Harbours (Administration) (Amendment No.7) (Jersey) Law 200-

Information about the publication of Ministerial Decisions

A formal published “Ministerial Decision” is required as a record of the decision of a Minister (or an Assistant Minister where they have delegated authority) as they exercise their responsibilities and powers.

Ministers are elected by the States Assembly and have legal responsibilities and powers as “corporation sole” under the States of Jersey Law 2005 by virtue of their office and in their areas of responsibility, including entering into agreements, and under any legislation conferring on them powers.

An accurate record of “Ministerial Decisions” is vital to effective governance, including:

demonstrating that good governance, and clear lines of accountability and authority, are in place around decisions-making – including the reasons and basis on which a decision is made, and the action required to implement a decision
providing a record of decisions and actions that will be available for examination by States Members, and Panels and Committees of the States Assembly; the public, organisations, and the media; and as a historical record and point of reference for the conduct of public affairs

Ministers are individually accountable to the States Assembly, including for the actions of the departments and agencies which discharge their responsibilities.

The Freedom of Information Law (Jersey) Law 2011 is used as a guide when determining what information is be published. While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.

A decision made (16.10.07) to lodge the Harbours (Administration) (Amendment NO. 7) (Jersey) Law 200-.

Decision Reference: MD-E-2007-0198
Decision Summary Title :	Amendment to Harbours (Administration) (Jersey) Law 1961		Date of Decision Summary:
Decision Summary Author:	Piers Baker – Maritime Compliance Manager		Decision Summary: Public or Exempt? (State clauses from Code of Practice booklet)	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:	n/a
Written Report Title :	Harbours (Administration) (Amendment No. 7) (Jersey) Law 200-		Date of Written Report:
Written Report Author:	Piers Baker		Written Report : Public or Exempt? (State clauses from Code of Practice booklet)	Public
Subject: Amendment to Harbours (Administration) Law in relation to Ramp Permit Legislation and other matters.
Decision(s): To lodge au Greffe the Harbours (Administration) (Amendment No. 7) (Jersey) Law 200-
Reason(s) for Decision: The drafting is now complete. These changes are necessary so that the Harbours (Administration) (Jersey) Law may be used more effectively for the proper management of the port, safety in the Island’s territorial waters and, where appropriate, control of commercial ship access. Without the amendments a replacement for the current Ramp Permit Regulations is not possible.
Resource Implications: There are no new financial, property, ICT or human resources issues arising.
Action required: Following the Ministerial Decision, the draft Law will be lodged for debate.
Signature:		Position:
Date Signed:		Date of Decision (If different from Date Signed):

Harbours (Administration) (Amendment No.7) (Jersey) Law 200-

MD-E-2007-0198

Harbours (Administration) (Amendment No. 7) (Jersey) Law 200-

REPORT

The States are asked to consider and if appropriate, approve these amendments so that the Harbours (Administration) (Jersey) Law may be used more effectively for the proper management of the port, the Island’s territorial waters and, where appropriate, to control commercial ship access.

Background

The current Law is used in two discrete areas of port, shipping and small boat management. Firstly the Harbours (Jersey) Regulations 1962 ensure the effective and safe administration of the harbours themselves and they are key in controlling the movement of commercial ships. Secondly the Boat and Surf-riding (Control) (Jersey) Regulations 1969 provide a basis for the management of small craft operating in inshore waters.

A small but significant possible fault in the existing Law concerning the definition of territorial waters came to light that affects the interpretation of both these sets of Regulations. Other minor changes are also sought to improve the working of specific boat and surf-riding controls.

As Members will know, helping to ensure the Island has reliable, frequent and affordable ferry services is a crucial area of States policy. Yet, the Law limits the States to making Regulations for the issue of permits that relate solely to the control of the ferry ramps for vehicles. That power needs to be widened to be effective.

Furthermore, the advice is that conditions attached to ramp permits must at the moment be quite narrowly drafted and cannot cover all the matters that the States may wish regarding good passenger care. Broad policy issues which relate to the socio-economic needs of the Island rather than day-to-day port management alone are also believed to be outside the ambit of the current Law. To date these matters have been the subject of somewhat unsatisfactory Service Level Agreements.

The changes thus strengthen the Law in authorising Regulations that control the provision of ferry and other services more generally.

The Individual Amendments

Article 2 The current Long Title reads, ‘A Law with regard to the policing, control and administration of the harbours of Jersey.’ The amendment changes this so that in the first place only the term ‘administration’ is used, which of course still includes policing and control. Secondly, the term ‘territorial waters’ is added. This then reiterates what is already stated in other articles of the Law. Indeed, much of the subordinate legislation over the last forty years has been directed at craft in inshore waters, rather than narrowly within a harbour or tidal waters and this change makes that intent explicit.

Article 3 It is envisaged that new Regulations replacing the current boat and surf-riding ones will remove narrow fixed restrictions on when and where people may surf as well as improve beach safety and boat registration. The insertion of the definition for ‘publish’ authorises effective publication of any necessary restrictions or administrative controls through modern methods such as the Jersey Harbours website instead of stipulating them in the legislation.

The new definition of territorial waters ensures that there is no ‘grey area’ in which it might be argued that tidal waters are not controlled. Drying harbours or tidal bays could otherwise have been excluded from the legislation.

Article 4 This amendment adopts the same ‘less is more’ approach as used in Article 2. It replaces ‘policing, operational control and safety’ with the single word ‘administration.’ In so doing it complements the change in the long title.

Article 5

4 Regulations – There are no substantive changes here and although structurally the text is laid our differently from the current Law, the same powers are granted the States as in the existing article 4, paragraphs (1), (4) and (5).

4A Use of facilities and provision of services – This new article replaces the narrow provisions relating to ramp permits that are currently to be found in article 4 paragraphs (2) and (3). It allows the States to make Regulations restricting the use of any facility in, or the provision of services in or from, the harbours and territorial waters. It removes the limitation of only being able to issue permits for loading or unloading vehicles using ferry ramps. This is particularly important and reduces the danger of someone arguing that issuing a permit to use a facility for a particular ferry service is outside the ambit of the Law. The article also allows for a tender process to be used should the need arise.

The States will shortly be presented with the opportunity to consider the Regulations specific to the issue of permits. These are being drafted with a view to ensure effective management of the port by the Harbour Master on the one hand and proper policy oversight by the Minister and the States on the other.

Article 6 This article consolidates the existing articles 5 and 6 with one small change: the phrase in the Law has been removed that hypothecated half the fines income (such as that derived from parking offences) to maintaining parish harbours. Article 6(2) currently reads: “one half of that fine shall be awarded for the benefit of the parish in which the offence was committed and the other half shall be awarded for the benefit of the annual income of the States and applied towards the cost of maintaining any harbour in that parish”.

In practice the maintenance of harbours is not financed in this way. So in removing this we follow the intent of article 3(2) of the Public Finance Law 2005 which requires that “Except as otherwise provided by this or any other enactment – (a) all money received by or on behalf of the States shall be credited to the consolidated fund …”

Article 7 Having dealt with the application of fines in the consolidated article this repeals the now superfluous article 6. Article 7 also falls as there are no Regulations in force that are relevant.Penalties

Under the existing article 4 paragraph (4), Regulations may provide for offences and penalties. The amendment repeats this provision in the proposed new article 4 (2)(c) and 4A (5).

Consultation

Extensive consultation has taken place internally with Jersey Harbours and Law Officers. Consultation with affected parties is planned when the draft Regulations are ready. Indeed, regarding changes being made to reduce the red tape in boat and surf-riding regulation, Jersey Harbours is to go out to consultation very shortly.

These amendments are concerned with ensuring the States have the power to make appropriate and effective Regulations for the administration of the harbour and local waters. They clarify and improve the scope under which Regulations can be made in future but they do not, by themselves, go into the detail. It is that detail that will have particular relevance for port operators, boat owners and beach users. Appropriate consultation on these matters will take place in due course.

Resources Implications

There are no financial, manpower, property, ICT or other implications for the States of Jersey.

Human Rights Compliance

In accordance with the provisions of Article 16 of the Human Rights (Jersey) Law 2000, the Minister for Economic Development has made the following statement –

“In the view of the Minister for Economic Development the provisions of the Draft Harbours (Administration) (Amendment No. 7) (Jersey) Law 200- are compatible with the Convention Rights”.

END