Return to Contents
The Jersey Law Review – October 2005
MISCELLANY
EUROPE AND THE JERSEY ROYAL
1 The wheels of European justice grind slowly but finely. In August 2002 the Royal Court referred two questions to the European Court of Justice (“ECJ”) for a preliminary ruling under article 177 of the Treaty. On 3rd May 2005 the Opinion of the Advocate General, M Philippe Léger, was delivered. It contained a closely reasoned analysis of the relevant Community rules in the context of the special position of Jersey and the other Crown Dependencies vis à vis the European Communities.
2 The background to the reference was the adoption by the States, on 18th December 2001, of the Jersey Potato Export Marketing Scheme 2001 (Approval) (Jersey) Act 2001 by which a scheme was set up to control the marketing of Jersey Royal potatoes in the United Kingdom. The scheme was enacted in response to farmers’ complaints concerning the low profit margins in relation to the cultivation of Jersey Royal potatoes. Although it is not quite a monoculture, Jersey Royal potatoes account for some 60% of Jersey’s agricultural production. The scheme established special rules applicable to the export of such potatoes to the UK which is in fact the market for nearly all Jersey Royals sold outside the Island. The Act imposed an obligation on any producer wishing to “export” his crop to register with the Jersey Potato Export Marketing Board and to conclude a marketing agreement with it. The obligation to conclude a marketing agreement applied also to any marketing organisation wishing to “export” Jersey Royals acquired from producers. Failure to comply with these obligations gave rise to criminal penalties. In addition to the potential liability to criminal penalties, producers who had registered with the Board, but who had not concluded a marketing agreement, could be required to contribute to a fund designed to cover the principal operating costs of the Board.
3 Hardly was the printer’s ink dry on the Act, when a number of marketing organisations brought an action in the Royal Court against the States and the Board challenging the legality of the Act. They alleged that the Act was contrary to European law. After some argument as to the precise form of the questions for the ECJ the matter was referred. The plaintiffs persuaded the Royal Court to grant a stay suspending the operation of the Act until the decision of the ECJ was known. The States sought to have the stay lifted after the conclusion of the 2002 potato season but were unsuccessful. It remains in force, and it may now be open to doubt whether the scheme will ever take effect, whatever the outcome of the litigation.
4 The Advocate General summarised the issues as follows –
“ … the national court seeks essentially to ascertain whether the Treaty rules on the free movement of goods must be interpreted as precluding a situation in which the marketing of agricultural products originating in Jersey (such as potatoes) bound for the United Kingdom, the Bailiwick of Guernsey or the Isle of Man is made subject to the completion of various formalities, such as the registration of growers with a local public organisation, the conclusion of marketing agreements between that organisation and the operators concerned ( a requirement enforced by pecuniary penalties) and possible contributions by growers to a fund set up to finance the operation of that organisation.”
He asked the preliminary rhetorical question whether the Community rules on free movement of goods were applicable to Jersey for the marketing of agricultural products such as potatoes, and concluded from a combined reading of article 1(2) of the Protocol and article 1(1) of Regulation No 706/73 that they did.
5 The Advocate General noted that article 1(2) of the Regulation states that “[f]or the purpose of applying the rules referred to in paragraph 1, the United Kingdom and the islands shall be treated as a single Member State.” The applicants had argued that in some circumstances the potatoes were sent to the United Kingdom via a port in another Member State (Caen). The Advocate general found that to be of little importance. “In my view the possibility of straightforward transit of the goods through another Member State is not capable of conferring on the commercial operation the status of trade between Member States within the meaning of Articles 23 EC and 25 EC. In other words that possible extraneous factor is not sufficient for the situation governed by the contested rules to be classified other than as wholly internal to one and the same Member State, namely the United Kingdom.”
6 The Advocate General conceded that potatoes “exported” to the United Kingdom were subject to a less favourable regime than those exported to other Member States, but that was insufficient to bring the contested rules into conflict with Treaty obligations. The trade in question was trade within a single Member State. The Advocate General concluded –
“ Consequently the answer … is that, although the Treaty rules on the free movement of goods are applicable to Jersey regarding intra-Community trade in agricultural products such as potatoes, neither Articles 23 EC and 25 EC nor Article 29 EC are capable of applying to situations … which relate solely to commercial dealings in those products between, on the one hand, Jersey and, on the other, the United Kingdom, the Bailiwick of Guernsey or the Isle of Man, since those territories must be regarded as forming part of one and the same Member State.”
7 The judgment of the ECJ is expected in early 2006.
LONG IN THE TOOTH : THE BIRTH OF THE LAW SOCIETY OF JERSEY LAW 2005
8 Having endured a gestation period which exceeds that of an elephant by more than 10 years the Law Society of Jersey Law 2005 was finally adopted by the States of Jersey on 2nd November 2004 and registered by the Royal Court on 4th March 2005. It has, however, not yet come into force.
9 The new Law will introduce significant changes to a Society which, in terms of its constitution, has remained relatively unaltered since its formation in 1899. The most fundamental changes include the incorporation of the Society as a statutory body and the introduction of a formal disciplinary procedure.
10 Prior to the introduction of the Law complaints against lawyers have been dealt with, in the case of fee complaints, by means of a form of voluntary arbitration and, in the case of complaints as to professional misconduct, by the Bâtonnier, who had to formulate his own procedure and, in those cases where the complaint was found to be justified, was able only to issue a reprimand or to refer the matter to the Royal Court. The defects of the system are readily apparent : a procedure for the investigation of fee complaints which depends entirely on the voluntary co-operation of the lawyer is unlikely to satisfy clients and a relatively ad hoc procedure for the investigation of complaints concerning professional misconduct is unlikely to satisfy either clients or practitioners.
11 It may come as some surprise to the public that the initiative for a formal and binding complaints procedure came from the Society and, after many years of lobbying, has finally been approved by the States. The intention of the new Law is for the profession to remain self-regulated but with a sufficient level of lay participation in the disciplinary process to ensure public accountability. Indeed, during the course of the States debate on the draft Law, the degree of lay involvement was increased from that originally proposed. Under the new Law a Disciplinary Panel is to be set up, comprising seven lay persons appointed by the States, on the recommendation of the Jersey Appointments Commission after consultation with the Society, and four members of the Society. From that panel Disciplinary Committees will be set up to hear particular complaints, the Committees comprising two lay persons and one member of the Society, the Chairman being one of the lay participants ( as opposed to the original proposal for there to be two members of the Society and one lay person, with a legally qualified chairman). The Committees will sit in private but will have the power to issue a public reprimand where appropriate. In addition to this power the Committees will be able to issue private rebukes but in all other cases where the complaint is found to be made out, must refer the complaint to the Attorney General, who is empowered to bring the matter before the Royal Court. The Court, in accordance with its pre-existing inherent jurisdiction, has the full range of sanctions available to it, from private rebuke or public reprimand, fines, suspension or, in the most serious cases, striking off the roll of solicitors or advocates.
12 The incorporation of the Society by statute will enable membership to be compulsory for all those who practise law as an advocate or solicitor, thus ensuring compulsory compliance with the disciplinary procedure.
13 Another welcome effect of the new Law is to broaden the objects of the Society which, under its 1899 statutes, were limited to “encourage and promote the study of Law and the protection of the interest of its Members”. Under the new Law the objects will include, amongst other things, “the promotion of high standards of professional conduct among practitioners”.
14 In terms of administration the new disciplinary procedure will increase the administrative burden to the Society but by maintaining a substantial degree of self regulation the supervision of the Society’s members should be more cost-effective, both from the point of view of the practitioners and the public purse, than the formation of an entirely separate disciplinary body.
15 It is unlikely that the new law will result in a dramatic improvement in the popularity ratings of Jersey lawyers given that lawyers generally have, since the days when Shakespeare wrote Henry VI Part II, not enjoyed a high degree of public approval. However, it is to be hoped that the public will see greater accountability on the part of those who practise Jersey law and that practitioners will be reassured that, where their livelihood may be at stake, disciplinary proceedings are conducted in a fair, impartial and timely manner.
JERSEY LEGAL INFORMATION BOARD
16 Previous issues of this Review have noted the progress of an important project of the Jersey Legal Information Board to consolidate and to revise the Laws of Jersey. This project has now been concluded and the Revised Laws were launched in April 2005, coming into force on 1st July. Every piece of primary and subordinate legislation passed since 1771 has now been consolidated with subsequent amendments and revised so as to excise spent and otiose provisions. It has been a remarkable achievement by the Law Revisioner, Neil Adsett, and members of the Law Drafting Office in Jersey. The Revised Laws state the law as at 31st August 2004. They are available on the Internet at www.jerseylegalinfo.je.
17 The responsibility for future revisions has now, pursuant to the Law Revision (Jersey) Law 2003, passed to the Law Revision Board constituted by that Law. The Board includes the Attorney General, Greffier of the States, Law Draftsman, and two elected members of the States. It is understood that the next revision must await the changes introduced to bring about ministerial government, but thereafter revisions should occur once or twice a year. On the assumption that those aspirations are met, the statute laws of Jersey should serve as a model for other small jurisdictions.
Return to Contents