News and Insights
28 September 2016
We live in an increasingly complex society, where the laws that govern us appear to play more and more a part in our lives. Jersey is not protected from this trend. Nor indeed should it be.
Unless the Island keeps pace with international pressures and demands to improve and adapt its legislation, our image as a centre of financial excellence and stability will be damaged. This will ultimately affect all of us.
Politicians making political decisions make policies and legislation is the means of carrying out these policies in order to allow them to have the force of law. It is an essential method of dispatching public business and therefore it is politically important. One of the hallmarks of excellence and strength in any society is its ability to turn political policies into clear expressions of law.
Legislation is not only important to allow Jersey to continue to develop as a finance centre of excellence, but legislation that is well drafted allows the general public more accessibility and certainly to protect their legal rights. Legislation is therefore important in formulating the social framework of the Island too.
What can be the problems that can result in poorly or inadequately drafted laws or laws that can be too easily challenged in the courts?
The most common problem in any democracy is that politicians may have ideals for what they want but they give inadequate instructions. Flaws in policy can be very difficult to turn into effective and enforceable laws. In Jersey, we need to ask the question as to whether our current political system and our politicians are up to what is an extremely complex task that can require a real understanding of the way that law can work and be enforced. Unlike the House of Commons, which is stacked with lawyers, for example, our States is devoid of legally trained minds.
There is also the all too common problem of lack of resources. Even in England this can be a problem. The UK Government has sometimes been forced in certain complex areas to hire private sector lawyers to draw up legislation because it was concerned about Whitehall delays in drafting Bills. Do we expect too much of the limited number of law draftsmen that are employed by the States in Jersey?
In a number of cases, there are situations where both a lack of resources and poor instructions from our politicians can mean that delays are inevitable. If the laws are drafted in a hurry and without time to obtain proper clarification of policy, the Island will end up with laws that will be inadequate for the purposes required and subject to legal challenge in the Royal Court. This will not enhance Jersey’s international reputation.
Another problem that is being identified more and more is the raft of secondary or delegated legislation that is necessary to underpin all new legislation in the modern world. This can lead not only to delay, but also to the introduction of legislation that does not have the necessary ‘flesh on the bones’. The IoD has identified an example of this in the Competition Law. In the UK, hundreds of Regulations and Statutory Instruments are behind their equivalent legislation. This is not the case here and there is concern that this will severely affect the working of this piece of legislation in Jersey.
I believe that the problem is even greater in the case of social legislation. This is all too often given secondary importance, both by our political masters and then by the law draftsman. The best example of this in recent years is the Children Law. I have long campaigned to bring this legislation into force and we are not there yet. This Law is based almost exclusively in the English Children Act and therefore there is even less excuse for the years of delay. There have been inexplicable delays surrounding the necessary Regulations, Rules of Court and Forms. It appears that too much pressure from politicians on our law draftsmen appears to make legislation dealing solely with social change a long way down the order of priorities.
What are the solutions?
Perhaps the most important solution is that our politicians need to understand the law that they are trying to make. Only once they have a clear objectives behind their policies will it be easier for the laws that emulate from these policies to be clearer and hence, ultimately more effective. In addition, if legislation is being fundamentally copied from the UK, it must be recognised that our law draftsmen will need to be able to recognise the raft of secondary legislation that will be required to bring the law into force. The Employment Law is a good example of this. There was really no reason why what is in essence a law drafted by Parliament, took so long to be implemented in Jersey. This is an example of where Jersey has lagged behind its neighbour in Guernsey. Politicians need to recognise that if they wish to introduce what is a vast piece of legislation that is modelled on that from the UK into a very small jurisdiction, suitable resources to make such big ideas work in Jersey must be provided.
I would also argue that our legislators need to consider whether they should, on occasion, share resources with Guernsey or even the private sector.
Most of us do not realise how what appears to be the very dry topic of law drafting can impact all of us. Delays in producing good and timely laws will have a lasting impact, not only on the international reputation of Jersey, but will also on all of us in political, economic and social terms.