Partner Elaine Gray (pictured), Associate Tim Molton and Paralegal Rebekah Johnston from Carey Olsen give their views on the year ahead for Guernsey law
What changes in Guernsey law can we expect to see in 2018?
Last year was a busy year for our lawmakers, with new legislation coming into effect in diverse areas such as population management, same-sex marriages and neighbouring landowners’ rights.
It looks as though 2018 will be a busy year too, as the States of Guernsey looks to address key areas of concern for Guernsey plc. While there are some substantial policy issues to be determined on economic development, healthcare partnerships and the future of education, there are three changes more closely on the horizon that will have an impact on the vast majority of islanders.
The first change concerns the pension provision of Guernsey and Alderney employees – or, more correctly, the lack of provision. For some time, there’s been growing concern over long-term problems if inadequate pension provision isn’t addressed.
This ‘demographic timebomb’ is represented by the growing number of people living longer after retirement versus the diminishing pool of people generating taxes to pay for them.
The States decided that the best way to ensure investment in pensions was to establish a secondary pension. This would be administered by the States, which would collect the payments alongside tax and social insurance. However, the actual investment and management of the funds would be carried out by a private company, selected after a public tendering process.
The proposal requires employers to enrol their employees automatically into either a qualifying private scheme or the States’ secondary pension scheme. Employees will have the opportunity to opt out and, if they do, neither they nor the employer need pay into the scheme.
This follows the model used by the UK for secondary pensions. The new regime is intended to come into effect in 2020 and, in order to ease the strain on businesses, the contributions will be phased in from 2020.
The second big change is in relation to consumer protection legislation. For many years now, Guernsey residents have expressed concern at the lack of consumer protection, and the States have been toying with a consumer protection regime for more than two decades.
In February 2016, the States brought forward proposals for the introduction of consumer protection legislation. This will be done by secondary legislation issued under the existing trading standards law and the intention is to provide consumers with clear rights, which apply when purchasing goods and services, similar to the rights that consumers have enjoyed in other jurisdictions for several years.
The new statutory rights will help to ensure that goods and services comply with appropriate standards (including safety) and that appropriate information is provided to customers. This will allow consumers to make a fully informed decision before they make a purchase or during the subsequent ‘cooling-off period’.
There will be a prohibition on unfair contract terms. This will force a more balanced relationship between traders and consumers by invalidating any unreasonable provisions forced on consumers, who invariably find themselves in an inferior bargaining position.
If a seller breaches their statutory obligations, they will be liable to a penalty imposed by Trading Standards.
Businesses will need to think and plan carefully for the new regime, so that their processes, policies and agreements match up with the new requirements.
The third big change is the introduction of new data protection legislation, due to come into force in May 2018. The legislation, approved in November 2017, creates significant new rights for individuals in relation to the information or data that organisations collect, process and hold in relation to them.
For organisations, the new law will require significant updates to how they manage data across every aspect of their business, with the potential, for the first time, of significant fines for any failures.
What do you expect to be discussed in 2018?
Data protection will be a major topic of discussion, especially as businesses try to grapple with the scope of the work needed to get their work processes, systems and practices ready. Eyes will be on the Data Protection Commissioner to see how tough he or she will be on any breaches.
On the pension front, we expect to see detailed proposals setting out the scheme’s structure and how exactly it will be implemented in September 2018. Again, this will provoke discussion as businesses grapple with the additional costs to them and the changes to systems needed to administer the scheme.
The changes to consumer protection will affect all businesses and they will need to undertake work to ensure they are ready when the new regime is scheduled to come into force later this year.
Are there any other areas that you anticipate will come up this year?
We expect there to be further focus on the perceived failure to progress Guernsey’s anti-discrimination regime. Whereas Jersey has had race discrimination laws in place since 2014, sex discrimination since 2015 and age discrimination since 2016, thus far Guernsey has only introduced sex discrimination law – and that was as far back as 2006.
Although the States identified disability discrimination as a key workstream for 2016, it appears that legislation is a long way off. A statement from the responsible department indicates that Guernsey has yet to settle on a model for the legislation.
This is causing significant dissatisfaction and we expect that pressure will be exerted on the States to speed up progress by groups such as the Guernsey Disability Alliance.