STATES OF JERSEY

OFFICIAL REPORT

THURSDAY, 10th FEBRUARY 2022

PUBLIC BUSINESS

1. Rent Safe Scheme (P.121/2021) - as amended (P.121/2021 Amd.) - resumption

1.1 Connétable R.A. Buchanan of St. Ouen:

1.1.1 Deputy J.M. Maçon of St. Saviour:

1.1.2 Connétable J. Le Bailly of St. Mary:

1.1.3 Deputy J.A. Martin of St. Helier:

1.1.4 Deputy K.G. Pamplin of St. Saviour:

1.1.5 Senator K.L. Moore:

2. Draft Taxation (Enveloped Property Transactions) (Jersey) Law 202- (P.119/2021) - Acte Opératoire

2.1 Deputy S.J. Pinel of St. Clement (The Minister for Treasury and Resources):

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

2.1.2 Deputy S.J. Pinel:

3. Draft Connétables (Amendment No. 3) (Jersey) Law 202- (P.122/2021)

3.1 Connétable D.W. Mezbourian of St. Lawrence (Chair, Comité des Connétables):

3.1.1 Deputy M. Tadier of St. Brelade:

Deputy M.R. Higgins of St. Helier:

Mr. M. Jowitt, H.M. Solicitor General:

3.1.2 The Connétable of St. Lawrence:

3.2 The Connétable of St. Lawrence:

3.2.1 Deputy M. Tadier:

3.2.2 The Connétable of St. Lawrence:

The Solicitor General:

3.3 The Connétable of St. Lawrence:

4. Draft Proceeds of Crime (Amendment No. 5) (Jersey) Law 202- (P.123/2021)

4.1 The Connétable of St. Ouen (Assistant Minister for External Relations and Financial Services - rapporteur):

4.1.1 Deputy D. Johnson of St. Mary:

4.1.2 Senator K.L. Moore:

4.1.3 The Connétable of St. Ouen:

4.2 The Connétable of St. Ouen:

5. Draft Proceeds of Crime (Enforcement of Confiscation Orders) (Amendment) (Jersey) Regulations 202- (P.124/2021)

5.1 The Connétable of St. Ouen (Assistant Minister for External Relations and Financial Services - rapporteur):

5.1.1 Deputy J.H. Young of St. Brelade:

5.1.2 The Connétable of St. Ouen:

5.2 The Connétable of St. Ouen:

6. Draft Court of Appeal (Amendment No. 9) (Jersey) Law 202- (P.125/2021)

6.1 The Connétable of St. Ouen (Assistant Minister for External Relations and Financial Services - rapporteur):

6.1.1 The Deputy of St. Mary:

6.1.2 The Connétable of St. Ouen:

6.2 The Connétable of St. Ouen:

6.3 The Connétable of St. Ouen:

7. Draft Royal Court (Amendment No. 16) (Jersey) Law 202- (P.126/2021)

7.1 Deputy R.E. Huelin of St. Peter (Assistant Chief Minister - rapporteur):

7.1.1 Deputy M. Tadier:

7.2 Draft Royal Court (Amendment No. 16) (Jersey) Law 202- (P.126/2021) - reference back

7.2.1 Deputy M. Tadier:

7.2.2 The Deputy of St. Mary:

7.2.3 Senator K.L. Moore:

7.2.4 Deputy M.R. Higgins:

7.2.5 Deputy J.H. Young:

7.2.6 Deputy G.P. Southern of St. Helier:

7.2.7 The Deputy of St. Peter:

Deputy R.J. Ward of St. Helier:

The Solicitor General:

Deputy M.R. Higgins:

7.2.8 Deputy G.C. Guida:

Deputy J.A. Martin:

The Solicitor General:

7.2.9 Senator L.J. Farnham:

Deputy R.J. Ward:

The Solicitor General:

7.2.10 Deputy M. Tadier:

7.3 Draft Royal Court (Amendment No. 16) (Jersey) Law 202- (P.126/2021) - resumption

7.3.1 Deputy M. Tadier:

LUNCHEON ADJOURNMENT PROPOSED

LUNCHEON ADJOURNMENT

7.3.2 The Deputy of St. Mary:

7.3.3 Deputy M.R. Higgins:

7.3.4 Deputy G.P. Southern:

7.3.5 Deputy J.H. Young:

7.3.6 The Deputy of St. Peter:

7.4 The Deputy of St. Peter:

7.4.1 Deputy J.H. Young:

7.4.2 Deputy M. Tadier:

7.4.3 The Deputy of St. Peter:

7.5 The Deputy of St. Peter:

7.5.1 Deputy M. Tadier:

7.5.2 Deputy M. Higgins:

7.5.3 The Connétable of St. Brelade:

7.5.4 Deputy J.H. Young:

7.5.5 The Deputy of St. Peter:

8. Tenancy Notice Period (P.2/2022)

8.1 Senator S.Y. Mézec:

8.2 Tenancy Notice Period (P.2/2022): amendment (P.2/2022 Amd.)

8.2.1 Deputy R. Labey of St. Helier (The Minister for Housing and Communities):

8.2.2 Senator S.Y. Mézec:

Deputy J.H. Young:

The Solicitor General:

8.2.3 Deputy R.J. Ward:

8.2.4 Deputy M. Tadier:

8.2.5 Senator K.L. Moore:

8.2.6 Deputy R. Labey:

8.3 Tenancy Notice Period (P.2/2022) - as amended

9. Amendment to Standing Orders - miscellaneous amendments (P.3/2022)

9.1 Deputy C.S. Alves of St. Helier (Chair, Privileges and Procedures Committee):

9.1.1 Deputy M. Tadier:

9.1.2 Deputy C.S. Alves:

ARRANGEMENT OF PUBLIC BUSINESS FOR FUTURE MEETINGS

10. Deputy C.S. Alves (Chair, Privileges and Procedures Committee):

10.1 The Connétable of Grouville:

10.1.1 Deputy C.S. Alves:

10.2 The Connétable of St. Ouen:

10.3 Deputy J.H. Young:

10.4 Deputy C.S. Alves:

ADJOURNMENT

[9:30]

The Roll was called and the Deputy Greffier of the States led the Assembly in Prayer.

PUBLIC BUSINESS

1. Rent Safe Scheme (P.121/2021) - as amended (P.121/2021 Amd.) - resumption

The Bailiff:

We resume the debate on P.121, the Rent Safe Scheme, which has been proposed as amended.  Does any other Member else wish to speak on the proposition?

Deputy K.F. Morel:

If I may, I informed the Greffier yesterday, I would like to retract the comment I made yesterday about the photos with the target on, which caused some unseemly sights at the end of the day.

The Bailiff:

Thank you very much, Deputy. I am sure that is the appropriate course for you to take. 

1.1 Connétable R.A. Buchanan of St. Ouen:

I am a landlord and my property is registered with the Rent Safe at 4 stars.  Like most landlords, I understand and indeed support the need for minimum standards.  I have received feedback from my tenants who have moved from other accommodation just how bad some properties are.  Indeed, have occasionally seen this for myself when I have helped new tenants move to my property.  Given that we have a minimum standards law in place I do not understand why some of these places are still in operation but I suspect it is because the inspection team were already stretched.  My property is a lodging house on a register, and as such is required to be inspected by Growth, Housing and Environment regularly so I know what is involved in the inspection and how long it takes.  Each inspection would last 2 to 3 hours minimum, checking electricity supply, cooking conditions, lighting, damp checks; in fact all the areas listed on the website are meticulously checked.  Furthermore, all my leases are examined to make sure they comply with the current legal requirements.  In fact, a full morning’s work, and we are a small property.  Then the inspector has to write the report, listing any areas that need checking, further clarification or indeed rectification if the inspector feels improvements or rectification is needed.  Following that, the landlord is then required to go back and confirm all the changes needed have been made.  Simply, I think, a degree of negotiation is needed at times as the inspector will have interpretated the regulations one way and you another.  Normally a way forward which suits both parties is found but it takes time and manhours.  The point behind this declaration is to demonstrate that the Minister for the Environment’s assessment of the time and effort needed to impose requirement of the Rent Safe scheme on the whole rental market is very close to the mark.  Thanks to Deputy Ward’s amendment all properties that are not currently part of the Rent Safe scheme, if this proposition succeeds, will need to be inspected to determine their star rating.  I am sure any new law reflects the wishes of this Assembly if we approve this proposition.  Indeed even if this regime is introduced gradually, more inspection staff will be needed as the current team is probably only sufficient to cope with current inspection levels.  Deputy Morel is right.  This will add to the burden of Government and to what end?  Yes, it will pick up the properties that need to be chased out of the market but it also involves the inspection of thousands of properties that are perfectly acceptable.  There has to be a more intelligent way to do this.  I am also not keen on the Rent Safe scheme being dragged into the sphere of a compulsory scheme, as this will severely detract from its current value.  In its present form it is, as Members know, voluntary.  Like Eat Safe, that is its real value.  If you are a landlord registered with Rent Safe it makes a statement about the fact that you care about your tenants and as a result you tend to attract more discerning tenants as a result.  Good tenants, and some may be surprised to hear me say this, who look after their accommodation and pay their rent on time are very valuable and, in my view, it makes good business sense to look after them.  This benefit will vanish if the scheme is compulsory and everyone will be included.  In my view, consultation is also missing from this.  As I know from the other work I do in Government, talking to the participants in any proposed law is normally helpful.  Even if you do not take up the change that might be suggested then at the very least all parties have been asked.  I have to say as a landlord I have the impression that since I have been in the Assembly the attitude is one of hostility towards us by some.  The theme is that we are uncaring and simply profiteer off the backs of our tenants without a care for their welfare or well-being.  Yes, there are examples of this in the market place, to be sure.  But they are a minority and the rest of us would be delighted to see the back of them.  This is why the current Minister for Housing and Communities’ approach is so refreshing.  He wants to raise standards and improve tenants’ rights but at the same time wants to take landlords with him, ensuring their rights are also protected.  I am with him all the way on this.  I will be following his suggestion and not supporting the amended proposition which, to my mind, is a shame because both Senator Moore and Deputy Ward’s intentions are entirely laudable but the proposal is, as the Minister for the Environment outlined, unworkable.  If this proposition falls I very much look forward to seeing my face in the usual Facebook rogues gallery as one of the brown envelope receiving corrupt self-serving landlords again. 

1.1.1 Deputy J.M. Maçon of St. Saviour:

I can declare that I am not a landlord and I pay board to my mother at home.  As often happens with propositions that are fatally flawed Members are asking to make ever-increasing contortions to justify their support for it.  The Minister for Housing and Communities was at pains to point out that consultation on the new Residential Tenancy Law, which will include a register of landlords, will be widely consulted upon as he said both parties - all parties - will be included: landlords and tenants not just landlords, as Deputy Ward incorrectly suggested yesterday.  It will be for wider public consultation and proactive public consultation.  Senator Mézec is also incorrect.  The Minister has indeed published a fully summary of the law drafting instructions for the new R.T.L. (Residential Tenancy Law).  It appeared on the Government website on 4th February for anyone to see.  Deputy Tadier asked what would happen if all landlords suddenly signed up to the Rent Safe scheme, as it stands now.  The answer is we would not be able to inspect all properties in the short timeframe.  We would need to implement an inspection strategy, which would likely take a few years to complete.  Potentially on a first-come first-served basis.  As part of this, we would get some basic information from landlords and give them a provisional rating based on this information.  The difference with the proposal before us is that it is attempting to make this scheme a legal requirement.  We would not have such flexibility if all landlords are legally required to have their properties accredited on Rent Safe.  We would not give them provisional ratings as this goes against the argument being put forward in that we would be accrediting properties where we could not guarantee that they met the minimum standards.  Further, if the Rent Safe accreditation was a legal requirement we do not see how we can justify making some landlords wait 5 to 10 years before receiving their initial inspection or indeed creating legislation which permitted 5 to 10 years before becoming enforceable.  This is what would happen if we do not receive a significant increase in extra resourcing.  The proposed Residential Tenancy Law will legislate for a simple easy-to-use register. 

[9:45]

The data from this will allow the department and enforcement officers to be able to carry out targeted enforcement, and I think even Senator Mézec yesterday spoke about the importance of being able to target enforcement and that would lead to an efficient deployment of resources.  The issue we have in enforcing the provisions is that we do not know where all the rental properties are.  The register is key to this and is not Rent Safe. Making Rent Safe mandatory will add another layer of complexity and get in the way of the good work being done in relation to both minimum standards and tenancy-related matters.  It does not make sense to spend significant sums recruiting huge numbers of staff to do something which would be achieved by existing staff using the proposed new register as part of the new Residential Tenancy Law.  The same Environmental Health officers that drew up the licensing proposals for the Minister for the Environment are the same officers who believe making Rent Safe mandatory will not work but a register that will be part of the new Residential Tenancy Law will work.  It will provide rich data on tenants and landlords and allow officers to use existing resources to support their work in promoting minimum standards.  I would just like to thank Deputy Morel for his speech yesterday, which made the point that the minimum standards legislation is already in place.  It has been in place since I think about 2018.  Therefore this proposition is not about bringing in the minimum standards.  It is about the problem of enforcement, and I have outlined that we already have an alternative route which the department is working on.  What I would also like to add with regards to that is if any tenant who is listening to this debate or has a concern that the minimum standards are not being met they can discreetly contact the Environmental Health Department, and there are ways in which they can work with that tenant in order to support them.  I would just like some good from this debate to be around that; that that avenue is open for tenants who have concerns today.

1.1.2 Connétable J. Le Bailly of St. Mary:

I am not going to vote for this proposition.  I am a landlord, a good landlord.  I see no benefit in creating more legislation.  What we should be doing is creating more affordable homes.  If we did that, if we met demand, then we would get a natural rental price and stability.  Landlords would then have to compete with each other to offer a better product.  Rents would drop and equality would increase in order for landlords to keep properties rented out.  We need to provide really affordable homes for first-time buyers for that to happen.  Lack of housing is the cause of many Island problems.  If we address that many issues will resolve themselves. 

1.1.3 Deputy J.A. Martin of St. Helier:

I will try and be brief because a lot has been said.  I have been reading again overnight the proposition, the comments, the amendments and obviously I listened intently to the speeches yesterday.  I would like to address a few issues.  I do not sit round the Council of Ministers’ table, I am not persuaded by anybody that does not bring me a really good argument and this was a really good argument in not to support this.  If Members look back when Deputy Young brought the last proposition, I asked about the implications, manpower and cost and I was like that all the way through the debate.  In the end I supported it.  Deputy Young brought that and Deputy Young was defeated.  Deputy Young says this cannot work.  The Minister for Housing and Communities says this cannot work unless we throw lots and lot and lots of money at it for exactly the reason ... the wrong reasons have just been said.  To inspect every property because when I re-read Deputy Ward’s one line amendment basically nobody can rent out their property until they are accredited to this scheme.  If I have read that wrong Senator Moore, in her summing up, will correct me.  I cannot be labelled as I do not support things like this; I have supported.  I really think this is just an attempt to do something but it is not the right attempt.  It really does not help.  We know we have things to do.  We know we need to put money in other places.  Deputy Maçon has just said what the Housing Ministry is doing, and it is doing.  It is doing a lot.  But today we could just add hundreds and thousands to the wage bill and have no idea what we are doing.  To me it is always make sure you do no harm first.  People absolutely have the minimum standards, I agree.  Please, if you really feel your property is not good you must contact Environmental Health, you must contact the authorities.  I just repeat that the Minister for the Environment has got nothing to lose or gain.  He said 100 times he is not ... if this is political, which most things in this Assembly are, he is not standing again but even he cannot support; the Minister for Housing and Communities cannot support.  We were given all the reasons round C.O.M. (Council of Ministers) why this is not to be supported because of this, this and this.  But the main thing is the unknown and the amount of hours, what will it actually mean.  It is very easy for a Back-Bencher to put something together.  When they have met the officers and listened to the arguments hopefully you think sometimes they may agree.  This has not happened this time.  But please, I urge people, do not think this is the answer to what others are trying to do and have tried to do in the past.  I am not voting for it this time because it is the wrong scheme for, I think, what the Senator wants to achieve and the Deputy who brought the amendment.

1.1.4 Deputy K.G. Pamplin of St. Saviour:

I would just like to take this brief moment to thank Members for their support yesterday.  As everybody knows, I was attending and leading our family funeral for our grandmother.  Bearing that in mind, obviously I missed a great deal of yesterday’s debate but I have spoken to other Members and listened back where I can do, and of course read the proposition and heard speeches this morning.  Here is where I am at the moment.  I come to this debate obviously as somebody who is a private renter; I have been since we returned to the Island in 2010, apart from the brief time where I was caring for my late grandmother and lived with her obviously.  But ever since have been a private renter.  I am currently.  As somebody who most of his life has private rented it is a mixed bag of experiences.  Mostly good, it has to be said.  Obviously some not so good.  In the last 4 years doing this job you get to support when people approach you with any situation, and I have to say on reflection of the last 4 years most of the parishioner cases and those outside of my district have been around housing issues.  Most of them have been private renters, some of them public renters, but equally I have supported some private landlords as well who have had some situations where unfortunately the tenants have run away and left the flats in terrible situations and that is not good.  We must reflect that there is no perfect system and obviously on both sides these things do happen.  But we are a good Island and most renters are good people and my personal view is landlords in this Island are very caring and understanding and, yes, mistakes happen.  If there are people who are not following the rules and guidelines then we must at all costs ensure that those people are brought to task through the schemes that we have in place currently.  But, equally, we must also support vulnerable members of our community or those who are struggling to be heard to get their situations resolved as well; that is equally as important.  Obviously I have been looking around other jurisdictions and what is available elsewhere.  I see the United Kingdom have the housing health and safety rating systems, which are based on evaluations or helps local authorities identify and protect against potential risks and hazards to health.  As others have mentioned this morning, we have a minimum standards law here in Jersey.  Listening to people this morning, I think we have all agreed in some way in various and many other debates that the housing situation in Jersey, and you could use whichever word you feel is appropriate, some use crisis, some use other ways but it is a situation that we must address.  Because, for me, I like to approach this as homes are not businesses; I have heard that in some speeches.  I understand if you are a landlord you have to think about your responsibilities, I get that but they are homes.  They are homes, they are people’s homes.  I think if we could do anything to send a message out there from this unique Island where our housing situation is so varied; I have lived in all sorts of rented accommodation in Jersey.  I am currently living in one now, which is an old converted house and it has its issues.  I have worked with my landlord, who is a lovely person.  But when I look at the rent and the things I pay I know I have to make trade-offs and also, as a single parent with a limited income, like many people on this Island, we are budgeting all the time.  Equally, from a tenant’s point of view you want to get your money’s worth, if you want to put it in a business vernacular.  I think we have to find common ground.  I think about debates like this is we hear ... somebody puts forward a debate, be it the Government or a Back-Bencher, however those phrases are, and I think we are 49 people who should be able to come together and work through situations to find the middle ground, to find the best way forward.  The current Minister for Housing and Communities knows the situation, and I trust him because he knows what people go through.  He wants to do his best and I know he is working very hard, like the previous Minister for Housing before him and to the Minister for the Environment with the situation about this particular ... that there is a need for something like this to just support everybody and try and find equality and an equal footing for everybody.  I think that is where I am falling into debate.  I will listen intently to what the closing speech has in it from Senator Moore before I make my final mind to weigh up.  But I would just say this as well, I know we are hearing the argument - and I do get it - about the Government would have to employ more people and that is a cost, and I get it.  But I would equally think over the last few years that maybe we do not employ members of the States of Jersey in the right areas enough.  If this is a good thing and it raises standards and it helps landlords and it helps tenants in equal measure, then I do not have so much of an issue with my taxpayers’ money going towards something like that.  Because if it is successful then eventually you would not need as many people.  Those people have done good to help the Island and homes that are needed across the Island in their various situations, where we have wasted money over the years from swelling numbers of managers in some departments and money being wasted.  I think the essential use of taxpayers’ money to help people in homes and improve standards, be it inspections to get something done right, for me it is money well spent, and there is a need.  Because as everybody knows, the work I have done over the last few years of truly understanding and trying to move forward the Island’s response to its mental health services, a lot of the times at the top tier of people it is people just struggling to stay afloat in the Island and they want to come home and they want to provide for their family, living in accommodation and be happy in their home.  It does not matter what part of society you come into, housing situations, for a multitude of reasons, is right at the top.  I just think if we put empathy first with common sense, understanding this is a joint effort between all of us, we should be able to do some good.  I think this sends the message that we just want to do good.  We should be able to come together and make that happen.  Those are my thoughts, I do not know if it helps or not but I thought it was important to put that out there.

The Bailiff:

Thank you very much, Deputy.  Does any other Member wish to speak on the proposition?  If no other Member wishes to speak on the proposition, then I close the debate and call upon Senator Moore to respond.

1.1.5 Senator K.L. Moore:

I would like to start by thanking everyone who has taken part in the debate.  It has been a good debate with some excellent speeches.

[10:00]

It was particularly good to hear Deputy Pamplin there talking about what is the major driving factor here, which is to do some good.  Senator Vallois was right, that we have debated various situations and similar options a number of times and she has been disappointed when those have been rejected by the Assembly.  I would simply say to Senator Vallois that one should never give up and if at first you do not succeed try and try again.  I was motivated to bring this proposition because I felt that the last suggestion was not the right thing.  I thought in fact that it was too cumbersome on our government structure, which is why I came up with this suggestion, which Deputy Gardiner identified, is common sense to use an existing structure and scheme that is well-known, it is trusted and respected, and roll it out to a broader audience.  As Deputy Pamplin said, this is a consensus-building Chamber; that is why we sit, when we are in the Chamber, in a horseshoe shape.  It is our job to find compromise and to find solutions and I really welcome Members to engage in that because that is what we are here to do as representatives of the public.  We know that there are many problem properties and indeed a lot of speakers have spoken of their experiences; the properties that they have viewed that they know do not yet meet the minimum standards that have been set under the law.  Previous Ministers for Housing, such as former Deputy Anne Pryke, have spoken passionately and educated us on the reasons why we should have better standards of housing, the impact that poor standards and low-quality housing have on the health and well-being of the occupants.  That is something that in the 21st century we should simply not accept.  But this is not just about the bad, this is also about celebrating the good and communicating that we have high standards.  Just as we celebrate high standards in our business community, and particularly in financial services, so too we do vet in what is one of the only areas of growth in our economy and that is the rental market; the other sector is the public sector.  However, we have had a lot of convoluted features from Government Members suggesting that this is in fact complex, and that was particularly led by the Minister for Health and Social Services, who said that he and his Ministers could not allow it as it was complicated.  Both the Minister for Planning and Minister for Housing and Communities are usually known for their clear presentation and passionate speeches but they were not, on this occasion, either clear or compelling or passionate, which was rather surprising.  As I think Deputy Tadier pointed out, those listening got the sense that they did protest a little too much.  The facts are in fact very simple, what should be simple for the Minister for Housing and Communities, the Minister for the Environment and particularly the Minister for Health and Social Services is the need to ensure that people are living in homes that meet the minimum standards that are already enshrined in law and that we celebrate that and identify those properties so that tenants know what they are getting and that is simple focus.  Much emphasis has been placed on the role of landlords and the views of one group of them, the Jersey Landlords’ Association.  If we think about this logically, information received from Revenue Jersey identifies that about 6,000 people claim income from rent.  The J.L.A. (Jersey Landlords’ Association) represents, we are told, about 200 landlords, so they are hardly representative; in my maths makes only about 3 per cent of the landlords in the Island.  But one group of people who were very much absent from speeches yesterday were tenants.  There was a vague assertion or a suggestion that Members were contemplating tenants by the assertion that an inspection regime is intrusive.  But surely a tenant could also be reassured that the property they are living in has been inspected by a person who understands what environmental health standards are.  As the proposition clearly states, this should be a risk-based approach to inspection and is a well-known scheme that is in place in other places and so that helps Environmental Health officials to identify which of the properties should be inspected first and perhaps more often than others, who could be seen much less frequently.  That of course is in the Minister’s gift to decide because this is simply a Back-Bencher’s proposition asking the Assembly to send a message to the Minister to direct him in a way that we, as a group, feel is a sensible approach.  It is down to the Minister to implement it and find the way forward.  I am of course not usually known to be a supporter of increasing the size of Government, in fact quite the reverse.  I would like to reassure those who suggested that that could be an issue here.  That is why I was determined to bring this proposition in fact because I thought the licensing scheme, as brought by the Minister, as being something that was adding an additional layer when we already have the Rent Safe scheme, which is simple, effective and transparent.  There are of course technological methods that can be used to speed up any process with inspection that might be required under this scheme.  The Constable of St. Lawrence, who is always eagle-eyed and a stickler for detail, pointed out in the Minister’s comments that they are based on just one person conducting those inspections.  She also identified, very helpfully, that there is a large group of people who are about to enter the employment market, people who have been working to ensure our safer travel policy was conducted but now that has come to an end.  We have people available, they will be very welcomed, I know, by employers across the Island who are calling out for staff at the moment.  But if this Government was to consider that tackling the issue of standards in housing was of importance, then perhaps they could simply send in a small team of people to conduct this process in a quick way to show how much they really do care about rental property.  That, again, would be in the gift of the Minister but there are options to him.  The Deputy of St. Peter helpfully identified the simplicity of the inspection regime and I can myself vouch for that as well, although the Constable of St. Ouen had clearly a house with multiple occupation, which may take a little longer to inspect.  It is my experience that, generally, smaller properties do not take 4 hours and so the suggestions in the comments paper can certainly be scrutinised a little more carefully and a regime could be developed that would take much less time and effort and, therefore, cost.  To answer that question from the Constable of St. Lawrence, I do not think that this proposition will lead to an exodus of property from the market, nor do I think it will lead to revenge evictions or increased homelessness.  It is not calling for an immediate introduction of this scheme, it is simply asking the Minister to go away and put it into place in a timeframe that the Minister thinks is appropriate.  What it will give, however, is reassurance that properties are meeting minimum standards, that tenants are protected and that landlords are following the law.  The Minister, as I said, can set his timeframe for introduction, so the cost effectiveness is entirely in his gift, as this scheme is being brought forward by a Back-Bencher.  The Minister for Social Security, I would have thought, would have understood that, as she has been a Back-Bencher herself for many years.  Like Keep Safe, this transparent process creates a register, so in fact this achieves exactly the same purpose as one of the ideas that the Minister is bringing forward himself.  It simply builds on what is already available.  For the doubters, I say that last week the Minister signed off a Ministerial Decision bringing forward a new Residential Tenancy Law.  I had been engaging with the Minister and his officials on this topic for a while but they had not shared the content of those law-drafting instructions with me until they were posted on the website at the end of last week.  Why they did not wait to listen to the views of this Assembly, to listen to this debate, is a matter for the Minister himself.  But what I can tell you is the report is a very high-level report and high-level law-drafting instructions.  They almost have a sense of being incomplete, certainly not along the same lines of detail that I might have seen, particularly the cybersecurity law I recall being an extremely complex set of very focused law-drafting instructions.  I thought that they were rather unusual and I think that is a telling thing that Members should perhaps keep in mind when they draw their own conclusion on this debate.  Rest assured, Members, the law-drafters have certainly not started on their project yet to draft the new Residential Tenancy Law, so amendments could be made by the Minister if he is minded to listen to the views of the Assembly here today.  Surely the best way forward is to use a simple, effective, well-regarded and understood scheme, as we know that many States Members are themselves landlords and many have declared proudly in this debate that they are accredited under the Rent Safe scheme.  It is great to see that they are showing the way and leading by example.  We all know that it is not an arduous process.  We choose to adopt this scheme because it is the right thing to do.  We are proud of it, it drives up standards, and let us celebrate that.  Let us set a path for every landlord to join us.  So far about 2,000 properties are already accredited and, as Deputy Tadier said, we could see a considerable number simply coming forward voluntarily, hopefully as a result of this debate, and I would urge landlords to do that, to sign up to Rent Safe.  This is our last chance as an Assembly to debate this topic and I would like to leave on a good note and ensure that tenants have decent homes over their heads and that landlords are participating in a simple and effective scheme that shows that they too believe that high standards are important.

The Bailiff:

Thank you very much, Senator.  I ask the Greffier to place a vote into the link.  I open the voting and ask Members to vote.  If Members have had the opportunity of casting their votes …

Deputy G.C. Guida of St. Lawrence:

Sorry, Sir, I have not seen anything.  I would like to record that I am voting contre.

The Bailiff:

If Members have had the opportunity of casting their votes … sorry, something in the chat appears to have disappeared.

[10:15]

I thought I had noted 3 contre votes in the chat but now there appears to be 2.  Very well, I am marking only 2, which is the Chief Minister and Deputy Guida.  I ask the Greffier to close the voting.  The proposition has been defeated.

The Bailiff:

Deputy Tadier asked in the chat whether it is possible to ask for a list of those who declared an interest.  My understanding is that any declaration made in the Assembly will be Hansarded in the normal way and, therefore, a list will be available when Hansard is prepared.

2. Draft Taxation (Enveloped Property Transactions) (Jersey) Law 202- (P.119/2021) - Acte Opératoire

The Bailiff:

Before moving on to the next order of business we must revisit, I am afraid, P.119, which we have already revisited once before, that is the Enveloped Property Transactions, by reason of oversight we did not pass the Acte Opératoire, which, as it is a taxation draft, is required to be passed.  Passing the Acte Opératoire will enable the legislation as enacted by this Assembly to have immediate effect.  That means that the commencement date would be as adopted by the Assembly.  If we do not pass the Acte Opératoire then it has to pend Royal Assent, which will cause delay and which was not by the vote of the Assembly what the Assembly intended.  Accordingly, we will need, I think, to deal with that.  Minister for Treasury and Resources, do you propose the Acte Opératoire?  I beg your pardon, I ask the Greffier to read the citation first.

The Deputy Greffier of the States:

Draft Act declaring that the Taxation (Enveloped Property Transactions) (Jersey) Law 202- has immediate effect.  The States make this Act under Article 12 of the Public Finances (Jersey) Law 2019.

The Bailiff:

Minister do you propose the Acte Opératoire?

2.1 Deputy S.J. Pinel of St. Clement (The Minister for Treasury and Resources):

I do, please, Sir.

The Bailiff:

Is that seconded?  [Seconded]  Does any Member wish to speak on the Acte Opératoire? 

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

Briefly, may I just ask the Minister when it does come into operation?  My understanding was that it was in fact later.

The Bailiff:

The Assembly yesterday passed that it would come into effect on 4th April.  If it is delayed for Royal Assent then that would be 13, 14 weeks from today, so it will be well past 4th April.

The Connétable of St. Brelade:

Thank you, Sir.  That was the confirmation I was seeking to get, thanks.

The Bailiff:

If that assists, I think I can assist you with that from the Chair, unless the Minister wishes to say that there is some different understanding that she has.  Does any other Member wish …

Deputy S.J. Pinel:

That is absolutely correct, Sir, thank you.

The Bailiff:

Thank you, thank you very much, Minister.  Does any other Member wish to speak on the Acte Opératoire?  Then I close the debate.  Do you wish to speak in response, Minister?

2.1.2 Deputy S.J. Pinel:

No.  Just to thank you, Sir, and the Greffe for bringing this back promptly and I understand from the Deputy Greffier that in future an Acte Opératoire will be on the Order Paper so that it is not missed.  But thank you very much for your help in everything.

The Bailiff:

Thank you very much indeed.

Deputy S.J. Pinel:

I move the Act and ask for the appel, please.

The Bailiff:

The appel is asked for and I ask the Greffier, therefore, to post a voting link into the chat.  I open the voting and ask Members to vote.  If Members have had the opportunity to cast their votes, I ask the Greffier to close the voting.  The Acte Opératoire is passed.

3. Draft Connétables (Amendment No. 3) (Jersey) Law 202- (P.122/2021)

The Bailiff:

The next item of Public Business is the Draft Connétables (Amendment No. 3) (Jersey) Law, P.122.  It is brought by the Comité des Connétables and I ask the Greffier to read the citation.

The Deputy Greffier of the States:

Draft Connétables (Amendment No. 3) (Jersey) Law 202-.  A law to further amend the Connétables (Jersey) Law 2008.  The States, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following law.

3.1 Connétable D.W. Mezbourian of St. Lawrence (Chair, Comité des Connétables):

This draft law addresses one of several issues raised by the Royal Court last year in the judgment of “In the matter of the Connétable and the Procureurs du Bien Publique of the Parish of St. John [2021] JRC091”.  The Comité des Connétables has considered the judgment in detail and I am pleased to confirm that we have now addressed all of the issues raised in that judgment.  Dealing first with the other issues, the Comité has considered the disqualification criteria for a Connétable and we raised this with the Privileges and Procedures Committee by letter on 13th April 2021.  The disqualification provisions in the Connétables (Jersey) Law 2008 were amended in 2018, following the States decision to standardise the requirement relating to the qualification and disqualification in the States Assembly, so that all Members, Connétables, Senators and Deputies, would be subject to the same requirements.  The amendments were brought by P.P.C. (Privileges and Procedures Committee) and are set out in P.112/2017.  The Royal Court referred to the disqualification provisions in its judgment and at paragraphs 83 and 84 it compared the disqualification provisions for Connétables with those of Senators and Deputies and concluded they were not identical.  Indeed, paragraph 82 of the judgment refers to the unhappily drafted clause which led to the court determining a particular construction.  The judgment also records at paragraph 83 that: “It is open to the States, as the legislature, if they see fit to change these provisions, which may perhaps not reflect what was intended by the promoters of the 2018 amendment.”  P.P.C. responded swiftly to requests and Members may recall that the amendments to the Public Elections Law, which were debated last year, also made amendments to the disqualification criteria for Deputies and Connétables; that was in P.56/2021 Draft Elections (Miscellaneous Amendments) (Jersey) Law of 202-.  The Comité has also considered what a role description for the office of the Procureur du Bien Publique might look like.  We consulted with Parish auditors, with Parish secretaries and of course all of the Procureurs du Bien Publique and with you, Sir, and the Attorney General.  We submitted proposals through the Attorney General for consideration by the Royal Court.  I understand that last week the Superior Number of the Royal Court approved the document we had produced.  Turning now to the issue addressed by this draft law.  At paragraph 99 the judgment referred to the current legislation and that the Connétable remains in office until his successor is sworn in, pursuant to Article 1(3) of the Connétables (Jersey) Law 2008.  The Comité decided that in circumstances such as that of the former Connétable of St. John, where the court required he resign, it is not appropriate that the person should remain in office until their successor is sworn in and instead the resignation should take immediate effect.  The Comité wish to bring forward these amendments itself and I discussed this with the Chair of the P.P.C. who agreed with our proposal, and I am grateful to her for that.  We did consider that where a resignation results in ill health, then there was perhaps not the same necessity for the office to be vacated immediately and that the Connétable could remain in office until their successor took their oath of office.  However, when considering the draft amendment the Comité decided that it should amend the law so that the resignation of a Connétable will always take immediate effect.  In reaching that decision the Comité was mindful that the Connétables (Miscellaneous Provisions) (Jersey) Law 2012 sets out the circumstances in which a Connétable’s functions are exercisable by a Procureur du Bien Publique, thus ensuring the Parish continues to function, notwithstanding a Connétable’s resignation having immediate effect.  There have been very few occasions in living memory of a Connétable tendering their resignation.  The Comité considers that when the Connétable gives written notice to the Bailiff of their wish to retire, that resignation should take effect upon the Royal Court being notified of the resignation.  At that point the Royal Court would also order an election to fill the office of Connétable.  The Comité, therefore, brings this amendment to the Connétables (Jersey) Law 2008 to provide that where the court requires the Connétable to resign this should take immediate effect and where a Connétable chooses to resign the effective date is when the Royal Court is notified of the resignation, so there are no financial or manpower implications for the Parishes or indeed the States arising from the adoption of this draft amendment.  I am pleased to propose the principles.

The Bailiff:

Are the principles seconded?  [Seconded]

[10:30]

3.1.1 Deputy M. Tadier of St. Brelade:

There was something that was quite alarming about the whole process I thought about what happened to the former Constable of St. John.  I do not comment of course on the rights and wrongs of what led to him to be asked to resign from his post but for me it raises some very thorny issues about democracy and about accountability.  I think it is necessary to say at this point that I do not think that the Member in question had a dual role aided the situation; I think that added to the complexity of the situation.  I remember thinking and indeed commenting how ludicrous it seemed that the Royal Court could, first of all, not just order the resignation of a democratically-elected Member of Parliament of our Assembly but that the wording itself is very strange.  It spoke about not sacking somebody, not dismissing somebody but ordering somebody to resign.  It is strange because when one resigns from a post it normally implies some kind of consent or at least volition or rather the word I was looking for is choice in the matter.  When you resign from a job and, let us face it, whether you are a Constable or a States Member who is not a Constable, it is a job, there should be volition in that; you do it by primarily your consent, you have to consent to put yourself forward for election.  If you are successfully elected you get the job and you should be able to resign from that job whenever you want to; that is one of the points that I would make.  We will be discussing this later of course when it comes to Jurats and their ability to resign, which I think also poses problems.  The first point is that I found it very problematic that the separate body, which should at least have parity with this Assembly but which should not be in any way superior for the Assembly, which should not be subservient to a Royal Court, that they can work in tandem, there should be checks and balances.  But we know of course in Jersey that is not the case and that is just a factual statement, not a criticism of any kind or an opinion.  We know that the Royal Court does take precedence.  We swear an oath, all of us, to the Royal Court but there is an added complication in which the Constable is accountable to the Royal Court.  It should be the case that our accountability as States Members is, first of all, to the Assembly; that if we do something that is considered wrong we should be judged by the Assembly through the usual channels, through Privileges and Procedures, through the Commission of Standards and sometimes there are sanctions for that, sometimes there are written words of advice and in extremis there may be suspensions from the Assembly for a period of time.  Of course I am not sure of the current latest possibilities but I think somebody can be expelled from the Assembly.  I would look to the Chair of P.P.C. or other Members to clarify that.  I think that is right and that is how it works but of course the ultimate democratic safeguard is the election, so if somebody has not been behaving properly it is up to the electorate to remove them.  Of course around that there are all sorts of debates that are commonplace in all democracies around subjects of recall.  Should it be if someone has done something wrong which, potentially, merits them falling out of favour with the electorate, it is a problem, you have to wait until the next election to remove that person and that is why arguments of recall come in.  Is there a mechanism whereby the electorate can change their minds halfway through?  A bit like an employer might if somebody had done something wrong, you would not keep an employee in office for breach of gross misconduct, you would sack them.  But if it meant waiting for the next election to do that, it is problematic.  I have concerns even in these amendments that are being put forward, is that somebody should be able to resign straightaway before the end of the term of their office.  I have an issue here where the court is, effectively, dismissing somebody from the role.  I guess of course the court presumably cannot force somebody to resign but then they would be held in contempt of court if they did not resign.  Not only do we get into a complete political and democratic minefield but we also get into a philosophical and semantic minefield whereby you do not really have any choice in the matter, they are telling you you have to resign but we are not dismissing you because presumably we do not have the power to dismiss you.  It is highly problematic.  I think it all boils down in this case to the fact, or certainly is a consideration and an aggravating factor when these kind of problems arise, is that there is a dual role here.  The Constable, arguably, did not necessarily do anything that merited him being removed from the Assembly as a States Member.  If he had been a Deputy or Senator I would argue - and it certainly is worth arguing the point - that he may have been allowed to stay in his position and then he would have been accountable to the Assembly and may have found himself being sanctioned by the Assembly; he may not of course.  But the issues that were contingent on his particular problem were to do with the administration of the Parish, not to do with his capability as a States Member.  We find ourselves in the problem of having lost and, in particular, St. John has lost a States Member.  While it was who they voted for in the knowledge that he would be in the States to represent the Parish of St. John and the people of St. John, and irrespective of what you thought of his politics, he was somebody who spoke often and he spoke clearly and he let us know what his opinions were.  It seems to me that there is a big problem here, even in this amendment, which does not deal with the fundamental root of the issue, which is the dual role.  We have lost, I think, by an unsatisfactory means and the people of St. John, and of course they have gained.  It is a bit like you lose a son but you gain a daughter-in-law, et cetera.  I know that the Parish of St. John is well represented but it is not about individuals in this Chamber, this is about the process.  I think until we have a proper system which is fit for the 18th century, we are going to keep on seeing these kind of problems.  I wanted to put that on record, I did not think it was appropriate at any time in the past to pontificate on these issues but I think this is a great juncture.

The Bailiff:

Thank you very much, Deputy.  Deputy Higgins, you have a question for the Attorney General?

Deputy M.R. Higgins of St. Helier:

Yes, Sir.  Deputy Tadier has mentioned a very interesting point and I would say a constitutional point and I would ask the Attorney General to tell us what the powers were of the Royal Court to compel the former Constable to resign, what powers it has that overrides, for example, the States.

The Bailiff:

Mr. Attorney, are you able to advise at this point?

Mr. M. Jowitt, H.M. Solicitor General:

Yes, Sir, it is the Solicitor General.  The Royal Court of Jersey for hundreds of years has exercised a supervisory jurisdiction over elected Parish officials and that they did so was expressly recognised and reserved by the Assembly as recently as 2018 in Article 4(d) of the Connétables Law, which deals with or follows on from the provisions which provide when a Connétable is disqualified from election or office or they improvise it.  Nothing in that Article should be taken to derogate in any way from the supervisory jurisdiction of the Royal Court in relation to the office of Connétable.  That supervisory jurisdiction exists as a matter of what we call customary law.  In England it is called common law but it is a law that exists by tradition and has existed for time out of mind.  It is the customary law of the Island that the Royal Court has a supervisory jurisdiction over Connétables, not the Assembly.  As I think the commissioner who presided over the case last year observed, if the States Assembly wish to change that law of course it is open to them to do so by legislation.  I hope that answers the question.

Deputy M.R. Higgins:

Sir, can I just follow up and ask the Solicitor General then whether what is before us now changes the position of the Royal Court as it superseded it or does that still remain?

The Solicitor General:

Forgive me, I did not hear the beginning of the Deputy’s question, Sir.

The Bailiff:

It is whether or not the provisions of the draft law before the Assembly at the moment changes the position that you have set out, Mr. Solicitor General, namely the Royal Court’s jurisdiction.

The Solicitor General:

No, they do not change it at all; they simply change the law as to when resignation takes effect.

The Bailiff:

Does any other Member wish to speak on the principles?  If no other Member wishes to speak on the principles, then I close the debate and invite the Connétable of St. Lawrence to respond.

3.1.2 The Connétable of St. Lawrence:

I thank Deputy Tadier for his comments on this proposition.  One thing that he did mention, which I feel I should address, is he said he has an issue with the option for the Connétable to resign and also the fact that the Connétable may be ordered to resign by the Royal Court.  Of course, what this is bringing this morning is the right of appeal to the Royal Court for a Connétable who may be ordered to resign by the court.  Of course, as we have heard from the Solicitor General - and I thank him for his helpful explanation in response to the question by Deputy Higgins - this was never intended to change the supervisory function of the Royal Court.  It was merely to ensure that if a Constable is ordered to resign by the Royal Court they have the right of appeal.  The other part of the law is to ensure that a Constable may resign and during the term of their office and there are clear processes set out for that exercise.  I would like to propose the principles, if I may.

The Bailiff:

Thank you very much.  I will ask the Greffier to place a vote into the link in connection with the vote on the principles.  I open the voting and I ask Members to vote.

Deputy G.C. Guida:

Sorry, I vote pour, Sir.

The Bailiff:

If Members have had the opportunity of casting their votes, then I ask the Greffier to close the voting.  The principles have been adopted.

Senator Moore, does your panel wish to call this matter in?

Senator K.L. Moore (Chair, Corporate Services Scrutiny Panel):

No, thank you, Sir.

The Bailiff:

Thank you very much.  Connétable, how do you wish to deal with the matter in Second Reading?

3.2 The Connétable of St. Lawrence:

I am happy to propose the Articles, Sir, not en bloc.  I think an explanation would be helpful, following the questions that were raised earlier by Members.

[10:45]

Article 2 of the draft law amends Article 1 of the Connétables (Jersey) Law 2008.  The new paragraphs (3) to (3C) of Article 1 would provide that a Connétable may resign by giving written notice to the Bailiff.  The Bailiff must notify the Attorney General of the resignation and the Attorney General must give written confirmation to the resigning Connétable that notice has been given to the Royal Court.  The Attorney General must notify the Royal Court of the resignation, at which point the resignation takes effect and there will be a vacancy in the office.  Article 2 also amends the 2008 law to signpost the new provision about court-ordered resignation.  Turning to Article 3, that inserts a new Article 4CA in the 2008 law, which applies if the Royal Court directs a Connétable to resign.  The provisions take into account the Connétable’s right to appeal a judgment.  That right to appeal can be exercised up to 28 days from the handing down of the judgment in the absence of an earlier resignation.  Paragraph (2) provides that if the Connétable appeals against the court’s decision to direct resignation, the Connétable ceases to hold office upon either the dismissal or abandonment of the appeal.  Paragraph (3) provides that if the Connétable does not appeal against the decision within the appeal period, they cease to hold office on the expiry of that period.  The appeal period is defined in paragraph (5).  However, regardless of an appeal, if the Connétable resigns by giving notice in writing to the Bailiff, paragraph (4) provides that they instead cease to hold office in accordance with the new Article 1(3C), that is upon the Attorney General notifying the Royal Court of the resignation.  Article 4 expressly provides that the new Article 4CA is not to be taken to derogate in any way from the supervisory jurisdiction of the Royal Court in relation to the office of Connétable.  Article 5 will bring the amendments into force 7 days after the law is registered.  I propose the law in Second Reading.

The Bailiff:

Is the law seconded for Second Reading?  [Seconded]  Does any Member wish to speak in Second Reading?

3.2.1 Deputy M. Tadier:

I have some questions and some points that maybe the Constable can answer.  The first, I guess, is an observation but it could be a question, so I will ask it rhetorically, is why would a Constable have to give notice of his resignation or her resignation to the Bailiff if the Bailiff then has to tell the Attorney General, who has to then tell and inform the court?  It seems a very roundabout way of doing it.  I do not know if that is because the Bailiff is the Constable’s boss.  I always thought that the honorary system, including the Constables, came under the jurisdiction of the Attorney General.  I do not know if that is still the case.  I am pretty sure it is the case.  I do not know why that has been worded in that way.  It just does seem a rather roundabout way of doing it.  It also seems to me that there is a question of jurisdiction here but about the potential delay as well.  If this has been designed to stop any delay from happening, it seems to me that there could be a potential delay between all of those actions.  The question would then be: how long does the Constable envisage that your average resignation and communicating to the court would take?  The second question is: does the Royal Court have to accept the resignation?  I am presuming they do but if that could just be confirmed.  As we know, sometimes we have scenarios whereby somebody tenders their resignation but we are told: “I do not accept the resignation.”  I am presuming that would not happen.  The last point is to ask whether a third party can appeal the decision of the court.  If a Constable resigns but a third party is not happy with that resignation, can they appeal on the Constable’s behalf?  Again, that would seem to make sense but just to ask what the legal position is.

The Bailiff:

Does any other Member wish to speak in Second Reading?  If no other Member wishes to speak in Second Reading, then I call upon the Connétable of St. Lawrence to respond.

3.2.2 The Connétable of St. Lawrence:

I thank the Deputy for his questions.  My understanding is that in relation to his first question, why would a Connétable have to give notice to the Bailiff: my understanding is that the Connétable is required to notify the Royal Court and, therefore, it was agreed that the resignation process would mean that the Connétable needed to write directly to the Bailiff.  The question of jurisdiction, I can provide some further information on that.  The Attorney General brings the representation to the court.  Potential delay, how long does an average resignation take?  There are unlikely to be delays.  Clearly in these days of electronic transmissions a resignation could be submitted via email, rather than through the old-fashioned perhaps way of letter.  But I do not believe that there would be a long delay when a resignation had been submitted.  The question of whether the Royal Court is obliged to accept a resignation, in my view that would depend on the circumstances.  I cannot speak for the Royal Court of course.  What I do know is that when I was in court last Friday, when I have had some Honorary Police officers being sworn, there was a representation made by the Attorney General regarding the resignations of 2 Procureurs du Bien Publique for the Parish of St. Mary.  At that time the court decided to not accept those resignations, though it seems to me that they would clearly be able to not accept the resignation of a Connétable if and when such a resignation is submitted.  A very interesting question from Deputy Tadier regarding whether a third party may appeal against the decision of the court to accept a resignation from a serving Connétable.  If I may, I would like to refer that to the Solicitor General as I am unable to answer that question.  Thank you.

The Bailiff:

Well, Deputy Tadier asked if he can refer the question to the Solicitor General.  In fact, the debate is closed but you can I think, to assist the Members, Connétable.  Solicitor General, are you able to assist on the rights of a third party to appeal against a decision of the Royal Court to which they were not a party?

The Solicitor General:

Yes, I cannot see that such a right of appeal for a third party would exist as a matter of law.  It is solely a matter for the aggrieved party, in this case, the Connétable, to pursue his or her own interests.  I cannot see there being any right to any third party to do so.

The Bailiff:

Do you wish to say anything further, Connétable of St. Lawrence?

The Connétable of St. Lawrence:

No, Sir.  I believe I have answered the questions that were asked by Deputy Tadier and, as such, I would like to propose the law in Second Reading please.

The Bailiff:

I note that Deputy Higgins now has questions he would like to ask the Solicitor General.  Does that arise out of the advice just given by the Solicitor General, Deputy, or is it a separate matter?

Deputy M.R. Higgins:

I think, in one sense, it does refer to what the Attorney General was saying.  The Attorney General told us earlier that it was a customary law of the Royal Courts supervision.  Can he confirm if there is any documentation that could be referred to by Members that explains the supervisory powers of the Royal Court and also this question of whether third parties can appeal? 

The Bailiff:

I am not going to allow that, I am afraid, Deputy.  It is an entirely separate issue and the question of a third-party appeal has been answered.  It is not a matter of customary law.  It is a matter of the operation of the court.  I do not think I can allow that because the debate has concluded and it does not arise out of the advice that was given by the Solicitor General, in my judgment.  I ask the Greffier to place a voting link into the chat.

Deputy M. Tadier:

Can I ask for Article 2 to be taken separately please?

The Bailiff:

Yes, you can ask for Articles in legislation to be taken separately.  The vote therefore will be do you agree with the Connétable of St. Lawrence on, firstly, Article 1, then Article 2 and then Article 3?  The first vote is on Article 1 and I ask the Greffier to place a vote into the link.  I open the voting and ask Members to vote.  If all Members have had the opportunity of casting their votes, I ask the Greffier to close the voting.  Article 1 has been adopted.

The next vote is on Article 2 which Deputy Tadier has asked to be taken separately and, in a moment, the Greffier will place a voting link into the chat.  I open the voting and ask Members to vote.  The vote is on Article 2.  If all Members have had the opportunity of casting their votes, then I ask the Greffier to close the voting.  Article 2 has been adopted.

We now come to voting on Articles 3 to 5.

[11:00]

I open the voting and ask Members to vote.  If all Members have had the opportunity of casting their votes, then I ask the Greffier to close the voting.  Articles 3 to 5 have been adopted.

Do you propose the law in Third Reading, Connétable?

Connétable J.E. Le Maistre of Grouville:

Sir, before we do that, I did vote for the first Article but my name did not appear on the list.  I voted pour and my vote was accepted.

The Bailiff:

It was accepted but it does not appear on the list.

The Connétable of Grouville:

I do not know why it did not appear, Sir.

The Bailiff:

We will look into it, Connétable.  It may be though that the vote came in after the Greffier had closed the vote down.

The Connétable of Grouville:

I think so.  That is possible, Sir.  It is not very important.  I voted for the other Articles.

The Bailiff:

No, but your position is noted of course and does not change the outcome.  We can move on, if you agree.  Do you propose the matter in Third Reading, Connétable of St. Lawrence?

3.3 The Connétable of St. Lawrence:

I do, but before that please, I would like to just thank all the officers involved with preparing this draft legislation.  I would like to thank Members for their questions today and for the explanation and answers given by the Solicitor General to Members as to how to they form their decision and I propose the law in Third Reading.

The Bailiff:

Is it seconded for Third Reading?  [Seconded]  Does any Member wish to speak in Third Reading?  If no Member wishes to speak in Third Reading, then I close the debate and ask the Greffier to place a vote into the link.  I open the voting and ask Members to vote.  If all Members have had the opportunity of casting their votes, then I ask the Greffier to close the voting.  The law is adopted in Third Reading. 

4. Draft Proceeds of Crime (Amendment No. 5) (Jersey) Law 202- (P.123/2021)

The Bailiff:

The next item is the Draft Proceeds of Crime (Amendment No. 5) (Jersey) Law 202-, P.123/2021, lodged by the Minister for External Relations and Financial Services and I ask the Greffier to read the citation.

The Deputy Greffier of the States:

Draft Proceeds of Crime (Amendment No. 5) (Jersey) Law 202-.  A law to further amend the Proceeds of Crime (Jersey) Law 1999.  The States, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following law.

4.1 The Connétable of St. Ouen (Assistant Minister for External Relations and Financial Services - rapporteur):

Sir, the Minister, as I mentioned this morning, is not in the Island so it falls to me to present this and the next 2 propositions.

The Bailiff:

Very well.  Please do then.

The Connétable of St. Ouen:

As Members are well aware, our Island has a long-term policy of compliance with international standards on money laundering and countering the financing of terrorism as setup by F.A.T.F. (Financial Action Task Force), the international standard setup for financial policy.  It has been previously noted to the Assembly that we have a number of recent propositions lodged for debate that relate to the forthcoming MONEYVAL evaluation in 2023 and 2024.  This and the following 2 proposals are such proposals.  As Members who have read the propositions will note, P.123 of this proposition and P.124 and P.125 are accompanied by the same reports as they relate substantially to the same matter.  It is my intention to make my substantial speech on this proposition and simply reiterate a couple of key points when the following 2 proposals are called.  Obviously, if Members have questions or want explanations, I am more than happy to provide those.  These draft amendments are concerned with what is known commonly as “instrumentalities of crime”.  Instrumentalities are the tools which a criminal uses to commit a crime defined as property used in or intended to be used in crime.  In financial crime, the tools a criminal uses tend to be financial services.  The amendments are being proposed to be achieved through 3 different pieces of legislation: the Draft Proceeds of Crime (Amendment No. 5) (Jersey) Law 202-, the Draft Proceeds of Crime (Enforcement of Confiscation Orders) (Amendment) (Jersey) Regulations 202- and the Draft Court of Appeal (Amendment No. 9) (Jersey) Law 202-.  If adopted by the States, consequential amendments will also be made to the relevant Rules of Court.  Taken together, the draft amendments have 3 purposes: to provide for a new post-conviction order permitting the Royal Court to order the forfeiture of the instrumentalities of crime or, if they are no longer available, the value of those instrumentalities, to provide for Jersey to co-operate with other jurisdictions in the enforcement of post-conviction instrumentalities forfeiture orders and to make necessary amendments to Article 29 of the Proceeds of Crime (Jersey) Law 1999 to allow the regime to function effectively.  The need for Jersey to enact legislation to provide for post-conviction instrumentalities forfeiture orders arises from the requirements of the international standards concerning the prevention of money laundering and terrorist financing set out by the Financial Action Task Force.  The methodology to the F.A.T.F. recommendations states specifically that confiscation provisions should cover property that is used in or intended or allocated for use in financial crime.  These amendments explicitly introduce this regime in Jersey.  To provide Members with some practical examples of how this might apply, I will take a simple example.  If a criminal uses a bank account with clean money and it conceals and disguises criminal money, i.e. washing your laundry, then the entire bank balance is a tool used to commit laundering.  Previously, Jersey has relied on the Criminal Justice (Forfeiture Orders) (Jersey) Law 2001 which covers the provisions of the international conventions Jersey is currently party to.  However, the proposed amendments adopt a more modern approach designed to bring the Island fully in line with the F.A.T.F. recommendations.  We note the proposition has no direct financial and manpower implications and indeed, in respect of human rights, where we are dealing with the confiscation of property, the human rights aspect of the draft law is covered in the projet and no issues have been identified.  Equally, my officials, along with the Solicitor General, briefed the Scrutiny Panel and I believe the Chairman will confirm the panel’s support for this legislation.  This is an important set of amendments to be part of our criminal confiscation regime, which is critical to meeting the international standards set by F.A.T.F.  It will be critically assessed in our upcoming MONEYVAL evaluation and I hope Members will support these propositions and specifically this proposition.  Under the Proceeds of Crime (Jersey) Law at present, only dirty money in the account can be confiscated because it is the proceeds of crime.  With this amendment, clean money could be also forfeited because it is an instrumentality, a tool, which is used to commit money laundering.  To be able to do this, it plainly serves the obvious public interest of deterring money laundering.  If this law is passed, it will amend the Proceeds of Crime (Jersey) Law 1999 to provide for the instrumentality of forfeiture orders in relation to property used or intended to be used in criminal conduct.  I move the principles.

The Bailiff:

Are the principles seconded?  [Seconded]

4.1.1 Deputy D. Johnson of St. Mary:

As the Connétable has just mentioned, the Economic and International Affairs Scrutiny Panel was given a comprehensive briefing by the director of financial crime and the Solicitor General.  As will be noted, the provisions are fairly technical.  The panel asked a variety of questions and we were satisfied as to the reasons and the proportionality of what was proposed.  The panel therefore endorses the proposition.  If I may, while I am on my metaphorical feet, the Connétable referred to the fact that this proposition is one of a suite of 3.  The briefing we had covered not only this item but also P.124 and P.125.  To save having to repeat the same matter on hearing those matters, perhaps the Assembly would accept this again as the panel’s endorsement of those 2 propositions as well. 

The Bailiff:

Thank you very much, Deputy of St. Mary.  Does any other Member wish to speak on the principles?

4.1.2 Senator K.L. Moore:

I would like to raise a question of the Constable at this point.  He has identified how the forfeiture would be broadened in circumstances where investigations were being conducted and while, of course, I fully endorse the ability of the Financial Crime Unit to conduct investigations and maintain high standards and counter money laundering, of course sometimes people are investigated when they are innocent.  It has come to my attention that there is a matter in relation to a Jersey investigation whereby the investigation can be carried out for an open-ended period of time.  Whereas, in other jurisdictions, there is a time limit, particularly when the assets of the person being investigated become unavailable for their use or access.  This takes that net further reducing the ability of the person being investigated to have any access to funds during this period of these open-ended investigations which of course is particularly difficult for that person which I would suggest perhaps would even be a matter of breaching their human rights.  I would be grateful if the Constable could speak on this, particularly if we can all put ourselves in the shoes of this innocent person who is being investigated under the proper circumstances but for an indeterminate period of time with no access to their own finances for that period.

The Bailiff:

Thank you very much, Senator.  Does any other Member wish to speak on the principles?  If no other Members wishes to speak on the principles, I close the debate and I call upon the Connétable of St. Ouen to respond.

4.1.3 The Connétable of St. Ouen:

In direct answer to the Senator’s question, the matter we are discussing today covers orders of the court post-conviction of somebody with money laundering offences and those orders would not be made until a court hearing has been held and the person has either been discharged, been innocent or has been convicted of the crime of money laundering.

[11:15]

Then the law would swing into action and allow us to make an instrumentality order to confiscate the proceeds of their bank account based on the evidence presented to the court.  It is difficult to comment about accounts being frozen by banks when an alleged occasion of a criminal offence is occurring.  There has been a lot of discussion about allowing certain transactions to take place but it is not a matter that is covered by this proposition.  If the Senator has details of one of her constituents who has an issue with this, I am happy to look into it and help her try to find a solution.  Other than thanking the Scrutiny Panel and noting that we will only be speaking once, I ask for the appel.

The Bailiff:

Thank you very much, Connétable.  I ask the Greffier to place a vote into the link.  The vote is on the principles of P.123.  I open the voting and ask Members to vote.  If Members have had the opportunity of casting their votes, then I ask the Greffier to close the voting.  The principles have been adopted.

I assume, Deputy of St. Mary, in light of what you said, your panel does not wish to call the matter in.

The Deputy of St. Mary (Chair, Economic and International Affairs):

You are correct, Sir.  We do not wish to call it in.  Thank you.

The Bailiff:

Thank you very much indeed.  How do you propose the matter in Second Reading, Connétable of St. Ouen?

4.2 The Connétable of St. Ouen:

I would like to, if possible, take the Article en bloc but I am obviously willing to answer any questions that would deal with any specific concerns about any of the draft laws individually.

The Bailiff:

Are the Articles seconded for Second Reading?  [Seconded] Does any Member wish to speak in Second Reading?  In no Member wishes to speak in Second Reading, then I close the debate and ask the Greffier to place a vote into the link.  I open the voting and ask Members to vote.  If all Members have had the opportunity of casting their votes, then I ask the Greffier to close the voting.  The Articles have been adopted in Second Reading.