STATES OF JERSEY

OFFICIAL REPORT

WEDNESDAY, 19th JANUARY 2022

PUBLIC BUSINESS

1. Changes to the objects and purpose of the Ann Alice Rayner Fund (P.92/2021)

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

1.1.1 Senator K.L. Moore:

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

1.1.3 Deputy S.J. Pinel:

2. Future Ambulance, Fire & Rescue Headquarters: Commemorating the Service of Connétable Len Norman (P.103/2021)

2.1 Deputy G.C. Guida of St. Lawrence (The Minister for Home Affairs):

2.1.1 Deputy M.R. Le Hegarat of St. Helier:

2.1.2 Deputy G.C. Guida:

3. Draft Financial Services Commission (Amendment No. 8) (Jersey) Law 202- (P.104/2021)

3.1 Senator I.J. Gorst (The Minister for External Relations and Financial Services):

3.1.1 Deputy D. Johnson of St. Mary:

3.1.2 Deputy K.F. Morel of St. Lawrence:

Deputy J.H. Young of St. Brelade:

Mr. M.H. Temple Q.C., H.M. Attorney General:

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

3.1.4 Senator I.J. Gorst:

3.2 Senator I.J. Gorst:

4. Draft Bank (Recovery and Resolution - Amendment of Law) (Jersey) Regulations 202- (P.105/2021)

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

4.1.1 The Deputy of St. Mary:

4.1.2 The Connétable of St. Ouen:

4.2 The Connétable of St. Ouen:

5. Draft Bank (Recovery and Resolution - Commencement of Law) (Jersey) Act 202- (P.106/2021)

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

5.1.1 The Deputy of St. Mary:

5.1.2 Deputy K.F. Morel:

5.1.3 The Connétable of St. Ouen:

6. Draft Proceeds of Crime (Supervisory Bodies) (Amendment No. 2) (Jersey) Law 202- (P.109/2021)

6.1 Senator I.J. Gorst (The Minister for External Relations and Financial Services):

6.1.1 The Deputy of St. Mary:

6.1.2 Deputy G.P. Southern:

6.1.3 Senator I.J. Gorst:

6.2 Senator I.J. Gorst:

7. Draft Elections (Transitional Provisions) (Jersey) Regulations 202- (P.110/2021)

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

7.1.1 The Connétable of St. Brelade:

7.1.2 Deputy C.S. Alves:

7.2 Deputy C.S. Alves:

8. Draft Elections (Miscellaneous Amendments - Commencement) (Jersey) Act 202- (P.111/2021)

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

8.1.1 Senator I.J. Gorst:

8.1.2 Senator L.J. Farnham:

8.1.3 Deputy J.H. Young:

8.1.4 The Connétable of St. Brelade:

8.1.5 Deputy M. Tadier of St. Brelade:

8.1.6 Deputy C.F. Labey of Grouville:

8.1.7 Deputy K.F. Morel:

8.1.8 Connétable A. Jehan of St. John:

8.1.9 Connétable J. Le Bailly of St. Mary:

8.1.10 Deputy C.S. Alves:

9. Reopening of Samarès Ward (P.115/2021)

9.1 Senator S.W. Pallett:

LUNCHEON ADJOURNMENT PROPOSED

LUNCHEON ADJOURNMENT

Senator S.W. Pallett:

9.1.1 Senator S.C. Ferguson:

9.1.2 The Connétable of St. Mary:

9.1.3 Deputy I. Gardiner of St. Helier:

9.1.4 The Connétable of St. John:

9.1.5 The Deputy of St. Ouen:

9.1.6 Connétable K. Shenton-Stone of St. Martin:

9.1.7 Deputy K.F. Morel:

9.1.8 Deputy R.J. Ward:

9.1.9 Deputy S.G. Luce of St. Martin:

9.1.10 Senator L.J. Farnham:

9.1.11 Connétable S.A. Le Sueur-Rennard of St. Saviour:

9.1.12 Deputy G.P. Southern:

9.1.13 Senator K.L. Moore:

9.1.14 Deputy M. Tadier:

9.1.15 Deputy J.H. Young:

9.1.16 Senator J.A.N. Le Fondré:

9.1.17 Senator S.W. Pallett:

ADJOURNMENT

[9:30]

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

PUBLIC BUSINESS

1. Changes to the objects and purpose of the Ann Alice Rayner Fund (P.92/2021)

The Bailiff:

We continue with the order of Public Business and the first item to be dealt with are the Changes to the objects of the Ann Alice Rayner Fund, P.92, lodged by the Minister for Treasury and Resources.  I ask the Greffier to read the citation

The Assistant Greffier of the States:

The States are asked to decide whether they are of opinion − to amend the Act of the States dated 27th March 2001 concerning the Ann Alice Rayner Fund – (i) by deleting the words “or philanthropic” where they occur in paragraph (a)(2); (ii) by substituting the words “the Minister for Treasury and Resources” for the words “the States” where they occur in paragraph (a)(2); (iii) by substituting the following paragraphs for paragraphs (b)(1) to (b)(4) – “(1) The income of the fund shall be administered by 4 individuals or by the board of no fewer than 4 individuals of a single independent corporate administrator appointed by or removed by the Minister on the recommendation of the Trustee on such terms and conditions as the Minister considers appropriate.  (2) The income administrator(s) may, at its (their) absolute discretion from time to time, make grants, or loans to be secured on immovable property, on such terms and subject to such conditions as it (they) determines, out of the returns of the fund for the relief of needy persons residing in Jersey.  (3) The Minister for Treasury and Resources may from time to time propose to the States other objects and purposes of a charitable nature to be approved by the States for inclusion in the objects and purposes of the fund.”; and re-numbering the remaining paragraphs accordingly; and (iv) by substituting the words “the Minister for Treasury and Resources” for the words “the Finance and Economics Committee” throughout paragraph (b) and its sub-paragraphs.

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

May I just clarify at the beginning, although I refer to it in my opening remarks, that the first part deleting the words “or philanthropic” are not going to be part of the proposition when I propose it?

The Bailiff:

You wish to propose it without that Article?

Deputy S.J. Pinel:

Without that first one.

The Bailiff:

Let me look at that.  Yes, they are perfectly capable of being taking separately so you will not be moving that one.

Deputy S.J. Pinel:

The one that includes the words “or philanthropic:.  States Members have been informed in the comments but I thought I would make it clear from the start.

The Bailiff:

Very well, thank you.  Please continue.

Deputy S.J. Pinel:

Thank you.  On 23rd November 2021 I brought a proposition to the Assembly seeking narrow changes to the rules of the A.A. Rayner Fund, a charitable fund whose income administrators have, since 2001, been directed by the Assembly to make awards of pecuniary relief to the needy of Jersey.  The changes were driven by a notice from the Bailiff in February 2021 that the Jurats who currently act as income administrators wished to stand down in October.  P.38/2001, approved by the States Assembly, required Jurat appointments and as this option is no longer available an alternative approach is required.  A new appointment is an urgent matter because without suitable income administrators in place needy applicants to the funds cannot receive awards.  Currently there are approximately £100,000 of pending awards at a particularly difficult time.  The Treasurer of the States, as trustee, considered finding 4 non-Jurat individuals on a like-for-like basis but concluded that this would repeat many of the identified issues of the current situation, as outlined by the Bailiff in his original correspondence.  The preferred solution of the trustee, which I support, was developed after lengthy discussion with the Charity Commissioner and the Charitable Funds Oversight Board.  The intention is to appoint a registered charity for a limited term.  During this pilot period the parties would jointly evaluate the suitability of a corporate body as a longer-term appointment as the income administrator.  Hence, should the Assembly consent, my first appointment would be a registered charity, the Jersey Community Fund, the J.C.F., for an 18-month term.  In my proposition I have sought to explain the immediate advantages the appointment would bring.  These can be outlined as follows.  Firstly, the J.C.F. are a known quantity who can start immediately.  They are an experienced body with a demonstrated history of award making already acting for the Lottery Fund and Jersey Reclaim Fund, among others.  Secondly, the J.C.F. already have I.T. (information technology) infrastructure designed around their role being specific to the award of charitable money and an integrated website to support an improved application process.  Thirdly, an appointment of a body under the oversight of the Charity Commissioner improves the independent assurance of the proposed arrangements.  It should be noted that the J.C.F. are independent of the States Assembly and are not reliant on Treasury officials or administrative support, which can sometimes blur the line in arm’s length decision-making.  A further point is that a formal service legal agreement between the trustee and the J.C.F. will be put in place, which allows for a clearer and more transparent demarcation of responsibilities.  The key details of my proposition were that the word “philanthropic” would be removed from the fund’s objects so that the objects of the fund are more identifiably charitable.  That the Minister for Treasury and Resources on recommendation of the de facto trustee, the Treasurer of the States, may appoint and determinate the appointment of income administrators.  Thirdly, that such income administrators could be a corporate body, the underlying directors of which would be subject to the same conditions as the departing Jurats.  My proposition was referenced back so that Members could have more information on 2 specific points of detail.  Members asked for more information on whether the J.C.F. is permitted to make awards to individuals under its own objects and registration.  I can report that the Charity Commissioner had already confirmed in writing to the Corporate Services Scrutiny Panel that he is satisfied this proposal can operate and, indeed, his full response has been published by the panel.  However, I hope Members will allow me to explain the detail.  The appointment of a registered charity requires the approval of the Charity Commissioner on 3 aspects.  Firstly, he must be satisfied that the award objects of the funds being administered meet the public benefit test of the Charities Act.  Therefore that it is appropriate for a registered charity to do the income administration.  In other words, that the nature of the fund is charitable, providing support to the general public.  Secondly, he must be satisfied that the specific registered charity is empowered under its own objects to make the awards required by the fund.  Thirdly, he must also be satisfied that the role the registered charity undertakes is suitable in the most general sense, i.e. that it can operate with sufficient independence so that it can employ its skills and is not a mere processor under undue influence. 

[9:45]

The Charity Commissioner has considered these points and is satisfied to allow the temporary appointment of the J.C.F. for a pilot period of 18 months.  This is because he sees merit in the approach being taking.  However, he wants to be sure that such an appointment would be successful and appropriate in practice prior to giving his approval for a permanent appointment.  On the basis that he is satisfied, he will then approve any remaining changes to the objects of the J.C.F. that he may subsequently consider necessary to allow a permanent appointment, should that be desired by the trustee at that time.  I hope that Members are now reassured that the J.C.F. is indeed technically able to perform the role for the intended 18-month period.  Members should also take reassurance that the intended appointments have had a great deal of scrutiny by various relevant stakeholders.  A related point that I would like to stress is that not only can the J.C.F. make awards to individuals, it is suitable to do so.  The J.C.F. will continue the existing approach whereby the face of the A.A. Rayner Fund to applicants is the sponsor, be it a doctor, social worker, charity or body such as Citizens Advice.  This will maintain the approachability and reach of the current income administrators.  However, either directly by its own expertise or by its links to other third sector parties, the J.C.F. is better positioned to tackle the issues behind the applications.  For instance, developing a more holistic solution to an individual’s financial issues in conjunction with community savings or Citizen’s Advice, rather than simply providing finance for an immediate need.  This is in addition to the other pragmatic benefits I outlined previously in terms of access to specialist software and resources generally.  The second point of the original reference back comes back to a concern of whether there is any impact in removing the phrase “philanthropic” from the objects of the fund.  For instance, the Scrutiny Panel cited concerns from a nursing union that this could preclude service and awards being made, such as the purchase of hospital equipment.  It may be helpful at this juncture, as I said at the beginning, to remind Members that previously in P.38/2001 the objects of the fund were: “Re-establish as the provision of pecuniary relief to needy persons residing in Jersey and such other objects or purposes of a charitable or philanthropic nature, as the States may hereafter in their absolute discretion determine.”  In approving P.38/2001 the Assembly removed 2 previous objects: “For promoting the happiness and comfort of the inmate of the Poor Law Department of the General Hospital and all provision of up-to-date equipment for the treatment of patients at the said hospital.”  Hence removal of the term “philanthropic” now would not create the issues that were raised because the purchase of hospital equipment is already outside of the amended objects.  Neither would the removal have any significant impact on the ability of the Assembly to change the objects again at a later stage, if it wishes.  My reason for removing the term “philanthropic” was to better reflect the past changes in the fund’s orientation and make it clearer that its current purposes are charitable.  However, I recognise that this point did cause significant concern in the original debate and, therefore, in the interests of securing the urgently needed changes I am not going to ask the Assembly to consider part (i) of the proposition today.  Withdrawing this change will not prevent the intended appointment.  The Charity Commissioner has confirmed that his consent to allow a pilot appointment will not be withdrawn should we leave the phrase in.  Ultimately, he will take his view on the public interest test from awards made in practice over the course of the pilot, which do not need to change in nature from those made now.  I trust that the explanations I have offered give significant information about the 2 points of the reference back.  Importantly there were several other general points raised in the debate and I have sought to answer them in detail by publishing formal comments to Members in December.  These comments confirm to Members that there is no effect on trustee roles or roles under the Public Finance Law or points that may arise out of the separate office of the public trustee consultation.  I gave more detail on the significant scrutiny that the proposals have received to date and I outlined how the reform will improve public access to the fund.  It is my regret that Members were left feeling that they needed more information than was available at the time I originally tabled my proposition.  I trust Members will see that their very valid concerns have been considered as part of the significant work and consultation undertaken in the 7 months of notice, both across this fund and the parallel Greville Bathe Fund, so that the proposals are ready to be implemented.  By way of update, I should like Members to know that the Treasurer, as trustee of the larger Greville Bathe Fund, was empowered by the Royal Court to appoint the J.C.F. as income administrator to that fund and this has now been actioned.  While the trustee hopes to continue the joint income administration of the funds it became necessary to complete the appointment in advance of resolution of the AA Rayner Fund so that applications received from needy individuals over recent months could be completed prior to Christmas.  I believe Members now have all the information they need to consider and approve these changes which, in the simplest terms, allow the appointment of one set of income administrators in place of another.  I make the proposition.

The Bailiff:

Is the proposition seconded?  [Seconded]  Point of clarification, Deputy Ward, if the Minister will give way.

Deputy S.J. Pinel:

Yes, Sir.

Deputy R.J. Ward of St. Helier:

I thank the Minister for that.  I did say at the end because I know it is a pain when your speeches are interrupted.  Can I just ask when the word “philanthropic” is removed do we have a version of what this will look like because what we have is a version with that in here and I assume it is part (i) that will not be taken?  When you say “part one” you are not referring to part (1), which is in section (iii) of the report.  I am just trying to get my head round what it is going to look like now when that is removed.  I see the implication of that, you have explained that and you answered half of my question, but I just wondered whether there is a link to what this is going to look like now so we are really certain as to what it is going to look like.

The Bailiff:

Are you asking what the proposition will look like without paragraph (i) in it because that probably is entirely straightforward or are you asking what the fund instrument will look like without that word left in?

Deputy R.J. Ward:

Yes, that is probably clearer.  Because we were effectively looking at this with that word removed but I suppose we just go back to the old version of it.

Deputy S.J. Pinel:

Sir, may I clarify?

The Bailiff:

Yes, of course you can.

Deputy R.J. Ward:

Sorry, I hope I made sense, Minister, sorry.

Deputy S.J. Pinel:

The word is not going to be removed now because that was the question that was raised last time, why would we remove it?  When I mentioned at the very start it is the first Latin one of the proposition, not the part (iii), which is detailed into numerals (i), (ii) and (iii).  It is the part (1): “By deleting the words ‘or philanthropic’ where they occur in the paragraph.”  That has been removed from the proposition.

The Bailiff:

Does that assist, Deputy?

Deputy S.J. Pinel:

We are not deleting the word “philanthropic”.

Deputy R.J. Ward:

Yes, thank you, Sir.  I think I have got it right in my head now. 

The Bailiff:

I think, Deputy, if it assists you further, if one looks at the report immediately following the proposition the objects of the fund are set out under paragraph (a) and if the Minister had been moving part (i) of her proposition the words “or philanthropic” would have been removed but these are remaining in.  It is as it is written there (a)(2).

Deputy R.J. Ward:

Thank you, Sir, that helps a lot.  Thank you.

The Bailiff:

Thank you very much. 

1.1.1 Senator K.L. Moore:

The Corporate Services Panel was grateful to the Assembly for supporting its call for further clarification on the lodged proposition.  It was evident to the panel at the time that the Minister for Treasury and Resources needed to provide the Assembly with further information during the original debate and we are grateful to the Minister and others who have provided that information, and as the Minister has outlined in her speech this morning.  Looking back, the panel requested that clarification was provided on the ambiguity as to the impact of the removal of the word “philanthropic” in the proposition and how the Jersey Community Foundation, given that it cannot give to individuals can properly and effectively be the administrator of the fund.  Firstly, the panel is pleased to note that the Minister has decided not to ask the Assembly to approve the removal of the word “philanthropic” from the objects of the Ann Alice Rayner Fund at this time.  However, the panel is and remains disappointed to note that when considering the ambiguity and the removal of that word “philanthropic”, the Minister’s comments did not make reference to the panel’s recommendation to provide specifically for nurses and patients in hospital in need, as well as hospital equipment or to pass comment in relation to correspondence, which was received by States Members from the Nursing Association, advising that this fund is inaccessible to its initial intended purpose.  Although the Minister has indicated that through P.38/2001 the Assembly acknowledged that the 1952 obligations towards hospital equipment spend had, effectively, finished and that since the purpose of the fund has been to make awards to the needy, the panel has consistently advised that modernisation of hospital equipment may be needed in the future and the fund should still be open for applications in this respect, for example, the forthcoming debate on radiotherapy equipment or further need for M.R.I. (Magnetic Resonance Imaging) scanners or other such things.  On the ability for the Jersey Community Foundation to successfully administrate the fund, it has been confirmed to the panel that the Charity Commissioner is content to permit such individual awards to be made for the duration of the pilot by the Community Foundation if the proposition is approved by the Assembly today but that this cannot be a permanent position.  It is clear from the information supplied to the panel by the Charity Commissioner that this is an ancillary activity for the Jersey Community Foundation and a special agreement as any future permanent arrangement involving either the Community Foundation or another registered charity will need to ensure that it is not in conflict with its or another’s public benefit duty.  In her comments paper the Minister notes that the proposal to undertake a pilot will help to develop future plans to improve governance and administration arrangements across all charitable funds.  This appears to confirm the panel’s suggestions that P.92/2021 will set a precedent for the management of other gift funds held by Government.  The Minister has committed to provide an earlier interim update to Members after 12 months for the Ann Alice Rayner Fund in the form of a public report, which will be shaped by the Charity Commissioner and will provide his views on the suitability of a corporate income administrator as a long-term solution.  This must prioritise correlated reference points, terms and confirmation on lines of accountability and they must be clear to the Assembly.  It also remains unclear to the panel which stakeholders, other than the trustee, the Charity Commissioner, Charitable Funds Oversight Board and the Jersey Community Foundation, will be evaluating the success of the pilot scheme and this must be addressed by the Minister to inform debate.  The Minister has confirmed to the panel that the review will consider the potential for an office of the public trustee.  The model in which it may operate must be transparently communicated to the Assembly prior to change.  The panel notes that the consultation process in relation to the specific component will be forthcoming before the end of the 18-month pilot programme and would suggest that the Minister commits to providing an update on the office of the public trustee consultation as part of the 12-month interim update, which will be reported to the Assembly.  Given that the Charities (Jersey) Law was established in 2014 and the Jurats gave significant notice of their intended departure, as the Minister explained in her speech, the panel continues to find it concerning that a strategic transparent long-term solution has not been brought to the Assembly for debate today.

[10:00]

The proposition does not meet proper requirements or deal with the management of funds for charitable purpose effectively.  It provides a sticking plaster and it is evident that she has not engaged proactively with important stakeholders, which is disappointing and leaves unanswered questions.  That being said, we are content to adopt this proposition, minus Roman numeral (i) today but I guess if we were marking this work it would be could do better.

The Bailiff:

Thank you very much.  Does any other Member wish to speak on the proposition?  A question, Connétable, so there is no room for a question.  You would like to speak.

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

Sir, I wish to speak.

The Bailiff:

You would like to speak.

The Connétable of St. Brelade:

I meant to speak, Sir.  Just very briefly, referring to the final paragraph of the proposition with regard to costs, the suggestion is that: “Costs for the pilot administrators will be recharged to the funds concerned.”  It does concern me that these things can run away and I would like to see a cap on that or some indication to Members what those costs might be.  I would not wish to see the principal fund depleted by ongoing costs.

The Bailiff:

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

1.1.3 Deputy S.J. Pinel:

I thank the chair of the Scrutiny Panel for her comments and had hoped that we had answered many of the Scrutiny questions in our comments to them.  The whole idea of having a pilot scheme and reporting back after 12 months is so that we can inform the Assembly of progress, which is overseen by the Charity Commissioner of course, and also that there is still 6 months to address any problems that might have been brought forward in the review.  There will be a huge amount of oversights of the first 12 months of the administration of the Ann Alice Rayner Fund.  It is a pilot programme, it is securely overseen.  In answer to the Connétable of St. Brelade, the costs; I absolutely see where he is coming from, the Treasurer, as trustee as the accountable officer and will ensure that costs are regulated.  With that I propose the proposition.

The Bailiff:

Thank you very much.  I ask the Greffier to put a vote into the link.  While that is happening, I saw an indication from Deputy Ward that you wish to speak.  I am afraid that came in after the debate had been closed, Deputy.

Deputy R.J. Ward:

To be honest, Sir, I am having what is known as an I.T. disaster today, so I am having to reboot everything.  Let us blame it on the internet, Sir, thank you.

The Bailiff:

We will do that.  But, Deputy, if you wish to intervene and you do not think you are going to be called, when I begin to say then I close the debate you might want to interject so that we know that you want to speak.

Deputy R.J. Ward:

Okay, thank you, Sir.

The Bailiff:

Very well.  I am not encouraging that for Members in general.  I ask the Greffier to place a vote into the link and open the voting and ask Members to vote.  If Members have had the opportunity of casting their votes …

Deputy G.P. Southern of St. Helier:

Some of us have not, Sir.  May I record my vote pour?

The Bailiff:

Pour, yes, certainly.  Then I ask the Greffier to close the voting.  The proposition has been adopted.

The Assistant Greffier of the States:

Those Members voting contre are: Senator Mézec, Deputy Ward and Deputy Alves.

2. Future Ambulance, Fire & Rescue Headquarters: Commemorating the Service of Connétable Len Norman (P.103/2021)

The Bailiff:

The next item of Public Business is the Future Ambulance, Fire & Rescue Headquarters: Commemorating the Service of Connétable Len Norman, P.103, lodged by the Minister for Home Affairs and I ask the Greffier to read the proposition.

The Assistant Greffier of the States:

The States are asked to decide whether they are of opinion that the proposed future Ambulance, Fire & Rescue Headquarters, wherever it may be located, should be named in honour of the late Connétable Len Norman of St. Clement and his record of public service.

2.1 Deputy G.C. Guida of St. Lawrence (The Minister for Home Affairs):

I was extremely fortunate, having just joined the States, to have been offered the opportunity to work with 2 great men in the 2 Ministries I was most interested in.  I will not do the written vibrant obituary of Deputy John Young just yet but I would like to pay tribute once more to Len Norman, who was both a mentor and a friend.  Constable Len Norman was first elected to the States on 17th June 1983 as Deputy of St. Clement.  He was re-elected in that post 3 times and then became the Constable of St. Clement of his own Parish for 3 consecutive terms.  At the time of his passing Constable Len Norman was the longest serving Member of the Assembly.  During his time as a Member he served as an Assistant Minister for Economic Development and chaired the Social Security Committee, Housing Committee, Education Committee, the Privileges and Procedures Committee, the Harbours and Airports Committee, the Commonwealth Parliamentary Association Jersey branch and the Comité des Connétables.  When speaking to the BBC in 2021 about why he dedicated his life to politics, Len said: “I want to try to make things a little bit better for the people of St. Clement and the people of the Island.  In a small way I hope I have been able to do that.”  There is no doubt that he did exactly that, leaving a trail of improvements wherever he went, both inside and outside the States, using a clever mix of understated diplomacy and unwavering strength exactly where needed.  Nowhere was this more in evidence than when we discussed deportation orders together where he showed an equal measure of compassion and resolve, never afraid to make the tough decisions.  His keen sense of politics was legendary and very impressive to watch from close quarters.  I was only half surprised when I learnt that he had been a chess champion in his youth.  Len just loved Home Affairs.  He had accepted to leave it at reasonably short notice and without premeditation but he found an organisation that matched his style and which he was uniquely enveloped by the fight to lead.  The biggest programme he inherited was the renewal of the fire and ambulance station.  This was only an idea when he arrived and was entirely developed under his supervision.  After many consultations, surveys, experiments, reviews and many, many draft designs, we now have a certain project which is budgeted and ready to go.  I think it befitting for Len’s memory by naming this new building - not the largest, not the most gold, not the most expensive but rather the most important for Jersey’s residents - after him; Len Norman Fire & Ambulance Station.  I ask the States Members to support me in this.

The Bailiff:

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

2.1.1 Deputy M.R. Le Hegarat of St. Helier:

It is difficult for me today because I will not be supporting this proposition.  This has nothing to do with Constable Len Norman.  I had a lot of respect for him and in fact voted for him when he took the Senatorial elections.  I think he has done the Island proud and I think he has looked after his parishioners well.  However, I am not a supporter of naming buildings or places after people.  I am not a supporter of statues.  For me, this is very, very difficult because I have to stick with the principle that I feel; this is not the right decision.  I think there is maybe a better or more different way that we could honour Len Norman than naming a building after him.  It is with regret that I cannot support this proposition and it makes me very sad.

The Bailiff:

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

2.1.2 Deputy G.C. Guida:

I suppose there is nothing I can say about the intimate conviction of Deputy Le Hegarat.  I would just like to maintain the proposition, please.

The Bailiff:

Certainly.  I ask the Greffier to place a voting link into the Chat.

Connétable M. Troy of St. Clement:

Sir, Constable Troy here, I cannot get a voting link, nor can I get into the chat.

The Bailiff:

We will just wait until I open the voting and then you can indicate it.  I open the voting, ask Members to vote.  The Connétable of St. Clement, you wish to register a vote?

The Connétable of St. Clement:

Yes, I wish to register pour, please.

The Bailiff:

As a matter of a practice it would be of assistance if Members could not register their votes in the chat until after I have formally opened the voting, otherwise it is not always easy to see.  But I have noted the Connétable of St. Saviour, Deputy Maçon and the Connétable of St. Helier.  If Members have had the opportunity of casting their votes, then I ask the Greffier to close the voting.  The proposition has been adopted.

3. Draft Financial Services Commission (Amendment No. 8) (Jersey) Law 202- (P.104/2021)

The Bailiff:

The next item of Public Business is the Draft Financial Services Commission (Amendment No. 8) (Jersey) Law, P.104, lodged by the Minister for External Relations and Financial Services and I ask the Greffier to read the citation.

The Assistant Greffier of the States:

Draft Financial Services Commission (Amendment No. 8) (Jersey) Law 202-.  A law to amend further the Financial Services Commission (Jersey) Law 1998.  The States, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following law.

The Bailiff:

Deputy Le Hegarat, I have here “speak before it starts”; I am not sure what it refers to.

Deputy M.R. Le Hegarat:

I want to, Sir, declare that, potentially, this could be a conflict of interest for me.

The Bailiff:

What would be the nature of that conflict of interest then?

Deputy M.R. Le Hegarat:

My husband is a money-laundering reporting officer in a financial institution.  This law change will bring that role into the remit of key persons and, therefore, will be a possibility of civil penalties.

[10:15]

Therefore, ultimately, although this would not be of financial benefit, Sir, to me, it could, potentially, be a detriment to me.  I just wanted to raise that to ensure that I was not conflicted.

The Bailiff:

Yes, it is not a direct financial interest and I think it is almost certainly one that you would hold in common with a number of other people, although it would be difficult to say how many those people would be.  Bear with me for a moment.  Yes, you have declared the interest but you are not required to withdraw or anything like that from the debate of the proposition.

Deputy M.R. Le Hegarat:

Okay, thank you, Sir.

The Bailiff:

Thank you very much indeed.  Yes, Minister.  Sorry, we have read the citation, I have got slightly lost.

3.1 Senator I.J. Gorst (The Minister for External Relations and Financial Services):

I have got 4 pieces of legislation in this sitting and I will take this first one.  My Assistant Minister will be taking the next 2 about the Banking Resolution Authority and then I will duck in again with the Proceeds of Crime (Supervisory Bodies).  Jersey is a leading and well-regulated international finance centre and it is critical to maintain its reputation and, therefore, its prosperity through its support for the global fight against financial crime, money laundering and the financing of terrorism.  Money laundering, as we know, is the process through which criminals give the appearance of legitimacy to the proceeds of crime.  It is, unfortunately, an expanding and increasingly international phenomenon.  Current estimates by MONEYVAL of money laundered worldwide range from 500 billion dollars to 1 trillion dollars with, of course, disastrous effects on the global economy and upon the larger society.  The international community and society at large include the people of Jersey.  We are exposed to the negative effects of money laundering and terrorist financing with detrimental impacts on our economy, on the world economy and security, health and safety.  But in order to prevent these negative economic, security and social consequences as far as possible, we in Jersey’s Government have made several critical commitments to combat financial crime and illicit finance, while protecting the integrity of the international financial system from misuse.  These efforts are based on the standards developed by the F.A.T.F. (Financial Action Task Force) because it is the global money laundering and terrorist financing watchdog.  The intergovernmental body sets international standards that aim to prevent these illegal activities and the harm they cause to society.  The F.A.T.F. have developed and revised 40 recommendations, which ensure a co-ordinated global response to prevent organised crime, corruption and terrorism and more than 200 countries and jurisdictions, including us, committed to implementing the recommendations.  F.A.T.F. recommendation 35 specifically requires countries to ensure that there is a range of effective, proportionate and dissuasive criminal, civil or administrative penalties available to deal with natural or legal persons which fail to comply with anti-money laundering and countering the financing of terrorism requirements and that these penalties are applicable to financial institutions and Designated Non-Financial Businesses and Professions, referred to as D.N.F.B.P.s; for example, casinos, real estate agents, accountants, lawyers, et cetera and that these penalties are applicable to directors, as well as senior management of financial institutions and D.N.F.B.P.s.  In order to implement an effective, proportionate and dissuasive civil financial penalties regime available to the Jersey Financial Services Commission, with respect to A.M.L./C.F.T. (Anti-Money Laundering/Countering Financing of Terrorism) requirements in line with this recommendation and the national commitments, the amendments contained in this law amendment are required.  It makes several amendments to the Financial Services Commission (Jersey) Law 1998, which, as Members know, has been amended previously as well.  Under the current provisions of the J.F.S.C. (Jersey Financial Services Commission) Law, the Commission can only impose a financial penalty for contraventions of the codes of practice, whereas this amendment means that the Commission will be able to impose financial penalties for significant and material contraventions of the Money Laundering (Jersey) Order 2008.  That means, of course, that if the States approve this amendment today, then I will go and amend the Money Laundering Order as well.  This amendment looks to extend the existing civil financial penalties regime already available to the Commission to deal with natural or legal persons which fail to comply with anti-money laundering and countering the financing of terrorism requirements, and that the regime is applicable to financial institutions, as well, as I have said to you, Designated Non-Financial Businesses and Professions and to their senior management, including principal and key persons.  It was in 2015 or the Amendment No. 6 that granted the Commission power to impose civil penalties.  It is the Financial Services Commission (Financial Penalties) (Jersey) Order 2015 which sets certain parameters for the imposition of a financial penalty.  As I have said, the Order Amendment No. 2 will be required if this amendment is approved.  That Order amendment will look to increase the overall effectiveness and dissuasiveness of the regime by way of removing the existing absolute penalty caps for legal entities and use relative caps only.  Thus, any future financial penalty will be limited to a maximum of 8 per cent of the entity’s annual average turnover.  This also removes the potential disadvantage for smaller firms with regards to enforcement outcomes.  Moreover, the calculation base for financial penalties moves from the contravening entity’s relevant income to its turnover and the Order amendment, thus, also introduces a definition of turnover.  Combination of these amendments and the Order amendment will increase the overall effectiveness, proportionality and dissuasiveness of the existing civil financial penalties regime.  Furthermore, implementing both amendments will help to align the existing regime with international standards, as I have said, especially recommendation 35 and best practices was providing for fairer and more equitable enforcement action outcomes.  Both amendments have been subject to extensive consultations with the Commission and with representatives from the finance industry, including Jersey Finance.  We are content that the proposed amendments strike a pragmatic and sustainable balance between industry needs and the jurisdiction’s requirement to meet international A.M.L./C.F.T. standards in order to maintain Jersey’s reputation and, ultimately, its prosperity.  Members will be aware and I know that my Scrutiny Panel are and I am grateful for their engagement that they have provided in this regard, that we will be expecting an on-site visit by MONEYVAL in 2023 and there are a number of legislative amendments and changes which will need to be brought forward prior to that.  I beg the indulgence of the Assembly now in recognising that over the course of the coming weeks prior to the election we will have a number of financial crime improvement pieces of legislation, which will require the States consideration in the run-up to the election.  I apologise for that, I realise it is less than ideal but, equally, the timing of the visit is not determined by ourselves and we need to be prepared.  I maintain the amendment in First Reading.

The Bailiff:

Thank you very much indeed, Minister.  Is it seconded for First Reading?  [Seconded]

3.1.1 Deputy D. Johnson of St. Mary:

The Economic and International Affairs Scrutiny Panel had a briefing on this and other related instruments from the department, for which we are grateful.  Following on from that we sought clarification on a number of matters and I hope Members will have had the opportunity to have seen our comments paper on the matter.  As the Minister said, the forthcoming MONEYVAL inspection is of concern to us all and the panel, like all Members I am sure, appreciate our need to have all necessary Regulations in place on this Island.  The panel has considered the proposition, has made various comments, and I think I can no better than refer to our concluding paragraph in our comments paper, which says that we do accept the Minister’s conclusion that they strike a pragmatic and sustainable balance between industry needs and the Island’s requirements to meet those international commitments.  The panel, therefore, will be supporting the proposition and I hope other Members will do likewise.

3.1.2 Deputy K.F. Morel of St. Lawrence:

It is really to ask a question of the Minister.  While fully appreciating the motivation for this proposition is to fulfil the requirements set down by F.A.T.F. and MONEYVAL, I was wondering if the Minister, particularly in regard to the extension of civil penalties to officers, to a wider range of employees in any given company, if any thought had been given to the possibility that this will drive wage inflation within the industry, particularly within financial services but also those non-financial-related industries that fall under the Anti-Money Laundering Order.  Because naturally when somebody finds out that they now, potentially, run the risk of civil prosecution, so to speak, or of a greater likelihood of criminal prosecution, people see that as extra responsibility and require greater wages as a result.  I would be very keen to understand if the Minister has done any research in this area.

The Bailiff:

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

Deputy J.H. Young of St. Brelade:

Yes, Sir.  I noticed in the Human Rights statement at the beginning, this seems to be quite an important principal that I think Deputy Morel has touched on, where what we are doing here is extending the civil penalties into employees, rather than principals, employees as people running our financial services businesses.  Of course the issue, I have always seen money-laundering issues as a matter of criminality and, therefore, of course one is probably aware of the safeguards that exist in the event of criminal prosecutions but here we have got the imposition of civil penalties.  Would the Attorney General please, maybe he may not be able to do this easily, but just to explain basically what the safeguards are in this piece of law we are applying, which will extend civil penalties in a much broader context?  There seems to be quite an important difference between criminal punishments, as it were, and a civil penalty.

The Bailiff:

Mr. Attorney, are you able to assist immediately or would you like a little time?

Mr. M.H. Temple Q.C., H.M. Attorney General:

Sir, I think I can assist immediately.

The Bailiff:

Thank you, please do.

The Attorney General:

Civil penalties, as the Minister has rightly said, are different from any criminal prosecution.  For example, the burden of proof is a lesser burden of proof, it would be on the civil standard of balanced probabilities rather than the criminal standard of beyond reasonable doubt.  But, nevertheless, there will be safeguards for persons who are the subject of a civil penalty procedure.  The J.F.S.C. is used to dealing with civil penalties in another context and it has a publicly-published process for that regime.  Persons are entitled to the assistance of a lawyer in preparing their response to a civil penalty procedure.

[10:30]

Most importantly, there is a right of appeal from any civil penalty to the Royal Court and so that is a very important safeguard.  As the human rights notes explain, that that is sufficient in itself for the law to be compliant with the E.C.H.R. (European Convention on Human Rights).  I hope that brief explanation perhaps assists the Minister with his concerns.

Deputy J.H. Young:

Thank you, Sir, very, very clear and I am grateful for seeing that on the record. 

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

I am sure it will come as no shock to Members that I will of course be supporting my Minister in this.  But I just want to make a couple of comments to add some context of this.  As Members will know, we have been working very hard behind the scenes to ensure that we pass the MONEYVAL assessment and indeed a significant amount of money was allocated in the most recent Government Plan.  Of course our department remains committed to meeting international standards.  I think I see the outcome of not meeting this or fails the MONEYVAL assessment could have a devastating effect on our economy.  Recent research by the I.M.F. (International Monetary Fund) suggested jurisdictions which are listed by F.A.T.F. on their so-called grey list could lose on average about 7.5 per cent of their capital inflows.  It is fair to assume that for an economy, which is heavily reliant on financial services, is now looking indeed to be higher.  This is a realistic possibility, as we have seen with other countries that have not met the bar, so to speak.  Caymans was recently grey-listed by the F.A.T.F. last year and has recently been added to the list of high-risk third countries.  This is not good news for Caymans, it would make it much more difficult and costly for E.U. (European Union) institutions to invest in Cayman structures.  We are already seeing an example of investment companies leaving Cayman for this reason.  It is not just Caymans that has had this problem.  Malta was also grey-listed by F.A.T.F. in June last year and only 3 months later one of the big 4 accountancy firms published in the 17th edition of its annual Malta attractiveness survey, which measures the island’s attractiveness to foreign investors and the result was staggering.  The attracted index plummeted from 62 per cent in 2020 down to 37 per cent in 2021.  In addition we are aware of the number of businesses who have already revoked their licences in order to leave the jurisdiction.  I am not making this point to scare Members, I just want to put some context on what we are trying to do in financial services to pass the bar of the MONEYVAL forthcoming inspection, which is absolutely crucial for our Island’s prosperity and reputation.  I would urge you, along with the Minister, to support this proposition today, please.

The Bailiff:

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

3.1.4 Senator I.J. Gorst:

I will start by saying I am grateful to the Attorney General for dealing with the question from the Minister for the Environment in a clear way and of course mindful, as my Assistant Minister reminded us, that it is absolutely imperative that we are prepared, not only from a legislative point of view but also right across the authorities which are involved in ensuring that we are not used for money laundering and the financing of terrorism, that we can show that we have effective safeguards in place in action, as well as in legislation.  This we see from civil penalties previously issued that they are working, and this is a reasonable and proportionate approach to extending that provision.  We have consulted widely with industry.  We even had a Town Hall, difficult to do in these times but we did and there has been divided opinion, as one would expect.  But we have made amendments to the legislation to make sure that what is proposed is proportionate.  I come to the question from the Assistant Minister for Economic Development, Tourism, Sport and Culture and, as he knows, wage inflation for skilled employees is already a challenge right across the economy, and that is no different in financial services.  Some of the consultation responses that we had to this piece of legislation raise exactly that point, that we already are finding it difficult in our Island to retain and recruit good compliance people, good money-laundering officers.  We recognise that this will not make that situation any easier and in all likelihood will aggravate it.  But that is not sufficient reason for us to not amend our defences against using Jersey for the purposes of money laundering or financing of terrorism.  Because, as the Assistant Minister reminded us, the possibility of not passing this test, as it were, and not showing ourselves to continue to be in the very highest quartile of international finance centre would have a far more detrimental economic effect to businesses and to the future prosperity of the wider community.  The concerns that the Assistant Minister is raising are valid concerns, we are seeing those difficulties right now.  I, together with my officials, are working with Jersey Finance and right across industry to develop measures to support in this regard.  There do not appear to be any easy solutions, so it will be an issue which will be the case for the present time.  But we do need to work together to ensure in the medium term that we hope to alleviate some of these issues and that is through skills training, be that through C.Y.P.E.S. (Children, Young People, Education and Skills), working with the Jersey Financial Services Commission as well because I think they have an important role to play in upskilling right across our community.  I think there is also, of course, an element of technology that can help in the shortage of skilled staff as well.  Despite that I still fundamentally believe that this enhancement to our defences is proportionate and appropriate.  As I say, I ask Members to support this amendment in the First Reading.

The Bailiff:

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

The Deputy of St. Mary, I assume from what you said earlier your panel does not want to call this in.

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

No, Sir, we do not. 

The Bailiff:

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

3.2 Senator I.J. Gorst:

Yes, I will take the Articles en bloc.  They are straightforward, as Members have indicated.  They have a good understanding of what this amendment entails.  I will not speak to the Articles at this point but I will endeavour to answer any questions that may arise.

The Bailiff:

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

Minister, do you move the law in Third Reading?

Senator I.J. Gorst:

I do, Sir, thank you.

The Bailiff:

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

4. Draft Bank (Recovery and Resolution - Amendment of Law) (Jersey) Regulations 202- (P.105/2021)

The Bailiff:

The next item is the Draft Bank (Recovery and Resolution - Amendment of Law) (Jersey) Regulations, P.105, lodged by the same Minister and I ask the Greffier to read the citation.

The Deputy Greffier of the States:

Draft Bank (Recovery and Resolution - Amendment of Law) (Jersey) Regulations 202-.  The States make these Regulations under Article 172 of the Bank (Recovery and Resolution) (Jersey) Law 2017.

The Bailiff:

Minister, I cannot recall who you said was going to act as rapporteur.

Senator I.J. Gorst (The Minister for External Relations and Financial Services):

My Assistant Minister, Sir, the Connétable of St. Ouen, please, for this one and the next item. 

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

When the financial crisis broke in 2008, like most jurisdictions Jersey did not have a formal regime for dealing with failing banks.  Most of the actions that ensued were taken in large jurisdictions where the banks had failed, were headquartered, mostly consisting of bailouts in the U.K. (United Kingdom).  Since then Jersey, like other jurisdictions, has developed a bank resolution regime to address this gap.

[10:45]

The Jersey resolution regime provides tools needed to allow banks to fail in an orderly way, minimising the risks to their customers and Jersey taxpayers.  The Bank (Recovery and Resolution) (Jersey) Law 2017 was adopted by the States on 14th February 2017.  It was sanctioned by order of Her Majesty in Council on 3rd May 2017 and registered in the Royal Court on 12th May 2017.  The reason for the implementation of the new law is set out in detail in the report attached to P.134, which I will summarise shortly.  It establishes authority to limit the risk of bank failure with the Jersey Resolution Authority.  Should Members adopt this proposition that proposes a technical amendment to the law I will then bring forward P.106/2021, which is the Commencement Act, to bring the law into force on 31st January this year.  I will now move the specific amendment to this proposition.  However, before moving to the amendment, I think it may be helpful to explain that background to the Bank (Recovery and Resolution) (Jersey) Law.  As I said, the Commencement Act is the next item on the Order Paper after this one.  Following the financial crisis the G20 formed the Financial Stability Board, which went on to formulate and publish its key attributes, reflective resolution regimes for financial institutions.  Within this framework many jurisdictions implemented resolution regimes with the right tools for dealing with a bank in financial difficulty.  The law draws mainly from the E.U.’s (European Union) Bank Recovery and Resolution Directive and is aligned with the U.K. approach.  The law has been drafted with the aim of ensuring that Jersey is sufficiently well-equipped to be able to assist a foreign jurisdiction in respect of a resolution action being taken on a bank conducting business in Jersey and to deal with the scenario in which a bank in Jersey would fail and local powers would be needed to resolve the Jersey business of the bank in question.  The law provides the creation of the Jersey Resolution Authority, which is needed in order to carry out the various functions of a public body under the law.  The Jersey Resolution Authority will work with banks to create resolution plans outlining steps that will be taken should the bank get into difficulty.  This is based on information provided to the authority by banks and their co-ordination with third-country regulators and, in particular, the Bank of England.  In the years since the law was adopted in 2017 a number of different approaches for implementing it have been explored.  There are also a number of potential structures for the Jersey Resolution Authority, which broadly sit between operational independence and cost effectiveness.  Operational independence is a key principle for an effective Resolution Authority operating independently from the Jersey Financial Service, supervisory decisions and not accountable for any real or perceived supervisory actions that may occur in advance of a bank failure.  However, in a small jurisdiction like ours, cost effectiveness is also vital.  It is proposed to establish an independent Jersey Resolution Authority whose core operational functions include the employment of staff that takes place within the Jersey Financial Services Commission.  The internal governance, payroll, H.R. (Human Resources) and so on would all operate within the existing J.F.S.C. structure.  But with the decision-making in relation to bank resolution matters, the ultimate responsibility for the authority’s functions would sit with the authority.  This Assembly has been given notice by the Minister for External Relations and Financial Services of the intention to appoint Mike Mitchell as the chair of the authority by R.116/2021.  Subsequently, the States has been given notice of the Minister’s intention to appoint Katherine Hitchins, Monique O’Keefe and Jill Britton to be members of the authority in R.173.  Monique O’Keefe and Jill Britton are currently vice-chair and director general of the J.F.S.C. respectively.  The law currently as drafted requires a representative of the Minister to sit on the board, however, in order to preserve the independent decision-making of the authority it is proposed to remove this requirement, which will be done by a Ministerial Order.  This is in line with international norms.  It is worth noting that many jurisdictions have established their bank resolution authority within the Central Bank or a securities regulator, such as the J.F.S.C.  This is in line with the key attributes for effective resolution in the global Financial Stability Board.  In normal times the proposed model would act much like this with the J.F.S.C. sitting alongside J.F.S.C. bank supervisors.  However, in a small jurisdiction when dealing with matters as serious as a bank failure, it can affect each and every one of us and the reputation of the Island, independent decision-making is important.  Members should be assured that the cost of the authority will be funded solely by the banks and not the taxpayer.  The authority designate, under the chair designate of Mike Mitchell, have agreed a fees model, which is being consulted on publicly and responded to by the Jersey Bankers Association.  Many preparations have been taking place to establish the authority on 31st January 2022 and I should like to thank those colleagues at the J.F.S.C. and the designate members of the Jersey Resolution Authority for their efforts.  I am also grateful to Deputy Johnson’s Economic and International Affairs Scrutiny Panel for their engagement, which has been extremely helpful.  I would like to move now to the amendment specifically.  In summary, this proposition allows for a short delay to the provision of the law, which banks would not legally be able to comply with from 31st January 2022; the date the law is planned to come into force.  The issue concerned is contractual recognition of bail-in.  Bail-in is a tool developed by policy makers to provide relief to a financial institution on the verge of failing.  It requires the creditors of a bank to write down their debt, in turn reducing the risk that taxpayers’ funds will be called on to support the bank.  In a number of respects bail-in is the opposite of a taxpayer bail-out; the bank’s creditors are requested to support the bank, rather than a bail-out being requested from the taxpayer.  Article 72 of the law requires banks to contractually recognise the possibility that instruments may be converted by a bail-in in their legal agreement with investments.  As the majority of banks are part of international groups, headquartered in large jurisdictions with sophisticated resolution net frameworks, they will have, to a significant extent, apply it with the principle of the Article.  However, to fully comply they need to have worked with the Resolution Authority to agree the exact requirements that should be reflected in those legal contracts.  As such, where Article 72 has come into force at the same time as the rest of the law, banks would immediately find themselves in breach of the strict requirements of the Article through no fault of their own.  This proposition, therefore, proposes to amend Article 72 so that it can be brought into force at a later date; at a date later than the date when the law comes into force.  This date would be set by order of the Minister for External Relations and Financial Services.  This order and the accompanying date will be developed on the advice of the Jersey Resolution Authority, having worked with each bank in Jersey.  Notice would be given to the Jersey Bankers Association and this Assembly in the usual manner.  I move the principles.

The Bailiff:

Thank you very much, Connétable.  Are the principles seconded?  [Seconded] 

4.1.1 The Deputy of St. Mary:

Just to confirm, as the Assistant Minister said, that we have engaged with his department on this matter.  I do not think we will add very much to what has already been said and we support the proposition.

Deputy K.F. Morel:

I would just be grateful if the Assistant Minister could … I apologise, I am speaking ahead of myself.  Sorry, Sir, I withdraw my request to speak.

The Bailiff:

All right.  Does any other Member wish to speak on the principles?  If no other Member wishes to speak on the principles, then I call upon the Connétable of St. Ouen to respond.

4.1.2 The Connétable of St. Ouen:

I would just like to thank Deputy Johnson and his panel for their engagement on this because, as always, it has been very helpful and I look forward to hearing Deputy Morel’s question as and when he asks it, Sir, so I ask for the appel please.

The Bailiff:

Yes, Connétable of St. Ouen, there is no such person as Deputy Johnson.  There is the Deputy of St. Mary.

The Connétable of St. Ouen:

I apologise, Sir.

The Bailiff:

I ask the Greffier to place a vote into the link.  We appear to be hearing conversations going on that are nothing to do with the Assembly.  Could people please check that they do not have their microphones turned on when other things are going on around them?  Thank you.  I open the voting and ask Members to vote.  If Members have had the opportunity of casting their votes, then I ask the Greffier to close the voting.  The principles have been adopted.

Deputy of St. Mary, I assume that, from what you said, your panel does not wish to call this in.

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

That is correct, Sir.  We do not, thank you.

The Bailiff:

Do you wish to deal with the matter in Second Reading then, Connétable?

4.2 The Connétable of St. Ouen:

Yes, please, Sir.  There are only 2 Regulations and I would be grateful if the Assembly will take them en bloc please, Sir.

The Bailiff:

Do you wish to speak to them or do you wish to just answer questions?

The Connétable of St. Ouen:

No, I am very happy just to answer questions after the debate, Sir.

The Bailiff:

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

Do you move the Regulations in Third Reading?

The Connétable of St. Ouen:

Yes, Sir.  I do.

The Bailiff:

Are they seconded for Third Reading?  [Seconded]  Does any Member wish to speak in Third Reading?  If no Member wishes to speak in Third Reading, then I close the debate and ask the Greffier to place a vote into the link which will happen very shortly.  I open the voting and I ask Members to vote.  I have already recorded the vote of the Connétable of St. Saviour.  If Members have had the opportunity of casting their votes, then I ask the Greffier to close the voting. 

[11:00]

The Regulations have been adopted in Third Reading. 

5. Draft Bank (Recovery and Resolution - Commencement of Law) (Jersey) Act 202- (P.106/2021)

The Bailiff:

Very well, the next matter is the Draft Bank (Recovery and Resolution - Commencement of Law) (Jersey) Act 202-, (P.106/2021), lodged by the same Minister and I ask the Greffier to read the citation.

The Deputy Greffier of the States:

Draft Bank (Recovery and Resolution - Commencement of Law) (Jersey) Act 202-.  The States make this Act under Article 178 of the Draft Bank (Recovery and Resolution (Jersey) Law 2017.

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

I should like to thank Members for their support of P.105 and I would like to move the Commencement Act for the Bank (Recovery and Resolution (Jersey) Law 2017.  As I have already outlined in the background to this law in the previous debate, I will very briefly summarise the purpose of the law here.  The law provides a framework for dealing with banks who fail or are likely to fail and provides that, in more normal times, plans are in place and co-ordinated internationally to deal with that risk.  This is a core international standard for a modern banking centre following a financial crisis.  In order to achieve this, the law provides for the creation of a Jersey Resolution Authority.  The Jersey Resolution Authority will work with banks to create a resolution plan outlining the steps that will be taken should a bank get into difficulty.  This is based on information provided to the authority by the banks and in co-ordination with third party regulators particularly, in our case, the Bank of England.  I have already discussed the different potential approaches to instructing the authority and these are discussed in the report for this proposition.  I hope Members will agree that having an independent authority is a key to preserving clear independent decision-making should, touch wood, the authority ever have to resolve a bank.  Equally, in keeping with its activities in proportion to our Island is vital as the J.F.S.C.  Before making the proposition, I would like to reiterate my thanks to those colleagues in Jersey Financial Services, designated members of the Resolution Authority, for their efforts in getting the authority up and running from 31st January.  I am really grateful to the Deputy of St. Mary’s Economic International Affairs Scrutiny Panel for their engagement.  I promised Members a brief summary.  I have already discussed the background of the law in the previous proposition.  As such, should Members agree, I would like to make this proposition.

The Bailiff:

Thank you very much.  Is the proposition seconded?  [Seconded]  Does any Member wish to speak on the proposition? 

5.1.1 The Deputy of St. Mary:

Very briefly, Sir.  I apologise for not having given my confirmation when speaking on the previous proposition.  Likewise, Sir, we support this proposition for the same reasons.

5.1.2 Deputy K.F. Morel:

I would be really grateful if the Assistant Minister could explain a bit more about how the Resolution Authority will maintain its independence given that it is being embedded within the J.F.S.C.  In his report he says himself that if it is independent, the authority can act independently without this judgment being blurred or being seen to be blurred by the actions of any other body.  The trouble is that he is embedding this within the J.F.S.C.  That is another body and obviously most of us most of the time believe the J.F.S.C. is acting in the interests of the Island absolutely but there could be differences of opinion there and this much smaller authority is, in my view, at risk of having its judgment blurred or being seen to be blurred by the actions of another body.  That could happen.  While I appreciate all the reasons of cost effectiveness, I would really appreciate to have a greater level of detail and understanding of how that independence and independence from being influenced will be maintained. 

The Bailiff:

Thank you, Deputy.  Does any Member wish to speak on the proposition?  If no other Member wishes to speak on the proposition, then I close the debate and call upon the Connétable of St. Ouen to respond.

5.1.3 The Connétable of St. Ouen:

I thank the Deputy for this question and I think, on the face of it, it is a perfectly reasonable point to make but it is quite clear to me, and I am sure it is quite clear to the chair of the Resolution Authority, that they are the authority in matters of bank resolution and whereas they will be assisted by the Jersey Financial Services Commission and have 2 senior officials on the board, it is quite clear to them that the decisions they make will be their own decisions and they will not be influenced by any regulatory concerns.  They will also have in their possession information which the regulator may or may not have or may not have in an up-to-date format but I think certainly from my perspective, having worked with the regulator as a managing director and I am aware of the information they collect, the bank resolution authority will be using and collecting different information and will effectively be making independent decisions which are not entirely based on regulatory considerations.  However, they will of course be relying on assistance from the regulator who, as I am sure the Deputy knows, plays a crucial role in regulating banks at the moment,.  But the Resolution Authority’s remit is much wider than regulator considerations and I am entirely satisfied that they will make independent decisions but they will of course be co-ordinating those decisions and taking advice from the regulator as they feel is appropriate, but it is a separate board and they have separate responsibilities and I am sure they will discharge those in the way that they have to.  On that basis, I make the proposition.

The Bailiff:

Very well.  I ask the Greffier to place the voting link into the chat.  I open the voting and ask Members to vote.  If Members have had the opportunity of casting their votes, then I ask the Greffier to close the voting.  The proposition has been adopted.

6. Draft Proceeds of Crime (Supervisory Bodies) (Amendment No. 2) (Jersey) Law 202- (P.109/2021)

The Bailiff:

The next item is the Draft Proceeds of Crime (Supervisory Bodies) (Amendment No. 2) (Jersey) Law, P.109, lodged by the Minister for External Relations and Financial Services and I ask the Greffier to read the citation.

The Deputy Greffier of the States:

The Draft Proceeds of Crime (Supervisory Bodies) (Amendment No. 2) (Jersey) Law 202-.  A law to further amend the Proceeds of Crime (Supervisory Bodies) (Jersey) Law 2008.  The States, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following law.

6.1 Senator I.J. Gorst (The Minister for External Relations and Financial Services):

This is another tidying up, as it were, rather than an extension piece of legislation in light of ensuring that we meet the F.A.T.F. 28 Regulation and supervision of D.N.F.B.P.s and that requires that the A.M.L./C.F.T. supervisor, and of course that is the Jersey Financial Services Commissioner, take the necessary measures to prevent criminals or their associates from holding or being the beneficial owner of a significant or controlling interest or holding a management function in a D.N.F.B.P.  This law, if adopted, will enable the J.F.S.C. to perform criminality checks for individuals within D.N.F.B.P.s and prevent criminals who act in one of the aforementioned functions where necessary.

Deputy G.P. Southern:

Sir, if I may, can we have this without the acronyms because I do not understand half of what was said?

The Bailiff:

I am sorry, I think if you want to ask the Minister to give way for a point of clarification, you can then ask him to clarify the acronyms, but you cannot just interject.

Deputy G.P. Southern:

Would the Minister give way, Sir?

The Bailiff:

Would you give way for a point of clarification, Minister?

Senator I.J. Gorst:

Indeed, I will, Sir, if that is what the Deputy would like.  Yes, thank you, Sir.

The Bailiff:

Deputy, what are you seeking?

Deputy G.P. Southern:

I am seeking that the acronyms are taken out of that statement and the full words pronounced so that we can stand a chance of understanding what this is doing.

The Bailiff:

Are you able to do that, Minister, to effectively clarify the statement by dropping the reference to the abbreviations and the acronyms and giving the titles of these things in full because possibly Members are not able to follow it as easily as they otherwise would do?

Senator I.J. Gorst:

Yes, I am, Sir.  If the Deputy recalls, this was part of the previous proposition and I used the full terminology on at least 2 occasions and then I reverted to the initials.  Perhaps then it might help Members if now, in clarifying the point for the Deputy, I do the same again if that would meet with his approval.  It is Designated Non-Financial Businesses and Professions.  Of course, that, as Members know, is lawyers, accountants, estate agents and high value dealers.  I hope that that deals with the clarification for the Deputy for the second time.  Thank you.  The reality is that this already largely happens and that the J.F.S.C. do carry out these checks in the vast majority of cases, as I understand it.  What this piece of legislation does is create and ensure that there is a level playing field and it puts into legislation the requirement to do so.  Therefore, enabling us to show in legislation that we meet the requirements of recommendation 28 and, with that, I ask for the support of Members in the First Reading. 

The Bailiff:

Is the matter seconded for First Reading?  [Seconded]  I note in the chat, Senator Moore, you wish to indicate a declaration of interest.

Senator K.L. Moore:

That is right, Sir, yes.  My husband is a lawyer and therefore would be captured by this.

The Bailiff: