Access to justice
and legal aid in Jersey
Few would disagree with the proposition that access to justice is an
important concomitant of a civilised society. The Royal Court has often
indicated that a putative litigant’s right of access to the courts is a
significant matter.1 Since 1991 the International Bar Association
has asserted that legal aid is an essential element of access to justice, an
assertion echoed in a resolution of the UN General Assembly
On 23 January 2014, the States of
Jersey adopted a proposition of the Chief Minister3 and agreed to
establish a Review of Access to Justice and appointed four States members to an
Advisory Panel. The Review was to provide, inter
alia, a “comprehensive and factual description of the current
legal aid system” and examine “the scope for
alternative approaches”. An interim report was to be submitted within six months and a final report
in twelve months.
The first interim
report was presented to the States
on 23 July 2014,4
the second interim report on 29
July 2015,5 and the third on 1 August 2016.6 A final
report has never been submitted.
What was presented, however,
was a draft Access to Justice (Jersey) Law 201-, lodged au Greffe on 27 February 2018
(“the draft Law”).7
1 See, e.g., Neville v Gorst  JRC 094 at para 6.
2 Resolution 67/187 recognised that that legal aid is—
“an essential element
of a fair, humane and efficient criminal justice system that is based on the rule of law, a foundation for the enjoyment of other rights, including the righto a fair trial, and an
important safeguard that ensures
fundamental fairness and public trust in the criminal justice process.”
The draft Law
purported to establish, for the first time, “a legislative basis for
legal aid in Jersey”. In fact, the succinct legislative basis for the
existing legal aid scheme rests upon the Code of 1771,8 where the
oath of advocates contains the obligation to give assistance “aux Veuves, Pauvres, Orphélins, et
Personnes Indefendues”.9 That legal duty is owed by all advocates, notwithstanding the resolution of the Bar of
20 August 1904 which agreed
that the legal aid obligation should be fulfilled
by advocates of less than 15 years’ standing à tour de rôle.10 The same statutory obligation rests upon solicitors of the Royal Court.11
It should be recorded, en passant, that the administration of the scheme is
the responsibility of the Bâtonnier, whose lawful directions advocates are legally bound to follow.12
The draft Law was withdrawn as
being out of time by the newly elected Chief Minister on 5 July 2018, and
subsequently examined by a scrutiny panel in anticipation of being re-lodged.
The draft Law was subsequently enacted as the Access to Justice (Jersey) Law
2019 and registered in the Royal
Court on 18 October 2019 (“the 2019 Law”). It introduces a wholly new legal aid
scheme for Jersey, which merits careful examination in due course. This note is
not concerned with the substance of this important reform but seeks only to
keep subscribers abreast of the glacial progress of its implementation.
On 22 July 2021, the States, by Act,13
brought arts 1, 6, 7, 8, and 9 into force. Those articles, inter alia, established the Legal Aid
Guidelines Committee (LAGC) and the ability of the Chief Minister to make Legal Aid Guidelines. Such
guidelines, at the current rate of progress, seem a long way from being made.
The 2019 Law empowers the Chief
Minister to publish guidelines for the administration of the new Legal Aid Scheme but circumscribes that power
tightly. He can only do so
“with the assistance of the Legal Aid Guidelines Committee”.14 Establishing the LAGC is itself quite an
exercise. The LAGC consists of 12 persons including the Judicial Greffier who
is the Chair. The members are the Attorney General, the
8 States Printers (Jersey, 1968); https://www.jerseylaw.je/laws/revised/Pages/
9 Ibid, at 74.
10 In re an
Advocate 1998 JLR N—14; https://www.jerseylaw.je/judgments/
11 See oath taken by solicitors upon registration; Advocates
and Solicitors (Jersey) Law
1997, Schedule 1.
12 In re an Advocate, 8 June 1998, unreported.
13 Access to Justice
(Jersey) Law 2019 (Appointed day) Act 2021.
14 Article 7 of the 2019 Law.
Court Clerk, the Bâtonnier, the President of the Law Society, the CEO of
the Law Society, two persons nominated by the Bailiff, two other persons
nominated by the Chief Minister, and two States members nominated by the
States. Each of the first five on that list
may nominate another
person to fulfil
his/her role, but before doing so must first consult with the Judicial
Greffier.15 Before the LAGC can advise the Chief Minister, it must consult
the Bailiff and Magistrate and “such other persons as it
Once the Chief Minister has the
advice of the LAGC he must start to prepare the guidelines. In so doing,
he must publish
his proposals and seek
representations form the public. The manner in which he publishes
his proposals and in which the public can make representations must, however,
first be prescribed by Order.
Such an Order, the Access to
Justice (Legal Aid Guidelines) (Jersey) Order 2021 (“the 2021 Order”), has recently been made by the
Chief Minister and came into force on 10 August 2021. This Order provides that the Chief Minister’s proposal
shall also be provided to the
relevant Scrutiny Panel,
the Jersey Citizens
Advice Bureau Ltd and the Jersey Consumer Council.17 He must publish
the proposal on a website managed by the States of Jersey
and publish a notice stating
that he has done so.18 The notice shall state a period of
not less than eight weeks within which members
of the public (but not the other
consultees) may make
representations about the proposal. Other consultees have more time. Certainly,
a Scrutiny Panel would usually take more than eight weeks to consider and
furnish its response.
The Chief Minister must then consider
all the representations which
he has received and finalise
It is not clear whether the Bailiff and Magistrate should again
be consulted but it would seem courteous to do so. But the Chief Minister is
still unable to publish the guidelines and bring them into force.
He must first lay them before the States, specifying the date (at least
four weeks distant) on which they are to take effect. During that period, any
States member may lodge a proposition requesting the annulment of the
guidelines, and they shall not come into force while such a proposition is
outstanding. If the guidelines are annulled, the whole process must start all
15 Article 6(4) of the 2019 Law.
16 Article 6(7) of the 2019 Law.
17 Article 1(1) of the 2021 Order.
18 Article 1(3) of the 2021 Order.
19 Article 7(6) of the 2019 Law.
It is a rather different process
from that described by the CEO of the Law Society and a Jersey advocate in
their 2013 article on legal aid.20
At that time,
and indeed to this day, the guidelines were issued by the Law Society after consultation
with the Royal Court and the Magistrate. The Society considered itself to be
master of its own destiny.21 Benbow and Hanson concluded their
article by stating—
that the ownership of the legal aid scheme and the Rules (the Guidelines) rests solely with the
profession and that it remains within its gift to effect necessary change.
However, it wishes to do so in a spirit of co-operation and fairness, working
with the States of Jersey
and the judiciary to craft a scheme that is
fit for purpose, that offers freedom of choice, maintains a burden on lawyers
that is both fair and proportionate and above all, provides effective access to
justice for those in need.”
Some of those
wishes may have been granted, but only at the price of ownership of the legal
aid scheme. The legal profession no longer controls its destiny in this
respect. That is perhaps not unreasonable as lawyers are to be paid for rendering some aspects of legal aid. The 2019 Law has shifted authority to the
Chief Minister who now makes the Legal Aid Guidelines which set the parameters
of the scheme.22 It can only be hoped
that this function
is exercised with wisdom and common
Remote working and employment law protection
According to the Jersey Evening Post,
consideration is being given
by the Government of Jersey to the taxation consequences of “remote
working” from outside Jersey. The Income Tax (Jersey) Law 1961 imposes a
charge to tax on non-residents whose employment is “exercised within
Jersey”. The potential for remote working from outside the Island has
grown but the legal provisions that address this scenario exist very much for a
former age. It is true that someone who never
visits Jersey does not really
receive services in the Island,
so there is less need for them
to contribute. However, it is also true that, in a society with zero/ten rates of corporation tax, income tax is the principal
20 “Who pays the ferryman? Legal aid in Jersey under the spotlight” (2013) 17
Jersey & Guernsey
Law Review 145, para 88, at 168.
21 That destiny might be
shaped ultimately by the Royal Court—see the observations of Birt,
Bailiff in the Court of Appeal in Flynn v
Reid 2012 (2) JLR 226, at para 52, but that jurisdiction has never been
22 A legal aid scheme was introduced in Guernsey by the Legal Aid (Bailiwick of Guernsey) Law 2003.
means by which
economic activity is taxed. It is unsurprising that this is an area to which
consideration is being given.
In reviewing the position of
remote working from abroad, Jersey should spare a thought for the position of
employment law protection. Indeed, so too should Guernsey.
By “employment law protection”, we mean the various social rights
and obligations imposed by statute on the relationship between employers and
employees. In liberal democracies, employment legislation is invariably aimed
at increasing the rights of employees given the usual imbalance of bargaining
power when it comes to agreeing contracts of employment.
Such employment protection rights
are a creature of statute. The territorial limits of those rights are a matter
of statutory construction.
In the United Kingdom, different
formulations have been used in respect of the territorial scope of employment
protection rights. These provisions were consolidated in s 196 of the
Employment Rights Act 1996 which set out two different approaches to the question
of territorial jurisdiction.
Section 196(1) applied certain
parts of the 1996 Act:
“. . . when
the employee is engaged in work wholly or mainly outside Great Britain
the employee ordinarily works in
Great Britain and the work outside Great Britain is for the same employer,
the law which governs
his contract of employment is the
law of England and Wales or the law of Scotland.”
Section 196(2) applied other provisions—including
the crucial protection against
unfair dismissal—with a
slightly different territorial
reach. These provisions did not apply “to employment where under
the employee’s contract of employment he ordinarily works outside
The fate of these provisions is set out in the House of Lords decision of Lawson v Serco.1 The provisions had used
“deceptively simple- looking words” which the courts had long said
needed Parliamentary attention. When Parliamentary attention came in the form
of the Employment Rights Act 1999, the solution was to abolish
the territorial scope and leave
the courts to work it out
for themselves. The House of Lords responded in Lawson v Serco by determining that
1  UKHL 3, at para 8.
jurisdiction over unfair dismissal arises where the
employment has a greater connection to the UK than to other jurisdictions.
When we turn to
the position of Jersey and Guernsey,
we meet the vicissitudes of drafting
choices. Both Islands
took inspiration from s 196 of the 1996 Act, but in quite
In Jersey, the Employment (Jersey) Law 2003, art 101(1) sets out
a simple rule: “This Law applies to an employment which requires
the person to work wholly or mainly in Jersey”. It
is the first part of the old s 196(1) test in the Employment Rights
Act 1996 but shorn of the qualifications in parts (a) and (b). This has been
understandably interpreted by the Jersey Employment and Discrimination Tribunal
in Le Moignan v C-Air Transport Services to
turn on whether the employee is required to work physically in Jersey, and
whether this presence satisfies the “wholly or mainly” requirement.2
In Guernsey, s 4(1)(a) of the
Employment Protection (Guernsey) Law 1998 deals with the territorial scope of
the unfair dismissal protections in this way:
“This Part of this Law applies
to every employment other than:—
employment where under his
contract of employment the employee ordinarily works outside Guernsey . .
This adopts the
approach in s 196(2) of the Employment Rights Act 1996. As in the UK, this has
been given the benign interpretation of meaning that “The eligibility to claim unfair
dismissal is clearly
defined in the Law as only being available to those who ordinarily work
in Guernsey”.3 Although there is no suggestion that this
jurisdiction requires that an employee should mainly be in Guernsey—very
awkward for workers who are based out of the Island—it is hard to see
how it could apply to someone who has no regular attendance in the Island.
It is doubtless open to the legislatures of the Islands
to decide that, if someone spends absolutely no time
in the Islands, then local employment protection legislation should not apply
to them. However, the reverse point is equally open to the legislatures: it may be a concern that an employer can avoid the
burdens of employment protection legislation by avoiding the employment of
These are policy issues. But they
are policy issues that have only now come into sharp focus and are potentially important. The legal
2  TRE 170, at para 23.
3 Newark v VTSI Ltd EDO 21/15.
remote workers is, according to press reports, being reviewed in the area of
tax. A review in the area of employment protection should also be considered.