The main issue for the March States Meeting is likely to be the decision on whether or not to commence the Population Management law, with challenges to the new regime having started to emerge over the past few weeks. It will be a lively debate, with strong feelings on all sides, and will be a challenge for the new States as it comes to grips with a complex regime that was designed by previous Assemblies.
Billet d’Etat VII – 29 March 2017 (read it online here)
Part One: Elections and Appointments
The Police Complaints Commission is an independent body which is responsible for overseeing the way that serious complaints against the Police are investigated. We debated its latest annual report in June 2016 (at which time we were assured by the President of Home Affairs that a review of the legislation governing the Commission was underway, and was being treated as a priority by her Committee).
On this occasion, we are simply being asked to endorse the re-appointment of Alison Quinn as a member of the Police Complaints Commission, as her four-year term came to an end at the start of February 2017.
Guernsey Post is a States’ Trading Company – it is independently managed by its own Board of Directors, but it is owned by and accountable to the States, through the States Trading Supervisory Board. We are being asked to approve the appointment of Richard Digard as a non-executive director, following the retirement of one of the current directors. The appointment is endorsed by the States Trading Supervisory Board, but it should be noted that the open recruitment process was carried out directly by Guernsey Post.
The Guernsey Financial Services Commission is the regulatory body responsible for oversight of Guernsey’s financial services sector. The Commission is seeking to appoint two new Commissioners, John Aspden and Philip Middleton, to replace one retiring member and to ensure continuity ahead of other retirements in the near future. According to Schedule 1 of the Financial Services Commission (Bailiwick of Guernsey) Law, 1987, the Commission must have a minimum of five members, but there is no maximum specified.
The nominees were recruited through an open process which included interviews with senior representatives of Policy and Resources, Economic Development and the Commission itself.
The Planning Panel is the independent body which is responsible for hearing appeals against planning decisions made by the Development and Planning Authority. Its current Chair is stepping down, and the States is being asked to approve the appointment of David Harry, who is an existing member of the Panel, as the new Chair. This would appear to leave the Panel short of one member (it is supposed to have six), so we will presumably be asked by Environment & Infrastructure to approve a further appointment in due course.
The Guernsey Banking Deposit Compensation Scheme exists to provide some protection to people who make deposits with Guernsey-licensed banks. The Board which oversees the scheme is independent of the States, but its members are appointed by the Committee for Economic Development. This item informs the States that John Lee has been appointed as the Chair of the Board. It is laid before the States for information: the States do not need to approve his appointment, but have the power to annul it if necessary.
Part Two: Legislation Laid Before the States
The items in this section are statutory instruments (orders and regulations) which are agreed and put into action by individual Committees of the States, in line with their powers and duties. The States do not have to approve these (they are in force from the moment the relevant Committee decides) but we do have the power to annul a statutory instrument if we don’t agree with it. This would be quite an unusual move. There won’t be any debate about these items unless there is a motion to annul one of them.
Part Three: Legislation for Approval
In January 2016, the States agreed to streamline the number of “use classes” specified under the Land Planning and Development (Guernsey) Law, 2005. A building or area of land can only be used for certain purposes, which are determined based on which “use class” it belongs to. If its owner wants to use it for purposes which fall outside that “use class”, this is known as a material change of use, and requires the owner to seek planning permission. There will be 27 “use classes” in future, opposed to the current 44, which should result in fewer changes requiring planning permission. The definition of each “use class” can be read in Schedule 1 (pages 20 to 28).
The debate on the Island Development Plan, last October, was made more complicated by the fact that the plan was delivered by the Development & Planning Authority, but had to be laid before the States by the Committee for Environment & Infrastructure. The States agreed an amendment which changed this so that, in future, the Development & Planning Authority would have the sole responsibility to bring forward the IDP. This ordinance makes the necessary changes to the Law to permit this.
This Ordinance brings into force the Population Management (Guernsey) Law, 2016. If approved, it will put an end to the current Housing Control regime, and replace it with a Population Management regime that determines people’s right to live in Guernsey based on a number of factors including local connection (or ‘birth right’), length of residence, and employment (with a series of Short-, Medium- and Long-term employment permits replacing the current system of housing licences).
As the Population Management regime marks a major change for Guernsey, there has been a long run-up period, with extensive training and advice offered to businesses and individuals. Comprehensive information is available online at gov.gg/populationmanagement. However, the Law is complex and, inevitably, people are still coming to terms with how it will affect them. This has led to a lot of public concern about the Law in the past few weeks, and it is likely to be a lively debate in the States.
Certain elements of the Law have come in for particular criticism, with Deputies Peter Roffey and Matt Fallaize bringing an amendment to direct the Committee for Home Affairs to look again at the ‘birth right’ aspects of the Law, which determine who will have “Permanent Resident” status from birth and who will not. If the amendment is approved, the Law will not change immediately, but the Committee will have to report back with fresh proposals within a year.
Similarly, Deputy Roffey and Alderney Representative Louis Jean are bringing an amendment directing the Committee to revisit its policies in respect of Alderney and Sark children who want to relocate to Guernsey to live, study or work.
It seems likely that the new regime will be approved by the States, although the vote may be tight. It is inevitable that some parts of the Law will not work in practice as we had hoped, and the States will need to be flexible enough to adjust it – especially in the light of changing international circumstances, including Brexit.
For my part, I believe a population management regime is, fundamentally, unnecessary. I will set out my reasons in the debate but, in brief, I think it is at best a sledgehammer to crack a nut. However, we are not deciding to switch on a population management regime where previously we had none – we are deciding whether the current system of housing control ought to be replaced by the new system of population management. Instinctively, I would vote against the Law as a matter of principle; but I cannot do that if, in my heart, I believe that Guernsey will be better off if we approve it this week than if we do not. I am therefore likely, however reluctantly, to vote for the Law; but it will be a close call, and a decision that may remain in the balance right up until the President replies to the debate.
Last December, the States agreed how certain exceptional circumstances would count towards “qualifying periods” – the length of time that people have to spend in the island before gaining long-term rights to stay. This Ordinance amends the Population Management (Guernsey) Law, 2016 to reflect those decisions.
It means that children in fostering and pre-adoption placements, including children placed off-island by HSC, will have that time counted towards their qualifying period. Similarly, people who are receiving medical treatment off-island (who would otherwise be resident here) will have that period of time counted.
On the other hand, young people from the other islands of the Bailiwick who are here as students during term-time will not have that period counted. Time spent in prison will not count towards a person’s qualifying period, but people who are detained before trial and then not convicted will have the option to decide whether or not they want that time to count towards their qualifying period.
This Ordinance amends Section 6 of the Population Management (Guernsey) Law, 2016, which contains the rules determining the residency status of people who have already been living in Guernsey for some time when the new regime commences. This amendment explains who can become a Permanent Resident – that is, someone who can live anywhere (in Local or Open Market housing) as a householder (that is, with the right to accommodate their family) and who will not lose their residency rights if they leave the island for any length of time. The following people will be classed as Permanent Residents when the new Law comes into effect in April:
- Any child under 8 years old who was born here and has lived here since birth, and who has at least one parent and one grandparent (on the same side of the family) who were born here.
- Anyone who was born here, who has at least one parent who is a Permanent Resident, and who has lived here for at least eight years (on aggregate – this means any separate blocks of time spent here are added together) in an eighteen year period.*
- Anyone who started living here as a child, who has at least one parent who is a Guernsey-born Permanent Resident, and who has lived here for at least eight years (on aggregate) in an eighteen year period.*
- Anyone who was born here to a parent who was ordinarily resident here, and who lives here for at least 14 years (on aggregate) in a 24-year period.*
- Anyone who started living here as a child, and who lives here for at least 14 years (on aggregate) in a 24-year period.*
- Anyone who is married to a Permanent Resident, who lives with them for at least 10 years (with specific provisions for widows and widowers).*
- People who are qualified residents under the old Housing Control law.
*People who haven’t yet completed their eight-, ten- or 14- year qualifying period, but who are in the process of doing so, will be classed as Permanent Residents once they have done so. The clock is not re-set by the new Law.
It also amends Section 83 of the Law to clarify the rules in relation to people who spend time abroad because their partner is in the Armed Forces, adding a paragraph to make it clear that such people would be treated as if they had been resident in Local Market accommodation during that time, if they would otherwise be entitled to live in the Local Market.
Following the States’ decision earlier this month, this ordinance requires the Open Market Housing Register to be held in electronic format and specifies the information to be kept on it. It also requires Open Market property owners to notify the Committee for Environment and Infrastructure if they intend to make alterations to their property. We were advised, in the course of the last debate, that this was intended to protect owners’ property rights, by ensuring they could be properly informed if any planned changes would affect the Open Market status of their property.
This Ordinance commences the Open Market Housing Register (Guernsey) Law, 2016, which maintains the Open Market housing register in four parts (A to D). It allows the States to set a cap on the number of properties in Part D of the register, and it contains general rules as to how properties can be added to or deleted from the register; how the demolition and rebuilding of a house, or other alterations to property, are treated for the purpose of the register; and how properties can (or must) be transferred between different parts of the register.
In keeping with the Open Market Housing Register (Guernsey) Law, 2016, this Ordinance sets the cap on the number of properties in Part D of the register as 205.
In 2011, the States agreed to introduce image rights legislation in Guernsey, intended as an innovative way of protecting intellectual property. The Image Rights Register has been running through the Intellectual Property Office since late 2012. This ordinance will give powers to the Image Rights Registrar to create codes of practice in respect of image rights, and to require registered agents to provide the Registrar with information relevant to any of the standards set by such codes of practice.
Part Four: Other Business
The Committee for Economic Development (and its predecessor, Commerce and Employment) has been consulting for some time on the need to update Guernsey’s legal framework for insolvency (companies and other legal entities) and bankruptcy (individuals). These proposals relate to corporate insolvency (companies) only, and will require amendments to the Companies (Guernsey) Law, 2008. According to the policy letter, proposals relating to the insolvency framework for other legal entities (such as limited partnerships) will be brought forward separately; as will proposals on personal bankruptcy (according to Commerce & Employment’s consultation summary last February).
The aim of this policy letter is to establish clearer rules and procedures for the way that the administration and liquidation of companies are handled, with the intention of increasing certainty and predictability, and improving creditor protection.