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The Jersey Law Review – February 2006
BOOK REVIEW
THE GOVERNMENT AND LAW OF GUERNSEY by DARRYL OGIER. The States of Guernsey 2005, 152pp. (ISBN 0-9549775-0-5)
1 The two subjects of this book – the government of Guernsey and the law of Guernsey – are usually thought to be the province of lawyers or politicians. Dr Darryl Ogier, the Archivist of the States of Guernsey, is neither. He tells us in his preface that he is an historian. This revelation was hardly necessary, for it would be difficult to read the book without realizing that it is the work of an erudite and exact historian. To this, indeed, much of its value is due.
2 Dr Ogier considers in successive chapters the parishes, the church, the States and the courts, describing in each chapter the place and functions of the different organs and individual office holders. He explains not only the organization of government as it is today but also the development of each part from its earliest form known to us. This development has included the disappearance long since of some features, the rise of new features and the transformation of others into what exists now. All of this Dr. Ogier describes supporting his account with copious references.
3 The system as it has now emerged is by no means simple. It is obvious what a great advantage it is both for lawyers and for laymen to be above to consult this complete yet succinct account. It is also important that the book provides an accessible account of the system as it was in the past. I remember a case in the Court of Appeal of Guernsey a good many years ago in which s.17 of the Court of Appeal (Guernsey) Law, 1961 made it important for us to discover what where the procedure and practice of the Cour des Jugements et Records in the days before the Court of Appeal. Nobody could tell us. There must be many such details of which knowledge is still perishing before it has occurred to anyone to write it down.
4 In the second section of the book, Dr Ogier deals with the law of Guernsey (chapter 7). It is fundamentally a customary system, of which the dominant source was the custom of Normandy, set out in the 13th century in the Grand Coûtumier. Dr Ogier describes how this has been supplemented by other customs and usages and by various types of legislation both local and English. It has also been influenced by the law of other countries, in some fields notably by the law of England. Such has been the development of ‘the modern, still developing law of Guernsey’, which now incorporates ‘in varying degrees, international, European, and United Kingdom elements’.[1]
5 As Dr Ogier points out here, the law of Guernsey is ‘still developing’. The direction of its development is naturally a subject of discussion. In particular, there is lively argument among lawyers about the extent to which Guernsey courts resort to the law of other jurisdictions, and in the course of this argument the suggestion is sometimes heard that too much regard is paid the law of this or that country. Dr Ogier, writing as ‘an historian and citizen of Guernsey’, not as a lawyer, does not enter into such disputes. He simply records that ‘persuasive value’ is allowed by the courts, ‘though not uncritically’, to precedents and comparison from other jurisdictions, and recognizes the factors of the situation of Guernsey which account for the influence of English law (pp. 85/6).
6 For the third section of the book Dr Ogier turns to Guernsey’s external relations (chapters 8 to 11). The most striking feature of ch. 8, dealing with the legal relationship between Guernsey and the other Channel Islands, is that while the account of relations between Guernsey and the other islands of its Bailiwick covers 10 pages relations between Guernsey and Jersey require only one page and a few lines. ‘When a need is perceived to present a united front internationally, the Channel Islands’ authorities will also work together’ says Dr Ogier.[2] It is to be hoped that this habit may in time be extended to local affairs as well.
7 In chapter 9, dealing with relations between Guernsey and the United Kingdom, Dr Ogier describes the local representation of the Crown and summaries the use of Royal Commissions in Channel Island affairs, culminating in the Kilbrandon Commission on the Constitution of 1969/73, which asserted ‘that powers of last report in the international relations and good government of the Island rested with the United Kingdom Government’.[3] Here Dr Ogier gets closer than at other points to expressing his own view on the legal questions. He goes on -
“The [Kilbrandon] Commission’s conclusions were never altogether accepted in the Islands, and in today’s post-colonial democratic context appear particularly dated and questionable”.
8 He returns to this point after discussing local registrations of Acts of Parliament.
“[British] Government has also asserted a perceived right to extend parliamentary legislation to the Channel Islands without their consent, even, although exceptionally, in the purely domestic field. Registration of Orders in Council and Acts of Parliament has been regarded by English administrations as desirable, but not necessary to give them effect. The Islands, response has often been to oppose such opinions, and to find such interference frankly illegal, according to their laws. Modern convention, and democratic and constitutional ideas support such a position”.[4]
9 Dr Ogier adds a footnote to this passage, in which he says “it would be an error to hold that parliament might still unilaterally enact laws for the domestic affairs of the Channel Islands”,[5] and in support cites a statement in de Smith and Brazier, Constitutional and Administrative Law. “Any fuller discussion is out of place here”,[6] says Dr Ogier. Fuller discussion, which would have to extend to a good many more authorities and to the distinction between what is unconstitutional and what is illegal, would be no less out of place in this article.
10 I add only that the United Kingdom Parliament has certainly in the past claimed, and occasionally exercised, authority to legislate for the domestic affairs of the Channel Islands. In recent years the questions have been raised whether such authority still exists, or, if it does, would still be exercised. At present it would be rash to give a firm negative answer to either question.
11 Meanwhile, Dr Ogier’s abbreviated discussion assumes some importance because according to the blurb of the publisher (the States of Guernsey), his book -
“was immediately on publication set as required reading for candidates taking the Guernsey law examinations.”
12 The law two chapters (10 and 11) describe Guernsey’s relations with respectively Europe and the world. These are relationships which it might almost be said have been not merely developed but created in the last 50 years. The possibility of significant relations with Europe began with the United Kingdom’s application to join the European Economic Community in 1967. That application failed, but the UK repeated its application in 1971 and then negotiated with the Community special terms for Jersey, Guernsey and the Isle of Man, which were accepted by all three and embodied in protocol No. 3 of the United Kingdom’s treaty of accession. This protocol remains the foundation of Guernsey’s position in the Community, although it has now been supplemented by provisions of the Maastricht treaty and the European Economic Area Agreement of 1992 and the Amsterdam treaty of 1997. Dr Ogier describes the legislation passed in Guernsey to give effect to all these instruments. Relations with the Community become constantly closer because of the effect not only of these Agreements, buy also of other arrangements with the Community made voluntarily by Guernsey in her own interest.
13 The UK remains responsible for Guernsey’s defence and international relations. Dr Ogier describes the modern procedure by which the British Government seeks to ensure that any treaty being negotiated is extended to Guernsey only if Guernsey so wishes. He describes Guernsey’s contacts with the United Nations and the OECD. A development of the last few years has been the first growth of what may become the distinct international personality of Guernsey. The final subject of the book is the suggestion put forward in recent years of independence, which has ‘met with no popular enthusiasm, in fact little obvious reaction at all’.[7] Dr Ogier offers his own circumspect conclusion -
“Independence would not, at least in the present circumstances, appear to be an attractive proposition”.[8]
14 The fourth – and not the least remarkable – section of the book is the bibliography. It covers twelve pages and nearly 200 items, so is practically a catalogue of the literature of the constitutional and administrative arrangements of the Channel Islands. There could be no clearer tribute to the author’s learning and breadth of mind.
15 This is an erudite, important and valuable book. Anyone interested in the government of Guernsey should turn to it and will find in it expert help clearly given. I venture in conclusion to make just one complaint. There should be a fifth section – the index. No serious and scholarly book should be published without that, even if it is as succinctly written and as well arranged as this book.
Sir Godfray Le Quesne QC was a judge of the Courts of Appeal of Guernsey 1964-1995 and of Jersey 1964 – 1997.
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