The law of Jersey has been influenced by several different legal traditions, in particular Norman customary law, English common law and modern French civil law. and The Bailiwick of Jersey is a separate jurisdiction from that of the United Kingdom, and is also distinct from that of the other Channel Islands such as Guernsey, although they do share some historical developments. Jersey's legal system is 'mixed' or 'pluralistic', and sources of law are in French and English languages, although since the 1950s the main working language of the legal system is English.
Sources of law
Legislation adopted by the States Jersey's legislature, the States Assembly makes legislation affecting most areas of activity.
Laws
The highest form of legislation made by the States is "Laws". If a proposed Law is likely to be controversial, the general desirability of having new legislation on the topic may be debated before the law is drafted.
The procedure for making laws is set out in the Standing Orders of the States of Jersey. Once the Law is in draft from, it starts the legislative process as a 'draft Law' which may be introduced to the States by a minister, any States member, a scrutiny panel or the Comité des Connétables. At the stage known as "first reading", the title of the draft Law is read out and the draft Law is "lodged au Greffe", providing a two to six week breathing space for members to read the draft Law. Under Article 16 of the Human Rights (Jersey) Law 2000, the minister or other person lodging the draft Law au Greffe must make a written statement that the provisions of the draft Law are compatible with Convention rights or "make a statement that although [he or she] is unable to make a statement of compatibility, [he or she] nevertheless wants the States to proceed with the draft Law". At the next stage (second reading), there is a formal debate in the States chamber during which members consider the principle of the draft Law and then scrutinise the draft in detail. At third reading there is an opportunity for minor drafting errors to be corrected. Finally, members vote on whether to adopt the law.
The law is then submitted via the Lieutenant Governor's office for transmission to London, where officials in the Ministry of Justice examine the law. In 2010, the House of Commons Justice Committee was highly critical of the UK Government's approach, finding that "The islands are more than adequately advised by their own law officers and parliamentary counsel. It seems a strange use of Ministry of Justice resources ... to engage in a kind of legislative oversight which does not restrict itself to the constitutional grounds for scrutiny". This process may take several months. In an unusual move in 2011, campaigners against a law that sought to reduce the number of senators in the States petitioned the Privy Council to advise the Queen to refuse royal assent. Once official scrutiny is complete in London, the law is formally presented to His Majesty for royal assent at a meeting of the Privy Council, usually held at Buckingham Palace or Windsor Castle.
After a Law receives royal assent, the final step is for it be registered with the Royal Court of Jersey. At this point it is "passed". The Law may specify that it can be brought into force at a date decided by the relevant Jersey minister, or the States Assembly may adopt a "Commencement Act". There may be a considerable delay between a law being passed and it becoming legally effective if, for example, civil servants need to be trained, computer systems put in place or money found to pay for the new scheme.
Laws adopted and passed are published in print in Recueil des Lois de Jersey and online by the Jersey Legal Information Board on the Jersey Law website.
Other types of legislation In Jersey, there are other types of legislation in addition to laws. Regulations: these are used where a law delegates to the States Assembly power to make legally binding rules to implement a named law. Triennial regulations: since the 18th century, the States of Jersey has had power to make provisional regulations of up to three years' duration. Orders and rules: these are generally made by a minister, within the scope of powers set out in a law.
Case law The principal source for decisions on Jersey law are decisions of the Royal Court, which has a reputation for sound judgement.Southwell, Richard QC (2005) The Sources of Jersey Law. In: Bailhache, Sir Philip (ed.). A Celebration of Autonomy. 1204-2004: 800 years of Channel Islands' Law. pp. 31-40. Jersey Law Review, St Helier. ISBN 0-9535903-7-2
Jersey law also draws from cases in other jurisdictions, particularly England and Wales. In criminal law, English law is drawn upon and its continuation seems to be inevitable, although in some key areas such as sentencing, Jersey has taken a distinct path from England and Wales. However, in land and succession law, English law is of little relevance. The Norman coutume is too far removed from English law for English law to be a useful tool. In contract law, English cases are cited and often followed. In trust law, English cases are a persuasive force over decision making. In tort law, English law has largely won out over French law in its influence in tort law's development in the island. However, Jersey law does sometimes decline to follow decisions of the English legal system, for example in the case of The Siskina in the House of Lords.
Customary law Custom holds a significant position within the legal system of Jersey. It is regarded as the foundation of Jersey law and has been described as 'the product of generally accepted usage and practice'.Snell v Beadle UKPC 5 at http://www.bailii.org/uk/cases/UKPC/2001/5.html Many rules of customary law have crystallised to such an extent (through repeated acknowledgment by the Royal Court and in the way people conduct their affairs) that everyone accepts them as binding without discussion. Examples of such rules include the boundaries of the parishes, the existence of the office of Bailiff and various rules relating to possession of land and inheritance.See e.g. JRC 151
Customary law has no formal, authoritative backing; it relies on 'the general consensus of opinion within the community'. This differs from English common law, in which judicial statements of a judge in a senior court establish binding laws simply because they are stated by a judge. The texts of legal 'commentators' and the case law of Jersey courts provide discussions of many customary law rules. However, where these do not adequately address a specific situation, Jersey courts examine factual evidence to work out the 'generally accepted usage and practice'.
The customary law of the Duchy of Normandy is particularly influential as a source of law in Jersey, even though Jersey ceased to part of Normandy in 1204. Norman law developed in two main epochs – the "Ancienne coutume" (1199–1538) and the "Coutume reformée" (1538–1804).
Ancienne coutume of Normandy The northern and western regions of medieval Europe "were a patchwork of territorial areas in which the main source of law was customs, usages and practices which had become relatively fixed and settled". Norman law was based on oral tradition and repeated practices in feudal society. The earliest known written account of the Ancienne coutume of Normandy is the "Très-ancienne coutume", first set down in Latin manuscript around 1199 to 1223. It was translated into French, probably in about 1230. It is thought to be the work of scholars or court officials, designed to be a manual for legal practitioners. A modern edition was compiled from various sources in 1903 by Professor E. J. Tardiff.
Of more importance to Jersey law is "Le Grand Coutume de Normandie" written in the period 1245–1258, originally in Latin manuscript (Summa de Legibus). The first printed version dates to 1438. It sets out the law and practice of Normandy in the form of 125 articles. It is probable that the original compiler "was an individual legal practitioner or scholar, rather than it being in any sense an official work". When in 1309 Edward II of England sent Justices to Jersey, the people of Jersey were "asked by what law they claimed to be governed, the law of England, of Normandy, or by some special customs of their own? They answered 'By the law of Normandy, and referred the Justices to the Summa of Malcael [the Jersey name for the Grand Coutumier], where the Norman laws are well embodied' ... But they added, and this a clause that caused much trouble later, 'except that we have certain customs used in this island from time immemorial.
In the 16th century, two commentaries on the Grand Coutumier, written in Normandy, have been influential in Jersey law. (also known as Le Rouillé) was the author of Le Grant Coustumier du pays & duché de Normendie : tres utile & profitable a tous practiciens (1534; 1539). He also produced commentary on the neighbouring province of Maine (pictured).
Guillaume Terrien's Commentaires du droit civil, tant public que privé, observé au pays et Duché de Normandie was first published in 1574. Dawes explains: "Terrien's own work comprised the selecting of texts from the Grand Coutumier, putting them into an order which suited his scheme (even to the point of cutting and pasting quite disparate texts) and then commenting on the resulting amalgam. To this commentary a further author added notes headed 'Additio', more often than not in Latin".
Two modern versions of the text of the Grand Coutumier have been produced. The first was by Jurat William Laurence de Gruchy entitled L'Ancienne Coutume de Normandie: Réimpression, éditée avec de légères annotations (1881), based on Le Rouillé's 1539 edition, using a double-column format setting out the Latin and French texts side by side. In 2009, an English translation of the Latin text by J. A. Everard was published.
Coutume Reformée of Normandy
The second period in the development of Norman custom was the (the reformed custom), in force between 1583 and 1804.
The reformed custom was a result of a 1453 directive of Charles VII of France. He ordered the 'redaction' of all customary laws in France, which meant they were to be set out systematically and approved under royal authority. The Duchy of Normandy was the final region to comply with this order, but eventually, a new text was prepared, which received royal approval from Henry III in 1585. In 1804, customary law was abolished in France with the introduction of uniform codes of civil and criminal law across the whole of France.
There are two reasons why the Coutume reformée might be thought to have little relevance to Jersey: it was created 380 years after Jersey had ceased to be part of the Duchy of Normandy, and it was a text sanctioned by the King of France. Nonetheless, Jersey lawyers and courts have made frequent references to the and, by virtue of its assimilation into Jersey law over the centuries, it is regarded as a source of the island's law.
Commentators on the Coutume reformée include: Les Œuvres de maître Henri Basnage contenant ses commentaires sur la Coutume de Normandie, et son Traité des hypothèques (Rouen, Maurry, 1709). Jacques Bathelier d'Aviron Josias Bérault(with Godefroy and d'Aviron), Coutumes du pays et duché de Normandie : anciens ressorts & enclaves d’icelui, augmentées de plusieurs edits, déclarations, arrêts & nouveaux réglemens, tant du Conseil que de la Cour, rendus jusqu'à present, comme il est marqué en la table du recueil à la suite de celle des titres ci-après; & en outre, les articles rectifiez par les textes d'Aviron & de Berault. Avec les extraits sommaires des edits, declarations, ordonnances & arrêts concernans les mariages; et d'une table des matières, tant pour la coûtume que pour les articles placitez. articles placitez, Rouen, Chez Pierre le Boucher, 1731