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Jersey & Guernsey Law Review – February 2007
MISCELLANY
CHANGE, BUT NOT FOR THE SAKE OF IT
1 Change for change’s sake is not a hallmark of good government and yet, in less charitable moments, it can sometimes appear to have been the distinguishing feature of United Kingdom government since 26th July 1945 and the beginning of Clement Attlee’s premiership. By contrast, the Channel Islands have done very well by not changing, save when only absolutely necessary and then only after a lengthy period of reflection, at least until recent times. Notwithstanding a certain aversion to change, the careful, conscious, and even consensual, evolution of the Jersey Law Review into the Jersey and Guernsey Law Review is an appropriate trigger for reflection upon the question of what other changes could usefully be made in order to advance Channel Island law whilst taking care not to jeopardize the object to be preserved. There follows a series of proposals to stimulate thought and debate. Each is meant seriously, but whether any are taken up will be a question of individual and institutional will and judgment as much as anything else. In no particular order the suggestions are as follows.
SHARING LEGISLATIVE EFFORT
2 Union is not seriously argued for. The identity and specificity of each of the Islands comprising the Bailiwicks are essential to preserve, even if in due time a Federation emerges for international purposes. There is a (mostly) healthy competitiveness between the Islands which promotes standards and achievements of all kinds and at all levels. But there are areas where much closer cooperation would serve the common interests of the Bailiwicks and their peoples. Nowhere is this clearer than in the case of what can be called the “non-political” legislative programmes of the Bailiwicks. There are many aspects of Channel Island law where all that is sought is the best legislative solution possible. It is a common complaint that modern legislation in both Bailiwicks is little more than cut and pasted from English legislation, regardless of the quality, complexity, length, appropriateness or success of that legislation in its home jurisdiction. The standard of English legislative drafting has declined markedly since what might be regarded as a golden age in the late Victorian period. English draftsmen seem incapable of saying anything, however simple, in less than 25 pages, and the temptation is to suggest something rather closer to 100. The recent United Kingdom Companies Act 2006 runs to fully 1,300 sections (no that is not a typographic error), 16 schedules and covers 760 pages in the Queen’s Printers’ edition. Admittedly it is the longest single piece of legislation ever, but it does not bode well, particularly when one bears in mind that it does not even sweep away previous UK company legislation entirely. Company law might just be one area where the Bailiwicks wish to keep their legislation distinct; indeed Alderney and Guernsey each have their own company legislation.
3 There are many other areas, however, where duplication is simply wasteful of time and money, often with the further and more important cost that, because of the same wasteful duplicated effort, there is neither the time nor the resources to research any given legislative project more fully. A case in point is the law relating to children. Jersey reformed its Children Law largely by adopting English legislation. Guernsey is about to implement its own reforms. Whilst largely adopting English private law, it has borrowed heavily from Scottish public law. There is no good reason why both Bailiwicks could not have fielded a single legislative team to research and produce the best Children legislation possible for enactment in both Bailiwicks. There are many other examples where better and more appropriately original solutions could be arrived at for these distinct communities rather than borrowing from a very much larger and diverse neighbour with a population 400 times greater than these Islands and with a quite different political agenda.
SHARING JUDGES
4 The Bailiwicks are very fortunate in attracting United Kingdom-based members of their Courts of Appeal, Commissioners and Lieutenant Bailiffs of the highest calibre. Inevitably, however, judges steeped in the law and practice of their own jurisdictions will take time to find their feet in a legal system with a very distinct and ancient history of its own, requiring also a good working knowledge of French. They are also dependent upon the extent of the “domestic” legal knowledge of the advocates appearing before them, which, dare it be said, is largely accidental, at least in terms of who happens to appear on the day. We suggest there is scope for each of the jurisdictions to make better use of their indigenous judicial resources. There is no good reason why the Deputy Bailiffs should not also sit in each other’s Court of Appeal (whether Bailiffs should sit in their own Court of Appeal is another matter). There is no good reason why senior advocates should not sit as Commissioners or Lieutenant Bailiffs in the other jurisdiction. There is no good reason why, when need dictates, the Jurats of Alderney, Guernsey and Jersey should not form a single pool in order to circumvent difficulties with recusation or re-trial.
SHARING LAW REPORTS
5 Jersey has been fortunate in having its own series of law reports for some years now. Guernsey is exploring the options for law reporting. Channel Island law as a whole is greatly the poorer for not having properly reported Guernsey decisions. A combined Jersey and Guernsey Law Reports would be very welcome. The series could report not just recent decisions but also make a conscious effort to include older decisions of importance to either jurisdiction and otherwise not readily available.
A CHALLENGE
6 On 25th May 1961 President John Kennedy set the United States the following challenge in a speech to Congress: “I believe that this nation should commit itself to achieving the goal, before this decade is out, of landing a man on the moon and returning him safely to Earth.” While this Review has no intention of promoting a Channel Island mission to Mars, there are other more readily attainable but ambitious challenges to meet. There is a common complaint that Channel Island contract law, indeed civil law generally, is uncertain. The camps are polarized between those who espouse the customary and civilian strands of our law and those who would import English law, lock, stock and barrel. An exciting, challenging and very worthwhile solution would be to produce a Channel Island Civil Code. As a bare minimum it would codify the essence of the Channel Island law of obligations; ideally it would go further and reach out to property and succession law. The Channel Islands occupy a very special position in European law. They have one foot in the Anglo-American legal camp and the other in the camp of the Continental civilians. Whilst not exactly a Colossus, the Islands straddle both legal worlds and have a great deal to contribute as a consequence. The goal would be to produce a Code which would both serve the Islands well and might also inspire the development of European law. A lofty ambition indeed, but why not?
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