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The Jersey Law Review - October 2003
SHORTER ARTICLES AND NOTES
INTERPRETING THE CHANGES
Pam Staley
1 On March 28th, 2003 the Interpretation (Amendment) (Jersey) Law 2003 (“the 2003 Law”) came into force. It makes significant changes to the Interpretation (Jersey) Law 1954 (“the 1954 Law”).
2 This is the first time that the 1954 Law has been subjected to major change. Yet a lapse of forty-nine years between enactment and amendment is not unusual in the field of statutory interpretation. Such changes, which affect all legislation, are not lightly undertaken. Considerable care is needed in determining the extent of an interpretation law. The aim is to provide a reader of legislation - and a draftsman -with genuinely useful tools for the construction of legislation. The challenge lies in knowing when to stop filling the toolbox.
3 The need to amend the 1954 Law was highlighted in an article in this Review in 2000. A further impetus was given by the fact that the first revised edition of the statute law of Jersey is scheduled to be completed in 2004. During the initial months of work on the law revision it became apparent that certain new interpretation provisions were desirable, not only as a tool for the Law Draftsman’s Office, but also for the Law Revision Manager.
4 The 2003 Law, then, sets out to address issues of both substance and definition.
Commencement of enactments
5 Notwithstanding its short title, the 1954 Law contains substantive provisions as to the commencement of enactments as well as provisions for mere interpretation. These provisions may be found in Article 1.
6 One of the tasks of the Law Revision Manager, in preparing the revised edition, is to state the day on which each enactment came into force. Our current law drafting practice is to specify the day of commencement of an enactment. If Regulations or an Order must come into force on a particular day, the date is stated. If the date of commencement of a Law must be controlled, we provide for it to come into force on a day appointed by Act of the States. In all other cases we now, as a matter of routine, provide for an enactment to come into force seven days after it is made or registered in the Royal Court. This seven day period allows sufficient time for the enactment to be printed and notice of it published in the Jersey Gazette, bringing it to public attention. Shorter periods may be specified, but only in cases of urgency. The problem encountered by the Law Revision Manager was that earlier enactments were often silent as to their commencement, or their commencement was expressed by reference to the date of their promulgation, or they were expressed to come into force forthwith.
7 In the case of Laws expressed to come into force by reference to their promulgation, we were able to locate most of the promulgation dates by researching the Royal Court orders for registration of Laws. These dates were then passed on to the Law Revision Manager. However, there remained a handful of Laws for which a promulgation date could not be established.
8 There was therefore uncertainty about the commencement date for enactments which were silent as to their commencement and for the small number of Laws whose commencement date depended upon a promulgation date which could not be established.
9 There was also uncertainty as to the time of commencement of an enactment expressed to come into force forthwith. Article 1(5) of the 1954 Law provided that an enactment expressed to come into force on a particular day should come into force at the beginning of that day. However, that provision was of no assistance in the case of an enactment merely expressed to come into force forthwith. These uncertainties had to be resolved in order that the Law Revision Manager could complete his task of identifying the commencement date for every enactment.
10 The solution was to amend article 1 of the 1954 Law. The amendments make three changes.
11 First, they make it clear that an enactment which is silent as to its commencement or is expressed to come into force forthwith comes into force on the day that it is passed or made. It should be remembered that, by virtue of article 1(1) and (2) of the 1954 Law, references to the date on which a Law is passed do not mean the day on which the States adopt the Law in third reading but, rather, the day on which the Law is registered in the Royal Court.
12 Secondly, they provide that, in the event that the promulgation date of an enactment is unknown, that date is deemed to be the day the enactment was passed or made. When the promulgation dates of earlier Laws were researched, the promulgation date annotated on the order of the Royal Court tended to be the same date as the day of registration. So it is expected that, in most cases, this deeming provision identifies the actual date of promulgation correctly.
13 Thirdly, article 1(5) is amended so as to have the effect that an enactment expressed to come into force forthwith comes into force at the beginning of the day on which it is passed or made.
Common definitions
14 In the 1954 Law as enacted, provisions construing various common terms were scattered through the Law, in articles 4 and 6 to 11. The amending Law has brought these together in a Schedule and has added to them.
15 There is always a fine balance to be struck, in an interpretation law, in identifying the expressions for which there should be a general construction provision. If a genuinely common term is left out, the consequence is that its definition must be repeated in every enactment in which it is used. That is inconvenient and does little to streamline the Recueils. However there is a greater risk in defining too many terms. Although a draftsman should work with a copy of the 1954 Law at his or her side, it cannot be assumed that the reader will always be similarly equipped. It is therefore potentially misleading to include a definition which ascribes an unusual meaning to an expression. Also, there is nothing to be gained by including a general provision for construction of an expression which it is known may be intended to have different meanings on different occasions. In short, general construction provisions should be confined in their use to expressions whose meaning is unlikely to be intended to vary and which are not being given an unusual construction.
16 For those reasons, only a few new expressions are added to the Schedule. These may be categorized broadly as judicial, professional and draftsman’s tools. Definitions are added for the Magistrate and Youth Court.
17 Curiously, the 1954 Law defined “solicitor” as an écrivain de la Cour Royale but did not define “advocate”. Perhaps it was felt, at that time, that “advocate” could only mean a locally qualified advocate and accordingly that a definition was not required but, in these days, a definition is desirable. Other regulated professions are added: “dentist”, “doctor”, “pharmacist” and “veterinary surgeon” are all defined so as to signify a person registered in Jersey to practise in the discipline concerned. “Police officer” is also defined to mean either a member of the Honorary Police or a Member of the States of Jersey Police Force.
18 For a draftsman, however, the most interesting additions are those defined expressions that may be described as draftsman’s tools. These are the definitions of “act”, “amend”, “contravene” and “under”.
19 “Act” is defined to include an omission. “Contravene”, in relation to a requirement or condition, is defined to include a failure to comply with the requirement or condition. These are invaluable tools when formulating offences.
20 “Amend” is defined to include “add to”, “substitute”, “vary”, “repeal” and “revoke”. It is a form of shorthand to be used where an enabling power to amend an enactment is created.
21 “Under” is defined to include “by”, “in accordance with”, “pursuant to” and “by virtue of”. It enables the draftsman to be consistent in the terminology that he or she uses throughout an enactment.
Commonly used names
22 In addition to these definitions, the 1954 Law is amended to include a construction provision for commonly used names. On the face of it, the provision (the new article 4A) states the obvious, namely that a reference in an enactment to a country, place, body, administration, corporation, society, officer, functionary, person, party or thing by the name commonly applied to it shall mean the place, body, etc. to which the name is commonly applied. However, it serves a purpose in facilitating references to places, persons, bodies and so on which may be difficult to define, because they are not created by statute. Without it, there would be a reluctance to refer to such a place, body, person or so on, notwithstanding that, within Jersey, the term would be readily understood without definition. The provision provides a clear steer to construe any such undefined term as meaning what it appears to mean.
23 A recent example of a reference relying on the new article 4A appears in the Law Revision (Jersey) Law 200- which was adopted by the States on July 16th 2003. One of the members of the Law Revision Board established by that Law is the Law Draftsman, but the post of Law Draftsman is not created by any enactment. So, the expression is used without definition, in reliance on article 4A and the fact that the title attached to the post is sufficiently well known.
Effect of a repeal
24 Article 5 of the 1954 Law states the effect of the repeal of one enactment by another. The article is amended to provide that, when an amended enactment is repealed, the repeal automatically includes the repeal of all the provisions which amended it. In theory this would enable a draftsman when, say, repealing the States of Jersey Law 1966, to do no more than repeal that Law, without any mention of the eight subsequent Laws which have amended it. In practice the Law Draftsman’s Office does not propose to adopt that style as it is more helpful to recite a full list of the amending enactments from which annotators of the Receuils can then work. Nevertheless, the provision provides a useful fallback in the event that an amending enactment is accidentally omitted from the list.
Internal cross-references in enactments
25 A new article 13A is added to the 1954 Law. It may appear unremarkable but, of all the amendments made, it will have the greatest impact upon the Receuils and revised edition of the statute law of Jersey. Article 13A provides for references in an enactment to an Article, Regulation, Schedule, Part or other sub-division to be construed as a reference to the Article, Regulation, Schedule, Part or sub-division of that number in that enactment. It also provides for a cross-reference to another Jersey enactment to be construed as a reference to that enactment as amended. Its effect will be seen in two ways.
26 First, all new enactments are now being drafted without the inclusion in the interpretation provision of the familiar standard paragraphs having the same effect, and the Law Revision Manager can remove these standard paragraphs from earlier enactments included in the revised edition.
27 Secondly, in those past enactments which did not include the standard paragraphs, the Law Revision Manager can now shorten all internal cross references. For example, “Article 8 of this Law” and “the Schedule to this Law” become “Article 8” and “the Schedule” respectively.These small changes should greatly improve the readability of enactments.
Enabling powers
28 Article 15 of the 1954 Law, which is concerned with the exercise of powers, including enabling powers, is amended. A new paragraph (4) is added that applies to enabling powers passed after the 2003 Law came into force. It has the effect that the draftsman need no longer state that the power may be exercised in relation to all, or some only, of the cases to which it applies, that different provision may be made for different cases, and that conditions may be attached in any case. The enabling power will be construed as including these general powers unless (as may be required in certain cases) a contrary intention appears. The new rule does not apply to existing enabling powers. That is because the scope of a delegated power to legislate is a matter for political consideration on a case by case basis. Therefore, an interpretation law, which might be reasonably expected to be apolitical in its content, is not the appropriate forum for an extension of existing powers.
Penalties for offences
29 A new article 16A is added to the 1954 Law dealing with the construction of penalties for offences. It establishes three rules for construction. First, it is made clear that a reference to a “fine” without specifying any amount means a fine of an unlimited amount. Whilst this has never been in doubt, it is helpful to state the rule for the benefit of readers who may be less familiar with the law. The second and third rules are tools for the draftsman. The second rule is that when a penalty is specified for an offence, it is to be construed as the maximum penalty that may be imposed for the offence. The third rule is that where more than one penalty is specified for an offence, the use of the word “and” means that the penalties may be imposed alternatively or cumulatively.
30 This enables penalties to be expressed more simply. Whereas before it would have been necessary to say -
“a person guilty of [the offence] shall be liable to a term of imprisonment not exceeding 6 months or a fine not exceeding level 2 on the standard scale, or to both”
the draftsman can now say -
“a person guilty of [the offence] shall be liable to a term of imprisonment of 6 months and a fine of level 2 on the standard scale”.
Deviations in prescribed forms
31 Finally, a new article 16B is added to the 1954 Law concerning forms prescribed in enactments. There are occasions when there are minor discrepancies between a form prescribed in an enactment and that form as it is printed for use. On those occasions, there can be uncertainty as to whether the printed form is valid or not. Article 16B makes it clear that, provided a deviation neither materially affects the substance of the form nor misleads readers, the fact of the deviation does not invalidate the form.
32 The full impact of these amendments will only be fully appreciated as enactments drafted after they came into force appear in the Receuils and when the first revised edition of the statute law of Jersey is published. It is hoped that their contribution to improving the clarity and brevity of Jersey’s legislation will then be demonstrated.
33 An unofficial consolidation of the Interpretation (Jersey) Law 1954 incorporating these amendments may be accessed in the Laws in Force section of the Jersey Legal Information Board website.
Pam Staley was admitted as a solicitor of the Supreme Court of England and Wales in 1981. She was in private practice from 1981 to 1990 and worked for the Department of the Environment from 1990 to 1994. She joined the Law Draftsman’s Office in Jersey in 1994 and was appointed Law Draftsman in June 2003.
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