STATES OF JERSEY

OFFICIAL REPORT

THURSDAY, 9th JUNE 2011

PUBLIC BUSINESS – resumption

1. Draft Architects (Registration) (Amendment No. 2) (Jersey) Law 201- (P.62/2011)

1.1 Senator A.J.H. Maclean (The Minister for Economic Development):

1.1.1 Deputy R.G. Le Hérissier of St. Saviour:

1.1.2 Connétable P.F.M. Hanning of St. Saviour:

1.1.3 Senator A.J.H. Maclean:

Deputy C.F. Labey of Grouville (Chairman, Economic Affairs Scrutiny Panel):

1.2 Senator A.J.H. Maclean:

2. Draft Social Security (Amendment No. 20) (Jersey) Law 201- (P.64/2011)

2.1 Deputy I.J. Gorst of St. Clement (The Minister for Social Security):

2.1.1 Senator A. Breckon:

2.1.2 Deputy I.J. Gorst:

Connétable D.W. Mezbourian of St. Lawrence (Vice-Chairman, Health, Social Security and Housing Scrutiny Panel):

2.2 Deputy I.J. Gorst:

2.3 Deputy I.J. Gorst:

2.3 Draft Social Security (Amendment No. 20) (Jersey) Law 201- (P.64/2011) - amendment (P.64/2011 Amd.)

2.3.1 Senator F. du H. Le Gresley:

2.3.2 Deputy I.J. Gorst:

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

2.3.4 Connétable J.M. Refault of St. Peter:

2.3.5 Deputy M. Tadier of St. Brelade:

2.3.6 Connétable L. Norman of St. Clement:

2.3.7 Deputy D.J. De Sousa of St. Helier:

2.3.8 Senator S.C. Ferguson:

2.3.9 Deputy A.E. Jeune of St. Brelade:

2.3.10 The Connétable of St. Saviour:

2.3.11 Connétable K.P. Vibert of St. Ouen:

2.3.12 Deputy R.G. Le Hérissier:

2.3.13 Senator F. du H. Le Gresley:

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

2.4 Draft Social Security (Amendment No. 20) (Jersey) Law 201- (P.64/2011) - as amended

2.4.1 Deputy I.J. Gorst:

3. Draft Food Costs Bonus (Jersey) Regulations 201- (P.65/2011)

Deputy I.J. Gorst:

4. Draft Employment (Amendment No. 7) (Jersey) Law 201- (P.66/2011):

4.1 Deputy I.J. Gorst:

The Connétable of St. Mary (Vice-Chairman, Health, Social Security and Housing Scrutiny Panel):

5. Draft Repatriation of Prisoners (Jersey) Law 201- (P.67/2011)

5.1 Senator B.I. Le Marquand (The Minister for Home Affairs):

5.1.1 Senator B.E. Shenton:

5.1.2 Deputy J.A. Martin:

5.1.3 Deputy S. Pitman of St. Helier:

5.1.4 The Connétable of St. Lawrence:

5.1.5 Deputy P.J. Rondel of St. John:

5.1.6 Senator F. du H. Le Gresley:

5.1.7 Deputy K.C. Lewis of St. Saviour:

5.1.8 Deputy M.R. Higgins of St. Helier:

5.1.9 Deputy T.M. Pitman of St. Helier:

5.1.10 The Connétable of St. Saviour:

5.1.11 Deputy A.T. Dupre of St. Clement:

5.1.12 Deputy R.G. Le Hérissier:

5.1.13 Deputy A.E. Jeune:

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

5.1.15 Deputy F.J. Hill of St. Martin:

5.1.16 Deputy M. Tadier:

5.1.17 Senator B.I. Le Marquand:

5.2 Senator B.I. Le Marquand:

The Deputy of St. John:

The Solicitor General:

LUNCHEON ADJOURNMENT PROPOSED

LUNCHEON ADJOURNMENT

6. Draft Sex Offenders (Amendment) (Jersey) Law 201- (P.68/2011)

6.1 Senator B.I. Le Marquand:

6.1.1 The Deputy of St. Martin:

6.1.2 Deputy M. Tadier:

6.1.3 Senator B.I. Le Marquand:

Deputy R.G. Le Hérissier (Chairman, Education and Home Affairs Scrutiny Panel):

6.2 Senator B.I. Le Marquand:

6.2.1 Deputy M. Tadier:

6.2.2 The Deputy of St. Martin:

6.2.3 Senator B.I. Le Marquand:

6.3 Senator B.I. Le Marquand:

6.4 Senator B.I. Le Marquand:

6.5 Senator B.I. Le Marquand:

6.5.1 The Deputy of St. Martin:

6.5.2 The Connétable of St. Mary:

6.5.3 Senator B.I. Le Marquand:

7. Standing Orders: publication of Register of Members’ Interests (P.67/2011)

7.1 The Deputy of St. Martin:

7.1.1 Deputy T.M. Pitman:

7.1.2 Senator B.E. Shenton:

7.1.3 Deputy R.G. Le Hérissier:

7.1.4 Deputy M. Tadier:

7.1.5 Deputy M.R. Higgins:

7.1.6 Deputy J.M. Maçon:

7.1.7 The Connétable of St. Mary (Chairman, Privileges and Procedures Committee):

7.1.8 Deputy I.J. Gorst:

7.1.9 Deputy J.A.N. Le Fondré of St. Lawrence:

7.1.10 Deputy J.B. Fox of St. Helier:

7.1.11 Senator J.L. Perchard:

7.1.12 Senator P.F.C. Ozouf:

7.1.13 Deputy G.P. Southern:

Deputy T.M. Pitman:

7.1.14 Deputy J.A. Martin:

The Solicitor General:

7.1.15 Senator S.C. Ferguson:

Deputy M. Tadier:

The Solicitor General:

7.1.16 Senator P.F. Routier:

7.1.17 Deputy D.J.A. Wimberley of St. Mary:

7.1.18 The Connétable of St. Saviour:

7.1.19 The Deputy of St. Martin:

The Connétable of St. Mary:

Deputy I.J. Gorst:

Deputy G.P. Southern:

Senator A.H. Maclean:

Deputy M. Tadier:

The Connétable of St. Mary:

Deputy M.R. Higgins:

Deputy R.G. Le Hérissier:

8. Grant aided Schools: grants (P.72/2011)

8.1 Senator B.E. Shenton:

8.2 Grant aided Schools: grants (P.72/2011) - amendment (P.72/2011 Amd.)

8.2.1 Deputy D.J. De Sousa:

8.2.2 Deputy A.T. Dupre:

8.2.3 Senator J.L. Perchard:

8.2.4 Deputy T.M. Pitman:

8.2.5 Senator B.E. Shenton:

8.2.6 Deputy J.B. Fox:

8.2.7 Deputy J.A. Hilton of St. Helier:

8.2.8 Senator F. du H. Le Gresley:

8.2.9 Deputy P.V.F. Le Claire of St. Helier:

8.2.10 Senator T.J. Le Main:

8.2.11 The Deputy of St. Mary:

8.2.12 Deputy M. Tadier:

8.2.13 Deputy M.R. Higgins:

ADJOURNMENT

[9:30]

The Roll was called and the Dean led the Assembly in Prayer.

PUBLIC BUSINESS – resumption

1. Draft Architects (Registration) (Amendment No. 2) (Jersey) Law 201- (P.62/2011)

The Deputy Bailiff:

We now come on the agenda to P.62 the Draft Architects (Registration) (Amendment No. 2) (Jersey) Law 201- and I ask the Greffier to read the citation of the draft.

The Greffier of the States:

Draft Architects (Registration) (Amendment No. 2) (Jersey) Law 201-.  A law to amend further the Architects (Registration) (Jersey) Law 1954.  The States, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law.

1.1 Senator A.J.H. Maclean (The Minister for Economic Development):

The Architects (Registration) (Jersey) Law 1954 is the primary legislation which determines the ability of individuals to be registered as architects in Jersey.  Under the law, having gained all the relevant qualifications and training, architects can make an application to the Royal Court to join the register, which is maintained by the Judicial Greffier, to use the name, style or title “architect”.  The 1954 law makes it an offence for a person to carry on a business in Jersey using the name or title “architect” unless they are indeed registered.  Designated penalties are identified for unlawfully using the title if convicted.  Turning now to the specific reasons for bringing forward this amendment, when the Architects (Registration) (Jersey) Law 1954 was passed by the States, Article 1 carried definitions associated with the U.K. (United Kingdom) Architects (Registration) Act 1931.  There is close alignment between the 2 pieces of legislation, the U.K. and the Jersey, establishing case principles which would allow the Royal Court and the Attorney General in Jersey to draw upon U.K. case law.  Approximately a year ago it was discovered that the processes for the registration of architects in Jersey were deficient.  That is because the Architects (Registration) (Jersey) Law 1954 provides that a person may be registered in Jersey if, and only if, the person is also registered under the Architects (Registration) Act 1931 in the U.K.  Unfortunately, the 1931 U.K. Act was repealed in 1997 and replaced by the Architects Act 1997.  As a consequence, since 1997 there has been no lawful mechanism for registering architects in Jersey.  Therefore, some architects have been registered since the 1931 Act was repealed in 1997, a situation that was only identified in 2010.  In practical terms this has the effect that either their registration needs to be validated or they need to be re-registered.  When this came to light in 2010 an embargo on any new registrations was put in place on all those wishing to register as an architect in Jersey.  In summary, the amendment sets out to achieve alignment between the Jersey Law and the U.K. Architects Act 1997.  If approved it will move the criteria for registration in Jersey from the face of the law to in future being prescribed by order of the Minister.  It allows architects to once again register in Jersey and through a validation process lawfully register those admitted erroneously to the Jersey register since 1997 when the U.K. repealed their 1931 law.  It updates the penalties for offences under that law.  In addition a number of smaller issues have also been addressed.  It will enable a person’s name to be removed from the registered list, either at their request or indeed upon their death.  It will require an architect to tell the Judicial Greffier if they change name or address or if their U.K. registration is for any reason cancelled.  We believe this amendment deals with all outstanding issues and puts in place a new modern regime that will allow the Attorney General and Judicial Greffier to once again lawfully register architects to practise in Jersey.  I should add that the Jersey Architects Association is also supportive.  The current position is clearly unacceptable and is now acting as a barrier to professional registration and the ability to legally carry on a trade as an architect in Jersey.  I therefore ask Members to support this amendment.  I propose the amendment.

The Deputy Bailiff:

Is the amendment seconded?  [Seconded]  Does any Member wish to speak?

1.1.1 Deputy R.G. Le Hérissier of St. Saviour:

Is it the intention of the Minister to introduce a category called “internationally-renowned architect”?  [Laughter]

1.1.2 Connétable P.F.M. Hanning of St. Saviour:

This does appear to sort out the problems that exist.  Is there any charge for this registration?

The Deputy Bailiff:

Does any other Member wish to speak?  I call on the Minister to reply.

1.1.3 Senator A.J.H. Maclean:

I am sure Deputy Le Hérissier appreciates that we already have quite a number of internationally-renowned architects practising in Jersey.  I think he would be the first to agree that the standard of architecture here is exceptional.  [Laughter]  The Constable of St. Saviour asked the question about a charge.  Yes, there is a one-off registration charge which is £120.  I maintain the amendment.

The Deputy Bailiff:

The principles are proposed.  The appel is called for.  I invite Members to return to their seats and ask the Greffier to open the voting. 

The Deputy Bailiff:

I would say to the Chairman of the Economic Affairs Scrutiny Panel, the Deputy of Grouville, do you wish to scrutinise this legislation?

Deputy C.F. Labey of Grouville (Chairman, Economic Affairs Scrutiny Panel):

No, Sir.

The Deputy Bailiff:

Very well, Minister, do you propose the Articles?

1.2 Senator A.J.H. Maclean:

Yes, I am not going to make any further comments.  I have made the salient points during my introduction and I would, if I could, like to take the Articles en bloc.  [Interruption]

The Deputy Bailiff:

Are the Articles seconded?  [Seconded]  Does any Member wish to speak on the Articles?  The appel is called for.  I invite Members to return to their seats if they have left them and I will ask the Greffier to open the voting. 

The Deputy Bailiff:

Minister, do you move the Bill in Third Reading?

Senator A.J.H. Maclean:

Yes, Sir.

The Deputy Bailiff:

Is that seconded?  [Seconded]  Does any Member wish to speak?  Those Members in favour of adopting the Bill in Third Reading kindly show.  Those against.  The Bill is adopted.

Senator A.J.H. Maclean:

Just before we move on, can I just thank Members for that support?  Obviously it is early in the day but I certainly hope that the remainder of the agenda moves as swiftly.  [Laughter]

2. Draft Social Security (Amendment No. 20) (Jersey) Law 201- (P.64/2011)

The Deputy Bailiff:

We now move to P.64 the Draft Social Security (Amendment No. 20) (Jersey) Law 201- lodged by the Minister for Social Security and I ask the Greffier to read the citation of the draft.

The Greffier of the States:

Draft Social Security (Amendment No. 20) (Jersey) Law 201-.  A law to amend further the Social Security (Jersey) Law 1974.  The States, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law.

2.1 Deputy I.J. Gorst of St. Clement (The Minister for Social Security):

I am pleased to propose this legislation, which will give some financial protection to employees whose employment ends due to their employer’s insolvency.  The draft legislation has been prepared based on my proposals that were set out in a White Paper in December 2009 and were widely supported, as well as the insolvency schemes operating in the United Kingdom and the Isle of Man.  Our experience of administering the temporary insolvency scheme since early2009 has been invaluable in preparing what I believe is an efficient system to promptly provide a reasonable proportion of amounts owed.  An insolvency benefit has been created within the existing Social Security Law that sets out (1) the conditions that must be met for a person to be entitled to insolvency benefit, (2) the components of benefit which are unpaid wages, holiday pay, statutory notice pay and statutory redundancy pay, (3) the method of calculating that benefit and (4) a mechanism to allow the Minister to seek to recover amounts paid in benefit through insolvency proceedings.  Subject to Members supporting this amendment, further preparations to support the administration of this new benefit will be undertaken while the amendment awaits Privy Council approval.  I make the amendment.

The Deputy Bailiff:

Is the amendment seconded?  [Seconded]  Does any Member wish to speak?  Senator Breckon.

2.1.1 Senator A. Breckon:

Just a few words.  This is very welcome and it looks like the Minister for Social Security is doing some very effective housekeeping.  The reason I say that is I remember many years ago the company building Queen’s Valley went bankrupt.  It was said at the time that the Parish welfare system had to pick up those unfortunately who were owed money and there was a bonus scheme as well.  There were all sorts of things that were not paid.  The former Constable of St. Helier, Fred Clarke, was very proactive in doing something but there was no framework and other issues were looked at.  There were a couple of fairly high profile building contractors and others that went the same way.  Nothing could be done on behalf of people and, again, it was left to the Parish welfare system.  So, that will give Members hopefully some idea - and it is certainly not this Minister’s fault - as to how long it has taken to get this on the statute.

[9:45]

Really, it is sad that that was the case but I do welcome this and, as I say, it is a very effective housekeeping exercise by the Minister.  Thank you.

The Deputy Bailiff:

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

2.1.2 Deputy I.J. Gorst:

Yes, Senator Breckon is right, it has been a long time in arriving.  I am pleased to see he puts it “to get our housekeeping in order” and I think it is a necessary piece of social provision.  Often, unfortunately, in the past committed, loyal employees have been left high and dry, as it were, by decisions of companies which have gone into insolvency and struggled to re-claim amounts owed to them and this should put that straight.  I hope that Members will support the principles.  There is of course an amendment to an Article but we will come to that in a moment.  Thank you.

The Deputy Bailiff:

All Members in favour of adopting the principles, kindly show.  Those against.  The principles are adopted.  Is there a member of the Health, Social Security and Housing Scrutiny Panel present in the Assembly?  Yes, the Connétable of St. Lawrence.

Connétable D.W. Mezbourian of St. Lawrence (Vice-Chairman, Health, Social Security and Housing Scrutiny Panel):

Yes, Sir, as Vice-Chairman I can confirm that we do not wish to scrutinise it.

The Deputy Bailiff:

Very well, Minister, do you wish to propose Articles 1 to 4?

Deputy I.J. Gorst:

Yes, well I was wondering if I could move Articles 1 to 26F which is all the Articles prior to the amendment.

The Deputy Bailiff:

That is a slight difficulty because Article 5 is one Article although it contains lots of provisions within it.

2.2 Deputy I.J. Gorst:

I will take your lead, Sir, and move Articles 1 to 4.  Hopefully they are straightforward.  Thank you.

The Deputy Bailiff:

Are those seconded?  [Seconded]  Does any Member wish to speak on Articles 1 to 4?  The appel is called for.  I invite Members to return to their seats.  The vote is on whether to adopt Articles 1 to 4 of the draft law. 

The Deputy Bailiff:

Do you wish to propose Article 5, Minister?

Deputy I.J. Gorst:

Yes, Sir, I will take your lead because obviously this brings into force Articles 26A to 26J.  But 26G is the subject of an amendment, so I am assuming you are suggesting I go up to 26F.

The Deputy Bailiff:

No, I am suggesting you move the whole of Article 5 and then we will come on to the amendment.

2.3 Deputy I.J. Gorst:

I stand corrected, Sir; that is exactly what I do.  [Laughter]  [Interruption]  Indeed, hopefully, if Members have had time to read this I do not need to plough through it; it is fairly straightforward and it outlines details with regard to the scheme, the meaning of “employee”.  As I have said the components of the benefit: wages, notice pay, redundancy pay, holiday pay, how the benefit is to be calculated, the cap on the amount of benefit that an individual can receive from the fund and any mitigation against those components.  Thank you.

The Deputy Bailiff:

Minister, I wonder if it would be helpful to Members before we receive the amendment if you would go into some detail on Article 26G so that Members will be aware of the comparison between what you propose and what the proposer of the amendment proposes.

Deputy I.J. Gorst:

Thank you, Sir, I will take your lead on how to deal with this.  Yes, quite simply Article 26G suggests that the Social Security Department will deduct social security contributions from payments to individuals.  The amendment, which obviously Senator Le Gresley will speak to, is suggesting that we should also deduct income tax payments.  My officers liaised with the Income Tax Department and they were of the view that that was not appropriate and therefore that is the proposal I am putting before the Assembly.  Obviously Senator Le Gresley will argue a different position and it will be for Members to decide.  I obviously remain of the view put forward from the Treasury Department because I see the difficulties that it could include.

The Deputy Bailiff:

I was not asking you to address the amendment but to explain your own position.  Thank you.  Is Article 5 seconded?  [Seconded]

2.3 Draft Social Security (Amendment No. 20) (Jersey) Law 201- (P.64/2011) - amendment (P.64/2011 Amd.)

The Deputy Bailiff:

We now come to the amendment.  The amendment is lodged by Senator Le Gresley and I ask the Greffier to read the amendment.

The Greffier of the States:

Page 18, Article 5.  In Article 26G (as to be inserted) - (a) in paragraph (2), delete the word “not”; (b) delete paragraph (3); (c) renumber paragraph (4) as paragraph (3).

2.3.1 Senator F. du H. Le Gresley:

That must be about the simplest wording of an amendment this House has ever seen, I should think.  I would like today, as I am in a good mood, to congratulate the Minister for Social Security for proposing this change to the Social Security Law which will establish the new insolvency benefit.  He has my full support as I am fully aware of the hardship caused in the past to employees when their employer becomes bankrupt.  In my previous job at Citizens Advice I responded to the White Paper issued by his department and recommended that income tax be deducted from the appropriate components as well as social security contributions.  I was therefore disappointed to see in P.64 that the Minister, on the advice of the Tax Office, was not intending to make tax deductions where applicable.  I believe if we approve this legislation today without including my amendment, we will be rightly criticised for helping people to avoid paying income tax and also for potentially causing people hardship when at a later date steps are taken to recover tax arrears.  Members may not be aware that if a person has arrears of income tax the amount of the arrears is added to the liability when the Tax Office calculate the effective rate for I.T.I.S. (Income Tax Instalment Scheme).  For one year of arrears the maximum effective rate is 25 per cent, for 2 years 30 per cent and for 3 or more years 35 per cent.  So let us look at the 4 components of insolvency benefit in the order in which they would be paid.  Unpaid wages for up to a maximum of 12 months prior to redundancy.  All wages are taxable, holiday pay, also taxable, pay in lieu of notice up to a maximum of 12 weeks, again, taxable and, finally, redundancy pay, which is not taxable.  Now the Minister for Treasury and Resources in his comments to my amendment says, and I quote: “I.T.I.S. deductions would only be required on certain components of the insolvency benefit, quite possibly the smallest component.”  Well as Members can appreciate I disagree, as the only component that is not taxable is redundancy pay and only employees with 2 years or more continuous service are entitled to receive one week’s pay for every full year of service capped at average earnings.  The Minister for Social Security is proposing that the maximum amount of insolvency benefit is to be capped at £10,000.  So let us look at a simple example of an employee on £36,000 per annum who has been with the same employer for 4 years.  When his employer ceases trading he is owed 2 months’ pay.  The calculation of the insolvency benefit would be as follows: unpaid wages £6,000, pay in lieu of notice £2,769 which is equivalent to 4 weeks’ pay, redundancy pay £2,769 equivalent to 4 weeks’ pay, total £11,538.  Now the insolvency payment will be capped at £10,000 of which £8,769 is taxable.  If the employer had an I.T.I.S. rate of say 15 per cent, the tax deduction would be £1,315.  However, the Minister for Treasury and Resources on the advice of the Tax Office says, and again I quote: “To deduct tax under I.T.I.S. from such components could be considered punitive on the individuals who may already have been suffering hardship due to their financial circumstances.”  With all due respect, it must be said that the Comptroller of Income Tax is not normally noted for showing such benevolence and compassion.  It is quite possible that thousands of pounds of income tax could be lost should individuals who cannot secure new employment decide to leave Jersey without settling their tax liabilities.  Should this be the case, the receipts of an insolvency benefit payment at the end of employment from the States of Jersey would be like receiving a tax-free golden handshake.  I urge Members to support this amendment which is plain common sense.  If we have to change the Income Tax Law to enable the Social Security Department to make I.T.I.S. deductions, I am sure that this can be done perhaps at a time that other tax changes are taking place, for instance, after the Budget.  It is perfectly feasible for the Social Security Department to obtain the effective tax rates from employees themselves by requiring them to submit their last payslip when making a claim for insolvency benefit.  It is a requirement by law for employers to give employees payslips.  I ask Members to place little weight on the comments of the Minister for Treasury and Resources when reaching a decision on how to vote on my amendment but rather to consider the importance of behaving responsibly so as to ensure that legislation approved in this Chamber does not encourage tax avoidance or by the same token cause financial hardship.  I make the amendment.

The Deputy Bailiff:

You say you are in a good mood today, Senator.  It must be your birthday, is it?

Senator F. du H. Le Gresley:

It is, Sir.  [Laughter]  [Approbation]

The Deputy Bailiff:

Happy Birthday, indeed.  Is the amendment seconded?  [Seconded]  Does any Member wish to speak?  Minister.

2.3.2 Deputy I.J. Gorst:

Yes, perhaps I could start by offering many happy returns of the day to the mover of this amendment.  [Laughter]  This is quite a difficult amendment for me because while I can acknowledge the Senator’s arguments and understand entirely what he is trying to achieve, he is trying to achieve hardship down the line from individuals who might, when they get back into work, have what he describes as a punitive I.T.I.S. rate from their salary, and that is something we should be aware of.  Of course, one thing that I have learnt, and my department has learnt, over the last couple of years since this Assembly agreed that we should have a temporary insolvency scheme - and we have not always been able to do this because of the law surrounding insolvencies - is that people want the money as quickly as they can because the financial difficulty is when they leave their employment.  That is the time when they are really concerned about how they are going to manage financially and how they are going to get through until the point that they have a new job.  I wonder if that argument on this occasion does trump the argument of having to deal with the issues further down the line.  Those individuals and those families do want as much of the benefit as they are entitled to in their hands to make sure that they can make suitable and appropriate provision for their families at the point that they are made insolvent.  There have been a number of difficulties around that.  We have not always been able to move quite as quickly as we would have liked to have done, as I have said, because of the legal issues surrounding insolvency.

[10:00]

I would be loathe, I have to say, to suggest that we should deduct any more.  Of course, one would expect me to want to deduct social security payments, however, there is another reason why that might be appropriate in a way that I.T.I.S. is not and I will come on to that now.  For me, I have to say I think that probably is the overriding factor that those families need as much of the benefit they are entitled to in their hands right at the point that they are made redundant through insolvency and not necessarily us helping them later down the line.  They are issues that they will be able to manage as they move into employment.  The other issue is of course that any benefit which the department pays out in this statutory scheme to individuals, the Minister via the department then becomes a creditor in the insolvency proceedings.  The Viscount, when making those distributions, is able to deduct from those payments made to employees the social security but not the I.T.I.S. element as well.  Therefore, I think perhaps that should have a bearing, the reason being that the Social Security Department can only re-claim or become a creditor for benefit paid and not for the respect of income tax.  As I said at the start, I do understand the issues that the Senator is raising and it is a matter for this Assembly to make a decision.  We have taken the advice of the Tax Office; of course there is the issue around I.T.I.S. anyway.  Anybody who is not on a “pay as you go” a current year basis, the I.T.I.S. that they are paying might need to be adjusted.  It might be too much; it might be too little anyway, so we will still have that issue to address when they move back into employment but it is, as I have said, an issue for the Assembly to decide upon.  They, in my opinion, are the 2 contradictory issues that we need to address and decide which one trumps the other.

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

To be honest, I am quite amazed by this amendment and amazed that it should be coming from the direction that it is coming from.  I have always taken the Senator to be somewhat of a liberal-minded person and here he is making what is, in effect, a massive step on behalf of the Government in a case that is absolutely inappropriate, I believe, and not proportionate.  I am surprised that in his previous life dealing with individual citizens, in dealing with the vagaries and ways of various departments, his philosophy has not been one of those that is defending the ordinary citizen.  But what we have here is a massive step to say that Income Tax will reveal details of your liabilities to a third party with or without and give them authority to tax you on their behalf willy-nilly.  That is a tremendous increase in the powers of the Social Security Department.  If you have matters to deal with the Social Security Department and you want to go down and deal with them, you do.  You do not expect the officer in Social Security then to say: “Oh, and by the way, I have heard something about your tax issues.  By the way, Housing have been in touch with me and I want to deal with this as well.”  You do not expect that and quite rightly you would not expect that.  It seems to me that this amendment overlooks the fundamental relationship between the individual and government and the protection of your human rights within that relationship.  As far as your income tax is concerned and your earnings, that is a relationship with the Income Tax Department.  They have certain powers; those powers should not be given willy-nilly to any other department in order to assist the Government in the rare, rare occasion that somebody may leave the Island and escape paying their tax which is due.  This is an argument again which is based on the exceptions we should not be making rules for the minority.  The fact is most of the hardworking people out there who might find themselves in this situation are as honest as the day is long and are not going to be skipping the Island in order to avoid paying their tax when it becomes due.  But the overriding principle must be that your relationship as far as your tax is concerned is with the Comptroller of Income Tax and that is confidential to you and part of your relationship.  He will look after your income tax situation and he will chase you for the money due when it becomes due and you will make arrangements with him.  You should not be dealing with a third party from the Social Security Department on their behalf.  That is a completely separate relationship and the balance between your rights and the rights of the Government administratively is a fine line and this steps well over that line.

2.3.4 Connétable J.M. Refault of St. Peter:

If I can just add my congratulations to that of the Minister for Social Security on Senator Le Gresley’s birthday as well.  I would also like to follow Deputy Southern, he will be surprised to hear that I agree with much of what he has said, although I do not really want to associate myself with comments he made about Senator Le Gresley’s past employment.  But the general thrust of his argument I find very supportive.  However, I think it would be right to say from the outset that Senator Le Gresley is entirely right to bring forward this amendment.  He has pointed out a possibility that the States could be paying out money and not getting their due returns back from that.  In that case, he is entirely right but I do not think it is appropriate.  My mind goes back approximately 2 years ago when there were very long impassioned pleas in this Chamber about the Woolworths’ people that were being put out of work and the needs and the hardship that they were going through.  It was a hard-fought fight, mainly by Deputy Southern and contributed by other people as well.  We supported the need to provide free money effectively at that time to people who were suffering such hardship and duress.  If we look at the minimum wage now, off the top of my head I think we are looking at something in the region of £12,000 to £13,000 a year and I think it is fair to assume that they will not be paying I.T.I.S. on that.  If somebody is earning a lot more than that, and let us say it is £20,00 a year even with the cap of £10,000, yes, they should be paying I.T.I.S. but if they are only getting £10,000 when they are used to £20,000 they are going to be suffering significant hardship.  To put the burden of this amendment upon them at that time I think is inappropriate.  The Tax Office has already said they have a mechanism to take it back when they get back into work and I accept once again Senator Le Gresley’s argument that to do that is going to be punitive in the longer term.  I would hope the Tax Office would not be punitive and to spread that repayment term over as long a period as possible in arrangement with the person involved, which I am sure they do now in other cases.  So I think from the Treasury’s point of view this is right to bring this amendment but it is wrong because it is inappropriate in the circumstances that people find themselves in and the Treasury do not support the amendment.  Thank you.

2.3.5 Deputy M. Tadier of St. Brelade:

I did not know it was Senator Le Gresley’s birthday either so I wish him very many happy tax returns, which are the words I was trying to get out.  There seems to be 2 conflicting issues and as has been said already it seems that possibly the intellectual argument is with Senator Le Gresley but the more reasonable argument is with the Minister for Social Security.  I just want to make a few observations first, if I may.  First of all, it needs to be clarified whether or not by taking income tax at the time, rather than subsequently when the individual may be back in work the year later, whether that would slow up the process at all.  Because initially the Minister said that the money needs to be given as quickly as possible and I think what he may have meant was that the money needs to be given in a maximum form rather than anything else.  [Interruption]  I take those points on board.  But presumably I think the issue of speed need not necessarily be a factor because irrespective of whether or not the Income Tax Department should be sharing information with the Social Security Department or vice versa it seems to be that a mechanism could be put in place very quickly so that Social Security would know what liability is due, and that could be deducted at the same time as the social security element is deducted.  So I think that is possibly a red herring in terms of speed.  The other argument is if the Minister is saying that they need to be given as much money as possible, I think it is important to qualify at this stage that even with this legislation in place, employees who have been made redundant due to insolvency are going to be more likely, on the balance of probability, I would suggest, less well off than if they had been made redundant under a situation where the company was not insolvent.  If we are saying that they need to be given the maximum amount of funds, then why is the social security contribution being taken at all?  That could be waived or it could be paid later on.  So it seems that if that argument is to follow it should be the same for both departments.  I do find the comments of the Minister for Treasury and Resources slightly confusing because if what Senator Le Gresley has told us is correct, the comments seem to be suggesting that the Tax Department are saying they will waiver the tax; they just will not collect it because they feel sorry for the individuals who are in the situation.  Whereas in fact if we look at part 3 it says that nothing in this Article affects the liability under the Income Tax Law for the person who is receiving the benefit.  So it seems that it is a question of whether it is preferable to collect the tax there and then at source when they have the money.  I need clarification in my mind if, for example, the year later the individual is still unemployed and that insolvency money has run out, then presumably their tax liability will still be there.  It is not simply a case of one waits until one is back in gainful employment until you have to pay that.  It is not like tuition fees where you wait until you have a certain amount of income before you start paying it back.  The income tax will be due irrespective a year later whether or not one is in employment.  So the question has to be asked: is it not better to pay it there and then when that individual has the money, and, of course, it will be proportionate.  The other point I want clarification of - and perhaps the Senator can address it when he sums up - is that surely the tax is either due or it is not due at the time under I.T.I.S.  So if an employee is paying 5 per cent I.T.I.S. and they are made redundant, presumably they should carry on paying 5 per cent I.T.I.S. on the sum that they received for insolvency.  That seems pretty clear and logical to me.  It will be exactly proportionate and of course if they earn less, if they get less money through that insolvency payment, then they will be paying proportionately less, although it may not make up for the whole sum that they have lost if they are losing any money in the long term.  The last point I would make is that while I completely endorse the sentiment of Deputy Southern and others in saying that perhaps the current law is not set up for the exchange of information between departments, what I would say is that surely it is all Government at the end of the day.  We talk about joined-up Governments but when it comes to these kinds of issues we are saying that the Social Security Department and the Income Tax could not possibly talk to each other because that is personal information and that seems slightly strange.  Of course, it would be inappropriate for the Income Tax Department to share your tax information with the media, with a third party, but when it comes to a legitimate reason for sharing information which is hopefully going to result in a more expedient Government, more expedient collection of taxes and hopefully to keep the costs for doing that administration down in the long term, I think as an Assembly we need to take a mature approach.  Members in this Assembly will know that I am not one to trample on human rights by any means or on data protection issues but as a Government we have to take a sensible and balanced approach and I think sometimes we can use these arguments spuriously.  We need to look in the long term as to whether appropriate information sharing between departments can be used in a more expedient way.  That said, I do fall on the side of being sceptical of this amendment purely because I do not think that we are currently set up to deal with it and I think that the arguments on balance we do need to show more compassion for those at a time when they are facing difficult periods in their life.

[10:15]

If there is a risk that we are taking more than we should, or if there is a risk that it is going to extend that period that the individuals have to wait, then I prefer to err to the side of caution on this.  But I think Senator Le Gresley has flagged up some important issues and that we can in future make some - I will not call them no-brainers - intelligent changes about the way we do business in government, especially between departments.

The Connétable of St. Peter:

May I make a point of correction for the last speaker?  He did suggest in his speech that I had said we would waive the I.T.I.S.  It is very clear in the fifth bullet point of the Treasury’s comments, the last line: “The Taxes Office would contend that any arrears would be collected through I.T.I.S. when an individual finds new employment.”  Thank you very much.

2.3.6 Connétable L. Norman of St. Clement:

In the absence of any compelling or convincing arguments from the Minister for Social Security or the Minister for Treasury and Resources I am minded to support this amendment because I think back when we introduced the Income Tax Instalment Scheme we did it for a number of reasons.  One of those I can remember in the debate was to remove this situation where individuals had to find a lump sum - a large lump sum - as one does normally at the end of the year.  That is why I.T.I.S. was generally welcomed.  It was taken at source, one never had it in one’s pocket or bank account and the income tax bill was sorted out with no major problem at the end of the year.  Now this tax from the individual who has been made redundant is due and the Senator’s amendment does not ask the Social Security Department to take more from that person’s benefit than is due to the taxpayer, so it is due.  Now if it is not deducted at source, in due course that person who has suffered the redundancy their circumstances might improve but they might deteriorate as well.  Whichever scenario exists, that bill, £1,000, £500, whatever it might be, is still due to the taxpayer and at some point will be pursued by the Comptroller of Income Tax for that amount and it could be in a lump sum, the very thing we tried to avoid when we introduced I.T.I.S.  So we could be putting a burden on this individual and much better for them I would have thought - and for the taxpayer generally but I am thinking of the individual concerned - to remove that debt at source before they get that money in their pocket when one day they have to take it out again to give it back to the taxman.  It just seems to me this is quite a sensible amendment but I could be convinced otherwise but I think it is going to be very difficult.

2.3.7 Deputy D.J. De Sousa of St. Helier:

I will be brief and, I, like the last speaker, need convincing by the Minister that this is not the way to go.  I have never in my time as a States Member or since I.T.I.S. came in been told by anybody on the Island that they do not like it.  When people are given redundancy money, if they are going to be taxed on that, surely it is better to pay it at source than have to pay it along with other tax when they get employment.  Although I do know, because I did run my own business before I was elected to the States, that if an employee has to pay 35 per cent and they really are finding it very difficult because it is leaving them with not enough money, they can appeal to the Tax Office and if they can prove it they can get that reduced and pay it over a longer term.  So I do know that for a fact.  We are often saying that we have a silo mentality and that we do not share information and that is why departments do not work well.  Surely this is one step to having a collective view and information sharing.  The other thing I will ask if the Minister can clarify, in the new Migration Law that is coming forward there will be information sharing between departments.  Surely this would be a first step in that information sharing.

2.3.8 Senator S.C. Ferguson:

I will join the cacophony of good wishes to Senator Le Gresley for his birthday.  I will not be so rude as to ask which one.  We have had the example of one employee but what is the scale of the problem?  What sort of level of income, what is the distribution of income levels that are affected by insolvency and what is the experience of the last couple of years?  It also occurs to me that since I.T.I.S. is paid directly to the Tax Office by the company, is the Tax Office a preferential creditor for that I.T.I.S.?  Will the tax be reclaimable from any assets realised by the insolvent company?  I think we have to be careful in this instance.  It seems to me that we could be in a position where the cost of collection through this amendment might possibly be more than the actual tax collected.  Thank you.

2.3.9 Deputy A.E. Jeune of St. Brelade:

I do understand where the Senator is coming from in bringing this amendment.  But in my mind it creates problems because in Social Security the department and the staff there would not necessarily know what the I.T.I.S. obligation of an individual is.  So what I would ask the Senator is this: is he suggesting that tax should be taken at 20 per cent of the actual monies that would be paid through the insolvency?  Thank you.

Deputy M. Tadier:

Can I seek clarification of the last speaker?  The Assistant Minister will know this from working at Social Security, is it not the case that one has a slip one can get from Income Tax and it says what your effective rate is?  So presumably could one not hand that slip over to Social Security and then the department would know exactly what rate they have to take.

Deputy A.E. Jeune:

That might suggest what their I.T.I.S. rate is but that is in relation to usually the previous year, I think, and may not have a bearing on the person’s responsibility of the current year.  But I am not a tax expert and perhaps somebody else can elaborate better than I.

2.3.10 The Connétable of St. Saviour:

Just a brief point.  If after insolvency it may take a while for somebody to be re-employed, once that happens it is quite possible they will not be earning the same wage that they were before.  The tax liability will still be there but if they are in financial difficulties it would be better for their payments on I.T.I.S. to be lower than taking the sum at source.  Because I think the Minister is absolutely correct: they will be in difficulties; they need the maximum amount of money as soon as possible.  I think to take the tax liability, which could be quite considerable, out of it is making people that are in difficulty suffer even more.  I think this is a chance for us to be as helpful to these people as possible, even if there is a slight risk that some of the tax might be lost.

2.3.11 Connétable K.P. Vibert of St. Ouen:

Like my colleagues on the Connétables’ benches I favour this proposition because I think that at the end of the day it gives the person who is involved some certainty.  We have already, the Parishes, experienced some problems with the fact that the Social Security Department in its Income Support Scheme has an element towards the paying of rate bills.  Now the rate bill comes as one lump bill in July/August of the year and many people by then have, for one reason or another, good or bad, spent that money which has come from Income Support before this bill has arrived.  Then they come to us and they say: “We cannot afford to pay it” and we tell them: “Well you already had the money given from Social Security towards paying this bill, you should be able to pay it.”  I think this is exactly what the Senator is trying to avoid.  The Senator is trying to avoid a situation where people who are in financial difficulties get this sudden large bill.  If it has been taken, yes, it will in a way create a certain amount of hardship because less money is being given to them in the first place, but they will not, down the line, be faced with this one big bill and I will totally support this amendment.

2.3.12 Deputy R.G. Le Hérissier:

I was very seduced by Deputy Southern’s argument, then I started thinking about it and it was quite extraordinary because he was saying there should not a link between tax and employment whereas, as he will well know, of course, for example, the U.K. Pay As You Earn system is totally based on the fact that a number is given by the authorities whereby your employer has to subtract an estimated tax; its aversion.  We never went that far with I.T.I.S. but obviously we went some of the way.  There was total integration of the 2 systems: the tax system and the payment you receive from your employer.  So this notion that you have 2 silos, you should totally manage on your own and it is entirely your responsibility to inform the tax authorities is not quite the case.  Similarly his argument that - I do not know what facts he has to make this assertion - very few people leave the Island.  Well, certainly one of the drivers of I.T.I.S. was this impression that lots of people were leaving the Island or arranging their affairs so as to only work for a certain part of the year, or they could only work for a certain part of the year, they would minimise their tax liabilities by departing from the Island and they would return for another season.  So this idea again that very few ... I do not know where he has this evidence from.  I do not think any of us have evidence unless we are at the harbour or the airport looking at people and working out what their residential status has been.  The other point I would raise with Senator Le Gresley though, because it does worry me that this may be a hammer to crack a nut, is he going to apply a similar principle to people who receive lump-sum payments for other reasons that there should be an immediate deduction from these lump-sum payments because it does have, in that sense, an element of unfairness.

The Deputy Bailiff:

Does any other Member wish to speak?  I call on Senator Le Gresley to reply.

2.3.13 Senator F. du H. Le Gresley:

I think it is important for me to say what I am proposing is exactly what happens in the U.K.  This is nothing original or I have dreamt it up or whatever.  In the U.K. the Redundancy Payment Office which is responsible for dealing with insolvency payments deducts from arrears of pay, holiday pay, et cetera, an amount of tax at the basic rate in force at the time payment is made.  Now, Deputy Jeune said am I proposing that the rate should be 20 per cent?  I am not proposing that and if she reads my report I say: “I am not proposing that the Social Security Department deduct income tax at the basic rate as it should be relatively easy to find out the I.T.I.S. rate for each employee.”  So I am not suggesting that it is 20 per cent for every employee.  I can understand the argument about feeling sorry for these people and I can assure you that I am bringing this amendment because I do feel sorry for these people.  I have hands-on experience of dealing with people who have lost their jobs through the employer becoming insolvent.  What I would say to people, there is a deterrent to returning to work if you know that you have a substantial higher I.T.I.S. rate in the offering.  That is a danger, the route we go to, if we do not take the tax at source.

[10:30]

A number of people quite correctly have pointed out that is exactly why I.T.I.S. was introduced so as to remove the situation where people end up with a large bill.  Now Deputy Southern made comment about sharing of information and I find this rather strange, because perhaps he has not been in the workplace for long enough or recently, since I.T.I.S. came in.  But what he may not know is that every employer knows what the I.T.I.S. rate is of their employee.  That is the way it works.  An employee has to hand that slip to the employer when they start work.  If the I.T.I.S. rate changes at any time during the year they have to hand that slip in.  So every employer on this Island knows the I.T.I.S. rate for their employees.  All I am saying is Social Security are stepping into the shoes of the employer who has gone into liquidation or bankrupt; they will have to.  What a lot of people have forgotten is how are we going to know what their basic rate of pay is?  We are going to have to find the books of the company or the ledgers to find out what is their basic rate of pay before we start to calculate the amount that they are due; and in finding that information out you will see what their I.T.I.S. rate is, because it is going to be there.  So I do not really see that I am suggesting that Social Security are suddenly put in the position where they get information that every employer has on the Island about their employees.  Deputy Southern said: “The rare occasion when somebody may leave the Island” and Deputy Le Hérissier picked up on this.  I find that quite amazing.  Perhaps he does not know that you cannot get income support if you have not been continuously resident for 5 years.  What happens when you have been here 4 years and you lose your job?  You have got no support from the Government through benefits, so what do you do?  You leave the Island if you cannot find work.  You cannot keep going if you have not got employment.  So a lot of people do leave the Island if they find themselves in that circumstance.  The Constable of St. Peter speaking on behalf of the Treasury says that he does not know that this would affect that many people, particularly those on minimum wage.  Unfortunately I did not come with the information today, but the tax threshold for a single person, and hopefully somebody will have that information, is relatively low.  People may remember I tried to get it raised, but that did not work either.  But it is relatively low; so a lot of people are paying some tax.  It may not be more than 1, 2 or 3 per cent I.T.I.S., but they are paying tax these days.  We must be careful that we do not make an assumption that every company that might get into financial difficulties is employing people on the minimum wage.  There are companies out there who may be paying salaries in excess of £50,000, £60,000 a year, but they get into financial difficulties.  Perhaps there has been embezzlement or whatever.  So there could be substantial salaries involved.  I do recall that when we were dealing with Woolworths, there were people certainly at top management, who were on substantial sums of money and received substantial payments at the time.  Deputy Tadier is quite correct; I do not think the case has been made by the Minister that taking tax will slow the process up in making payments.  I think that is a complete red herring and we should not consider that at all.  Deputy Tadier also asked me to clarify, are taxes due on insolvency benefit proportionate.  I think I explained when I made the amendment that the first 3 elements of the components are taxable.  It is only the redundancy pay in line with our statutory law which is treated by the Tax Office as not taxable.  The more money that is owed in unpaid wages, et cetera, the more that those amounts will be taxable.  Deputy De Sousa was also supporting this, which I am grateful for, and she says that people can appeal if they have a higher tax rate, that they cannot afford to pay the I.T.I.S. rates; and yes, there is an appeal process, but I can tell people that the Tax Office are very tough on this these days and you have to have a really ... just because you feel you cannot afford it is not a reason not to have the higher I.T.I.S. rate imposed on you.  In answer to Senator Ferguson, I.T.I.S. is a preferential creditor, or the Tax Office is a preferential creditor for I.T.I.S. that has not been paid across by the employer to the Tax Department; because obviously I.T.I.S. is paid at regular intervals by the employer.  So if at the date the company goes into liquidation then the tax that is due is a preferential creditor.  I think I like what the Constable of St. Ouen said, only because he was supporting me.  But he is absolutely right again about rate bills.  We know that people on income support do not put money aside; it is a fact, and then they get a large bill for their Parish rates, and I believe the Ministers tried to come up with some arrangement with the Comité des Connétables to try and help them in that situation.  I hope I have covered most of the points.  Deputy Le Hérissier was one of the final speakers and he asked me if this sort of taking of tax would apply for other lump sum payments.  To the best of my knowledge there are not any lump sum payments paid by Social Security in the region of £10,000.  The Minister may correct me.  It could occur where there is a backdated claim for Income Support, but Income support payments are not taxable, so I do not see this arising in an issue with any other payments, although I remember hearing, I think it was Deputy Fox at the meeting I went to, suggested that he would like his old age pension with tax deducted.  He said he would find that easier.  I am not suggesting that today.  But this is a large sum of money that is potentially going to be paid out, and I think we have a duty to help people and take it at source, and not wait until later when they are going to get into even more financial difficulties.  So I maintain the amendment, and ask for the appel.

Senator S.C. Ferguson:

Could I have a point of clarification?  I did ask the Senator what was the scale of the problem that we were dealing with.  Are we talking ... what was the distribution of incomes that he had seen coming in having problems?

Senator F. du H. Le Gresley:

Fortunately we have not had, to my knowledge, that many insolvencies.  The biggest one obviously is the Woolworths’ one that we all knew about and which led to this new benefit.  But I go back to the point I made before: any company could get into financial difficulties not just because their business is falling away.  It could be that something is done incorrectly by directors and they are sued or whatever, and the scale of money that could be involved would depend on the range of salaries within that company.

Deputy M. Tadier:

I have 2 points of clarification that I would like to seek, but probably from the Solicitor General I think.  He would be better placed.  So if I could ask a question of the Solicitor General?  The first one is I would like to know, in a situation, for example, where the employee has had deductions taken out for I.T.I.S., so the employer has that money but due to financial difficulties the employer may not have paid those sums to Income Tax; who would be liable for those outstanding sums?  Would it be employee?  Would he or she be chased in the first ...?

Senator B.E. Shenton:

Could I object, because when a speaker has summed up I think it is wrong to restart the debate again?  It is very unfair on the person who has brought the proposition and who has already summed up.

The Deputy Bailiff:

I am entirely with you, Senator.  I was going to invite Senator Le Gresley to add anything if he wished to, having heard from the Solicitor.  Do you have a second question, Deputy, for the Solicitor?

Deputy M. Tadier:

I am not sure if that comment was directed at me, but it was my understanding that at any point during the debate under Standing Orders, Members can ask clarification from the Solicitor or Attorney General.  I do not think we have gone to ...

The Deputy Bailiff:

Deputy, that matter is closed.  Is there a second question you wanted to ask of the law officers?

Deputy M. Tadier:

It is more a question of clarification I think.  I think Senator Le Gresley could clarify and it would affect the way I am going to vote.  It is, can the Senator clarify whether the effect of his proposition amendment if adopted would result in 2 lots of tax being paid; that is to say, that the I.T.I.S. from the previous year and the liability for that sum which would normally be taken the year after, or is it simply the tax liability for the previous year which is what I initially understood to be the case?

The Deputy Bailiff:

Very well.  Solicitor General.

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

The employer remains liable.

The Deputy Bailiff:

Senator Le Gresley, do you wish to comment on anything the Solicitor General has said or answer or clarify the question from Deputy Tadier?

Senator F. du H. Le Gresley:

No, Sir.

The Deputy Bailiff:

Very well.  The appel is called for and I invite Members to return to their seats and ask the Greffier to open the voting.

2.4 Draft Social Security (Amendment No. 20) (Jersey) Law 201- (P.64/2011) - as amended

The Deputy Bailiff:

Very well.  We now return to the debate on Article 5 of the draft law as amended.  Does any Member wish to speak?  If not, all Members in favour of adopting this Article kindly show.  Those against.  The Article is adopted.  Minister, you wish to propose Articles 6 and 7?

2.4.1 Deputy I.J. Gorst:

Yes, if I could.  Article 6 amends the Social Security Law to ensure that sums recovered will be refunded, and 7, the citation and commencement.

The Deputy Bailiff:

Seconded?  [Seconded]  Does any Member wish to speak on Articles 6 and 7?  All Members in favour of adopting Articles 6 and 7 kindly show.  Against.  The Articles are adopted.  Do you wish to move the Bill in Third Reading, Minister?

Deputy I.J. Gorst:

If I could, thank you.

The Deputy Bailiff:

Seconded?  [Seconded]  Does any Member wish to speak on the Bill in Third Reading?  The appel is called for and I invite Members to return to their seats and I ask the Greffier to open the voting. 

3. Draft Food Costs Bonus (Jersey) Regulations 201- (P.65/2011)

The Deputy Bailiff:

We now come to the next item on the Order Paper, P.65, the Draft Food Costs Bonus (Jersey) Regulations 201- lodged by the Minister for Social Security and I ask the Greffier to read the citation of the Draft.

Deputy I.J. Gorst:

Sorry.  Before we quite do that I am going to have to call on your direction and hopefully the mercy of the Assembly.  I find myself in an odd position in that there does not appear to be a Standing Order that I can appeal to, to allow me to do that which I would like to invite the Assembly to do, and that is: these regulations that I hopefully am about to propose replace existing triennial regulations for this very bonus.  The new regulations increase that bonus.  The old ones in actual fact do not cease until the 23rd I think it is of July.  Members are aware that G.S.T. (Goods and Services Tax) has already been raised, and I am keen and I hope that Members will be, that the new bonus and the increased amount is available to members of our community as soon as possible.  Therefore I have asked my department and I am very grateful to them and to the law draftsmen for the amendment that I would like to propose to this regulation which would allow them to come into effect 7 days after our decision, be that today or not, which would then mean the old regulations cease and these would come into effect 7 days after.  I am really not sure what it is that I am asking for, other than perhaps I would like to ask the Assembly if they would consider lifting Standing Orders to allow me to have that amendment to bring this benefit in sooner, rather than having to wait a month.  If Members do not wish me to do that I feel I have little choice other than to delay this debate until the next sitting, because then at least it will be around a month earlier than it would have otherwise have been available.  But I am in the hands of yourself and hopefully ultimately the Assembly.

[10:45]

The Deputy Bailiff:

Your request is that we lift the whole of Standing Order 26 on Member Lodging Periods in order to allow you to ask the Assembly to debate the Draft Food Costs Bonus (Jersey) Regulations amendment?

Deputy I.J. Gorst:

I believe that is what I am, if it achieves that which I would like to achieve.

The Deputy Bailiff:

This is because the powers in the Standing Order to reduce the minimum lodging periods are not powers which obviously fit your desire for the ability to pay the increased Food Costs Bonus at an earlier stage, because Standing Order 26(7) says: “The States may reduce the minimum lodging period if they are of opinion that the proposition relates to a matter of such urgency and importance that it would be prejudicial to Jersey to delay its debate.”

Deputy I.J. Gorst:

That is right.  I do not feel able to make that argument, and I am sure Members would understand why.  I am simply appealing to Members to allow that Standing Order to be lifted so that this benefit can be available to members of our community this month and in as short an order as possible, rather than having to wait another month.

The Deputy Bailiff:

Minister, Standing Order 80 says that a Member of the States may propose without notice that one or more Standing Orders be suspended for a specified purpose.  It is therefore open to you to make the proposition that Standing Order 26 should be suspended for the specified purpose of allowing debate upon your amendment, and it will be a matter for the States to resolve whether Members think that is an appropriate use of the Standing Order, because it would in theory, if the States so resolve, form a precedent which would allow any Minister or indeed any Member to bring forward a proposed amendment at very short notice indeed.  But that is a matter for Members because it is clear from the Standing Order that Members have it within their power to make that decision.  That is the proposition you make.

Deputy I.J. Gorst:

If I could make that, I am taking soundings as I sit here listening to your directions, and I feel that Members are suggesting I should just put this debate off until the next sitting, albeit that that is a heavy session.  I am seeing nods of heads and therefore I am going to withdraw my proposition and ask that the Greffier not read out the regulation and we take it at the next sitting.  Thank you.

The Deputy Bailiff:

Very well.

Deputy M. Tadier:

While we are sorting out our paperwork, because this is a reason on this occasion, it has happened in the past, could I ask that P.P.C. (Privileges and Procedures Committee) consider whether or not it is appropriate rather than to lift Standing Orders when one does not agree with this particular one, whether there should be more flexibility with regard to the words: “If it is prejudicial to the interests of Jersey”?  Because it seems that would be preferable if the States decide on any one occasion.  Perhaps P.P.C. would like to give that consideration.

Connétable J. Gallichan of St. Mary:

I can inform the Assembly that matter has already been considered by P.P.C. and we have not recommended any change.

The Deputy Bailiff:

Members may be interested to know that until 2005 there was a minimum lodging period which was set out in the Code of 1771 and was therefore part of the established law of the Island, and it was only when the States of Jersey Law was enacted in 2005 that the Privileges and Procedures Committee of the day determined that it would be appropriate to introduce the lodging periods in Standing Orders, which therefore would be capable of being changed on occasion, as opposed to having a provision in law.  But the original purpose was to ensure that there could be consultation in 1771, obviously by the Connétables with their Parishes, on the proposal to introduce legislation.

4. Draft Employment (Amendment No. 7) (Jersey) Law 201- (P.66/2011):

The Deputy Bailiff:

We now come to the Draft Employment (Amendment No.7) (Jersey) Law 201-, P.66 lodged by the Minister for Social Security and I ask the Greffier to read the citation.

The Greffier of the States:

Draft Employment (Amendment No.7) (Jersey) Law 201-.  A law to amend further the Employment (Jersey) Law 2003.  The States subject to the sanction of Her Most Excellent Majesty in Council have adopted the following law.

4.1 Deputy I.J. Gorst:

I am proposing this amendment to the Employment Law primarily to revise redundancy rights for employees on short fixed-term contracts.  The amendment also provides some essential changes for consistency across the Employment Law.  Shortly after the new redundancy rights were introduced on 1st January 2011, I became aware that the interaction of this new right with the existing rules for calculating continuous service impact upon employers and employees who use short fixed-term contracts in seasonal industries.  This is because employees who are made redundant after 2 years’ continuous service are entitled to redundancy pay, and fixed-term contracts that are separated by a gap of 26 weeks or less are treated as a period of continuous service.  This means that employees who work under short contracts over a number of consecutive seasons with the same employer can accrue 2 years’ service, giving them the right to a redundancy payment at the end of each season.  This is a disincentive to hiring and ultimately may impact on job opportunities.  I consulted stake-holders and the Employment Forum and considered a number of different options.  Taking into account seasonal business practices, the most appropriate solution is to preserve continuous service between fixed-term contracts that are separated by 9 weeks or less, instead of the 26 weeks or less.  This is Article 3 of the amendment.  The outcome is that fixed-term contract employees will continue to be protected against unfair dismissal after 26 weeks continuous service, but generally will not qualify for redundancy pay at the end of a season, because they will not have accrued 2 years’ continuous service.  I believe that the amendment provides a simple and both tourism and agricultural focused solution.  It balances the preservation of appropriate rights for fixed-term contract employees while enabling employers to meet genuinely seasonal business requirements without leaving a loophole for employers to abuse rolling fixed-term contracts.  The amendment makes other changes that are related to the issue of fixed-term contract employees as well as changes to clarify and extend the existing definitions.  I maintain the amendment.

The Deputy Bailiff:

The principles are proposed.  Are they seconded?  [Seconded]  Does any Member wish to speak?  No Member wishes to speak.  Those in favour of adopting the principles?  The appel is called for.  I invite Members to return to their seats.  The vote is on whether to adopt the principles of the Employment (Amendment No.7) (Jersey) Law and I ask the Greffier to open the voting.

The Deputy Bailiff:

Connétable, does your panel wish to scrutinise?

The Connétable of St. Mary (Vice-Chairman, Health, Social Security and Housing Scrutiny Panel):

No, thank you.

The Deputy Bailiff:

Minister, do you wish to propose the Articles en bloc?

Deputy I.J. Gorst:

Yes, if I could.  Once again I believe they are straight forward and I propose them en bloc.

The Deputy Bailiff:

Seconded?  [Seconded]  Does any Member wish to speak on the Articles?  No Member wishes to speak.  Those in favour of adopting the Articles kindly show; those against.  The Articles are adopted.  Do you wish to propose the Bill in Third Reading?

Deputy I.J. Gorst:

Yes, I do.  If I could just at this point give my thanks to the Jersey Hospitality Association, the Jersey Farmers Union, Lord Rasman and individuals at J.A.C.S. (Jersey Advisory and Conciliation Services) and my own departmental officers for coming up with what I believe is a quick and pragmatic solution, and I hope that it will alleviate some of the concerns that have been brought to me by those specific industries.

The Deputy Bailiff:

Does any Member wish to speak in Third Reading?  Those Members in favour of adopting the Bill kindly show.  The appel is called for. 

5. Draft Repatriation of Prisoners (Jersey) Law 201- (P.67/2011)

The Deputy Bailiff:

We now come to the Draft Repatriation of Prisoners (Jersey) Law 201- (P.67) lodged by the Minister for Home Affairs and I ask the Greffier to read the citation of the Draft.

The Greffier of the States:

Draft Repatriation of Prisoners (Jersey) Law 201-.  A law to make provision for facilitating the transfer between Jersey and places outside the British Isles of persons for the time being detained in prisons, hospitals or other institutions by virtue of orders made in the course of the exercise by courts and tribunals of their criminal jurisdiction and for connected purposes.  The States subject to the sanction of Her Most Excellent Majesty in Council have adopted the following the law.

The Deputy Bailiff:

Minister, do you wish to propose the principles?

5.1 Senator B.I. Le Marquand (The Minister for Home Affairs):

Indeed.  This is a highly technical piece of legislation, which I will attempt to explain as simply as I am able.  Its effects may prove to be substantial in terms of an eventual substantial reduction in the Jersey prison population if it has the secondary effect which is anticipated.  The main primary effect of the legislation is to enable in certain circumstances and subject to certain safeguards, which I will go into later, prisoners to be transferred back to their country of origin in order to serve their sentence there.  The system works both out of Jersey and into Jersey, and accords with a European directive which is not binding upon us but is binding upon E.U. (European Union) countries.  There are 2 main advantages to this.  Firstly, this will aid the process of rehabilitation and return to the community for prisoners whose family, friends and community lie elsewhere.  It is therefore clearly in the best interests of prisoners, and indeed I have already had interest expressed by individual prisoners in this regard.  But secondly, there is an advantage in terms of good governments because of the numbers of prisoners in La Moye who have little or no ties with Jersey; that fact of course is a by-product of the courts’ sentencing policy, particularly in relation to drug offenders.  The number of such people who have little or no ties is quite substantial, and indeed there is set out in paragraph 29, page 9 of the report, some idea of the sort of figures.  We have there numbers of foreign nationals and U.K. prisoners who were in La Moye at 23rd February 2011.  There were 49 of each.  If one takes those 2 groups together for the moment, that represents more than half the prison population because the total prison population as of that date was 186.  Section 30 of the report, you will see that at least 16 and probably more of the 49 who are foreign nationals would be potentially eligible for transfer.  It should be noticed that where prisoners are returned under this law to another jurisdiction then Jersey does not pay the cost for their imprisonment elsewhere, although we will have to pay the costs of the transfer.  Now of course, the reverse also applies that if there are prisoners with strong Jersey connections returning to us we would then have to ...

Deputy S. Power of St. Brelade:

I do not think we are quorate.

The Deputy Bailiff:

Thank you, Deputy.  Could I please invite Members in the anteroom to return to the Chamber in order that we may become quorate.  Very well, Deputy.

[11:00]

We have now become quorate again, Deputy, thank you.  Minister, please continue.  I am sure it was not your exposition which ...

Senator B.I. Le Marquand:

I am getting rather worried by this, this is the second consecutive session we have become inquorate while I have been speaking.  I know this is a very technical law, but there we are.  Now I have lost my flow.

The Deputy Bailiff:

You had better pick it up or we will be inquorate again.  [Laughter]

Senator B.I. Le Marquand:

I have dealt so far with what I will call the primary effect, which is the direct effect potentially of this piece of legislation.  But there also exists potential for a greater secondary effect which I am going to seek to explain to Members.  This does not arise directly from this piece of legislation but is likely to arise as a by product of it.  The secondary effect arises from the way in which currently U.K.-based prisoners serving a sentence in Jersey are treated.  There is a mechanism for them to be returned to the U.K. in order to serve their sentence but currently they are returned at what is called a restrictive transfer.  A restrictive transfer means that they return to serve their sentence but on the terms, in terms of parole or the equivalent thereof, which applies in Jersey and not on the terms which apply in the U.K.  A change was made some years ago because there was concern that if that were not so then U.K. and Jersey-based prisoners sentenced at the same time for the same offence would be treated in quite a different way in terms of parole and things of that nature.  The reason why the secondary effect will come into play, as a result of the primary effect in this particular matter, is because once we have a situation in which foreign prisoners, non-British Isles prisoners, would be returning to serve their sentence in accordance with the parole regime, et cetera, of their home country, clearly there is going to be a disparity of some sort in treatment if hypothetically, for instance, we had a Portuguese prisoner, an English prisoner and a Jersey prisoner all sentenced to the same amount on the same day then we would have a situation once this law applies where the Portuguese prisoner on being returned might have better parole terms than both the Jersey prisoner and the U.K. prisoner.  Clearly that would give rise to a situation where you U.K. prisoners would say: “Why are non-British nationals being treated potentially more favourably than British nationals?”  What I am saying in very simple terms is that it is my view that once the law has come into place the Minister for Home Affairs should move in order to change the current system for U.K. prisoners so that they are no longer on restrictive transfers but on unrestrictive transfers which means that they will be serving their sentence in accordance with the system in the U.K.  Now, I believe that is perfectly logical, although it could lead to a degree of disparity between Jersey prisoners and others because we would be adopting in so doing the fundamental principle set out in the E.U. Directive, which is that people serve their sentence in accordance with the rules in the place where they serve their sentence.  If that occurs then suddenly return to the U.K. will become much more attractive for U.K. prisoners.  At the moment there are many who are not wanting to return to the U.K. because there is no advantage to them in terms of better parole terms, or better opportunity of parole than we have at the moment.  But what I am saying is that if this piece of legislation goes through, if it starts to be operated, then if I was still the Minister for Home Affairs it would be my intention, I give notice to the Assembly of that, to change the system so we then move to unrestricted transfers and that will then produce a secondary benefit in terms of a reduction in the prison population, and that could be even more substantial in terms of numbers than that from the primary effect.  I am sorry if that is all pretty incomprehensible to Members, I have done my best to explain it simply and if they have further questions I will deal with them.

The Deputy Bailiff:

Are the principles seconded?

Senator B.I. Le Marquand:

I have not stopped, Sir, I have a lot ...

The Deputy Bailiff:

I am sorry, I thought you had finished.

Senator B.I. Le Marquand:

The reason I stopped was Deputy Martin’s light went on and I thought she wanted to ask a question.

Deputy J.A. Martin of St. Helier:

No, the reason my light went on, I thought you had finished and I wanted to make a few comments, sorry.

The Deputy Bailiff:

There are 2 Members wanting to speak so you obviously have some people listening to you, Minister.  [Laughter]

Senator B.I. Le Marquand:

I think you are hinting to me perhaps I should not say more.

The Deputy Bailiff:

Absolutely not.

Senator B.I. Le Marquand:

I did want to go on to deal with the safeguards which are in the law and I am very prepared to also go on and deal with the human rights aspects if Members want me to do this.  Yes, I am getting nods now, Sir, that I should do those things.  There are a whole number of safeguards, both in the law and by virtue of the European Convention on Human Rights, which would prevent improper usage of the law.  The first is that once the law is passed there will be a need to enter into what is called in the law, international arrangements.  Now that is basically an agreement with other countries that this will apply to them, that they are happy that this mutual arrangement will apply and the terms upon which it will apply will have to be agreed with other countries.  That can be done under the law either by individual agreements by Jersey with other jurisdictions or indeed possibly by a more global approach involving the U.K. authorities as well.  It is not clear at this stage which is going to be the best but we have those options.  So that is the first thing, we have to enter into individual agreements.  Secondly, under those agreements there may be a requirement for prisoner consent.  Some countries may say: “We will only enter to agreement if we have consent of the prisoner” others may say: “No, it is not necessary to have the consent of the prisoner.”  So I need to go on and deal with the safeguards which are in place where the consent of the prisoner is not required.  Then, under Article 2(2)(a), if advised, the Minister for Home Affairs must not issue a transfer warrant unless the transfer appears to the Minister to be appropriate having regard to any close ties which the prisoner has with Jersey.  So there is a clear safeguard.  That provision will have to be considered in accordance with the provisions of the European Convention on Human Rights and, in particular, the following articles are engaged.  Article 3, which says: “No one should be subjected to torture or to inhuman or degrading treatment or punishment.”  That is an absolute requirement under the E.C.H.R. (European Convention on Human Rights).  There will therefore be a duty to ensure that the receiving country has a proper prison system which complies with E.C.H.R. and that the prisoner will not be at risk of such ill treatment whether from the State or from other parties.  That will have to be considered in each case.  Secondly, Article 5 of the E.C.H.R.: “No one shall be deprived of their liberty except in accordance with law and in certain circumstances, one of which is the lawful detention of a person after conviction by a competent court.”  This is particularly relevant to incoming prisoners in relation to whom the court will have to be independent of the executive and the parties and have to be a court which has criminal jurisdiction and which has the ability to determine whether or not an individual should be detained.  So in relation to an incoming person there were safeguards that the Minister will have to be satisfied that the sentencing process conducted in the other country was satisfactory in terms of the E.C.H.R.  Thirdly, Article 8 of the European Convention on Human Rights, everyone has a right to respect for his private and family life, his home and his correspondence.  There should be no interference by a public authority for the exercise of this right.  This, of course, is a qualified right but is not an absolute right, which means that the States are permitted to interfere with this to the extent that there is a legitimate aim, to the extent that the interference is in accordance with the law and is necessary in a democratic society.  Very often we talk in terms of it having to be necessary and proportionate.  That will have to be considered in each case.  That is particularly relevant in the Article 2(2)(a) test where the Minister will have to look at how close are the ties of the prisoner with Jersey before being in a position to issue such a warrant.  Indeed a careful balancing exercise will need to be struck in each case, particularly those which might involve separation from family.  Now, in relation to this, of course in some cases this same issue will already have been looked at in parallel by the Royal Court in terms of a recommendation for deportation.  So there may, in some of the more difficult cases, be a situation where the Minister can be confident because the issues have been looked at by the Royal Court and is basically looking again at the same issues.  Article 14 of the European Convention of Human Rights: “A person shall enjoy the other rights without discrimination.”  Clearly in the operation of this law there will be a differentiation between people of different nationalities.  However, of course, it will be more beneficial for a prisoner who does not have ties with Jersey to serve their sentence elsewhere.  That Article of course only operates in terms of considering other rights and I do not think it adds very much but I add it for completeness.  Finally, Protocol 1, Article 1, protection of property.  Now, this advises only in relation to Article 14(2) of the law in the eventuality of a prisoner returning to Jersey being required to pay the costs or part of the costs of those.  Although there are safeguards in the law, particularly Article 14(3) in relation to an exemption for those who cannot afford to pay.  So that is also safeguarded.  A major safeguard in the law is the need for the receiving country to agree to receive the prisoner.  So even if we have an agreement with another country by virtue of which the consent of the prisoner is not required, it will be necessary for the receiving country to agree to receive the prisoner and vice versa.  A prisoner coming to Jersey, it will be necessary for the Minister for Home Affairs to agree to receive the prisoner and therefore to be satisfied that it is appropriate under the European Convention of Human Rights, which I will not go through again.  A further safeguard lies with the courts, which I have already mentioned in relation to prisoners in relation to recommendation for deportation, and I will not go over that again.  A further safeguard arises under Article 2(3) where the Minister must ensure that the effect of the international arrangements or of any warrant have been explained to the prisoner in their own language.  Article 2(5) in cases where consent is required it must be obtained in a proper formal way and in accordance with the international arrangements.  Finally in relation to safeguards, there is of course also the potential safeguard of judicial review of any ministerial decision to issue a warrant.  That is the main aspects of the law but I must, in my opening statement, also deal with Articles 8 and 9, because Articles 8 and 9 are quite different.  Articles 8 and 9 deal with the situation in which there might be a prisoner who had been sentenced in another country who was unlawfully at large in Jersey.  If we suddenly were to find that there was somebody who should be serving a sentence elsewhere who was in Jersey, it then creates an ability to order the arrest of that person, take them before the Magistrates Court and determine whether they are the right person so they can be returned.  Frankly we want to do this because if we have got such people in Jersey we do not want them and we want them to go back to serve their sentence elsewhere.  That is in accordance with international comity and friendship to other friendly countries.  I think that is all I need to say.  I am sorry I have gone into it at such length but I did need, I think, to deal in detail with the safeguards.  So I move the principles of the law.

The Deputy Bailiff:

Are the principles seconded?  [Seconded]  I have had a number of Members wishing to speak, I call on Senator Shenton.

5.1.1 Senator B.E. Shenton:

I am very pleased to see this law today, it is something I have been pushing for for a number of years and with my P.A.C. (Public Accounts Committee) hat on there is a number of financial benefits from the law going through.  But it was not the financial benefits that brought it on to my radar in the very first place.  Shortly after I was elected I gave a talk down at the Welcome Centre, which is a centre next to St. Thomas’ Church, which welcomes immigrants into the Island, and they felt it was very unfair that Jersey did not have any repatriation agreements in place.  A number of people within the prison were fairly young people that perhaps knew no one on the Island at all, who had been used as drug couriers or drug mules, and they would be sentenced in Jersey and then obviously they would have no visitors during their time in Jersey because their family and friends and so on and so forth were back in the country that they emanated from.

[11:15]

It was something that they felt should be done from a human rights perspective, that it would be better for these people to serve their sentences in their own countries.  Obviously from a financial point of view as well it would be better for their own countries to pick up the bill of them serving back there.  I did speak to both the current prison governor and the previous prison governor concerning this and both were fully in favour of repatriation agreements coming in place.  Both felt that it would ease the burden on the prisoner quite substantially and allow them more resources to focus towards the remaining prisoners and the rehabilitation of those prisoners.  So I fully support this, both from a human rights perspective and also from a financial perspective, and I do hope it goes through today.

5.1.2 Deputy J.A. Martin:

I was not going to interrupt the speaker, it was just that I had written down about the U.K. prisoners and then the Minister went on to say this will have a secondary effect.  If you note on page 4, it says the 1997 law because somebody noticed that we were sending U.K. prisoners to the U.K. and they were serving their sentences in the U.K. under the U.K. law and they were being paroled and they were put in ... obviously that was an incentive and suddenly someone found out this was happening and we had to restrict it back.  Now we have got people ... why would you go for the same crime and be doing extra time in the U.K.  You are going to do it here anyway so you might as well stay.  So I am glad to hear that it is coming.  My question is, the Minister did say it makes problems because you could have a Jersey, a Portuguese and a U.K.  The U.K. we are coming ... I would like to know a date when this will be non-restrictive because the U.K. do not seem to have a problem with it, we seem to have made the problem and prisoners used to go there and suddenly, as I say, they were not being treated the same as U.K. prisoners.  Secondly, you would have the Portuguese returned and they may have more ... let us say they were all on the same crime, Minister, so we have a sentence in the Jersey court, the one is sent to the U.K, does X amount and is allowed out on parole, one is sent back to Portugal, wants to go obviously, and then you have the Jersey prisoner who was in on the same crime will be in prison for longer.  So my question is: when will this happen?  Where is our parole system?  Because I have heard it is coming since ... the Minister seems to think that we do not know.  I had U.K. prisoners contact me that they had only gone over there ... that was before I was in the States and they had found out.  So it is something that we do know about and it comes to back to where would you best want to serve your sentence and does the taxpayer really need to pick up the bill.  But unless we get all the ducks in a row, people are not going to go and they will have ties here to stay.  They might also have relatives in the U.K. and there is open prisons, lots of different options for the U.K. but the main reason people used to go was because they served less.  So when will it all be equal for everybody and really I just welcome this part to start it off that the Minister said this will lead to, but when will it lead to everybody being treated the same.  Please get on with making this unrestricted and not restricted.

5.1.3 Deputy S. Pitman of St. Helier:

I have a few queries for the Minister.  Firstly on page 5, number 7, it says that: “Multiparty arrangements to which the U.K. is signatory has concluded around 20 bilateral prisoner transfer agreements with other countries, the department is currently researching this” so I wonder what progress has been made on that.  Then on page 6, point 13, if you could tell us what progress has been made on this.  Page 12, Article 2, second paragraph, it says: “The transfer can be made without the prisoner’s consent.”  I just wondered under what circumstances.  How long the Minister envisages this legislation being implemented and, lastly, what provision of contact for prisoners with children living in countries other than the U.K. are currently in place at the prison at the moment.

5.1.4 The Connétable of St. Lawrence:

Very briefly, this was discussed in great detail with the former Education and Home Affairs Scrutiny Panel and I would like to take this opportunity to thank the current panel for their very helpful comments which they have produced [Approbation] on this law.  I was listening carefully to the Minister and probably when he sums up he will make reference to the comments that have been provided by the panel.  I did not hear him mention them during his opening words.  Of course this is a start towards reducing the prison population and a couple of things that I just need to ask is when the transfer between the Crown Dependencies will be effected, whether that will be part of the U.K. repatriation.  One comment I found very helpful or intriguing from the panel and Deputy Martin has just touched on it is in point 28 of the comments is that the Jersey prison is seen as a good place to serve a sentence in comparison to many U.K. prisons.  I think Deputy Martin just alluded to that.  I wonder if the Minister will explain how he will deal with this when negotiating for the transfer of U.K. prisoners.  How will he deal with it because this is very much, I understand, based on the prisoners being willing to be transferred?  If they believe themselves to be better off in Jersey what is the incentive to get them back to the U.K.?  I think those are all my comments on this other than it is a very welcome law.

5.1.5 Deputy P.J. Rondel of St. John:

This takes me back a while. I remember back when I first became a Centenier in the early part of the 1970s, I think 1972, when we used to take the people who committed minor offences from the cells in the morning and take them down to the local daylight boat and put them on the boat back to the U.K. and then after the 1976 law - possibly neither you, Sir, nor the proposer were acting advocates in the courts at the time, I think you both came a little later after the 1976 Honorary Police Law came into being – then we had to present them before the Magistrate and he in turn instructed that they pay their own expenses if they had the money on them and put them on the boat.  Not quite like that but that is what happened and not to return for a period of time.  It was quite interesting how things have moved on with human rights and the like.  Can the proposer, when he sums up give us information on if the Howard League on Penal Reform been consulted in this area at all, because in fact they have been very useful in the past, in particular they have praised the method of the work done by the honorary system within the Island and the like and I just wondered if they had been consulted.  On a further point, I presume we have still got long term prisoners that we send to the United Kingdom to serve sentences, i.e. murderers and the like.  I am not 100 per cent sure if we still do that or they serve on Island.  If they are being sent to the U.K. and there is a fixed penalty given for the offence that will serve a minimum of say 25 or 35 years, will this affected if a deal is done with another jurisdiction, because I would not want to see a murderer walk free if the Royal Court over here had made certain recommendations that the person serves 25 or 30 years of that sentence because the deal done with another jurisdiction maybe allows a person to walk free after 12 or 15 years.  Will the Minister please be able to put my mind at rest on that point?  I am very supportive of anything that will lift the burden on the Homes Affairs Department, i.e. the prison and obviously the police service and all that goes with it, and obviously the taxpayer and I take my hat off to the Minister for moving in this particular area.  Thank you.

5.1.6 Senator F. du H. Le Gresley:

I would like to join other Members in congratulating the Minister on bringing forward this piece of much needed legislation.  I have some experience of working with the prison staff having been a member prior to joining the States of the Release on Temporary Licence panel for some 5 years.  This panel was set up by the Minister’s predecessor and I was a lay member on that working with the prison governor, prison officers and reviewing whether people coming to the end of their sentence should be allowed out on temporary licence to visit family, start to work in the community and eventually to take on paid work.  It was very revealing, and this picks up on what Senator Shenton said before.  How many of the offenders that came up in the file were first offenders and they were what is known as drug mules.  They were people who had arrived, usually at the harbour but sometimes at the airport, been arrested carrying or drugs often hidden in their body or wherever and were obviously brought before the courts and given quite substantial sentences under our current drug penalties.  Often these unfortunate people, and I call them unfortunate because in some cases they had absolutely no connection with the Island, the only place they have ever seen is the harbour and H.M.P. (Her Majesty’s Prison) La Moye.  When it came to considering them for release on temporary licence of course there was nowhere for them to go.  Nobody wanted to necessarily take them into their homes, they did not know anybody, they never had any visitors, they could not speak the language in many cases and it was a very difficult and sad situation to see, and by having this repatriation law we will be able to deal with that problem.  Also during the current Minister’s time he made a ruling, and I think it is probably still standing, that anybody who had been sentenced by the courts for deportation at the end of their sentence, they were not eligible for release on temporary licence in any form.  Again, this was a bone of contention perhaps for some of these prison inmates that their colleagues were going out temporary licence but they could not because they had a deportation order made by the court.  I think the key thing is that this will do a lot to help reduce the prison population, and I am particularly pleased to see that the Minister is recommending in the financial and manpower implications that he will be addressing the issue of how to separate the different prison population rather than the total number of cells.  Again, this came to my attention when you visit the prison regularly, although a lot of money and a lot of good work has gone on with the accommodation available to prisoners there is a problem particularly with young offenders and hopefully the Minister would agree with me that this is something we need to deal with rather than mixing young offenders with more seasoned, shall we say, offenders.  That is all I want to say, thank you.

5.1.7 Deputy K.C. Lewis of St. Saviour:

Just a few minor questions.  If a prisoner is repatriated to their country of origin, I am presuming they would sit their sentence out there as if they were in Jersey.  A prisoner in Jersey, once they have completed their sentence would be released into the community.

[11:30]

Would there be any bar on any prisoner sent back to the country of origin of re-entering Jersey at a later date should they manage to retain their passports?  Does the Minister have reciprocal health agreements with all the newer E.U. states and would the Minister define ties in Jersey?  I can understand wife and/or children but everything else is a very grey area.  Would the Minister clarify?  Thank you.

5.1.8 Deputy M.R. Higgins of St. Helier:

Deputy Martin raised a lot of the questions I was going to ask.  It is to do with the differential in a sense between the length of sentence before remission, it was mentioned about one third in Jersey, half in the U.K. and so on.  I was just wondering, when the Minister went through the various European Convention of Human Rights Articles, if I am not mistaken I think it is Article 13, which is not a standalone article, it is to do with discrimination and I would like to know what effect it has if you have got these differential rates whether Article 13 could be involved as well?  Perhaps if he could advise us on that.

5.1.9 Deputy T.M. Pitman of St. Helier:

I would just like to start off with some congratulations.  Congratulations to the Minister on bringing this forward.  I often think he is not the quickest man on earth but it is a difficult area.  I congratulate the Home Affairs Panel for their excellent work.  I congratulate Senator Le Gresley on his birthday, only 7 years until he can retire now, thanks to us.  But my real concern is the one touched on by Deputy Martin, it goes into the parole issue in Jersey and I look forward to hearing the Minister’s thoughts on that.  As we can see by the comments from our panel, Education, we were generally very supportive but I do not know whether the Minister agrees or not that while this is indeed a step towards reducing the prisoner population, this is just the first step and the next one if he is still here and if we are all still here is to look at our whole attitude to sentencing and crimes and why people perhaps are in that prison for something related to drug offences which are not hard drugs and yet they will be treated far differently to someone who drinks 18 pints of lager and then beats the living daylights out of some innocent person.  Now, that is a key area, I think for the Minister or his successor.  Could the Minister just give assurances that when it comes to repatriating prisoners he will give real consideration on an individual case by case basis because, as we all know, there is going to be huge discrepancies in the places where some people might be returned to ... they might well be not innocent people because if someone has committed offence they have still committed an offence but as Senator Le Gresley point out, some of these people are just desperate people really and they have almost entered into some of these criminal activities as a last resort, and I do hope the Minister will ensure that people who are vulnerable and were used by people much further up the criminal chain do not end up suffering in proportion to what they have done.  But generally I say well done to the Minister, we are supportive as a panel and I look forward to some further steps in the future.

5.1.10 The Connétable of St. Saviour:

Just a couple of brief questions.  The Minister has mentioned that obviously some of prisoners would serve a shorter term due to their country’s parole conditions.  Could he quantify this in some instances because I have to say I do not know whether we are talking about a few months or a few years?  Presumably it is proportional to the length of the sentence.  The other thing that follows on from that is is this likely to have any effect on the court’s sentencing policy in that if they know a prisoner has committed a certain offence, they may not want him released before a certain term, and he is likely to be going back to another country where he would be out on parole, would this affect their sentencing?

5.1.11 Deputy A.T. Dupre of St. Clement:

It is about 13, about the expenses.  I see that if it is a Jersey person coming back to the Island they are going to have to pay towards their expenses whereas it seems we are paying to get rid of the other people.  Could he just explain that for me?  Thank you.

5.1.12 Deputy R.G. Le Hérissier:

Yes, I would like to thank Constable Mezbourian who is still thinking of us and Deputy Pitman for praising himself and ourselves.  [Laughter]  A bit of self-serving never goes amiss.  We did have a long meeting with the Minister and some of the issues have not been mentioned because they were not seen as germane but they have since been raised.  We were exceptionally worried about the fact that the U.K. remains a massive anomaly at the moment and that there have to be reforms as so many people have said to the parole laws.  This has been in the works ... I remember the former Minister for Home Affairs, she convened task groups on this and so forth and so on, and it is rather sad that we still have not reached that point.  We do have to remember there is a small group, of course, transferred to the U.K. in order that they can take part in specialist facilities there.  Whether they go voluntarily is another matter but they are there.  It is quite interesting because I have been involved for some time with one of these cases.  There is an incoming element in the sense that although some people with Jersey links are serving U.K. sentences for U.K.-based crimes, the prison here, under enormous pressure, has been good in the sense that it has allowed them to come over on short family breaks where often there has not been the possibility of keeping up family links within the U.K.  So oddly enough there have been some informal arrangements.  On that very enticing issue, because I have, as the Constable knows, worked in the U.K. prison service, on that issue of is the Jersey prison a better place, well it is better in the sense that obviously it is smaller.  A lot of people do not like being thrown in these massive, anonymous, quite dangerous institutions, where there is obviously a real issue with how you control bullying and how you control peer group pressure and all these sorts of issues.  So whether the Minister for Home Affairs is going to take a deliberate policy decision to make the Jersey prison a more unpleasant place or whether he is going to seek to encourage Mr. Clark to make English prisons uniformly more pleasant places is obviously up to him.  But I think that will pose a bit of a dilemma.  The issue was raised by the panel of more lax jurisdictions, which has been raised by some Members about people ... if they arrive there ... and we did quote the case which is slightly unrelated of the Libyan gentleman who I hope is still in safety who may recall left the Scottish prison system on what was seen as essentially, alleged, to be a political move rather than a straight inter-prison transfer so to speak.  The view of the Minister, which I have no doubt he will elaborate upon, was that this will be done under European legislation essentially, under European standards, under human right protocols, and if there is evidence that people are moving to other countries and all of a sudden some deal is engineered, which was not apparent to the sending jurisdiction, then he will have mechanisms by which he can raise objections.  It will have to be other than the very massive anomaly with the U.K.  It will have to be complained about through those mechanisms.  That is why, at the moment, there are certain jurisdictions as mentioned in our report where obviously ... because people have asked: “What about other jurisdictions where there may be Jersey prisoners, for example?”  Obviously they do not come within the ambit of this and I think the Minister for Home Affairs would want a lot of reassurances before that extension were to occur.  Indeed it is quite interesting, it is not mentioned in the report but I understand Poland is not accepting transfers at the moment because there is quite a log jam from countries like Britain in wishing to send people and the Polish system does not feel it can, at the moment, accept people.  So that is another anomaly.  The other issue that was raised was unintended consequences and the suggestion was put to the panel that if the Jersey prison slims down, and it has to be remembered with so many of these policies there is many a slip between cup and lip as these policies are implemented.  But if the prison was to slim down in the light of these quite interesting numbers that are contained on page 9 and a lot of these people were to move, what impact would this have on the programmes of the prison and Senator Shenton it would enable more rehabilitation to take place.  Well it may and it may not because it may sound a strange thing to say but there are economies of scale in offering services, so that is another interesting issue which the Minister did address.  I would like to emphasis it is something that again does not fall the cracks as massively as the U.K. issue of inconsistent parole conditions but it is the issue raised by Constable Mezbourian of inter-Crown Dependency transfers.  There are a few of these people in the system, as the Minister will acknowledge and we really have to deal with them because it is going to look quite odd if other people are starting to move and people in our sister islands, Crown Dependencies, cannot move, this is going to look very, very odd.  But we tried in our report to make this a lay person’s guide to the Minister’s law and we tried to walk him through all aspects of it and I hope that has been achieved because it is a complex law and we know the Minister has enormous skills and knowledge in law, but we did try and tell him that we are but mere lay people and we wanted to process it, and that is why I thought it was a very good exercise and we do thank him for his engagement with that exercise and we hope it has been useful to Members.

5.1.13 Deputy A.E. Jeune:

I too think this a very useful piece of legislation and I also very much appreciate the comments by the Scrutiny Panel, in particular under paragraph 9 where it says repatriation would facilitate earlier and more effective rehabilitation into their home communities, and I think that is very important.  But I have got one question, and I hope the Minister will excuse me if it is already written in here but I have not seen it; will this cover that where a person is sent to another jurisdiction to serve their sentence that that jurisdiction will allow an earlier release than had the person served it here in Jersey?  Will that person be able to return to Jersey before the actual term of the sentence, had it been here in Jersey?

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

My chairman made most of the points that I want to make, the only further thing I will say for Members is that behind this there is still a huge body of work which will have to go on, in particular the point that Deputy Lewis raised between not reciprocal health agreements but reciprocal prisoner transfer agreements.  From the hearing the main thing that came out is if we are to follow this route terms of parole, et cetera, will be subject to that jurisdiction so if they are more harsh then the prisoner will expect to be more harsh, if they are more lenient then indeed they would be more lenient but we have to ask ourselves whether we are happy with the case and I come to the point of so be it.  However one question which I failed to ask in the hearing, which has dawned on me now, is what happens perhaps in the very, very rare case where we might have a situation whereby someone who is convicted of a crime in Jersey, which may not correspond to any existing legislation in that person’s home jurisdiction, what happens in that situation?  If I could just challenge the Minister with that point.  But overall I am very supportive of this legislation.

5.1.15 Deputy F.J. Hill of St. Martin:

I would like to compliment the Minister for Home Affairs.  I will not be so kind in the next proposition but certainly what a complement on this one.  It is very much a win/win situation and one has to ask why has it taken the present Minister to bring this piece of legislation through and say congratulations to him, but this has been kicking around since 1984 and just think of all the hardship, all the costs, et cetera, to the Island for not bringing this legislation.  It sometime defies logic but I think it is very important to mention the things that Deputy Martin and Senator Le Gresley also mentioned about the unfairness of the system and I think it is very important because they are all human rights issues as well.  It did seem so unfair that so many prisoners were ... depending on where you were as to how long your sentence was and what the parole was.  So I think that is going to be an excellent way of moving forward.  I have just got one question of the Minister and that is on page 5, paragraph 8. 

[11:45]

Again, I think this is another win/win for us here in Jersey.  That is about the additional protocols and it says here that ... the protocol will now enable the Island to ... you know, where a prisoner is to be deported at the end of his sentence, that can happen.  The Deputy of St. John is mentioning about the old days when you put them on a boat and they were gone; well, that can happen now.  Also, very importantly again, where a prisoner has fled from the Island he or she can be arrested in where they have fled to and be dealt with.  Again, that is another loophole that has been closed, so well done there.  But the question I want to ask, it says, it is in italics here: “The consent of a sentenced person shall not be required to the transfer of the execution of the sentence.”  Can I just ask the Minister what form of appeal will that person have if they do not want to go?  Does the protocol just say they have to go without a right of appeal?  Maybe the Minister could inform Members of what the situation is.  Again, well done to the Minister.

5.1.16 Deputy M. Tadier:

Things certainly have changed since the days when the Deputy of St. John was an Honorary Police Officer.  I mean, you could just put somebody on the boat if they had been misbehaving and you did not really care where they ended up, and they could go on to reoffend over there.  Thankfully, the legislation that is coming forward from the Minister is much more responsible than that form of practice where, for example, somebody may have been out drinking, they may have got into an assault and that person would be put on the boat - the next boat in the morning, I think, is the phrase - while the publican who had sold him the alcohol was not put on the boat but was able to remain in Jersey to sell more alcohol and to incite more people to drink and have alcohol-fuelled violence.  I think that was alluded to by Deputy Trevor Pitman already; that in broad terms, of course, there are other pressures that the Minister and the Assembly of the Island faces with regard to alcohol and drugs, which is why a significant amount of those at the prison are there in the first place.  Just to speak in broad terms, of course, personally and as a member of the Home Affairs Scrutiny Panel, we welcome this proposition, this law, which we have been able to scrutinise effectively, I think.  In broad terms - and we have spoken to the Minister about it both informally and formally - I think we would all agree that prevention is better than cure.  We have also highlighted the fact that it would be desirable, I think, if in fact we were in a position where we had a very minimal amount of overseas prisoners or any prisoners in the first place, but particularly because we know that those who come to Jersey have no real link with Jersey insofar as many of those who come over for drug-related offences may be mules.  They often do that for economic purposes because they are not necessarily drug users themselves; they are in desperate situations where the only apparent solution that they see is to come over, smuggle drugs, often very precariously and dangerously, biologically speaking in terms of the way they sometimes do that, only to find themselves in a foreign jail.  Of course, we must remember that in those circumstances it is not simply satisfactory to tar everyone with the same brush, thinking that everybody is a hardened criminal.  Of course, this law does have an element of compassion, which I think is welcome in it.  But clearly, it would be more expedient to catch people or prevent these kind of people coming in in the first place and if that could be done perhaps by targeting resources at different ports overseas so that these individuals do not come here in the first place, it could be a significant way to invest to save; so, a small investment of Jersey resources but overseas working perhaps in a more joined-up approach with overseas customs and immigration and police, special branch, et cetera, would be perhaps a more effective way.  Because, of course, it is not simply the cost of the prison service; it is the court system and all the related costs.  As we know with recent cases such as Curtis Warren, but that is not the only one.  If we can stop these cases coming to Jersey in the first place then certainly that will be better socially and, in particular, economically.  One interesting scenario that could occur, and it is perhaps not going to be the norm, but certainly there are scenarios whereby ... and one could end up with a curious situation and I will give perhaps 2 or 3 examples, and I would like the Minister to comment on what the eventuality might be.  It revolves around offences that, in Jersey and elsewhere, may not be equally recognised as offences.  The first one, let us take for example we have a Dutch person in Jersey’s prison because he has been caught for possession of cannabis and smoking, perhaps on several occasions, which has led him to be housed at H.M.P. La Moye.  He could be repatriated to a prison in his hometown of Amsterdam and he would have to explain to other prisoners why he is there and it would be because he has been smoking cannabis in Jersey, which would not be a crime in his own town.  Similarly, a Jersey person could go to a Muslim country, I understand that this would not necessarily be the case now because it would not extend to Saudi Arabia, but in a scenario where a Jersey person ended up in a jail in Saudi Arabia and was put there, perhaps without trial, who knows, for 2 years and then some time in the future was able to be repatriated to Jersey, would Jersey’s stance be that that person should remain in prison for having committed a crime of having a few glasses of alcohol, even in his hotel room, and then only to find himself in a Jersey prison?  Of course, the underlying argument against that could be that one should always respect the laws of the land in which one is in at the time; that is of course correct.  But it is also correct, I am sure, that any reasonable thinking and fair-minded Jersey person would not want to lock somebody up in a Jersey prison for something that is of no importance to the current society in which he or she is living.  It would not be a sensible use of resources.  The implication is, of course ...

Deputy R.G. Le Hérissier:

Can I ask for a point of clarification from the speaker?  Is he assuming that we are going to make a repatriation agreement with Saudi Arabia?  There is absolutely no intention of doing so.  Secondly, could he define his understanding of the cannabis smoking laws in Holland; I thought legal smoking was confined to cafés?

Deputy M. Tadier:

I am not an expert on the smoking practices of the Netherlands, but what I do understand is that certainly that is the case; it is restricted to certain zones, but certainly there would be a greater tolerance for those found in possession of that kind of drug in the street or for personal use in larger quantities and it certainly would not end up with a prison sentence with the severity of what we have in Jersey.  The 2 are not ... there is not any parity there.  Of course, Saudi Arabia is simply used as a didactic analogy.  Of course, I could use an example that would be closer to home, which would be some countries in the E.U. that have different tolerations of what is sexually acceptable.  For example, certain countries in the E.U., of which you possibly might be dealing in the future, might still outlaw homosexual practices, which we do not in Jersey.  It would be strange if a Jersey person in one of those less liberal countries was found to be locked up in prison for a homosexual act, was then transferred back to Jersey and then put in a Jersey prison at our own expense for something that is not unacceptable in Jersey and is not criminal in Jersey because it would be completely inexpedient for that person to be put in prison.  I would like the Minister to perhaps advise what would happen in that kind of scenario where a Jersey person, let us say it is a Jersey person for argument’s sake, has been convicted of an offence which is not an offence in Jersey, would that person then be expected to finish the rest of their sentence in a Jersey prison for something which is not financially viable for them to stay in prison for at Jersey taxpayer’s expense?

The Deputy Bailiff:

Does any other Member wish to speak?  Then I call on the Minister for Home Affairs to reply.

5.1.17 Senator B.I. Le Marquand:

I will do my best; there were a lot of questions.  In the first place I am not quite mortified, but I am close to being mortified, for the fact that I did not thank the panel for their report.  [Approbation]  I am afraid I wrote my speech while on holiday and there were certain family matters that distracted me since, so I do apologise.  I did not of course see it until I returned on Monday and it was a very well written, very supportive document for which I do sincerely thank the panel.  Secondly, I have just remembered before Deputy Le Hérissier mentioned it, that I should have mentioned the Polish situation.  He is quite right and in fact the figures I quoted in terms of potential numbers did take that into account.  Poland has asked for a … I cannot remember the correct word, maybe a derogation for a period of 5 years from having to be banned by the E.U. Directive because of having so many naturals outside and therefore it may be difficult to enter into an agreement at an early date with Poland.  My next note says: “Restrictive/non-restrictive when equal” but I now do not understand my own note, so whoever asked a question in that area will have to prompt me again, I am afraid, because I cannot understand the question.  The parole system, this is a very interesting area because I thought, when I became Minister, that the Criminal Justice Policy document approved by the States of Jersey was effectively approving a move to a parole system under which people would be eligible for parole after half their sentence.  Potentially eligible, sorry, for parole after half their sentence with the period of parole being up to two-thirds of their sentence.  That is what I thought had been agreed by the States of Jersey because that was what was discussed at the consultation meetings to which I was a party when I was Magistrate.  I then discovered in fact the intention was potentially being eligible for parole after half, but with the period of parole to be right until the end of the full sentence and not for two-thirds.  I do not need to go into the reasons why my opinion of that would be a hopeless provision; simply utterly unworkable.  I do not find myself, as Minister, with a situation where previous policy had committed to something that I personally could not, under any circumstances, have agreed to.  That has been a major difficulty in relation to proceeding with variation to parole.  But in the meanwhile, we made certain adjustments to the early release arrangements that we have, which involve the potential for a prisoner being allowed to go out during the daytime for work purposes, but coming back at night time up to the last 12 months and now allow a prisoner to be released on a curfew for the last 4 months.  I quite like those provisions and that exact view is shared by my Assistant Minister.  In my discussions with probation officers they quite like those provisions because there is more of an ordered process of going from being fully a prisoner to going through a situation where you are able to go out during the day time to get work experience and so on, but still returning at night time so that issues like your use of drugs or whatever can continue to be monitored and so on to a situation of going out for the last 4 months just on a curfew.  All those are subject, of course, to the approval of the group that Senator Le Gresley used to sit on.  I quite like the system.  At the moment there are ... I do not personally propose to bring changes.  There is a secondary reason for that because of course - and this answers another question that was asked later on - there are potentially advantages to us having a different system in terms of there being a greater incentive to people from the U.K. to want to return.  That answers, in fact, somebody else’s question.  It is an area which will no doubt have to be looked at again.  There is a potential, of course, that we may find during the process of talking to other countries that they will want us to move towards a more unified system, a more consistent system, but I do not anticipate that we are going to have a problem with that at this stage, but that may eventually occur.  As I say, I am perfectly happy with the system that we have at the moment and I am not proposing changes.  The issue of international arrangements, how those would be entered into, under the law there are 2 possible ways: it is either effectively an agreement, a treaty, with the individual country, and obviously we have been looking first at Portugal/Madeira, at Poland when that is possible, but we could also be looking at other individual countries.