of the views expressed by members of the Law Society and I am very grateful for the interest that Deputy Young has shown. The Electoral Commission commented on the generally low level of scrutiny of legislation and it is, if I may say so, excellent that Deputy Young has analysed so carefully a technical piece of draft legislation in this way. Having said that, unfortunately the panel did not agree with the recommendations that Deputy Young made. The principal reason for thinking differently from Deputy Young is that the kind of reforms of which some members of the profession have spoken would require extensive consultation, not just with lawyers, but with the members of the Court, other interested groups, and indeed the public itself. Respect for rights of property is a fundamental pillar of a democratic and civilised society. One should not seek to change the freedom which a testator has to dispose of his property without giving society as a whole the opportunity to comment upon any such change. For the last 160 years, people in Jersey have had the right to dispose of their immovable property as they see fit, subject only to rights of dower and viduité. The abolition of viduité and the substitution for it of a right equivalent to dower does not raise any substantial issues, but the substitution of a right of usufruct or life enjoyment of the matrimonial home, or perhaps all the immovable property of the testator or testatrix, does raise important questions. It may be that it would be a sensible move. I am perfectly prepared to concede that to Deputy Young, but there are a number of other reforms that could be considered if dower were abolished, and indeed, much more significantly, there are grounds, some members may think, for a wholesale look at the law of succession. In any event, the public, in our view, would be entitled to have its say. So the question for the Assembly this afternoon is whether one puts off a decision on what is a completely uncontroversial issue, that is to say the equal treatment of men and women in this context, or one goes ahead with this reform, and in the fullness of time and after proper consultation with all those who ought to be consulted, one comes back perhaps with a completely new look at the law of succession. So the purpose of this Bill is to do 2 things. First, it is to abolish viduité, that is the right of a widower to the life enjoyment of all the wife’s immovable property in a testate succession, and secondly, to provide for the same legal test to be applied by the Court in both testate and intestate successions where there is a question of barring the right of life enjoyment or dower, as the case may be, to a spouse or civil partner on the grounds that that spouse or civil partner has deserted the deceased partner or there has been a judicial separation. Those are the issues for the Assembly and I propose the principles of the Bill.

The Bailiff:

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

9.1.1 Deputy J.H. Young:

I apologise to the Assembly for having to do this, but I did from my email yesterday,,, and Members will know that I did have a meeting with the Assistant Minister to discuss this to seek to persuade him that we should widen out the scope of these proposals, but the Assistant Minister considered that the Assembly should be tested on this point. Normally I would wait until later in the day, but I think in this case I might as well do it straight away and save the House time. There is a long history of this, I did some research, and the customary law of Jersey - very historic, traditional - set very traditional rules and of course the question is do they meet the current needs of society? I think the evidence is from the record that many years later - those words were first spoken about in 1984 - that question is still there. There is still this need for reform and I think the current needs of society really do bring this question of the wider reform that the Assistant Minister spoke of to the fore. I thank him for his remarks about legislative scrutiny. I was not seeking to score points in respect of any of this, it is just that having had some background in working for a law firm, I was very struck when I first read the items in the media where practising lawyers were expressing publicly views that the draft law was not satisfactory and was not up to the job of meeting the current needs of society. So I then followed up the matter in more detail and I found that there is a history of previous legislation committees who all had a look at this in 1980, in 1984 another committee and then in 1999 and then in 2001 there were reports which particularly focused on the succession rights of children born outside marriage and that issue was cleared up. But the substantive issues about the question of a bereaved husband or wife or now civil partner having a life interest in the matrimonial home, that is the key issue for me. I copied you some papers. I am not intending to go into them in detail, I am sure you will be relieved, and these matters were discussed in the States debate of 1984. Now, the pattern has been previously that we had policy debates and then we had a draft law. For example, in 1984, the policy report was then followed by the actual Wills and Successions Law in 1993, and in 2003, it took until 2010 until we got the first amendment to law. So the pattern has been in this whole business, there is a very, very long, long delay between having policy debates about important changes and then the Assembly being given the opportunity to approve a draft law. That is one of my motivations for bringing this today to the Assembly, that I think that if we were to just rubberstamp this law as it is and not address the bigger issues, then I think it is probably likely we will see another 10 years again, because there will not be law drafting time, it will not be a priority and we will not get these things addressed.

[14:30]

I think the key question in the 1984 debate was in relation to the right of life enjoyment of the matrimonial home of the bereaved wife, husband or now civil partner, because this applies in a testate succession, which means where there is a will. The law covers the situation when somebody dies and there is no will, because in an intestate situation, that was covered in the law change made in - got to get the date right - 1993 that there is a statutory right of life enjoyment where there is no will for the surviving spouse. So that is good, but we have still got this issue about where there is a will and so we are having, I think - and I am disappointed, really - this debate on a draft law which is really a policy matter. The reasons why the Legislation Advisory Panel, who advised the Chief Minister, has said that this cannot be done, and the Assistant Chief Minister covered it in his remarks… it says that they did explore the ability that there would be a change in this area where there was a will of immovables instead of a right of a dower, but it says: “This threw up difficulties in considerations about testamentary freedom in a wider sense and more fundamentally, the nature of law in immovable property and would have entailed a far-reaching and fundamental review of the whole law of succession better suited to another phase of the panel’s review.” That is the only thing that you can find in that report that explains there is going to be some more work. Really, it says it is too difficult and I find that very difficult as a Back-Bench Member to just accept: “Oh well, it is better to have something rather than nothing.” No, I would much sooner have the thing done properly and have this review. There is nothing in here about the timescale and so we have got real missing information in the report of the Chief Minister about what would be the intention if this law is approved as it stands and when would it come forward. My concerns were alerted when I read a J.E.P. article - and I copied it in your papers, page 9 in the first bundle of documents - where the lawyer challenges, this is a practising lawyer ... and having worked as a practice manager in a law firm, lawyers do not normally get involved in matters of public policy issues. They generally keep heads below the parapet in these matters. So I thought this was quite exceptional. The article says, and I followed it up, so the quotes are correct: “The States could be wasting a golden opportunity to overhaul Jersey’s inheritance laws if the Assembly approves proposed changes to existing legislation, according to a senior advocate”, and this advocate warned against taking a piecemeal approach to updating the Wills and Successions Law. It says: “Whilst it is admirable that the States are seeking to equalise rights of inheritance between men and women”, absolutely, yes, but my point is we substitute a bad situation for both. It will be equally bad for either. She goes on to say: “…a golden opportunity has been wasted to carry out a wholesale review of the inheritance law, something that has recently taken place in Guernsey.” How many times do we hear this? Guernsey have done their reviews. She said “…that it would be more sensible to have a statutory life enjoyment of the family home” because “How does it work in circumstances where the deceased spouse or civil partner only owns one property? Does the surviving spouse/civil partner have a right to enjoy only one-third of that property…?” and so on. So I think that alerted me strongly to the concerns, so I followed it up in an email exchange with her. She says: “I am concerned that this is the wrong amendment to be making, because I believe we should introduce a statutory life enjoyment of the matrimonial home, and moreover, the inheritance law needs a substantial overhaul and it makes sense to approach it all in one go.” So there are 2 points. First of all, the question of a statutory life enjoyment, and secondly, overall reforms. Then she says: “The reforms historically have gone nowhere, except in the case of children born outside marriage” and so on. Then later on she says: “Rather than tinkering with the existing concept of viduité, it would have been sensible to do away with the customary law concept of dower altogether and introduce a statutory life enjoyment of the matrimonial or civil partnership home, similar to that given in an intestate distinction. It makes no sense to have a distinction between a situation in a testate succession and those in an intestate one.” So she goes on, but in order to shorten the debate, I think that really sums up the key issue that she raised. I have not copied that email, because I have given that to the Assistant Chief Minister. I had consent to do that, but not to circulate it wider. But then I approached the Jersey Law Society and I asked for a copy of their comments, because I thought: “We have had one lawyer. Let us see what all the other firms say” and you have that document, which is in pages 1 to 8 of the pack that I asked to be circulated. You will be pleased to know I am not going to do more than pick a few points from it. But the point is this is a comment of 7 law firms who are dealing with this in practice. Absolutely. We had the Assistant Minister tell us that the proposals have an evolution route of a very expert academic kind of debate. But I think what the law firms are saying in practice that there is a theme coming through, there is a strong case for a right to life enjoyment in the matrimonial home for a surviving partner. It is right and so I will not read all of those comments. They say there is no point in modernising it by converting another ancient customary law to fill a role it was never designed for. I think what they say, one point here: “Most people’s immovable of property rights will be limited to one house as dower only applies to one-third.” That is the key thing. The amendment will still leave a situation and make it universal that there will be a right of dower, which is one-third life interest to the immovable property, which is the land and building owned by the deceased. But that is one-third but the common situation is that for most people they own one home. There is one family home. Thankfully, in the majority of cases, they are the safeguards that people can use. People have those homes jointly owned or they make them subject to a will in favour of their spouse or they are not subject to a will, in which case we have the intestate rules. But in some cases, which is quite common, many marriages result in divorce and a subsequent marriage later in life where there are nearly always children and grandchildren of previous marriages. We know that in those cases having a deceased party where the surviving one receives one-third life enjoyment of her matrimonial home later in life without those protections, either being jointly owned or subject to a will, is problematic. Disputes can arise and lead, ultimately, to homelessness. That is one of the points being made in the comments by the practicing lawyers. I checked back through the States decision and, again, in 1984 that the debate there and particularly makes the point, I believe, that in 1984 this principle that I am advocating was agreed. There was an amendment by the late Senator Ralph Vibert, a very distinguished lawyer and Jerseyman, recorded in this. You do not have his amendment but I have given you the debate in the J.E.P. Amazing how the J.E.P. recorded the debates in those days. It was almost as good as the States Minutes. You can see who spoke and what they said and one assumes it is accurate and reliable. I have also copied out on the third page the debate on the amendment of the late Senator Ralph Vibert, that is in the bigger print on page 3 of the second pack. I have to confess there is a bit of ambiguity in this, that it is not clear to me entirely whether that debate was addressing the issue of the life enjoyment to the matrimonial family home, both in an intestate and a testate situation. That is not totally clear. There are certain ambiguities in the documents, mainly because of the way States did things in those days were slightly different. I think it matters not. The principle is right. If it is right in one’s circumstances it must be right for others. There is some protection for the surviving spouse who finds himself in a situation where they do not have more than one-third interest of their family home and, potentially, have to leave it. Very unsatisfactory. I asked myself, what is the best way forward here? I had hoped that I do not have to argue against the draft law and vote against it. The Chief Minister has given us a very clear account of its evolution. It comes from an academic sense. It comes from work done by the Community Relations Trust but, of course, it is a narrow piece of work. It only focuses on one small part and ignores this larger task. For that reason the report does not give us the reasons adequately as to why these factors have not been taken into account. It does not explain why previous States decisions have not been put into the draft. It does not explain the difficulties. It does not explain the issues that need to be looked at and it does not explain what would happen in terms of when we would see this draft law if it goes ahead approved. I thought of what to do and I thought the best thing I can do is propose a reference back on the grounds that I had asked for the information I believe to be missing from this report that would then leave the Chief Minister to do further work and then we would have the option of either to resume the debate as it stands or withdraw that and produce a substitution. I think that is more constructive than me trying to do procedural moves, like move to the next item because I do not think it is right to have to vote against this. We have just got ourselves in a situation where we have gone straight to a draft law without a policy debate. I think that is not the right way. It is a difficult and complex subject. I cannot see how it is right to go into a public consultation with professional lawyers in practice and they ignore what they have to say. There is a clear consensus there. Just one last remark in closing, the Chief Minister said that we would have to do public consultation. Absolutely right. Are we supposed to be standing here passing laws that do not have any public consultation? Absolutely not. I think back to me, add it to my proposal. Sir, if I may be allowed, on the grounds of asking for reference back to receive that information I have outlined, would you be prepared to accept that reference back?

The Bailiff:

Thank you, Deputy. I do not think this is a case for a reference back because the issue is simply whether one wishes to go for a life interest, as you do, or whether to go for a dower, as the proposer does. I do not think there is any question of any further information here. It is a straightforward issue. I think, if I may say so, that you have a number of options open to you to achieve your objective. First of all, you could support this but make it clear that you want to come back later and request a more wholesale reform. Secondly, you could oppose it, do the same thing. In other words, if it is defeated you could then come back and make it clear and request them to come forward with a better reform. Thirdly, you could ask for the matter to be referred to Scrutiny if you wish or, fourthly, at an appropriate time but not now you might be able to suggest a move to the next item of business, which would then, if it was carried, result in the matter falling and no doubt the message would be received that Members wanted what you were suggesting. But I think this is not a matter for a reference back and, therefore, I cannot accept it.

Deputy J.H. Young:

Thank you, Sir. Would it be okay if I then just stopped at that point? If I chose any of those options, have I got to propose those now or could I come back later and debate when I hear what other Members have said?

The Bailiff:

No, you can propose them at any stage.

Senator I.J. Gorst:

Sir, I would never wish to question a ruling from the Chair ...

The Bailiff:

You are not going to start now. [Laughter]

Senator I.J. Gorst:

No. Indeed I am not, Sir. I am simply going to ask for clarification on your fourth proposal to the Deputy. Is it correct that the Deputy, having now spoken, is still in the position to be able to request ...

The Bailiff:

Yes, that got changed. It used to be that you could only do it if you had not spoken but under the current rules any Member can stand up and make that proposition.

Senator I.J. Gorst:

I stand corrected, Sir. Thank you.

The Bailiff:

Very well, does any other Member wish to speak? Deputy Le Fondré.

[14:45]

9.1.2 Deputy J.A.N. Le Fondré:

The reason I am rising is I was Chairman of the previous Legislation Advisory Panel. Indeed, the proposition in front of us is very similar - obviously further work was performed but I think particularly in Article 8 - to one of the last acts of that particular panel in giving a report and a proposition to the previous Chief Minister. I think it might be helpful to give some background. Obviously the problem here is this is, to anybody who is non-legally minded, all hideously complex - and I include myself in that category - in terms of understanding fundamentally because one is going back into Norman roots as well. In very much layman’s terms the problems that we faced as the previous panel, as in fact Senator Bailhache has referred to, is, firstly, among various lawyers who give definitely some very strong and differing opinions. Secondly, quite a number of lawyers are trained, and I am going to be very simplistic here, in English law, whereas, as I said, obviously what we are often in this instance dealing with is Norman law and going back to very much cultural roots if you like. The significance there is that English law, and I use that phrase deliberately and I hope I will not be corrected too many times by the number of actual professional lawyers in this Assembly, in this instance is very much you can leave what you want to who you like almost and there are various safeguards, whereas European law tends to have what I will call provision for family protection and that is a little bit about what we have been talking about here. The issue is, I believe, the significant majority of European countries has - something like 20 or 22 out of the entire European Union - some form of provision. The reason I make reference to English law is that Scottish law, for example, I believe includes and I believe it is going to continue to include some form of family protection in matters of inheritance. The significance that the previous panel were faced with at the time, and the reason I make reference to it is this is about the wider review that Deputy Young is referring to, is that we had inherited something that had been sitting around for 10 years, which is the treatment of - I will use the expression - illegitimate children. It is a horrible one: children born out of wedlock is the better one I suppose. It had taken 10 years to get to the point it was presented to our panel. We then had representations again from one side of the legal bodies in Jersey about what they would prefer and then representation from another side identifying equal and opposite difficulties. The point there was that we took a view, effectively, to deal with 2 phases. One was the dealing with children out of wedlock, which was approved by the previous Assembly and I think it was in 2010, I cannot remember. Then phase 2 was the issue that is in front of us today, which was, in our view, a very simple matter of discrimination. In fact it was very much influenced by the Community Relations Trust and the report they produced. I think that is where we are because it was improving the issue in front of us from the point of view of not leaving it sitting around for another 10 years or whatever the time was going to be. However, the point was also made in our deliberations, I am sure it will be the view of the present panel as well, is that there should be a further phase of work. In that instance I do have a lot of sympathy with what Deputy Young is saying in terms of whether that should be an issue for a further piece of work by the Legislation Advisory Panel in the future. Certainly my preference would be not to throw out this particular piece of work. It improves a matter that needed improving. It does not seek to solve every problem under the sun because if one wanted to do an overall review, bearing in mind these competing views out there in the legal profession, it is going to take a piece of work to do it and quite a long time. I know at the time we looked at it, for example, and it is a political decision at the end of the day. There was a case in the U.K. over a daughter, obviously an adult at that time, who had been caring for 2 elderly parents. The father/husband had died and the mother subsequently died. It then transpired, the way it was reported in the press, that the father was of very strong personality, I think was their way of putting it, had persuaded the mother to leave her will, and the family business or the family farm that the daughter had been extensively involved in running and caring for her parents and all that sort of stuff, had been left to a charity. If you like, she had been disinherited of the main property. That is what I call a family protection issue. The point was the concern was it became, for want of a better expression, a lawyer’s charter. In that instance, my recollection is that the legal fees incurred by both sides were huge, in the order of £500,000 on each party I believe. That was why in fact we wanted to deal with ... it is a slightly piecemeal approach but, as I am trying to recall, 10 years with one matter being outstanding was unacceptable and that needed a resolution. This issue is the next issue. The Community Relations Trust were very much in favour of it: sort that one out. If there is further work to do, do that. There are other anomalies that do need to be resolved and do that in a calm and considered way. The trouble is you can try and do it all at the same time. Again, in the circumstances we were dealing with we did not think you would achieve anything in the foreseeable future. To sum that up today, my view is I agree entirely with the standing issue about the matrimonial home and the protection there, to me is very valid, absolutely. I would love to see the Legislation Advisory Panel look at that as a piece of work and come back with the recommendations that they need to. But to me I would support this particular piece of law and then wait for a further piece of work to come back, rather than delaying matters even further.

9.1.3 The Deputy of St. Martin:

Deputy Young’s points are all well made but he asks us to consider a larger more general, more overall reform of this law. I think the proposition today is asking us not for that overall reform but to be more specific and to look at a current need of society, that is especially the equality between men and women. When debating more general overall reform of legislative proposals, like this law would give us, again, to huge confusion, huge complication. But today is a sort of a compromise. Deputy Le Fondré has just described the first steps that were taken a few years ago and today is a second step. As Deputy Young reminded us this all kicked-off in 1984 and I think if we had the toddlers who took 29 years to take their first 2 steps we might describe them as slow developers. Certainly we are slow developers in this case. But the previous panel made a start and this panel are making a little bit of further work. I would ask Members to approve this proposition in the hope that the further work that Deputy Young asks for can happen in the near future.

9.1.4 Senator B.I. Le Marquand:

The 1993 law came in about 3 years after I had left private practice, so I never in fact had to deal with the problems that were raised directly. But I am well aware, particularly after certainly the immovable property aspects, that it did create very strange anomalies in situations as to whether it was helpful or not helpful to make a will and that situation still exists to this day. I spent this morning trying to analyse the various different Articles of the existing law, as well as the changes. In fact got them wrong in the process and had to correct myself. But I did come to the conclusion, as many other lawyers have done, that there is a need for a more wholesale view to be taken of this, which will be looked at in more detail. I do not think it is purely the potential life enjoyment advocated by Deputy Young for a spouse or civil partner where a will has been left. I think there are other issues as well. Having said that, I am now going to disappoint Deputy Young because having, as it was, supported in principle the fact that there is more work that will eventually need to be done, I am tempted to quote, once again, my friend Carl von Clausewitz who comes up from time to time about: “The enemy of a good plan is the dream of a perfect plan.” But I do not think that is quite applicable in this case. I think this is a case of let us get on and make what is clearly an improvement, which clearly is supported by all those lawyers who have looked at it. But let us also say very politely to the Legislation Advisory Panel: “Please, carry on doing work on this because there are wider issues and a wider review that will be needed.” I will be supporting the proposition but with that hope in mind.

The Bailiff:

Does any other Member wish to speak? Then I invite the rapporteur to reply.

9.1.5 Senator P.M. Bailhache:

I am grateful for those who have spoken in this debate. Deputy Young made a number of points and with many of them I have, like Senator Le Marquand, considerable sympathy. He drew attention, however, to a letter from one advocate, which was reported in the newspaper, who warned against piecemeal reform. But, of course, to substitute life enjoyment for a dower would be equally a piecemeal reform. I have the greatest respect for the advocate who has motivated Deputy Young to take an interest in this matter. But if it is correct, and I hope that Deputy Young quoted her correctly, that it was argued that there was no real distinction to be drawn between a testate and an intestate succession that seems to me to be wrong. There is an important distinction because in an intestate succession the deceased person has not expressed his or her wishes as to what should happen in the event of his or her death. The law of intestate succession, in effect, makes a will for a person who has failed to make one. In those circumstances it is obviously right that the law should look at matters in the round and decide in the interests of the spouse, in the interests of any issue, how the property should devolve. That happened in 1993 and the law made provision for a life enjoyment for the surviving spouse and a division of the reversionary ownership in any immovable property between the issue and the surviving spouse. A testate succession is quite different. In a testate succession a testator or testatrix has made a will, has expressed a wish as to what should happen to his or her property on death. The overturning of those wishes by protecting the rights of a surviving spouse is an entirely different matter. There is a spectrum, if you like, of circumstances, as Deputy Young put it, where there was a risk of homelessness and one can envisage circumstances where a surviving spouse could be put in a difficult position because he or she has only a right of dower and not a right of life enjoyment. But at the other end of the spectrum there are circumstances where married people have lived apart for 20 years or 25 years. They have not bothered to get a divorce. They are not judicially separated. There has been no question of desertion. A testator in those circumstances may have made a very conscious decision: “I am not going to make provision for this wife with whom I have not lived for 25 years. I am going to make other provisions. I am going to leave it to my favourite charity. I am going to leave it to my children or to my nephew or my niece.” The question of how to resolve these conflicts in a testate succession are quite different from the issues that arise where there is no will and where the law, in effect, makes a will for you. One option is the one put forward by Deputy Young but, as I said in my opening remarks, there are a number of other options as well. I think the issue for the Assembly is very clear and a number of speakers, Deputy Le Fondré and the Deputy of St. Martin, among others, I think expressed this, does the Assembly want to take this step, which is obviously a correct step in the sense that nobody is going to argue that men and women should be treated differently in 2013 in this context or does one leave that to one side and wait until the process of consultation, consideration and argument and dispute and, ultimately, the bringing forward of a new proposition and dealing with much wider issues?

[15:00]

I am sure I speak for all members of the panel in saying that we would be very content to take back a message from the Assembly that some of these wider issues should be examined. In that respect I am very grateful to Deputy Young for having provoked this debate and made the points that he has made. But it seems to me that the sensible way forward is to adopt this Bill, to make the change that nobody opposes and to give mature consideration to any other changes that ought to take place. I maintain the principles of the Bill.

The Bailiff:

All those in favour of adopting the principles, kindly show. The appel is called for in relation to the principles. I invite Members to return to their seats and the Greffier will open the voting.

POUR: 38	CONTRE: 5	ABSTAIN: 0
Senator P.F. Routier	Deputy G.P. Southern (H)
Senator A. Breckon	Deputy of Grouville
Senator B.I. Le Marquand	Deputy T.M. Pitman (H)
Senator F.du H. Le Gresley	Deputy J.M. Maçon (S)
Senator I.J. Gorst	Deputy J.H. Young (B)
Senator L.J. Farnham
Senator P.M. Bailhache
Connétable of Trinity
Connétable of St. Clement
Connétable of St. Peter
Connétable of St. Mary
Connétable of St. John
Connétable of St. Ouen
Connétable of St. Brelade
Connétable of St. Martin
Connétable of St. Saviour
Deputy R.C. Duhamel (S)
Deputy R.G. Le Hérissier (S)
Deputy of St. Ouen
Deputy J.A. Hilton (H)
Deputy J.A.N. Le Fondré (L)
Deputy of Trinity
Deputy S.S.P.A. Power (B)
Deputy S. Pitman (H)
Deputy K.C. Lewis (S)
Deputy M. Tadier (B)
Deputy T.A. Vallois (S)
Deputy M.R. Higgins (H)
Deputy A.K.F. Green (H)
Deputy G.C.L. Baudains (C)
Deputy of St. John
Deputy J.P.G. Baker (H)
Deputy S.J. Pinel (C)
Deputy of St. Mary
Deputy of St. Martin
Deputy R.G. Bryans (H)
Deputy of St. Peter
Deputy R.J. Rondel (H)

The Bailiff:

This is a matter which falls within the Corporate Services Scrutiny Panel. Senator Ferguson is not here as Chairman. The Deputy of St. Ouen, I believe you are the Vice-Chairman, is that right? [Aside] Thank you. Then in terms of the Articles, Senator Bailhache, do you wish to propose them en bloc?

9.2 Senator P.M. Bailhache:

If Members are content that I should propose them en bloc I will do that and answer questions on any one of them in due course. Article 1 of the Bill is the interpretation clause. Article 2 of the Bill substitutes the Articles in relation to the abolition of viduité and the substitution of a right of usufruit. The opportunity has been taken to include in the same Article the rights that are conferred upon civil partners, so there is no difference between the rights of a civil partner and the rights of a spouse. Article 3 of the Bill amends Article 8 of the principal law to give effect again to the proposal for the abolition of viduité. Article 4 of the Bill is a rather technical matter involving the combination of the customary law test and the statutory test under the 1993 law in both testate and intestate successions where the court is considering whether a person should not be entitled to a usufruit or to dower because he or she has deserted the deceased spouse or is otherwise undeserving of the privilege. Articles 5, 6, 7, 8, 9, 10 and 11 give effect. Insofar as Article 7 is concerned is the Article that abolishes the widower’s entitlement to viduité and also abolishes the rule that requires that consummation of a marriage should take place before a dower can be earned. I propose the Articles of the Bill and would be content to ask me any questions.

The Bailiff:

Numbers 1 to 11 in the Schedule.

Senator P.M. Bailhache:

I propose the Schedule as well, the Schedule which, I am sorry, makes consequential amendments to other laws, in particular to the 1880 law on real property. Translation of the amendments is available for the benefit of Members and I move the Schedule as well.

The Bailiff:

Seconded? [Seconded] Does any Member wish to speak on any Articles 1 to 11 or the Schedule? All those in favour of adopting the Articles, kindly show. Those against. The Articles and the Schedule are adopted.

9.3 Senator P.M. Bailhache:

I move the Bill in Third Reading, Sir.

The Bailiff:

Seconded in Third Reading? [Seconded] Does any Member wish to speak in Third Reading? Deputy Young.

9.3.1 Deputy J.H. Young:

Just to say that it was with reluctance I cast my vote against but I feel I have got to maintain my position that we should be doing this further review. I am grateful for the remarks made there, that I can only hope that we will see new proposals come back but I maintain my opposition for consistency.

9.3.2 Deputy R.G. Le Hérissier:

In a possible example of hope over experience, I wonder if the rapporteur can tell us when he will be proposing the broader-based reforms.

The Bailiff:

Does any other Member wish to speak in Third Reading? I now invite the rapporteur to reply.

9.3.3 Senator P.M. Bailhache:

I understand Deputy Young’s position completely. So far as Deputy Le Hérissier’s optimistic request is concerned, I can say no better than that the panel will apply itself to the task and we shall see to what extent there is agreement as to the way forward. If there is agreement then clearly matters can be advanced more quickly. If there is not agreement then these things do take time. I maintain the Bill.

The Bailiff:

Very well, all those in favour of adopting them in Third Reading, kindly show. The appel is called for in Third Reading. I invite Members to return to their seats and the Greffier will open the voting.

POUR: 39	CONTRE: 4	ABSTAIN: 1
Senator P.F.C. Ozouf	Connétable of St. John	Senator S.C. Ferguson
Senator B.I. Le Marquand	Deputy of Grouville
Senator F.du H. Le Gresley	Deputy J.M. Maçon (S)
Senator I.J. Gorst	Deputy J.H. Young (B)
Senator L.J. Farnham
Senator P.M. Bailhache
Connétable of St. Helier
Connétable of Trinity
Connétable of St. Clement
Connétable of St. Peter
Connétable of St. Lawrence
Connétable of St. Mary
Connétable of St. Ouen
Connétable of St. Brelade
Connétable of St. Martin
Connétable of St. Saviour
Deputy R.C. Duhamel (S)
Deputy R.G. Le Hérissier (S)
Deputy of St. Ouen
Deputy J.A. Hilton (H)
Deputy J.A.N. Le Fondré (L)
Deputy of Trinity
Deputy S.S.P.A. Power (B)
Deputy S. Pitman (H)
Deputy K.C. Lewis (S)
Deputy M. Tadier (B)
Deputy E.J. Noel (L)
Deputy T.A. Vallois (S)
Deputy M.R. Higgins (H)
Deputy A.K.F. Green (H)
Deputy G.C.L. Baudains (C)
Deputy of St. John
Deputy J.P.G. Baker (H)
Deputy S.J. Pinel (C)
Deputy of St. Mary
Deputy of St. Martin
Deputy R.G. Bryans (H)
Deputy of St. Peter
Deputy R.J. Rondel (H)

10. Approval of the Memorandum of Understanding between the Government of Jersey and Her Majesty’s Revenue and Customs of the United Kingdom of Great Britain and Northern Ireland relating to Co-Operation and Tax matters (P.55/2013)

The Bailiff:

Very well, then we move next to Projet 55, Approval of the Memorandum of Understanding between the Government of Jersey and Her Majesty’s Revenue and Customs of the United Kingdom of Great Britain and Northern Ireland relating to co-operation and tax matters, lodged by the Chief Minister. I will ask the Greffier to read the proposition.

The Greffier of the States:

The States are asked to decide whether of opinion to approve the Memorandum of Understanding between the Government of Jersey and Her Majesty’s Revenue and Customs of the United Kingdom of Great Britain and Northern Ireland relating to co-operation and tax matters, as set out in the Appendix to the report of the Chief Minister dated 18th April 2013.

10.1 Senator I.J. Gorst (The Chief Minister):

As Members will know from reading the propositions P.55 and P.56 are dealing with the same issue. The Memorandum of Understanding is part of a package of proposals that we have agreed with the U.K. to help combat tax evasion. We have made it clear that we have no wish or need to accommodate those engaged in tax evasion. We have agreed to enter into an agreement with the U.K. which will provide for the automatic exchange of information. This will mirror the F.A.T.C.A. agreement we are negotiating with the United States. The disclosure facility that the M.O.U. (Memorandum of Understanding) and the associated regulation - that is P.56 - refer to is an opportunity presented by the U.K. for those U.K. resident taxpayers concerned to regularise their tax affairs ahead of the automatic exchange of information. Jersey’s sole involvement in this matter is to respond to the U.K.’s request that our financial institution should be required to inform their relevant customers of the existence of the disclosure facility and to remind them again 6 months before the facility is withdrawn in September 2016 and this is what the draft Regulations are designed to do. Therefore, I commend the M.O.U. to the Assembly for approval.

The Bailiff:

Is the proposition seconded? [Seconded] Does any Member wish to speak on the proposition? Deputy Tadier.

10.1.1 Deputy M. Tadier:

My question is for the Chief Minister and I think every Member in the Assembly wants to sign-up to this but there will obviously be consequences for that. Who defines what is illegal? Who defines what is evasion at any one given point in time, given that we know that we live in an ever changing and increasingly sick world where people catch colds and then come to work? But we also live in a world where the definition of avoidance, aggressive and evasion changes all the time. My question to the Chief Minister is, when Jersey signs-up to these agreements in good faith with the U.K., meaning that they can find out what structures are going on here on the basis that we want to also fight evasion, how do we know that in 5 years’ time the U.K. will not turn around and say: “What used to be perfectly legal we are changing the definition now, so it is now evasion and it is now illegal” and they will be perfectly able to come in here and close these, what were previously perfectly legitimate and legal avoidance mechanisms down because they will have the information to do that?

10.1.2 Senator P.F.C. Ozouf:

I am conscious that the Chief Minister was on his feet in Question Time quite a lot and this morning, trying his best to explain to Deputy Tadier the difference between evasion, aggressive tax avoidance, tax planning and tax competition. I do not know whether or not I can assist the Chief Minister. How many times do we have to explain to Deputy Tadier, who has been, of course, explaining his views of what is right and what is wrong in other places? Tax evasion is illegal. There is not a thin difference between it. Tax evasion is illegal, that is people dishonestly stating on a tax return incorrect information or not declaring information. The Deputy is correct in saying that sometimes some schemes that are put forward as being legal are found by courts to be illegal and H.M.R.C. (Her Majesty’s Revenue and Customs) is regularly challenging schemes in the U.K. and they then fall within the definition, which is illegal or the Revenue shut them down. Deputy Tadier is constantly testing this issue and perhaps it is understandable. Perhaps we need to do more to explain what aggressive tax avoidance is. The fact that we in Jersey do not welcome aggressive tax avoidance, that is absolutely clear and we are going to be doing more with the Business Conduct Committee, as the Chief Minister explained, on that issue. This agreement is about those people who might and I believe that it is limited but time will tell. They are identical to the agreements that have been signed by also the Chief Ministers of the Isle of Man and Guernsey. They cover what is clearly evasion, that is people coming forward having not declared income that they should have done. This is not about tax competition. Tax competition is a good thing. Deputy Tadier might not agree with that and he is nodding, so I am pleased we now agree that he does not believe in tax competition. This is about evasion, evasion being clear and being upheld by court judgments, the Chief Minister has said. I agree with the approval of this agreement. This agreement puts beyond doubt Jersey’s position on tax evasion, which, in this jurisdiction, is, of course, illegal and it is a good opportunity for us to state quite clearly that Jersey is not a tax haven that accepts tax evasion and this agreement strengthens that position. I hope that helps Deputy Tadier and I hope that perhaps another person trying to explain that actually that will help.

Deputy M. Tadier:

Can I seek clarification of the last speaker? Did he say that Jersey is not a tax haven that accepts tax evasion? Is that the words he says?

Senator P.F.C. Ozouf:

Absolutely, would the Deputy like me to say it again because we have said it a lot over the weekend? Jersey is not a tax haven and we do not have tax evasion in Jersey. It is an illegal offence and has been since 1999, as the Money Laundering Offence Order clearly makes out.

[15:15]

Deputy M. Tadier:

It is just because I am sure Hansard will record that he said Jersey is not a tax haven that accepts evasion, it is the other type of tax haven.

The Bailiff:

Does any other Member wish to speak? Very well, then I invite the Chief Minister to reply.

10.1.3 Senator I.J. Gorst:

Perhaps I could start by thanking the Minister for Treasury and Resources. I did thank him in an earlier comment that I made but I think he was out of the Assembly making an important speech, so I thank him again for his support, together with my international adviser over the weekend. Deputy Tadier, his intervention was, I am afraid to my way of thinking, somewhat surprising. I thought he had, after recent comments, got a good grip on the difference between evasion, aggressive avoidance and straightforward tax planning but this afternoon he seems to have muddied the waters once again. The law of the United Kingdom will determine what is illegal and what is not with regard to this disclosure facility and this M.O.U. As we know, every jurisdiction is entitled to change its law as its legislative assembly or parliament sees fit. But let us be absolutely clear, tax evasion has been a criminal offence in Jersey for many years and, therefore, as a government, we do not expect that this disclosure facility will give rise to many disclosures but we have agreed to it nonetheless. To put beyond doubt, as the Minister for Treasury and Resources says, our commitment to fighting tax evasion around the globe and not wanting Jersey to be used for the purposes of anything illicit or for tax evasion. Deputy Tadier also seems to forget that interpreting legislation and the more complex a tax code is the more difficult it is to interpret. That only, some might say, fortunately, certainly on this rear bench of the Senators, we would think fortunately gives good work to accountants and lawyers interpreting those tax codes. Others may not think so. I hope that Members will approve the signing of this M.O.U.

Deputy M. Tadier:

May I seek further clarification because the Minister has given me the answer I wanted, which says that the U.K. will determine whether something is illegal? Where does that leave Jersey companies who may, in good faith, set up schemes that they believe to be perfectly legal and legitimate one day, only for the U.K. to turn around and say: “We have decided this scheme constitutes tax evasion now, therefore, we want all of the details of your clients from this particular company, the beneficiaries from this particular trust” and that will give a bad reputation to Jersey when they have been acting within the law as it was at the time? How does the Chief Minister respond to that?

Senator I.J. Gorst:

This covers U.K. residents, U.K. taxpayers and their liability to such. Of course, schemes are developed and advised upon in the United Kingdom. They receive counsel advice. They are approved by H.M.R.C. and, from time to time, as the U.K. changes its legislation, they are then challenged through the U.K. courts. That is a normal process of legislators making laws, judiciaries being used to judge upon them. I am not quite sure what the Deputy is suggesting might happen otherwise.

The Bailiff:

Very well, all those in favour of adopting the proposition, kindly show. Those against. The proposition is adopted.

11. Draft Taxation (Implementation) (Disclosure Facility) (Jersey) Regulations 201- (P.56/2013)

The Bailiff:

Then we come to Projet 56, Draft Taxation (Implementation) (Disclosure Facility) (Jersey) Regulations 201- lodged by the Chief Minister and I will ask the Greffier to read the citation.

The Greffier of the States:

Draft Taxation (Implementation) (Disclosure Facility) (Jersey) Regulations 201-. The States, in pursuance of Article 2 of the Taxation (Implementation) (Jersey) Law 2004 and following the decision of the States, taken on the day these Regulations are made, to adopt P.55/2013, made the following Regulations.

11.1 Senator I.J. Gorst (The Chief Minister):

As I said, when introducing the disclosure facility, this simply gives effect to our requirements under that disclosure facility with regard to financial intermediaries making their clients aware of this facility, both now and 6 months before it is terminated, which is 30th September 2016.

The Bailiff:

Are the principles seconded? [Seconded] Does any Member wish to speak on the principles? All those in favour of adopting the principles, kindly show. Those against. The principles are adopted. Senator Ferguson, do you wish this matter referred to your Scrutiny Panel?

Senator S.C. Ferguson (Chairman, Corporate Services Scrutiny Panel):

No, Sir.

The Bailiff:

Do you wish to propose the Regulations 1 to 3, Chief Minister?

11.2 Senator I.J. Gorst:

If I may, Sir, yes and if any Member has a question I will endeavour to answer it.

The Bailiff:

Seconded? [Seconded] Does any Member wish to speak on Regulations 1 to 3 or the Schedule? Very well, all those in favour of adopting Regulations 1 to 3 and the Schedule, kindly show. Those against. They are adopted. Do you propose the Regulations in Third Reading?

Senator I.J. Gorst:

If I may, Sir, thank you.

The Bailiff:

Seconded? [Seconded] Does any Member wish to speak in Third Reading? All those in favour of adopting the Regulations in Third Reading, please show. Those against. The Regulations are adopted in Third Reading.

Yes, I was just wondering if the Chairman of the P.P.C. could meet with the various people concerned and perhaps seek to bring forward any item, if possible, from the 16th to the 2nd and obviously notify us within the next few days if that is possible because I am getting concerned about the agenda for the 16th.

12.4 The Connétable of St. John:

Prior to the next sitting, could the engineer sort out the air conditioning in this Chamber? Currently it is 27 Celsius. We are more or less finished, I was going to ask if we can remove our jackets because I understand the system is not working within the building. As the summer progresses we will need to either remove our jackets or get the system working.

The Bailiff:

But you will end up with a very lean Connétable of St. John. [Laughter]

The Connétable of St. John:

Very true, Sir.

The Bailiff:

Does any other Member wish to say anything? No. Very well, Connétable, do you wish to respond to anything said?

The Connétable of St. Helier:

I will certainly see if we can take forward the suggestion by Deputy Baudains.

The Bailiff:

Very well, are Members content to adopt the schedule for the forthcoming business as in the Order Paper? Very well, that concludes the business of the Assembly. We will reconvene on 2nd July.

ADJOURNMENT

[15:25]