Jersey and Guernsey Law Review

Miscellany

Registers of beneficial ownership of companies                           1

Articles

Bicameralism in the Isle of Man

Peter W Edge                                                                                   6

Treaty-making in the Channel Islands

Philip Bailhache                                                                             30

Guernsey legal methodology—an explanation

Gordon Dawes                                                                               44

Case Summaries                                                                          102

Summary of Legislation: 1 September–31st December 2023

Bailiwick of Jersey                                                                        125

Bailiwick of Guernsey

     Guernsey                                                                                 129

     Alderney                                                                                  142

     Sark                                                                                         143

Notes for Contributors                                        Inside back cover

Registers of beneficial ownership of companies

1 The extent to which the public should have access to registers of beneficial ownership of companies has been a contentious issue ever since Companies House in the United Kingdom introduced such a register (the People with Significant Control register) in 2016. There was an unsuccessful attempt in 2018 to introduce an amendment to the Sanctions and Anti-Money Laundering Bill[1] during its passage through Parliament to force the Channel Islands to follow suit. The amendment would have required the Secretary of State inter alia to—

“prepare a draft Order-in-Council requiring the government of any Crown dependency that has not introduced a publicly accessible register of beneficial ownership of companies within their jurisdiction to do so.”[2]

In fact, the amendment was not pressed to a vote by Her Majesty’s Opposition. There appears to have been a general recognition that it would have been unconstitutional to do so, and that it was for the governments of the Crown Dependencies to determine when, and if, they should open their registers to the public.

2 The tumbrels were rolling again, however, on 7 December 2023 when a debate in the House of Commons scheduled by the Backbench Business Committee, and led by Dame Margaret Hodge MP, discussed the implementation of public registers of beneficial ownership in the overseas territories and the Crown dependencies. Dame Margaret urged the Minister—

“to take two actions. First, will he now lay an Order in Council, requiring the overseas territories to introduce public registers of beneficial ownership forthwith? Secondly, will he legislate to require Crown dependencies to do the same? If the Government do not act, I can assure him that Parliament will, for we must, for the sake of our economy, for the sake of our security and for the sake of our reputation. I urge the government to move forward on this issue.”[3]

3 It is doubtful that the Channel Islands cause any damage to the economy of the United Kingdom. Indeed, a report by Capital Economics in 2016 found that “Jersey is a conduit for an estimated almost £½ trillion of foreign investment into the United Kingdom.”[4] So far as security is concerned, Sir Bob Neill MP[5] reminded members that the Crown dependencies operated—

“in lockstep on national interest matters and money laundering, transpose into their domestic law all the sanctions that we have brought in as the UK in relation to Russia, and it is no good pretending otherwise.”[6]

As to reputation, there appears to be no publicly available legal analysis by the UK Government of the judgment of the Court of Justice of the European Union (CJEU) in the case of WM and Sovim SA v Luxembourg Business Registers.[7] As a matter of policy, the UK has determined that—

“Having analysed the CJEU ruling and re-evaluated the ECHR compatibility of the PSC [People with Significant Control] and ROE [Register of foreign Entities] regimes, the Government continues to assess that they are compliant with Article 8 [of the ECHR].”[8]

By contrast, the Crown dependencies have taken careful note of legal advice, and concluded, as have most member states of the EU, that publicly accessible registers do not comply with the ECHR (or the European Charter of Rights).

4 The judgment of the CJEU could not be clearer. The Grand Chamber stated that the relevant EU Directive, in so far as it—

“provides that Member States must ensure that information on the beneficial ownership of companies and of other legal entitles incorporated within their territory is accessible in all cases to any member of the general public [is invalid].”[9]

5 This may be an inconvenient judgment for those MPs at Westminster who support the principle of open registers of beneficial ownership. Such inconvenience would hardly be a basis, however, for concluding that “good governance” required an intervention in the domestic affairs of the Crown Dependencies. A governmental intervention seeking to compel the CDs to act in breach of the ECHR, as determined by the Court of Justice of the European Union and followed by no fewer than 23 EU member states, would be risible. It would also undoubtedly lead to a serious clash because it is very unlikely that the States Assembly in Jersey or the States of Deliberation in Guernsey would tolerate quietly such a gross breach of the constitutional relationship. The UK Government would do well to reflect carefully before responding to the ill-considered wishes of a clutch of backbenchers.[10]

6 Shortly after the debate in the House of Commons, on 13 December 2023, the governments of the three Crown dependencies issued a statement which asserted—

“(2) We have a longstanding and independently verified track record of meeting international standards. We are proud of our global leadership in tax cooperation, and in combatting money laundering, terrorist financing and proliferation financing. We will continue to provide appropriate and effective transparency which can support those critical objectives.

(3) We recognise the importance of access to accurate and up-to-date beneficial ownership information in countries across the globe. We each maintain high standards of accurate, up-to-date and verified information in our central beneficial ownership registers. We closely monitor developments internationally to ensure that our own systems remain robust, effective and in line with international standards and obligations. We have a proven and ongoing ‘good neighbour’ policy of cooperation with the UK and the EU in matters relating to taxation and combatting financial crime. We also assist countries around the world in those efforts. We remain committed to contributing to, shaping and implementing global standards in those important areas.

(4) Our priority remains to continue providing effective access to up-to-date and verified beneficial ownership information to law enforcement and tax authorities in the UK, Europe and across the world, as has been our longstanding approach.”[11]

7 They concluded that—

“the governments of the Crown dependencies are satisfied that it would not be compatible with the international obligations extended to them, including those enshrined in their domestic laws, to grant access to their beneficial ownership registers to the general public.”[12]

This conclusion followed hot on the heels of a similar statement from the Government of the British Virgin Islands indicating that it would not allow public access to its register of beneficial ownership.[13]

8 The international obligations in question are those deriving from the extension of the European Convention on Human Rights to the Channel Islands. The domestic laws referred to are the Human Rights (Jersey) Law 2000 and the Human Rights (Bailiwick of Guernsey) Law 2000 which incorporated the ECHR into the domestic law of Jersey and Guernsey respectively.

9 The governments of the Crown dependencies did make it clear, however, that they would be enhancing the accessibility of their beneficial ownership registers. First, they would enable automatic access before the end of 2024 for financial services business and other businesses which are required to conduct customer due diligence under the anti-money laundering and countering of terrorism financing regimes. Secondly, they would, subject to the approval of their respective legislatures, provide access to those who could show that they have a legitimate interest in seeking it. The WM and Sovim judgment recognised that the press and civil society organisations were connected with the combating and prevention of money laundering and terrorist financing and had a legitimate interest in accessing information on beneficial ownership.[14] The extent of the exception for those with a “legitimate interest” is under consideration within the EU in the context of the draft Sixth Anti-Money Laundering Directive.

10 The statement of the governments of the Crown dependencies led to further condemnation from the same MP.[15] If politicians are to speak of “reputation”, however, it seems that the Channel Islands have nothing of which to be ashamed. It is not the actions of the Channel Islands which reflect upon the international reputation of the United Kingdom.[16] There is a serious debate to be conducted on the appropriate balance to be struck between transparency and privacy. No one doubts the need to take appropriate and firm action against the perpetrators of financial crime, but such action should not be at the expense of the human rights and data protection rights of most citizens who comply with their obligations under the law. Such a debate is currently taking place in the European Union but seemingly not, sadly, in the UK.

[1] Now the Sanctions and Anti-Money Laundering Act 2018. The extent provision, at s 63, provides that the relevant parts of the Act may be extended to (inter alia) the Channel Islands but none has been. The extent provision was itself a constitutional irregularity because it had not been requested by the governments of the two Bailiwicks.

[2] See “Miscellany: A challenge to the legislative autonomy of the Channel Islands” (2018) 22 Jersey & Guernsey Law Review 116.

[3] https://www.parallelparliament.co.uk/debate/2023-12-07/commons/commo ns-chamber/beneficial-ownership-registers-overseas-territories-and-crown-dependencies [accessed on 16 December 2023].

[4] Jersey’s Value to Britain, Capital Economics Ltd (London, October 2016) Key Findings.

[5] Chair of the Justice Committee.

[6] https://www.parallelparliament.co.uk/debate/2023-12-07/commons/commo ns-chamber/beneficial-ownership-registers-overseas-territories-and-crown-dependencies [accessed on 16 December 2023].

[7] https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:62020CJ0037 [accessed on 16 December 2023].

[8] Policy paper, supplementary ECHR memorandum: amendments made to parts 1–3 Economic Crime and Corporate Transparency Bill (BEIS measures), 30 January 2023.

[9] https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:62020CJ0037 at para 88 [accessed on 16 December 2023].

[10] Dame Margaret Hodge’s letter of 20 December 2023 to the Foreign Secretary, Lord Cameron of Chipping Norton PC, asking for immediate action from the UK Government was countersigned by 32 cross-party MPs.

[11] https://www.gov.je/News/2023/Pages/JointCommitmentByGuernseyThe IsleOfManAndJerseyRegistersOfBeneficialOwnershipOfCompanies.aspx [accessed on 16 December 2023].

[12] Ibid at para 7.

[13] https://www.bvibeacon.com/virgin-islands-pushes-back-after-united-kingd om-criticized-company-register/ [accessed on 17 December 2023]. It will be interesting to see how the Government of the UK deals with that stance of the BVI. The Government has imposed a deadline of 31 December 2023 for the Overseas Territories to implement publicly accessible registers.

[14] https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:62020CJ0037 at para 74 [accessed on 16 December 2023].

[15] See para 2 above.

[16] See Noseda, “Dieu and whose droit? Relationship with the UK: lessons from the Sovim judgment” (2023) 27 Jersey & Guernsey Law Review 252. See also Noseda, “Too much information: when the UK gets it wrong” (2017) 21 Jersey & Guernsey Law Review 182; Noseda, “Too much information: why did the UK get it wrong?” (2021) 25 Jersey & Guernsey Law Review 63.

Peter W Edge

Unicameralism is the norm for small democracies. The Isle of Man is something of an outlier, being the only Crown Dependency with a bicameral legislature. The second chamber of the modern Tynwald originates from constitutional reforms of the early twentieth century, and has been subject to more than a century of incremental development. It gives a worked example of a distinctive way of appointing to the second chamber—first chamber franchise—which may be useful to consider for other small democracies considering reform of an existing bicameralism, or adopting bicameralism for the first time. This paper sketches out the shape of the Manx experience since 1919, bringing out themes which may be useful to Jersey and Guernsey in evaluating any bicameral future.

1. Introduction

1 Unicameralism is the norm in small democracies, to a far greater extent than for larger democracies. Supplementing Inter-Parliamentary Union data on 190 parliaments globally,^[1]with a review of 29 national legislatures of dependent territories,^[2] shows a significant difference: of the 190 legislatures of sovereign states, 79 were bicameral (42%); of the 29 legislatures of dependencies, 5 were bicameral (17%). The explanation for this may be both a reduction in the benefits of bicameralism for small democracies, and the capacity issues which are an ever-present concern for small democracies.

2 In her seminal study of the contemporary House of Lords, Russell builds on earlier work by Patterson and Mughan to cluster possible functions of bicameralism into representation and redundancy.^[3] The representation function allows opportunities “for different groups to be represented, which may benefit those who are absent from, or disadvantaged by, arrangements in the first chamber”.^[4] A territorial model for representation, for instance, may allow representation of jurisdictions or regions within a state. Alternatively, a second chamber may also represent “an alternative logic of representation”, such as that of Australia where the first chamber uses first-past-the-post electoral rules, while the second chamber uses proportional representation. The redundancy function, however, refers to the duplication inherent in a two chamber system: “legislation is looked at not once, but twice”, with potential benefits for the quality of policy decisions, particularly where the second chamber is designed to bring a different perspective to bear. Additionally, the delay inherent in this duplication allows issues to be discussed beyond the first chamber, potentially involving a broader discussion in the nation.

3 Small democracies, while in some instances wealthy on a per capita basis, have restricted resources for governance. The costs inherent in the duplication, which is not simply a bug but a feature of bicameralism, may explain the relative absence of bicameralism in small democracies. Additionally, for a number of small democracies representation of sub-units may not be so pressing a factor as to justify the expense. Bicameralism is “[t]ypically associated with large, decentralised or federal states” so that, as Murphy observes, it is unusual to find it “within a centralized and unitary Irish state with a population of less than five million”.^[5] Bicameralism is, indeed, “often portrayed as the quintessential federal institution”.^[6]

4 If a small democracy can afford bicameralism, however, some of the functions identified by Russell will still apply. A second chamber may be designed to provide representation of different perspectives in the legislature. It may serve an important role in scrutinising legislation proposed by the first chamber. It may impede the speedy passing of at least some legislation, at least in normal times, providing opportunities for reflection and public engagement with the proposed legal changes.

5 If a small democracy sees the advantages of bicameralism as meriting a departure from the more common unicameral form, then composition of the second chamber poses serious challenges. Direct election is not unknown. The Northern Marina Islands and American Samoa are small democracies—each around 50,000 population—with a directly elected second chamber; possibly as a result of their dependence upon the United States which has a similar structure.^[7] Direct election to a second chamber may result in a large and so expensive second chamber, or to one where the members can point to a larger electoral mandate than members of the first chamber, raising substantial issues of legitimacy in the event of a conflict. Sub-units of the nation may not be strongly formed enough to justify representation in the national legislature, and if directly elected may similarly produce tensions of mandate and authority between the first and the second chamber. A second chamber nominated by the government may struggle with legitimacy—as Johnston and McLean observed dryly in 2021, “to propose a new nominated upper house in Jersey might meet resistance”.^[8] If a small democracy wishes for a bicameral legislature, then how is the second chamber to be composed?

6 The Isle of Man has, for more than a century, taken a distinctive approach to this, which I describe elsewhere as first chamber franchise, by which I mean where a democratically elected first chamber, sitting as the first chamber, appoints the majority of the second chamber as part of their parliamentary business.^[9] This paper will sketch out the shape of the Manx experience since 1919, and bring out themes which may be useful to Jersey and Guernsey in evaluating any bicameral future. Although previous considerations of bicameralism for Jersey have mentioned the existence of bicameralism in the Isle of Man, its distinct form has not been considered—perhaps unfortunate for the only bicameral Crown Dependency, and one of only two British dependencies with bicameral legislatures.

2. The development of the Legislative Council in Tynwald, 1417–2023

7 The central organ of governance in the Isle of Man is Tynwald, which is for most purposes a bicameral legislature, although for a number of functions the two chambers sit together as Tynwald Court—leading Tynwald to be described as a tricameral legislature, albeit one with only two sets of members.^[10] The two chambers are the House of Keys, roughly analogous to the House of Commons, and the Legislative Council, roughly analogous functionally to the House of Lords, although with a very different history and composition.

8 Before the 19th century, neither chamber included members elected by even a small subset of the Manx population. Members of the House of Keys (MHKs) were appointed by the Lieutenant-Governor from nominations by the Keys themselves—leading to a self-perpetuating oligarchy.^[11] Nonetheless, the Keys was seen as to some extent representing the country. This was in contrast to the Legislative Council, which was composed of the principal officers of the Lord of Man, joined by the Lord Bishop of Sodor and Man. Tension between these two bodies was, as anticipated at the time, exacerbated by the introduction of democratic election to the Keys from 1867, and the balance of power between the two has shifted very considerably since that time.^[12]

9 In particular, before 1961 legislation required the approval of both the Keys and the Council—giving the Council a veto over legislation which had been approved by the democratically elected Keys. The absolute veto of the Council over legislation became a central concern for the Keys, eventually leading to the Isle of Man Constitution Act 1961, which introduced a procedure whereby a Bill could become an Act of Tynwald without the consent of the Legislative Council expressed both in its own Branch, and in Tynwald Court as a whole. This required not only a majority or, in some cases, a special majority in the House of Keys but also that the Council should have had repeated opportunities to pass the Bill itself. Originally, these provisions could only be triggered if the Council had failed to pass the Bill after two years but in 1978 this was changed to one year. In 2006 the Constitution Act 2006 simplified the 1961 mechanism to allow the House of Keys to dispense with the consent of the Council to a Bill which had not been passed by the Council within 12 months of being sent to the Council from the Keys. This override was triggered by the passing of a motion with a special majority of 17/24. At the time of writing, these mechanisms have only been used twice, but the possibility of override has influenced Council voting on other occasions.^[13]

10 As noted in my introduction, the focus of this piece is on composition of the second chamber. In particular, who sat in the Council? how did they get there? how has this changed over time? There is a fundamental division between different types of Legislative Council member which needs to be addressed now, as it underpins the structure of the discussion which follows.

11 Before 1919 the Legislative Council was composed entirely of officers—effectively being the Council of the Lieutenant-Governor sat for legislative business. Although membership varied over the centuries, the key feature is that these were officers who sat ex officio—that is by virtue of their administrative, judicial, or ecclesiastical role in the government of the Isle of Man. In contrast to the Keys, which were seen as in some sense representative of the Manx people even before the introduction of (admittedly imperfectly) democratic elections in 1867, the Council was seen as the Imperial establishment of the Isle of Man.

12 In 1911 a Departmental Committee was appointed by the UK Home Secretary, led by Lord MacDonnell. The Committee considered proposals from the Keys for the creation of an Executive Council, and reforming the composition of the Council so that the majority of its members would be directly elected, with a minority nominated by the Crown. The Report supported the idea of an elected element in the Council, while rejecting direct election in favour of the Keys acting as an electoral college. The Report’s reasoning is interesting—

“if the party system were developed in the House of Keys we think that there would be much to be said for direct election; and should a well-marked division on party lines become hereafter developed in that House, we would advise that the elections should then be by the constituencies.”

13 The Report supported the Lord Bishop remaining in the Council because of “his traditional connection with the Council and Tynwald, … the ecclesiastical interests confided to his charge, and … his respected and authoritative personality”. It did not, however, see a justification for retaining other ecclesiastical officers, and was concerned that the Council should be of moderate size. As a result, the Isle of Man Constitution Act 1919 removed the Archdeacon, the Vicar General, and the Receiver General. They were replaced with two members appointed for fixed terms by the Lieutenant-Governor, and four members elected by the House of Keys. Incremental reforms replaced both ex officio and appointed members with members elected by the House of Keys, so that since 1990 the Legislative Council has consisted of the President of Tynwald, who is elected by the members of Tynwald and sits ex officio as President of the Legislative Council; the Lord Bishop of Sodor and Man, who sits ex officio; the non-voting Attorney General, who sits ex officio; and eight Members of the Legislative Council (MLCs) elected for a fixed term by the House of Keys.

14 The 20th and 21st century Legislative Council, then, was and is a modern iteration of an ancient part of the Manx constitution. Although radically different from the Council of earlier centuries, no longer being a body of Crown appointees dominated by the Lieutenant-Governor, it constitutes a long history of Manx bicameralism. As I discuss later, reforming bicameralism is significantly different from adopting bicameralism. Nonetheless, the composition of the 20th and 21st century Council can help to inform such discussions.

15 I will consider the ex officio and appointed members first, these groups having been eliminated or much reduced in importance in the contemporary Legislative Council. I will then consider at greater length the eight elected MLCs.

3. Ex officio members and appointed members

16 As the Manx constitution developed throughout the twentieth century, and in particular as the dominance of the democratically elected Keys within that constitution became stronger, the ex officio members were removed, to be replaced by elected members. Similarly, the two appointed members were also replaced with elected members in 1969.

17 The process by which these members were selected for the Legislative Council is, compared with the elected members discussed below, opaque. Nonetheless, some patterns in who joined the Legislative Council through these routes can be observed.

18 First, no woman was ever appointed to the Legislative Council as an ex officio or appointed member. Up until 1961, three seats were legally reserved for men. The two appointed members had, by Manx statute, to be men.^[14] This measure was passed in the same year as legislation opening up candidature to the House of Keys to women, so their exclusion from the Legislative Council is particularly striking. These posts were opened to women in 1961 but, with the abolition of elected members in 1969, no woman was ever appointed to the Legislative Council. A third post, that of Lord Bishop of Sodor and Man, was governed by ecclesiastical law which until 2015 excluded women from appointment as the Lord Bishop, and so entitled to a seat in Legislative Council.^[15] Beyond these legally reserved seats, the shape of the Manx legal profession for much of the twentieth century effectively excluded women from the three seats held by legal officers. In all three cases, the predominant supply chain was through the Manx Bar, which was even later to admit women than bars elsewhere in our islands. The first woman advocate was Clare Faulds, who was called in 1973.

19 Secondly, the Lieutenant-Governor favoured continuity in his two appointed members, even beyond the long terms of office set down by statute, and with a strong preference for those who were experienced members of Tynwald before being appointed. Only nine men were appointed to these two seats, of which seven were former MHKs.^[16] Four of the nine served less than five years in Council, their short terms explained by death or ill-health.^[17] Leaving aside these short terms the remaining five members sat terms averaging 18 years—particularly striking since these five include the appointed members holding office when the posts were abolished.

20 Although no longer to be found in the Isle of Man, appointed members of the second chamber can be found in other small democracies, as can ex officio members. I regularly use a comparator set of 16 small democracies when considering Manx issues. These are small democracies using some form of the Westminster model which entwines the legislature and the executive. These are a mix of unicameral and bicameral legislatures, seven do not have any appointed members,^[18] while three have members appointed by the constituent states.^[19] Of the remaining six, four have members appointed by the Governor-General on the advice of the Prime Minister and the Leader of the Opposition,^[20] and two have members appointed by the Governor General partly on the advice of the Prime Minister and Leader of the Opposition and partly by the Governor General as Independents.^[21]

21 Focusing on the last group, all six have, hard-wired into their constitution, a party system with an official opposition.^[22] The most interesting for our purposes are Antigua and Barbuda and Bermuda. The Antigua and Barbuda Constitution provides for 11 Senators to be appointed on the advice of the Prime Minister (at least one from Barbuda), and four on the advice of the Leader of the Opposition. Of the remaining two Senators, however, one is appointed on the advice of the Barbuda Council, and one is appointed by the Governor-General “in his discretion from outstanding persons or persons representing such interests as the Governor-General considers ought to be represented in the Senate”.^[23] Bermuda takes this further, with five appointed by the Governor on the advice of the Prime Minister, three on the advice of the Opposition Leader, and “three shall be appointed by the Governor acting in his discretion”.^[24]

22 The first point to make is that the constitutional, not simply political, emphasis on political parties sits poorly with the Manx position today, let alone during the period the Lieutenant-Governor appointed MLCs. Nonetheless, the structures outlined above can be seen as seeking to provide some diversity in those who are appointed—one would anticipate a set of candidates being put forward by the Opposition Leader who frequently would not have been considered by the Prime Minister. With the exception of Bermuda, however, the systems all build in a majority for the governing party.

23 The second point to make is that we need to be cautious in identifying close comparators. At first reading, the Barbudan, and still greater the Bermudan, systems might seem to have most in common with the Manx position before 1969, envisaging as they do some discretionary appointments by the Governor. This neglects, however, the crucial role that the Lieutenant-Governor had in Manx government until well after the Second World War. The Lieutenant-Governor was not a figure neutral between opposition and government: until well into the post-war period the Lieutenant-Governor was the government. That is, during the period of appointed MLCs, the split between MLCs selected by the Keys, and MLCs appointed by the Lieutenant-Governor, was much closer to the model in Grenada and similar jurisdictions where appointment is divided between government and opposition.

24 Turning from the issue of parties, another way of understanding appointed members is that it gives the government power to appoint to the second chamber in order to address weaknesses in the composition of the legislature, and particularly to bring diverse voices into the legislature. We can see this elsewhere in our islands. The First Seanad, by which I mean that under the 1922 Constitution of the Irish Free State which was abolished in 1936, initially included members appointed by the President of the Executive Council.^[25] The President agreed to use his appointments to grant extra representation to the Protestant minority in the state, in the interests of inclusiveness.^[26] His nominees included 16 Senators who could be categorised as being Southern Unionists, which “included elites from business as well as the landlord class … eight were peers, four were baronets and one was a Knight”,^[27] but also ensuring that “commerce, administration and regional interests were well represented among the remaining 14”.^[28] It is worth stressing that appointment to the Legislative Council between 1919 and 1969 was not used in this way. No women were appointed, even when lawful to do so; and the overwhelming majority of the men appointed were Tynwald insiders who had served as MHKs before undertaking long careers in the Legislative Council. The power to appoint members to the Council was used to appoint men with a long record, and clear profile, in public life in order to balance those members elected by the Keys.

4. Elected members

25 The Isle of Man Constitution Amendment Act 1919 Act defined “elected members” as “members to be elected by the House from their own members or otherwise”.^[29] Although the Tynwald Research Paper on the 1919 Act states that the Keys were required to elect MLCs from within their own number,^[30] this was not the law even for the first, in many ways unusual, election. The House was to elect these members within fourteen days of the 1919 reforms coming into effect, at an open meeting of the House.^[31] Elected members required at least thirteen votes in their favour—a provision which, as I discuss below, frequently caused parliamentary chaos. For the first election only, the House was to determine which of the two elected members were to serve a full eight-year term, and which were to serve only a four-year term.^[32] This difference was necessary to begin a rotation by which two MLCs were to leave office every four years,^[33] and provided a useful precedent when Tynwald sought to return to normal business after scheduled MLC elections had not taken place during World War Two.

26 The House was not, then, legally required to elect MLCs from its own members. There was, however, a striking bar on the category of persons who could be elected. Other legislation of 1919 had allowed women, who had been able to vote in elections to the Keys since 1866,^[34] to stand for election to the Keys. In introducing this entirely new category of indirectly elected members of Tynwald, however, the 1919 Act specifically excluded women from consideration.^[35] It was not until 1961 that women could be considered for election.^[36] This 1961 Act, it should be noted here, also shifted the balance between Keys and Council from parity—giving the Council a substantial veto power over legislation for instance—to a situation where the directly elected Keys was the dominant chamber.

27 Although the foundation of elected members entry into the Council—election by the House of Keys as part of normal parliamentary business—has not changed in the century of operation, there have been significant changes in how members were elected (primarily through changes to Standing Orders), and who the Keys elected (primarily through individual voting decisions, but supported in some cases by changes to Standing Orders and practice).

(a) How were MLCs elected?

28 There was always the possibility of the House being unable to swiftly reach a consensus as to who should be appointed. This was particularly pronounced between 1987 and 2015, the worse, but by no means exceptional, case being the twenty rounds of voting required in 2015. In 2017 there were substantial reforms to the process. In the five elections since 2017, only one round has been required to fill each set of vacancies—in the case of 2018, five seats at once. These reforms appear to have successfully addressed a particular problem, that of unacceptable delays in appointing to a vacancy. What were these reforms?

29 First, for nearly a century these posts required a positive vote by 13 of the 24 Keys—a particular challenge when one or more MHKs was absent from the chamber. This was exacerbated in one election, that of 1970, where an MHK who participated in the vote which resulted in their elevation to the Council was, unlawfully, excluded from subsequent rounds of voting made in order to determine who should join them.^[37] A candidate who had secured the support of the majority of the Keys present, but less than 13, was then required to secure a confirmatory vote of 13—failure by the Speaker to call for this vote led to his needing to apologise for an unlawful, and so void, appointment in 1970.^[38] Although confirmatory votes were normally successful, with MHKs recognising the will of the majority voting, this was not always the case. In 2017, the procedure was changed to allow a majority of those MHKs voting to fill a seat.^[39]

30 Secondly, before 2017 each MHK had a limited number of votes—one for each vacancy. In 2017 the process was changed to allow MHKs to vote for or against every candidate.^[40] In the first round of voting under the new scheme, this allowed some MHKs to vote for a large range of candidates—a total of 149 votes were cast in favour of candidates (against a maximum of 120 under the old scheme), with one MHK voting for 13 of the 15 candidates, and another for 11 of the 15.

31 Thirdly, before 2017 MHKs voted by secret ballot—a sharp contrast with the normal, albeit not invariable, open ballot of business in the Keys and in Tynwald. A secret ballot might be thought to increase the scope for “delays and political games”,^[41] as MHKs could make inaccurate claims about not only their intentions, but their actual voting patterns. By its nature, it is difficult to provide substantial instances of this happening. It was referred to by the proposer of the change from the secret ballot, who hoped for “far less spoiling of papers, time wasting and underhand tactics”.^[42] In 2015 Dudley Butt began his final speech in the Legislative Council by thanking “those who voted for me in 2005—the 14 votes I got; thank you to the 20 people who said they voted for me! (laughter) And ditto in 2010”. ^[43] This good humoured reference to deception as to voting was repeated, without disagreement, by an MHK in 2016.^[44] In 2017, the Standing Orders Committee did not recommend changing the secret ballot, although one member, Mr Hooper, objected to the retention of the secret ballot on the basis that “The electorate has a right to know how their elected representatives vote on any issue of policy or legislation”.^[45] When the report came to the House of Keys, the question of an open or secret ballot was hotly contested. Ultimately, the House agreed on a public, rather than a secret ballot.^[46]

32 On a final procedural note, the way in which information on candidates was made available to MHKs varied over time. For most of the twentieth century, nominations for vacant seats were put forward in debate, with the merits of the candidate being put forward by the MHKs proposing and seconding the candidate. By 2003 these were supplemented by proposals for candidates which were circulated in advance,^[47] and following the 2017 reforms nomination was in writing—even proposers no longer spoke on their candidate, as “nomination papers are published and … form part of the permanent record”.^[48] Standing Orders set out the form of this written nomination.^[49] All nominations must be in writing in advance, and include the qualifications and experience of the candidate; why the proposer considers them to be suitable; the name of an MHK proposer, an MHK seconder, and at least two other MHKs who are supportive of the nomination; and contact details for the candidate. The requirement for nominations to be made in advance ruled out new candidates being put forward during the voting process—as the Standing Orders envisage, if a nomination process completely failed “the Speaker shall call for fresh nominations” in writing, available in advance of a vote.^[50] This documentation is supplemented by a duty upon the Speaker to organise “at least one joint meeting between candidates and Members … To ensure that all candidates are known to the House ahead of the Election”.^[51] As the 2017 report on Standing Orders noted, mandatory hustings are “an acknowledgement that in future there may potentially be a much wider range of candidates from our community”.^[52] I address this important change in who is elected in the sections below.

(b) Elections from Tynwald

33 In the twentieth century the only persons elected to the Legislative Council were either sitting MHKs, former MHKs, or sitting members of the Legislative Council. Before the 1980s, there is only one example of MHKs electing someone who was not a sitting MHK or MLC. Of the 49 seats filled during this period, only Joseph Callister (in his 1951 election) was not then in Tynwald. Joseph Callister cannot, however, be seen as a Tynwald outsider. He was a sitting MHK when, in 1946, he was elected to Council at a bye-election. He failed to retain that seat in 1950, but was returned to Council in a 1951 bye-election. In the 1980s and 1990s there was an increased willingness to elect former members of Tynwald, although current members of Tynwald continued to be the overwhelming majority of those elected. In the 1980s, thirteen sitting members of Tynwald were elected, as opposed to three former members. In the 1990s, fifteen sitting members of Tynwald were elected, as opposed to two former members.

34 For much of the twentieth century, it is not simply that MHKs and former MHKs enjoyed a comparative advantage which led to them excluding non-MHKs from vacancies. With only one exception, it is not until the 1980s that a person without experience as an MHK was even nominated. That exception is Walter Quayle, who having just failed to win a seat in a General Election to the Keys in 1919, was nominated in the first MLC elections held later in that year. The other 118 candidates considered between 1919 and 1980 had all previously sat in Tynwald. Such an overwhelming predominance of practice could easily slip into a constitutional understanding that MLCs should be chosen from the Keys, requiring Speakers and MHKs on a number of occasions to remind the House that they could appoint “from their own members or otherwise”. In the 1950 election, for instance, the Speaker reminded members of this, noting “it is not always recognised”.^[53]

35 The 1980s saw the first pattern of nominations of persons from outside Tynwald. 8% of the 39 candidates considered in that decade were not current or former members of Tynwald. Non-Tynwald candidates in the 1980s were, however, put forward in very particular circumstances. A particular issue faced an MHK if they took a seat in the Legislative Council in a bye-election. They inherited the remainder of the term of office of the MLC they replaced, which could be very short. In this case, they would be giving up the rest of their membership of Tynwald as an MHK in return for a much shorter period as an MLC. Before the 1980s, this was dealt with by an understanding by the Keys that the person would be re-elected at the next normal election to their position as an MLC. In 1931, for instance, FS Dalgleish had given up his seat in the Keys in February to become an MLC,^[54] and when the post was considered for the full-term in November, debate explicitly referred to him having been given to understand he would be re-elected.^[55] In 1935, filling a seat only between July and November, the Speaker asked for “a tacit understanding” that the MHK elected would be re-elected in November.^[56] In due course, he was re-elected as one of two candidates for two posts.^[57]

36 By the 1980s, however, this approach seems to have fallen into disuse—to speculate, perhaps because it was seen as inappropriate to enter into understandings as to future votes, or because of doubts that such an understanding would be adhered to at the time of the future vote. In 1981 a short vacancy arose due to an MLC returning to the Keys. No MHK stood, but four ex-MHKs did stand, and one was elected. Proposers stressed the short-term nature of the post, and so the difficulty of filling it from the Keys. Ex-MHKs and—significantly—non-MHKs similarly dominated by-elections in 1987 and 1988. In the 1987 by-election one MHK stood, joined by three ex-MHKs and two non-MHKs: Alan Killip, former Deputy Chief Constable, and Fred Watterson, former Mayor of Douglas.^[58] Killip was considered, without success, at the normal election in 1988,^[59] the first person without Tynwald experience to be considered for a full duration post since 1919. In the 1988 bye-election, one MHK was joined by two ex-MHKs and one ex-MLC in being considered for the single seat.^[60]

37 It was not until the 1990s that persons without experience of Tynwald began to be nominated for full-term seats. Overall 22% of candidates for seats in this decade were not current or former members of Tynwald. The 21st century saw a continuing transformation not only of the range of candidates, but of those successfully elected as MLCs. In the 2000s, 39% of the 67 candidates were not former members of Tynwald; in the 2010s, 59% of 58 candidates, and in the (truncated) 2020s, 78% of 27 candidates. There was a similar change in the profile of MLCs elected—in the 2000s, 16% of 18 appointments; in the 2010s, 37% of 19 appointments; and in the 2020s (so far), 50% of 10 appointments.

(c) Elections to Tynwald

38 From the 1990s, increasingly candidates have been considered—and later successfully elected—who were new to Tynwald. Since the 2010s these have become the majority of candidates, and in the 2020s the majority of those appointed.

39 One significant feature of the process is the relative transparency. I need to stress relative—there is evidence of parts of the process that have not survived (for instance candidate CVs circulated by nominating MHKs in some years; or group meetings with interested MHKs and candidates), and it seems inevitable that there are other interactions which have not been recorded. We do however have comparatively extensive records of why candidates were put forward by their nominating MHKs, either incorporated into Hansard when nominations were part of Tynwald proceedings, or by Tynwald documents. This includes both successful candidates and—distinctively—unsuccessful candidates. The public domain data, then, allowed collation of information on all 63 outside candidates considered 1962–2022. In doing so, I have focused on the speeches (later letters) proposing a candidate, rather than carrying out independent research into the biography of each of the 63. This makes the analysis more bounded, but also keeps the focus on the characteristics that the proposer sees as persuasive. A candidate may have been an official in a youth movement, and a police officer, but the proposer’s decision to talk only of their work as a police officer indicates what the proposer saw as persuasive to fellow MHKs sitting as an electoral college. That is to say, a focus on the proposer’s choice of characteristics shows us what they regarded as relevant and persuasive to other MHKs.

40 This data was then analysed through quasi-judicial recursive play. An initial reading of the data, informed by the global literature, allowed preliminary identification of recurring themes, four of which are discussed below. Each proposal was then revisited, and coded in relation to each of the themes identified: professional background, Manxness and regionality, gender, and public service. This coding produced quantitative data, but the size of the data set raises significant problems for then proceeding to quantitative analysis. Even treating all nominations as part of a single data set—which risks eliding important changes over time—gives us only a very small data set. Accordingly, in the discussion that follows only very significant differences, or very clearly illustrated trends, can be given any weight.

(i) Profession

41 I have classed each candidate by the categories used in the Manx Census 2021, Level 2.^[61] To help ensure consistency of how I class particular professions or careers I have also taken account of the UK NOMIS Employment by Occupation (SOC2010) characteristics, which usefully expand the Tier 2 categories with sub-categories. I have noted every profession or career mentioned by a proposer, rather than tried to make a judgment as to “primary” career—where the proposer mentioned a number of careers, each was seen as making the nomination more persuasive. So, what professions and careers were seen as persuasive?

42 Dominating the nominations were the broad category of “Business, Media and Public Service Professionals”. This very broad professional category includes for instance legal professionals including judges, accountants and economists; architects; journalists and PR professions. 35 candidates fell into this category. To break these 35 candidates down a little: fifteen were finance sector professionals; six accountants; six lawyers; four media professionals; and a single quantity surveyor, single actuary, single architect, and single economist. The only other categories with ten or more candidates were Protective Services Occupations (including armed forces, police, and the fire service) with eleven, and Corporate Managers and Directors with ten.

43 55% of the candidates were from the category Business, Media and Public Service Professionals. To put this into context, in the 2021 Manx Census, just under 7% of the Manx working population were classed in this category. Entire categories of occupation have never been mentioned in nominating a candidate—on the Tier 2 table on the Manx Census, from Secretarial and related occupations down (constituting 44% of the Manx working population in 2021), only one person had one of these occupations referred to in their nomination (so less than 2% of all nominations). John Lightfoot, described as an auto electrician who worked for the bus company for 39 years, was nominated in 2007. He was not elected.

(ii) Manxness and regionality

44 As might be anticipated in appointment to the Manx legislature, the overwhelming majority of nominations had some argument put forward by the proposer to demonstrate the Manxness of the nominee. Only five nominees did not have an explicit point made about their Manx connections, and of these only one does not have quickly identifiable Manx connections of the type discussed below. The exception is Christine Wheeler. Her proposer in 2018 described her as—

“a relative newcomer to the Island but she has already demonst-rated her commitment to preserving what we have building on that and successfully meeting the challenges ahead. Mrs Wheeler has familiarised herself with how our Island’s Tynwald works and has immersed herself in politics, including researching the background to a number of the issues we are currently facing.”

She was unsuccessful.

45 So, what sort of Manx connections are seen as persuasive by MHKs in putting forward their nominations? In order of chronological depth we find Manx ancestry (11), Manx birth (9), Manx education (11), raising children in the Isle of Man (11), and long term Manx residence (48). Obviously many of these overlap—”born and bred” is an expression used of some candidates for instance—but it is striking how much emphasis is given to long term Manx residency. For a significant number of nominees (31) this is the only marker of Manxness brought out in their nomination. This suggests that nominating MHKs are working on a conception of Manxness which might best be characterised as civic nationalism—being part of the community on the Isle of Man, whatever one’s biography. ^[62]

46 To focus more tightly, there is the issue of regionality. In 2022 a number of MLCs described themselves as “Southern”, in a statement on the future of a publicly owned southern community pool which begins “The Southern Tynwald members”. MLCs are not elected on a constituency basis, but on a national one. Nonetheless, this does raise the question of how far regionality is stressed when nominating prospective MLCs.

47 When MLCs were overwhelmingly elected from sitting members of the House of Keys, there were frequent references to geographical balance in the Council—in particular a concern that MHKs representing Douglas constituencies should not be overrepresented, reflecting other members of the Council being officials primarily resident in Douglas. In relation to appointing to Tynwald, however, this has become a very much less significant theme. Only 26 of the nominations were associated with a particular region. In the majority even of these nominations, regionality was associated with a particular activity—for instance specifying which part of local government the nominee had experience of. Of these 26, in only one nomination was there an echo of the former emphasis on regional representation. In 1987 Alan Killip was proposed partly on the basis that he was a Douglas resident who would be taking a seat held by a Douglas resident. He was unsuccessful.

(iii) Gender

48 In relation to appointments to Tynwald, only 18 of the 63 nominees (28.5%) were women. There is, however, a potentially interesting difference when we focus on successful nominees. At five of the 13 (38.5%), the gap between women and men is halved. This is comparing two very small data sets however, and is one area where looking at the entire set of nominations together is misleading.

49 As noted above, before 1961 women were not eligible to be elected. It was some time after the bar on women being elected was lifted before a woman candidate was first put forward. This was Betty Hanson MHK, who was nominated in the 1978 election. She went on, in 1982, to be the first woman to be elected an MLC; to be followed by a small number of other women in the 1990s and 2000s, all of whom had experience as MHKs before joining the Council. In the 1980s, 15% of candidates were women, 6% of those elected. In the 1990s, 5% of candidates were women, 12% of those elected. In the 2000s, 10% of candidates were women, 17% of those elected.

50 Until the historical General Election of 2021, women were very substantially underrepresented in the House of Keys, meaning that the trend noted above of appointing former MHKs to the Legislative Council would have worked to reduce the number of women being elected. There was a significant change in the 2010s, however, both in terms of the number of women being considered and appointed, and their prior involvement with Tynwald.

51 In the 2010s, 22% of candidates were women, 32% of those elected. Women were appointed to seats six times in the 2010s—the appointments between 2017 and 2020 being equal to the number of women appointed before 2010. Jane Poole-Wilson was appointed for a short term in 2017, not having previously sat in Tynwald. In the 2018 contest, which included both her seat and four others, five women were appointed; with only Poole-Wilson having sat in Tynwald previously. Although there have only been a small number of processes in the 2020s, a focus on them tentatively suggests that this increase in women being nominated and elected is continuing: 50% of the candidates in the 2020s processes were women.

(iv) Public service

52 A recurrent theme in nominations to the Legislative Council is that the nominee has a history of public service. Often the term itself is used in nominations, but it is worth expanding. Public service is seen as about societal rather than self-interest, and close to civic mindedness. It is not, however, seen as incompatible with being paid for the activity—although not seen as synonymous with public sector employment, it is not seen as incompatible. So we find the case for a nominee as a public servant built on a career as a police officer, for instance.

53 An overwhelming majority of nominations referred to the public service of the nominee: all but eight of the 63. The 87% of nominees whose nomination referred to public service had the case made through involvement in a wide range of activities, and it was common for a single nominee to be associated with multiple types of public service—for instance Barbara Brereton’s nomination in 2010 referred to her public sector work in a protective service, her other public sector work, her local government roles, her work as a school governor, her work in a religious organisation, and her work in a Manx charity.

54 As mentioned above, public sector employment was often represented as public service: 10 by reference to a protective service such as the police or the military, and 21 by reference to other public sector careers. Taken together, this was by some distance the most common way of making a public service case, at nearly 50% of all nominations. Beyond employment, involvement in Local Government, almost always as a repeatedly elected Commissioner, was referred to for 18 nominees. We also find extensive reference to involvement of varying degrees with Manx charities—17, as opposed to three references to involvement in non-Manx charities. The only other activities mentioned for 10 or more nominees were work with government agencies (13), work with Manx cultural associations (12) and involvement with sports and hobby clubs (11, primarily Manx football and motorsports). Focusing on the three biggest categories (public sector employment, local government, and charities), 44 of the 63 nominees had at least one of these categories in the case for their public service (just under 70% of all nominees).

55 The significant place of public sector employment as evidence of public service is interesting. As paid employment, it might be seen as in tension with the idea of service, and the prioritisation of the public interest over the private interest. Looking at successful nominees, there is some evidence that public sector employment was a less compelling argument than proposers may have thought. Twelve of the thirteen successful nominations included reference to public service, a theme which we have already seen as very common in nominations generally. The basis for a public service claim was very varied, but the most common claims were around involvement with governmental agencies including tribunals (five), charities (four), sports or hobby clubs (three), and Manx cultural associations (three). In contrast with nominations as a whole, reference to careers in the public sector outside the protective services were comparatively less common than in nominations generally—two of the 13, so 15%, as opposed to 33% of the nominations generally. Also much less well represented in successful nominations was involvement in local government—one of the 13, so 8%, as opposed to 28% of the nominations generally.

5. Lessons for Jersey and Guernsey?

56 The development of Manx bicameralism/tricameralism since 1919 was not working on a blank sheet. The fundamental structure of House of Keys/Legislative Council/Tynwald Court had been established for a number of centuries. Reforming bicameralism, the focus of the twentieth and twenty-first century developments, was much less radical a departure from constitutional traditions than a move to unicameralism—occasionally debated in the Isle of Man—would have been. Adopting bicameralism is significantly different from reforming bicameralism, even without considering new forms of entry into the national legislature. That said, there may be a number of features of the Manx experience useful to a Jersey and Guernsey readership.

57 First, as the above discussion shows, the relationship between the two chambers is crucial to understanding how bicameralism might work. One of the foundational themes of the Manx constitution is the tension between the House of Keys, and the Imperial establishment of the Council. The 1919 reforms were the beginning of a rebalancing of the power in this relationship: introduction of elected members appointed by the Keys meant this centre of Imperial power was now being occupied by a minority of appointees of the Keys. In the context of this tension between a national Keys and an Imperial Council, a number of MHKs saw appointment of MHKs into the Council as fundamentally democratic. When MLCs were seen as allies within the Legislative Council for MHKs, proposers commented on MLCs being considered for re-election as voting with the will of the Keys, as well known for sharing the views of the Keys, as being prepared to vote in line with the Keys regardless of their own opinion, or, in the crisp phrase of Mr Cowell in 1931, as understanding they were being “sent up to voice the feelings of this House”.

58 The 1960s and 1970s, however, saw significant shifts both in the composition of the Council, and the powers of the Council in relation to the Keys. These resulted in the Council being overwhelming composed of MLCs elected by the Keys, reducing the significance of MLCs being prepared to represent the voice of the Keys within Council. The opposition to the Keys within the Council, composed of appointed and ex officio members, had been eroded through constitutional reform. The 1960s also saw a sharp shift in the power of the Council from being a chamber of equal authority to the Keys—capable of vetoing legislation—to a subordinate chamber more analogous to the House of Lords. The idea that MLCs should be loyal partisans of the Keys in representing the democratic element in the Manx constitution, and that this was best guaranteed by electing an MHK known well to the House, almost disappeared. Instead, we find repeated references to the Legislative Council having a complementary, secondary, role to the Keys. The distinctive contribution of the Council meant that “it should not be an alternative House of Keys”, ^[63] and that being an MLC was “a role which is so different from that of being a Member of the House of Keys”.^[64] This emphasis on the special role of the Council as complementary to, rather than duplicating, that of the Keys only increased as the Keys began to look outside Tynwald for MLCs. As noted above, numerous candidates were nominated in terms that stressed their critical skills. We find specific references to the candidates understanding of Legislative Council as “primarily a scrutiny chamber”,^[65] needing “members qualified in the … scrutiny of legislation”,^[66] with “the first and greatest responsibility as a Member of the Legislative Council [being] the scrutiny of legislation virtually line by line, and it needs an ability to concentrate, to be a clear thinker and understand how a Bill is constructed”.^[67]

59 If Jersey or Guernsey were to consider bicameralism, the purpose of the second chamber, and its relationship with the first chamber, would need to be very clearly delineated. Returning to the functions of bicameralism noted above, what aspects of parliamentary work would benefit from being duplicated? Returning to the Manx experience described above, would one chamber be dominant by design, as the House of Keys has been since 1961, or would the chambers share coordinate authority?

60 Secondly, deciding on the composition of a second chamber can be very challenging in a small democracy. I have suggested above that some of the common bases for membership of a second chamber—such as representing political sub-units in a state—have limited application to small democracies. There are small democracies which have a directly elected second chamber—possessions of the United State which follow structures imported from the colonial centre, as the Westminster model can be commonly found in former, or current, possessions of the British Empire. As noted above, the norm for small democracy bicameralism is for a directly elected first chamber to dominate a second chamber without that democratic mandate.

61 Such domination is much more difficult to justify where members of both chambers are directly elected. To take up Renwick’s suggestion in 2012 that connétables could form a second chamber with the power only to delay legislation,^[68] it is easy to imagine a situation where elected members of the States with larger numbers of voters (as may well be the case with 12 connétables as opposed to 29 Constituency Deputies) being overridden by the first chamber would pose political difficulties. Giving such a second chamber equal status, however, would be giving seven of the 12 connétables considerably more power than they currently exercise in a unicameral legislature. Without a strong alternative logic for the second chamber, typically to be found in the importance of representing significant sub-units of the state, and so typically associated with larger states, this is a difficult issue to resolve.

62 If being unable to find an acceptable way of populating a second chamber is a fundamental obstacle to a bicameral path, the Manx experience may provide an overlooked alternative model. The second chamber is clearly subordinate to the first chamber and, lacking a direct democratic mandate, this fits well with an emphasis on authority being derived from the democratic process. The second chamber is dominated, however, by members elected by the House of Keys acting as an electoral college: a process of indirect democracy, but no less democratic than, say, the appointment of the UK Prime Minister by a majority of MPs. This gives it some authority, but of a kind which is not similar even in nature to that enjoyed by the dominant Keys.

63 Thirdly, as the Manx experience shows, this way of staffing a second chamber is capable of contributing to increasing diversity in the national legislature. In the Manx context, we can see this in relation to gender, and previous experience of national politics. Notably, however, we do not see this in relation to social class as shown by occupation. In any case, it is open to being used not to provide a different set of voices in the national legislature, but in providing a final stage in the career of parliamentarians. The twentieth, but not the twenty-first, century experience of first chamber franchise in the Isle of Man shows this in practice.

64 Fourthly, one of the distinct features of the Manx political landscape is the almost complete absence of political parties. At the time of writing, the 24 member House of Keys includes two members of the Manx Labour Party, and one member of Liberal Vannin. A House of Keys dominated by independents is a key theme of Manx constitutional history. If a party, or combination of parties, commanded a majority in the Keys during the process of electing to the Legislative Council, however, there is very little to prevent them capitalising on this majority to create a similar majority in the Legislative Council—in one 21st century process, for instance, five of the eight MLCs could have been appointed. The only protection in the Manx system from this replication along party lines is the staggered appointment to the Council. The States of Jersey in particular are much closer to some degree of party institutionalisation, and have begun to reflect on how to deal with the possible development of party politics.^[69]

65 Finally, as the above discussion shows, the Manx model has changed tremendously in the last century. Readers considering a first chamber franchise model should focus on the 21st century form, particularly since the important procedural reforms of 2017, rather than the 20th century form—for instance on the open ballot rather than the secret ballot. It is a commonplace for the multitudinous flaws of the US Constitution to be put forward as a reason to reject adopting written constitutions elsewhere. As there are better models of a modern written constitution than that of the US, the modern iteration of the Manx model of first chamber franchise is better than the earlier ones.

Peter W Edge is Professor of Law at the School of Law and Social Sciences, Oxford Brookes University.

^[1] https://www.ipu.org/national-parliaments (accessed 2/8/2022).

^[2] The total number of dependent territories is larger than this, with “forty-odd non-sovereign island territories” identified by G Prinsen, A Lotti, A Worliczek, “‘Wallis and Futuna have never been a colony’: A non-sovereign island territory negotiating primary education with Metropolitan France” (2022) 92(1) Oceania 133 at 134. I have, however, excluded dependent territories with no permanent population, no civilian government, or no distinct governmental structures within the dependent territory.

^[3] M Russell, The Contemporary House of Lords: Bicameralism Revived, ch. 3 (OUP, 2013).

^[4] Ibid at 44.

^[5] MC Murphy, “Bicameralism in a unitary state”, in DM Farrell and N Hardiman, The Oxford Handbook of Irish Politics, at 330 (2021).

^[6] J Poirer and A-G Gagnon, “Canadian federalism: The impact of institutions on key political and societal actors”, in A-G Gagnon and J Poirer, Canadian Federalism and its Future: Actors and Institutions (2020).

^[7] What Veenendaal characterises these as “historical-institutional” arguments in relation to federalism in microstates—WP Veenendaal, “Origins and persistence of federalism and decentralization in microstates” (2015) Publius: The Journal of Federalism 1.

^[8] R Johnston and I McLean, Electoral Systems for the States of Jersey: Some Briefing Notes (2012).

^[9] PW Edge, “First Chamber Franchise: a Bicameralism Fit for Small Democracies?” (2024) Public Law 131–151.

^[10] See further PW Edge, Manx Public Law, at 135–139 (1999).

^[11] Manx Public Law, at 136–137.

^[12] See further PW Edge, “1867: When democracy came to the Isle of Man?”, English Legal History (8 April 2017).

^[13] See further PW Edge, “Lisvane’s legacy? Constitutional reform in the Isle of Man”, (2020) 40(1) Legal Studies 22–41.

^[14] Isle of Man Constitution Amendment Act 1919, s 13.

^[15] Bishops and Priests (Consecration and Ordination of Women) Measure (Isle of Man) 2015.

^[16] Of the two who were not, one had served a substantial period as Crown Receiver, a significant public office, while the other was a retired UK diplomat.

^[17] John Clucas for instance, resigned in 1928, after four years in Council, having served multiple, fragmented, terms in the Keys. His 1939 obituary referred to his being “suddenly stricken down by a serious illness eleven years ago [when he] occupied a conspicuous position in the public life of the Island”. See Ramsey Courier (5 May 1939).

^[18] Curacao; Aruba; Jersey (although connétables sit ex officio, and a number of non-voting Crown officers sit ex officio); Andorra; Greenland; Marshall Islands; Cayman Islands (although two Crown appointees sit ex officio).

^[19] Federated States of Micronesia; Kiribati; Guernsey.

^[20] Grenada; Dominica; St Vincent and the Grenadines; Saint Kitts and Nevis.

^[21] Bermuda; Antigua and Barbuda.

^[22] See further D O’Brien, “Bicameralism in small states: The experience of the Commonwealth Caribbean”, (2018) 47(3) Journal of Imperial and Commonwealth History 591.

^[23] Antigua and Barbuda Constitutional Order 1981, s 28.

^[24] Bermuda Constitution Order 1968, s 27(2).

^[25] See more fully, L Cahillane, Drafting the Irish Free State Constitution (2016).

^[26] L Cahillane, “Anti-party politics in the Irish Free State constitution” (2012) Dublin University Law Journal 34 at 64.

^[27] I Sircar and B Hoylamd “Get the party started: development of political party legislative dynamics in the Irish Free State Seanad (1922–1936)”, 16(1) Party Politics 89 at 93.

^[28] L Cahillane, “Anti-party politics in the Irish Free State constitution” (2012) Dublin University Law Journal 34 at 65.

^[29] Isle of Man Constitution Amendment Act 1919, s 7(a)(2).

^[30] Tynwald Chamber and Information Service, “The Isle of Man Constitution Amendment Act 1919 and the Legislative Council” (2019) PP 2021/0027.

^[31] Ibid, s 8.

^[32] Ibid, s 8.

^[33] Ibid, s 10.

^[34] House of Keys Election Act 1866.

^[35] Isle of Man Constitution Amendment Act 1919, s 12.

^[36] Isle of Man Constitution Act 1961, s 25.

^[37] Manx Hansard, HK 27/10/1970, discussed as void in Manx Hansard, HK 3/11/1970.

^[38] Manx Hansard, HK 27/10/1970, Speaker’s apology in Manx Hansard, HK 3/11/1970.

^[39] SOC para16.

^[40] SO 8.3(5).

^[41] Manx Hansard, HK 4/4/2017 at 832–833.

^[42] Miss Bettison, at 754 K134 at 767–768.

^[43] Manx Hansard, TC 18/2/2015 at 1278 T132.

^[44] Manx Hansard, TC 17/5/2016 at 1480 T133 per Mr Chris Thomas.

^[45] SOC, para.18.

^[46] Given effect by House of Keys Standing Orders 8.3(13) (as amended).

^[47] Manx Hansard, HK 18/3/2003.

^[48] Manx Hansard, HK 12/3/2018.

^[49] House of Keys Standing Orders 8.2(5) (as amended 4 April 2017).

^[50] House of Keys Standing Orders 8.3(11) (as amended 4 April 2017).

^[51] House of Keys Standing Orders 3.1(3) (as amended, 4 April 2017).

^[52] Mr Ashford, Keys Hansard, 753 K134 (4 April 2017).

^[53] Manx Hansard HK 31/19/1950.

^[54] Manx Hansard HK 3/2/1931.

^[55] Manx Hansard HK 17/11/1931.

^[56] Manx Hansard HK 9/7/1935.

^[57] Manx Hansard HK 19/11/1935.

^[58] Manx Hansard HK 16/11/1987.

^[59] Manx Hansard HK 01/03/1988.

^[60] Manx Hansard HK 10/5/1988.

^[61] Cabinet Office, “2021 Isle of Man Census Report Part II”, GD 2022/0047.

^[62] See for instance N Duclos, “The SNP’s conception of Scottish society and citizenship 2007–2014”, (2016) 21(1) Revue Francaise de Civilisation Britannique.

^[63] Manx Hansard HK 7/3/1995 at K501.

^[64] Manx Hansard HK 3/3/1998.

^[65] Personal Statement of Conor Keenan, 23 November 2021, available online https://www.tynwald.org.im/business/opqp/sittings/20212026/2021-PP-0203. pdf (accessed 31 August 2022); Personal Statement of Kerry Sharpe, 12 March 2020, available online at https://www.tynwald.org.im/business/opqp/sittings/ 20182021/2020-PP-0047.pdf (accessed 31 August 2022); nomination of John Skinner by David Ashford, 12 March 2018, available online at https://www. tynwald.org.im/business/opqp/sittings/Tynwald%2020162018/2018-PP-0042. pdf (accessed 31 August 2022).

^[66] Manx Hansard 18 March 2013 at 165.

^[67] Manx Hansard 6 May 2015 at 58.

^[68] See A Renwick, The Jersey States Assembly in Comparative Perspective: A report for the States of Jersey Electoral Commission,(2012).

^[69] See C Morris, M Bishop, J Corbett and P Evans, How Might the Standing Orders of the States of Jersey Respond to the Formation of Political Parties?, (2021).

Philip Bailhache

Introduction

1 Treaty-making is a relatively recent phenomenon for the Channel Islands. It is not so long ago that the States of Jersey was described, perhaps with a measure of condescension, by Crown counsel in a case before the Privy Council as “historically and constitutionally … not a provincial Parliament or local Legislature, but a Municipal Corporation, or Common Council for the whole Island.”[1] Yet, in the preamble to the States of Jersey Law 2005, sanctioned by the Crown, it was “recognized that Jersey has autonomous capacity in domestic affairs” and that “there is an increasing need for Jersey to participate in matters of international affairs”.[2] In Framework Agreements of 2007 and 2008, signed by the Chief Ministers of Jersey and Guernsey respectively, it was acknowledged (in the Jersey agreement) that—

“[i]n the context of the UK’s responsibility for Jersey’s inter-national relations it is understood that the UK will not act internationally on behalf of Jersey without prior consultation”

and that

“the UK recognises that the interests of Jersey may differ from those of the UK, and the UK will seek to represent any differing interests when acting in an international capacity.”[3]

The Guernsey agreement contained identical provisions mutatis mutandis.

2 It was in the immediate aftermath of the Second World War that a limited international personality for the Bailiwicks was effectively recognised for the first time. By a document now known as the Foreign Office Letters of 1950,[4] the Channel Islands were acknowledged as having an international identity or limited international personality which differed from that of the UK. Prior to 1950, the general rule was that “unless a different intention appears from the treaty or is otherwise established” a treaty is binding upon each party in respect of its entire territory”.[5] This meant that treaties entered by the UK were presumed to apply to the Channel Islands. The Islands were regarded internation-ally as part of the metropolitan territory of the UK. That changed with the 1950 circular despatched by the then Foreign Secretary, Ernest Bevin. Bevin stated in the despatch to the international community—

“1 I have to inform you that His Majesty’s Government … have recently had under consideration the position of the Channel Islands and the Isle of Man in relation to treaties and international agreements applicable to the United Kingdom.

2 Although in municipal law the Channel Islands and Isle of Man do not form part of the United Kingdom, His Majesty’s Government have hitherto regarded such treaties and international agreements as applying to those Islands unless, in the case of any particular treaty or agreement, the contrary has been expressly stated in the instrument itself.

3 His Majesty’s Government have come to the conclusion that it would be more consistent with the constitutional position of these Islands to regard them for international purposes as not forming part of the United Kingdom of Great Britain and Northern Ireland.

4 Accordingly, any treaty or international agreement to which His Majesty’s Government in the United Kingdom may become a party after the date of the present despatch will not be considered as applying to the Channel Islands or Isle of Man by reason only of the fact that it applies to the United Kingdom …”[6]

3 The presumption has thus now been reversed. Treaties entered by the UK do not apply to the Channel Islands unless the contrary is expressly stated. Since 1967 the UK has adopted the practice of making clear in its instrument of ratification what is the territorial extent of its commitment. That practice has now been accepted internationally for more than half a century. That has established a “different intention” from the basic proposition that a treaty is binding in respect of the entire territory under the sovereignty of the Crown.[7]

4 The Foreign Office Letters were generated by the realisation that international treaties would increasingly impact upon domestic affairs and the United Kingdom Government was conscious of the need to protect the domestic autonomy of the Crown Dependencies. Inter-national organisations, the United Nations in particular,[8] spawned several subsidiary organisations which in their turn generated numerous multilateral treaties. The United Nations Educational, Scientific and Cultural Organisation (UNESCO), founded also on 24 October 1945, was one example; the International Labour Organisation (ILO) was another.[9] The Council of Europe[10] was another important international organisation, the generator of many multilateral treaties of which the European Convention on Human Rights (ECHR) was the most significant.[11]

5 UK Government practice from the 1950s onwards was to consult the authorities in the Channel Islands to ascertain whether they wished the ratification of such treaties to be extended to the Islands. Such extension, if agreed, would create obligations for the Islands under international law, even if vicariously. Thus, the extension of the UK’s ratification of the ECHR, and the right of individual application under art 34, has led to cases such as Snooks and Dowse v UK,[12] where the individual claimant pursued the High Contracting Party (the UK) rather than Jersey before the European Court of Human Rights. The UK would generally be represented by an official from the FCO with assistance from the Law Officers’ Department.

Nature of a treaty

6 What then is a treaty? The United Nations Treaty Collection contains a useful glossary of the various terms used to describe inter-national agreements.[13] The word “agreement” itself has a generic and more specific meanings. In its generic sense, it may embrace treaties which are international agreements with certain characteristics. More generally it covers charters,[14] declarations,[15] memoranda of understanding,[16] exchanges of notes,[17] protocols,[18] and conventions,[19] which may or may not create international obligations, as well as treaties. Sometimes, some of these terms are interchangeable, and many of them have been used in and by the Channel Islands. State practice over the centuries has developed and the title given to a particular instrument may vary in accordance with the degree of formality which the parties wish to attribute to their agreement.  In truth, it may be asserted that no precise nomenclature exists in international law. That is not to say, however, that the labelling of treaties is haphazard or capricious.

7 Article 102 of the Charter of the United Nations provides that—

“every treaty and international agreement entered into by any Member State of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.”

Although the two terms are not defined, it is considered that the obligation to register embraces a wide variety of instruments. The obligation does not strictly embrace treaties executed by the Channel Islands, because they are not member-states of the United Nations. However, it seems that they are in fact registered, presumably on the assumption that they are de jure UK treaties.

8 The definition of a treaty or international agreement is important because, although the ratification of treaties entered by the UK are still being extended, the Channel Islands are now beginning to make treaties, or enter international agreements on their own behalf. They may only do so, however, with an “entrustment” from the United Kingdom Government.[20] The UK is constitutionally responsible for the international relations of the two Bailiwicks which accordingly cannot enter an international agreement without the UK’s authority. An early entrustment was given to the Chief Minister of Jersey by Lord Bach, Parliamentary Under Secretary of State in the Ministry of Justice on 23 November 2009. It entrusted “the Government of Jersey to negotiate and conclude Tax Information Exchange Agreements, other Agree-ments relating to taxation that provide for the exchange of information on tax matters to the OECD standard” with Member States of the OECD, EU and G20 and jurisdictions that have been assessed by the OECD as having substantially implemented the internationally agreed tax standard.[21]

9 On the authority of that entrustment, a number of Tax Information Exchange Agreements (TIEAs) and Double Taxation Agreements (DTAs) were subsequently negotiated by the Government of Jersey and later ratified by the States Assembly.[22]

10 If it is not a treaty, there is no need for an entrustment. A treaty is defined by art 2(1)(a) of the Vienna Convention on the Law of Treaties, 1969, as—

“an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”[23]

11 There are thus four key elements to the definition—

(1)   The treaty must have an international character;

(2)   The treaty must be concluded between subjects of international law (e.g. between states,[24] or between a state and an international organisation, or between international organisations);

(3)   The treaty must be in written form; and

(4)   The treaty must be “governed by international law”.

12 The phrase “governed by international law” expresses the element of an intention to create binding obligations under international law. If there is no such intention, the instrument will not be a treaty, even if the other conditions are satisfied. The element of subjection to international law is essential to the establishment of an international treaty.[25] The requisite intention must be gathered from the terms of the instrument itself and the circumstances of its conclusion.[26]

13 Clearly, there are many international legal instruments created or executed by the Government of Jersey and the States of Guernsey which do not qualify as treaties. There are “agreements” and memoranda of understanding in relation to customs matters, drugs and other policing matters between the Islands and France which are not intended to have any legal consequences, even if they do have an international character. By contrast, the numerous Tax Information Exchange Agreements and Double Taxation Agreements entered under entrustment from the United Kingdom Government do meet the requirements for a treaty.

14 An intention to create binding obligations under international law is what distinguishes a treaty from other less formal types of agreement entered in the international context. Thus, an agreement between States that creates binding obligations governed by domestic law, e.g. a private agreement for the purchase of goods, is not a treaty. The governing domestic law will be determined by the rules of private international law. Agreements between States that are not intended to have legally binding effect are variously described as “political agreements”, “gentlemen’s agreements”, “non-binding agreements” and “memoranda of understanding”. These record, in effect, political commitments, binding in honour but not in law. They recognise that, even when the subject-matter is important, not all international accords can be embodied in treaties. They need, however, to be formalised in some way. This has led to the increasing use of the “memorandum of understanding”. Memoranda of understanding can be entered by the governments of the Channel Islands without the need for any entrustment from the United Kingdom.

15 It should nonetheless be emphasised that the title of an instrument does not, of itself, determine its status. Some treaties can, confusingly, be called “Memorandums (or Memoranda) of Understanding”. Conv-ersely, a non-binding agreement may still loosely be referred to as an “agreement”, even though there is no intention that it should be legally binding in international law. Professor Aust explains it in this way—

“Although an MOU will normally be designated ‘memorandum of understanding’ … or ‘arrangement’, such terminology is not dispositive. Taken on its own, the designation of an instrument can actually be most misleading; a ‘memorandum of understanding’ or an ‘exchange of notes’ may be a treaty or an MOU depending on how it is worded. Also, it should not be assumed that just because a document contains treaty terminology it is a treaty.”[27]

16 The “arrangements” made on 26 November 2018 between the UK and the Channel Islands (and the Isle of Man) to establish a British Customs Union are not easy to categorise.[28] They purport to impose obligations on the governments of the parties. But are those obligations enforceable as a matter of international law? International obligations cannot subsist between the United Kingdom and the Crown Depen-dencies. They are all part of the same state. These are not “treaties”. Obligations under the British Customs Union, which is underpinned by these contractual or quasi-contractual “arrangements”, are enforced through domestic legislation in each of the participating jurisdictions.

Asset sharing agreements

17 What about asset sharing agreements? There is a statutory background to such agreements in Jersey in the Civil Asset Recovery (International Cooperation) (Jersey) Law 2007, art 11(9) of which contains the definition—

“any agreement or arrangement made by or on behalf of Jersey with a country or territory outside Jersey for the sharing of the proceeds of unlawful conduct … confiscated or forfeited either in Jersey or elsewhere.”[29]

Curiously, the Law contains no express power to enter into asset sharing agreements but many such agreements have been made by the Attorney General on an ad hoc basis, sometimes in contractual form and sometimes by exchange of letters, both before and after 2007. Only one was entered based on an entrustment from the UK Government.

18 That exception was an umbrella asset sharing agreement with the USA in 2015. This reflected the significant international cooperation which already existed; it was considered beneficial to enter an agreement which would cover all future asset-sharing with the United States. This was undoubtedly a treaty. It was entered under entrustment from the UK, signed by the Attorney General, and ratified by the States Assembly on 14 April 2015.[30]

19 Whether an individual asset sharing agreement is a non-binding MOU or a treaty will depend upon its terms and the context of the agreement. In that connection, asset sharing agreements are usually termed “agreements” because of the legislative context, i.e. the terminology of the Civil Asset Recovery (International Cooperation) (Jersey) Law 2007 and the Proceeds of Crime (Jersey) Law 1999.

20 In Jersey, asset sharing agreements are invariably entered by the Attorney General, who is exercising his prerogative power in the field of mutual legal assistance. That prerogative power must, however, be exercised within the framework of the constitutional relationship between the United Kingdom and Jersey. The UK is responsible for the international relations of Jersey, and it is the accepted constitutional practice that, before the Government can negotiate a treaty, an entrustment from the UK Government is required. It would not, therefore, be open to the Attorney General to enter an asset sharing agreement in the form of a treaty without an appropriate entrustment. There is nothing, however, to prevent the Attorney General (or indeed the Government of Jersey) from entering an MOU without any formal entrustment from the UK.[31]

Bilateral investment treaties

21 Bilateral investment treaties (BITs) are, as their name would imply, international agreements with the object of facilitating trade and cross-border investment between states. Several of the UK’s BITs have been extended to the Channel Islands, usually by exchange of letters between the UK and the country concerned at the request of the Bailiwick.[32] The underlying agreement is generally adherence to a specific set of standards which establish the conditions for the qualifying investors of one country to make investments into the other country.

22 The Government of Jersey has in recent years obtained entrustments from the UK to negotiate and conclude on its own behalf BITs with several countries.[33] The first to be concluded was with the United Arab Emirates which was signed in Dubai on 9 November 2021. This was undoubtedly a treaty properly so called and is now in force, having been ratified by the UAE on 11 April 2022 and by the States Assembly in Jersey on 1 March 2023. Negotiations with the governments of Rwanda and Ghana are understood to be continuing.

Free trade agreements

23 In the aftermath of the United Kingdom’s withdrawal from the European Union (“Brexit”) it has been a policy aim of the UK to conclude as many free trade agreements (FTAs) with key trading partners as possible. The Crown Dependencies have been offered the opportunity to participate in several of these FTAs, giving rise to some interesting jurisprudential questions. These are clearly UK treaties but, instead of having the ratifications of them extended to the Islands as would be customary, provisions purportedly applying to the Islands have been incorporated into or embedded in the agreements. Thus, in the UK/Australia Agreement,[34] for example, the territory of the “United Kingdom” is defined as including for certain purposes the territory of Jersey and Guernsey, even though, plainly, as a matter of constitutional law it does not.[35] Similarly, “customs authority” is defined to mean for the United Kingdom, His Majesty’s Revenue and Customs and (for the applicable provisions of the agreement) the Jersey Customs and Immigration Service and the Guernsey Customs and Excise.[36]

24 Clearly, these FTAs create international obligations (and privileges) for the Islands because the governments of Jersey and Guernsey have acquiesced in the relevant parts of the agreements, and indeed have sought to be included in this way. The agreements either have been or will be ratified by the UK and the corresponding country in accordance with the domestic procedures for each country.[37] Whether these FTAs in which the Channel Islands are involved require any further approvals in accordance with the domestic law of Jersey and Guernsey is an open question.

25 So far as Jersey is concerned, the States Assembly adopted unanimously a proposition entitled “Principles for Jersey’s Participation in United Kingdom Free Trade Agreements”[38] on 25 November 2021. The Minutes of the States record that the Assembly—

“adopted the following principles upon which the Council of Ministers should determine Jersey’s participation in future United Kingdom Free Trade Agreements—

(a)   Protecting Jersey’s existing constitutional autonomy and cultural heritage;

(b)   Maintaining and strengthening Jersey’s reputation as a well administered jurisdiction that was responsible for its own prosperity;

(c)   Upholding the long-established rights and privileges of Jersey residents and businesses that enabled them to trade and remain agile, innovative and competitive as Jersey sought to grow and diversify its economy;

(d)   Maintaining or increasing the ability of the States Assembly and Government of Jersey to make decisions expeditiously in areas of domestic policy, including where close collaboration the UK Government and other international partners was required;

(e)   Further to the current baseline of customs and goods participation, seeking the inclusion of extension provisions to enable Jersey’s participation in additional provisions, post-ratification, and, where extension included the basis of new commitments, obtaining the consent of the States Assembly wherever practicable or otherwise reporting to the States at the earliest opportunity;

(f)    Taking into account commitments already undertaken in existing Free Trade Agreements which Jersey participated in;

(g)   Keeping the relevant Scrutiny Panel informed and up to date on all Free Trade Agreement negotiations with which the Government of Jersey was involved.”[39]

26 This resolution makes it clear that the Assembly has agreed that Jersey’s participation in future UK Free Trade Agreements should be determined by the Council of Ministers, provided that such agreements meet all the principles laid down. Paragraph (e) is a little ambiguous in that it envisages allowing parts of any agreement going beyond customs and goods provisions to be extended, but only after the agreement has been ratified. Does that mean ratification by the participating countries or by the States Assembly? Is it a principle that such an extension provision should be included in the FTA from the start, or that it should be subject to negotiation post-ratification?[40] What does obtaining the consent of the States Assembly “wherever practicable” mean? These ambiguities conceal a greater uncertainty which is whether FTAs need to be approved by the States after a text has been negotiated and before they come into force. It is surely not possible that an international agreement between two states (the UK and one other) can of itself change the domestic law of constitutionally independent states such as Jersey and Guernsey without any intervention by their respective legislatures.

Ratification/approval by the States

27 The term “ratification” means “confirmation” or “approval”. In times of personal rule by sovereigns, the monarch was expected to ratify his agent’s signature and ratification added solemnity to the process. With the decline in personal rule, and the development of democratic veto over executive action, the process of ratification assumed more importance than the signature of the treaty.[41] In the UK, where the Crown retains its autonomy in treaty-making, although the treaty must now be referred to Parliament under s 20 of the Constitutional Reform and Governance Act 2010,[42] it is still the Crown which ratifies.

28 The position in Jersey is arguably different.[43] It is true that the States introduced ministerial government by the States of Jersey Law 2005. Before 2005, the States of Jersey was both legislature and government. Government was by committees of the States and there was no separate executive. Ratification in the above sense took place either in the States or by Act of a committee, usually the Legislation Committee or the Policy and Resources Committee, whether what was in question was an extension of the UK’s ratification of a treaty or the approval of a treaty negotiated by Jersey under entrustment.

29 Post-2005, there has been a significant lack of clarity as to the appropriate constitutional rules for ratification or approval of treaties. In nearly all cases of the approval of treaties negotiated under entrustment from the UK, it has been the States Assembly which has resolved to ratify the treaty. More than 35 Tax Information Exchange Agreements and 12 Double Taxation Agreements have been dealt with in that way. The only Bilateral Investment Treaty concluded to date (with the United Arab Emirates) has been approved by the States Assembly. It is submitted that a requirement for treaties entered under entrustment to be ratified by the States Assembly has evolved as a customary constitutional rule.

30 Yet in relation to the extension of the ratification of treaties entered by the UK, there has been a lack of consistency. On 23 October 1953 the States resolved to seek the extension of the ratification of the European Convention on Human Rights. The author’s recollection as an elected member of the Legislation Committee in the early 1970s, and as a Law Officer between 1975 and 1994, is that conventions and international agreements were referred to the Legislation Committee or some other appropriate committee for consideration and decision as to whether extension of the UK’s ratification should be sought. In 2013 the States agreed in principle to seek the extension of the UN Convention on the Rights of the Child (as reported by the Chief Minister on 6 August 2013)[44] but the actual request appears to have been made by the Council of Ministers in 2014. Indeed, according to the helpful Progress Reports on International Conventions and Agreements lodged with the States between 1999 and 2013 (but since discontinued),[45] most of such international agreements were considered first by the Policy and Resources Committee and subsequently by the Chief Minister and were only reported to the States rather than being approved by the Assembly. By way of example, in 2013, the extension of the ratification of Protocol 15 to the European Convention on Human Rights was approved by the Chief Minister, and merely reported to the States.[46] It may be thought regrettable that the States Assembly is, generally speaking, no longer notified officially of the Government’s views on individual treaties and international agreements, and often not even informed of any action taken to extend them to Jersey.

31 That may change, however, following a resolution of the States of 1 March 2023 on a proposition relating to the ratification of the UAE Bilateral Investment Treaty. The States decided to—

“request the Legislation Advisory Panel … to bring forward legislation by which all treaties and international agreements signed by a Minister under entrustment … or to be extended to Jersey under the UK Government’s ratification process, are subject to ratification by the States Assembly before they come into force.”[47]

There seems no doubt that it would be beneficial to bring greater clarity to the constitutional arrangements for the approval of treaties and international agreements. In the United Kingdom, art 20 of the Constitutional Reform and Governance Act 2010 lays down a negative resolution procedure; the Minister must lay a copy of the treaty before Parliament and allow a period of time to elapse before ratification so that members of parliament may have the opportunity of resolving that it should not be ratified. An attempt was made to introduce a negative resolution procedure in Jersey,[48] but that was subject to criticism and led to the adoption of the States resolution of 1 March 2023. This determined that approval of treaties and international agreements required an affirmative resolution procedure, so that an international agreement would need the positive assent of the States before it could be brought into force in Jersey. It is understood that drafting of legislation to achieve that end is under consideration.

Sir Philip Bailhache was Bailiff of Jersey and President of the Court of Appeal between 1995 and 2009. He has been editor of the Jersey and Guernsey Law Review since its foundation (as the Jersey Law Review) in 1997.

[1] See Jersey Prison Board case, 1891–94, Crown memorandum, at 129.

[2] States of Jersey Law 2005 [accessed 2 January 2024].

[3] https://www.gov.je/SiteCollectionDocuments/Government%20and%20admi nistration/R%20InternationalIdentityFramework%2020070502.pdf [accessed 2 January 2024].

[4] “Position of the Channel Islands and Isle of Man in relation to treaties and international agreements” (Foreign Office Circular no 0118 of 16 October 1950) cited in Bois, A Constitutional History of Jersey (St Helier, 1969), at 266 et seq.

[5] This was customary international law now embodied in art 29 of the Vienna Convention on the Law of Treaties, 1969.

[6] See fn 4 above at 270–271.

[7] See, generally, the Foreign and Commonwealth Office Memorandum of 1993, prepared by legal advisers in the FCO (Treaties: Application to Crown Dependencies, (1993) R.C. 24, States Greffe).

[8] The United Nations came into existence on 24 October 1945 after 29 countries had ratified the Charter.

[9] The ILO was in fact founded in 1919 as an offshoot of the League of Nations, the ill-fated predecessor of the UN. The ILO is now an agency of the UN whose mandate is to advance social justice by setting international labour standards. In relation to ILO conventions, it should be noted that art 35 of the Constitution of the ILO differentiates between cases where the subject matter of the convention lies within the self-governing powers of non-metropolitan territories and those where it does not. Specific provision was made for ILO conventions by a Home Office letter of 25 April 1951—see fn 4 at 275–276.

[10] The Council of Europe was founded in London on 5 May 1949 to uphold human rights, democracy, and the rule of law in Europe. See https://www.coe. int/en/web/about-us/our-member-states [accessed 28 December 2023].

[11] https://www.echr.coe.int/documents/d/echr/convention_ENG [accessed 28 December 2023].

[12] 2002 JLR 475; European Court of Human Rights, 4th section, 8 October 2002.

[13] https://treaties.un.org/Pages/overview.aspx?path=overview/definition/page 1_en.xml. [accessed 28 December 2023].

[14] The word “Charter” is used for particularly formal instruments, going back no doubt to Magna Carta of 1215. It is also used for constitutional documents such as the United Nations Charter of 1945.

[15] “Declarations” are not always legally binding—eg 1945 Universal Declaration of Human Rights. Sometimes, however, a declaration may be in effect a treaty—eg the Joint Declaration between the UK and China on the question of Hong Kong in 1984.

[16] See para 14 below.

[17] An Exchange of Notes is a record of a routine agreement, under which the accepting state usually repeats the text of the offering state to record its assent.

[18] “Protocol” is used for less formal agreements, although it can also be used to supplement the terms of a formal treaty.

[19] “Convention” has both generic and specific meanings. The Statute of the International Court of Justice refers to “international conventions, whether general or particular”. Used specifically, it usually means an instrument open for participation to a large number of states—eg the 1982 Convention on the Law of the Sea.

[20] “Entrustment” is a curious term. A dictionary definition (Shorter Oxford English Dictionary, OUP, 6th edn, 2007) has it as “the action of entrusting; the fact of being entrusted”. In effect, it means an authorisation to act internationally on the terms set out in the entrustment.

[21] See the External Relations: Common Policy presented to the States Assembly on 27 July 2015 https://statesassembly.gov.je/assemblyreports/015/ r.86-2015.pdf [accessed 27 December 2023]. A similar entrustment was given to Guernsey.

[22] See, for example, the Double tax Agreement between Jersey and Malta https://www.gov.je/ImportedNewsObject/LDDTA_Malta20100126MC.pdf [accessed 27 December 2023]; and the TIEA.

[23] https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf [accessed 21 December 2023].

[24] The Channel Islands may be regarded as having a sufficient international personality to qualify as a state for these purposes.

[25] M Villiger, Commentary on the Vienna Convention, 1969 (2009) at 81.

[26] See Aegean Sea Continental Shelf, ICJ reports, 1978, 3, at 39–44; A Aust, Modern Treaty Law and Practice (2013, 3rd ed) at 17; A Corter & P Klein (eds) The Vienna Convention on the Law of Treaties; a Commentary (2011) at 40–45.

[27] A Aust, Modern Treaty Law and Practice (3rd ed., 2013) at 31. See also R Gardiner, Treaty Interpretation (2nd ed. 2015) at 21.

[28] See Bailhache, “Customs matters and Royal Charters”, (2019) 23 Jersey & Guernsey Law Review 66.

[29] See also art 24 of Proceeds of Crime (Jersey) Law 1999.

[30] https://www.gov.je/News/2015/pages/AssetSharingUSA.aspx [accessed 21 December 2023].

[31] The author is indebted to Professor Sir Jeffrey Jowell KC for assistance in relation to the sections on the nature of a treaty and asset sharing agreements. Any errors or misconceptions are those of the author.

[32] The UK treaties extended to Jersey are with Antigua & Barbuda, Bangladesh, Belize, Bolivia, Cameroon, Dominica, Grenada, Guyana, Honduras, Hungary, Indonesia, Jamaica, Jordan, Kazakhstan, Republic of Korea, Latvia, Lesotho, Malaysia, Malta, Mauritius, Mongolia, Nepal, Pakistan, Panama, Papua New Guinea, Philippines, Romania, Senegal, Singapore, St Lucia, Switzerland, Thailand, Trinidad & Tobago, Tunisia, Turkmenistan, Uzbekistan, and Yemen.

[33] United Arab Emirates, Rwanda, and Ghana.

[34] https://www.gov.uk/government/collections/uk-australia-free-trade-agreem ent [accessed 28 December 2023].

[35] Article 1.4.

[36] Ibid. A similar drafting technique is adopted in the UK/Japan Agreement for a comprehensive economic partnership, where the territory of the United Kingdom is defined to include the Channel Islands and the Isle of Man. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/929181/CS_Japan_1.2020_UK_Japan_Agreement_Comprehensive_Economic_Partnership__v1.pdf [accessed 30 December 2023].

[37] For the United Kingdom, in accordance with the provisions of the Constitutional Reform and Governance Act 2010.

[38] P.94/2021.

[39] States Minutes 24th November 2021 (gov.je).

[40] The possibility of extending the ambit of the UK/Japan Comprehensive Economic Partnership Agreement (signed on 23 October 2020) to the Crown Dependencies beyond provisions dealing with trade in goods was included from the outset. See art 1.3 5 https://assets.publishing.service.gov.uk/media/ 5f92ecb8d3bf7f35f06ae3bd/CS_Japan_1.2020_UK_Japan_Agreement_Comprehensive_Economic_Partnership__v1.pdf [accessed 2 January 2024].

[41] See generally O’Connell, International Law (1965, London, Stevens and Sons Ltd), Vol I, at 241 et seq.

[42] Prior to the 2010 Act, treaties had to be referred to Parliament under what was known as the Ponsonby Rule. This was a constitutional convention which required that international treaties subject to ratification be laid before Parliament for 21 days prior to ratification.

[43] It is submitted that in Guernsey, where there is no executive or ministerial government, it is certainly different, and treaties, or their extension to the Bailiwick, must be approved by the States of Deliberation.

[44] R.97/2013.

[45] An unofficial list of treaties which have been extended to Jersey may now be found of the gov.je website https://www.gov.je/Government/Departments/ JerseyWorld/pages/treatiesconventions.aspx [accessed 30 December 2023].

[46] European Convention on Human Rights (ECHR): Protocol 15 (gov.je).

[47] States Minutes 1 March 2023 (gov.je). The author makes a declaration of interest that he was party to that decision.

[48] Unusually, this was purportedly done by lodging a report entitled Notification of the conclusion of the bilateral agreement for the promotion and protection of investments between the Government of Jersey and the Government of the United Arab Emirates (R.6/2023).

Guernsey Legal Methodology—An Explanation

Gordon Dawes

An attempt to explain and systematise Guernsey legal method, and a plea.

Introduction

1 I came to Guernsey in 1998 and joined the litigation department of what was then Ozannes, now Mourant Ozannes (Guernsey) LLP under Peter Ferbrache,[1] after not quite nine years of practice in a common law chambers in the Temple, London.[2] I have always had the good fortune, not necessarily appreciated at the time, to be put through qualification processes just before they have been simplified. In terms of the Guernsey Bar this meant a requirement for three years ordinary residence in the Bailiwick after the age of sixteen;[3] obtaining a Certificat d’Études Juridiques Françaises et Normandes after a six-month course of study at the University of Caen (now barely a month, and taught remotely since Covid and largely in English) and the Guernsey Bar exams themselves, comprising six full compulsory subjects (now three-and-a-half, but likely to expand somewhat in the next year or two).[4] I was called to the Guernsey Bar in 2001. I had learned how to touch-type before English pupillage and ended up with hundreds of pages of typed notes by the time I had finished Caen and the Guernsey Bar. I spent three years turning and supplementing those notes into a book, published in 2003.[5]

2 I am sometimes asked whether I will produce a second edition and my immediate response is, and remains an emphatic, never. The scale of the task was all but overwhelming at the time and has only increased considerably since. The book captured a moment in Guernsey law, approximately 235 years after the last textbook of Guernsey law had been produced.[6] While the book has inevitably become more and more out of date, it remains a useful starting point. There were very few Guernsey law resources at the turn of the millennium. Legislation was (only) printed in its original form and any attempt at consolidation was a purely personal endeavour. There were no law reports,[7] no website and a Guernsey Law Journal which was very helpful, but had only started in 1985 and had fallen far behind.[8]

3 We now have a fantastic Guernsey Legal Resources website[9] where you can find professionally produced law reports,[10] unreported judg-ments uploaded regularly with keywords picked out and almost all Guernsey legislation, readily available and fully consolidated.[11] There is a growing online library of more difficult to access Guernsey legal texts, ancient and more recent.[12] There has been a great blossoming of Channel Island legal literature, which I suggest can be traced back to the founding of the Jersey Law Review in 1997. An equally significant moment was the founding of the Institute of Law, Jersey in 2008 and the production of its excellent study guides for the Jersey aspirants. In Guernsey, as ever, we took a few years to catch up.[13] We now have our own proto-Institute and study guides for each of our current seven subjects which serve as living textbooks of Guernsey law.[14]

4 It follows that there is much less need, if any, for a second edition of a Guernsey law textbook. It is possible to update yourself. The legislation and case law is now readily accessible.

5 It seems unnecessary to write a textbook which is merely descriptive of Guernsey law. It struck me that a tentative guide to Guernsey legal methodology which could be applied to any given legal problem (with an admitted bias to civil litigation given my own practice) would be of more use and hence this offering.

Why study Guernsey[15] legal methodology?

6 The question begs another, which is to define legal methodology. A sufficient working definition is as follows:

“The body of knowledge of the methods which may be utilized to discover the principles and rules relevant, within a particular legal system or body of law, to the determination of a particular problem or controversy. Application of legal methodology depends, in the first place, on determination of the facts raising the problem and discovery of what is truly in issue … Once the facts have been determined, they must be classified or categorized to discover what legal issues or points have to be investigated. This must be done by reference to the analytical classification of the particular legal system, to the major divisions or branches of that system, the main heads thereof, sub-heads, sub-sub-heads, and so on, under which the principles and rules are grouped … The application of legal methodology in this way is a skill much developed by experience and extensive acquaintance with the legal system in question, so that an experienced lawyer can frequently omit several stages in the process of scientific enquiry and go at once to the statute or case which provides an answer … or even answer it without needing to look at the legal sources at all … Only extensive legal knowledge and experience can suggest to a lawyer all the points which require investigation before he^[[16]] can advise what law is applicable to a given set of facts and what the rights and duties of the parties are in the circumstances.”[17]

The Guernsey law starting point

7 This definition works well enough in the context of Guernsey law, save that the need for principled legal methodology when solving a Guernsey legal problem[18] is more acute by comparison with, say, English law. There are a number of reasons for this:

    (i) Guernsey law is rooted in Norman customary law, not English law;

    (ii) The legal starting point and, if you like, default position for Guernsey law, is and remains, Norman customary law;

    (iii) Norman customary law is in, and of itself, and necessarily, a somewhat esoteric subject, it is niche;

    (iv) Furthermore, Norman customary law did not remain static. It evolved over many centuries but essentially came to an end in 1804 with the promulgation of the Code civil des Français;[19]

    (v) To the extent that Guernsey law looked to the Code civil as the successor to Norman customary law[20], the Code civil did not remain static either;

    (vi) Even more significantly, English law exercised an increasing influence over Guernsey law, Guernsey law becoming a mixed legal system, mixed as between customary and civil law on the one hand and common law on the other;

    (vii) That English influence has not remained static either; it has increased substantially over the years, but with a subtle change in that the influence of wider Commonwealth common law has increased also, it is not all about English law;

    (viii) At the same time more and more legislation is produced, displacing customary and/or case law, the dominant influence for Guernsey legislation being English legislation;

    (ix) Guernsey is a very small jurisdiction and produces comparatively little legislation and case law;

    (x) There is comparatively little written about Guernsey law, there is not a wealth of academic and other commentary—although much more than there was;

    (xi) You cannot just select the specialist practitioner text on the subject at hand (most likely online and regularly updated) and look for the answer to your legal problem;

    (xii) As to procedural law there is no equivalent of a regularly updated White Book as in England.[21]

8 It follows that Guernsey law is a sort of legal smörgåsbord,[22] albeit not static. To stretch the metaphor, it is a movable feast. You have to know your way around the buffet table.

A little history

9 This is not the place to set out a history of Guernsey law, it has been done elsewhere.[23] However, it is essential to remember the basic starting points that (a) the Bailiwick of Guernsey was a part of Gaul and incorporated into the Roman Empire after Julius Caesar’s invasion of 58–50 BC, and (b) that the Bailiwick was incorporated into what became the Duchy of Normandy, at some point after AD 911 and the Traité de Saint-Clair-sur-Epte, made between King Charles III (“the Simple”) of France and Rollon, a Viking chief.[24] Incorporation into the continental Roman Empire was sufficient grounding for Guernsey’s civilian law strand and the (later) relevance of the so-called ius commune, ie that common European legal tradition derived principally from Roman law. Incorporation into the Duchy of Normandy gave Guernsey its Norman customary law sub-stratum, a sub-stratum that continues to this day. While Guernsey’s political separation from the Duchy of Normandy dates back to AD 1204 and King John’s forfeiture of continental Normandy to King Phillippe II “Auguste”, Norman law and custom continued in force in the Islands and evolved into a distinct body of Guernsey law, albeit one which continued to depend heavily upon Norman law. The English Crown had not abandoned its claims to Normandy. Consistent with those ambitions and doubtless consistent with the wishes of their inhabitants, Norman law and custom continued in force with the Islands never, of course, being incorporated into the Kingdom of Great Britain in 1707[25] or the United Kingdom in 1801[26] but becoming and remaining Crown Dependencies with a singular place in the world and singular laws, customs and institutions.

Anglicisation

10 Since the mid-19th century there has been an increasing anglicisation           of Guernsey law and custom, accelerated by the impact of World War II[27] and the effect of evacuation on a generation of Guernsey people and the establishing of an Anglophone financial services industry from the early 1970s onwards and all professions looking, essentially, towards the United Kingdom rather than France,[28] even while the UK itself was an EU member with Guernsey’s relationship with the EU governed by Protocol 3.[29] It is a fact of life that almost all Guernsey lawyers’ principal legal education is in English law, either that or Scottish law or the law of a Commonwealth jurisdiction. Their first language is almost always English. The same applies to those lawyers drafting our legislation and inevitably affects the choices they make in terms of precedent (very often UK legislation[30]). The same is true of all of Guernsey’s judiciary at every level.[31] A change in legislation would be required to permit a more diverse judiciary in terms of qualifying jurisdictions. There seems no good reason not to include France, and every reason to do so.

Coutume, coutumier, customary law, common law, case law

11 There is confusion over nomenclature which also has to be addressed before considering legal method. As to coutume and coutumier these are distinguished as follows:

“When used to designate a legal system, coutume (custom) means custom or customary law and coutumier (customary) is used as an adjective, as in the phrase droit coutumier, meaning literally customary law. When used to refer to a text, a coutume is an official redaction while a coutumier is an unofficial compilation put together by a private individual.”[32]

12 Norman customary law looks back for its written origins to the Très Ancien Coutumier of the early 13th century, soon displaced by the slightly later mid-13th century Grand Coutumier or Summa de Legibus. Neither were official documents, they were unofficial compilations, they were “coutumiers”, although, confusingly, referred to as the Ancienne Coutume when finally superseded by the official redaction of Norman customary law in the form of the Coutume Reformée, the text of which was finalised in July 1583, albeit not ratified by the French King until 7 October 1585. Curiously, when required to do so by Queen Elizabeth I after various complaints that the Guernsey court had been making it up as they went along, the Governor, Bailiff and Jurats of Guernsey had defined Guernsey law by reference to the 1574 commentary of Guillaume Terrien[33] which, necessarily, concerned the Ancienne Coutume and didn’t touch upon the fact that Norman law itself was undergoing a thorough process of revision and redaction.[34] The report of the Governor, Bailiff and Jurats was sent under cover of a letter dated 17 June 1582 and was ratified and approved by the Privy Council on 27 October 1583. The report is known as the Approbation des Loix, which thus acquired the force of a statute.[35]

13 Terrien’s Commentaires du Droict Civil tant public que privé, observe au pays & Duché de Normandie,[36] remains the starting point for any account of modern Guernsey law. All Guernsey legal roads lead back to Terrien.[37]

14 As to the expression “customary law”, everything depends upon context as to what is meant. There were many bodies of customary law, not just Norman. Northern France was a patchwork of customary legal systems, notably, Brittany, Orléans and Paris itself. Normandy was a particularly distinct custom. However, in a Guernsey context the expression “customary law” is only likely to be used either to refer to the body of Norman customary law (as distinct from purely Guernsey law) as a whole, ie pre- and post-1583 and the Coutume Reformée or, and confusingly, Guernsey customary law (ie those parts of its law which look to Norman antecedents starting with L’Approbation) or, and even more confusingly, interchangeably with the expression “case-law” or, even worse, interchangeably with a notion of “Guernsey common law”. In an ideal world some discipline would be exercised. The concepts of Norman customary law, Guernsey customary law, the general body of “Guernsey case law” (whether inspired by Norman law or the common law) and (the) common law (ie that body of law derived from Anglo/Commonwealth precedent) would be kept distinct.

15 But again we come back to the principled default position for Guernsey law: that its foundations are in Norman customary law/civilian law with Norman law authors frequently citing Roman law[38] and customary law deferring to civilian/Roman law when it has nothing of its own to say, notably as to the law of contract.

16 Guernsey legal methodology requires, as a starting point, a knowledge of when and to what extent customary and civilian law has been displaced, in whole or in part, either by statute or common law principle or some combination of the two; remembering always that it is all Guernsey law.

Other sources of law—legislation

17 In addition to customary law and case law there is, of course, legislation, which takes a number of different forms in Guernsey, not all of them domestic in origin, reflecting its status as a non-sovereign jurisdiction.

18 An Order in Council is the Guernsey equivalent of an Act of Parliament. The Order takes the form of Royal Assent or Sanction giving force of law to a Projet de Loi[39] passed by the States of Deliberation in Guernsey[40] and transmitted by the Law Officers to the Ministry of Justice and, if it clears that hurdle, upwards to the Committee for the Affairs of Jersey and Guernsey.[41] The Projet de Loi becomes a “Law” upon Assent/Sanction.[42] There is a second form of primary legislation, which is an Ordinance made pursuant to the customary law powers of the States of Deliberation (this power being statute-based for Alderney and Sark). The power is explained in the Chuter Ede report of 1947, which led to fundamental reforms of legal and legislative institutions post-WWII.[43] Such ordinances are made without reference to London, and are, it is suggested, under-used.[44] There are then ordinances made pursuant to enabling provisions in Laws, which is a form of secondary or subordinate legislation, albeit made by the Island’s parliament.[45] A very different form of law making takes the form of Orders in Council extending UK Acts to Guernsey, with or without modification (noting that such become a part of Guernsey law and survive, for example repeal of the UK legislation). This is a controversial area if the attempt to extend UK legislation is without the consent of the Islands.[46] There are local statutory instruments and regulations. The Royal Court retains its powers to legislate in respect of the making, variation, modification and revocation of rules of procedure.[47]

Indirect sources of law

19 The jurisprudence of the European Court of Human Rights plays an important part in Guernsey case law whenever the Convention for the Protection of Human Rights and Fundamental Freedoms[48] is engaged via the Human Rights (Bailiwick of Guernsey) Law 2000.[49] Ultimately the United Kingdom is answerable in respect of Guernsey-originating complaints of breach of the Convention in the ECHR.[50]

20 Another court which is and was not a part of the Guernsey court structure, but whose jurisdiction could be invoked (by reference, under Protocol 3, never done from Guernsey but twice from Jersey) was the Court of Justice of the European Union (“CJEU”), the chief judicial authority of the European Union. Such jurisdiction as the CJEU enjoyed has now been done away with by The European Union (Brexit) (Bailiwick of Guernsey) Law 2018 (“the Brexit Law”). Although there remains a body of so-called “Preserved EU Law” in Guernsey law, the principle of the supremacy of EU Law no longer applies to the Bailiwick. While a Guernsey court, tribunal or other public authority can take account of the general principles of EU law and CJEU decisions, where relevant, they are not bound by them.[51]

21 There is a parallel to be drawn between Guernsey’s relationship with Preserved EU Law and English law.

What doesn’t bind—the complex relationship with English case law

22 After that digression we return to the starting point, and a second fundamental point—as fundamental as the fact that Guernsey law origins are with Normandy and customary/civilian law—which is that Guernsey is its own legal jurisdiction. While Guernsey cannot claim political sovereignty it is an independent legal jurisdiction, wholly separate from any other legal jurisdiction. The law of Guernsey is a singularity. The only blurring of the edges is the extent to which the United Kingdom parliament can legislate directly for Guernsey,[52] but even this does not constitute a true exception to the principle of Guernsey’s jurisdictional independence because it is still a question of Guernsey law to be interpreted and applied by the Guernsey court system.[53]

23 It follows that the starting point is also to consider what does not bind Guernsey courts. Guernsey courts are not bound by the decisions of the courts which make up the court systems of the jurisdictions comprising the United Kingdom and, specifically, not the Supreme Court (or the House of Lords before it), let alone the Court of Appeal and High Court of England and Wales. There is nevertheless some well recognised subtlety. The influence of English law has already been noted and it is seen clearly in terms of the influence of case law.

24 There are circumstances where it can seem almost as if English case law is in some sense binding, but there remains a distinction with an important difference. It is not binding, rather it can sometimes be so persuasive as to mean that a Guernsey court will not, in practice, depart from it.

25 Those circumstances are rare though, because, again in practice the point simply won’t be taken in Guernsey. The parties will accept that Guernsey law is settled, because it is inevitable that it will follow England’s lead.

26 A very recent example is the case of CLO Holdco Ltd v Highland CLO Funding Ltd..[54] The case concerned a complaint of unfairly prejudicial conduct of a company’s affairs leading to a petition under s.349 of the Companies (Guernsey) Law 2008. As to the applicable legal framework the court held as follows:[55]

“… the power of the court to grant relief in a case of the ‘unfairly prejudicial conduct’ of a company’s affairs under ss 349 and 350 of the Companies Law is entirely statutory. It was adopted into Guernsey law from the company law of England and Wales …

As the Guernsey provision has been imported from English law, with the wording of s 349(1) of the Companies Law being identical with that of (now) s 994 of the English Companies Act 2006, and with there being little Guernsey law on the application of the relevant principles, it is accepted that Guernsey law will regard English authorities on the topic as highly persuasive …”[56]

27 It follows that, where Guernsey has adopted English (or UK) legislation word for word[57] then English case law on the equivalent legislation is likely to be highly persuasive (but never binding).

28 As a matter of general principle applicable across the board whenever English case law is looked to, the higher the English authority the more persuasive it will be (unsurprisingly). UK Supreme Court authority concerning legislation which has been copied exactly into Guernsey law will be highly persuasive. Likewise English Court of Appeal and even High Court authority will be persuasive, assuming of course that it is not itself the subject of appeal, or else has been upheld on appeal.[58] A further gloss can be added that the longer English authority has stood the test of time, the more likely it is that a Guernsey court will follow it. By contrast, authority which has come under repeated and sustained challenge from legal commentators, and especially authority which has been questioned by English courts themselves, is less likely to be taken at face value or followed by a Guernsey court.

29 A good example is the scope of legal professional privilege in English law and the confining of legal advice privilege to communications passing between the lawyer and the “client” in the sense of the instructing individual or those employees of a company authorised to seek and receive legal advice on its behalf. This is where English law had been left by the Court of Appeal judgment in Three Rivers District Council v Governor and Company of the Bank of England (No 5).[59] The case has come under sustained criticism ever since, academic, professional and judicial.

30 However, in English law the Court of Appeal binds itself, other than in well-defined circumstances.[60] In Director of the Serious Fraud Office v Eurasian Natural Resources Corp Ltd,[61] the Court of Appeal followed the Three Rivers (No 5) case, notwithstanding the sustained criticism of it. Sir Geoffrey Vos, giving the judgment of the court, stated as follows:[62]

“Moreover, whilst we do not under-estimate the importance of the Three Rivers (No 5) question, we do not think that this court should ignore the clear determination of the Court of Appeal in that case. Even if significant parts of that determination are properly to be regarded as carefully considered obiter dicta rather than strictly ratio, it would be highly undesirable for us to enter into an unseemly disagreement with it, particularly when the House of Lords has already declined in Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610 … after full argument, to decide the points that Mr Thanki urges us to decide. The House correctly concluded that those points were not strictly raised before it in Three Rivers (No 6), and noted that it had expressly refused permission to appeal the decision in Three Rivers (No 5). If the ambit of Three Rivers (No 5) is to be authoritatively decided differently from the weight of existing opinion, that decision will, in our judgment, have to be made by the Supreme Court rather than this court.”

31 After contrasting the position reached by the Singapore and Hong Kong Courts of Appeal, Sir Geoffrey continued as follows:

“… it seems to us … that English law is out of step with the international common law on this issue. It is undoubtedly desirable for the common law in different countries to remain aligned so far as its development is not specifically affected by different commercial or cultural environments in those countries. In this regard, legal professional privilege is a classic example of an area where one might expect to see commonality between the laws of common law countries, particularly when so many multinational companies operate across borders and have subsidiaries in numerous common law countries.

If, therefore, it had been open to us to depart from Three Rivers (No 5) [2003] QB 1556, we would have been in favour of doing so. For the reasons we have given, however, we do not think that it is open to us, so it is a matter that will have to be considered again by the Supreme Court in this or an appropriate future case.”[63]

32 In such circumstances it is much less likely, indeed unlikely, that a Guernsey court would follow English case law, notwithstanding that this was a House of Lords-endorsed decision of the English Court of Appeal. It is perhaps an extreme example at the end of a spectrum ranging from long-established and unquestioned principles of common law which a Guernsey court would inevitably follow (when looking to common law) to circumstances such as above where English courts have called into question their own case law. Another example is the case of Chester v Afshar,[64] a House of Lords decision on causation in the context of medical negligence to the effect that if a doctor negligently fails to inform a patient of a risk of surgery and the risk materialises and harm suffered, it is not necessary for the claimant to show that the failure caused the harm (ie that the patient would not have had the operation if advised of the risk). The decision marked a controversial departure from conventional principles of causation. It was a split decision and the judges in the minority were Lords Bingham and Hoffmann, two of the most distinguished judges of their generation. Again, in such circumstances a Guernsey court could be expected to hesitate when considering whether or not to follow English case law and would be entirely free to choose the eminent dissenters over the majority, or some other solution, if appropriate.[65]

33 And of course the law moves on. From time to time the House of Lords/Supreme Court have overruled their own decisions, applying a Practice Statement dating back to 1966.[66] Again the point is made that a Guernsey court need never follow questionable or outdated English legal precedent. It need not wait for English law to correct itself, indeed it would be doing a disservice to the people of Guernsey and anyone looking to Guernsey law and jurisdiction if it did so.[67]

34 All of that said, there are practical limits. Sumption JA[68] in the Jersey case of De la Haye v Att Gen said this:

“In a relatively small jurisdiction, there will be many issues which arise too rarely for the courts to have generated a coherent body of indigenous legal principle. In the interests of legal certainty, it is undesirable for the courts to reinvent the legal wheel each time that an issue of principle arises which is not covered by existing Jersey authority when there is a substantial and coherent body of case law^[[69]] available from a jurisdiction with which Jersey has close historical links, with which, on most issues, it shares common social and moral values and a common legal culture, and from which it derives most of its criminal statutes.”[70]

35 Some months later, Sumption JA made a similar statement in Guernsey but with a more explicit qualification:

“In Guernsey, the English common law has persuasive authority in areas not governed by Guernsey statutes or Guernsey customary law. How persuasive it is will depend on whether there are local considerations, social or legal, which point in a different direction. However, Guernsey is not, in legal terms, an island. It is fair to say that with comparatively minor exceptions the law of tort and the law of damages have for many years been built up on the model of the English common law, and English authorities have generally been applied. The use of English authority on issues where the underlying conditions in the two jurisdictions are broadly comparable is highly desirable in the interests of legal certainty. The immense volume of civil and criminal litigation in England is bound to provide more nuanced answers to a wider range of legal problems than the rather smaller corpus of decisions generated within the Bailiwick.”[71]

36 Ironically the qualification was seen in action the following year when the then Bailiff, Sir Geoffrey Rowland, plainly disagreed with a decision of the Court of Appeal led by Sumption JA, which also included Sir de Vic Carey, his immediate predecessor as Bailiff. In the case of Gunter v Law Officers,[72] Sumption JA, giving the judgment of the court, held that the sentencing guidelines used in the English courts for offences of making or possessing indecent photographs of children had commonly been used in Guernsey for some years and the time had now come to adopt them formally. The Bailiff is, ex officio, rightly or wrongly,[73] President of the Guernsey Court of Appeal. A seven-member panel of the Court of Appeal was hastily convened (the first and only time this has ever happened) and the judgment in Gunter roundly overturned on 2 March 2012, a little less than 9 months later. [74] The judgment contains strong dicta concerning the jurisdictional independence of Guernsey. The court expressly confirmed that it was not bound by its own previous decisions and was at liberty to depart from Gunter which it went on to hold was wrong. The starting point was not that sentencing levels in England were correct and there had to be some specific reason to depart from them in Guernsey such as a significant difference in social or other conditions, but rather that Guernsey should determine for itself the appropriate sentencing levels for offences committed in the Island. The court pointed to the fact that there was no overcrowding of the prison and the increased deterrent effect of (longer) sentences in a small community such as Guernsey. The Royal Court’s perception that English sentencing levels in this area were too low had been correct, pointing to the significant advantage the court had that sentence was passed by a single professional judge and an independent and elected panel of Jurats. The court went on to set Guernsey sentencing guidelines.

37 The starting point in Wicks was as follows:

“We start by addressing the fundamental constitutional issue. Guernsey is a separate jurisdiction and has its own legal system. It is, therefore, free to set its own sentencing levels as the Island’s courts think appropriate for Guernsey. Guernsey no more has to follow sentencing practice in England than it has to follow sentencing practice in Scotland, Northern Ireland, Jersey or, for that matter, France; it can, of course, in exercise of its autonomy choose, but for the same reason of autonomy, cannot be compelled, to do so. In our judgment, no authority is required to justify this elementary statement of the constitutional position which has been regularly stated on previous occasions.”[75]

38 The point was being made in the context of criminal sentencing, but it is suggested that the principle holds good generally. Guernsey courts are free to choose to follow English case law, when appropriate to do so. Which begs the question of the relationship with case law from other jurisdictions.

Jersey case law

39 There is a special relationship with English case law because of the centuries-old (almost 1,000 years if one dates from the Conquest[76]) political relationship between the two jurisdictions distinguishing all other jurisprudential relationships. The next most important relationship is that with Jersey law for at least five reasons:

    (i) Jersey and Guernsey occupy the same place in the world, how Jersey’s legislature and courts respond to any given issue is of obvious and close relevance to Guernsey as providing a possible precedent;

    (ii) Jersey is a larger jurisdiction producing more case law. If Jersey courts have already considered an issue which arises in Guernsey then it is again an obvious thing to do to consider that jurisprudence;

    (iii) Guernsey and Jersey legislation are often similar (because of a common source, namely UK legislation) or because Jersey legislation has been borrowed as a template (eg trusts legislation). Case law concerning such legislation is again of obvious relevance;

    (iv) Guernsey and Jersey have the same relationship with English case law (and that of the wider Commonwealth);

    (v) Perhaps most importantly, the Islands share the same panel of Court of Appeal judges. A judgment of the Jersey Court of Appeal in respect of an issue which then arises in Guernsey will be highly persuasive, but is still not strictly binding, any more than any Jersey case law is binding in Guernsey, not even Privy Council decisions on appeal from Jersey (although again the writing is likely to be on the wall, absent powerful justification for not following).

40 It can be said with confidence that if a legal issue arises in Guernsey which is not answered either by Guernsey legislation or existing case law, then as a matter of course one will wish to consider the position in Jersey as providing a possible answer. Interestingly, there is nothing new in this. Peter Jeremie, a leading Guernsey advocate of his day, gave evidence to the Commissioners appointed to inquire into the civil laws of Jersey, whose report appeared in 1861.[77] The opening of Jeremie’s evidence reads as follows:

“14,057. (Mr Jebb.^[[78]]) I think you have been for a considerable time practising as an advocate in Guernsey?—Yes.

14,058 How many years?—30 years.

14,059 Have you made yourself to any considerable extent acquainted with the laws of Jersey?—I do not conceive that I can speak positively as to Jersey jurisprudence or Jersey laws. They are, to some extent, similar in both islands, though in many points they materially differ. However, a knowledge of the one may sometimes very materially assist in obtaining a knowledge of the other. We frequently quote, look into, and examine Jersey authorities and Jersey decisions; and when they are produced, or offered to the court for their consideration, they have their due weight, inasmuch as the origin of both laws is the same.”

41 Clearly Jeremie is referring to the shared substratum of customary law, but his evidence of 20 March 1860, some 164 years ago, holds good today, albeit not the following:

“14,289. (Lord Devon.^[[79]]) Do the advocates plead always in French, or sometimes in English? As a rule they plead in French, but sometimes in important criminal trials and in police cases it has been required of the public prosecutor that he should address the court in English.”

Commonwealth[80] case law

42 The case law of the wider Commonwealth has long played an important role in Guernsey jurisprudence. This can be seen in Guernsey’s leading case, Morton v Paint.[81] English common law in the context of occupiers’ liability had become stuck up a gum tree[82] with fine distinctions being drawn between duties owed, inter alia, to invitees and licensees leading to arbitrary and unjust outcomes. The Law Reform Committee had produced a report in 1954 which was strongly critical of the state of English law.[83] The result was the Occupiers’ Liability Act 1957 and the general duty of care owed to visitors, discarding the common law position. The then Deputy Bailiff[84] found that he was bound by the pre-1957 state of the common law. The Court of Appeal disagreed, stating:

“It would not be appropriate to leave Guernsey law in the state reached by English law nearly 40 years ago, which was justly criticised as something of a blot in English jurisprudence and requiring urgent reform. For the Guernsey courts to cling to obsolete English common law cases which ceased to be authoritative in England and Wales 39 years ago would not be in the interests of those who live in Guernsey or their visitors …”[85]

43 Australian case law was cited extensively and the Guernsey Court of Appeal followed the example set by an Australian High Court decision, Australian Safeway Stores (Pty) Ltd. v Zaluzna[86] in dispensing with the old English common law categories in favour of a general duty of care, which also happened to be consistent with the English statutory reform.[87]

44 The influence of Commonwealth case law has, if anything, grown since Morton. There are a number of reasons. Law firms in Guernsey have grown in size and have recruited lawyers from around the world, particularly from the Commonwealth and jurisdictions such as Australia and New Zealand.[88] At the same time it has become much easier to find and cite Commonwealth case law through online resources.

45 A good, albeit extreme, example illustrating the citation of case law is the Royal Court judgment in Carlyle Capital Corp Ltd v Conway.[89] This was a very substantial claim brought by liquidators of a closed-ended investment “yield vehicle” against its former directors alleging breach of duty causing the fund to collapse with a net deficiency of $350m, having lost $1.3bn in eight months. The claim, which was hard fought and heavily resourced, failed.[90] For present purposes the interest of the case lies in examining the balance of citation between jurisdictions. Guernsey and English companies and insolvency legislation was cited. As to case law the numbers were as follows in terms of cases referred to in the judgment:

    (a) Guernsey: nine cases (two of which were earlier decisions in the same litigation);

    (b) England & Wales: eighty five;

    (c) Australia: five;

    (d) Cayman: two;

    (e) Hong Kong: three;

    (f) Singapore: one;

    (g) United States: one.

46 The overwhelming majority of cases referred to were, self-evidently, English. The judge made this observation:

“The Plaintiffs have cited a veritable global library of authority, in particular from Australia and in connection with their submissions about directors’ duties. I gained the distinct impression … though, that Australian company law has different legislative provisions from those in either Guernsey or the UK … Deciding the weight which should attach to an authority from Australia (for example) in a Guernsey law context may well properly require looking at the detail of its own context and the policy of Australian company legislation. The time and effort required to do so would generally be grossly disproportionate to the assistance which such authority might provide at the detailed level, even in a case of the magnitude of this one. This is especially so where, as is frequently the case, such authority generally seems to add little but confirmation … of the broad legal principles expressed in other cases closer to home. Once it is possible to identify guiding principles, the further utility of authorities from other jurisdictions of common law origin but wider afield diminishes hugely, even though they may not be entirely irrelevant.”[91]

47 The same principle applies to over-citation of authorities from all jurisdictions.[92]

The Code civil and other French sources

48 The Code civil was a reactionary document, not revolutionary and is the natural successor to the customs of France, including Norman customary law.[93] When you are on the customary law path in terms of Guernsey legal methodology then it is appropriate to consider the Code civil. However, the greater (a) the discrepancy between the original provisions of 1804 and Norman customary law, and/or (b) the departure from those original 1804 provisions via later amendment, the less helpful the Code and its case law[94] will be and vice versa. A recent reaffirmation of the importance of the Code for Channel Islands law was made by the former Bailiff of Guernsey, Sir Richard Collas, whilst sitting in the Court of Appeal of Jersey in the case of Fogarty v St Martin’s Cottage Ltd:

“We agree that where a customary principle has been incorporated in the Code civil and remains part of modern French law, it is appropriate to look not only at the customary authorities but also at modern French authorities to see how the customary principles have evolved and are to be applied in modern Jersey law. To do so is no different from looking to the development of English common law in those areas where Jersey law has followed those developments.”[95]

49 The relationship between Guernsey and French law in the 19th century has yet to be examined fully, but it is clear that the influence was strong, to the extent of drafting ordinances copying word for word provisions of the Code civil.[96] It is not at all unknown to cite 19th century French authors in the context of land disputes.[97] Wider French sources may also be cited, where appropriate, particularly in the context of contract law, considered below.[98]

Resourcing as a driver

50 It is a fact of life that resources are limited in a jurisdiction of not quite 65,000 people. There is only so much law which can be made. The gaps are particularly evident in adjectival law, i.e. the law relating to practice, process and procedure. Such procedural rules as exist are very brief when compared with their English homologues. We have already seen how Guernsey’s Royal Court Civil Rules are a slender borrowing from the English Civil Procedure Rules,[99] inevitably leading to heavy reliance on case law generated by the English rules. Very often the court is driven to looking at English case law to fill gaps in Guernsey rules, to the point of using English rules and related case law where there are no Guernsey rules at all. The most startling example of this is in the context of inquests where there are no Guernsey coronial rules. In Guernsey it is the Magistrate’s Court which has jurisdiction to hold inquests into the cause of death.[100] In the case of In the matter of the Inquest on Schofield,[101] Judge of the Royal Court Finch held as follows:

“Unlike in England and Wales, there is no separate office of Coroner in Guernsey—the main reason being the limited case load … The other principle differences between Guernsey and England are that there is no jury and no Coroners Rules 1984. In practice, the 1984 Rules are followed in Guernsey, subject to necessary modifications.”[102]

51 It follows that Guernsey has no rules of its own for an area of court practice where the European Convention on Human Rights is heavily engaged.[103] This is surprising, but a function of circumstance. What it does mean is a near total reliance on English rules and case law (and ECHR case law, which would apply regardless) for want of any Guernsey rules.

Guernsey court structure

52 Only the briefest of examinations of the Guernsey court structure is appropriate here.

53 The first level of Bailiwick courts comprise the Guernsey Magistrate’s Court, Court of Alderney and the Court of the Seneschal of Sark. The Guernsey Magistrate’s Court has jurisdiction to hear and determine all criminal matters other than the most serious of offences comprising treason, homicide, rape, robbery, piracy or perjury.[104] It can impose a sentence of up to two years’ imprisonment for a single offence (up to a total of three years if sentencing for more than one offence) and a financial penalty of up to £20,000[105] or whatever lower or higher figure is set by statute. The courts of Alderney and Sark have much reduced criminal jurisdictions and remit to the Royal Court sitting as the Ordinary Court to exercise the difference between their jurisdictions and the Magistrate’s Court jurisdiction. The Magistrate’s Court has a petty debt jurisdiction up to claims in the aggregate of £10,000.[106] The courts of Alderney and Sark have an unlimited first instance civil jurisdiction. There are rights of appeal from all three courts in both civil and criminal matters to the Royal Court, Guernsey. The Royal Court has what amounts to an unlimited first instance civil and criminal jurisdiction.[107] There is a right of appeal from the Royal Court to the Court of Appeal of Guernsey in both civil and criminal matters.[108] The Guernsey Court of Appeal is a creature of statute, see the Court of Appeal (Guernsey) Law 1961.[109]

54 There is a qualified right of appeal from the Guernsey Court of Appeal to the Judicial Committee of the Privy Council in civil matters.[110] Leave must always be obtained from the Committee in criminal matters.

The Guernsey rule of precedent

55 The locus classicus for the rule of precedent in Guernsey law is to be found in the judgment of the late Richard Southwell JA[111] in Morton v Paint:[112]

“In Guernsey the hierarchy of the courts and the doctrine of precedent requires the Royal Court and the Court of Appeal to follow the decisions of the Privy Council, when hearing appeals from the Courts of Guernsey.^[[113]] Privy Council decisions on appeals from other Commonwealth jurisdictions are not binding, but are persuasive authority on the common law where relevant circumstances in Guernsey do not differ markedly from those in the other jurisdictions. The decisions of the House of Lords^[[114]] are not binding on the Guernsey Courts. But in so far as the Guernsey Courts follow English decisions on the common law, the decisions of the House of Lords carry considerable weight, and it would be only in rare cases that the Guernsey Courts would not follow such a decision of the House of Lords. The decisions of the Guernsey Court of Appeal … are binding on the Royal Court but not binding on the Court of Appeal itself: Smith v Harvey 14 May 1981 … As regards the decisions of the English Court of Appeal, while the Guernsey Courts always treat them with due respect, they are not bound by them, and are free to review them and to depart from them if they are considered to be wrong or not appropriate to the circumstances of Guernsey … The coutume and common law of Guernsey has always developed by judicial decision, supplemented by statutes passed by the States of Guernsey and approved by the Privy Council. But there are fundamental parts of Guernsey common law which have been recognised as not being capable of alteration by judicial decision …”[115]

56 It follows that Guernsey’s rule of precedent is strictly hierarchical and, ironically for a mixed law jurisdiction, arguably a purer form of the common law principle of stare decisis et non quieta movere[116] in that higher courts bind lower courts and courts at the same level (Court of Appeal) cannot bind themselves.[117]

57 A curious note concluding this section is that Jersey law claims not to have a doctrine of precedent, on the basis that the doctrine is a creature of the common law and no part of Jersey legal history and its Norman customary law antecedents/civilian strand. Civilian systems do not have a doctrine of precedent, whilst at the same time case law is taken into account and recognised in the principle of the establishing and respect of a jurisprudence constante in any given context as being highly persuasive. That said, the Jersey position does not bear close examination and seems most honoured in the breach. The 2022–2023 Jersey Legal Systems study guide notes this:

“Remarkably, this is an area of legal theory (where) Jersey and Guernsey have gone in different directions. In the leading Guernsey Court of Appeal decision of Morton v Paint, it was held that the Royal Court of Guernsey is bound by the Guernsey Court of Appeal. This has been accepted ever since. There is no particular reason why the Islands have gone in a different direction.”[118]

58 One reason would be, of course, that Jersey may have taken a wrong turn.[119] The idea that the Royal Court of Jersey is not bound by its own Court of Appeal might come as a surprise to its non-Jersey members.[120] Ultimately there is a probably a distinction without a material difference in practice. With comparatively little case law there are much greater gaps between decided issues in both jurisdictions and less scope for precedent more generally, another reason why legal methodology assumes a greater importance in the Channel Islands.

The Guernsey law road map

59 The Guernsey jurisprudential map is a relatively sparse thing, albeit much less sparse than before given the increase in legislation, case law, legal literature and much improved accessibility to all three as well as easy access to Jersey, English and Commonwealth case law. It is still commonly the case though that you set off from an uncertain place with an uncertain route to the desired destination, which is correctly to anticipate the Guernsey law answer to the question posed. This is to come to the heart of Guernsey legal methodology, namely the guide to solving any given legal issue— a set of principles to navigate by.

Guernsey statute

60 Obviously if there is Guernsey legislation governing the issue in question then you may have your answer. If there is applicable Guernsey legislation then that is the necessary starting point. It may not be your end point though. If there is relevant Guernsey case law then that is your next stop. There is then some subtlety, because it is rare that Guernsey legislation is drafted from scratch. This has been touched on already in terms of the relationship with English case law. Very often UK legislation is taken as a template, although again there are traps for the unwary because legislation may not be copied either completely or exactly; but where there is no material difference in the relevant provisions then the case law of the source jurisdiction is of obvious relevance and most typically that will be the case law of England and Wales with the qualifications already stated as to level of court and how established/ unchallenged the case law is. Likewise, if the legislation has been copied in other Commonwealth jurisdictions, their case law may also be looked to.

61 The law of trusts is an interesting example. The Trusts (Guernsey) Law 2007 has its origins with the English law of trusts,[121] its predecessor being the Trusts (Guernsey) Law 1989, itself modelled on the Trusts (Jersey) Law 1984, itself modelled on English legal principle (albeit with important differences). Customary law had little or nothing of its own to say about the concept of the trust, any more than civilian law did. It was a quintessentially English law concept.[122] While both the Guernsey and Jersey Laws cover a lot of the ground in terms of what is required for a law of trusts, neither purports to be a code and the Judicial Committee has found expressly that the Jersey Law is not a codification, with an important consequence.

62 Investec Trust (Guernsey) Ltd v Glenalla Properties Ltd[123] concerned a Jersey law trust administered in Guernsey which generated Guernsey litigation all the way through to the Privy Council. The Judicial Committee’s decision is therefore a Guernsey decision on Jersey law (the effect of art 32 of the Trusts (Jersey) Law 1984), strictly speaking as an issue of fact from the Guernsey court’s perspective being a question of “foreign” law, and again, strictly speaking, not binding in Jersey itself, but it would be a brave soul to invite Jersey courts not to follow it.[124] Lord Hodge said this about the Trusts (Jersey) Law:

“… The international appeal of Jersey trusts is to a significant extent dependent on the certainty which it derives from the English case law. Naturally, English trust law must be modified where it conflicts with established principles of Jersey customary law, and it has also been modified by Jersey statutes.^[[125]] These general remarks apply equally to the trust law of Guernsey.

The TJL is the principal indigenous source of Jersey trust law. It is not a complete code of the law of trusts. But it gives statutory effect to some principles already well established in England and significantly modifies other principles. English trust law therefore serves as the background against which the provisions of the TJL fall to be construed.

For this reason it is necessary to start by setting out some well-established principles of English trust law which are relevant to the present issue …”[126]

63 The above dicta were cited with approval in the second Investec case to reach the Privy Council arising out of the same litigation, albeit better known by the name of the Jersey case which was heard at the same time, by a panel of seven.[127] But again the point holds good that English case law will not bind, while the more established and unchallenged (and undisturbed by Channel Island legislation) the English trust law principle is, the more likely it will be followed by Guernsey and Jersey courts. It is the same point as made earlier and the recent example of unfair prejudice in Guernsey company law borrowed from UK statute.

64 The interplay between the Trusts (Guernsey) Law 2007 and English case law was explored in the case of Molard International (PTC) Ltd v Rusnano Capital AG (in liquidation).[128] The wording of the legislation “codifying” the rule in Saunders v Vautier[129] trumped the rule itself and its exposition in English case law. The Guernsey legislation, on its true construction, had modified English law.[130]

65 Guernsey company law provides another example of the principles in operation. The Companies (Guernsey) Law 2008 does not have the equivalent of ss.170 to 177 of the Companies Act 2006. However the English legislation drew heavily from established case law and it was this to which the Guernsey court turned in the case, already noted, of Carlyle Capital Corporation Ltd (in liquidation) v Conway.[131]

“It is well known that the concept of a limited company was imported into Guernsey law from English law. As the Guernsey legislation has been modelled on the English legislation, it is helpful to look at English decisions in analogous cases, both for help in resolving any problems not directly covered by Guernsey statute or customary law^[[132]] … English decisions are persuasive, but no more, especially in the latter situation, because the context of Guernsey law and circumstance may well provide good reason for a different result. Where the Guernsey legislation is not in identical terms—and in this case it often is not—the assistance to be derived from English cases on similar but different enactments is much reduced.”[133]

Guernsey case law

66 There is little left to be said about Guernsey case law which has not already been said in the context of the rule of precedent. It is the second waypoint on the journey, after Guernsey statute. Although there is comparatively little it continues to build in volume, obviously, and there is now a decent body of accessible Guernsey case law. It is an ambition of the Institute of Law, Guernsey to increase the volume of accessible older judgments. As matters stand, the Guernsey Legal Resources site contains unreported judgments from 2000 onwards, Court of Appeal judgments from 1964 onwards (via the discrete body of headnoted judgments between 1964 and 1989 and the Guernsey Law Journal, 1985–2000). The Guernsey Law Reports themselves cover the period 1997 onwards. There are, of course, many more judgments to collect and make available.

67 If Guernsey case law gives you the answer to your legal problem then your journey is complete, if not then continue to:

The fork in the road

68 We come to an all-important fork in the Guernsey legal road map, albeit a nuanced one.

69 The central question is whether your legal problem and the solution to it lies on the customary/civilian law path or common law path.

70 The question is begged of why call it the “customary/civilian law path”. Initially I thought to call it simply the “customary law path” and perhaps that works on one level in those areas where Guernsey law looks only either to Norman customary law (up to 1804) or Guernsey customary law. But if there are such areas of law then it would not be a good thing either to look only and exclusively to Guernsey customary law[134] or, for external influence, only up to the year 1804 while ignoring the Code civil and all related French case law. The point made by Sir Richard Collas in Fogarty is fundamental.[135] It was also made by him (when Deputy Bailiff) in the earlier Royal Court case of Bougourd v Woodhead[136] concerning rights of occupation of a property bought in part with monies provided by the parents/-in law of the purchasers:

“If there is any future occasion on which as party seeks to persuade the Royal Court that rights of enjoyment have been granted over real property that are in the nature of a droit d’usufruit or droit d’habitation but do not fulfil the strict requirements for the creation of such rights, it might be helpful to the court if counsel could refer to modern French law to see how the law relating to such rights has evolved in that jurisdiction. The Deputy Bailiff’s understanding^[[137]] is that the authors of the Royal Court Report of 1852 relied heavily upon the French law of the day in preparing their report and therefore when looking to comparative jurisdictions for guidance, it is more logical to look to French law.”[138]

71    It follows that the customary law (whether Guernsey or Norman) should rarely, if ever, be looked at in isolation from comparative law sources, whether Jersey, the Code civil or French case law and textbooks. One would look also to the civilian strand of Scottish law for guidance.[139]

72 One could almost label it simply “the civilian path”, but that would do a disservice to the very real Norman customary law origins of Guernsey jurisprudence and the role played in particular by Terrien’s commentaires.

73 Nevertheless, it has to be conceded that the customary/civilian law branch continues to shrink as time passes. From a point where customary law dominated—which self-evidently would have been the case at the time of L’Approbation in 1582/3 and for some centuries afterwards—the scales began to tip more and more towards the English/common law influence, with matters accelerating from the mid-19th century onwards. The moment can almost be pinpointed. In the Second Report of the Commissioners appointed to enquire into The State of the Criminal Law in the Channel Islands—Guernsey,[140] the Bailiff, Sir Peter Stafford Carey, provided this written answer to the third question of the first series, namely: “What are the authorities principally relied upon in the discussion of questions arising upon the criminal law?”:[141]

“The authorities principally relied upon, in the discussion of questions arising upon the Criminal Law, are—

1. ‘Terrien’s Commentaires.’ This work is in itself nothing more than a treatise on the ancient customary law of Normandy; it is, however, to this Island something more than a text book, so much of it as is confirmed by the ‘Approbation’ having the force of law.
2. ‘Les Remarques de M. Le Marchant sur l’Approbation des Loix;’[142] which may be considered as a commentary on the text of Terrien, so far as it is applicable to this Island.
3. The ancient criminal procedure of Normandy, as we find it in Terrien, being very similar to the procedure used in France down to the time of the Revolution, on this subject, the old French authorities are referred to, particularly Pothier, ‘Traité de la Procédure Criminelle;’^[[143]] and, occasionally, Jousse, ‘Traité de la Justice Criminelle;’^[[144]] De la Combe, ‘Traité des Matières Criminelles;’^[[145]] etc.
4. In questions relating to criminality and the nature of offences, the English text writers are chiefly relied on, particularly Russell^[[146]] and Archbold.^[[147]]”

74 The influence of English law has only increased since, both in terms of providing templates for statutes, bringing related case law in their wake and, independently, English case law itself. It is a sort of jurisprudential cuckoo, but has not displaced the Guernsey warbler.[148] The balance has shifted markedly but there still remain significant areas of Guernsey law rooted in customary law.

The customary law path

75 The most obvious area in which customary law principles applied was the law of succession, but this was swept aside with effect from 2 April 2012 by the Inheritance (Guernsey) Law 2011 which, in effect, cut and pasted the Inheritance (Provision for Family and Dependants) Act 1975 from English and Welsh law, substituting testamentary freedom for a benign system of forced heirship with its origins in ancient customary law. It was an act of legal vandalism. The old law continues to apply to testamentary succession to the estate of a person whose will was executed prior to commencement of the 2011 Law.[149] By contrast, forced heirship survives in Jersey.

76 Land law[150] is now the most obvious area in which customary law principles apply and is seen clearly in a case such as Poulding v Elliott.[151] The case concerned the scope of a servitude over a neighbour’s land together with ancillary rights to carry out works and the like. The parties’ lawyers had carried out extensive research into customary law sources, starting with Terrien and working forwards through the commentators on the Coutume Reformée, including Bérault,[152] Godefroy,[153] Basnage,[154] Flaust[155] (without, on this occasion finding much assistance as regards the particular issue which had arisen). Recourse was also had to Hoüard’s dictionary,[156] Domat[157] and de Ferrière’s dictionary.[158] Particular use was made of the Code civil and a 19th century commentator on the Code, the happily named Pardessus.[159]

77 At the same time, Halsbury’s Laws of England and English cases were cited to the court, and while the court’s analysis is essentially in terms of the customary and French law sources, the court also noted that the benchmark of “necessity” for permitted works was “consistent with the English law principles”.[160]

78 A good example of the continuing truth that the Guernsey law default position is customary law and Terrien is the first judgment in the Smith v Carey Olsen litigation.[161] The issue concerned whether there was jurisdiction to grant (temporary) rights of audience to a person not admitted by the Royal Court as a member of the Guernsey Bar. Such narrow statutory exemptions as there were had no application. The Bailiff reviewed Guernsey case law and English case law concerning McKenzie friends. The Scottish position was also considered. Ultimately the court came back to, and its judgment turned upon, an analysis of the customary law position and the relevant provisions of Terrien as adopted into Guernsey law by L’Approbation, citing also Le Marchant’s Remarques et Animadversions.[162] The principled starting point to answer a question about rights of audience in 2019 remained Terrien’s 1574 commentary, the Order in Council of 1583 approving L’Approbation and Le Marchant’s 17th century analysis of L’Approbation. The court found there was no inherent power to grant rights of audience to those not admitted to the Guernsey Bar.

79 Again, where statute or precedent either does not give the answer, or only an incomplete answer, the court will go back to the customary law sources and work forwards to arrive at the modern solution. Thus, in the context of an application seeking guardianship of a minor continuing into adulthood the court went back to the customary law:

“In legal terms the Application was unusual in that it sought to combine in a single Order of the Court the guardianship of a minor continuing into adulthood. Under the customary law of this island, the two are treated differently. In the English language, both are called ‘guardianship’ but in the original French, guardianship of a minor was known as ‘tutelle’ and in respect of an adult as ‘curatelle’.

Laurent Carey in his ‘Essai sur Les Institutions, Lois et Coûtumes’ set out the law under the heading ‘Des Mineurs, et de Leurs Tuteurs et des Curateurs’ at pages 171 to 177. Although the Essai was published in 1889, Laurent Carey held the office of Juré-Justicier de la Cour Royale from 1765 until his death in 1769 at the age of 46 years. What he describes is therefore the customary law predating the Code civil in France. He makes reference to Terrien whose Commentary on the customary law was first published in 1574.

The customary law relating to guardianship of both minors and adults has continued to develop and evolve; such development being a feature of the customary law which can adapt to sociological changes reflecting changes in society and everyday life of the community, without statutory interference.”[163]

80 The court went on to consider the impact of modern Guernsey children legislation, noting that it had not expressly repealed the customary law position and, ultimately, granted the order sought, using its customary law powers.

81 The customary/civilian law path can therefore be summarised as follows—and assumes that there is no answer, or only an incomplete answer, to be found in Guernsey statute and case law:

    (a) The (16th century) starting point is L’Approbation read with Terrien’s commentaries;[164]

    (b) L’Approbation is most readily accessible through Le Marchant’s Remarques et Animadversions, Le Marchant being the second principled (17th century) stop in any event;

    (c) The next stop is the 18th century and Laurent Carey’s, Essai sur les Institutions;

    (d) There is limited material (currently) available as regards the 19th century. The works of Peter Jeremie and James Gallienne might assist;[165]

    (e) Regard would be had to commentators on the Coutume Reformée;

    (f) Regard would be had to wider “French” resources, where appropriate, such as Pothier, Domat, Pardessus and de Ferrière;

    (g) Regard would also be had to the Code civil as successor to “French” customary law, save to the extent that it had been (radically) amended by later statute;[166]

    (h) You would certainly look to see if there was any Jersey case law concerning the issue, much of the work may already have been done, albeit caution is required because the two jurisdictions have not always followed the same customary law paths and there are important differences in their legal histories;[167]

    (i) You would keep at least half an eye on English and Commonwealth case law to sense check your outcome. Sophisticated legal systems tend to produce similar legal outcomes.[168]

82 It is a fact of life that issues on the customary law path feature less regularly in the law reports given that they tend to concern relatively low value domestic[169] disputes rather than the affairs of Guernsey companies or high net worth individuals and Guernsey trust structures. The greater part of Guernsey’s substantial legal industry is not built around domestic disputes.

83 By contrast, if your dispute concerns the law of tort then you will find yourself on the common law path. Of course this assumes that classification is clear, and sometimes it isn’t. For example, relations between neighbours form a part of the law of tort in English law (nuisance) whereas in Guernsey law they form a part of the customary law as a quasi-contract (voisinage).[170] If in doubt it is suggested that one start with the customary/civilian law path and see if it responds, only if it does not should one move to the common law path.

The common law path

84 There are a great many examples in Guernsey case law of the common law path in action. The archetype is the case of Morton v Paint itself. A very recent example is the case of Dorey v Ashton.[171] The case concerned the making of wills[172] by a Guernsey advocate for a would-be testator who was known to be suffering from dementia, indeed a guardianship application had been commenced. There were no existing wills. The testator was a widower who had remarried. There was a pre-nuptial agreement in effect doing away with any ancillary relief claims and disclaiming, to the extent possible, claims against the estate of the other, however there was a carve-out for future wills. A psychiatric report had been obtained, in disputed circumstances, which found that the testator had capacity but advised also, in as many words, that the window to make a will was closing rapidly. The advocate proceeded to prepare and administer the making of the wills at the end of a video-conference call with the psychiatrist who, again, confirmed capacity, albeit capacity was more borderline. The call took place eight days after the original assessment by the psychiatrist and in the presence of two Jurats, who were required, at that time, to witness the will of realty. The wills gave the second wife two thirds of the personalty, a usufruit over her husband’s realty and a one-fifth share of the realty.[173] The conduct of the video-conference call was likewise in dispute. But for the wills the testator would have been intestate, his heirs being his four children from his first marriage. The testator died 11 years later.[174] The children challenged the wills in proceedings brought against the testator’s second wife. Those proceedings were settled on payment of a sum of money to the second wife, with each side bearing their own costs.[175] Three of the children later sued the advocate alleging negligence, seeking damages in the amount paid to settle their stepmother’s claim and their costs. The defendant raised inter alia the question of duty as a preliminary issue, saying that he owed no duty of care to the children and that the claim was therefore misconceived. The Royal Court agreed, as did the Court of Appeal. The Privy Council refused leave to appeal on the basis that there was no arguable point of law.

85 The interest of the case in terms of legal method lies in the fact that the case started with a very Guernsey domestic law-based issue surrounding the circumstances in which a will was made, legal formalities being governed by Guernsey statute.[176] However, the legislation did not answer the question of duty and nor did Guernsey case law, nor Jersey case law. The parties looked to English case law, the plaintiffs seeking to expand the principles laid down in the House of Lords case of White v Jones[177] and the defendant relying on the English case of Worby v Rosser[178] which the plaintiffs said was wrongly decided (but didn’t bind in any event). In addition to English case law, both parties cited extensively from Commonwealth case law, comprising cases from Australia, New Zealand and Canada. Indeed it was a Canadian case which had the greatest impact, after the English Court of Appeal case.[179] The Guernsey Court of Appeal cited also a recent UK Supreme Court case, Royal Bank of Scotland International Ltd v JP SPC4,[180] saying:

“… we think that that Privy Council decision is compelling authority concluding this appeal. It is difficult to see what circumstances might make that decision appropriate as a statement of Isle of Man common law but not that of the Bailiwick of Guernsey. As we see it, it sets out the applicable test for finding a duty of care in tort in a case of pure economic loss where there is no previous case establishing the duty.”[181]

86 The comment gives an interesting insight as to how the Court of Appeal views the dynamic between the wider common law and Guernsey law.

The contract law mash-up

87 The principled starting point for Guernsey contract law remains Pothier’s Traité des Obligations.[182] Norman customary law had very little to say about contract law given that Roman law provided a more than serviceable framework, itself subjected to an enormous work of editorship by Pothier in his Pandectae Justinianae in Novum ordinem digestae[183] before going on to write his Traité. Pothier continues to be cited regularly.[184] Nevertheless, English case law is frequently cited in contract cases. A good example is the other Smith v Carey Olsen case.[185] This was a professional negligence claim against a firm of advocates which was met by an exception de fond[186] that the claim was prescribed. The advocates’ terms of business reduced the time for bringing a claim from the standard six years (as set by legislation)[187] to just three years. The plaintiff said he had believed he had six years to bring a claim relying on mistake (erreur) and misrepresentation through silence. He relied also on the Guernsey (and Jersey) law principle of empêchement d’agir,[188] breach of fiduciary duty, and unfair contract term (appealing to principles enshrined in English legislation[189] with no equivalent, then, in Guernsey law).

88 The judgment[190] refers to 18 cases, seven of them from Jersey, five of them from Guernsey, four from England and two from Canada (cited by the plaintiff assisted by a McKenzie friend, and not followed). Chitty is also referred to. The analysis is very much in terms of distinct Guernsey (and Jersey) contract law rather than merely adopting English contract law principles. The Bailiff said this:

“By comparison with Jersey, there are fewer cases in which reasoned decisions have been given in the field of the law of contracts. Whist there might be a tendency in some minds to think that reference to English law produces all the answers, the common root of Jersey and Guernsey law in Norman customary law lends support to the submission of Advocate Davidson that what has been stated as the law of Jersey may well represent the law of Guernsey … I take the view that the customary law roots of Guernsey law continue to apply unless and until they are abrogated by primary legislation or they necessarily have to evolve in a different manner. In the absence of good reason to follow any different route, the customary law will be found to remain good law.”[191]

89 This is undoubtedly a correct statement of principle, even if, in the context of contract law, the customary law solution is to point towards Pothier and the civilian strand of Channel Island law. The Bailiff went on to cite the maxim, “la convention fait la loi des parties”[192] as a part of the law of Guernsey. The Bailiff expressly followed the civilian strand concerning erreur rather than English legal principle, citing in particular the work of Laurent Carey.[193] The Bailiff drew heavily on Jersey case law as to the true nature of erreur.

90 By contrast, issues such as when or whether terms will be implied into a contract are resolved by reference to (English) common law principle. In the Guernsey Court of Appeal case of Musa Holdings Ltd. v Newmarket Holdings (Guernsey) Ltd,[194] Beloff JA, giving the judgment of the court adopted the principles set out in Att. Gen. (Belize) v Belize Telecom Ltd[195] citing an earlier Guernsey Royal Court judgment which had taken this path.[196]

91 The contractual provisions of the Code civil have not stood still either, with a significant set of amendments made by ordinance of 10 February 2016 affecting contracts entered into after 1 October 2016.[197] There is no Guernsey case addressing the question of how the 2016 changes should be viewed from a Guernsey perspective. To the extent that the changes merely codified long-established case law principles then the Guernsey court would certainly have regard to them. However, other changes were pure innovations, which the court would have less regard for, unless a Morton v Paint-type argument applied, ie that the former provisions of the Code were in some sense deficient and not appropriate to follow.

92 An even more fundamental fly in the legal ointment was the making of what was called “trading standards” legislation in respect of individuals dealing as consumers in Guernsey.[198] In effect Guernsey imported more or less lock stock and barrel English sales of goods, supply of services, unfair contract terms and product safety legislation all in one go; from nothing to a near total English cut and paste.[199] Where this leaves Guernsey contract law more generally is anybody’s guess, the issue does not seem to have been considered at the legislative stage. Is Guernsey contract law essentially to be English law for consumers but not for any other contracts? Are we to read across the legislative provisions as if they had been made more generally? Are we not to read across on the basis that they were not made more generally? At the end of the day the sort of terms implied are not much different either way, although Mr Smith’s case may have been decided differently if heard today.

The road map summarised:

93 The Guernsey legal methodological road map can be summarised as follows;

    1 Look first to Guernsey legislation in all its various forms and any related Guernsey case law, applying the Guernsey rule of precedent, and, if the legislation is a close copy, have regard to the (always non-binding) case law of the jurisdiction of origin;

    2 If there is no legislation concerning the relevant issue, look first to any Guernsey case law concerning the issue, again and always, applying the Guernsey rule of precedent;

In either case, assuming you do not have your solution:

    3 Consider whether the issue has been addressed in Jersey case law (or legislation)[200] and consider any material (but always non-binding) case law;

And:

    4 Identify how the legal issue is categorised under Guernsey law, whether having its sources in (i) customary/civilian law, (ii) contract/civilian/mixed law or common law;

    5 If the customary/civilian law path then:

(i)    Start with L’Approbation & Terrien (accessed via Le Marchant’s Remarques et Animadversions);

(ii)   Work forwards through Le Marchant, Laurent Carey, Gallienne, & Jeremie;

(iii)  Consider Norman commentators and authors (eg the Amalgame, Basnage and Hoüard);

(iv)  Consider wider French authors (eg Pothier, Domat, Pardessus and de Ferrière);

(v)   Consider the Code civil, French case law and texts;

(vi)  Consider English, Scottish and, if still necessary, wider Commonwealth case law and texts;

    6 If the contract/civilian/mixed law path[201] then;

(i)     Start with Pothier if a contract law issue (whilst being mindful of the possible impact of the trading standards legislation);

(ii)   Consider the customary law resources (Guernsey and Norman);[202]

(iii)  Consider the Code civil and French case law;

(iv)  Consider wider French authorities (Domat, Pardessus, Fournel[203]);

(v)   Consider modern French textbooks;[204]

(vi)  Consider Scottish case law and texts;[205]

(vii) Consider English case law and texts and, if still necessary, the wider Commonwealth. Sometimes, and however regrettably, English law will be the first resort, eg as regards implied terms.

    7 If the common law path then;

(i)    Consider English case law (and statute, again for a possible Morton v Paint argument);

(ii)   Consider English texts and commentary;

(iii)  Consider wider Commonwealth case law, texts and commentary;

94 One could say that the law of trusts follows the same path as the Common Law path, but with the caveat that there is a great deal more “offshore” authority as to the law of trusts, and considering that body of case law would feature as a step alongside English case law.

95 A question depending purely upon equity would more closely follow the contract, civilian law/mixed law route, at least as a matter of principle,[206] although certainly one would sense check carefully against English authority given the close relationship with the law of trusts and expect to end up in the same place.

All roads lead to England?

96 A cynic might say that, while all legal roads may lead back to Terrien but, looking forwards, they all lead to English law as playing a dominant role in influencing Guernsey statute and case law. The charge can be levelled that English case law is turned to in every area of practice.[207]

97 The powerful influence of English law is undeniable, but hardly novel. The qualification process for the Guernsey Bar has long required that the aspirant qualify as an English barrister or solicitor[208] and, additionally, that they hold either a License or Maîtrise en Droit of a French university or (as is much more common in practice) the Certificat d’Études Juridiques Françaises et Normandes from Caen University, and have passed the Guernsey Bar exams.[209] The requirement for a detailed knowledge of English law in order to practise Guernsey law has long been taken as a given.

98 But the specificity of Guernsey law continues. Guernsey law remains distinct from English law, not just in those areas where it looks to customary or civilian law but also in how it approaches the common law. It is and remains truly a mixed law system, even if the proportions of the admixture have changed over the centuries. It is a mélange.[210] The correct starting point remains L’Approbation, Norman customary law and the civilian law which ran alongside and succeeded it. This is and remains the Guernsey law default position.

The Guernsey advantage

99 To be blinded by the English law influence is also to overlook the great advantage of Guernsey law, which is its flexibility. English law is very far from perfect. It is extraordinary how comparatively little is truly settled in English case law. The indulgent use of minority judgments generally leaves hares running in any given area.[211] The problem grows larger, not smaller, as times passes and the volume of case law and its accessibility (and portability) increases.

100 It is not at all unknown for English law to reach a conclusion that it took a wrong turn and/or to distinguish case law so often that a principle is honoured only in the departure from it. Guernsey courts do not have to wait for a higher English court to correct the course of English law.

101 At the same time, Guernsey law must be predictable and not lay itself open to the charge of being arbitrary or made up as the court goes along. Two reminders of this stand out, the admonition of an Order in Council of 9 October 1580 referring to—

“want of due administration of Justice through the libertie the Bailiffe and Jurats do take unto themselves do directe their Judgements by presidents, wherein there is neyther certainety nor rule of Justice”

and Jonathan Duncan’s acerbic note from 1841 that—

“there is no law in Guernsey … the Jurats are elected from the mercantile class, [and] are utterly ignorant of the principles of jurisprudence … they usually pronounce judgment from a common sense view of the matter in litigation … they are guided solely by the facts, and pay no regard to the law … Domat and Pothier, Coke and Mansfield are treated with little courtesy by the Royal Court of Guernsey.”[212]

102 Which is reason enough for a principled system of Guernsey legal method. It is enough to avoid the charge of arbitrariness if there is a generally accepted way of going about solving Guernsey legal problems, even if the breadth of resources is wide both in terms of history and geography. This is quite apart from any other justification based upon Guernsey law being at the heart of Guernsey identity more generally; although a distinct body of law simply for the sake of establishing and maintaining identity would not be a good thing.

The future

103 There is a real sense in which Guernsey law is at risk, certainly the notion that it is truly a mixed law system of law as opposed to merely having a power to second guess English and Commonwealth case law. The risk has increased with Brexit and the fact that the Islands have had to throw in their lot with the United Kingdom even more closely than before.[213] Prior to Brexit there was scope for the Islands to bridge the gap between common law and civilian law, having a foot in both camps, but alas the need for that bridge has gone, at least for now.

104 There are structural reasons also, touched on above. The Guernsey legal establishment is largely monoglot, the States of Deliberation likewise. The proportion of the Guernsey litigation Bar able to use French language sources comfortably has diminished over the years, albeit the litigation Bar is considerably larger than before. The Caen requirement is much reduced; gone are the days where a deep knowledge of the French language is required to pass the (still) oral exams. The Guernsey Bar exams do not test one’s ability to understand and use French law sources.[214] Those who draft Guernsey legislation look principally to UK legislation for their models and all that that entails for the use of related English case law. Legislation copied from England displaces customary law or civilian law. Legislative solutions are never copied from French law. Can it really be said that the National Assembly has failed to come up with a superior legislative solution on anything at all since being established on 4 October 1958.[215]

105 Although the suggestion has been made several times over the years, there is still scope for codifying aspects of Guernsey, or even Channel Island, law; if only to address the kind of legal chestnuts which would otherwise one day have to be litigated and which divide the common law jurisdictions, examples include whether you can take into account post-contract conduct when interpreting contracts or whether the rule in Rylands v Fletcher[216] applies in Guernsey law. A more ambitious project would be to codify, or part-codify, a Channel Island law of obligations.

106 The court is not slow to insist that those appearing before it cite the appropriate sources, and those sources have never been more accessible, but this assumes knowledge of the French language.[217]

Conclusion

107 The Channel Island jurisdictions are very special, certainly to those who live in them; indeed they have never seemed more special.

108 It is a contradiction that, while Guernsey and Jersey defend vigorously and seek to enhance their autonomy, they take more and more from English statute and case law.

109 Certainly one would not argue for taking Guernsey law down customary and civilian law paths simply for the sake of it. Paths taken must be principled and with the goal of giving these jurisdictions the best possible laws and customs, which at the same time means, emphatically, not adopting a blinkered approach to English law as if nobody else does it better.

110 Perhaps ultimately this is a plea for a deeper understanding of, and ability to use, historical Guernsey legal sources, a more meaningful requirement to be able to read French and a willingness to consider and use modern French law resources, when appropriate, and not just 19th century and earlier texts. It is a plea to the Guernsey Bar to broaden its research horizons and not to overlook the customary and civilian strands of modern Guernsey law.

111 It is a plea also to the judiciary to insist that, where appropriate, customary and civilian law resources are brought to the court’s attention. It may also be appropriate for a practice direction to be issued expressly stating that the court expects and requires to be taken to the authorities appropriate to the area of law in question, starting always with any relevant Guernsey legislation and case law and specifically having regard to both the customary/civilian and common law strands of Guernsey law; reminding the Bar that English case law, when relevant at all, is a guide, not a precedent, whose influence will depend upon the circumstances. The Bar has a heavy responsibility to assist the judiciary in ensuring that Guernsey law follows the correct path in any given circumstance and is informed fully as to the legal context. The Bar and the judiciary have a responsibility to check themselves before simply going down the English law chute.[218]

112 It is a plea also to consider the diversity of the Channel Island bench and whether legislation should be amended to permit the recruiting of French lawyers to the Court of Appeal.[219]

113 When legislating there should likewise be a willingness to consider solutions other than those of the United Kingdom parliament, albeit in practice borrowing from jurisdictions further afield with a shared civilian or common law heritage. At the same time, thought needs to be given to the possible impact of imported legislation, not just when contemplating replacing existing customary/civilian law completely but also when addressing only a particular issue. It is a form of invasive species.

114 To end on a positive note, it is a great privilege to practise Guernsey law. There is a real sense in which it is a lot less parochial and a lot more interesting than English law. Guernsey law and legal research spans centuries, languages, systems of law and jurisdictions. It is a much more creative and original endeavour in the service of a very special jurisdiction travelling alongside its closely related neighbour twenty-nine nautical miles to the south-east.

Gordon Dawes is an advocate and litigation partner at Mourant Ozannes (Guernsey) LLP. He has been a member of the editorial board of the JGLR since 2003. He is a director of Guernsey’s law institute and a member of the Guernsey Bar Council.

[1] Later to become Chief Minister, and an outstanding courtroom advocate.

[2] At Goldsmith Building, overlooking the Temple Church. The set has long since disbanded.

[3] Now two years. I was abducted from England by a Guernseywoman at the age of just 33. See s 3 of the Bar Ordinance 1949.

[4] The qualification process is described more fully at the (Institute of Law) Guernsey website: https://www.lawguernsey.gg/.

[5] Laws of Guernsey (Hart Publishing, Oxford, 2003). Hart was acquired by Bloomsbury, from whom the book is still available, in both hardback and eBook format. The title was tongue-in-cheek.

[6] Essai sur les Institutions, Lois et Coûtumes de L’Île de Guernesey, by Laurent Carey, Juré-Justicier, who died in 1769, although his work was not published until 1889. The book extends to 232 pages and is in quite difficult French. The text can be found on the Law Guernsey site.

[7] Although, strangely, there is what looks like a professionally produced, properly headnoted, series of law reports for the Guernsey Court of Appeal for the years 1964 to 1989, when they stop. The series is available on the Guernsey Legal Resources site at: https://www.guernseylegalresources.gg/unreported-judgments/court-of-appeal-judgments-1964-to-1989/

[8] The final edition being Issue 29, covering July to December 2000. It does contain Guernsey Court of Appeal judgments during that period. The Jersey Law Review became the Jersey and Guernsey Law Review with effect from 1 January 2007 and is its successor. The complete run of the Guernsey Law Journal can be found on the Guernsey Legal Resources site: https://www. guernseylegalresources.gg/guernsey-law-journals/ There is a consolidated index for the series, which is word-searchable, at the same location.

[9] www.guernseylegalresources.gg

[10] Thanks to Law Reports International of Oxford, www.lawreports.com

[11] With great thanks to the Law Officers in Guernsey. There has never been a single complaint as to the timeliness or accuracy of the consolidation, which remains unofficial but wholly reliable.

[12] At the Law Guernsey site. The Law Guernsey online library is imminently to be expanded significantly, with all texts being fully word searchable, which should revolutionise research in this field. This is thanks to grants from the trustees of the St John Robilliard Memorial Trust. A dedication to St John can be found here: www.lawguernsey.gg/st-john. See also the range of books available on the likewise excellent Jersey Legal Information Board site at www.jerseylaw.je, see the “Publications” menu.

[13] Although it is sometimes an advantage to wait a little, not that I ever recall this being a conscious strategy. Channel Island law owes an enormous debt of gratitude to Sir Philip Bailhache for all of his initiatives, which Guernsey later followed or joined, as in the case of the JGLR.

[14] See generally the Law Guernsey website. The study guides are available for purchase.

[15] And by Guernsey in this context I mean essentially the law of the Island of Guernsey (and Bailiwick-wide legislation and case law) rather than the law of either Alderney or Sark. It should be remembered though that both Alderney and Sark are distinct jurisdictions, with their own courts, assemblies, laws and customs, although most important legislation is Bailiwick (or Guernsey) legislation and Royal Court judgments and above bind all courts below, including Alderney and Sark. Primary civil legislation (Laws) must be passed by all three Bailiwick assemblies to become Bailiwick-wide legislation. The States of Deliberation in Guernsey claims the right (which it exercises) to legislate in criminal matters for the whole Bailiwick, notwithstanding that Sark sends no representatives to the Guernsey assembly, though Alderney sends two. The States of Deliberation of Guernsey can make Bailiwick-wide ordinances if empowered to do so by a Law (eg financial services regulatory legislation, given that the Guernsey Financial Services Commission regulates financial services Bailiwick-wide). The territorial extent of any given piece of legislation is given away by the title.

[16] Or she, or “they”. Gender neutral language is another important development of the last 25 years.

[17] A definition taken from the Oxford Companion to Law by David M Walker (Clarendon Press, Oxford, 1980). Since replaced by the New Oxford Companion to Law, ed. Peter Cane and Joanne Conaghan (2008), to which the present author contributed the article on Channel Islands law.

[18] And almost all the commentary in this article concerning Guernsey legal methodology can be read across to Jersey law, Jersey being Guernsey’s closest jurisprudential neighbour, if not quite geographical (France being closer, if you take the distance between the Cotentin peninsular in Normandy and Alderney).

[19] Re-named the Code Napoléon in 1807, eventually becoming simply the Code civil.

[20] Which it should, see further below.

[21] Although see Richard Holden’s Offshore Civil Procedure: Guernsey, Jersey and the Isle of Man (Sweet & Maxwell Ltd, 2016).

[22] In the Swedish sense of a buffet-style table laid out with a great variety of dishes from which one is allowed to choose as much of whatever one desires.

[23] See in particular chap. 6 of Darryl Ogier’s The Government and Law of Guernsey (2nd edn, 2012). A third edition is confidently expected in 2024. See also Dawes, “A Brief History of Guernsey Law”, (2006) 10 Jersey & Guernsey Law Review 4 https://www. jerseylaw.je/publications/jglr/Pages/JLR0602_ Dawes.aspx

[24] The Islands were certainly incorporated into the Duchy by 933. William the Conqueror, also known as Guillaume le Båtard in France was the great-great-great-grandson of Rollon. We are approaching William’s 1,000th birthday, either in 2027 or 2028. The Frankish influence must also not be overlooked but is beyond the scope of this article.

[25] The union of the Kingdom of England (and Wales) and the Kingdom of Scotland.

[26] The union of the Kingdom of Great Britain and the Kingdom of Ireland.

[27] A former Bailiff, Sir Charles Froissard, being the last Bailiff whose principal legal education was in France. He was forced to flee Caen and the advancing German forces in the Blitzkrieg of 1940.

[28] With the exception of the Guernsey Bar, to the extent that it requires individuals to obtain a qualification from Caen University, Normandy as part of its qualification process and to the extent that Guernsey law continues to look to Norman customary law, French law and the civilian strand more generally.

[29] To the Act of Accession, forming part of the United Kingdom’s Treaty of Accession, 1972 to the then European Economic Community.

[30] Although it is fair to say that they also look at the legislation of the other Crown Dependencies (particularly Jersey) and have looked further afield, eg to Scotland for child protection legislation and to New Zealand law for company law provisions. Protected cell company legislation was drafted from scratch.

[31] No French lawyer sits on the Courts of Appeal of either Guernsey or Jersey. Only the Bailiff and Deputy Bailiff members of Channel Island Courts of Appeals are qualified locally. No sitting member of the Judicial Committee of the Privy Council is qualified locally, although Scottish members at both levels will be steeped in the civilian legal tradition, likewise those with a South African legal background, such as Lord Hoffmann. There are, of course, members of the Supreme Court who have been members of the Guernsey and Jersey Courts of Appeal.

[32] The Origin and Development of Jersey Law, An Outline Guide, Stéphanie C Nicolle QC (5th edn, 2009, at p 4).

[33] Lieutenant General of the Bailiwick of Dieppe. Terrien was a Norman law author writing about Norman law. He would have had no interest in Channel Island law.

[34] And certainly that process was advanced as at 1582, a draft was considered by a representative assembly in October 1582.

[35] The more modern spelling “Lois” is commonly used in place of “Loix”. See the case of A v R [2018] UKPC 4; 2018 GLR 66; [2018] WLUK 72 for a comparatively recent analysis of L’Approbation and it status, see paras 31–35.

[36] Commentaries on Civil Law both public and private, observed in the land & Duchy of Normandy. Published posthumously in 1574, after a second author or authors had added their own gloss in the form of sections headed “Additio”, mostly in Latin, to Terrien’s comments on texts such as the Grand Coutumier, procedural texts such as the style de proceder, Royal ordinances and judgments of the principal Norman court, the Échiquier de Normandie, superseded by the Parlement de Rouen in 1508. There were two later editions in 1578 and 1654, though the content is identical. A facsimile of the 1574 edition was produced by the Guernsey Bar in 2010 with a translation of the table of contents and a lengthy introduction to the work and the work of other Norman law commentators and Channel Island legal writers.

[37] And it is noteworthy that Jersey law had no equivalent Terrien/ L’Approbation moment, any more than Guernsey had a Jersey Code of 1771 moment.

[38] Terrien cites the Emperor Justinian’s 6th century Digest or Pandects as early as at line 3, page 1 of his commentary.

[39] The equivalent of a UK bill.

[40] Guernsey’s parliament, the “States” being a reference to the three different estates comprising the original assembly, namely, the Royal Court, the Clergy and the Constables, see the helpful www.guernseyroyalcourt.gg site. The assembly is thought to date back to the 15th century and possibly earlier. Again the focus is Guernsey.

[41] Now reconstituted, see the Royal Assent to Legislation and Petitions (Bailiwick of Guernsey) Order 2022 at https://privycouncil.independent.gov. uk/wp-content/uploads/2023/05/2022-11-09-Channel-Island-Committee-Ord ers.pdf to comprise “The whole Privy Council, or any two or more of them” and repeating the provision that the Committee “shall not ordinarily postpone its consideration of … Projets de Loi if a Petition is made against them and is received later than 28 days after their final approval by the relevant Island legislature(s)”.

[42] And now see the policy letter at P.2023/20 dated 31 March 2023, proposing that the Lieutenant-Governor be permitted to grant Royal Assent on behalf of the Privy Council, unless the Projet is specifically reserved for consideration by the Privy Council and with the Lord Chancellor continuing to exercise the same degree of oversight over Projets submitted for Royal Assent by the Lieutenant-Governor as already occurs using the current procedure. The Policy letter is here: https://www.gov.gg/CHttpHandler.ashx?id=167619&p=0 The related resolution was passed, including a proposal that the Policy and Resources Committee liaise with relevant parties to explore the viability of the Bailiwicks of Guernsey and Jersey having membership of the Privy Council and, in due course, representation on the Committee. The Ministry of Justice has agreed that the Lieutenant Governor may assent to Projets de Loi wholly relating to the internal affairs of Guernsey, Alderney or Sark following a process similar to that which has been in place in the Isle of Man since the 1980s. The legislation is awaited.

[43] The Report of the Committee of the Privy Council on Proposed Reforms in the Channel Islands, March 1947. See p 29, read with s.63 of the Reform (Guernsey) Law 1948.

[44] See for example the use to which the power was put in the case of Jersey Fishermen’s Association Ltd v States of Guernsey [2007] UKPC 30; 2007–08 GLR 36 coming to the partial rescue of the States when it overreached itself by purporting to make a sea fishing licensing scheme out to the 12 mile limit when territorial waters, at that time, extended only to 3 miles. It seems that a policy decision was made by the Law Officers some years ago not to rely on the customary law power; see a Home Department policy letter dated 6 May 2005 at p1031 of Billet VIII of 2005, para 13 (p1047): “There is, however, a limit to the States’ powers in legislating by (customary law) Ordinance, and whilst it is difficult to be precise in identifying the point at which a Law rather than an Ordinance is required, HM Procureur is of the opinion that increasing regulation of the retail sale and consumption of liquor … render it desirable that an enabling Projet de Loi be enacted.” Lack of certainty seems to have done for the use of the customary law power but an answer would be to put the power on a statutory basis, as in Sark, see s.37 of the Reform (Sark) Law 2008: “… Chief Pleas may … make Ordinances for the maintenance of public order in, and for the regulation of the local affairs of, Sark and the territorial waters adjacent thereto.” The s.37 power is, on a literal reading, very substantial. Arguably Sark Chief Pleas has greater legislative powers than Guernsey if there is such concern about customary ordinances. A stocktake of the five Crown Dependency jurisdictions’ powers is long overdue, using the precedent set by one to pull the others up, and a bit more. A good example was the enhanced version of Art.31 of the States of Jersey Law 2005 enacted as Art. 72A Reform (Guernsey) Law 1948, the duty to refer certain matters to the States of Deliberation.

[45] While noting the emergency powers of the Policy and Resources Committee to enact ordinances pursuant to art 66A of the Reform (Guernsey) Law 1948, which applies to both forms of ordinance. Arguably there is also tertiary legislation in the form of quasi-legislation such as immigration rules and guidance.

[46] Or even the inclusion of a permissive extent clause into UK legislation without the Islands’ consent, as with s 53(6) of the Fisheries Act 2020, a by-product of Brexit. For a dispute taking a different form, see the long-running issue of public registers identifying the beneficial owners of companies. An attempt was made to introduce legislation which would have required the Foreign Secretary to procure Orders in Council imposing such in the Crown Dependencies. The dispute continues, with the Crown Dependencies issuing a joint statement concerning access to registers of beneficial interest dated 22 December 2023 in light of the CJEU judgment in WM and Sovim SA v Luxembourg Business Registers (joined Cases C-37/20 and C-601/20) (Decision) of 22 November 2022. See also Miscellany, (2024) 28 Jersey & Guernsey Law Review.

[47] See arts 64 and 65 of the 1948 Law. It is worth noting the enormous influence of English procedural law on Guernsey procedural law. The Royal Court Civil Rules 2007 are essentially a selective cut and paste from the English Civil Procedure Rules 1998, albeit not word for word and with important local differences. The debt is obvious, and English procedural precedent referred to frequently. Care is required though if a telling-off of the kind administered by Marshall LB in Barrett Hodgson Ltd v Abbas [2023] GRC 022, at paras 47–56 is to be avoided. The case concerned leave to serve out. Six Guernsey cases were referred to in the judgment, one Isle of Man case and fully 15 English.

[48] As agreed by the Council of Europe at Rome on 4 November 1950. Guernsey operates a dualist system in respect of domestic and international law, in common with the United Kingdom and the other Crown Dependencies.

[49] A good example of legislation being closely modelled on UK legislation, the Human Rights Act 1998, but with a number of subtle differences to be wary of. The context is also different given the range and nature of Guernsey primary and secondary legislation, the fact that the States of Deliberation is not a sovereign assembly and the almost complete overlap between legislature and executive.

[50] See eg McGonnell v United Kingdom 2000–02 GLR 20, concerning the role of the Bailiff in the States of Deliberation and breach of art 6 ECHR (right to a fair trial by an independent and impartial tribunal).

[51] See ss 6–8 of the Brexit Law. Note that the European Communities (Implementation) (Bailiwick of Guernsey) Law 1994 survived Brexit. Guernsey may, by simple ordinance, implement any EU provision (as defined) without reference to London. This is quite a subtle extension of autonomy given that the original rationale of there being no point in seeking Royal Assent for a provision which already applied in UK law has gone. True implemen-tation is required though, see Jersey Fishermen’s Association Ltd v States of Guernsey [2007] UKPC 30; 2007–08 GLR 36. The 1994 Law was used recently to make the Air Accident and Investigation (Guernsey) Ordinance 2022.

[52] A debate which is again beyond the scope of this paper, but which has been written about extensively in the JGLR and the Guernsey and Jersey study guides. See also the excellent collection of papers within the volume A Celebration of Autonomy 1204–2004 800 Years of Channel Islands’ Law, ed, Philip Bailhache MA (Oxon) (then) Bailiff of Jersey (Jersey Law Review Ltd. St Helier, 2005) and to be found here: https://www.jerseylaw.je/publications/ library/Documents/Autonomy/autonomy.pdf See in particular Professor Sir Jeffrey Jowell KC’s paper at p 249: “The UK’s Power over Jersey’s Domestic Affairs”, where he questions the powers claimed in the Kilbrandon report of 1973 and whether—

“the legal power of the UK over Jersey is, or was ever, as unbounded as Kilbrandon contended. Being a power of ‘last resort’, I submit that it does not permit intervention in Jersey’s domestic affairs except in extreme circumstances and on a restricted range of matters, consistent with the exercise of the prerogative powers within the UK.”

See also the recent speech of Sir Robert Neill MP in the House of Commons debate of 7 December 2023, Beneficial Ownership Registers: Overseas Territories and Crown Dependencies. Sir Robert is Chair of the Justice Select Committee and said this: “The simple fact is that the Crown Dependencies have never been subject to this Parliament. They are not represented in this Parliament. They have their own legislatures, which are sovereign in those matters. We should not allow good intentions to lead us into arrogance as an institution and purport to legislate in areas where we have no right.” HC Deb 7 December 2023, vol 742, cols 571–573.

[53] See for example the Nationality and Borders Act 2022. By s.86(3) Part 1, concerning nationality, is expressly stated to extend to the Channel Islands. Section 86(4) contains a permissive extent clause allowing any of the (other) provisions of the Act to be extended by Order in Council, with or without modifications, to the Islands. Legislation extended and amended by such Orders in Council becomes an integral part of Guernsey law. The starting point is that UK legislation has no direct application to Guernsey, any more than UK case law.

[54] [2023] GRC 061, a judgment of HH Marshall KC, Lieutenant-Bailiff, sitting with Jurats Le Pelly and Bodkin. The judgment was handed down on 1 December 2023.

[55] At para 85 and following.

[56] Paragraph 89. The court went on to cite earlier Guernsey authority adopting English case law principles governing unfair prejudice.

[57] And that is not always the case, legislation is not always copied exactly or fully, it is a trap for the unwary.

[58] The Supreme Court will often cite with approval judgments below (or unconnected judgments) which it is upholding, the lower court may have the fuller statement of legal principle in such circumstances.

[59] [2003] QB 1556, CA.

[60] See Young v Bristol Aeroplane Co. Ltd. [1944] KB 718, CA. The key circumstances are that the Court of Appeal is (i) entitled and bound to choose between conflicting decisions; and (ii) bound to refuse a decision of its own which cannot stand with a decision of the (Supreme Court); and (iii) bound to follow a decision of its own if given per incuriam, ie demonstrably erroneous.

[61] [2019] 1 WLR 791.

[62] At para 59. Sir Geoffrey was a judge of the Courts of Appeal of Guernsey and Jersey between 2005 and 2009.

[63] See paras 128 to 130. The notion of remaining in step with international common principle is an important one.

[64] [2005] 1 AC 134.

[65] Lord Hoffmann was also a judge of the Courts of Appeal of Guernsey and Jersey, between 1980 and 1985.

[66] Practice Statement (HL: Judicial Precedent) [1966] 1 WLR 1234, the statement has equal effect in the Supreme Court. Lord Reed commented as follows—

“It begins by emphasising the importance of precedent in providing ‘at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as the basis for orderly development of legal rules.’ It goes on to recognise, however, that ‘too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law’. Accordingly, while previous decisions of the House of Lords would normally be binding, the Court could depart from them when it appeared ‘right to do so’.”

See Lord Reed’s paper of 20 January 2023 here: https://www.supremecourt.uk/ docs/ukraine_departing-from-precedent_lord-reed.pdf. He goes on to pose the question of when it will be right to do so, and answers “not very often”.

[67] In this context it is worth noting the many trusts governed by Guernsey law and jurisdiction administered outside of Guernsey on behalf of non-resident beneficiaries in respect of assets located all over the globe. Guernsey companies likewise have office holders and shareholders and assets in many different jurisdictions, all prima facie subject to Guernsey law and jurisdiction, directly or indirectly.

[68] Who went straight from being a judge of the Guernsey and Jersey Courts of Appeal to the UK Supreme Court, bypassing the High Court and English Court of Appeal, such was the quality of his judicial grounding in the Channel Islands. He sat between 1995 and 2011.

[69] Often a false premise in this author’s experience. English case law very often presents an incoherent body of case law. Whether case law is an efficient way to make law at all, particularly in the digital age, is beyond the scope of this article. The amount of authority one could cite used to be limited by the number of books you could carry to court. Judges complained about the impact of the photocopier but e-bundles and the ability to search the common law world’s case law in seconds has taken matters to another level. There would be a lot to be said for a codification of Channel Island law of obligations, comprising contract, quasi-contract and tort/delict.

[70] 2010 JLR 21. The panel included the then Bailiff of Guernsey, Sir Geoffrey Rowland. The case concerned the constituent elements of criminal assault. For Jersey one can just as easily read Guernsey.

[71] Helmot v Simon 2009–2010 GLR 465. A personal injury action which led to what was then the largest award of damages nationally. The Guernsey Court of Appeal was upheld in the Privy Council.

[72] 2011–2012 GLR 147. The judgment is dated 12 July 2011.

[73] This author believes wrongly. The Royal Court is accountable to the Court of Appeal for its judgments, its delivery of judgments and how it applies its procedures. There is potential for a conflict of interest between the Bailiff as leader of the Royal Court and his/her position as President of the Court of Appeal, for example if the performance of the Royal Court is being called into question.

[74] Wicks v Law Officers 2011–12 GLR 482. The panel comprised Rowland, Bailiff, Nutting, Beloff, Steel, Carey (overruling, without explanation, his own judgment in Gunter), Jones and Birt, Bailiff of Jersey, JJA. The Jersey Court of Appeal had already declined to follow Gunter, again on the basis that there was no need to show some difference of social or other condition before departure from English sentencing practice.

[75] At para 16, before going on to cite various authorities.

[76] Which prompts recollection of Laurent Carey’s memorable, if slightly ambitious, observation at p 2 of his Essai (see fn 6) after giving the history of Conquest that:

“On voit assez clairement … que les Rois d’Angleterre ne sont devenus nos Souverains que parce que Guillaume le Conquérant subjugua ce Royaume, et qu’il réunit le Gouvernement et celui de la Prince de Normandie sous un même chef. Mais cette isle n’est pas devenue par là une dépendance du Royaume d’Angleterre; elle n’est point un de ses conquets, et ne lui a jamais été formellement ni tacitement unie … on peut dire en toute verité, que l’Angleterre est le Païs conquis, les Normans (nos anciens compatriotes avoient plus de droit d’y commander que les Anglais de commander en Normandie.”

Which translates:

“One can see very clearly … that the Kings of England only became our Sovereigns because William the Conqueror subjugated this Kingdom and combined the (English) Government with that of the Prince of Normandy under a single chief. But this isle did not become, through that, a dependency of the Kingdom of England; it is absolutely not one of its conquests, and has neither formally nor implicitly been united with it … one can say in absolute truth, that England is the country conquered, the Normans (our ancient compatriots) had a greater right to rule there than the English to rule in Normandy.”

There is another article to be written one day about the impact of the 1689 Bill of Rights establishing constitutional monarchy in England after the accession of William and Mary. The passing of prerogative powers to the government of the day may have served English democracy well, but produced a democratic deficit in the Islands which survives to this day, only partially addressed by the proposals to reform the Royal Assent process.

[77] Report of the Commissioners Appointed to Inquire into the Civil, Municipal, and Ecclesiastical Laws of the Island of Jersey together with The Minutes of Evidence and Appendix (HMSO, London, 1861). Alas there was no Guernsey equivalent. Jeremie was also author of On Real Property and Taxation in Guernsey (1866), which is really a treatise about the law of succession. It is written in English. By contrast, James Gallienne’s Traité de la Renonciation par Loi Outrée et de la Garantie of 1845, the other notable 19th century Guernsey legal text, was, as its title suggests, written in French. Jeremie and Gallienne would have known each other very well.

[78] Richard Jebb, Barrister. One of the three Commissioners.

[79] William Reginald Courtenay, 11th Earl of Devon, another of the Commissioners. A striking photographic portrait of him survives in the National Portrait Gallery, London.

[80] Without overlooking Scottish case law. Scottish cases are regularly cited when appropriate. The boundaries are blurred by United Kingdom jurisdictions sharing a Supreme Court, see for example Simon v Committee for Health & Social Care, States of Guernsey [2020] GRC 028 at para 117 where the Guernsey Court of Appeal cited Foxworth Investments Ltd v Henderson [2014] UKSC 41 when stating the test to be applied on an appeal against a finding of fact by the Jurats. Foxworth was a Scottish case.

[81] (1996) GLJ 21. Discussed in greater detail below.

[82] The eucalyptae metaphor is deliberate given the jurisprudential solution.

[83] A good example of adverse commentary at the highest level likely to influence a Guernsey court not to follow English example, or at least to question whether it should very closely, no matter how high or longstanding that authority.

[84] The later Bailiff, Sir de Vic Carey.

[85] Per Southwell JA at p 59G.

[86] (1987) 162 CLR 479. See 49F of the Morton judgment.

[87] Which is a principle that can be adopted generally, ie where English common law has been replaced by statute one can look to the statute to see how Guernsey case law might properly develop, notwithstanding the failure of the States of Deliberation to legislate. Morton is authority supporting a kind of triangulation between what Guernsey law is or should be and the statutory and case law of other closely related jurisdictions.

[88] And South Africa, although little use has been made to date of South African case law.

[89] [2017] GRC 38.

[90] An appeal was also unsuccessful.

[91] At para 352. It is noteworthy that the instructing firm of solicitors on the plaintiff’s side was an Australian firm, with a very expert knowledge of Australian company law.

[92] The question of citation from other jurisdictions (and from Roman law) was debated in two Jersey Law Review articles, see Richard Southwell QC, “Citation from other Legal Systems” (2004) 8 Jersey Law Review 66, and Gordon Dawes, “Citation from other Legal Systems: a Reply” (2004) 8 Jersey Law Review 69. The latter was written (in robust terms) when the author thought that Mr Southwell had retired from the Court of Appeal. He had, but came back as a Lieutenant Bailiff. For helpful dicta as to the recovery of costs for legal research also by Marshall LB, see ITG Ltd v Glenalla Properties Ltd. 2021 GLR 10, at paras 258–260 and 263–268. The context was that of a former trustee seeking indemnity from trust assets for reasonable costs incurred in connection with a trust.

[93] For a detailed discussion of the history, contents and relevance of the Code civil see Dawes, “From Custom to Code, the Usefulness of the Code Civil in Contemporary Guernsey Jurisprudence” (2004) 8 Jersey Law Review 255.

[94] To the extent that precedent is relevant in civil law systems. See the discussion at para 55 below and the notion of a jurisprudence constante.

[95] 2016 (2) JLR 246, at para 83. Guernsey can be read interchangeably with Jersey.

[96] For example, ordinances as to the distinction between movables and immovables (1852) and usufruit (1854). The former is a looser borrowing than the latter, which is literally a copy. Guernsey legislation was frequently drafted in French until the 1930s, there were also examples of English statutes being translated into French and enacted in Guernsey.

[97] See below and the work of Pardessus and Fournel.

[98] French law has nothing to offer Guernsey law in the context of tort other than the French equivalent of the law of nuisance, known as troubles de voisinage.

[99] Footnote 47.

[100] Section 21 of the Magistrate’s Court (Guernsey) Law 2008.

[101] 2009–10 GLR 353.

[102] Paragraph 1, which of course begs the question of when a modification is necessary and the risk of arbitrariness. The 1984 rules have since been replaced by the Coroners (Inquests) Rules 2013.

[103] Article 2: “Everyone’s right to life shall be protected by law …”; which in turn: “requires, by implication, that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State.” See Guide on Article 2 of the ECHR: https://www.echr.coe.int/documents/d/echr/Guide_Art_2_ENG#page 32

[104] See generally the Magistrate’s Court (Guernsey) Law 2008.

[105] Being Level 5 on the current uniform scale, see the Uniform Scale of Fines (Bailiwick of Guernsey) Law 1989.

[106] See s 15 of the 2008 Magistrate’s Law.

[107] It cannot sentence for offences of treason or assault of the Bailiff or Jurats. The Royal Court is not a creature of statute but see the Royal Court of Guernsey (Miscellaneous Provisions) Law 1950 and the Royal Court (Reform) (Guernsey) Law 2008 for important provisions concerning it. See also its principal set of procedural rules, the Royal Court Civil Rules 2007.

[108] Restricted by some statutes to a right of appeal on a point of law only, see eg s 107(1) of the Financial Services Business (Enforcement Powers) (Bailiwick of Guernsey) Law 2020 which provides—

“An appeal from a decision of the Royal Court made under the provisions of this Law (including a decision made on an appeal from the Court of Alderney or the Court of the Seneschal) lies, with the leave of the Royal Court or Court of Appeal on a question of law.”

This is a very common provision in Guernsey administrative law.

[109] The original proposal to make a single appeal court for both Guernsey and Jersey came to nothing, but would have had an interesting impact on Channel Island jurisprudence. The present arrangement comes close. The principal rules of procedure are to be found in the Court of Appeal (Civil Division) (Guernsey) Rules 1964 and Court of Appeal (Criminal Division) (Guernsey) Rules 1964.

[110] See s 16 of the 1961 Law, as amended by the Court of Appeal (Guernsey) (Amendment) Law 2021 which removed the all-but unqualified right of appeal in civil cases where the value of the matter in dispute exceeded £500. This had been the subject of adverse comment by the Judicial Committee in A v R [2018] UKPC 4; 2018 GLR 66. Lord Hodge gave the judgment of the Committee. Lord Hodge was also a judge of the Courts of Appeal of Guernsey and Jersey, between 2000 and 2005. The 2021 Law also made provision for the Court of Appeal to be able to sit outside of Guernsey and made the Deputy Bailiff, ex officio, a member of the court (and Deputy President). Again and with no disrespect to any incumbent or the office, it must be doubtful whether it is a good idea to have the principal officeholders of the Royal Court as the President and Deputy President of their own Court of Appeal. See the Judicial Committee (Appellate Jurisdiction) Rules 2009 for the Committee’s principal procedural rules for both civil and criminal appeals. The rules are available here: https://www.jcpc.uk/docs/judicial-committee-appellate-jurisdiction-rule s-2009.pdf See the case of JJW Hotels & Resort Holdings Inc. v Rhodes [2022] CGA 102 for the principles according to which the Guernsey Court of Appeal will (or most probably will not) grant leave to appeal to the Committee.

[111] Richard Southwell QC died on 26 December 2021. He was a judge of the Courts of Appeal of Jersey and Guernsey between 1994 and 2005 and had a powerful influence on the jurisprudence of both Islands. He continued to sit as a Lieutenant Bailiff in Guernsey. He was a formidable tribunal.

[112] (1996) GLJ 61. The other members of the court were Blom-Cooper and Sumption JJA. The case was one of Louis Blom-Cooper’s last Court of Appeal cases and one of Jonathan Sumption’s first.

[113] An important point, although again the more relevant and longer standing the Privy Council authority without adverse commentary the more likely it is that Guernsey will follow, and even more so on appeal from Jersey.

[114] For which now read the United Kingdom Supreme Court.

[115] At p 55E. Going on to cite the Guernsey Court of Appeal case of Singleton v Le Noury 5 June 1990, 9 GLJ 48 to the effect that a servitude cannot be acquired by prescription where the Court held that, while—

“the Coûtume does develop over the centuries. The maxim ‘coûtume fait loi et la meilleure loi est la coûtume du pays’ refers to such development. But such development cannot change the fundamental and substantive common law and the principle of ‘nul servitude sans titre’ … as set out in the writings of Laurent Carey, Basnage and Bérault are part of our coûtume or fundamental common law and cannot be altered by judicial decision.”

The word coutume does not in fact have a circumflex.

[116] Literally, stand by the thing decided and do not disturb the calm.

[117] With an extra layer of courts if a case starts in Sark and goes all the way to the JCPC, which is not unknown, see A v R [2018] UKPC 4; 2018 GLR 66. See also Vaudin v Hamon [1974] AC 569, concerning the law of prescription in Sark. The case contains important dicta on the use to be made of Roman law, customary law, the Code civil and Jersey law. It is suggested though that, with the exception of its treatment of Roman law, Vaudin should now be seen as too restrictive, although the difference is only one of emphasis not principle. Guernsey courts have cast their nets more widely in the last 25 years.

[118] At 1ine 26. See generally the case of State of Qatar v Al Thani 1999 JLR 118, at 124–125. Admittedly the Royal Court (led by Bailiff Sir Philip Bailhache) conceded that “This court is generally bound by the decisions of the Court of Appeal …” See also Dennis Dixon’s article, “Binding Precedent in the Channel Islands” (2020) 24 Jersey & Guernsey Law Review 58 where he doubles down on the rule of precedent as “more likely to confound a rational and efficient expounding of Jersey and Guernsey law”.

[119] Or, of course, Guernsey law might have taken the wrong turn. It could be argued that Guernsey risks being stuck with questionable Court of Appeal decisions of judges who may not be familiar with Guernsey law, relying on counsel who have not taken them to the appropriate authorities. And of course, if there is in fact no system of binding precedent in Channel Island law then cases saying otherwise are not binding, with thanks to Advocate Simon Howitt for this entertaining observation. In any event it seems bizarre that the precedential worth of the Court of Appeal should be different in the two jurisdictions.

[120] Although it was cited with approval by the Jersey Court of Appeal in Crociani v Crociani [2015] JCA 089, but only in support of the proposition that the Jersey Court of Appeal does not bind itself, as to which Guernsey and Jersey agree, see para 76.

[121] Trusts being a creation of English equity and case law, albeit with some legislation along the way, including the Trustee Act 1925, Trustee Investments Act 1961, Recognition of Trusts Act 1987, Trustee Act 2000 and the Charities Act 2011.

[122] See St John Robilliard’s article “Trusts of Land under Guernsey Customary Law” (2003) 7 Jersey Law Review 251 for a discussion of the recognition of trusts in Guernsey customary law.

[123] [2019] AC 271.

[124] Although there were dissenting judgments, which always muddies future waters. The author wrote a rather cheeky article 20 years ago for the New Law Journal taking its name from the subject matter of a recent House of Lords 3:2 split decision concerning a holed boot and breach of PPE regulations, “There’s a hole in your boot, dear Law Lords”, (2004) 154(7156) at 1841 suggesting the following:

“It is perhaps time to implement a true reform of the judicial law-making process itself. It is all very well to bar the use of Latin tags, but if English language judgments are incomprehensible to the lay person in any event, and difficult for a lawyer to follow, what does it matter? A simple reform would be to require the House of Lords and Court of Appeal to give single judgments only. Lengthy, multiple and/or inconsistent judgments of an appellate tribunal store up future controversy. Even separate agreeing judgments are a luxury that should no longer be indulged. Others will point to great minority judgments; but I suggest that these are a tiny minority (of a minority), not justifying the genre.”

[125] As indeed art 32 had. Jersey also expressly legislated to preserve the rule in Hastings-Bass after the Supreme Court rulings in Pitt v Holt and Futter v Futter [2013] 2 AC 108.

[126] Paragraphs 57–59.

[127] Equity Trust (Jersey) Ltd v Halabi [2023] AC 877. Such was the importance of the case. It confirmed the nature of a trustee’s right of indemnity out of trust assets as a charge or lien over trust property amounting to a proprietary interest, not merely a possessory lien. However, if the trust fund was insufficient to pay all sums, that interest did not take priority over equivalent interests of successor trustees but pari passu. Even here though Lord Briggs set a hare running (at para 269) by suggesting that he—

“would not entirely rule out the possibility that exceptional circumstances might arise in which the strict application of a pari passu rule priority might work such obvious inequity that an exceptional discretion to depart from it might be justified.”

[128] [2019] GCA 077, unreported. The Royal Court decision, Rusnano Capital AG (in liquidation) v Molard International (PTC) Ltd is reported and to be found at 2019 GLR 139.

[129] (1841) Cr & Ph 240, ie the rule that adult beneficiaries of a trust of sound mind who, between them are wholly entitled to the trust property, may direct the trustees to terminate the trust and transfer the trust property to them absolutely.

[130] Albeit with a safety net, see para 53 of the Court of Appeal judgment.

[131] [2017] GRC 38, see also the Court of Appeal judgment at 2019 GLR 159, although no point was taken as to directors’ duties. Marshall LB’s dicta concerning director duties to creditors in insolvency situations were cited with approval in the recent Supreme Court case, BTI 2014 LLC v Sequana SA [2022] UKSC 25, [2022] 3 WLR 709, at paras 82, 171 and 405.

[132] Citing earlier Guernsey authority as to this approach.

[133] Para 350, the judgment runs to 470 pages.

[134] Save where the given issue is settled, as in Singleton v Le Noury.

[135] See para 48 above.

[136] 2009–10 GLR 487.

[137] Ie his own. The judgment is a combined judgment of the judge and jurats.

[138] The reporting committee was appointed in January 1852. Their report was adopted and became an ordinance at the Chief Pleas “d’après Noël” 16 January 1854. The ordinance is at p308 of Tome III of the Recueil d’Ordonnances de Cour Royale, published 1864. The whole volume can be found here: https://www.guernseylegalresources.gg/CHttpHandler.ashx?documentid=79385. The court turned instead to the law of trusts for the solution, finding an express trust in favour of the plaintiffs.

[139] It is possible to look further afield such as other mixed legal systems, including Quebec and Louisiana, but this is very rare, at least in the author’s experience.

[140] 1848, London.

[141] See p 10.

[142] Remarques et Animadversions sur L’Approbation des Lois et Coustumier de Normandie Usitées es Jurisdictions de Guernezé et Particulierement en La Cour Royale de La Dite Isle by Thomas Le Marchant. In a note accompanying the scanned text on the Law Guernsey site Dr Darryl Ogier summarised the work as follows:

“The Rev. Thomas Le Marchant’s Remarques form a classic commentary on the law of Guernsey as reflected in, and differing from, the contents of the Approbation des Loix (1583). Le Marchant took Terrien’s commentary (1574) on the Norman coutume, examined the treatment, if any, of its assertions in the Approbation, and proceeded to offer the author’s own comments on the situation in his own day; often critically of the Royal Court. Le Marchant’s brother Eleazar was an accomplished advocate and may have had some influence on the text … Le Marchant was highly gifted although rather more popular with his congregation than with the elite: he spent several years in the Tower of London. Le Marchant lived between c.1620 and 1684. The text was finally published in 1826. The manuscript does not survive.”

[143] 1699–1772. French jurist, most famous for his Traité des Obligations of 1761, translated into English in 1806 by William Evans, an English barrister. The text was used as a model by the first authors of English contract law textbooks such as Chitty (1826), Pollock (1876) and Anson (1879). Pothier produced a very substantial body of work and the Code civil of 1804 borrowed heavily from him.

[144] Daniel Jousse was born in Orléans in 1704 and died in 1781, he was a colleague of Pothier. His treatise on criminal law was published in 1771. Like Pothier he produced a considerable body of work.

[145] Guy du Rousseaud de la Combe, Avocat au Parlement de Paris, died 1749. His treatise was originally published in 1732 but went through at least 7 editions.

[146] Russell on Crime, first published in 1819, the 12th and last edition appeared in 1964.

[147] Which first appeared in 1822 under the title: Summary of the Law relative to Pleading and Evidence in Criminal Cases and written by John Frederick Archbold. Archbold was the editor of the first three editions, with Sir John Jervis taking over for the fourth to ninth. If the Bailiff’s edition was up-to-date he would have been referring to the 10th edition of 1846, edited by William Newland Welsby. The book is now known as: Archbold: Criminal Pleadings, Evidence and Practice and went through 43 separate editions until 1988 before being produced annually.

[148] Cuckoos notoriously lay their eggs in other birds’ nests, particularly those of Meadow Pipits, Dunnocks and Reed Warblers.

[149] See Carey, “The abandonment of the grand principles of Norman custom in the law of succession of the Bailiwick of Guernsey” (2014) 18 Jersey & Guernsey Law Review 181.

[150] And much of property law more generally.

[151] 2014 GLR 157, a judgment of then Deputy Bailiff McMahon.

[152] Josias Bérault, whose commentary on the coutume of Normandy first appeared in 1606.

[153] Jacques Godefroy, whose commentary first appeared in 1626 and appeared in a combined publication called the Amalgame with those of Bérault and d’Aviron in 1684. See generally the author’s introduction to the 2010 facsimile edition of Terrien’s Commentaires published by the Guernsey Bar, again available on the Law Guernsey site, where all of the notable commentators are introduced and their use of Terrien examined.

[154] Henri Basnage, the most widely respected of Norman legal authors with a national reputation. See the 4th edition of his Œuvres which appeared in 1778.

[155] Jean-Baptiste Flaust. His Explication de la Coutume et de la Jurisprudence de Normandie, dans un ordre simple et facile, appeared in 1781, making him the last of the notable commentators of Norman customary law. The revolution and the Code civil were just over the horizon.

[156] David Hoüard. His Dictionnaire Analytique, Historique, Étymologique, Critique et Interprétif de la Coutume de Normandie appeared in 1782.

[157] Jean Domat (1625–1696). Renowned author of the enormously influential Les Loix civiles dans leur ordre naturel; le droit public et legum delectus, which first appeared in 1689. Domat was not a Norman author.

[158] Claude Joseph de Ferrière, Dictionnaire de Droit et de Pratique, contenant l’Explication des Termes de Droit, d’Ordonnances, de Coutumes & de Pratique. The dictionary, a nouvelle edition, was published in 1787. Again this is not a Norman law text, it was intended to cover all of the French jurisdictions. It is, however, very useful.

[159] Par-dessus meaning, literally, “over” or “over the top (of)”. Jean-Marie Pardessus (1772–1853) produced the first edition of his Traité des Servitudes ou Services Fonciers in 1806, going through eight editions, the eighth (cited in this case) dating from 1838.

[160] An earlier and similar example is a judgment of Sir Geoffrey Rowland, Bailiff in Russell v Gillespie 2003–04 GLR 54.

[161] 2019 GLR 1, a judgment of Sir Richard Collas, then Bailiff. The second judgment is also noteworthy and referred to below.

[162] See para 39 and following.

[163] In re M, a Minor Child, Judgment 23/2018. Sir Richard Collas, Bailiff, Jones, Hodgetts, Hooley and Robilliard, Jurats.

[164] Taking account always of what the Judicial Committee said about L’Approbation in A v R (see fn 35):

“In the Board’s view, L’Approbation has not prevented the judicial development of the common law of Guernsey, including in areas of law which it addressed … While the status of L’Approbation as legislation prevents direct abrogation of its provisions by judicial decision, the scope for judicial development of the law around and in addition to its provisions should not suffer the constraints which more modern statutory provisions would impose. It is important to recall that its purpose over 400 years ago was to set down the state of customary law at that time within the fields of law which it addressed. There is no reason to believe that it was intended to prevent the further development of the island’s common law.”

[165] See fn 78. In a property law context if one were considering the importance of the writers one would look to Gallienne first, then Jeremie and Carey third.

[166] But even then a Morton v Paint-like argument might apply, ie that customary law should evolve along the lines of a later statue, but here we are getting quite far away from Guernsey law. Perhaps if Brexit hadn’t happened there might be more of a European law appetite.

[167] As noted already, Jersey has no Approbation equivalent. Terrien’s commentary is not the foundation stone it is for the modern law of Guernsey.

[168] The author was once asked to research the Guernsey law of restitution, there being no Guernsey law answer. A principled approach, including considering the law of Scotland, resulted in the conclusion that the position was the same, whether under customary/civilian law or English equitable principle. See also two articles from the 2019 volume of the JGLR: The Law of Unjust Enrichment in the Channel Islands: Recognising the Civil Law Strand by Duncan Fairgrieve and Kathryn Purkis and The Development of Unjust Enrichment in the Channel Islands by Paul Buckle.

[169] In the sense of purely Guernsey.

[170] Which again draws attention to how the customary and civilian elide. It is noteworthy that in French law, contracts, quasi-contracts and torts (délits) are all “obligations”. In the 1804 Code civil, quasi-contrats, délits and quasi-délits are all dealt with under the same brief Titre (IV of Livre III) entitled: “Des engagemens qui se forment sans convention”, which translates: “On engagements which are formed without contract”. In other words they are imposed by law. There is an interesting paper which was put to the States of Jersey by the then Council of Ministers defending voisinage as a feature of Jersey law: https://statesassembly.gov.je/assemblypropositions/2009/33092-32448-632009.pdf . But even in this context it is likely that English cases would be cited. For a comparatively recent Guernsey case concerning voisinage see Birnie v States of Guernsey & Lagan Construction Ltd. 2015 GLR N [5]. The full unreported judgment is 27/2015.

[171] 2023 GLR 113 (the Bailiff, Bompas, Anderson JJA) on appeal from a judgment of Marshall LB, dated 9 September 2022.

[172] At the time the wills were made, 2004, separate wills of realty and personalty were generally required.

[173] From a starting point of nothing given the pre-nuptial agreement. Forced heirship was also still a part of Guernsey law at that time. Even here the influence of English law is evident. One should refer to meubles and immeubles, movables and immovables, not personalty and realty.

[174] There was an issue whether the children were required to wait to bring proceedings challenging the will. It was not disputed that the testator had lost testamentary capacity not long after the wills were made in 2004 (the children’s case was that he had lost testamentary capacity before the wills were made).

[175] The children alleged that the payment made represented only a small proportion of the total value of the estate.

[176] As regards realty the Loi sur les Successions 1840 and Law on Wills of Realty 1852; as regards personalty, the Law on Wills of Personalty 1847.

[177] [1995] 2 AC 207. A duty is owed to a disappointed beneficiary when a lawyer negligently fails to make a will, otherwise there is no remedy given that the estate has no loss and the beneficiary no claim. By contrast, where a will has been made there is a remedy—the will can be challenged and set aside. The plaintiffs in the Guernsey case sought, and failed, to establish a duty of care permitting them to recover the cost associated with the challenge. The claim also failed because of the unavoidable conflict of interest between existing beneficiaries and the would-be testator.

[178] [2000] PNLR 140.

[179] Scott v Cousins [2001] O.J. No. 19, a decision of the Ontario Superior Court of Justice. Cullity J said this after reviewing the authorities (at para 70):

“Some of the authorities go further and state that the solicitor should not allow a will to be executed unless, after diligent questioning, testing or probing he or she is satisfied that the testator has testamentary capacity. This, I think, may be a counsel of perfection and impose too heavy a responsibility. In my experience, careful solicitors who are in doubt on the question of capacity, will not play God—or even judge—and will supervise the execution of the will while taking, and retaining, comprehensive notes of their observations on the question.”

The passage is not without humour.

[180] [2022] UKPC 18.

[181] At para 82.

[182] See note 144 above. The noted advocate, magistrate and politician André Marie Jean Jacques Dupin (1783–1865) produced a collection of Pothier’s works in 1824, Œuvres de Pothier, contenant Les Traités du Droit Français. He added a lengthy (150 pages) dissertation on Pothier’s life and works. He said this (p xciv): “En 1771, parut le Traité des Obligations, dont je n’hésite point à dire que c’est le plus beau livre de droit qui soit sorti de la main des hommes”, which translates: “In 1761 the Treatise on Obligations appeared, of which I do not hesitate to say that it is the most beautiful book of law to have issued from the hand of man.” For Dupin it was an “immortel ouvrage”, an immortal work. Cicero could not compete, only the Gospels were superior because they were the word of God (p.xcv). Dupin perhaps goes a little overboard in his praise.

[183] Paris and Chartres, 1748–1752.

[184] And not just in the context of the law of contract. It is fair to say that Pothier wrote about most subjects in his long and distinguished career, and considerable output. The key thing to note about Pothier is that he is neither a Norman law writer nor (unless specifically writing about his home coutume of Orléans) a customary law author. He wrote about Roman law and French law. It is his treatises on the law of France for which he is most celebrated. Again see Dupin’s dissertation at p lxxx and following.

[185] 2020 GLR 236.

[186] Ie a preliminary issue sufficiently fundamental that the case cannot proceed if made out. Whether the exception is in fact taken as a preliminary issue depends upon the nature of the issue and whether it lends itself to being dealt with in that way, rather than proceed to trial.

[187] See art 1 of the Loi relative aux Prescriptions 1889 and s 4 of the Law Reform (Tort) (Guernsey) Law 1979.

[188] The principle that a legal or factual impediment to bringing a claim serves to stop time running. The argument generally turns on the sufficiency of any factual impediment relied upon.

[189] The Unfair Contract Terms Act 1977, appealing to Morton v Paint and the role played by the Occupiers’ Liability Act 1977 in that case.

[190] Sir Richard McMahon, Bailiff.

[191] Para 22.

[192] The agreement makes the law of the parties. Prima facie there is freedom of contract in Guernsey law, at least until recently.

[193] See note 6.

[194] 2014 GLR 41. See now also Stoneman v Stoneman [2023] GCA 047 as regards implied terms where Chitty was cited with approval. The question of burden of proof for breach of warranty also arose, and while the defendant cited, inter alia, art 1353 of the Code civil in this respect, it was not mentioned in the court’s judgment.

[195] [2009] 1 WLR 1988, at paras. 16–27, per Lord Hoffmann. This was a Privy Council decision, but later affirmed by the UK Supreme Court in Société Générale v Geys [2012] UKSC 63 and, ironically, Marks and Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd [2015] UKSC 72.

[196] See para 24. Note also the Musa judgment’s heavy reliance on English case law when setting out the principles for determining an application for summary judgment.

[197] See Ordinance n^o 2016-131 and the Ratification Law n^o 2018-287 of 20 April 2018, for further changes. One notable feature of the 2016 ordinance was to do away with the notion of “cause”, replacing it with other concepts, such as rendering a contract null if the obligation of one party is “illusory or derisory” (new art 1169): “Un contrat à titre onéreux est nul lorsque, au moment de sa formation, la contrepartie convenue au profit de celui qui s’engage est illusoire ou dérisoire.”

[198] See the Trading Standards (Fair Trading) (Guernsey) Ordinance 2023, which came into force on 2 October 2023, see the Trading Standards (Fair Trading) (Guernsey) Ordinance 2023 (Commencement) Regulations 2023. The Ordinance runs to 263 pages of legislation.

[199] Although it is fair to say that EU consumer protection legislation was also taken into account, see generally the Commerce and Employment Department policy letter, Trading Standards Legislation, dated 3 December 2015 at p 983 of Billet d’État III 2016.

[200] For a possible Morton v Paint argument.

[201] The “mash-up” route.

[202] Laurent Carey is often worth perusing.

[203] Traité du Voisinage, by Jean-François Fournel. The first edition was published in An VIII of the French Revolutionary Calendar, which ran from 23 September 1799 to 23 September 1800. The work has been cited from time to time in Guernsey, notably in Russell v Gillespie 2003–04 GLR 54 (the 4th edition of 1834, reviewed and augmented by M Tardif).

[204] On the basis that there is no good reason to stop in the 19th century, any more than one would stop with the first edition of Chitty in 1826.

[205] Eg Gloag & Henderson, The Law of Scotland (15th edn, Sweet & Maxwell, 2022). As to the limitations of relying on Scottish law and the dangers therein, see the judgment of the Judicial Committee in Spread Trustee Company Ltd v Hutcheson [2011] UKPC 13; 2011–12 GLR 164, at paras 35 and following, parting company with the Guernsey Court of Appeal—

“ there is no evidence that Guernsey [trust law] at any stage looked at the law of Scotland. In these circumstances it appears to the Board to be more likely than not that it would have looked to the law of England.” [para 45]

The mistake made was to follow the civilian path when on an English law path. Contrast In re X, an incapable 2007–08 GLR 287 where Talbot LB looked to Scottish law and its shared Roman law heritage in the context of curatelle to develop the Royal Court’s jurisdiction.

[206] Noting the civilian law concept of équité, which de Ferrière defines as follows:

“Equité, est un juste tempérament de la Loi, qui en adoucit la rigueur, en consideration de quelques circonstances particulieres de fait. Ainsi cette équité est un juste retour au droit naturel, en retranchant les fausses & rigoureuses consequences qu’on veut tirer de la disposition de quelque Loi, par une trop rigoureuse explication de terms dans lesquelles elle est conçue, ou par de vaines subtilités qui font évidemment contraires à la Justice, & même à l’intention du Législateur.”

Which translates:

“Equity, is a just tempering of the Law, which softens its rigour, taking account of particular factual circumstances. Thus this equity is a just return to natural law, cutting through the false and rigorous consequences which can be drawn from any given provision of a Law by too rigorous interpretation of the terms in which it is conceived, or by facile subtleties evidently contrary to Justice and even the legislator’s intention.”

[207] Including regulatory law, whether financial services or competition. See, for example, The Medical Specialist Group LLP v Guernsey Competition and Regulatory Authority 2023 GLR 17, a judgment of the Bailiff dated 10 March 2023. English case law was cited extensively, but also CJEU and ECHR case law.

[208] See the Bar Ordinance 1949, amended by the Bar (Amendment) Ordinance 1996 to add qualification as Scottish or Northern Irish lawyers.

[209] In addition to the residence and pupillage requirements.

[210] Not a blancmange.

[211] Again note the example let loose by Lord Briggs in the Equity Trust case, see fn 127.

[212] See History of Guernsey by Jonathan Duncan, published in 1841 at 471. The emphasis is original. The judgment is harsh given the evidence of the Second Report of the Commissioners, 1848 noted at para 68 above.

[213] Symbolised by the fact that the Crown Dependencies are now formally in a customs union with the United Kingdom, the text of the UK-Guernsey arrangement is to be found at Part 2 of the Schedule to the Crown Dependencies Customs Union (Guernsey) (EU Exit) Order 2019. London would not accept that the status ante quo as provided for in the Royal Charters granted to Guernsey over the centuries was sufficient.

[214] An easy change to make. The Guernsey Bar Course syllabus, study guides and examination process is a powerful tool in this respect.

[215] Under the Constitution of the Fifth Republic.

[216] (1868) LR 3 HL 330, still good in English law but not in Scotland or Australia.

[217] The problem is not so much out of court, where colleagues and Google translate can compensate, the issue is when standing in front of a judge of the Royal Court or Court of Appeal who can read French and wishes to be taken to the texts. This is quite apart from an inability to research properly an issue of Guernsey law following anything other than the common law path, if you cannot read French to a high standard.

[218] It is a fact that Jersey feels somewhat superior in this respect, claiming to hold more closely to customary and civilian law, but again the point is made that holding to customary and civilian law for the sake of it is not a solution either. It is a question of principle, whilst principle should never displace a just outcome. It is fair to say though that there is a stronger customary and civilian law flavour to Jersey law. In small jurisdictions much turns on the sympathies of the leading judges of the day.

[219] The Supreme Court of Canada comprises nine justices. Of the nine, three positions are required to be held by judges who are either judges of the superior courts of Quebec or members of the Bar of Quebec at the time of their appointment. Judges and counsel may speak in either French or English, with simultaneous translation available. The Court hears appeals from the common law provinces and the civilian law (Quebec) and describes itself as a “bijural and bilingual justice system”.

The following key indicates the court to which the case reference refers:

        JRC          Royal Court of Jersey

        GRC         Royal Court of Guernsey

        JCA          Jersey Court of Appeal

        GCA         Guernsey Court of Appeal

        JPC           Privy Council, on appeal from Jersey

        GPC         Privy Council, on appeal from Guernsey

CIVIL PROCEDURE

Hearing—proceedings in private

S v Att Gen [2023] JRC 140 (Royal Court: MacRae, Deputy Bailiff, and Jurats Christensen and Opfermann)

AE Binnie for the appellant; L Taylor for the Attorney General

The court considered an application by S to no longer be subject to the notification requirements under the terms of the Sex Offenders (Jersey) Law 2010. In this case the sentencing court had determined that the minimum period would be two years. When sentenced, S was assessed as presenting at low risk of sexual reconviction, although at high risk of general reconviction. The two-year notification period had now expired. Unusually, S was also currently serving a sentence of imprisonment for a separate offence.

    Held:

    (1) Principle of open justice. In Jersey Evening Post v Al Thani,[1] Sir Philip Bailhache, Bailiff, having reviewed the case law in respect of open justice, observed that the aim of the court is to do justice to the parties. He further observed that, whilst this aim must not be stultified by a rigid application of the principle that justice must be done in public, the principle of open justice should not be displaced as a matter of convenience or expedience, or to avoid embarrassment to one or more of the parties, but only if it is necessary to do so in the interests of justice.

    (2) Burden of proof. The present application was a civil proceeding. The principles upon which the court should consider whether an application for the lifting of notification requirements under the 2010 Law should be held in private had been considered in a number of cases, including Att Gen v Roberts,[2] Att Gen v L[3] and A v AG.[4] In A v Att Gen, the court held applications under the 2010 Law are to be distinguished from the Al Thani approach in so far as the burden should not lie with the offender seeking an order for a hearing in camera, requiring them to prove that it is the only way in which justice could be done. The present court agreed with the following observation of Sir Philip Bailhache in his 2022 article “The Principle of Open Justice”[5]:

“[T]he burden of showing that the needs of justice require the court to sit in private should always lie with the offender seeking an order under art 5 of the [2010 Law]. The burden of proof must lie somewhere. It surely should not lie with the Attorney General to have to satisfy the court that it should sit in public.”

    (3) Relevant factors. There is a public interest in those who no longer pose a risk of sexual re-offending being removed from the sex offenders’ register. Otherwise the task of the Offender Management Unit of the States of Jersey Police becomes unmanageable. There were currently over one hundred and twenty offenders subject to notification requirements. If applications for release from notification requirements were publicised in every case then that would, as observed in A v Att Gen, deter applicants who also, as things currently stand, have to fund such applications themselves. All applications are in any event scrutinised carefully by both the Offender Management Unit and the Probation Service. There are also other circumstances which may, in addition to the general factors, operate in favour of a privacy order. In this case, the court was asked to take into account the fact that the appellant is now in a relationship with a person who is aware of his previous offending but is concerned about the effect of publicity in relation to an offence he committed some years ago will have on her, their children, her employment prospects and S’s employment prospects. She was also concerned about the risk of online intimidation of the family. These are all legitimate concerns which needed to be weighed in the balance.

    (4) Decision. This was not to say that all applications under the 2010 Law will necessarily be heard in private. However, the court was satisfied that in the circumstances of this case it was necessary in the interests of justice for the application to be determined in private on the footing that, in the usual way, the judgment would be publicised so that the public could properly understand the reasons for the decision that the court had made.

COMPANY LAW

Effect of dissolution being declared void

AS Airline Services (CI) Ltd v Ports of Jersey Ltd [2023] JRC 230 (Royal Court: MacRae, Deputy Bailiff, and Jurats Austin-Vautier and Berry)

JM Sheedy for the plaintiff; MLA Pallot for the defendant

The plaintiff company operated the executive lounge at the airport under a licence agreement with the defendant. As a result of an oversight in complying with its filing obligations, the plaintiff company was struck off the register of companies and thereby dissolved. On becoming aware of the dissolution, the defendant terminated the licence agreement by letter to the plaintiff, although it had no express power to terminate on the ground of dissolution. The plaintiff thereafter successfully applied under art 213 of the Companies (Jersey) Law 1991 for its dissolution to be declared void and it was accordingly restored to the register. The plaintiff now sought a declaration that the licence agreement had not been lawfully terminated and it remained extant.

    Article 213 provides that the court may at any time within 10 years of the date of the dissolution, on an application made by a liquidator of the company or by any other person appearing to the court to be interested:

“make an order, on such terms as the court thinks fit, declaring the dissolution to have been void and the court may by the order give such directions and make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the company had not been dissolved.”

    Held:

    (1) Parties to application under art 213. It did not appear that any third parties were convened to the hearing of the representation to declare the dissolution void, still less the defendant, with whom the plaintiff had been corresponding on this issue. In JSC Commercial Privat Bank v St John Ltd,[6] the Royal Court held that it has a discretion as to the identity of the parties to be convened to an application of this nature before it and that suitable affidavit evidence should be provided when the representation is presented. The present court did not know what, if any, evidence was provided to the Judicial Greffier but the plaintiff should have provided an affidavit which, at the very least, should have exhibited the correspondence between the plaintiff and the defendant so that the court could expressly consider whether or not to convene the defendant to the hearing of the application to reinstate the plaintiff so that, if the court thought appropriate, the defendant’s arguments could be heard.

    (2) Court’s discretion and effect of order under art 213

(a)   The court has a discretion under art 213, and if the court declares the dissolution to be void then that means void ab initio, ie the company is reinstated as if dissolution had never occurred: JSC Commercial Privat Bank. As to the power of the court to give further directions, the natural meaning of art 213(1) is that those directions should be made at the same time as the declaration that the dissolution is void. There is no general power of the court to make such directions as may be just so as, for example, to assist third parties who may be prejudiced by the order that the court may make.

(b)   The effect of the equivalent provision of the Companies Act 2006, both for administrative restorations and those by the court, was the same: on the order being made the company is deemed to have continued in existence as if it had not been dissolved. In Bridgehouse (Bradford No 2) v AE Systems plc,[7] which was an administrative restoration under s 1024 of the 2006 Act, the High Court held that the deeming provision was directed towards the direct or automatic effects of the removal from the Register or dissolution prior to restoration, and that where a contractual party had a choice as to whether to terminate the contract upon a company’s removal from the Register or dissolution, the termination of a contract did not flow from and was not directly a consequence of dissolution, but rather flowed from the decision of a party to terminate; and, accordingly, the deeming provision in the statute was not engaged if the contract provides the other party with the ability to terminate the contract and in such circumstances that party’s termination of the contract does not fall to be re-assessed retrospectively. In Bridgehouse, the termination provisions in the relevant agreement included an event of default which was defined, inter alia, as including the claimant “being struck off the Register of Companies or being dissolved or ceasing for any reason to retain its corporate existence”. In these circumstances the power to terminate the agreement had been exercised and did not fall to be re-assessed retrospectively as a result of the deeming provision.

    (3) Disposal. The court agreed with the decision in Bridgehouse. Accordingly, an art 213 order avoids the automatic consequences of dissolution. In contrast to the facts in Bridgehouse, dissolution itself did not empower the defendant to terminate the licence agreement in this case. Had the licence agreement contained a provision to this effect, the court’s decision may well have been different. But the agreement in this case was terminated by operation of law, on the dissolution of the plaintiff, and not pursuant to any provision of the agreement. The plaintiff’s restoration to the Register had the effect that the plaintiff company continued its existence as if it had never been dissolved. As the licence agreement between the parties could not be terminated on the ground of dissolution, it was to be taken as not terminated and remained in effect. The declarations sought were accordingly granted.

CONTRACT

Implied terms—burden of proof

Stoneman v Stoneman, Stoneman and Mailshot Ltd [2023] GCA 047 (Court of Appeal: Montgomery, Wolffe and Matthews JJA)

R Breckon for the plaintiff; G Dawes for the defendants

The plaintiff and first and second defendants, along with other members of their family, had been engaged in litigation in the Royal Court as to ownership of family wealth. The case was settled and the settlement agreement provided, among other things, that the first and second defendants would retain the family company, the third defendant (“Mailshot”), and would make a substantial payment to the plaintiff. The first and second defendants gave warranties in the settlement agreement that a director’s loan account was not valued at more than a certain figure and that third party creditors were not less than a certain figure. No policing mechanism was provided for the warranties.

    The plaintiff subsequently commenced new proceedings claiming that the defendants were in breach of the warranties. The defendants denied that the plaintiff was entitled to any further information on the basis that the warranties were bare warranties and no prima facie case had been pleaded or could be evidenced. The plaintiff had applied for leave to amend a cause which he conceded was defective. The defendants said that the proposed amended cause was likewise defective. Cross-applications to strike out the cause and to amend the cause came before Judge Fooks, who found that a “mechanism” was to be implied whereby, in effect, the defendants would be required to prove the warranties had not been breached. She gave leave for the cause to be amended to plead such a mechanism and proposed to adjourn for argument as to the scope of the mechanism. Both parties appealed.

    The two main issues for the Court of Appeal were Judge Fooks’ implied term analysis and the question of whether the plaintiff’s breach of warranty case had realistic prospects of success sufficient for leave to amend to be given.

    Held, cause dismissed:

    (1) Implied term: There was no basis for implying a term as that suggested by Judge Fooks, primarily because it did not meet the requirement that a term would only be implied into a detailed commercial contract such as this if the implication of the term was necessary to give business efficacy to the parties’ agreement or if the term was so obvious as to go without saying.

    (2) Breach of warranty: The primary substantive question which Judge Fooks (and the Court of Appeal) were required to address, in the context of the amendment application, was whether the plaintiff’s contention that a breach of warranty could be inferred from the primary facts in the amended cause had realistic prospects of success. The judgment of the Royal Court did not squarely address that question.

    The case, as pleaded in the amended cause, did not survive the strike-out test. None of the figures identified or relied on in the pleadings would support an inference that there had been a breach of warranty.

    Plaintiff’s appeal and amendment application refused; defendants’ appeal allowed and strike out application granted.

Comment [Gordon Dawes]: The case gives important guidance on the question of implied terms in Guernsey contract law, the burden of proof in warranty claims and in contract law generally and the importance of considering how the recipient of a warranty will test and enforce its terms subsequently.

CRIMINAL LAW

Sentencing—adjournment

Att Gen v Lloyd [2023] JRC 24 128 (Royal Court: MacRae, Deputy Bailiff, and Jurats Ronge, Christensen, Hughes, Opfermann and Berry)

LB Hallam, Crown Advocate; AE Binnie for the defendant

On the ground of possible, but as yet undiagnosed, condition of ADHD, the defendant applied for an eleventh-hour adjournment prior to sentencing for drug trafficking and possession offences.

    Held:

    (1) The court had to have regard to the overriding objective in art 3 of the Criminal Procedure (Jersey) Law 2018. This included inter alia recognising the rights of the defendant, dealing with the case efficiently and expeditiously, ensuring that appropriate information is available to the court when bail or sentence is being considered and taking into account the gravity of the offence, the severity of the consequence for the defendant and the needs of other cases.

    (2) The present case had been listed for a long time. Court resources were scarce. Counsel were present and the full court had been convened at significant public costs. Having regard to the circumstances of the offence, even if there was such a diagnosis it would not amount to significant mitigation and, having regard to the overriding objectives and in particular the above matters, the court declined the application.

Malicious damage

Wragg v Att Gen [2023] JRC 164 (Royal Court: Binnington, Commr and Jurats Christensen and Opfermann)

The appellant represented himself; S Crowder, Crown Advocate, for the respondent

The appellant appealed against conviction and in the Magistrate’s Court in respect of three charges of malicious damage. Each of the charges related to damage caused to a public display relating to climate change on La Route de la Liberation, St Helier. The appellant contended he was morally obliged to commit the acts in order to prevent a crime. His principal complaint in this regard was that the reference to “climate emergency” on the mural was unduly alarmist and that its public display would adversely affect the mental health of young children.

    Held:

    (1) Offence of malicious damage. The elements of the common law offence of malicious damage are (i) destroying or damaging property; (ii) belonging to another; (iii) intentionally or recklessly; (iv) and that it is the person the prosecution says it is who has caused the damage. The element of malice does not refer to wickedness: Att Gen v Dwyer and O’Bartuin.[8] But the offence can only be committed intentionally or recklessly: Att Gen v Freeman.[9] It is a defence to a charge of malicious damage if it was done as an accident, out of necessity or under duress. Whilst the range of circumstances that constitute necessity are not strictly defined, the court suggested that they will commonly involve situations where there is a need for urgent action and where there is an absence of a reasonable alternative which would not result in the damage of which complaint is made. A misconception of legal rights, however gross, is not a defence: Freeman.

    (2) Decision on appeal against conviction. The Assistant Magistrate had been justified in concluding that the justification advanced by the appellant for his actions did not constitute necessity. There may well be a debate to be had on the subject of climate change, but that debate can be had without resort to the “law of the jungle” as Magistrate Sowden put it in Att Gen v Freeman. Furthermore, there was no evidence before the Magistrate that this particular mural had caused or was likely to cause damage to the mental health of young people who saw it. This was not an occasion of such urgency that the appellant was required to take immediate action and there were reasonable, and lawful, alternatives open to him. The appeal against conviction was accordingly rejected.

Joinder/separation of charges—proviso to art 26(1)

Robertson v Att Gen [2023] JCA 021 (Court of Appeal: Bailhache, President, Wolffe and Matthews JJA)

MP Boothman for the appellant; MR Maletroit, Crown Advocate, for the respondent

The appellant appealed conviction on one count of grave and criminal assault. The prosecution case was that there was an altercation at Bonne Nuit Bay between the appellant and his brother which escalated into a serious assault by the appellant. In the course of this incident, the appellant twice rendered his brother unconscious. The first loss of consciousness was caused by the appellant kicking his brother’s head. When, five or six minutes later, the brother recovered, the appellant prevented his brother from throwing himself off the pier onto the rocks below, and thereafter sought to prevent him from damaging a number of cars parked on the pier. The appellant put him on the ground and restrained him. On being released the altercation continued. When the brother attempted to punch the appellant, the appellant threw his brother onto the concrete pier, causing to hit his head on the pier and rendering him unconscious for a second time.

    The Crown’s case was that the offending comprised a single incident. The defence, however, contended that there were four specific events to which different defences of self-defence, protection of property and protection of others (including the victim) were put forward and that the Deputy Bailiff’s direction to the jury had not adequately covered the case.

    Held:

    (1) Charge under a single count. Although the Crown had proceeded with just one count on the basis that this had been one continuous incident, this was not the right decision. This way of proceeding should have been revisited during the course of the proceedings.

(a)   Rule 8(3) of the Criminal Procedure (Jersey) Rules 2021, provides:

“If an offence has been committed more than once, the instances of the offence may be included in the same count if those instances, taken together, amount to a course of conduct with regard to the time, the place or the purpose of committing the offence.”

        The events in this case took place within a short space of time and were clearly connected with one another. However, there was an interval of some five or six minutes between the first and second incidents. On the facts, it was difficult to consider the assault as a continuing single incident notwithstanding that the identity of those involved did not change, any more than the date and place where the assaults took place. The difficulty was then compounded by the different defences advanced in respect of different elements encompassed within the single count. The difficulty in the considering whether “the conviction” is unsafe is shown when asking the question: of what was the defendant convicted: Archbold, Criminal Evidence, Pleading and Practice, 23rd ed., at para 7–077.

(b)   Notwithstanding the requirements of r 8(2)(c) of the Criminal Procedure Rules, the “particulars” of the single count did not provide any particulars of the nature of the alleged assault. The way that the indictment was framed did not cause any prejudice to the appellant in relation to the leading of evidence at trial, having had adequate notice of the case. Nevertheless, the appellant should have made an application for a direction that the Crown give further particularisation of the offence and/or for the breaking down of the indictment into different alleged offences on the grounds that charging one offence was bad for duplicity; the Crown should, in any event, have revisited the original decision to charge all the conduct within the one count; and the learned Deputy Bailiff having noted that the evidence disclosed two separate incidents, should, of his own motion, have directed the count be broken down into two counts: Levanitz.[10]

(c)   Had the allegations been separated into two separate counts, the parties would have been required to focus their submissions on them separately, the trial judge would have had to address the relevant defences separately, and the jury would have been required to address them separately in their verdict. As it was, there was a single finding of guilt on one charge of grave and criminal assault which left it impossible to identify, from the terms of the conviction itself, what the jury thought in relation to the different component parts of the charge.

(d)   It may well be common practice for the “Particulars of Offence” not to provide any detail of what is alleged where the charge is a grave and criminal offence, but the purpose of the rule is to ensure that the indictment contains more detail of what is alleged to be the criminal offence than occurred here, such as to provide a framework both for the conduct of the trial and also for understanding the verdict. This is not to say that the prosecution must be specific in every detail as with, for example, a reference to six punches rather than five; but the general nature of the allegation—punching, kicking, biting, knifing and so on—should be specified. In this case that would have enabled a better focus on the two incidents which should have led to them being charged separately.

(e)   The Court of Appeal was very conscious of the numerous observations that an appellate court should be wary of applying too academic or theoretical an approach to the difficult questions which often trouble a trial judge at very short notice, but it nonetheless reached the view that the failure to split the indictment into two counts and give adequate particulars of what was alleged on each count involved an error of law.

    (2) Proviso to art 26(1)

(a)   The Court of Appeal then had to consider whether, notwithstanding the ruling above on the point of law, the proviso to art 26(1) of the Court of Appeal (Jersey) Law 1961 applied:

“Provided that the Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

(b)   Article 26 of the 1961 Law had been considered by the Court of Appeal in Barette v Att Gen:[11] this article reflected s 4(1) of the Criminal Appeal Act 1907 (applicable to England and Wales) which was first amended by s 2(1) of the Criminal Appeal Act 1968, then by s 44 of the Criminal Law Act 1977, and thereafter by s 2(1) of the Criminal Appeal Act 1995; the effect of these amendments entirely altered the appellate jurisdiction in England and it could be fairly said that the law on this matter, as it pertains to Jersey, is more robust in regard to the upholding of a jury’s verdict than the law which now exists in England. In substance, notwithstanding some error in the conduct of the trial, a verdict will only be set aside if the miscarriage of justice consequent upon that error can properly be described as “substantial”. If on the whole of the facts and with a correct direction, the only reasonable and proper verdict would be one of guilty, there is no miscarriage of justice, or at all events no substantial miscarriage of justice within the meaning of the proviso. A similar approach was taken in Lundy,[12] an appeal from New Zealand which discusses the proviso.

(c)   Recognising that it was its own judgment on this matter which was critical, the Court of Appeal was satisfied that if the jury had been properly directed in the present case, they would have reached the same verdict. CCTV evidence was particularly compelling; it showed that no reasonable jury would have accepted the defence of self-defence. The difficulties arising from the inclusion of all the events charged in a single unparticularised single count had not given rise to any prejudice to the appellant as regards the conduct of the trial. Nor had it given rise to any substantive prejudice as regards sentence. Accordingly, although there had been an error of law, the appeal would be dismissed on the basis that no substantial miscarriage of justice had actually occurred.

FINANCIAL SERVICES

Guernsey Financial Services Commission—regulatory enforment—integrity

Robilliard v Chairman of the Guernsey Financial Services Commn [2023] GCA035 (Court of Appeal: Bompas, Mountfield and Storey, JJA)

A Williams for the appellant; C Edwards for the respondent

This was an appeal against a decision of the Royal Court largely dismissing an appeal against a decision of a senior decision maker (“SDM”) of the Guernsey Financial Services Commission (“the Commission”). The SDM had found that certain individuals failed to meet the “fit and proper” requirements and the “minimum criteria for licensing” under the relevant regulatory provisions. One of the individuals appealed the Royal Court’s decision to the Court of Appeal.

    Held, appeal dismissed:

    (1) Burden of proof: It was not for the appellant to show that he was a fit and proper person or otherwise met the minimum licensing requirement: it was for the SDM to be satisfied of the contrary, but only if the SDM could properly do so on the basis of the materials before them applying the balance of probabilities measure.

    (2) Disclosure of documents by the Commission: The Deputy Bailiff did not fall into any error or reach a conclusion which was unreasonable or outside the range of what she might properly have concluded in finding that the Commission had adhered to the required investigation and disclosure process and the procedure met the standard of fairness in this case. She was also correct to find that there was no duty to conduct a search for documents in the way that there was in civil adversarial proceedings.

    (3) Dishonesty/lack of probity and lack of integrity: To establish lack of integrity, there was no requirement that the person must “subjectively” realise that the conduct lacked integrity. This test was different to the test for dishonesty / lack of probity, which had a higher threshold. Accordingly, a fact finder (such as the SDM) did not need to make express findings as to the person’s state of knowledge when considering an allegation of lack of integrity made against them.

Comment [Iona Mitchell]: The Court of Appeal agreed with the findings of the SDM and the Deputy Bailiff that the concept of burden of proof used in civil adversarial proceedings was not relevant. However, what the court found the Commission needed to be satisfied about appeared to come close to saying there was a burden of proof on the Commission.

    In the Royal Court, the Deputy Bailiff made comments about how the Commission’s Guidance Note on the decision-making process and the language around disclosure in general could be improved. The Court of Appeal did not address these issues.

    This is believed to be first time that the Guernsey Court of Appeal has considered the test for lack of integrity in the context of regulatory enforcement.

Guernsey Financial Services Commission—stay of orders

Pybus and Adjure Global Ltd (in liquidation) v Chairman of the Guernsey Financial Services Commn [2023] GRC057 (Royal Court: Roland, Deputy Bailiff)

J Le Tissier for the applicants; J Hill for the respondent

The appellants applied to suspend the operation of certain decisions of the Guernsey Financial Services Commission (“the Commission”) pending the determination of their appeals to the Royal Court.

    Held:

    (1) Disapplication of exemption order: Pursuant to s 106(7) of Financial Services Business (Enforcement Powers) (Bailiwick of Guernsey) Law, 2020 (“the Enforcement Law”), the order disapplying the exemption under the Regulation of Fiduciaries, Administration Businesses and Company Directors, etc (Bailiwick of Guernsey) Law, 2020 had not yet come into effect and so did not need to be suspended.

    (2) The 10-year prohibition order: Whilst the Enforcement Law expressly provided that the Royal Court may suspend or modify the operation of a decision imposing a financial penalty or the making of a public statement pending an appeal, it did not contain a similar power in relation to prohibition orders. However, the court had the power to do so under its inherent jurisdiction.

    (3) Exercise of discretion: In determining whether to exercise its discretion to stay the prohibition order, financial penalties and public statement, it was appropriate to apply the test used for judicial review at paragraph 54.10.4 of the White Book, which applied the same procedure and principles as a claim for an injunction. The prohibition order and financial penalty of £150,000 imposed on the first appellant, who was a director of the second appellant, were suspended, together with the public statement in respect of both appellants. Suspension of the £300,000 financial penalty against the second appellant was refused as there was no risk of injustice on the imposition of this and that the respondent would repay the penalty if the appeal succeeded.

PARTNERSHIP

Winding up—validity of service of documents

Winding up—dispute between partners

CRGF GP Ltd v Rusnano Capital SA [2023] GCA048 (Court of Appeal: Matthews JA)

AC William for the appellant; SL Brehaut for the respondent

This was an appeal from two judgments of the Royal Court in proceedings concerning the winding up of a limited partnership known as CRGF LP following a dispute between the partners. In the main judgment, the Royal Court ordered that the limited partnership be dissolved on the ground that it was just and equitable to do so under s 29(1)(j) of the Limited Partnerships (Guernsey) Law, 1995. The appeal concerned fees said to be due to the appellant as the general partner under the partnership, dealt with in a supplementary judgment, and the order as to costs.

    Before dealing with the substantive appeal, the court considered the appellant’s application for a declaration that service of its notice of appeal and other appeal papers was valid. The appellant had, through HM Sergeant, served its notice of appeal on the respondent’s élection de domicile from the Royal Court proceedings (the offices of its Guernsey advocates, who had since stopped acting for it but had not changed the élection de domicile). The appellant had also sent a copy of the notice of appeal by email to a representative of the respondent who worked for a company in its corporate group.

    Held: allowing the appeal:

    (1) Service of the notice of appeal: Service under the Royal Court Civil Rules, 2007, in this case on the élection de domicile given in those proceedings, was not valid for the purposes of the appeal. Under the Court of Appeal (Civil Division) (Guernsey) Rules, 1964, unless the court had given a contrary direction or made an order for substituted service, service of the notice of appeal needed to be by “personal service” by the appropriate court officer. Service on the legal representative of the person upon whom service must be effected was not “personal service”. Accordingly, the service of the notice of appeal was not valid.

    However, in the circumstances, the court would exercise its power under r 19(1) to give a contrary direction, correcting the defect. Contrary to obiter comments made by the now Bailiff in Cobra Business Ventures Ltd v Green Field Capital Ltd,[13] about a similar power under the Royal Court Civil Rules, 2007, this power could be exercised retrospectively.

    (2) Substantive appeal:

(a)   The Bailiff was wrong in his construction of the partnership documents as a whole, and accordingly the directions he gave to the Jurats on the interpretation of the contract were erroneous. Midland Resources Holdings Ltd v Prodefin Trading Ltd,[14] which had proceeded on the basis that the principles of interpretation set out by the higher courts of the United Kingdom were the same as those applicable in Guernsey, applied.

(b)   Section 29(2) of the Limited Partnerships (Guernsey) Law, 1995 did not have the effect that the Bailiff directed the Jurats that it had, namely to give the court the power to rewrite the bargain between the partners by modifying the terms of the partnership agreement for the purpose of determining the distribution of assets.

TAXATION

Exchange of tax information—relevance and proportionality of information request

Mourant Trustees (Guernsey) Ltd (as trustee of the Bolero Trust) & Carezo (Guernsey) Ltd (as trustee of the Carezo Trust) v Director of the Revenue Service [2023] GRC034 (Royal Court: Finch OBE, Lieutenant-Bailiff)

C Edwards for the applicant; P Grainge for the respondent.

The appellants sought leave to bring a statutory appeal in respect of notices issued by the respondent pursuant to s 75K of the Income Tax (Guernsey) Law, 1975. The notices sought to compel the appellants to produce documentation and information relating to a Mr Pedr Erik Pråhl, following a request from the Swedish Competent Authority on behalf of the Swedish Tax Authority, that was or may be held by two trusts in respect of each of which one of the appellants was trustee.

    The grounds of appeal were that: (1) the information requested by the notices was not foreseeably relevant to the administration or enforcement of Swedish tax law; and (2) the requests were disproportionate in scope.

Held: Leave refused: neither ground of appeal was met. Accordingly, the case did not have a real prospect of success and leave was refused.

    Note: a renewed application was made to a single judge of the Court of Appeal and at the time of writing the publication of that judgment is awaited.

    There is a Jersey Royal Court judgment concerning challenges to notices issued by the Jersey authority in respect of the same taxpayer: Pråhl & Triton Administration (Jersey) Ltd v the Office of the Controller of Revenue reported at 2022 (1) JLR 100.

TRUSTS

Powers and duties of trustees—management or administration powers—disclosure of information to beneficiaries

In re Alpha, Beta and Delta Trusts [2023] JRC 138 (Royal Court: Birt, Commr, and Jurats Austin-Vautier and Hughes)

JP Speck for the representor; NAK Williams for the first and second respondents; JM Dann for the third respondent; NM Sanders in person

Questions were raised (1) as to the duty of a trustee to take available steps, under the Bartlett principle, to ensure the proper management of the company and in particular an adequate flow of information, and obiter, (2) whether, in considering if a beneficiary is entitled to disclosure of information by a trustee, the court is merely reviewing the rationality of the trustee’s decision or exercising its own discretion as to whether the interests of the beneficiaries would be served by disclosure.

    The trustee of a family discretionary trust had received an unsolicited report from a person who had worked as an auditor and consultant to a company in which the trustee held a minority share. The report indicated that there may have been misconduct and misappropriation by the management. The trustee then commissioned report by Deloitte, which gave credence to the first report; but Deloitte also indicated that further investigation was needed. In an effort to seek consensus between the beneficiaries, the trustee did not seek board representation but rather sought the appointment of an independent observer who would attend board and management meetings. It was contended for the representor, a beneficiary, that, in the circumstances, the appointment of an observer would be insufficient to comply with the trustee’s duty to take steps to ensure that it had an adequate information flow about the affairs of the company and that it should rather seek the appointment of two additional directors of the company, one nominated by the representor and one by his brother.

    This question of disclosure arose in relation to further trusts within the same family structure. The representor sought an order that the trustees disclose to him all relevant documents in connection with an investigation by the trustees of allegations which had been made against him in his capacity as CEO of an underlying company.

    Held:

    (1) Duty of trustee regarding allegations of misconduct regarding underlying company

(a)   A trustee must conduct the business of the trust in such a way as an ordinary prudent person would conduct a business of their own; and trustees holding a controlling interest in a company ought to ensure, so far as able, that they have such information on the company’s affairs as directors would have: Re Lucking’s Will Trusts.[15] If facts come to the trustee’s knowledge which tell them that the company’s affairs are not being conducted as they should be, or which put them on inquiry, the trustee must take appropriate action; appropriate action will consist in the first instance of inquiry of and consultation with the directors, and in the last resort, the convening of a general meeting to replace one or more directors: Bartlett v Barclays Bank plc.[16]

(b)   In Bartlett, Brightman J further observed that it was not necessary in every case that trustees ensure that one of their number is a director or that they have a nominee on the board; other methods may be equally satisfactory, such as the receipt of copies of the agenda and minutes of board meetings if regularly held, the receipt of monthly management accounts in the case of a trading concern, or quarterly reports. Every case will depend on its own facts. The purpose is to make it reasonably probable, so far as circumstances permit, that the trustee will receive an adequate flow of information in time to enable the trustee to make use of their controlling interest should this be necessary.

(c)   In both Lucking and Bartlett, the trust had a controlling interest and the dicta were directed towards such a situation. In the present case the trustee only had a minority interest. However, following receipt of the two reports, the trustee in this case was on notice that there may well have been misappropriations in the company. In these circumstances, the trustee was under a duty to see if it could ensure a proper flow of information about the company’s affairs by liaising with one or more of the other shareholders. It was possible that combined voting power of willing shareholders would exceed 50%, which would enable the appointment or removal of directors. In the circumstances which had arisen following receipt of the two reports the trustee was under a duty to take all reasonable steps not only to investigate what had occurred but also to ensure that it had an adequate flow of information about the company going forward.

(d)   There was an “anti-Bartlett” clause in the relevant trust instrument in this case. However, it was not argued that, where a trustee has actual notice of possible misconduct and misappropriation, this clause would relieve the trustee from its duty to take reasonable steps to ensure that it can investigate what has occurred and ensure an adequate information flow in future. Accordingly, the court did not consider this aspect further.

(e)   Notwithstanding that the duty to ensure a proper information flow had arisen, the non-intervention principle applied—ie the principle that the court will not generally interfere with the performance by fiduciaries of their duties unless they are acting, or threatening to act, in breach of duty, or have surrendered their discretion, and that the court’s special jurisdiction over charities gives rise to no exception (Children’s Investment Fund (UK) v Att Gen;[17] S v Bedell Cristin Trustees Ltd[18]). Accordingly, the court could only override the decision which the trustee had reached if it concluded that that decision was one which no reasonable trustee could have reached and would therefore amount to a breach of trust.

(f)    On the facts, whilst not every trustee would have proceeded exactly as the trustee did in this case, its decision could not possibly be categorised as one which no reasonable trustee could have arrived at. It was not unreasonable for the trustee to seek in the first instance to achieve consensus and ultimately to decide to proceed at this stage by way of the appointment of an observer rather than appointment of one or more directors.

    (2) Disclosure of information to beneficiaries

(a)   The court was being invited to exercise its supervisory jurisdiction over trusts in relation to the disclosure of documents to a beneficiary; the leading authorities were Schmidt v Rosewood[19] and Re Rabaiotti (1989) Settlement.[20] It was not suggested that amendments to art 29 of the Trusts (Jersey) Law 1984 had altered the position for the purposes of this case.

(b)   There was some uncertainty as to whether, when considering an application for disclosure by a beneficiary when the trustee has refused to give such disclosure, the court is simply reviewing the rationality of the trustee’s decision (as in a blessing application) or is exercising its own discretion as to whether the best interests of the beneficiaries would be served by disclosure.

(c)   All the parties in the present case accepted that the court should approach the matter on the basis that it was exercising its own discretion. Accordingly, it was not necessary to determine this issue. However, the present court respectfully agreed obiter with the obiter reasoning of Clyde-Smith, Commr in Re Y Trust.[21] The power of the court to order disclosure is an essential element of the court’s supervisory jurisdiction because it enables the court to ensure that beneficiaries can find out what the trustees have been doing with assets held beneficially for the beneficiaries. The effectiveness of the court’s ability to protect the interests of the beneficiaries through the supervisory jurisdiction would be significantly weakened if the court could only order disclosure if it could categorise the trustee’s decision to refuse disclosure as being one which no reasonable trustee could have arrived at. The court will of course pay close attention and have due regard to the reasons which a trustee has given for refusing disclosure. There can often be good reason to refuse disclosure; see both Schmidt and Rabaiotti. Nevertheless, as at present advised, the court was of the opinion that the court should make up its own mind as to whether the interests of the beneficiaries as a whole (and not just the applying beneficiary) would best be served by ordering disclosure despite a trustee’s refusal.

(d)   On the facts, the court concluded that it should not make an order for immediate disclosure. It was satisfied that the trustees had accepted the obligation to disclose all the relevant information and documents and, although it was arguable that the process had not been conducted with the necessary sense of urgency, it was perfectly understandable that the trustees wished to have time to raise issues of confidentiality with the complainants before disclosure was made. The trustees’ acceptance that it would disclose all relevant material in good time before a proposed second interview took place should lead to a fair process and it was not necessary therefore for the court to intervene.

Costs—indemnity—trustee’s costs in legal proceedings

Re Blueberry Settlement [2023] JRC 156 (Royal Court: MacRae, Deputy Bailiff, and Jurats Averty and Cornish)

HE Brown for the representor; NLM Langlois for B; D Le Maistre for the minor and unborn beneficiaries; JM Sheedy for John McLuskie

The question was raised as to the extent, if at all, that a trustee de son tort (Appledore), should be deprived of its costs when acting as trustee in non-hostile litigation, and what ancillary orders as to costs ought to be made.

    Held:

    (1) Legal principles

(a)   The principles which govern the award of costs incurred by trustees in non-hostile trust litigation were well settled. A trustee is entitled to reimbursement out of the trust for all costs, expenses and liabilities reasonably incurred in connection with the trust: Alhamrani v Alhamrani.[22] In addition to the court’s inherent supervisory jurisdiction over trustees, there are express statutory powers in Jersey which allow: (i) the trustee to reimburse himself out of the trust for or pay out of the trust all expenses and liabilities reasonably incurred in connection with the trust (art 26(2), Trusts (Jersey) Law 1984); (ii) the court to order the costs and expenses of an application to the court to be paid out of the trust fund (art 53), and (iii) the court to administer the trust and make orders as to the exercise of the trustee’s powers and as to payments he makes (art 51). As a matter of law, therefore, the trustee is entitled to be reimbursed for the expenses and liabilities that he has reasonably incurred in connection with the trust. The concept of “reimbursement” implies full repayment, and the authorities in England have always made it clear that a trustee has the right to full reimbursement of his expenditure properly incurred on behalf of the trust.

(b)   In this case, the trustee was acting as a trustee de son tort, and therefore could not point to the provisions of the trust but in the usual course of events the court could be expected to authorise that its costs, fees and expenses would be discharged from the trust to the extent that they were reasonably incurred.

(c)   In B v Erinvale PTC Ltd,[23] the court considered the circumstances in which a trustee should be deprived of its indemnity against the trust fund either in respect of its own costs and/or whether it should pay the costs of other convened parties personally. A neutral trustee, that is to say a trustee acting in its capacity as trustee and not defending or advancing its own personal interests, is entitled to be reimbursed for his expenses and liabilities reasonably incurred in connection with the trust. This is prima facie an indemnity, although it is always possible for a beneficiary, if there is a real concern about the propriety of fees and expenses sought, to challenge the costs as being unreasonably incurred or unreasonable in amount. Such costs, if they are taxed on that basis, are commonly referred to as costs on the trustee basis. The trustee may be denied its indemnity if it has acted unreasonably or is guilty of misconduct. There was no allegation of dishonesty or similar misconduct in the present case.

(d)   The court might deprive the trustee its costs out of the trust fund as a result of the trustee’s conduct which occasioned the proceedings, but also by reason of its unreasonable conduct in bringing unnecessary trust proceedings, or conduct in the proceedings themselves, for example by taking procedural steps which needlessly increase costs by acting in a partisan manner to some beneficiaries against others, by adopting an excessive role in trust proceedings by contesting claims which ought to be contested by others not the trustees or which ought not to be contested at all.

(e)   The mere fact that a trustee has been found to be in breach of trust does not necessarily mean that he should be deprived of his indemnity. As Beloff, JA said in McKinnon v McKinnon[24] it is a matter of fact and degree in every case. The court must have regard to the overall circumstances of the case and decide whether the nature and gravity of his misconduct is such that he should lose his indemnity and/or be ordered to pay the costs of the parties. It is very much a matter of discretion for the court having regard to the particular facts of the case. Further, a legatee or beneficiary is entitled to expect a reasonable level of competence, proportionality and good sense from the person entrusted with protecting his interest. In short, an element of intransigence or unreasonableness is required. It is not necessary to show fraud or dishonesty, but the trustee’s conduct must have crossed the threshold of reasonably justifiable behaviour: McKinnon, endorsing the approach of the Royal Court at first instance.

(f)    The “margin of discretion” allowed for an executor or a trustee, both of whom owe fiduciary duties, should be more narrowly circumscribed in the case of a professional executor or trustee who is remunerated.

    (2) Disposal

(a)   In the present case, Appledore had not adopted a neutral stance before the Royal Court in arguing that the deed of retirement and appointment, under which it had been invalidly appointed, was valid. Notwithstanding the fact that that argument was unhesitatingly rejected by the court, taking this point did not itself mean that Appledore had adopted an unreasonable stance so as to be deprived of its indemnity (Re Landau[25]). Overall, however, Appledore gave the clear impression that it was attempting to cling on to its trusteeship and deploy arguments regardless of their merits. That was not trustee-like behaviour and was to be discouraged. Its applications for rectification and that the court should appoint Appledore with prospective effect were hopeless or unlikely to succeed. It was extremely unhelpful that it produced the schedule of decisions for ratification at the eleventh hour. The trustee should have had their ducks in a row; the subs-equent hearings and the delay of a year was a consequence of their failure to do so.

(b)   Professional trustees need to be held to a higher standard than lay trustees. Appledore has not met that standard. Appledore was subject to clear and reasonable requests for information and their excuses for providing it late or not at all were poor. Looking at matters in the round, Appledore should have their claim to be indemnified out of the assets of the trust of and incidental to the costs incurred in relation to this Representa-tion reduced by 40%. The court did not order Appledore to pay the costs of the other parties. The convened parties would have their costs of and incidental to the representation out of the assets of the trust to be taxed on the indemnity basis if not agreed.

[1] 2002 JLR 542.

[2] 2011 JLR 125.

[3] 2016 (2) JLR N [7].

[4] 2020 (1) JLR N [1].

[5] (2022) 26 Jersey and Guernsey Law Review 295 at para 45.

[6] [2021] JRC 189.

[7] [2019] EWHC 1768 (Comm).

[8] 1987–88 JLR N–9b.

[9] 1994 JLR 29.

[10] [1999] 1 Cr App Rep 465, at 476.

[11] 2006 JLR 407, at paras 85–90.

[12] [2013] UKPC 28.

[13] 2011–12 GLR N [27].

[14] 2017 GLR 304.

[15] [1968] 1 WLR 866.

[16] [1980] Ch 515.

[17] [2020] UKSC 33; [2020] 3 WLR 461.

[18] [2005] JRC 109; 2005 JLR N [34].

[19] [2003] 2 AC 709.

[20] 2000 JLR 173.

[21] 2014 (1) JLR 199.

[22] 2006 JLR 195.

[23] [2021] JRC 021.

[24] 2010 JLR 50.

[25] 2007 JLR 250.

SUMMARY OF LEGISLATION

BAILIWICK OF JERSEY

1 September–31 December 2023

1. 1. LAWS ADOPTED BY THE STATES

(a)    Employment (Amendment No 14) (Jersey) Law 202-

        (P.62/2023—adopted in 3rd reading, 3.10.2023)

This Law amends the Employment (Jersey) Law 2003 to introduce parental bereavement leave.

(b)    Register of Names and Addresses (Amendment) (Jersey) Law 202-

        (P.56/2023—adopted in 3rd reading, 3.10.2023)

This Law amends the Register of Names and Addresses (Jersey) Law 2012 under which the Register of Names and Addresses (“the Register”) containing registrable facts about individuals is established and maintained, to permit the supply of certain information from the Register about Jersey residents to credit reference agencies.

(c)    Finance (2024 Budget) (Jersey) Law 202-

        (P.91/2023—adopted in 3rd reading, 14.12.2023)

This Law sets the standard rate of income tax for 2024 and to implement parts of the Government Plan 2024–2027 by amending the Income Tax (Jersey) Law 1961, the Customs and Excise (Jersey) Law 1999, the Goods and Services Tax (Jersey) Law 2007, the Stamp Duties and Fees (Jersey) Law 1998, the Taxation (Land Transactions) (Jersey) Law 2009, the Taxation (Enveloped Property Transactions) (Jersey) Law 2022 and to make consequential amendments.

2. LAWS, ORDERS IN COUNCIL, ETC REGISTERED IN THE ROYAL COURT

(a)    F.B. Playing Fields (Jersey) Law 2023

        (L.10/2023—registered 20.10.2023. In force 27.10.2023)

(b)    Probate (Amendment) (Jersey) Law 2023

        (L.11/2023—registered 20.10.2023. In force 27.10.2023)

(c)    Employment (Amendment No 13) (Jersey) Law 2023

        (L.12/2023—registered 20.10.2023. In force 27.10.2023)

(d)    Income Tax (High Value Residents—Amendment) (Jersey) Law 2023

        (L.13/2023—registered 20.10.2023. In force 14.7.2023)

(e)    Employment (Amendment No 14) (Jersey) Law 2023

        (L.14/2023—registered 22.12.2023. Not in force)

(f)     Register of Names and Addresses (Amendment) (Jersey) Law 2023

        (L.15/2023—registered 22.12.2023. In force 29.12.2023)

3. LAWS BROUGHT INTO FORCE

(a)    Children (Convention Rights) (Commencement) (Jersey) Act 2023

        (R&O.111/2023—in force 29.11.2023)

The uncommenced provisions of the Children (Convention Rights) (Jersey) Law 2022, except arts 5, 9 and 12(4)(b)(iii) and Schedule 1, come into force on 1 January 2024.

(b)    Act declaring that the Finance (2024 Budget) (Jersey) Law 202- has immediate effect

        (R&O.120/2023—in force 14.12.2023)

The Act gives immediate effect to the Finance (2024 Budget) (Jersey) Law 202- (P.91/2023), (adopted by the States on 14 December 2023), as if it were a Law sanctioned by the Privy Council and registered in the Royal Court.

4. REGULATIONS MADE BY THE STATES

(a)    Financial Services (Amendment of Law) (No 6) (Jersey) Regulations 2023

(R&O.74/2023—Regulations 1, 2, 4 and 5 in force 31.10.2023; Regulation 3 not in force)

These Regulations amend the Financial Services (Jersey) Law 1998 to provide that arranging for another person to deal in investments, and operating an investment exchange, will fall under the definition of financial service businesses.

(b)    Cold Weather Bonus and Payments (Miscellaneous Amendments No 2) (Jersey) Regulations 2023

        (R&O.75/2023—in force 19.9.2023)

These Regulations amend the Income Support (Special Payments) (Cold Weather Payments) (Jersey) Regulations 2008 to modify special payments for cold weather months between October 2023 to March 2024.

(c)    Sea Fisheries (Vessel Monitoring Systems) (Amendment) (Jersey) Regulations 2023

        (R&O.95/2023—not in force)

These Regulations amend the Sea Fisheries (Vessel Monitoring Systems) (Jersey) Regulations 2014 to require British fishing boats measuring less than 12 metres in overall length to have an inshore monitoring system device installed. All EU fishing boats and British fishing boats measuring 12 metres or more in overall length are required to have a satellite tracking device installed.

(d)    Income Support (Amendment No 23) (Jersey) Regulations 2023

        (R&O.97/2023—in force 1.1.2024)

These Regulations amend the Income Support (Jersey) Regulations 2007. The amendments increase by 8.6% the rates payable for various components of income support from 1 January 2024. Only the rates payable for the clinical cost element of the impairment component are not changed.

(e)    Public Health and Safety (Rented Dwellings) (Licensing) (Jersey) Regulations 2023

        (R&O.108/2023—in force 1.5.2024)

These Regulations establish a scheme in connection with the health and safety of rented dwellings and provide for the issuing of licences in respect of dwellings to be used as rented dwellings.

(f)     Financial Services (Disclosure and Provision of Information) (Amendment) (Jersey) Regulations 2023

        (R&O.109/2023—in force 1.1.2024)

These Regulations amend the Financial Services (Disclosure and Provision of Information) (Jersey) Regulations 2020 to increase the amount to be paid from £145 to £175 for entities that are administered by a fund services business or by a trust company business.

(g)    Limited Partnerships (Annual Additional Charge) (Amendment) (Jersey) Regulations 2023

        (R&O.110/2023—in force 1.1.2024)

These Regulations amend the Limited Partnerships (Annual Additional Charge) (Jersey) Regulations 2012 to increase for some limited partnerships, the amount required to be paid from £145 to £175 for limited partnerships that are administered by a fund services business or by a trust company business.

(h)    Planning and Building (Conservation Areas) (Jersey) Regulations 2023

        (R&O.112/2023—in force 6.12.2023)

These Regulations provide for the allocation of funding to protect and improve the character or appearance of conservation areas. These areas of special architectural or historical interest will be designated by the Minister for the Environment by Order under the Planning and Building (Jersey) Law 2002.

(i)     Christmas Bonus (Miscellaneous Amendments) (Jersey) Regulations 2023

        (R&O.113/2023—in force 4.12.2023)

These Regulations amend the Income Support (Special Payments) (Christmas Bonus) (Jersey) Regulations 2016 to increase the amount of Christmas bonus payable as a special payment under the Income Support (Jersey) Law 2007 from £84.87 in previous years to £114.19 from 2023. The Regulations also amend the Social Security (Christmas Bonus) (Jersey) Regulations 2016 to remove the requirement to set a bonus amount on an annual basis, and to remove a provision relating to the introduction of the Christmas bonus that is no longer required.

5. OTHER SUBORDINATE LEGISLATION OF NOTE

None during the period under review.

6. RULES OF COURT

None during the period under review.

BAILIWICK OF GUERNSEY

1 September–31 December 2023

1. GUERNSEY
2. LAWS APPROVED BY THE STATES OF DELIBERATION

(a)    Public Notaries (Bailiwick of Guernsey) Law, 2023

        (Billet d’État No XXI of 2023. Approved 15.12.23)

This Law puts on a statutory footing the power of the Master of the Faculties to regulate public notaries practising in Guernsey. The Master exercises this power by enacting rules.

    The rules may cover education, training, practice, conduct, discipline, record keeping, account keeping, the handling of client’s money, indemnification against losses arising in respect of civil liability, compensation for losses suffered by persons in respect of dishonesty on the part of a public notary or their employees, the payment of reasonable fees and appeals against decisions of the Court of the Faculties i.e. in proceedings arising out of such rules.

    Any such rules enacted by the Master must be laid before the States, and the States have the power to annul them.

    Section 1(1) enables the Master to regulate public notaries in Guernsey in a manner similar to how the Master would regulate public notaries in England and Wales. The power to amend this subsection by Ordinance at s 3 enables any future updates to the relevant legislation in England and Wales to be mirrored locally, if appropriate. The Policy and Resources Committee have a duty to consult Alderney and Sark, the Master and the Association of Guernsey Notaries Public when recommending amendments.

    Further provisions stipulate that the courts of the Bailiwick have exclusive jurisdiction over financial claims by the Master against a public notary (s 1(4)), and that the Royal Court has exclusive jurisdiction over any appeal from, and other proceedings arising from, proceedings brought before the Court of the Faculties.

2. ORDINANCES APPROVED BY THE STATES OF DELIBERATION

(a)    Social Insurance (Guernsey) Law (Amendment) Ordinance, 2023

        (Billet d’État No XIII of 2023. Approved 07.09.23)

This Ordinance amends s 39A of the Social Insurance (Guernsey) Law, 1978 (“the Law”) to widen existing powers of the Committee for Employment & Social Security (“the Committee”) to make arrangements to secure that insured persons take advantage of opportunities offered to facilitate a return to work and related grant making powers. The purpose of the amendments is to give the Committee the necessary powers to provide an Access to Work Scheme to fund certain reasonable adjustments, which remove disadvantages or barriers that prevent disabled persons from participating in employment, where the cost of the adjustments would otherwise be a disproportionate burden for employers.

    Section 1(4) adds a power for the Committee to make arrangements to secure that insured persons who have a disability are provided with aids, specified occupational health services, transport, assistance with transport costs or other support or assistance the object of which is to facilitate access to work for such persons. The amendments define access to work widely to cover entering, returning to or retaining employment or other gainful occupation (s 1(7)). Section 1(6) makes a related amendment to the grant power in s 39(3) of the Law to fund the provision of aids, specified occupational health services, transport, assistance with transport costs or other support or assistance.

    The Committee’s powers to make arrangements and grants in respect of aids, alterations or adaptations to the same or specified occupational health services, as defined in the Ordinance, will apply on commencement but their powers to make arrangements and grants in respect of transport, assistance with transport or other support or assistance not otherwise specifically mentioned, will take effect from a day appointed by regulations of the Committee.

    Amendments are also made to other parts of s 39A of the Law to widen regulation-making powers, amend headings and insert related definitions (which have been drafted to be consistent with relevant provisions of the Prevention of Discrimination (Guernsey) Ordinance, 2022). A consequential amendment is also made to the Sixth Schedule to the Law which lists all defined expressions.

(b)   Criminal Justice (Miscellaneous Amendments—Deferred Prosecution Agreements) (Bailiwick of Guernsey) Ordinance, 2023

        (Billet d’État No XIV of 2023. Approved 28.09.23)

This Ordinance amends the Administration of Justice (Bailiwick of Guernsey) Law, 1991 to insert two Schedules making provision in respect of deferred prosecution agreements (“DPAs”). It also makes minor consequential amendments to the Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Law, 1999 and the Drug Trafficking (Bailiwick of Guernsey) Law, 2000. It is based on statutory provisions in place in the United Kingdom.

    Under the Ordinance a DPA is a court sanctioned agreement between the defendant (“D”) and HM Procureur or a Crown Advocate acting on her behalf (“HMP”), whereby criminal proceedings against D are suspended in exchange for the imposition of specified requirements on D, such as a requirement to compensate victims. A DPA may only be entered into in respect of offences specified in inserted Schedule 2 to the Administration of Justice (Bailiwick of Guernsey) Law, 1991; the offences listed there are, in broad terms, offences of fraud, theft and other financial and economic crime offences.

    The Ordinance specifies what must be set out in a DPA, and provides for a two-stage process for the making of DPAs—a preliminary hearing in private on the proposed terms, and a final hearing to approve the agreed terms of the DPA at which, if the Court decides to approve, it must make a declaration in open court that the DPA is in the interests of justice and that its terms are fair, reasonable and proportionate, and give its reasons for so declaring. If HMP believes that D is in breach of a DPA, HMP must apply to the court, and if the court finds D in breach it may invite D and HMP to agree proposals to remedy the failure, or terminate the DPA.

    The Ordinance also sets out a process for varying a DPA, provides for the suspended criminal proceedings to be discontinued on the DPA’s expiry, and specifies circumstances in which the statement of facts in a DPA and other material created in the preparation of a DPA may be used against D in proceedings. Finally, the Ordinance requires HMP to prepare and publish a Code giving guidance on the relevant principles in determining whether a DPA is appropriate, the disclosure of information to D in the course of negotiations for a DPA, and any other relevant matter.

(c)   Sexual Offences (Transitional Provisions) (Bailiwick of Guernsey) Ordinance, 2023

        (Billet d’État No XIV of 2023. Approved 28.09.23)

This Ordinance makes transitional provision for the purposes of the Sexual Offences (Bailiwick of Guernsey) Law, 2020 (“the Law”).

    Where it cannot be proved beyond reasonable doubt that alleged criminal sexual conduct took place before or after commencement of the Law, a court cannot convict an accused person of an offence introduced by the Law or of an offence repealed by the Law, even though every other element of the offence is proved or admitted.

    The Ordinance therefore provides that an accused person who has committed criminal sexual conduct can be convicted by a court where the only matter which cannot be proved beyond reasonable doubt is the date on which that conduct took place. In that situation, the conviction would take place under the offence introduced by the Law (where the penalties for the current and repealed offences are the same) or under the offence with the lower penalty. The Ordinance does not introduce an offence which did not exist, or allow greater punishment than was permitted in law, at the time of the alleged criminal sexual conduct.

(d)    Excise Duties (Budget) Ordinance, 2023

        (Billet d’État No XVIII of 2023. Approved 23.11.23)

This Ordinance amends the Fourth Schedule to the Customs and Excise (General Provisions) (Bailiwick of Guernsey) Law, 1972 by amending the rates of excise duty.

(e)   Taxation of Real Property (Guernsey and Alderney) (Amendment) Ordinance, 2023

        (Billet d’État No XVIII of 2023. Approved 23.11.23)

This Ordinance amends Part I of Schedule 1 to the Taxation of Real Property (Guernsey and Alderney) Ordinance, 2007 by amending rates of property tax.

(f)     Social Insurance (Rates of Contributions and Benefits etc.) Ordinance, 2023

        (Billet d’État No XXI of 2023. Approved 14.12.23)

This Ordinance sets the percentage contribution rates of Class 1 to 3 social insurance contributions for 2024. The rates of contributions are increased by 0.1% for employers (to 6.9%), 0.2% for employees (to 7.2%), by 0.3% for self-employed people (to 11.9%) and non-employed persons under pension age (to 11.3%) and by 0.1% for non-employed persons over pension age (to 3.7%).

    It also sets the upper and lower income limits, amounts of contributions and the Class 3 income allowance and increases the amounts of contributory social insurance benefits as set out in the First Schedule. All limits and benefits are increased by 6.8% in line with the June, 2023 RPIX figure. The Ordinance also prescribes the percentages for the Guernsey Health Service Allocation and the Long-term Care Insurance Fund Allocation, with further adjustments to reflect the increases in contribution rates.

(g)    Long-term Care Insurance (Guernsey) (Rates) Ordinance, 2023

        (Billet d’État No XXI of 2023. Approved 14.12.23)

This Ordinance amends rates of long-term care benefit and the weekly contribution which a claimant must make, towards the cost of the claimant’s care, under the Long-term Care Insurance (Guernsey) Law, 2002, with effect from 1 January 2024. The long-term care benefit rates and the weekly contribution or co-payment from claimants are increased by 6.8% in line with the June 2023 RPIX figure.

(h)    Severe Disability and Carer’s Allowance Ordinance, 2023

        (Billet d’État No XXI of 2023. Approved 14.12.23)

This Ordinance amends the weekly rate of severe disability benefit and carer’s allowance and the annual income limits under the Severe Disability Benefit and Carer’s Allowance (Guernsey) Law, 1984 with effect from the 1 January 2024. The rates of severe disability benefit, the annual income limits and of carer’s allowance are increased by 6.8% in line with the annual rate of inflation (RPIX) for the year ending 30 June 2023.

(i)     Family Allowances Ordinance, 2023

        (Billet d’État No XXI of 2023. Approved 14.12.23)

This Ordinance amends the rate of family allowance under the Family Allowances (Guernsey) Law, 1950 with effect from 1 January 2024. On and from that date the rate will be £16.90 a week. The rate is increased by 6.8% in line with the annual rate of inflation (RPIX) for the year ending 30 June 2023.

(j)     Income Support (Implementation) (Amendment) (No2) Ordinance, 2023

        (Billet d’État No XXI of 2023. Approved 14.12.23)

This Ordinance amends the Income Support (Implementation) Ordinance, 1971 to substitute Tables 1 to 4 in the Appendix to the First Schedule to the 1971 Ordinance. It also amends para 6 of that First Schedule relating to rent.

    The effect of the amendments is to amend the short term and long-term requirement rates on which the calculation of income support is based, related rent allowances added in calculating a claimant’s requirements and the level of personal allowances for people in residential homes who are in receipt of income support (s 2 and s 3 and the Schedule). It also increases the limit of weekly income support payable for persons in residential and nursing homes.

    All rates, allowances and limits are increased by 6.8% in line with the annual rate of inflation (RPIX) for the year ending 30 June 2023.

(k)   Sanctions and Terrorist Asset Freezing (Bailiwick of Guernsey) (Amendment) Ordinance, 2023

        (Billet d’État No XXI of 2023. Approved 15.12.23)

This Ordinance amends the Sanctions (Bailiwick of Guernsey) Law, 2018 (“the Sanctions Law”) and the Terrorist Asset Freezing (Bailiwick of Guernsey) Law, 2011 (“the Terrorist Asset Freezing Law”).

    Section 1 amends the Sanctions Law in three respects. First, it makes provision for additional functions of the Policy & Resources Committee in respect of sanctions that have been implemented in the Bailiwick. The second is to introduce a power for the Policy & Resources Committee to amend the Sanctions Law by regulation in order to give effect to the FATF Recommendations. The third is to introduce a protection against civil liability for acts or omissions of persons acting in good faith for the purposes of complying with sanctions measures.

    Section 2 makes corresponding amendments to the Terrorist Asset Freezing Law.

    Sections 3, 4 and 5 deal respectively with extent, citation and commencement.

(l)     Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) (Amendment) (No 5) Ordinance, 2023

        (Billet d’État No XXI of 2023. Approved 15.12.23)

This Ordinance amends the Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Law, 1999 (“the Proceeds of Crime Law”).

    Section 1 amends the Proceeds of Crime Law in two respects. First, it clarifies the purposes for which Schedule 3 of the Proceeds of Crime Law can be amended by regulations of the Policy & Resources Committee. Second, it revises the process under which the States considers those regulations and other regulations amending other Schedules to the Proceeds of Crime Law.

    Sections 2, 3, and 4 deal respectively with extent, citation and commencement.

(m)   Income Tax (Guernsey) (Amendment) Ordinance, 2023

        (Billet d’État No XXI of 2023. Approved 15.12.23)

This Ordinance amends the Income Tax (Guernsey) Law 1975 and certain Ordinances made under that Law.

    Section 2 of the Ordinance amends the 1975 Law by exempting, from income tax payments made to private householders for accommodating officials/competitors/performers and other accredited persons participating in, or providing necessary support or ancillary services to, a large event, the events to be regarded as “large” being designated by a Statement of Practice issued by the Director of the Revenue Service.

    Section 3 increases the tax caps set out in para 1 of the Sixth Schedule for individuals resident in Guernsey from £150,000 and £300,000 to £160,000 and £320,000 respectively.

    Section 4 increases the tax cap set out in para 2 of the Sixth Schedule for individuals resident in Alderney in 2024 and 2025 from £50,000 to £65,000.

    Section 5(a) provides, for the purposes of the open market tax cap set out in para 3 of the Sixth Schedule, that where an individual pays a minimum of £50,000 in Document Duty (Anti-Avoidance) Duty on the purchase of 100% of the shareholding of a company that holds an open market property on Part A of the Open Market Register, that individual will be eligible for the cap provided that the conditions as to eligibility set out in the Sixth Schedule are also met.

    Section 5(b) increases the open market tax cap in para 3 of the Sixth Schedule from £50,000 to £60,000.

    Section 6 increases the annual exemption fee paid under the Income Tax (Exempt Bodies) (Guernsey) Ordinance, 1989 from £1,200 to £1,600.

3. REGULATIONS APPROVED BY THE STATES OF DELIBERATION

(a)   Prevention of Discrimination (Compensation) Regulations, 2023

        (Billet d’État No XIII of 2023. Approved 07.09.23)

(b)   Prevention of Discrimination (Animals) (Guernsey) Regulations, 2023

        (Billet d’État No XIV of 2023. Approved 28.09.23)

(c)   Prevention of Discrimination (Supported Employment) (Guernsey) Regulations, 2023

        (Billet d’État No XXI of 2023. Approved 14.12.23)

4. ORDINANCES, SUBORDINATE LEGISLATION ETC LAID BEFORE THE STATES OF DELIBERATION

(a)   Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) (Amendment) Ordinance, 2023 (Commencement) (Amendment) Regulations, 2023

(Billet d’État No XIII of 2023. Made by the Policy & Resources Committee—In force 27.06.23. Laid on 07.09.23)

(b)   Plant Health (Preserved EU law) (Amendment) (Guernsey) Regulations, 2023

(Billet d’État No XIII of 2023. Made by the Committee for Environment & Infrastructure—In force 05.06.23. Laid on 07.09.23)

(c)   Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) (Equivalent Jurisdictions) (Amendment) Regulations, 2023

(Billet d’État No XIV of 2023. Made by the Policy & Resources Committee—In force 25.08.23. Laid on 28.09.23)

(d)   Sanctions (Implementation of UK Regimes) (Bailiwick of Guernsey) (Brexit) (Amendment) (No 2) Regulations, 2023

(Billet d’État No XIV of 2023. Made by the Policy & Resources Committee—In force 17.07.23. Laid on 28.09.23)

(e)   Plant Health (Amendment of Transitional Provision) (Guernsey) Regulations, 2023

(Billet d’État No XIV of 2023. Made by the Committee for the Environment & Infrastructure—In force 30.06.23. Laid on 28.09.23)

(f)     Criminal Justice (International Co-operation) (Bailiwick of Guernsey) (Amendment) Ordinance, 2023 (Commencement) Regulations, 2023

(Billet d’État No XIV of 2023. Made by the Committee for Home Affairs—In force 14.08.23. Laid on 28.09.23)

(g)   Criminal Justice (Proceeds of Crime and Drug Trafficking) (Bailiwick of Guernsey) (Amendment) Ordinance, 2023 (Commencement) Regulations, 2023

(Billet d’État No XIV of 2023. Made by the Committee for Home Affairs—In force 14.08.23. Laid on 28.09.23)

(h)   Criminal Justice (Terrorism and Disclosure) (Bailiwick of Guernsey) (Amendment) Ordinance, 2023 (Commencement) Regulations, 2023

(Billet d’État No XIV of 2023. Made by the Committee for Home Affairs—In force 14.08.23. Laid on 28.09.23)

(i)     Extradition (Crown Dependencies) (Bailiwick of Guernsey) Ordinance, 2023 (Commencement) Regulations, 2023

(Billet d’État No XIV of 2023. Made by the Committee for Home Affairs—In force 14.08.23. Laid on 28.09.23)

(j)     Control of Poisonous Substances (Fees) (Guernsey) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Committee for Employ-ment & Social Security—In force 04.09.23. Laid on 15.12.23)

(k)    Health and Safety (Fees) Order, 2023

(Billet d’État No XXI of 2023. Made by the Committee for Employ-ment & Social Security—In force 04.09.23. Laid on 15.12.23)

(l)     Foundations (Guernsey) Law, 2012 (Amendment) Ordinance, 2023 (Commencement) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Committee for Economic Development—In force 12.09.23. Laid on 15.12.23)

(m)  Limited Liability Partnerships (Guernsey) Law, 2013 (Amend-ment) Ordinance, 2023 (Commencement) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Committee for Economic Development—In force 12.09.23. Laid on 15.12.23)

(n)   Foundations (Guernsey) Law, 2012 (Amendment—Record Keeping etc) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Committee for Economic Development—in force on 13.09.23 and 15.12.23. Laid on 15.12.23)

(o)   Limited Liability Partnerships (Guernsey) Law, 2013 (Amend-ment—Record Keeping etc) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Committee for Economic Development—in force on 13.09.23 and 15.12.23. Laid on 15.12.23)

(p)   Limited Partnerships (Guernsey) Law, 1995 (Amendment) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Committee for Economic Development—in force on 13.09.23 and 15.12.23. Laid on 15.12.23)

(q)   Companies (Registrar) (Fees and Penalties) (Amendment) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Registrar of Companies—in force on 13.10.23 and 15.12.23. Laid on 15.12.23)

(r)     Foundations (Registrar) (Civil Penalties) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Registrar of Foundations—in force on 13.09.23, 13.10.23 and 15.12.23. Laid on 15.12.23)

(s)     Limited Liability Partnerships (Registrar) (Fees and Penalties) (Amendment) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Registrar of Limited Liability Partnerships—in force on 13.09.23, 13.10.23 and 15.12.23. Laid on 15.12.23)

(t)     Limited Partnership (Registrar) (Civil Penalties) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Registrar of Companies—in force on 13.09.23 and 15.12.23. Laid on 15.12.23)

(u)   Trading Standards (Fair Trading) (Guernsey) Ordinance, 2023 (Commencement) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Committee for Home Affairs—In force 04.09.23. Laid on 15.12.23)

(v)   Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) (Amendment) (No 4) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Policy & Resources Committee—In force 03.10.23. Laid on 15.12.23)          

(w)  Social Insurance (Access to Work for Disabled Persons) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Committee for Employ-ment & Social Security—In force 04.10.23. Laid on 15.12.23)

(x)   Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) (Amendment) (No 3) Ordinance, 2023 (Commencement) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Policy & Resources Committee—In force 11.10.23. Laid on 15.12.23)

(y)   Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) (Amendment) (No 4) Ordinance, 2023 (Commencement) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Policy & Resources Committee—In force 10.10.23. Laid on 15.12.23)

(z)   Beneficial Ownership of Legal Persons (Guernsey) (Amendment) Law, 2023 (Commencement) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Committee for Economic Development—In force 16.10.23. Laid on 15.12.23)

(aa)  Foundations (Guernsey) (Amendment) Law, 2023 (Amendment and Commencement) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Committee for Economic Development—In force 16.10.23. Laid on 15.12.23)

(bb) Limited Liability Partnerships (Guernsey) Law, 2013 (Amendment—Record Keeping etc.) (No 2) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Committee for Economic Development—In force 17.10.23. Laid on 15.12.23)

(cc)  Limited Partnerships (Guernsey) (Amendment) Law, 2023 (Amendment and Commencement) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Committee for Economic Development—In force 16.10.23. Laid on 15.12.23)

(dd) Secondary Pensions (Guernsey and Alderney) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Committee for Employ-ment & Social Security—In force 16.10.23. Laid on 15.12.23)

(ee)  Companies (Registrar) (Fees and Penalties) (Amendment) (No 2) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Registrar of Companies—In force 17.10.23. Laid on 15.12.23)

(ff)   Foundations (Registrar) (Civil Penalties) (Amendment) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Registrar of Foundations—In force 18.10.23. Laid on 15.12.23)

(gg) Limited Liability Partnerships (Registrar) (Fees and Penalties) (Amendment) (No 2) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Registrar of Limited Liability Partnerships—In force 18.10.23. Laid on 15.12.23)

(hh) Limited Partnerships (Registrar) (Civil Penalties) (Amendment) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Registrar of Companies—In force 18.10.23. Laid on 15.12.23)

(ii)   Guernsey Finance LBG (Levy) (Guernsey) (Amendment) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Committee for Economic Development—In force 01.01.24. Laid on 15.12.23)

(jj)   Wastewater Charges (Guernsey) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the States’ Trading Supervisory Board—In force 01.01.24. Laid on 15.12.23)

(kk)  Water Charges (Amendment) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the States’ Trading Supervisory Board—In force 01.01.24. Laid on 15.12.23)

(ll)   Waste Disposal and Recovery Charges Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Waste Disposal Authority—In force 01.01.24. Laid on 15.12.23)

(mm) Waste Management Services (Charging) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Waste Disposal Authority—In force 01.01.24. Laid on 15.12.23)

(nn)  Airport Fees (Guernsey and Alderney) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the States’ Trading Supervisory Board—In force 01.04.24. Laid on 15.12.23)

(oo) Harbour Dues and Facilities Charges (Guernsey) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the States’ Trading Supervisory Board—In force 01.01.24. Laid on 15.12.23)

(pp)  Mooring Charges (Guernsey) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the States’ Trading Supervisory Board—In force 01.04.24. Laid on 15.12.23)

(qq)  Pilotage Dues (Guernsey) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the States’ Trading Supervisory Board—In force 01.01.24. Laid on 15.12.23)

(rr)   Parochial Elections (Cemetery Committee) (St Sampson) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the States’ Assembly & Constitution Committee—In force 31.10.23. Laid on 15.12.23)

(ss)  Parochial Elections (School Committees and Cemetery Committee) (Forest) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the States’ Assembly & Constitution Committee—In force 31.10.23. Laid on 15.12.23)

(tt)   Parochial Elections) (St Martin) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the States’ Assembly & Constitution Committee—In force 31.10.23. Laid on 15.12.23)

(uu) Employment and Discrimination Tribunal (Amendment) (Guernsey) Order, 2023

(Billet d’État No XXI of 2023. Made by the Committee for Employment & Social Security—In force 01.11.23. Laid on 15.12.23)

(vv) Companies (Recognition of Auditors) (Amendment) Regulations, 2023

(Billet d’État No XXI of 2023. Made by the Committee for Economic Development—In force 01.01.24. Laid on 15.12.23)

5. LAWS, ORDERS IN COUNCIL, ETC REGISTERED IN THE ROYAL COURT OF GUERNSEY

(a)    Secondary Pensions (Guernsey and Alderney) Law, 2022

(Billet d’État No XX of 2022—registered 04.09.23. In force in Guernsey, Herm and Jethou on 04.09.23 and in force in Alderney on a day prescribed by Regulations)

(b)   Beneficial Ownership of Legal Persons (Guernsey) (Amendment) Law, 2023

(Billet d’État No XII of 2023—registered 16.10.23. In force on a day appointed by Regulations)

(c)    Foundations (Guernsey) (Amendment) Law, 2023

(Billet d’État No XII of 2023—registered 16.10.23. In force on a day appointed by Regulations)

(d)    Limited Partnerships (Guernsey) (Amendment) Law, 2023

(Billet d’État No XII of 2023—registered 16.10.23. In force on a day appointed by Regulations)

(e)   Royal Court (Reform) (Guernsey) Law, 2008 (Amendment) Law, 2023

        (Billet d’État No X of 2023—registered 16.10.23. In force 16.10.23)

(f)     Forfeiture of Assets in Civil Proceedings (Bailiwick of Guernsey) Law, 2023

(Billet d’État No XII of 2023—registered 16.10.23. In force on a day appointed by Regulations)

(g)   Prevention of Corruption (Bailiwick of Guernsey) (Amendment) Law, 2023

(Billet d’État No X of 2023—registered 16.10.23. In force on a day appointed by Ordinance)

(h)    Reform (Sark) (Amendment) Law, 2023

(Billet d’État 19.04.23—registered 16.10.23. In force on the date of its registration on the records of the Island of Sark)

(i)     Companies (Alderney) (Amendment) Law, 2023

(Alderney Billet d’État 26.07.23—registered 17.11.23. In force on a day appointed by Regulations)

(j)     Beneficial Ownership of Legal Persons (Alderney) (Amendment) Law, 2023

(Alderney Billet d’État 26.07.23—registered 17.11.23. In force on a day appointed by Regulations)

6. SARK ORDINANCES CONSIDERED BY THE ROYAL COURT UNDER s 39(1) OF THE REFORM (SARK) LAW 2008

(a)   Reform (Election of Conseillers) (By-Election) (Sark) Ordinance, 2023

        (In force 05.07.23—placed before the Private Court on 08.12.23)

(b)    Direct Taxes (Sark) (Amendment) Ordinance, 2023

        (In force 05.07.23—placed before the Private Court on 08.12.23)

(c)   Noxious Weeds and Invasive Plants (Sark) (Amendment) Ordinance, 2023

        (In force 01.08.23—placed before the Private Court on 08.12.23)

7. RULES OF COURT

(a)    Royal Court (Costs and Fees) (Amendment) Rules, 2023

        (Made 11.12.23. In force 01.01.24).

        These Rules amend the Royal Court (Costs and Fees) Rules, 2012

(b)    Magistrate’s Court (Fees) (Amendment) Rules, 2023

        (Made 11.12.23. In force 01.01.24)

        These Rules amend the Magistrate’s Court (Fees) Rules, 1981.

(c)   Capacity (Lasting Powers of Attorney) (Appeals, etc.) (Amendment) Rules, 2023

        (Made 11.12.23. In force 01.01.24)

These Rules amend the Capacity (Lasting Powers of Attorney) (Appeals, etc.) Rules, 2022.

1. ALDERNEY
2. LAWS APPROVED BY THE STATES OF ALDERNEY

None during the period under review.

2. ORDINANCES APPROVED BY THE STATES OF ALDERNEY

(a)   Building and Development Control (Alderney) (Amendment) Ordinance, 2023

        (Approved 13.09.23—in force 13.09.23)

(b)   Traffic Offences (Fixed Penalties) (Amendment) (Alderney) Ordinance, 2023

        (Approved 11.10.23—in force 01.11.23)

(c)    Alderney Property Tax (Amendment) Ordinance, 2023

        (Approved 15.11.23—in force 01.01.24)

(d)    States Water Supply (Rates of Charge) (Alderney) Ordinance, 2023

        (Approved 15.11.23—in force 26.12.23)

(e)    Document Duty (Alderney) (Amendment) Ordinance, 2023

        (Approved 15.11.23—in force 01.01.24)

(f)    Duty on Long Leases (Variation of Rate) (Alderney) Ordinance, 2023

        (Approved 15.11.23—in force 01.01.24)

(g)   Duty on Share Transfers (Variation of Rate) (Alderney) Ordinance, 2023

        (Approved 15.11.23—in force 01.01.24)

(h)   Companies (Alderney) Law, 1994 (Amendment—Annual Returns) Ordinance, 2023

(Approved 15.11.23—in force on a date to be appointed by Regulations)

3. REGULATIONS LAID BEFORE THE STATES OF ALDERNEY

None during the period under review.

1. SARK
2. LAWS APPROVED BY THE CHIEF PLEAS OF SARK

None during the period under review.

2. ORDINANCES APPROVED BY THE CHIEF PLEAS OF SARK

(a)    Financial Provisions (Variation of Rates) (Sark) Ordinance,                        2023

        (Approved 04.10.23—in force 04.10.23)

(b)   Direct Taxes for 2024 (Sark) Ordinance, 2023

        (Approved 22.11.23 – in force 22.11.23)

(c)   Real Property (Transfer Tax, Charging and Related Provisions) (Sark) Law, 2007 (Amendment) Ordinance, 2023

        (Approved 22.11.23—in force 01.01.24)

(d)   Financial Provisions (Variation of Rates) (Sark) (No 2) Ordinance, 2023

        (Approved 22.11.23—in force 01.01.24)

3. ORDINANCE LAID BEFORE THE CHIEF PLEAS OF SARK

None during the period under review.

4. REGULATIONS LAID BEFORE THE CHIEF PLEAS OF SARK

None during the period under review.