STATES OF JERSEY
JERSEY LAW COMMISSION: REPORT FOR 2006
-----------------------------------------------------------------------------
Presented to the States
by the Chief Minister
-----------------------------------------------------------------------------
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.
BTLG-11375807-1