Shorter
ARticleS
Whatever
happened to Promulgation?
Steven Pallot
The formalities of promulgating legislation have
gradually ceased to be part of Jersey’s legislative tapestry.
1 It is fair
to say that no one—no one, that is, outside the law drafting office—was
enthused by the passing of the Interpretation (Amendment) (Jersey) Law 2003.
2 The law
made certain things crystal clear when construing Jersey enactments, e.g. that—
“where an enactment
which has been amended by any other enactment is repealed, such repeal shall,
unless the contrary intention appears, include the repeal of all those
provisions of other enactments by which the first-mentioned enactment was
amended.”
Another provision laid
down that—
“where, in an
enactment, more than one penalty is specified for an offence, the use of the
word ‘and’ shall, unless the contrary intention appears, mean that
the penalties may be imposed alternatively or cumulatively.”
There were other
provisions in similar vein.
3 Behind one
provision, however, lay an interesting history—
“Where the time at
which an enactment, whenever passed or made, is to come into operation is
expressed or calculated by reference to its promulgation, and the date of
promulgation is unknown, that date shall be deemed to be the day the enactment
was passed or made.”
Why would the date of
promulgation be unknown? What constituted “promulgation” in Jersey
law and custom?
4 How a
country proclaims its laws to its population is more a matter of history and
tradition than of law. Dictionary definitions disclose little not already known
viz.—
Shorter Oxford English Dictionary:
“put
(a law, decree, etc.) into effect by
official proclamation.”
Dictionnaire Quillet:
“on
désigne ainsi la publication officielle ou solennelle d’une loi.”
5 Writing on
the subject by Jersey legal commentators has been meagre. Promulgation seems to
have been part of the Island’s legislative furniture, commented upon as
much by travel writers as by lawyers. Auguste Luchet, the 19th-century French playwright,
journalist, novelist and writer, published
his Souvenirs de Jersey in 1846. Describing the Statue of King George II
in the Royal Square, he observed that—
“Au pied de la statue est une
pierre où se font les publications légales: la promulgation des
lois, décrets, ordonnances; l'annonce de la paix et de la guerre.”
[At the foot of the statue is a stone from which legal announcements are
made: the promulgation of laws, decrees and ordinances; declarations of peace
and of war.]
6 According
to Abraham
Jones Le Cras in 1839 Orders in Council when registered by the Royal Court were subscribed by
the Greffier “and given to one
of the Denunciators who reads it aloud under the statue in the Royal Square on
a Market day”. Jurat Charles Le
Quesne explained that a dénonciateur
was an executive officer of the court. Two of them were appointed by the
Bailiff—
“but the office is
subordinate to that of Vicomte . . . They are often called Sergens (sic.) de Justice. To them, equally with
the Vicomte, is the duty confided of summoning witnesses. They may also, on a
writ from the Bailiff, seize property for debt, and persons themselves who are
expatriables.”
7 Helier Simon gave evidence
to the 1861 Civil Commissioners. Mr Simon was described in
the Report of the Commissioners as being the deputy Viscount
and had been a practising écrivain
for some 25 years, including as stipulant
dénonciateur. He described in his evidence how Orders in Council
were “read in Court, and given to the Officer to be read in the square,
and affixed to the pedestal of the statue there”.
8 The statue of
George II was erected in 1751. The commentaries above paint a 19th century
picture of the Viscount—or more particularly an officer subordinate to
the Viscount i.e. a dénonciateur, but commonly called
a Sergent de Justice—reading
aloud Orders in Council from the step at the base of the statue in the Royal
Square. How were publications
légales done in earlier days?
9 George
Reginald Balleine described the Royal Square as—
“The open space east
of St Helier Parish Church, once . . . much larger than it is now,[]
[which] was for at least 600 years the shopping centre for the Island. It was
known as le Marché, the Market. Before the Reformation its central
feature was the Market Cross, where public proclamations were made and all new
laws were published. The surrounding space was filled with stalls, piled with
goods of every description . . . The fish was laid out on flagstones,
where the statue now stands. The corn market was on the site of the present
Union Club.”
10 Saturday
was market day (jour de marché).
It was also the day from which the Cour
du Samedi derived its name. Hemery and Dumaresq described how the Saturday Court had “the most
business of any”, and how—
“the various kinds
of actions that affect personal property; as also, contested elections, repeals
of wills, admiralty causes, matters which concern the Police, the Poor, the
militia service, and the King’s revenue”
were brought before it.
“Bénéfice d’Inventaire
is also granted here. Actions that are of a mixt nature . . . are
likewise of the cognizance of this Court; and all prosecutions are commenced,
and sometimes ended here.”
11 Jean
Poingdestre offers us further historical insights. Poingdestre was appointed
Lieutenant-Bailiff in 1668 by the then Bailiff, Sir Edouard de
Carteret. Because the latter did not reside permanently in Jersey, the
responsibilities of the Bailiff fell upon Poingdestre, who remained as
Lieutenant-Bailiff until 1676 and as a Jurat until his death in 1691. His Lois
et Coutumes de l’Ile de Jersey dealt with the office of Vicomte.
He described (with apparent regret) how in Jersey it was but “le
Squelet” of the Vicomte of mainland Normandy, the office of
Bailli in Jersey having eclipsed that of the Vicomte. The
latter’s powers and functions were “plutôt [ceux] de
Sergent de l’Espée ou de simple sergeant, que de juge”. But
among these functions was—
“recevoir les Commandements de
la Justice, publier à la Croix les ordres de la Cour, et donner autres
advertissements au public, selon les exigents.”
[receive the judgments of the Royal Court, make public the orders of the
Court at the Cross, and give any other notices to the public as may be
required.]
The reference to
publication à la Croix is a 17th
century reference to the action which Auguste Luchet was describing in the 19th
century i.e. publication légale, except that, instead of promulgation
being done from the stone at the base of a statue in the Royal Square, it was
done in front of the Market Cross.
12 Poingdestre
also tells us the Bailiff had the—
“nomination d’un Officier
subordoné au Vicomte, lequel nous appellons Dénonciateur:
Anciennement on l’appellait Bedeau: lequel fait ordinairement les menus
exploits, & assiste en la place du Vicomte à la Cour, et meme il
exerce toute la charge dudit Vicomte, en son absence, sans autre commission.”
[nomination of an officer subordinate to the Viscount, called the Dénonciateur: formerly he was
called the Beadle: who would ordinarily draw up the list of writs, and assist
the Viscount in the Royal Court, and indeed exercise all the functions of the
Viscount, in his absence, without any other authority.]
It is not clear whether publication à
la Croix and giving of other notices to the public ordinarily fell within
the remit of a dénonciateur at that time. Certainly by the 19th century
it appears to have done so, albeit that Le Quesne did not list it among
the functions of the dénonciateurs/Sergents de Justice.
13 A pre-19th
century picture emerges of the Viscount or quite possibly a dénonciateur (discharging what
Poingdestre saw as a function of sergent)
standing before the Market Cross, the focal point of a crowded Saturday morning
market, proclaiming in the French language that, pursuant to an Order in
Council, a Loi had been registered by
the Royal Court. He would not have read out the Loi itself, presumably, but rather the text of the covering Order
in Council which was the instrument that had actually been registered by the court.
At all events his audience would for the main part have been illiterate. Undoubtedly
his proclamation would have been à
haute voix [in a loud voice]. Laws and ordinances were not passed with
anything like the frequency that laws and subordinate legislation are passed in
the 21st century. The proclamation of an enactment in the Royal Square would
have been a notable public event.
14 What of
the 20th century? In the earlier part of the century, promulgation was very
much alive and well and ingrained in the public consciousness. The Morning News reported that on Saturday 24 February 1917 a crowd gathered in
the Royal Square to hear the promulgation of the Loi sur le service militaire (relating to conscription in the First
World War).
15 After the
Second World War, promulgation by an officer of the Viscount’s Department
was a normal (albeit closing) step in the legislative process. Acts of the
Royal Court recording the registration of an Order in Council expressly
mandated that—
“ledit
Ordre soit enregistré sur les records de l’Ile et publié par
l’Officier au lieu ordinaire à jour de marché, afin que
toutes personnes puissent en avoir connaissance.”
[the said order shall be registered on the
records of the Island and made public by the Officer in the usual place on
market day, so that all persons may have knowledge of it.]
or, in the case of an Order in Council
granting Royal Assent to an Act of the States, that—
“ledit
Ordre soit enregistré dans le livre des Ordres du Conseil et
publié, ainsi que ledit Acte des Etats, au lieu ordinaire à jour
de marché, afin qu’il tire son plein et entier effet selon son
teneur.”
[the said order shall be registered in the
book of Orders in Council and made public, as well as the said Act of the
States, in the usual place on market day, so that it may take effect according
to its terms.]
16 Indeed
Jersey laws, when passed by the States Assembly as Acts of the States,
invariably concluded with the direction that the act was “To be printed,
published and posted” (a translation of the time-honoured formula for laws
drafted in French: “Ce qui sera imprimé, publié et affiché”).
17 Increasingly
also, regulations and acts were made by the States which did not need to be
registered by the Royal Court. They too invariably carried this direction. But
this was not the case with lesser delegated legislation in the form of orders
made by Committees of the States.
18 The
direction—
(a) that the enactment be imprimé (printed) was complied with by the Greffier of the
States, who saw to the printing of the enactment;
(b) that the enactment be publié (made public) was complied with by the Viscount, who
saw to the promulgation of the enactment; and
(c) that the enactment be affiché (posted) was complied with by the Parish, who saw to
the enactment being posted in the box—la
boîte grillée—set up at the principal entrance of a
parochial cemetery in accordance with the Loi
(1842)
sur les publications dans les Eglises.
19 The
certification by the officer of the Viscount’s Department was in the
following form (this example was for the promulgation of the Paid Police Force
(Policing of Public Gardens) (Jersey) Act, 1954):
Ce 3eme Avril 1954.
J’ai publié l’Acte ci-dessus au lieu
ordinaire, à jour de Marché.
De quoi j’ai donné ce record.
“H. V. Benest”
…………………………….
Sergent de Justice
20 3 April
1954 was a Saturday (hence jour de Marché).
21 The standard
direction that a law or regulations be printed,
published and posted fell away with the passing of the Official Publications
(Jersey) Law 1960. Under this law the Jersey Gazette was established. The Jersey Evening Post, published by WE Guiton & Co Ltd, was designated
as the newspaper in which the Jersey Gazette was to be published; and the
Gazette was headed with the arms of the Bailiwick.
22 The law
required the Greffier of the States, following—
(a) the
promulgation of—
(i) any law passed by the States and sanctioned by Her
Majesty in Council,
(ii) any regulations made by the States,
(b) the making
of any order by a Committee of the States,
to print the enactment, and to publish in the Jersey Gazette a notice
stating that it had been passed, when it came into force and where printed
copies could be purchased.
23 Promulgation, in the case of laws and regulations made by
the States, was not therefore supplanted by the notice in the Jersey Gazette. In
the case of Committee orders, the law of 1960 pre-supposed that promulgation
was not required. Thus promulgation remained part of the legislative process in
relation to enactments made by the States Assembly; and the Viscount (or Sergent de Justice) was still to make a
proclamation in the Royal Square, and to provide a certificate of having done
so au
lieu ordinaire, à jour de Marché.
24 Changes were afoot
in the Viscount’s department in the 1960s. The Department had been
constituted by the Loi (1930) constituant le Département du
Vicomte. This Loi had
removed the power of the Bailiff to appoint two dénonciateurs, and had provided for the Viscount’s department
to be composed of the Viscount, a Sergent de Justice
and a deputy Sergent de Justice,
along with a sufficient number of clercs
for the department to operate.
25 The Loi of 1930
was repealed and incorporated into the Departments
of the Judiciary and the Legislature (Jersey) Law 1965 under which the department
consisted, and consists to this day, of the Viscount and the Deputy Viscount. The
Law of 1965 also enabled the Viscount and the Judicial Greffier, with the
consent of the Bailiff, to designate one or more officers of their respective departments
to discharge functions attributed under the law to sworn members of those departments,
the officers so designated being known as “Viscount Substitute” and “Greffier
Substitute” respectively.
26 Thus
from 1966 onwards promulgation on a Saturday morning in the Royal Square was no
longer able to be done by the Sergent de Justice.
Instead the task fell to the Vicomte,
the Député Vicomte or a
Vicomte substitut.
27 The realities of daily life in the
Royal Square had of course changed. There was no market there on a Saturday, or
on any other day. The Royal Court (Samedi Division), as it was termed by the
1960s, now sat on Friday mornings. Anyone interested in any of the growing number of enactments
emanating from the Jersey legislature would have purchased an Evening Post and consulted the Jersey
Gazette. Promulgation is understood to have been done as early as possible (de bonne heure) on the Saturday morning
the day after the Friday sitting of the Royal Court. The
Viscount’s officer promulgating—to take a random example—the Air Navigation (Noise and
Vibration on Aerodromes) (Jersey) Regulations 1966 early on Saturday morning, 1
October of that year must have cut a lonely figure. It is doubtful whether any
of the few members of the public who would have been in the Square would have
known what was happening. The time 50 years earlier, when crowds had gathered
in the Royal Square to witness the Military Service Law being promulgated, was
long gone. By the 1960s, one either read the Evening Post or watched
the television.
28 Another 50 years has now elapsed
since the 1960s. It is not clear for how long precisely the Viscount’s
Department soldiered on with formal promulgation. Time has not permitted an
exhaustive trawl of departmental files to establish when publication au lieu
ordinaire à jour de marché finally petered out altogether. But
peter out it had done by the turn of the century; and this reality was
acknowledged by the provision in the Interpretation (Amendment) (Jersey) Law 2003, referred
to at the beginning of this article.
29 The world
of communications has of course moved on further since 2003. An order—the
Official Publications (Publication of Jersey Gazette) (Jersey) Order 2018—came
into force on 14 July 2018. It provided, curtly, that—“The Jersey Gazette shall be
published on the States of Jersey website at gov.je/gazette”.
30 All the vivid history of promulgation of Jersey
legislation before the Market Cross (à
la Croix), and au lieu ordinaire,
à jour de Marché, leads us to the 21st century and . . .
a website.
31 The demise of promulgation in Jersey contrasts with its
entrenchment by statute in the Isle of Man. An
Act of Tynwald must be promulgated (read out in Manx and English) within 18
months on Tynwald Hill, St. John’s, or it ceases to have effect.
It is important to note, however, that the Isle of Man has no counterpart to
the requirement for registration of United Kingdom Acts and Orders if they are
to be of any effect in the Island.
Registration by the Royal Court is part of its public business when it sits (en séance publique) on Friday
mornings. In constitutional and legal terms, registration has always been key,
rather than promulgation; and the demise of the latter is understandable in the
modern age. Still, there is a tinge of sadness that promulgation is no longer
part of Jersey’s legislative tapestry.
32 This is not to say that proclamations
of any sort by the Viscount in the Royal Square are a thing of the past. The
last Accession Proclamation was read out by the Acting Viscount
to an impressive gathering in the Royal Square on 09 February 1952. The next
such Proclamation, hopefully still many years away, will presumably be made in
the same way.
Steven Pallot is
an advocate of the Royal Court of Jersey and was a senior legal adviser in the
Law Officers’ Department, Jersey until his retirement in 2017. He now
acts as a consultant to the Attorney General.
Extension
of the Bailiwick of Guernsey’s territorial seas
Jon McLellan
1 On 23 July 2019, the territorial waters
adjacent to Guernsey, Alderney and Sark were extended from 3 to 12 nautical
miles (nm). This change, which was many years in the making, belatedly brings
the Bailiwick in line with Jersey and the great majority of coastal states.
2 The basis of the extension in
international law is the United Nations Convention on the Law of the Sea of 10
December 1982 (UNCLOS), which provides that—
“Every State has the right to establish the
breadth of its territorial sea up to a limit not exceeding 12 nautical miles,
measured from baselines determined in accordance with this Convention.”
3 The change was effected by an Order in
Council made on 10 July—the Territorial Sea Act 1987 (Guernsey) Order
2019—made in exercise of powers conferred on Her Majesty by the
Territorial Sea Act 1987 (“the 1987 Act”) and registered on the
Records of the Island of Guernsey on 22 July. This Order, which repealed two
earlier Orders made under the 1987 Act, extends that Act to the Bailiwick,
subject to specified exceptions, modifications and adaptions set out in a Schedule
to the Order and representing the bulk of its text. It specifies the “seaward
limit of the territorial sea adjacent to the Bailiwick of Guernsey” by
reference to a list of coordinates (as defined on the World Geodetic System
1984 Datum, which, it should be noted, is a different system from that used in
the equivalent Jersey Order), providing that when the territorial sea adjacent
to the Bailiwick and the French Republic would otherwise overlap, the Bailiwick’s
territorial sea extends to the median line between the baselines from which
both jurisdictions’ territorial seas are measured. (This is consistent
with the rule in international law that where the coasts of two states are
opposite or adjacent, the general rule is that neither is entitled, unless they
agree otherwise, to extend its territorial sea beyond the median line.) It also
has some specific savings in relation to the operation of fisheries
legislation. The drafting of the Order was a team effort between lawyers at the
Foreign and Commonwealth Office and the Law Officers’ Chambers.
4 The sovereignty and right to legislate
that come with extension have important implications for the future of the
Bailiwick. For example, it creates opportunities for greater environmental
controls in respect of the waters around the Bailiwick, and significantly
increases the extent of legislation that is expressed to extend to the
territorial seas (including criminal justice legislation, with the associated
implications for law enforcement). It is also clearly relevant in the context
of Brexit and particularly the UK’s decision to withdraw from the London
Fisheries Convention; clear domestic control over the 3–12 nautical miles
(“nm”) band in these circumstances is seen in political and policy
terms as a distinct advantage. Other potentially affected areas of activity
include maritime traffic control, the management and control of wrecks (which
is going hand-in-hand with work to have the Nairobi Wrecks Convention extended
to the Bailiwick), hydrographic surveying, infrastructure management
(electricity cables, pipelines), and renewable energy. With Brexit, the greater
focus on and perceived importance of environmental management, and the
increased importance of marine spatial planning and the “blue economy”
generally, the extension feels as if it has come at a very apposite moment.
5 Before the extension, the area from 3–12nm
was, in international law, high seas where foreign vessels enjoyed freedom of
navigation (as opposed to the lesser right of innocent passage through another
state’s territorial waters). Such a busy and strategically important area
of water was never going to be wholly uncontrolled, however, and it was
regulated for fisheries management purposes and subject to various
international agreements, including in respect of search and rescue (under the
longstanding MANCHEPLAN arrangements with the French authorities). Clearly that
has not all fallen away with the extension; rather, it represents a base on
which to build in the years ahead.
6 While undoubtedly seen as a generally
positive development, the Bailiwick’s authorities are aware that the
extension is not without potential disadvantages. With greater control and
legislative competence comes greater responsibility and, more prosaically,
potentially increased costs and resources. From the possibility of greater
resource requirements in relation to law enforcement and the investigation of
deaths at sea, to the need for a potentially much greater pollution response
capability in the future, there is no doubt that the extension is likely to
have some resource and financial implications, and new potential for
reputational risk.
7 Jersey made the move “from 3 to 12”
in 1997;
so why did it take Guernsey so long? The answer to that lies at least in part in
the extra complexity of legislating in respect of three separate jurisdictions
(Guernsey, Sark and Alderney) and ensuring the interests of each are properly
represented, especially in the context of increasing politicisation of, and
sensitivity around, issues such as fishing rights. Each jurisdiction has its
own territorial sea, in respect of which it has legislative competence (subject
to pre-existing conventions, for example in respect of criminal justice), and
the boundaries between them after extension will be defined by formal
agreement, though it is inevitable that, looking forward, work will be
undertaken by the three islands to agree various combined, or Bailiwick-wide,
management plans. There was also the added complication of the Hurd Deep, a seabed
channel within the northern fringe of the extended territorial sea, into which
toxic materials and munitions were dumped for many years, any prospective
clean-up of which would have been prohibitively expensive.
8 It may also be asked why three miles was
the previous limit. The standard extent of nations’ territorial seas from
the 1700s until the mid- 20th century, viz.
three miles, is said to represent the reach of cannons fired from land. In this
way, the extension of the Bailiwick’s territorial seas, while clearly a
positive development in terms of the continuing development of the Bailiwick’s
international identity and in many other ways, can also be seen as the loss of
an interesting piece of customary international law.
Crown
Advocate Jon McLellan is the Director of Legislative Drafting, Law Officers of
the Crown, Guernsey