SHORTER
ARTICLES
MODERNIzING
ADMINISTRATIVE REDRESS IN JERSEY
Andrew Le Sueur
This
article summarizes provisional recommendations made by the Jersey Law
Commission for improving how grievances against administrative decisions are
handled and explores the principles that may help identify what a good
administrative redress system looks like.
Introduction
1 In April 2016, the Jersey Law Commission
published an 83-page consultation report Improving
Administrative Redress in Jersey.[1] More than
25 individuals and organizations participated in the consultation process and
the Commission is currently analysing responses. A final report to the Chief
Minister will be made later in 2016.
2 The Commission’s project takes a
wide angle survey of the different ways in which individuals and business
aggrieved by administrative decisions can seek redress. These include—
• internal
complaints processes within public authorities;
• an
appeal to a tribunal;
• situations
in which there is a right of appeal to a Minister;
• the
States of Jersey Complaints Panel;
• statutory
rights of appeal to the Royal Court;
• judicial
review proceedings in the Royal Court; and
• various
forms of alternative dispute resolution.
3 In addition, the consultation report
discusses whether proposals for a public services ombudsman should be revived.
4 Taken as a whole, the Commission’s
provisional reform proposals are (by Jersey standards) rather radical though
many of the interim recommendation either draw on tried and tested arrangements
in other jurisdictions or are based on clear constitutional principles.
Consultation responses have provided mixed reactions to the key changes and it
remains to be seen how these will adjust the Commission’s blueprint for
change.
The main interim proposals
Internal complaints
5 The Commission suggests that the quality
of internal complaints procedures in Jersey is very variable when measured
against a template that examines accessibility, clarity, independence and
outcomes.[2]
There is also considerable variation in the number of internal complaints
received: Health and Social Services tops the list with an average of 252 a
year; many departments report receiving seven or fewer. The Commission’s
provisional recommendation is that the Chief Minister’s Department should
take on responsibility for improving the quality and consistency of internal
complaints systems (and collecting more reliable data about them).
Tribunals
6 Nine tribunals dealing with
administrative appeals (broadly defined) operate in Jersey: Commissioners of
Appeal for Taxes; Social Security Tribunal; Social Security Medical Appeal
Tribunal; Income Support Medical Appeal Tribunal; Mental Health Review
Tribunal; Health and Safety Appeal Tribunal; Data Protection Tribunal; Rate
Appeal Boards; and the Panel appointed by the chairman of the Prison Board of
Visitors to hear appeals against findings of guilt relating to a breach of
prison discipline. The Commission’s provisional recommendation is that
these separate judicial bodies should have their jurisdictions transferred to a
single new body, to be called the Jersey Administrative Appeals Tribunal
(JAAT).
7 Several follow-on reforms are suggested,
including: a single procedural code (adapted as needs be to different contexts)
with an overriding objective; the creation of a new part-time salaried judicial
post (the President of JAAT); clarification of when tribunals must sit in
public and publish judgments; legal aid in specific cases where otherwise where
would be inequality of arms; and a new system for appointing tribunal members
(ministers against whose decisions tribunals hear appeals should not be part of
that process).
Appeals
to Ministers
8 Several Laws stipulate that an aggrieved
person’s redress against an administrative decision is an appeal to or
review by a Minister. The Commission’s starting point is that external
reviews and appeals should normally be carried out by a judicial body (such as
a tribunal or the Royal Court), or by an independent body such as the States of
Jersey Complaints Panel or an ombudsman, rather than a politician. The role of
a politician in making formal decisions about redressing grievances is
justifiable only if there is some general public interest at stake. The
Commission’s main interim recommendation is that most appeals to or
reviews by Ministers should be replaced with a right of appeal to JAAT.
States
of Jersey Complaints Panel
9 A further type of administrative redress
is the States of Jersey Complaints Panel. When originally set up in 1979, the
Panel consisted of elected States members. Since 1995, the States Assembly has
appointed people from outside the States. The Commission’s interim
assessment is that the Panel should be abolished and replaced by a public
services ombudsman. This provisional view (which has been challenged during the
consultation process) was reached because there seemed to be too many major
structural defects in the design of the Panel for it to be saved through
further reforms.
10 Recognizing the political reality that
calls for an ombudsman have been rejected in the past, the Commission sets out
a series of alternative interim recommendations for the Panel’s reform. The
consultation paper suggests that the remit of the Panel should be extended
beyond Ministers to other public bodies, including parishes and some corporate
entities owned by the States of Jersey. It questions whether the Panel should
deal with complaints where an alternative remedy exists (such as an appeal to
the Royal Court).
11 The Administrative Decisions (Review) (Jersey)
Law 1982, art 9(2) defines the grounds of review largely in terms of errors of
law: the decision complained about “was contrary to law”,
“was based wholly or partly on a mistake of law”, “was
contrary to the generally accepted principles of natural justice”. The
Commission makes the provisional recommendation that this definition is
unsuitable for a predominately non-legally trained panel and that questions of
law should be decided by judicial bodies (either a tribunal or the Royal
Court). Various procedural reforms are also suggested.
A public services ombudsman for Jersey
12 In many other countries, a further type
of administrative redress is offered by an ombudsman. Ombudsmen use
investigatory methods (through meetings, phone calls and emails) to consider
complaints and make recommendations about how things should be put right.
Ombudsmen also have a positive role in promoting standards of good
administration and complaint handling by public bodies. In December 2000, the
Clothier committee recommended that Jersey should set up an ombudsman (perhaps
in conjunction with Guernsey).[3]
The States of Jersey rejected this idea in 2004.
13 The Commission’s interim
recommendation is that the Government of Jersey and the States Assembly should
reconsider the question of a public services ombudsman but commissioning a
detailed study into the costs and benefits of introducing an ombudsman scheme.
In this context, the Commission notes that other small jurisdictions—including
Gibraltar, the Cayman Islands and Bermuda—have in recent years
established ombudsman schemes.
The Royal Court
14 The Royal Court potentially has an
important role in the administrative justice system, in particular ensuring
that the rule of law is adhered to in administrative decision-making.
15 More than 50 different Laws create a
right of appeal against the public body directly to the Royal Court. Many of these
appeals have never been used or used only occasionally. The Commission’s
main interim recommendation is that most of these appeals should go instead to
JAAT. Where a route to appeal is retained to the Royal Court, the Commission
provisionally recommends that the time limits for lodging an appeal should be
standardized.
16 If a Law does not create a right of
appeal to a tribunal or the Royal Court, an aggrieved person may make an
application for judicial review to the Royal Court. This is a procedure for
examining whether the administrative decision is lawful. Very few, if any,
applications for judicial review are made in an average year. The Commission
suggests that there may be scope for modernizing the procedures for making a
judicial review application and provisionally recommends that the Royal Court
Rules Review Group consider carrying out this review, seeking out lessons from
the modernizations that have taken place in relation to judicial review
procedures in England and Wales and Scotland in recent years.
Alternative dispute resolution
17 Alternative dispute resolution (ADR)
methods, such as mediation, can be used in disputes about administrative
decisions. The Commission considers what scope there is for JAAT, the States of
Jersey Complaints Panel (if it is retained), the public sector ombudsman (if it
is created) and the Royal Court to use or encourage the use of ADR. Its
starting point is to recognize that some administrative disputes are unsuited
to ADR, for example because a point of law must be determined or the public
body has little or no discretion to change the outcome of its decision.
What does a good administrative redress system look
like?
18 In order to assess what improvements
could be made to Jersey’s administrative redress system, clarity is
needed about the characteristics of a good system. The Commission suggests that
in assessing the current system, the Commission’s interim recommendations,
and responses to consultation, regard should be had to the following broad
principles.[4]
Presumption
in favour of express redress procedure
19 Whenever a Minister or other public
authority is conferred with decision-making power affecting people under a Law
adopted by the States Assembly, this should normally be accompanied by an
appropriate and effective procedure and remedies, set out expressly in law, as
to how an aggrieved person may challenge the correctness of a decision (for
example, an appeal to a tribunal or the Royal Court). If a project de loi fails to provide this, the Minister introducing the
legislation should justify the omission.
Constitutional
principles
20 The design and operation of the
administrative redress system should respect basic constitutional principles.
These include the rule of law and Convention rights under the Human Rights
(Jersey) Law 2000. Public bodies are legal entities exercising powers conferred
by law in the public interest; the question whether there has been a breach of
the law should always ultimately be decided by a judicial body (a court or
tribunal) with judges of appropriate seniority.
21 A further constitutional principle is
the independence and impartiality of judicial bodies, including tribunals. This
is reflected in art 6 of the European Convention on Human Rights (ECHR),
incorporated into Jersey law by the Human Rights (Jersey) Law 2000. The
Commission’s findings are that there are several respects in which the “structural”
independence of tribunals in Jersey could be enhanced.[5]
22 ECHR, art 6 also embodies the concept of
equality of arms: in adversarial procedures, this requires that each party be
given a reasonable opportunity to present their case under conditions that do
not place them at a substantial disadvantage against their opponent. One area of concern is that there is no
general provision for people appealing to a tribunal to receive legal aid for
advice and representation even when a complicated point of law is involved and
the public body is represented by a lawyer.[6]
The
simplicity principle
23 The administrative redress system should
be as simple as possible. The complexity of the system in Jersey is at least as
bad as it is in the United Kingdom where “there are multiple types and
channels of redress, each of which is run by a different body or section,
according to different rules and definitions and using different procedures”.[7]
It can be difficult for people to navigate through the redress system. The
distinction between a complaint and appeal may not be clear. It can be
difficult to know which route is the most appropriate. Time limits for raising
grievances vary widely across the system.
24 The Commission argues that it should be
easier to achieve simplicity in a small system, such as Jersey, than in a
larger system. Creating a single official point of contact for impartial
information on where to make a complaint or seek redress about government
decisions could be one way of promoting simplicity. In the United Kingdom, this
was suggested by the National Audit Office in 2005[8] but
rejected by the UK Government because they did not want to “create
another central point in addition to the Ombudsman because we think that most
of these things should be sorted out by the organization doing them”.[9]
There is no public services ombudsman in Jersey to perform this role.
Principles of transparency and
accountability
25 The administrative redress system should
operate as transparently as possible. Under ECHR, art 6, judicial and other
bodies determining “civil obligations” must do so in public
hearings—unless there are clear reasons for favouring privacy (such as
when a hearing involves children or vulnerable adults). The Commission’s
findings are that respect for the transparency principle is variable across
Jersey’s administrative redress system. The Royal Court scores highly in
this regard: its hearings are open to the public and written decisions are
clearly presented on the Jersey Legal Information Board website
(www.jerseylaw.je). The Complaints Panel’s hearings are similarly in
public (indeed, they often generate interest from the news media) but the
Panel’s past decisions are not easily accessible online.[10]
26 Tribunals perform quite poorly in
relation to the transparency principle. Some do not sit in public (though in
some situations this is justified). The written judgments of tribunals are not
publicly accessible. There is, however, is a strong body of opinion in the Island
that greater publicity would deter people bringing appeals.
27 Linked to transparency is the principle
of accountability for the operation of the administrative redress system. There
is a public interest in knowing about matters such as how many complaints and
appeals are made each year, how many are successful, how much money is spent on
the system and how efficient and effective it is. Accountability requires clear
leadership and a reporting mechanism. The Royal Court and the Complaints Panel
score reasonably well against these measures; again, the tribunals do not. The
Commission provisionally recommend that there should be an annual report by the
Chief Minister[11]
on administrative justice followed by review by the States Assembly (through
the Privileges and Procedures Committee or a Scrutiny Panel).
The proportionality principle
28 An administrative redress system costs
money: tax payers’ money in running it, the decision-maker’s time
in responding to grievances, and aggrieved people have to spend time preparing
their case and sometimes pay for legal advice and representation. These costs
should be kept to the minimum possible consistent with the other principles.
Any review of an administrative redress system should seek out cost savings and
ways to maximize value for money. Grievances also have costs other than
financial ones: for most individuals, pursuing a complaint is likely to be
stressful.
29 For all these reasons, if a grievance
arises it should be nipped in the bud as speedily, informally and cheaply as
possible. Sometimes, however, where an important administrative decision
impacts profoundly on a person or raises complex issues, a more elaborate and
costly procedure (such an appeal to the Royal Court) may be necessary.
Good fit
principle
30 A well-designed administrative redress
system should ensure that grievances are channelled to the appropriate redress
body. In reviewing and redesigning a redress system, regard should be had to
achieving a good “fit” between the type of complaints that arise and redress mechanism. For example—
• disagreements
about everyday facts, or how the decision-maker exercised discretion, may be
best resolved by a body including lay people with broad experience of life;
• disputes
involving disagreements over professional judgements or technical matters may
be best resolved by a body that includes experts in the relevant subject-matter;
• disputes
about important points of law are best addressed by a judicial body such as the
Royal Court.
31 The Commission considers the role of the
Royal Court. In some contexts, where appeals are likely to turn on factual
rather than legal disputes and where appellants are likely to be individuals
with limited financial resources or small businesses, the Commission’s
interim recommendation is that an appeal route to the proposed JAAT (or to the
proposed public services ombudsman) would be more proportionate. The Commission
also considers how greater use of alternative dispute resolution (ADR)
techniques, such as mediation, may provide the most proportionate responses in
some situations.
The “right first time” goal
32 As well as dealing with individual
grievances, redress mechanisms should contribute to improvements in the quality
of public services.
33 Ministers, civil servants, and others
working in public bodies may fail to make decisions correctly and lawfully due
to a range of different factors. These include the law being too complicated,
vague or rigid or the decision-maker using an unsatisfactory procedure.
Evaluation of the law underpinning the making of initial administrative
decisions is beyond the scope of the Commission’s current inquiry but it
is notable that during the research interviews for this project,[12]
several people were critical of how social security and income support
legislation had developed: they told us that a generation ago, the law gave
officers sufficient flexibility to enable them to apply common sense and
compassion in difficult cases whereas now officers had to work within a
straitjacket of rules that were sometimes too rigid and led to grievances
arising.
34 Where a decision is not made right first
time and a grievance is taken to a tribunal, court or other redress mechanism,
the public body should seek to learn lessons for the
future.
The user perspective principle
35 Across the United Kingdom over the past
decade, there has been increasing emphasis on “user perspectives”
and “customer focus” in administrative justice. In a democracy,
government exists to provide public services to citizens. Redress for
grievances about administrative decisions is a public service and should be
designed around people’s needs (not administrative convenience).
Administrative redress should be as “user friendly” as possible.
36 A practical way in which user perspectives
can be incorporated when systems are being redesigned is to consider the “user
journey” through the processes. This involves thinking about how
different elements of the process fit together: from how an administrative
decision is communicated; what information people are given about what to do if
they are aggrieved; how people obtain independent help and advice about the
problem; how they are “signposted” to the right part of the redress
system, etc.
37 The Commission’s findings suggest
that across the administrative redress system in Jersey there is not a strong
culture and commitment to focusing on users’ perspectives. For example,
there have been no systematic attempts to find out what appellants using the
tribunal system, or complainants using the States of Jersey Complaints Panel,
think and feel about the process—or why people decide not to pursue an
appeal or complaint.
38 A further challenge in adopting a user
perspective is that in respect of many of Jersey’s redress mechanisms
there are either very few or no users. There are various possible explanations
for this.
39 There may be very few or no grievances
that require to be redressed. This could be because the quality of public
administration is exceptionally high or because no or very few decisions are
actually made under a particular Law (which is possible in a small island).
40 When grievances do arise people are
unaware about what they can do about them (for example, exercise a right of
appeal or use the States of Jersey Complaints Panel).
41 People may be aware of how their
grievances could be addressed but are reluctant to use redress mechanisms
because of concerns about the stress, cost, time involved or publicity that may
flow from doing so.
42 It may be a mix of the above.
43 For the purposes of this consultation
report, the Commission have tried to have regard to the following factors, that—
• people
should have access to affordable, timely and independent advice about their
grievance;
• procedures
for using redress mechanisms should be clear and easily understandable by
non-lawyers; and
• time
limits for making complaints and appeals should be clear and reasonable.
Next steps
44 Over the next three months, the
Commission will be considering in detail the responses received during the
consultation process. A final report to the Chief Minister will be made before
the end of 2016.
Andrew Le Sueur
is Professor of Constitutional Justice at the University of Essex and a member
of the Jersey Law Commission.
Implied rights and conveyancing
practice
Richard Falle
1 Once
upon a time, if not quite beyond the memory of some still living, most lawyers
in Jersey served a population whose principal preoccupation was the acquisition
and disposal of interests in land. It is hard to imagine that anything much has
changed. Today however, conveyancing is a much more marginal concern for many
lawyers who seem content to delegate what is nevertheless an essential activity
for the community, over which they have a monopoly, to persons whose
qualification to conduct such business is, in some cases, questionable. Given
that the purchase and sale of his dwelling is typically, the most important
transaction in the life of an individual, it seems appropriate to question
whether in this instance, the legal profession may be failing the community.
2 This short note considers evidence tending
to show that the practice of conveyancing may have degenerated, where serious
errors on occasion occur and how landowners, their titles wrongly disparaged
and the value of their property undermined, suffer loss on disposal. It is not
unknown for a willing purchaser to be induced on the basis of advice to
withdraw from a transaction on the questionable ground that to complete would
be to risk purchasing a defective title. In another case, a landowner
attempting to sell may face a sudden unexpected challenge to his title and
under pressure to complete will do so on less favourable
terms, persuaded to pay an expensive premium for defective title insurance or
made subject to a heavy retention.
3 It is often the case that a conveyancer
when acting for a purchaser will expose some genuine anomaly, perhaps on a site
visit or when checking title. It is then quite normal to ask a landowner to be
party to a contract to perfect his neighbour’s
title when to do so would not prejudice his own. When this occurs however, the
vendor can often be held to ransom by a neighbour
demanding onerous terms for his participation and an indemnity against the
often heavy and, in the circumstances, unchallengeable fees of those who advise
him.
4 Unfortunately, it is often the case that
the perceived anomaly does not in fact exist. Experience suggests that in a
significant number of cases the advice given falls short of what is required
because the conveyancer’s knowledge is confined to the pages of his draft
contract. This is hugely frustrating for those on the other side of the
transaction in question, who know the law yet are faced with the impenetrable
ignorance of those who do not know what they do not know!
5 Gone are most of those older practitioners
whose technical skills were buttressed by a profound knowledge of land law.
Their clerks, although without professional qualification themselves, acquired
the skills at the elbow of those who had. The art and craft of drafting
contracts and describing and transferring interests in land often involved a
lengthy apprenticeship. Problems arising regarding title, boundaries, servitudes and hypothecation would
invariably be resolved by reference to the general law and the proper
construction of documents. Lawyers would be intimately involved in the process.
6 The contracts drawn by experienced and
admired conveyancers working in the profession half a century ago provide
excellent models for students. The drafting there is often notably elegant and
clean—perhaps the work of a Francis Caurel, Ted
Le Gresley or Philip Le Cras
(in his conveyancing days!) who were altogether at home with the maxim “Qui veut les fins veut les moyens” and
accordingly knew that the grant of a servitude
without further express detail necessarily carried with it the accessory rights
without which that servitude could
not be exercised.
7 Familiarity with written French was once
regarded as a minimum qualification for those involved in conveyancing. It remains
vital. Yet the cultural discontinuity in Jersey which resulted from changing
the language of conveyancing from French to English a decade or so ago, has
meant that a significant number of persons now employed in this field are
unable to read documents written in French or to demonstrate a root of title
reaching back at least 40 years and accordingly struggle to carry out a
competent title search.
8 The records of the Registre Public which date from the beginning of the 17th century are a
wonderful resource for the historian and genealogist and those teasing out a
complex provenance in their title searches. In practice, however, these records
are closed to a monoglot conveyancer. Such persons,
unable to conduct a proper research into the provenance of rights and titles or
to access the works of the Commentators on Norman and Jersey custom, cannot be
regarded as competent or qualified to advise on such matters. Yet persons
enjoying delegated authority from their employers to conduct transactions worth
millions of pounds are often unwilling or unable to debate issues before
because the custom and its commentators are inaccessible to them
9 It must surely be wrong for a lawyer,
faced with a lack of competence in this important area of legal practice, to abdicate
responsibility to his clerk. It is, in the circumstances, questionable whether
that so-called reform of the language of conveyancing has done anything to
advance the public interest.
10 The invocation of legal principle and the
citation of authority are sometimes slightingly described as
“academic” by conveyancers who appear to assume that they have no
need for such knowledge. Their concern is rather to be comprehensively
inclusive in their contracts. What is most impressive about such documents is their
weight. It is however obvious that in straining to describe everything, the
draftsman runs the risk that some accidental omission might, in any subsequent
dispute, be construed as intentional and accordingly significant.
11 The reality of course, is that the value
of any particular title is often supported as much by implied rights as by
those which, deriving from express covenants, are recited in full. Implied
rights are carried forward in the title by the words “The whole such as
it is with all such rights appurtenances and dependencies as may belong thereto
. . .”
12 It is accordingly vital that a
conveyancer should appreciate that all the rights attached to a property are
not necessarily to be found described within the four corners of the contract.
Landed titles have to be considered in a matrix of customary law. Yet all too
often when checking title, ignorance of that fact leads to the false conclusion
that rights not spelt out in extenso in the conveyance simply do not exist and their
absence evidence of defective title. When for example, faced with a provenance
which clearly supports the existence of a servitude
based upon the doctrine of “Destination
de père de famille vaut titre”, it is
unacceptable for a conveyancer to persist in parroting “nulle servitude sans titre”
when that principle is not then applicable. In such a case it must also be
unacceptable that the value of a property with a perfect title should be
tainted by the ignorance of those who should know better yet on whose advice
the landowner will naturally rely.
13 This short note is not the place for an
extended discussion of the doctrine of destination,
although one is clearly overdue. It is however, fundamentally important for
conveyancers to understand that this doctrine is a living part of the customary
law of Jersey and rooted in the origins of heritable property. It looks to the
continuity of rights held “à
fin d’heritage” in circumstances
where a père de famille,
having during his life enjoyed his various conjoined properties as one, dies
and passes the estate to his different heirs. The component parts seamlessly
pass to his heirs and the natural support and amenities which they previously
enjoyed now crystallise into such servitudes as may be necessary to secure
their fullest enjoyment in separate ownership. Such servitudes, where appropriate, include rights of passage, access,
drainage, support, etc. to be
reciprocally enjoyed by the heirs over their landed inheritance.
14 An extension of the same doctrine
provides for implied servitudes to crystallise on the disposal by a landowner of part of his
property to a third party where, in the absence of alternative provision for
the protection of the land retained and critically in the absence of an express
disclaimer in the contract calculated to prevent the coming into effect of such
implied rights, a vendor is presumed to intend the creation of servitudes without which the land
retained would necessarily suffer material loss of enjoyment and amenity.
15 This note is not authority to be relied
upon by practitioners but it is certainly intended as a finger post to the
works of Le Geyt, Berault, Basnage, Flaust and other
commentators who all discuss the subject of implied servitudes and their creation as one with deep roots in our custom.
It is also discussed with characteristic clarity by Pothier
in relation to the customs of Paris and Orléans.
These same principles are alive in the modern civil law of France. Such sources
of authority should be studied by all who have to do with conveyancing in
Jersey.
16 The fault in all this lies for the main
part, not with dedicated and conscientious clerks, but with those who employ
them without procuring the training and knowledge they require to provide their
clients with a professional service. There is unfortunately, no course yet
available at the Jersey Institute of Law to provide some kind of diploma in
land law and practical conveyancing for persons who have no intention of
becoming qualified lawyers but nevertheless would wish to be able to conduct
the business of conveyancing with a sound knowledge of land law.
Richard Falle has been in practice as an Advocate of the Royal
Court of Jersey since 1968. He served for a number of years as Magistrate.
BACK
TO THE FUTURE
Simon Hodgett[14]
This
article summarises the 2016 machinery of government changes in Guernsey which
originated following recommendations from the States Review Committee. The
States Review Committee was established in 2012 to review the organisation of
States affairs and to make any recommendations for reform which it considered
necessary, with the intention of providing for the highest possible standards
of good governance. The recommendations were essentially to follow a committee
system of government.
1 When the Organisation of States Affairs
(Transfer of Functions) Ordinance 2016[15] came into
force on 1 May 2016, the structure of Guernsey’s government changed
significantly. Although retaining a committee system, a new senior committee
was created along with six principal committees and an overarching scrutiny
management committee. A further three new authorities, a trading supervisory
board and an Overseas Aid & Development Commission were also instituted.
2 The members of the States Review Committee included Terry
Le Sueur, OBE, former Chief Minister of Jersey and
the Committee undertook detailed interviews, research and discussions with a
wide range of interested parties before the proposals were presented to the
States of Deliberation. Whilst it seems clear that there is no one perfect
government model for small island jurisdictions, interestingly, the States
Review Committee unanimously recommended that Guernsey should not follow the
Jersey route of ministerial government.[16]
3 As a result of the recommendations made by the States
Review Committee[17]
in 2014[18]
and 2015,[19]
the previous system of 10 departments and a coordinating Policy Council was
reformed. In its place, a structure including the new Policy & Resources
Committee and six principal committees was introduced in an effort to simplify
and improve the administration of government in Guernsey. Additionally, some of
the regulatory functions given to the previous departments were removed to
prevent any conflict of roles and instead made the responsibility of one of the
new authorities.
Senior committee
4 With a mandate to coordinate policy including leading the
policy planning process, the allocation and management of resources, and
facilitating cross-committee policy development, the Policy & Resources
Committee (P&RC) has effectively replaced the
Policy Council and the Treasury & Resources Department. It also has general
responsibility for fiscal policy and
economic affairs, as well as international and constitutional matters. Composed
of five Deputies who may not sit on any other committee, authority or board,[20]
the new committee is led by its President, the senior Island politician, who is
assisted by its Vice President and the Lead Member for External Relations.[21]
Unlike its predecessor, the Treasury and Resources Department, the P&RC no longer has shareholder functions and duties[22]
nor does it retain any responsibility for the management of States-owned and
leased property.
Principal committees
5 The principal committees which have replaced the
departments comprise five Deputies and up to two non-States Members; the office
which supports the committee is now led by a Chief Secretary. The principal committees
are as follows.
Committee
for Economic Development (CED)
6 With a mandate—
“to secure prosperity through the generation of
wealth and the creation of the greatest number and widest range of employment
opportunities possible by promoting and developing business, commerce and
industry in all sectors of the economy”,
this committee is the successor to the Commerce and Employment
Department. However, certain responsibilities have been given to other
committees: Guernsey Training Agency (CESC), Health
and Safety and Employment Relations Service (CESS), agriculture and the rural
environment (CEI), trading standards and consumer
protection (CHA), air route licences (TLA) and the
Guernsey Dairy (STSB).
Committee
for Education, Sport & Culture (CESC)
7 Taking on the general functions of the previous Education
Department and the Culture and Leisure Department, this committee has been
tasked—
“to encourage human development by maximising
opportunities for participation and excellence through education, learning,
sport and culture at every stage of life.”
With ongoing responsibility for civic celebrations and new responsibility
for the Island Archives, the new committee will no longer oversee the Channel
Islands’ lottery (STSB) or public parks (CEI).
Committee for
Employment & Social Security (CESS)
8 The committee’s mandate includes fostering—
“a compassionate, cohesive and aspirational
society . . . in which individuals and families are supported through
schemes of social protection”
relating to pensions, benefits, social housing, employment and labour
market legislation. The responsibilities of the former Social Security and
Housing Departments have therefore been given to this committee with the main
exception of the administration of housing control and the right to work
legislation (CHA).
Committee for the Environment &
Infrastructure (CEI)
9 The new committee has taken on the functions of the
Environment Department and the Public Services Department with two key
exceptions: (i) the operational functions arising out of planning legislation
such as enforcing planning legislation, administering planning applications and
making building regulations are now dealt with by the Development and Planning
Authority (DPA), and (ii) the management of the
airports and harbours (along with management of the public water supply and
disposal of solid waste) lies with the STSB. Its
remaining functions are therefore—
“to protect and enhance the natural and physical
environment and develop infrastructure in ways which are balanced and
sustainable in order that present and future generations can live in a
community which is clean, vibrant and prosperous.”
Committee for Health & Social Care (CHSC)
10 The mandate of this committee is “to protect,
promote and improve the health and well-being of individuals and the community”
in a similar way to the previous Health and Social Services Department. Most of
that Department’s functions remain with the new committee.
Committee for Home Affairs (CHA)
11 The successor to the Home Department retains
responsibility for areas such as crime prevention, law enforcement, data
protection and civil defence but broadcasting services now fall under the
purview of the CED. The committee’s mandate is
now—
“to support a high standard of living and
quality of life by maintaining and promoting a safe, stable and equitable
society which values public protection and justice and respects the rights,
responsibilities and potential of every person.”
12 The previous titles of “Department”
and “Minister” are no longer used as they were thought to be
confusing in what could be described as a committee system overlaid with “several
features more common to ministerial government”. However, when off-Island,
the senior committee politicians will use ministerial titles.[23]
Other
committees
13 In addition to the senior and principal committees, the SRC proposals included the creation of one final committee
and the maintenance of another.
Scrutiny Management Committee (SMC)
14 Under the previous machinery of government, overall
scrutiny of the States was entrusted to three different committees: the
Scrutiny Committee, the Public Accounts Committee and the Legislation Select
Committee. As their names suggest, the latter two committees focused on finance
and legislation respectively, whilst the former considered policy and service
delivery by departments and committees on a more general level. The new
Scrutiny Management Committee has superseded all of these with an enlarged
mandate to—
“lead and co-ordinate the scrutiny of committees
of the States by reviewing and examining legislation, policies, services and
the use of monies and other resources for which committees are responsible.”[24]
Whether acting through “task and finish” groups to review
policy, services or financial matters, or through the Legislation Review Panel[25]
to examine enactments and other legislative instruments, this new committee
will choose the most appropriate way of ensuring efficient scrutiny of the
States. The Scrutiny Management Committee consists of a President and two
People’s Deputies[26]
accompanied by two non-States members. It should be noted that the previous
power of the Legislation Select Committee to enact Ordinances under art 66 of
the Reform (Guernsey) Law 1948 now rests with the P&RC.
States Assembly and Constitution Committee (SACC)
15 The only committee which retains its previous name and
responsibilities (albeit with minor changes) is the States Assembly and
Constitution Committee; its role continues to include oversight of the
constitution of the States, the procedure and practices of the States and the
committees, and the broadcasting of States’ proceedings.
Authorities, Board
and Commission
16 Alongside the principal committees, other bodies have been
created to fulfil the previous functions of the States. The SRC
noted that some elements of the previous framework had been vulnerable to
perceptions of partiality and conflicts of interest; the creation of two new
regulatory authorities which were separate from the policy-making committees
was therefore proposed.
Transport Licensing Authority (TLA)
17 Although intended principally to deal with the
unsatisfactory situation regarding air route licensing,[27] the
mandate of this authority may also include other forms of transport licensing
conferred on it by the States. To strengthen the impartiality of the authority,
no member of the TLA may also sit on the P&RC, CEI or CED.
Development & Planning Authority (DPA)
18 In a similar way, the SRC
proposed that the policy and operational responsibilities for environmental or
infrastructure matters should be separated from the determination of planning
applications. Accordingly, this new authority has been created with the
regulatory function of development control; however, its original mandate was
widened by the SRC to include determining land use
policy through the production of the Island Development Plan every 10 years.
The legal framework underpinning planning policy and development control will
remain the same, as will the practice of only referring the “most
contentious or high-profile or atypical applications” for the authority
to determine in an open planning meeting.[28]
19 Both authorities comprise five Deputies and two non-States
Members to ensure that the mix of political accountability and relevant
expertise is retained.
Civil
Contingencies Authority (CCA)
20 The third authority under the new machinery of government
is the Civil Contingencies Authority which retains its previous name and
function; composed of the Presidents of the P&RC,
CEI, CHSC and CHA, it is
responsible from ensuring security and wellbeing in an emergency.
States Trading and Supervisory Board (STSB)
21 Possibly one of the main innovations in the reforms
proposed by the SRC was the introduction of the STSB, which has inherited the functions of a quartet of
previous departments[29]
with a mandate to—
(a) carry out the States’ role as shareholder of
the following incorporated States-owned companies: Cabernet Group,[30]
Guernsey Electricity, Guernsey Post, and Jamesco 750;[31]
(b) operate the following States’ unincorporated
trading concerns and commercial interests: the Channel Islands lottery,
Guernsey and Alderney airports, Guernsey Dairy, Guernsey Harbours, Guernsey
Water, property and real estate owned or leased by the States, and States
Works; and
(c) act as the Waste Disposal Authority.
22 The intention behind the creation of the STSB was to allow focused political oversight of a wide
range of different commercial and trading activities, although its role will
differ depending on the status of the company or concern in question. The
constitution of the Board is decided by the States but it is led by a
President, accompanied by at least one People’s Deputy and at least two
non-States Members.
Overseas Aid & Development Commission (OADC)
23 The final body undertaking functions of the States is the
Overseas Aid & Development Commission, a new title for the previous
Overseas Aid Commission to recognise that a “considerable proportion of
funds distributed by the Commission are in the cause of developing communities
and infrastructure”.[32]
Formerly, the Commission was chaired by a member of the Policy Council but, in
its new guise, there is a presumption that this President will in fact not be a
member of the P&RC.[33]
States of Deliberation
24 As part of its original recommendations, the SRC wished to examine the possibility of reducing the
number of People’s Deputies in the States in line with “the
prevailing view—both inside and outside the States—that Guernsey is
over-governed and over-represented”.[34]
25 Following much consideration, the SRC
proposed a decrease in voting members of the States from 47[35] to 38,
representing “a reduction which is pragmatic and measured, not radical”[36]
and providing one Deputy for approximately every 1,650 people.[37]
After a States debate, the States Assembly & Constitution Committee
subsequently brought forward proposals in relation to the allocation of seats
between electoral districts.
Conclusion
26 After little more than a decade under the previous
structure, Guernsey has again introduced new machinery of government. Having
only been effective since May 2016, it is still in its infancy and time will
tell whether the benefits anticipated by the SRC will
in fact be produced.
Simon Hodgett is a
Crown Advocate of the Royal Court based at the Law Officers’ Chambers in
Guernsey; he is also a non-practising barrister with a door tenancy at five
Pump Court, Temple, London.
The
legislative framework under-pinning the Jersey Aircraft Registry
Victoria Bell and Karen Stephen-Dalton
The
creation and launch of the Jersey Aircraft Registry in 2015 required a new and
comprehensive legislative package. While building on various key ideas
previously established under the Security Interests (Jersey) Law 2012, the
legislation underpinning the Jersey Aircraft Registry also breaks new
conceptual ground, and, whilst offering new possibilities for the financial
services sector, hints at new ways of approaching the future of the tangible
movables market in Jersey.
Introduction
1 It is approaching one year since the
Jersey Aircraft Registry (“JAR”) was launched in November 2015. The
development of both the JAR and Guernsey Aircraft Registry followed that of the
Isle of Man and are clear demonstrations of the shift towards diversification
of Crown Dependency economies and a desire to progress modern aviation sectors
whilst ensuring compliance with relevant international standards. More
generally, the establishment of both aircraft registries are commercial
strategies designed at generating legitimate business and investment in the
Islands in a similar manner to the successful companies, security interests and
shipping registries which are already entrenched in their legislative
frameworks.
2 By the nature of their locus, the
aircraft registries in Guernsey and Jersey are technically
“sub-registries” of the UK registry which is run under the aegis of
the Civil Aviation Authority (“CAA”). The
development of both the Jersey and Guernsey registries (and that of the Isle of
Man) has thus required close UK–Crown Dependency engagement on account of
the UK’s status as the contracting sovereign state party to the 1944 Convention
on International Civil Aviation (“the Chicago Convention”). To achieve the complex
technical and legal requirements which attend upon any registry, both projects
have required robust and comprehensive legislative frameworks which take
account of the UK–Crown Dependency relationship and the broader international
requirements of a state-run registry.
3 This short article examines and explains the
principal features of the legislative framework behind Jersey’s Aircraft
Registry. It aims to highlight areas of novelty and explores how key concepts
established under the Security Interests (Jersey) Law 2012 (“SIL”) have now been applied and adapted with respect
to tangible movable assets for the first time.
Legislation
4 The four-year development of the JAR has
led to a package of legislation which, at present, comprises two principal Laws
together with eight pieces of subordinate legislation, which are a mix of both
Regulations and Ministerial Orders. These principal laws, which are the focus
of this article, are comprehensive and provide for the operation of the
registry and contain newly updated provisions covering the operation of
aircraft, aerodromes and air traffic control services.
The Registration Law
Who can register?
5 The first Law, the Aircraft Registration
(Jersey) Law 2014 (as amended) (“the Registration Law”), provides
the key ingredients in respect of the establishment, operation and function of
the JAR. Its principal features include provisions for the appointment and
powers of the Registrar; the eligibility to register an aircraft; the
registration of aircraft, aircraft engines, aircraft mortgages, aircraft engine
mortgages and priority notices; the enforcement of aircraft and aircraft engine
mortgages; the registration of any births and deaths occurring; and a full
classification of the types of aircraft which may enjoy the benefits of
registration.
6 To set the legislative framework in
context, it is perhaps most effective, at the outset, to identify who a “qualified person” is
considered to be and what type of aircraft may be included in the registration.
7 Article 17 strictly sets out that only a “qualified person” is
permitted to hold legal or beneficial interests in Jersey registered aircraft.
It should be noted that this restriction does not apply to aircraft engines. To
be so “qualified”, that person is required to be a natural or legal
person from one of the countries listed at Schedule 1 to the Registration Law,
meaning that only natural or legal persons of the EEA,
Switzerland and the Commonwealth (to include Jersey, Guernsey and the Isle of
Man in this case) may register. Thus, where, for example, an aircraft is held by
a corporate vehicle in a jurisdiction outside this list, the most expedient way
to benefit from the JAR may be to set up a Jersey company (perhaps overseen by
a local corporate service provider) in order to “hold” the asset.
Where, for whatever reason, an “unqualified” person holds a legal
or beneficial interest, another alternative under the Law may be for the
aircraft to be leased—or chartered by demise—to a person who is
“qualified.” On this basis, the Registrar is permitted to register
the aircraft in Jersey in the name of the charterer by demise for so long as
that arrangement will persist. It is anticipated that this provision will open
up a number of possibilities for leasing arrangements in Jersey and may be of
particular interest where, for example, the owner is not intending to act as
operator. Such flexibility may be particularly attractive bearing in mind that
the types of “aircraft” permitted are broad in nature and include
four types of aeroplane, gliders, kites, airships, balloons, powered lifts and
rotorcraft.
The
role of Registrar
8 The new role of “Registrar”
arises under arts 2 and 3 of the Registration Law which provide that the
Minister for Economic Development may appoint a person to hold the office of
Registrar, with functions to include the registration of aircraft, engines,
their respective mortgages as well as generally advising the Minister and
administering the office. This new appointment thus makes way for administration
and regulation of what is, in essence, an entirely new product for Jersey (art
9).
9 Previously, the Loi (1880) sur la propriété
foncière had expressly forbidden the
raising of charges (in the form of a “hypothec”) on tangible
movable assets, with the only relatively recent exception being where one might
raise a charge (in the form of a “mortgage”) on a ship. Thus, the Shipping
(Jersey) Law 2002 (“the 2002 Law”) expressly provides that “mortgages”
may be taken over these vessels and enforced, a concept which follows UK
provisions found originally under the Merchant Shipping Act 1894 (now Merchant
Shipping Act 1988 as amended). Like ships, aircraft move internationally and
run some element of risk on their physical journeys which make their comparison
as “assets” on the market clear. Accordingly, with a substantive
history of debt being secured over ships, the use of the term “mortgage”
to denote that security is a well-established concept internationally and thus
proved to be the language of choice to be applied to aircraft and engines in
Jersey, rather than the civilian concept of the Jersey law hypothec. This means
that as well as the ability to register aircraft mortgages and aircraft engine
mortgages from the jurisdictions encompassed by Schedule 1, these respective
mortgages can be now created in the Island as a new product in fiduciary, legal
and trust sectors and enforced. This, along with the ability to register the
aircraft or engine itself, substantively shifts the horizon on what is on offer
for the financial services sector in Jersey.
The rise of aircraft
and aircraft engine mortgages
10 Article 29 is the key provision which
enables the creation of an aircraft mortgage or aircraft engine mortgage over
an aircraft or aircraft engine registered in Jersey. In essence, the mortgage
itself is actually created by the parties to a mortgage agreement, which is
then registered on the JAR. The article also makes clear (so as to avoid any
doubt) that nothing in the Loi (1880) sur la propriété
foncière nor the customary rule of donner et retenir ne vaut (which means that one cannot
both give and retain an asset) shall affect the validity of any such mortgage.
Article 30 provides the registration mechanism for both mortgages and priority
notices, with applications which are properly made being entered in the
Register in order of their receipt by the Registrar.
11 The new system of priority in its detail
draws heavily on the structure already successfully established by SIL, applying in this sense a complementary system as
between tangible and intangible movables. Thus, aircraft and engine mortgages
as between themselves rank in order of registration, with the first in time
having priority. The existence of the priority notice system offers similar
flexibility for mortgagees by providing a system which allows an aircraft or
engine mortgage contemplated in such a notice to take the date of the notice
where the mortgage is brought into being and registered. Such priority may then
be varied by agreement as between mortgage holders where this is desired
(except that an assignee of a subordinated mortgage is not bound by an agreement to subordinate that mortgage unless at
the time of the assignment a subordination relating to that agreement had been
filed with the Registrar and entered on the Register).
12 Perhaps, however, the article of
particular interest to commercial lenders relates to the enforcement provisions
set out at art 40. The contents again draw heavily on the enforcement
provisions of SIL, and provide a robust and varied
framework. Each of the different remedies on offer of course becomes
exercisable only on an event of
default, with the mortgagor having been served with written notice specifying
the particulars beforehand. Importantly, these powers do remain subject at all
times to various safeguarding provisions which ensure, for example, that
adequate notice is given to all
parties with an interest as well as the duties to obtain fair valuation or fair
price. Also included are the familiar SIL powers of
redemption at art 51 where a mortgagor can (at any time before a mortgagee has
acted irrevocably in relation to the aircraft or engine) redeem the asset, with
his powers for doing so having the benefit of priority over any other
person’s right to do the same.
13 The arsenal of enforcement powers
themselves are perhaps unsurprisingly broad in order to offer the most
reassuring and (with SIL in mind) consistent environment
to lenders, and includes the ability—
• to
apply to the Royal Court for an order under art 49;
• to
appropriate;
• to
sell;
• to
take control or possession;
• to
exercise any rights of the mortgagor in relation to the aircraft or engine;
• to
instruct any person who has an obligation in relation to the aircraft or
engine; and
• to
apply any remedy that the mortgage agreement itself provides for.
14 Necessarily, where sale or appropriation
takes place, the Law is careful to provide that a purchaser for value and in
good faith takes free of the interest of the mortgagor as well as any interest
subordinate to that of the mortgagee. Where an aircraft or aircraft engine is
finally sold or appropriated, art 45 provides that a mortgagee must provide the
mortgagor (and other specified persons) with a statement within 14 days to
inform them as to either the gross
value realised on appropriation or the
amount of the gross proceeds of sale, together with the mortgagee’s
associated reasonable costs, reasonable expenses (incurred during the
enforcement process), the net value of the aircraft or aircraft engine and the
surplus owing by or debt owing to the mortgagee.
15 Finally, provisions relating to how the
surplus is dealt with and apportioned are set out at arts 46 to 48 and allow
for the distribution of the surplus on the sale of an aircraft or engine in due
order of priority, or by paying the surplus into the Royal Court which allows
the court to then decide upon who is entitled to the surplus upon application.
16 Where a balance remains this is then to
be distributed in payment to the mortgagor (except where he has become
insolvent where it is paid to the Viscount or other proper officer as may be).
The Air
Navigation Law
The overhaul
17 The second law of importance which
governs the operation of the JAR is the Air Navigation (Jersey) Law 2014
(“the Air Navigation Law”), which concerns the operation of
aircraft, aerodromes and air traffic control services. The enactment of this
new law represents not only an overhaul of pre-existing provisions but also
represents an important further step away from relying on UK Orders in Council
as a vehicle for enacting legislation in this sphere.
18 Accordingly, the Air Navigation Law
repealed and replaced the previous Air Navigation (Jersey) Order 2008 which was
a modified version of the UK Air Navigation Order 2005. Instead of engaging in
the cumbersome process of amending the Order in Council, a new law was drafted
in step with the increasing move away from reliance on the extension of UK
legislation. Therefore, whilst it forms an integral part of the JAR package, it
was also deemed a distinct policy project in itself, both constitutionally and
with the overarching aim of safeguarding Jersey’s continuing compliance
with relevant ICAO Annexes which the Island is
obliged to adhere to by virtue of the extension of the Chicago Convention to
Jersey.
19 Thus, the Air Navigation Law provides
for a range of new provisions from offences relating to malicious use of lasers
against aircraft in flight to revised definitions for “small unmanned
aircraft,” and new provisions relating to the carriage of dangerous
goods. For the JAR’s particular interests,
however, it concerns key operational and safety requirements for aircraft,
bringing forward provisions to meet the international obligations under the
Chicago Convention which are incumbent on a territory with an aircraft registry
to include, inter alia, airworthiness, personnel licensing and operations.
Air worthiness, licensing and operations
20 Under art 5
of the Air Navigation Law, an aircraft is prohibited from flying
unless there is in force a certificate of airworthiness issued or rendered
valid under the laws of the country in which the aircraft is registered. The
provisions covering the role of the relatively new post of Director of Civil
Aviation (“DCA”) as the Island’s
civil aviation authority (currently shared between Jersey and Guernsey) builds
on those set out under the Civil Aviation (Jersey) Law 2008 (“the 2008
Law”) (which created the DCA as a corporation
sole under the Minister for External Relations).
21 The 2008 Law gave the DCA full powers in relation to, inter alia, ensuring the
safety of aerodromes and air traffic; the security of aerodromes, passengers
and goods carried by air; licensing aerodromes and approving air traffic
controllers (see art 10). Accordingly, the DCA has
the power to issue, re-issue or vary a certificate of airworthiness for any
aircraft and provision is made for the continued
airworthiness of an aircraft registered in Jersey such that that aircraft is
prohibited from flying unless maintained in a maintenance programme approved by
the DCA.
22 The licensing provisions of the Air
Navigation Law require an aircraft registered in Jersey to carry licensed
flight crew of the number and description adequate to ensure the safety of the
aircraft in order to be permitted to fly. Thus, if the aircraft has a flight
manual, it must carry a crew of at least the number and description specified
in that flight manual and, if not, it must carry a crew of at least the number
and description specified in the certificate of airworthiness or the permit to
fly.
23 With respect to operations, a
requirement is also imposed that an aircraft registered in Jersey and required
to be equipped with radio communications must carry a flight radiotelephony
operator as a member of the flight crew. With this in mind, the DCA may also direct additional flight and cabin crew to be
carried on aircraft registered in Jersey where he considers this to be
appropriate.
The complete package
24 Although this article focuses on the
primary legislative provisions establishing the framework for the JAR, no
introduction to a legislative package such as this would be complete without at
least a mention of the other forms of legislation so crucial to the successful
building of this venture. Included within the package therefore are three sets
of Regulations and three sets of Ministerial Orders.
25 In brief, the Regulations provide new
frameworks for the investigation of air accidents and incidents on
Jersey-registered aircraft; the recording of the registration of births, deaths
and missing persons; and the implementation of the EU Insurance Regulation
(Regulation (EC) 785/2004) for minimum insurance requirements.
26 The Orders provide respectively for the
form and manner of nationality and registration marks, and two fee types
relating to (i) approvals, licences, permissions, validations, examinations,
tests and investigations, and (ii) registration in relation to aircraft weight
and type.
Conclusion
27 Clearly, as the JAR develops, any
amendments to the current legislative arrangement (or indeed further
legislation) are going to be dependent upon the emerging shape of both the
global and domestic markets for aircraft, aircraft engines and their mortgages.
Inevitably, therefore, the different requirements of financial markets as they
emerge are going to further refine the many strengths of this new product and
take it forward.
28 The Jersey Aircraft Registry package,
with its principles of registration of aircraft, engines and their mortgages,
represents a development in the marketing not only of this type of property as
an asset class but also of the registration of charges over tangible movables
outside of marine vessels for the first time. It will be interesting to see
whether this may be the start of a new approach to the tangible movables market
for Jersey.
Victoria
Bell is a Jersey Advocate and Legal Adviser at the Jersey Law Officers’
Department.
Karen
Stephen-Dalton is Assistant Law Draftsman at the Jersey Law Draftsman’s
Office.