In this section you can find details on a selection of projects that have been completed by the Commission.
Topic commissioner: Andrew Le Sueur (whose term of office as a member of the Jersey Law Commission expired in October 2018)
Topic practitioner: a team from UKAJI, based at the University of Essex, supported this project – Margaret Doyle and Varda Bondy.
DEVELOPING PROPOSALS FOR AN OMBUDSMAN
In October 2017, our report Improving Administrative Redress in Jersey recommended that further research be carried out with a view to establishing a public services ombudsman in Jersey responsible for resolving grievances about administrative decisions (in place of the current States of Jersey Complaints Panel). On 22 March 2018, the States Assembly voted in favour of a Proposition that “that the recommendations from the Clothier Report on the Machinery of Government in Jersey and the Jersey Law Commission that ‘An Ombudsman should be appointed to hear and determine complaints of maladministration’ should be progressed as a matter of priority”, subject to findings of research. The Jersey Law Commission carried out that research in conjunction with the members of the UK Administrative Justice Institute (UKAJI) based at the University of Essex with funding from the Economic and Social Research Council. Then final report was published on 5 November 2018.
IMPROVING ADMINISTRATIVE REDRESS
Topic commissioner: Andrew Le Sueur
Topic practitioner: Andrew Le Sueur
In October 2017, we published a report Improving Administrative Redress in Jersey. This contained wide-ranging recommendations about the administrative redress system, including internal complaint handling, tribunals, the States of Jersey Complaints Panel, the role of the Royal Court, and alternative dispute resolution. The Chief Minister presented a report to the States Assembly on 2 January 2018 setting out his initial response. He welcomed the Law Commission’s report, describing it as “an important and substantial piece of work which aims to contribute to the wider project of building trust and confidence in the processes for complaining about public administration”. The Chief Minister’s report sets out a timetable for detailed consideration of the proposals. In March 2018, we began a follow-on project on developing a model for a public services ombudsman in Jersey.
Topic commissioner: Clive Chaplin
Topic practitioner: Advocate Barbara Corbett
Every year, about 240 couples get divorced in Jersey. We are considering how Jersey divorce law may need to be reformed to better reflect the needs of everybody affected. The issues being considered include
whether Jersey should adopt a ‘no fault’ approach to the grounds of divorce
whether the rule that the parties have been married for more than 3 years should be retained
whether the law could do more to encourage couples to reconcile.
We published a consultation report (click here [2015 Divorce Law]) in December 2014; the formal consultation period ended on 31 March 2015. As part of the consultation process, we held a lunchtime seminar on 9 April 2015, including a question and answer session. The final report was published in October 2015 (click here: 2015 Topic Report on Divorce).
In December 2002, we published a consultation paper [2002 Jersey Law of Contract] identifying the problems of Jersey contract law and reviewing the pros and cons of three general solutions:
incorporation of English contract law by legislation
and a suggestion that the Jersey courts could perhaps be more consistent and true to the origins of Jersey contract law.
In February 2004, our topic report [2004 Topic report on the Law of Contract] recommended that a statutory framework be adopted for the Jersey law of contract and that the Indian Contract Act of 1872 be used as a model, incorporating where necessary those aspects of our existing law which are peculiar to Jersey as opposed to England and which are found to be worthy of retention.
The Law Commission’s report was a significant contribution to the debate among legal practitioners, judges and academic about the future direction of Jersey contract law. The debate has continued, including at a conference organised by the Institute of Law in October 2010. For contributions to that debate since the Law Commission’s report, see here (Advocate Timothy Hanson, Jersey), here (Professor Rosalie Jukier, McGill University, Montreal, Canada), and here (Lord Hope, UK Supreme Court).
In October 2015, we were made aware of the following and will be attending the event:
"Presentation on the current and future position of the Jersey Law of Contract and the opportunities presented by a Restatement
The Institute of Law in conjunction with the Government of Jersey is seeking to examine the current and future position of the Jersey Law of Contract and to particularly examine what opportunities a re-statement of the Jersey Law of Contract could present for Jersey. A presentation, discussion panel and question and answer session has been arranged from 5-7pm on Wednesday 11 November 2015 and is open to all interested parties. A panel of academics, practitioners and other relevant parties will be involved in a discussion panel concerning the future of any project examining the Jersey Law of Contract and participants are encouraged to actively participate in an open floor discussion. The event will be followed by a drinks reception so that attendees can discuss the topic in a more informal manner. There will be no charge for attendance at the event."
Voisinage is a mutual duty under customary law between neighbours not to use their properties in such a way as to cause damage to each other. In July 2010, we published a consultation paper [2010 Voisinage], followed by a final topic report in October 2011 [2011 Topic report on voisinage]. We concluded that the courts in Jersey had done a good job of evolving voisinage as a concept and that the courts – rather than legislation – were better placed to adopt remedies to meet the changing needs of society in this area of law.
BANKRUPTCY (DÉSASTRE) (JERSEY) LAW 1990 (‘SOCIAL DÉSASTRE’)
In April 2010, we published a consultation paper on the Bankruptcy (Désastre) (Jersey) Law 1990 [2010 Bankruptcy (Désastre) (Jersey) Law 1990 (Social Désastre)] followed by a topic report in March 2011 [2011 Topic report on Bankruptcy (Désastre) (Jersey) Law 1990 Social Désastre]. This report raised the possibility of introducing a new form of bankruptcy that conferred a wider discretion to make orders for bankruptcy, a discretion that would enable the court to consider “not only the economic but also the social implications of the case” and whereby “such implications could include not only the prejudice caused to debtors who find themselves in a never ending cycle of debt with no reasonable prospect of payment [but] also the genuine concern of society to ensure that all individuals take debts seriously.
In 2011, the Chief Minister welcomed the Law Commission’s proposals and on 23 January 2013, the Council of Ministers published a consultation paper building on these proposals.
CORROBORATION OF EVIDENCE IN CRIMINAL TRIALS
In politically controversial circumstances, the Law Commission was asked by the Chief Minister to give urgent consideration to whether or not the current practice of requiring the trial judge to warn the jury, in cases involving sexual offences, of the need to look for corroboration of the evidence of the complainant should be abolished or altered. In December 2008, we published a consultation paper [2008 Corroboration of Evidence in Criminal Trials]. Six responses were received, all broadly supportive of our proposal that the corroboration warning be abolished. In our topic report published in May 2009, we recommended that the present obligation to give a corroboration warning should be abolished in all cases [2009 Topic report on corroboration of evidence in criminal trials]. The Law Commission’s recommendations were implemented in the Criminal Justice (Miscellaneous Provisions) (No. 3) (Jersey) Law 2012.
LAW OF PARTNERSHIPS
In May 2008, the Law Commission published a consultation paper on the Jersey Law of Partnership [2008 Law of Partnership]. Work on this matter was subsequently taken up by the Chief Minister’s Department, to which the Law Commission passed on comments.
SECURITY ON IMMOVABLE PROPERTY
In May 2006, we published a consultation paper on security over immovable property, which received comments from only two people [2006 Security on Immovable Property]. In the topic report in March 2008 in which we said
“After conducting a comparative historical review of the English common law mortgage and the civil law system of hypothecation, the Commission is in no doubt that hypothecation should continue to be the method of obtaining security on immoveable property in Jersey. However, there are many aspects of existing Jersey law in this area that need clarifying, codifying and updating to meet present-day requirements” [2008 Topic report on law of security on immovable property].
A major reform of the law was achieved by the Security Interests (Jersey) Law 2012.
LAW OF CHARITIES
In January 2004, we published a consultation paper [2004 Jersey Law of Charities] on the Law of Charities, which received numerous comments and suggestions. Having determined to publish a second consultation paper to deal with the responses, we were overtaken by events. Our suggestions on cy-près were incorporated into the Trusts (Jersey) Law 1982, the Trusts (Amendment No. 4)(Jersey) Law 2006 and the Non Profit Organisations (Jersey) Law Law 2008. We published a further report on the Law of Charities in March 2009 [2009 Topic report on Jersey law of charities]. Introducing the Draft Charities (Jersey) Law 200- (P.108/2014) to the States of Jersey Assembly on 3 June 2014, the Chief Minister stated
The draft Law has a long genesis. In 2004, and again in 2009, the Jersey Law Commission recommended the establishment of a charities regulator and the development of a charities law, to include a public benefit test, stating that – “Current provisions are seen as insufficient and outdated… it is crucial that effective provisions are in place to adequately regulate, monitor and protect those bodies plus the public that supports them”. In 2008, the States Assembly voted overwhelmingly in favour of a proposition (P.28/2008) calling for an investigation into the feasibility of establishing a Jersey Charities Commission and associated regulation.
The Charities (Jersey) Law 2014 now provides a new framework for charities in the island.
LAW OF REAL PROPERTY
In September 2002 our consultation paper on the Jersey Law of Real Property evoked considerable interest [2002 Jersey Law of Real Property]. We published a topic report in October 2004, which was submitted to the Legislation Committee. Following comments from the Committee, we considered two further topics: (a) the grant of probate to executors in respect of Jersey immoveable property and (b) the prohibition of trusts of Jersey immoveable property. In 2006 we published a consultation paper on the prohibition of trusts of Jersey immoveable property, saying “we find the case for abolition overwhelming” [2006 The Prohibition on Trusts Applying Directly to Jersey Immovable Property]
LAW OF TUTELLES
In July 2002, we published a topic report on the Law of tutelles [2002 The law of Tutelles]:
The Commission proposes that a complete overhaul of the law of tutelles is required and that, as there is essentially no difference between the role of a curator in respect of a person under a curatelle and that of tuteur in respect of a minor under a tutelle, the 1862 law should be repealed and legislation similar to that proposed in Part VIII of the draft Mental Health Law be enacted.
BEST EVIDENCE RULE IN CIVIL PROCEEDINGS
In October 1999 we published a consultation paper [1999 Best evidence rule in civil proceedings]. Four responses were received, generally favourable to our proposals. A topic report was published in September 2000 [2002 Topic report on best evidence rule in civil proceedings]. We recommended that, as far as possible Jersey should adopt legislation equivalent to the Civil Evidence Act 1995 of England and Wales, with suitable amendments to reflect the differences between the jurisdictions. The Legislation Committee accepted our proposals and they were implemented by the Civil Evidence (Jersey) Law 2003.
In November 1998, we published a consultation paper on dégrèvement and its relationship to the Bankruptcy (Désastre) (Jersey) Law 1990 [1998 Dégrèvement]. Although there was a large demand for copies, we received very few letters in response. We therefore concluded that most people agreed with our proposals. Those who did respond, however, made very valuable suggestions. In October 1999, we published a Topic report [1999 Topic report on Dégrèvement] recommending that dégrèvement be abolished.
RIGHTS OF BENEFICIARIES TO INFORMATION REGARDING A TRUST
In February 1998, we published a consultation paper [1998 Rights of Beneficiaries to Information Regarding a Trust] on the rights of beneficiaries to information regarding a trust followed by topic report in October1998 [1998 Topic report on Rights of Beneficiaries to Information Regarding a Trust] recommending amendments to the article 25 of the Trusts (Jersey) Law 1984.