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The Jersey Law Review - February 2004
SHORTER ARTICLES AND NOTES
GATHERING DUST ? THE CREATION AND OPERATION OF THE JERSEY LAW COMMISSION
Alan Binnington
“Lawyers do not take law reform seriously – there is no reason why they should. They think the law exists as the atmosphere exists, and the notion that it could be improved is too startling to entertain”. (Lord Goodman, Sydney Morning Herald, 17 July 1982)
Formation
1 England and Wales has had a Law Commission since 1965, its functions being to keep the law of England and Wales under review and to recommend reform when it is needed. The formation of a Law Commission in Jersey was prompted by a paper written in March 1993 by the then Attorney General, Philip Bailhache, for the Legislation Committee of the States of Jersey. The suggestion was welcomed by the Legislation Committee and, following discussions with the Law Society of Jersey, a senior advocate, Keith Baker, was charged with taking the matter forward. He set about canvassing the views of politicians and members of the local business community and investigated a number of law commissions in other jurisdictions, the most obvious one being the Law Commission for England and Wales, the less obvious being those of Jamaica, Gambia and Hong Kong.
2 Although law commissions in other countries all shared similar aims there was a degree of variation as to whether they were statutory or non-statutory bodies, whether they were state funded and whether they comprised lay as well as legally qualified members.
3 An example of a non-statutory body was the Jamaican Law Reform Committee which had been established in 1959 to keep Jamaican law under constant review and to make recommendations in relation to such of the laws as had become outmoded. Limited resources dictated that the Committee utilised, on a part time basis, the voluntary services of judicial officers, legal officers of government and private legal practitioners. It had however encountered significant difficulties as a result of the limited financial resources and unattractive remuneration of legal professional staff. Indeed, recent enquiries suggest that it no longer exists.
4 Gambia’s Law Reform Commission was created by statute in 1983 and was provided with government budgetary support for its normal expenses. One significant aspect of the Gambian law commission was its belief that the general community should be involved both in the process of formulating concrete proposals and in the discussion of those proposals before they were formally considered by government. It was this consideration that led to the appointment to the Commission of two lay persons who had no legal experience.
5 The Hong Kong Law Reform Commission was established in January 1980 to consider for reform those aspects of the laws of Hong Kong which were referred to it by the Attorney General and the Chief Justice, both of whom were themselves members of the Commission. The lawyers who provided the research and administrative support for this part-time commission were all members of the Attorney General’s Chambers. Whilst this ensured that legal support was supplied by lawyers familiar with the workings of the government machine (who might generally be expected to render the commission’s proposals in a form which would be most likely to find governmental approval), the danger in this overlap of personnel was a perceived lack of objectivity.
6 The Law Commission for England and Wales was created by the Law Commissions Act 1965. The Commission comprised a chairman and four other commissioners appointed by the Lord Chancellor who were persons ‘suitably qualified by the holding of judicial office or by experience as a barrister or solicitor or as a teacher of law in a university’. Commissioners held office for a term not exceeding five years. The functions of the Commission were stated to be, inter alia, “to receive and consider proposals for the reform of the law, to prepare and submit to the Minister from time to time programmes for the examination of different branches of the law with a review to reform”. The “Minister” referred to was the Lord Chancellor.
7 When Advocate Baker canvassed the views of a cross section of the political and business community in Jersey as to the benefit of forming a law commission he received whole hearted support. Accordingly, the Jersey Law Commission was set up by a proposition laid before the States of Jersey and approved by the Assembly on July 30th, 1996. The first commissioners were Advocate Keith Baker, chairman, Jurat Donald Le Boutillier, Mr David Lyons, Mr David Moon and Advocate William Bailhache. The first commissioners were all legally qualified, the thinking at the time being that the Commission would in the main be considering “lawyers’ law” rather than topics which were of a more political or social nature. Although the annual budget for the Commission was approved at £75,000 it was subsequently found that the Commission spent only a fraction of that figure, the expenditure in 1998 amounting to just over £9,000. The commissioners were, and indeed still are, unpaid and, whilst payment is from time to time made to legal researchers, a significant amount of the work of the Commission is carried out by the commissioners themselves.
8 In appointing commissioners with a legal background the States clearly drew on the experience of the English Law Commission. One of the persons whose views were canvassed prior to the formation of the Jersey Law Commission was Professor Peter Willoughby, who was a member of the Hong Kong Law Reform Commission between 1981 and 1988. He commented that ‘the Hong Kong Law Reform Commission was a particularly interesting, and I think successful, body largely as only half of its members were lawyers! Very wisely the Attorney General of the day thought that it would be helpful if at least half its members were prominent business men and women and professionals from other disciplines. The thinking behind this decision was that if the non-lawyers, who were people of considerable influence, signed a report together with the lawyers, there was a good chance that the recommendations would find their way into law. I believe that this approach is the main reason why the reports of the Hong Kong Law Reform Commission have gathered less dust than those of the English Commission.’
9 Whether it is due to the absence of lay people on the Jersey Law Commission or the backlog of work in the Law Drafting Office it is perhaps regrettable that the reports of the Jersey Law Commission appear to have, to use the words of the late Professor Willoughby, ‘gathered dust’ since the Commission’s formation. Of the four topic reports that the Commission has produced since its creation, only one has resulted in legislation reaching the statute book.
Rights of beneficiaries to information
10 The first subject chosen by the Commission for investigation was the rights of beneficiaries to information regarding a trust. Concern had been expressed by trust practitioners that there was a possible ambiguity in the wording of article 25 of the Trusts (Jersey) Law 1984, which sets out the rights of beneficiaries to information regarding the trust but which does not make clear whether those rights can be restricted or even excluded by express provision in the trust instrument. In its report of October 1998 the Commission proposed a minor amendment to article 25 to overcome the perceived ambiguity. In addition, it proposed that the article should be further amended to preserve the principle of trustee accountability by giving the Court the power to declare that the terms of a particular trust did not render the trustees sufficiently or appropriately accountable to the beneficiaries, and to make a consequential order extending or restricting the rights of the beneficiaries to information. In the hope of assisting in the law-drafting process the Commission set out in its report an appropriately amended article but to no avail, for the article remains unchanged. Interestingly both the Royal Court of Jersey and the Privy Council have had cause recently to consider the rights of beneficiaries to information and have characterised such rights more in terms of trustee accountability than in terms of a proprietary interest of the beneficiaries in the trust documentation.
The law of dégrèvement
11 In October 1999 the Commission produced its second topic report, this on the law of dégrèvement, which is a form of bankruptcy procedure applied to immovable property in Jersey. Where a dégrèvement is ordered by the Court the debtor’s immovable property is adjudged renounced and each of the debtor’s creditors is called upon in turn, the unsecured creditors first, to declare whether he or she is willing to accept the debtor’s property subject to the interests of the prior and secured creditors. If a creditor accepts the property and pays off the prior claims he may well find that the value of the property exceeds the amount of the debt and, given that there is no obligation to refund to the debtor the surplus, he may make a profit. In 1990 the Island had reformed its customary bankruptcy procedure by enacting the Bankruptcy (Désastre) (Jersey) Law 1990. However, whilst this provided that on a declaration of bankruptcy (“désastre”) all the debtor’s property, both movable and immovable, should vest in an officer of the Royal Court known as the Viscount, it did not abolish the dégrèvement procedure. The Commission recommended the abolition of the dégrèvement procedure and concluded that it would not require the repeal of the Island’s principal immovable property statute, the Loi (1880) sur la propriété foncière, it being possible merely to amend it. A schedule of amendments was set out in the Commission’s report. Notwithstanding the recommendations the dégrèvement procedure remains in existence, with the result that it is still possible for a creditor to recover more than he is owed from the debtor’s immovable property.
The law relating to tutelles
12 The Commission’s third report was on the law of tutelles, a procedure governed by Jersey’s customary law for safeguarding the property of minors and last updated by statute in 1862. The Commission proposed that there should be a complete overhaul of the law relating to tutelles and suggested that, as there is essentially no difference between the role of a curator in respect of a person who is incapable of managing his or her own affairs and the role of a tuteur in respect of a minor, the 1862 Law should be repealed and legislation similar to that proposed as part of a revised Mental Health Law should be enacted in respect of tutelles. Given that the revised Mental Health Law has yet to be enacted it is perhaps unsurprising that the law relating to tutelles has yet to be revised.
Best evidence rule
13 In September 2000 the Commission published its fourth report, this time dealing with the best evidence rule in civil proceedings. This was principally concerned with the hearsay rule, which provides that former statements of any person, whether or not he or she is a witness in the proceedings, may not be given in evidence if the purpose is to tender them as evidence of the truth of the matters asserted in them. The rule was effectively abolished in civil proceedings in England by the Civil Evidence Act 1995 and the Commission recommended that it should be abolished in Jersey by enacting similar legislation, particularly given that the Royal Court has tended to look to English common law decisions on the question of evidence, and hearsay in particular. Happily this recommendation has now found statutory acceptance in the enactment of the Civil Evidence (Jersey) Law 2003.
Recent consultation papers
14 The Commission’s most recent activities have focussed on the law of real property and the law of contract, both topics having been the subject of recent consultation papers.
15 The Commission issued its fifth consultation paper, on the law of contract, in October 2002. The paper highlighted the degree of confusion that appeared to have arisen as a result of the Royal Court having looked increasingly at English authorities in relation to the law of contract notwithstanding that the origin of the Jersey law of contract is in the customary law of Normandy. The paper reached a provisional conclusion that the English common law of contract be adopted by statute, thus reflecting a state of affairs which many thought already to be the case and ensuring that the law became more accessible given that fewer inhabitants of the Island now have a working knowledge of the French language. The paper prompted a considerable number of responses, views polarising between those who wished to retain Jersey’s particular identity and its Norman roots and those who favoured a more accessible and comprehensive framework for contractual relations. The Commission’s final report is shortly to be submitted to the Legislation Committee and, if approved, to the States. In December 2002 the Commission published its sixth consultation paper, on the Jersey law of real property. The principal provisional recommendations included a requirement that all conveyancing be conducted in the English language, the extension of the requirement for the grant of probate or letters of administration for movable property to immovable property, provision for the creation of trusts of immovable property in Jersey and the granting to the Royal Court of powers to award damages in lieu of an injunction restraining or removing the breach of a servitude.
Operation of the Commission
16 Topics to be considered by the Commission are either raised on its own initiative or result from suggestions made by external bodies or individuals. If the Commission decides that a topic merits investigation a short paper detailing the perceived problem is prepared for the Legislation Committee which then authorises the Commission to investigate it. The commissioners select one of their number to act as Topic Commissioner and he or she will, in turn, enlist the help of a practitioner as Topic Practitioner to prepare the first draft of the relevant Consultation Paper. If research is required the Commission has funds available within its budget to pay researchers although relatively little paid research has had to be carried out thus far. The Consultation Paper, once approved by the Commission, is published in both hard copy and on the Commission’s web-site and a period of some weeks allowed for responses. Once the responses have been considered by the Commission a report is prepared and submitted to the Legislation Committee which, if it approves, lays it before the States. Thereafter the drafting and promotion of any necessary legislation is the responsibility of the Legislation Committee.
The future
17 It would be nice to think that perhaps one day more recommendations of the Jersey Law Commission will reach the statute book. Although there is clearly already a significant burden on the Law Drafting Office the suggestion that the Commission could use part of its own budget to employ the services of a part-time law draftsman seems to have fallen on deaf ears. Perhaps it is because the Commission tends to deal with “lawyers’ law”, rather than laws which will capture the attention of the voting public, that its recommendations appear to be gathering dust. Nevertheless the Commission performs a useful function in seeking out areas of the Island’s law that are due for reform and ensuring that the public has the ability to comment on its proposals. However, when the Commission publishes its Consultation Papers it is hardly overwhelmed by the response: although the first Consultation Paper produced responses from 31 individuals and groups the next 3 papers produced 3, 4 and 4 respectively. To take up Lord Goodman’s theme, perhaps we should all be taking law reform more seriously, lest the Commission’s work should continue to gather dust.
Alan Binnington is an advocate of the Royal Court of Jersey and is one of the commissioners appointed to the Jersey Law Commission.
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