During the last sitting of the States, Senator Le Marquand had to ratify the "Draft Unlawful Public Entertainments (Jersey) Regulations", which has to be done every three years - under the 1884 Order in Council, the States can pass what is effectively a short term law for a period of up to three years without needing Privy Council Approval.
Up to 1992, the Bailiff had the customary power to control public entertainment by himself, but in 1992, the States decided that there should be clearer statutory provisions, so since that date, regulations were passed every three years, and a Bailiff's Panel was set up to decide matters instead of it falling on the shoulders of one individual.
However, Senator Le Marquand was very slow in bringing this forward, so much so that, as he said "The current Regulations will end tomorrow and if new Regulations are not passed then what will in fact happen is we will fall back on to the pre-1992 common law situation, which is obviously very unsatisfactory." He also went on to say that the regulations were very imperfect - "There has never been a precise definition of public entertainment, although this has not created a practical problem."
Senator Ben Shenton asked what appeals process existed for appeals and noted that "I do not include the Royal Court in the appeals process, because the Royal Court is out the pocket of the man on the omnibus. So there has to be a proper appeals process that is affordable to the man in the street. If the Minister could outline what affordable appeals process is in place, I would be grateful."
Deputy Daniel Wimberley asked how the system coped with the modern trend towards events that just happened spontaneously - "There is a real problem there, because in our modern days some people organise ... well, they do not organise artistic events. They have flash events. They happen. The idea of going to get permission for something that just happens is quite a problem. So that is the first issue, the definition of event and the idea that the Bailiff must agree every event in advance. There are problems with that as a concept already."
But what is entertainment? In the U.K., public entertainment has no specific definition either, but is defined by subsidiary categories - is it paid entertainment, is there a raffle, or music, and are there adequate measures for health and safety? In this respect, places need a licence if there is to be:
public dancing or music or other public entertainment of a like kind; and any entertainment which consists of, or includes, any public contest, exhibition or display of boxing, wrestling, judo, karate or any similar sport
What does not seem to be the case in the UK is that anywhere this covers speech at protest rallies, or at the end of political marches. But apparently this is the case in Jersey. As Deputy Tadier observed:
Just very quickly, something that may be has not been considered at this point is what the licenses cover, because it is not simply entertainment. Having staged a couple of demonstrations and I know other Members in the Assembly, one has to apply for an entertainments licence. Rather I should say one has to apply for permission, first of all from the Bailiff and then from the Constable of that Parish, normally the Constable of St. Helier if it is the Royal Square which is being used. I think there are a couple of issues surrounding this. First of all, if it is a demonstration it seems a nonsense that an entertainments licence be given to that, because it is not strictly entertainment, although some people might find it slightly amusing [Laughter] and it does necessitate microphones, et cetera.
The second problem is that the whole permission thing is something of a nonsense anyway, because people have the right to congregation in a democracy. They have the right to congregate, to demonstrate peacefully and that is something which should be secured and fought for at all costs, even if we do not always agree with the particular issue in question. Similarly, I have found that I have never had any problem with the Bailiff in that regard, because it is pretty much a formality, a rubber stamping, and similarly with the Constable. So this begs the question then why in this day and age should a President of an Assembly and somebody who is also a judge be put in a position where he has to make these decisions, which he cannot rightly refuse anyway.
Clearly, Deputy Rondel of St. John was taken with Deputy Wimberley's remark about "spontaneous events", and decided to reminisce about his youth, while also making the point that today's society seemed over-legislated:
I wonder if we all forget our youth. We have all been to parties, they were not called raves in those days. [Laughter] They were in bunkers, they were in tunnels, they were on the beach, you would come out of the Pav or wherever you were and you would decide to go skinny dipping or whatever it was [Members: Oh!] and there would be 50 or 60 of you on the beach and then have a party. [Laughter] Nowadays everything has to be controlled. Honestly, you need a bit of paper to do everything. The Centenier would come along and he would just ask you to move along.
Senator Sarah Ferguson also concurred, and noted that as far as she understood, smaller scale ad hoc events were largely monitored by the honorary police, and this was effective:
Yes, I totally agree with the Deputy of St. John. I do not know about the skinny dipping. [Laughter] The mind boggles. [Laughter] Have we finished with the ribald comments? I think we are also failing to distinguish between ad hoc beach parties and large events. When I was a Centenier there was a regular beach party down at St. Ouen and all that required was the permission of the Connétable. They cleared up afterwards. Any broken glass, they raked through the glass and took it away. Has that particular aspect changed? I do wonder. As I say, I understand that the Bailiff's Panel is for large events. I have not ever known them to turn an event down.
But this prompted an interjection by Senator Terry Le Main, who could clearly remember when the Bailiff had turned down an even:
I would like now to just remind Senator Ferguson that some years ago when I was the President at Fort Regent Leisure Centre, the Bailiff did turn down the Chippendales. There was a hue and cry by the women of Jersey at that time. [Laughter] In fact, I remember going to see them in the U.K. (United Kingdom), because I was rather keen [Members: Oh!] ... I was slimmer in those days and I was rather keen to make sure that the ladies of Jersey were well satisfied [Laughter] and I happened to be the only man in the audience of about 2,000 people. Eventually I managed to convince the Bailiff that we had to please the ladies of Jersey and he finally agreed on appeal.
The Attorney-General. Timothy John Le Cocq, suggested that the Royal Square demonstrations noted by Deputy Tadier didn't really come under the entertainments with those legal requirements:
I am I think slightly confused by the question, Sir, on the basis that whereas I think the Bailiff and the Connétable are consulted about demonstrations that involve the Royal Square, that is not a matter of public entertainment that is a matter of the usage of the Royal Square, which is I believe under the control of both the Bailiff and the Connétable of St. Helier. I do not think public demonstrations fall within the definition of public entertainment, but I do stand to be corrected about that. I am not aware that that is how it works in practice, however.
But, having not done his homework, he was briskly corrected by Deputy Tadier:
In the past when we have had demonstrations we get a certificate and at the bottom it says it is an entertainment licence and we have to have it with us, whether that be in the Royal Square or elsewhere. That is the reason why I am ... I would be minded to ask for a reference back. I do not know if I am allowed at this point. Because I am very uncomfortable about how this would impact on Article 11 of people's right to congregate. One should not be criminalised for something of a matter of congregation. I suspect it is simply because that should not be under the entertainments licence, but it is I believe in my experience at the moment.
Deputy De Sousa also pulled Senator Le Marquand up on bringing the matter to the States at the Eleventh Hour:
I just want to speak very briefly and say that really the Minister is at fault here. This legislation is triennial. He should have brought it forward much quicker and then we would not be in this situation now.
Deputy Tadier was going to ask for a reference back, but having noted Senator Le Marquand's point that the law would then revert to pre-1992 custom law, which no one really knew how to apply, and with events like the Battle and Flowers and Jersey Live coming up, he asked for the Senator to investigate why demonstrations were treated as "entertainment", and whether this was contrary to the right to free peaceful assembly.
Senator Le Marquand accepted Deputy Tadier's note, and said that he would check up and report back:
Yes, I am very happy to do that. My own personal view is I would be very surprised indeed if matters of demonstrations were being treated as being a public entertainment. It does not seem to me to be that that is a public entertainment at all. Indeed, I thought that normally for something to be a public entertainment there was a financial element involved, and people do not normally pay to demonstrate. I am very happy to check further into that issue and to liaise with my Scrutiny Panel on that matter.
Hitting the lighter note, and also accepting fault for letting the issue slip so late, he concluded:
The issue of demonstration I have already dealt with, it is a well made point, I cannot see that a public demonstration would be an entertainment. The point was very well made by a number of speakers including the Deputy of St. John in relation to petty regulations and I totally endorse that, I am not a lover of petty regulations, I think we have far too much regulation, far too many laws, bits of law which frankly are not enforced or cannot be enforced because we do not have the people to do that. But I would point out that this is not a modern thing, this goes back to a decision of the States in the 1700s and so this is fairly well established. In relation to the issue of skinny dipping, I am certainly not going to express a view as to whether or not skinny dipping by Members or certain individual Members would be entertaining or not.
In relation to the issue of the Minister being at fault, I think that I have to accept some fault in a corporate sort of way because I was indeed caught by surprise by this and this almost slipped through under the wire and I suddenly found myself in the situation of having to lodge something in great haste in order to prevent it lapsing and that is the truth and I freely admit it.
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