Tenth Annual Report of the Jersey Law Commission.

Information about the publication of Ministerial Decisions

A formal published “Ministerial Decision” is required as a record of the decision of a Minister (or an Assistant Minister where they have delegated authority) as they exercise their responsibilities and powers.

Ministers are elected by the States Assembly and have legal responsibilities and powers as “corporation sole” under the States of Jersey Law 2005 by virtue of their office and in their areas of responsibility, including entering into agreements, and under any legislation conferring on them powers.

An accurate record of “Ministerial Decisions” is vital to effective governance, including:

demonstrating that good governance, and clear lines of accountability and authority, are in place around decisions-making – including the reasons and basis on which a decision is made, and the action required to implement a decision
providing a record of decisions and actions that will be available for examination by States Members, and Panels and Committees of the States Assembly; the public, organisations, and the media; and as a historical record and point of reference for the conduct of public affairs

Ministers are individually accountable to the States Assembly, including for the actions of the departments and agencies which discharge their responsibilities.

The Freedom of Information Law (Jersey) Law 2011 is used as a guide when determining what information is be published. While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.

A decision made (12/09/2007) regarding: Tenth Annual Report of the Jersey Law Commission.

Decision Reference: MD-C-2007-0052
Decision Summary Title :	L:\M O G R\Chief Minister\Ministerial decisions\Law Commission 2006 report 30.08.2007.doc		Date of Decision Summary:	10th September 2007
Decision Summary Author:	M. Cavey Project and Research Officer		Decision Summary: Public or Exempt? (State clauses from Code of Practice booklet)	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:	-
Written Report Title :	Jersey Law Commission: Report for 2006		Date of Written Report:	8th June, 2007
Written Report Author:	Jersey Law Commission		Written Report : Public or Exempt? (State clauses from Code of Practice booklet)	Public
Subject: Tenth Annual Report of the Jersey Law Commission
Decision(s): The Chief Minister noted the Jersey Law Commission’s Annual Report for 2006 and agreed that it should be laid before the States Assembly.
Reason(s) for Decision: In 1996 the States approved a proposition to establish The Jersey Law Commission. Pursuant to the proposition, the Commission has forwarded its annual Report for presentation to the States.
Resource Implications: None.
Action required: Request the Greffier of the States to ensure that the Report is laid before the States Assembly at the earliest opportunity
Signature:		Position: Chief Minister
Date Signed:		Date of Decision (If different from Date Signed):

Tenth Annual Report of the Jersey Law Commission.

STATES OF JERSEY

JERSEY LAW COMMISSION: REPORT FOR 2006

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Presented to the States

by the Chief Minister

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STATES GREFFE

REPORT

The Jersey Law Commission

The Jersey Law Commission was set up by a Proposition laid before the States of Jersey and approved by the States Assembly on 30 July 1996.

The Commissioners are: Mr David Lyons, Chairman, English Solicitor

Advocate Alan Binnington

Mr Clive Chaplin, Solicitor

Advocate Kerry Lawrence

Advocate John Kelleher

Mr Peter Hargreaves, Chartered Accountant

The Secretary is: Ms Elaine McGoogan

The address of the Jersey Law Commission is Whiteley Chambers, Don Street, St Helier, Jersey, JE4 9WG

Contents of this Report

Foreword by the Chairman

PART I The Tenth Year

PART II Topic Reports and other issues considered by the Commission

II.i The Rights of Beneficiaries to Information Regarding a Trust

II.ii The Best Evidence Rule

II.iii The Jersey Law of Real Property

II.iv Dobson v Public Services Committee of the States of Jersey

II.v Jersey Rules of Légitime

II.vi The Law of Tutelles

II.vii The Law of Contracts

II.viii The Jersey Law of Partnership

II.ix The Law of Charities

II.x The Law on Security

II.xi Prescription and Limitation

II.xii Trusts of Jersey Immovable Property

II.xiii Executors obtaining Probate in respect of Jersey Immovable Property

PART III The cost of the Commission

PART IV Budgets

IV.i Budget for 2007

PART V Commissioners

PART VI General

APPENDIX A The rôle of the Commission

APPENDIX B The Commission’s working method

The Jersey Law Commission Tenth Annual Report 2006

To the Chief Minister of the States of Jersey

I have the honour to present to you, on behalf of the Jersey Law Commission, pursuant to the Proposition to establish the Commission approved by the States on 30 July 1996, our Tenth Annual Report covering the activities of the Commission in the calendar year 2006.

Signed

David Lyons, Chairman

PART I – The Tenth Year

Ten meetings were held during the year.

PART II – Topic Reports and other issues considered by the Commission

II.i Topic 1 - The Rights of Beneficiaries to Information Regarding a Trust

Topic Commissioner: Advocate Keith Baker

Topic Practitioner: Mr Stuart Bridge

The Commission understands that the Topic Report on the Rights of Beneficiaries to information regarding a Trust was forwarded to the Finance and Economics Committee for consideration and comments. The Commission therefore waits to hear whether this Topic will progress to legislation in due course.

II.ii Topic 4 – The Best Evidence Rule

Topic Commissioners: Jurat Donald Le Boutillier, Mr David Lyons

Topic Practitioner: Advocate Anthony Dessain

The Final Topic Report was produced and presented to the Legislation Committee on 26 January 2001. The recommendations contained therein were approved by the States of Jersey and have been passed to the States Law Draftsman to progress to legislation.

II.iii Topic 6 – The Jersey Law of Real Property

Topic Commissioner: Mr David Moon, Solicitor

Topic Practitioner: Advocates Helen Boléat, James Lawrence and Andrew Bridgeford

The Commission issued a Consultation Paper on this topic in September 2002. It evoked considerable interest and comment which the Commission evaluated in preparing its Report. This Report was submitted to the Legislation Committee in October 2004 and following comments from the Committee the Commission is taking two further topics for consideration (a) the grant of probate to executors in respect of Jersey immovable property and (b) the prohibition on trusts of Jersey situs immovable property.

II.iv Topic 7 - Dobson v Public Services Committee of the States of Jersey

Advocate Lawrence wrote to the Legislation Committee setting out the views of the Commission, which was that the law as it stands is clear, and so not in need of revision for clarification purposes. However, the Court judgment had suggested the time may have come for the law to change for public policy reasons. As this would be a political decision, it was considered appropriate for the relevant States Committee to consider the issue, and then, if change were called for, the Law Commission may be able to assist by way of a review of the scope of changes elsewhere.

II.v Topic 8 – Jersey Rules of Légitime

Topic Commissioner: Mr David Lyons

Topic Practitioner: Advocate Keith Dixon

The Commission submitted comments to the Legislation Committee in response to the Legislation Committee’s Consultation Document R.C.3/2001 on Succession Rights, which had been presented by the Legislation Committee to the States on 2 January 2001. No further work is required to be done by the Commission until instruction has been received from the Legislation Committee.

II.vi Topic 9 – The Law on Tutelles

Topic Commissioner: Mr Clive Chaplin

Topic Practitioner: Advocates Marion Whittaker and Rose Colley

The Commission’s Report of July 2002 on this Topic was laid before the States by the Legislation Committee and approved by the States on 10 September 2002. Its recommendations are now with the Law Draftsman for implementation in a new statute.

II.vii Topic 10 – The Law of Contracts

Topic Commissioner: Advocate Alan Binnington

Topic Practitioner: Advocate John Kelleher

A Consultation Paper on this Topic was issued in October 2002. The Commission’s Report was issued in February 2004 and the Commission is awaiting further information in relation to its implementation. In order to progress matters, the Commission has asked Advocates Binnington and Kelleher to prepare a draft Code in line with the proposals in its report. Although preliminary meetings have been held and a modus operandi agreed, drafting has not yet commenced.

II.viii Topic 11 - The Jersey Law of Partnership

Topic Commissioner: Advocate Kerry Lawrence

Topic Practitioner: Michael Heywood of Counsel

Following preliminary research by Advocate Lawrence the Commission felt that real progress would only be made on this extensive topic if Counsel were employed to undertake the necessary research. Advocate Lawrence has now completed the research and has commenced the drafting of the Consultation Paper.

II.ix Topic 12 – The Law of Charities

Topic Commissioner: Mr Clive Chaplin

Topic Practitioner: Advocate Philip Le Cornu

A Consultation Paper was issued in January 2004 and numerous comments and suggestions were received. Having considered and debated the comments, the Commission determined to issue a second Consultation Paper. Extensive work and consultation on this topic took place in 2005. The Second Consultation Paper was issued in November 2006 and comments invited.

II.x Topic 13 - The Law on Security

Topic Commissioner: Mr David Lyons

Topic Practitioners: Mr Chris Renouf, Solicitor, Mr Peter Luce, Solicitor and Mr Peter Bisson

Arising from a request of the Jersey Financial Services Commission to review a consultation document by the Company Law Review Steering Group in relation to the registration of company charges, the Commission decided to review security interests and charges over property in general. Commissioners John Wheeler and David Lyons undertook preliminary research as a result of which the Commission decided to consider Security as a new Topic.

A Consultation Paper was published in May 2006 and following comments, work is now proceeding on the Commission’s Report.

II.xi Topic 14 - Prescription and Limitation

Topic Commissioner: Advocate Alan Binnington

Topic Practitioner: Advocate Tim Hanson

Extensive preliminary research has been undertaken and was analysed by the Topic Practitioner. Unfortunately, due to work pressure, an alternative Topic Practitioner is being recruited to complete the work on this topic.

II.xii Topic 15 - Trusts of Jersey Immovable Property

Mr Peter Hargreaves produced a preliminary paper on this subject, followed by a Consultation Paper which was issued in October 2006.

II.xiii Topic 16 - Executors and Immovable Property

This Topic has not proceeded

PART III – The Cost of the Commission

III.i The Commission’s resources are made available by the States of Jersey through the office of the Chief Minister, based on budgets submitted by the Commission.

III.ii The Commission spent a total of £11,643 in 2006 from a budget of £32,600.

PART IV – Budget

IV.i Budget for 2007

The Legislation Committee set the Commission’s budget for 2007 at £34,000.

PART V – Commissioners

There were no new Commissioners appointed in 2006.

PART VI - General

The Commission looks forward to working with the Chief Minister through the Legislation Advisory Panel.

Signed

David Lyons, Chairman

Clive Chaplin

Alan Binnington

Kerry Lawrence

Peter Hargreaves

John Kelleher

APPENDIX A

The rôle of the Commission

The Commission is a body established by the States of Jersey. Although the Commission works in close consultation with the Legislation Committee, which also organised its funding and acts as its channel of communication with the States, it is an independent body which reports will be made available, unaltered, to the public.

The rôle of the Commission is defined in its terms of reference, which are set out as follows in the proposition establishing it:

It shall be the duty of the Commission to identify aspects of Jersey law which it considers should be examined with a view to their development and reform, including in particular the elimination of anomalies, the repeal of obsolete and unnecessary enactments, the reduction of the number of separate enactments and generally the simplification and modernisation of the law, and to those ends:

to receive and consider any proposals for the reform of the law which may be made or referred to them;
to prepare and submit to the Legislation Committee from time to time programmes for the examination of different branches of the law with a view to reform; and
to undertake, pursuant to any such recommendations approved by the Legislation Committee, the examination of particular branches of the law, such consultation thereon as the Commission shall think fit, and the formulation by means of draft bills or otherwise of proposals for such reform.

APPENDIX B

Upon accepting a topic for review the Commission appoints one of its members to act as the Topic Commissioner to conduct and co-ordinate all of the Commission’s work on that topic. On his recommendation the Commission seeks to appoint a Jersey lawyer currently practising in that field as Topic Practitioner to assist him generally and to ensure that the Commission’s work remains relevant to the issues actually arising in day-to-day practice. The Topic Commissioner is not paid by the Commission and in practice the Topic Practitioner has not asked for payment, although payment has been made in some cases where necessary. Any necessary legal research will usually be carried out by others: either by professional researchers under contract or by experts willing to give their time as a public service.

The procedure for the review of each topic will commonly fall into the following steps:

finding out whether there is a problem, and if there is, defining exactly what it is;
researching and summarising the existing law relevant to the topic;
suggesting how the relevant law might be changed to solve the problem;
preparing and publishing a consultative document based on items 1, 2 and 3;
receiving and discussing representations made in response to the consultative document;
preparing and publishing a final report culminating in either a detailed brief for the Law Draftsman or in a draft law prepared in consultation with the Law Draftsman.

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