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European Union (Repeal and Amendment) (Jersey) Law: Law drafting instructions

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While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.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 on 19 October 2017:

MINISTERIAL DECISION REFERENCE:    MD-ER-2017-0042

DECISION SUMMARY TITLE: Law Drafting Instructions - European Union (Repeal and Amendment) (Jersey) Law 201-

DECISION SUMMARY AUTHOR:

Director External Relations

IS THE DECISION SUMMARY PUBLIC OR EXEMPT?  

Public

REPORT TITLE:     Law Drafting Instructions - European Union (Repeal and Amendment) (Jersey) Law 201-

REPORT AUTHOR OR NAME OF PERSON GIVING REPORT: 

Ministry for External Relations and Law Officers Department

IS THE REPORT PUBLIC OR EXEMPT? 

Public

DECISION AND REASON FOR THE DECISION:

The Minister for External Relations, in pursuance of Proposition P.7./2017 which was approved on 15 February 2017 by 40 votes to 3, hereby submits instructions to the Law Draftsman to draft the European Union (Repeal and Amendment) (Jersey) Law 201-.

Proposition P7./2017 recognised that the Government of the United Kingdom was likely to issue notice under Article 50 of the Treaty on European Union, and endorsed the Council of Ministers’ intention to propose the repeal of the European Union (Jersey) Law 1973, which implemented Jersey’s relationship with the European Union, which is set out in Protocol 3 to the UK Treaty of Accession.

The Law Draftsman is also instructed to provide for the repeal of the European Economic Area (Jersey) Law 1995. The Agreement on the European Economic Area signed in Oporto on 2 May 1992 was implemented in Jersey by the European Economic Area (Jersey) Law 1995. The EEA Agreement ensures that enactments relating to the EU also extend to trade with the EEA where that is appropriate. This will fall away when the UK is no longer a Member State of the European Union, and repeal of the European Economic Area (Jersey) Law 1995 is required.

It is crucial that the Government of Jersey is equipped to make all the necessary corrections to Jersey Law before the UK leaves the EU, in order to ensure an orderly transition for the Island. Accordingly, a substantial volume of secondary legislation will need to be made under the European Union (Repeal and Amendment) (Jersey) Law 201-, and consequently the Law Draftsman is also instructed to make provision for powers for the States Assembly to make relevant Regulations, and for the States to give powers to Ministers to make relevant Orders in order to achieve the orderly transition.

RESOURCE IMPLICATIONS:    There are no resource implications arising directly from this legislation. The Government of Jersey has increased resources to provide for Brexit-related work and this provision is regularly reviewed.

ACTION REQUIRED:  :  To request the Law Draftsman to draft the European Union (Repeal and Amendment) (Jersey) Law 201- on the basis of the Law Drafting Instructions provided by the Minister for External Relations.

SIGNATURE:

 

SENATOR SIR PHILIP BAILHACHE

POSITION:

 

MINISTER FOR EXTERNAL RELATIONS

 

DATE SIGNED:

 

EFFECTIVE DATE OF THE DECISION:

Hide report
European Union (Repeal and Amendment) (Jersey) Law: Law drafting instructions

 

Council of Ministers: summary of the Law Drafting Instructions for the European Union (Repeal and Amendment) (Jersey) Law 201-

 

Introduction and timetable

  1. The Council of Ministers is being asked to note the Instructions from the Ministry for External Relations to the Law Draftsman to prepare the European Union (Repeal and Amendment)(Jersey) Law 201- (the “new Law”). This paper summarises those Instructions.

 

  1. The purpose of the new Law is to effect necessary change to the principal legislation governing Jersey’s relationship with the EU arising from the UK’s exit from the EU.  These Instructions will also require the Law Draftsman to prepare a framework of powers to enable the Government of Jersey and States Assembly to:

 

  1. swiftly implement change to other domestic legislation where that is necessary or expedient as a result of Brexit; and

 

  1. convert directly applicable EU law, subject to any modifications that may be required as a result of Brexit, into domestic law.

 

  1. The Instructions have been informed by research conducted by the Law Officers’ Department in collaboration with the Department for External Relations and a number of relevant Government departments. They have also been informed by discussions with the other Crown Dependencies and the Department for Exiting the European Union, who are working on the UK’s European Union (Withdrawal) Bill.

 

  1. The proposed timetable and milestones for progressing the new Law are set out below. This timetable has been prepared with a view, if possible, to completing the passage of the new Law through the States Assembly before the election in May 2018. The timetable to achieve that objective is very challenging.
    1. Settle law drafting instructions for the new Law:  19 October 2017
    2. Initial engagement with Brexit Scrutiny Panel:  November 2017
    3. Lodge the new Law before the Assembly:    23 January 2018
    4. Debate on the new Law     6 March 2018
    5. Royal Assent approx.      April / May 2018

 

  1. There will be a substantial volume of secondary legislation which will need to be made under the new Law.  Some additional free-standing legislation will probably also be required in particular in relation to customs, trade and immigration. The nature and content of any further laws and the timetable for bringing these forward will depend in part on the outcome of negotiations between the UK and the EU. 

Essential amendments to principal EU legislation

  1. On 15 February 2017, the States Assembly approved Proposition P.7/2017 by 40 votes to 3, recognising that the Government of the United Kingdom was likely to issue a notice under Article 50 of the Treaty on European Union, and endorsing the Council of Ministers’ intention to propose the repeal of the European Union (Jersey) Law 1973 (the “1973 Law”)

 

  1. Jersey must repeal its 1973 Law because that legislation will no longer be effective once the UK and Jersey’s existing treaty relationship with the EU comes to an end. Further, the European Economic Area (Jersey) Law 1995 must also be repealed.

 

  1. The new Law will repeal the 1973 Law and 1995 Law. Some provisions of the 1973 Law are still required for the proper operation of the European Union Legislation (Implementation) (Jersey) Law 2014 (the “2014 Law”). These provisions will be imported into the 2014 Law so that, after Brexit, the 2014 Law can continue to be used to enable the States or the Minister for External Relations to give effect to provisions of EU law on a voluntarily basis where that is desirable for policy reasons.  

Converted EU law

  1. Although there is less directly applicable EU law in Jersey than in the UK, it will probably be necessary to covert some of that EU law into domestic law to ensure that there are no gaps in our law after Brexit occurs. The new Law will refer this body of law as “Converted EU Law”.

 

  1. As there is some uncertainty for all the Crown Dependencies as to the extent to which EU law is directly applicable under Protocol 3, there would be substantial difficulties in pursuing a general conversion of all directly applicable EU law into domestic law (as the UK is proposing to do). Instead, we propose that the States Assembly should be given the power, by Regulations, to prescribe the extent to which particular provisions of directly applicable EU law become Converted EU Law after Brexit.  

 

  1. This power should enable a list or a description of the directly applicable EU provisions to be set out in Regulations. Further policy consideration will be given to ensuring the Regulations capture all of the directly applicable EU law that is appropriate. The Converted EU Law is likely to be composed predominantly of matters falling within the responsibility of the Environment Department.

 

  1. Any Converted EU Law will have the same status as Regulations made by the States Assembly pursuant to Article 2 of the 2014 Law. As is the case for Regulations made pursuant to Article 2 of the 2014 Law a Jersey court or tribunal will be asked by the new Law to interpret any Converted EU Law by reference to decisions made by the Court of Justice of the European Union (whether before or after Brexit), in respect of the EU law that was converted.

Fixing deficiencies in domestic legislation and Converted EU law

  1. It is crucial that Jersey’s Government is equipped to make all the necessary corrections to Jersey law in order to ensure a smooth transition for the Island from its current relationship with the EU to its new relationship.

 

  1. The States may make Regulations and Ministers may make Orders much more quickly than Laws.  If we were to attempt to take forward the legislation programme without using secondary legislative powers then the volume of Laws required may lead to difficulties for the Government, Assembly and Privy Council, and may slow down the legislative process generally.

 

  1. There are a variety of reasons why, in a particular case, secondary legislation may be better suited than primary legislation to address a particular issue. In the context of Brexit, this may include where the Government needs to allow for the progress of negotiations, or where adjustments might need to be made to legislation at short notice, or where the level of detail that needs to be provided is not appropriate for primary legislation.

 

  1. To ensure democratic accountability for the contents of any secondary legislation, it is important that appropriate limits are placed on the extent of powers to make secondary legislation. In the new Law we propose that appropriate powers be made available to make secondary legislation only where that is necessary to address deficiencies resulting from Brexit. The power to fix deficiencies in secondary legislation should enable corrections to be made to any domestic legislation and to any aspect of Converted EU Law. The LOD, in consultation with other States departments and key stakeholders, conducted an extensive review of EU-related domestic legislation, which has enabled us to identify the types of deficiency that will arise in our domestic law as a consequence of Brexit.

 

  1. There will also be express limits on the Regulation making powers so that they may not be used to impose or increase taxation; make retrospective provision; create serious criminal offences; or interfere with human rights legislation.

 

  1. Further, to provide the Assembly with control over the secondary legislation that may be used to bring about changes to domestic and Converted EU Law to facilitate Brexit, the new Law will only contain powers to make Regulations for this purpose. However, the new Law will also make it clear that the Assembly may, in exercise of its new Regulation making powers, confer on any Minister the ability to make further provision by Order, including provision to deal with deficiencies in domestic law and Converted EU Law.

 

  1. Framing the power to fix deficiencies in this way allows us to give the Assembly powers to correct domestic law, including Converted EU law, itself but also to be pragmatic and give Ministers appropriate and limited powers to address particular issues by Order.

 

 

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