Jersey &
Guernsey Law Review – October 2013
Shorter articles
Coming up to Speed with Royal Assent
Richard Whitehead and Steven Meiklejohn
The article
explains improvements in both the speed and efficiency of the process of
obtaining Royal Assent to Jersey Laws since the report of the House of Commons
Justice Select Committee in 2010, and outlines some ways in which the process
might be further modified and improved.
1 The process for obtaining Royal Assent to
laws adopted by the States Assembly in Jersey
has been subject to significant change—with apparently satisfactory
results.
2 For some years, prior to 2012, there had
been growing concern amongst Jersey politicians, government officials, and some
in the finance industry about the length of time it often took to obtain
sanction by Her Majesty in Council to Jersey’s
primary legislation. The competitive edge was being lost. In some instances,
the period between the submission of a draft Law to the UK Ministry of Justice
(MoJ) and its sanction by the Privy Council was over
a year. Sometimes there were special reasons for the delays but, even in
relatively straightforward cases, the delay was regularly over six months; over
nine months was not uncommon and, occasionally, it was much longer. The Schedule
to this article sets out the problem in tabular form.
3 The concerns reached a peak when, in 2011,
a simple law concerning the Jersey Law Society failed to return from the Privy
Council for many months, and it became known that the draft Law had for some
reason been forwarded by the MoJ to the English Law
Society and the Department for Business, Innovation and Skills for their
comments. Clearly, these sorts of delays were unacceptable, frustrating the
will of a democratic legislature, and there was a strong feeling that
“something must be done”. The matter was accordingly raised at
ministerial level with the MoJ.
4 A brief historical discourse on the
reasons for the existence of the system of submitting laws for Royal sanction
is probably necessary. There is evidence to suggest that the process of
requiring Royal Assent has existed since time immemorial, and at least as far
back as the time when the Etats de Jersey evolved from its role as a purely consultative
body—consulted by the then law-making Royal Court—to a legislative body
in its own right. For example, the Royal Commissioners reporting on the Civil,
Municipal and Ecclesiastical laws of the Island
in 1861 note that—
“It was not until the latter end of the 16th
century that the recent composition of the States as a regularly organized body
appears to have been recognized; and for nearly two centuries afterwards, laws
were passed sometimes by the Royal Court and sometimes by the States, both
kinds being deemed of equal authority, if sanctioned by the Sovereign in
Council and duly registered in the Island.”
The concept of Royal Assent for primary legislation
thus pre-dates 1771 but the exact parameters are not clear. For example, Le Hérissier was of the view that both the Court and
the States could enact items of “minor
legislation” without seeking Crown approval, although no authority is
cited for this statement.
5 In 1771, following fairly turbulent times
in the Island, the issues of the competing legislative powers of the Royal
Court and the States Assembly (the concept of the separation of powers and the thinking of Baron de Montesquieu
having barely taken root elsewhere in Europe) were settled once and for all in favour of the States, by an Order in Council of that year,
which also gave Jersey its so-called Code of Laws. The Order in Council
provided that—
“. . . and His Majesty Doth hereby
declare that all other Political and written laws heretofore made in the Said
Island, and not included in the Said Code, and not having had the Royal Assent
and confirmation, Shall be from henceforward of no force and validity
. . .”
Therefore, the Order made it clear that any laws
purporting to have been made prior to 1771 were of no force or validity unless
they had received Royal Assent and were included in the Code, and Bois
highlighted instances of where perfection had not been achieved for want of
Royal Assent.
Apart from the laws set out in the Code which have received Royal Assent, it
has since been a requirement for any future laws that—
“. . . no Laws or
Ordinances whatsoever, which may be made provisionally or in view of being
afterwards assented to by His Majesty in Council, Shall be passed but by the
whole Assembly of the States of the said Island; And with respect to such
provisional Laws and Ordinances so passed by them, that none shall be put or
remain in force for any time longer than three years, but that the same, upon
its being represented by the States to His Majesty, that Such Laws and
Ordinances are found by experience to be useful and expedient to be continued,
Shall, having first obtained His Majesty’s Royal assent, and not till
then, be inserted and become part of the Code of the Political Laws of the Said
Island.”
6 Thus, as Professor Sir Jeffrey Jowell notes, “Royal Assent was now formally required
for acts that were not provisional” i.e. the Order in Council of 1771 removed any doubt over the
requirement that Jersey’s permanent principal legislation is submitted
for and receives Royal Assent before becoming enacted (see also the definition
of the term “enactment” in the Interpretation (Jersey) Law 1954,
art 1) and the function of
advising the sovereign whether to grant assent has been carried out by the
Privy Council. A system for submitting the legislation after its adoption by
the States was developed and has been in place more or less unchanged ever
since.
7 Over many years, the channel for official
communications between the government of the Island
and the British government was from the Bailiff’s Office to the
Lieutenant Governor’s Office and then to the Home Office (and the same in reverse).
Thus, this was also the route for a law adopted by the States Assembly to be
submitted for the obtaining of Royal Assent.
8 There was a quite complicated process by
which the draft law was first sent via the
official channel, as it was known, by the States Greffe to the Lieutenant
Governor’s Office which then sent it back to the Law
Officers for their opinion, which would be sent to the Lieutenant Governor, and
then forwarded by his Office to the Home Office.
9 This procedure has subsequently been
somewhat simplified so that the draft law, together with the Law
Officers’ opinion, are now forwarded by the States Greffe to the
Lieutenant Governor’s Office, and in turn sent with a covering letter to
the MoJ. The MoJ
subsequently informs the Privy Council Office when its own checks have been
completed and the law has been cleared for Royal Sanction. In order to expedite
the process, copies of the draft law and the Law Officers’ Royal Assent Memorandum
are now sent directly from the Lieutenant Governor’s office to the Privy
Council Office.
10 Traditionally, the Law Officers have had
two roles in the legislative process—to act as the legal advisers to the
Crown on matters of Jersey law and as legal advisers to the States
(historically, the Attorney General would advise the Crown and the Solicitor
General, the States). Any potential difficulty
in this situation could be avoided by the Law Officers first making any adverse
views known to the States before the law is lodged au Greffe. The Law Officers were, and still are, charged with
advising the States on any legal questions about a draft law, and advising the
Crown that in their opinion the draft law is one to which Her Majesty might
properly give Royal Assent. Indeed, this wording still appears in a formal
letter, signed by both Law Officers, and accompanies what is now known as the
Royal Assent Memorandum, submitted with each new law requiring assent.
11 Prior to 1997, the relationship between
the Channel Islands and the Home Office had been of long standing and there was
wide experience of dealing with each other and a great depth of knowledge in
the Home Office of the constitutional arrangements existing between the Islands
and the Crown. However, fairly shortly after the election of the new government
in the United Kingdom in 1997, responsibility for Crown Dependencies matters
was transferred from the Home Office
to the Lord Chancellor’s Department, which in 2003 was
renamed the Department for Constitutional Affairs, and eventually became the
Ministry of Justice in 2007.
12 The fracturing of the long-term
relationship with the Home Office and its officials led perhaps to the loss of
“inherited” knowledge. The relationship with the successor
departments was affected and not enough continuity was maintained; at any rate
it seemed that way to those involved in Jersey. Almost inevitably, the
relationship became more distant and—it has to be said—less
trusting and more cautious, on both sides. A new modus operandi had to be established.
13 It became clear to those involved at the
Jersey end of the Royal Assent process that delays were occurring which would
not have been expected when dealing with the Home Office under the old
régime. The situation gradually worsened, and it became obvious that for
the staff at the London end of the process, dealing with draft laws approved by
the States of Jersey was only a minor part of their duties and not always one
that was at, or close to, the top of their list of priorities. This was perhaps
not surprising as the department had many demands on its time and fewer
resources to devote to them.
14 There were also real concerns that some
of the UK civil servants did not fully understand the nature of the United
Kingdom government’s rôle in dealing with
the Crown Dependencies; and, without a clear explanation of the position by the
Island’s officials and politicians, this sometimes diverted the process
inappropriately, as the instance of the amendment to the Law Society Law
illustrates. An increasing number of queries were often raised with the Law
Officers, via other government departments,
from officials who were evidently unfamiliar with the precise nature of the
constitutional relationship and the limited rôle
of MoJ in the royal assent process.
15 It also became clear, especially after
the financial crisis in 2008 and another change of government in the United
Kingdom, that spending cuts there would mean that the meagre resources given to
the MoJ, particularly in respect of the Crown
Dependencies work, were unlikely to be supplemented and, indeed, would most
likely be reduced even further. These difficulties were sometimes made worse by
the frequent changes in personnel, especially in the legal advisers’
branch, of the MoJ. Fortunately, in recent times, we
have seen more stability in this respect.
16 Against this background, the decision of
the Justice Committee of the House of Commons in 2009 to investigate the rôle of the MoJ in
administering the relationship between the United Kingdom and the Crown
Dependencies was widely welcomed. For Jersey at any rate, the recommendations
of the Committee have led, along with certain changes
outlined below, to a considerable improvement in the way that the royal assent
process is handled.
17 Though it is not perhaps the most
significant of its findings, the Committee could see that there was often both
unnecessary delay and duplication of effort in the scrutiny of legislation sent
for Royal Assent. The Committee set out some findings briefly, in the
introduction of its Report on this process—
“We found that there was duplication of effort in
the processes relating to the scrutiny of insular legislation prior to Royal
Assent, with several sets of lawyers sometimes reviewing legislation for the
same purposes. In addition, we found that Ministry of Justice and other UK government
lawyers were not necessarily confining themselves to the constitutional grounds
for review and were questioning the form and policy content of insular
legislation on other grounds. This is inappropriate, both in terms of a
non-essential use of scarce resources and in terms of the constitutional
autonomy of the insular legislatures in relation to domestic matters.”
18 The
Committee’s detailed conclusions included one
recommendation that the Insular Law Officers’ judgment on a new piece of
legislation should normally be relied upon by the MoJ,
and in relation to complex legislation, scrutiny of the legislation should be
carried out expeditiously so as not to frustrate the will of a democratically
elected parliament.
19 This
was coupled with a call to produce revised protocols for the scrutiny of
insular legislation, setting out with clarity, inter alia, the constitutional grounds on which insular legislation
might be challenged; the responsibilities of ministers and officials at each
stage of the scrutiny process, and the appropriate time limits for processing
legislation prior to Royal Assent.
20 The
UK government’s response to this part of the
Report was to accept that there could be duplication of effort and to suggest
that, if the Island’s Law Officers were to provide a detailed report of
their analysis of a draft law and how it might touch upon international or constitutional
issues, then the need for such questioning from the MoJ
would be substantially reduced. Such questioning could therefore be restricted
to specific topics; for example, any laws which are concerned with the
constitutional relationship, or which had significant risks
of challenge, for instance under human rights legislation (the ECHR), EU law or
other international obligations.
21 It
was noted that this may require the Law Officers to commit more resources to
this process and the MoJ undertook to work with the
Crown Dependencies’ Law Officers to put an appropriate procedure in
place.
22 One
of the effects of the recommendations and the UK government’s response to
those recommendations was, therefore, to increase the significance of the Law Officers’
report on a draft law. It was quickly realised in
Jersey that this presented the Law Officers with both a challenge and an
opportunity. Work began, therefore, soon afterwards, on proposals for a new
system for dealing with major items of new legislation, to reduce delays in the
process, both in Jersey and with the MoJ, to a
minimum.
23 There
were considerable resource implications in this new system for the Law
Officers’ Department, for much of the burden of undertaking the
responsibilities of the UK government was being transferred to Jersey. A case
was made for the necessary extra manpower to enable the new style of Privy
Council Report to be prepared, as well as dealing with some of the structural
problems in the legislation process at the Jersey end. The Island’s government
was receptive and the necessary resources were made available.
24 After
discussions with the MoJ on the development of the
proposal for a more detailed report by the Law Officers, it was agreed that the
“old” Privy Council Report would be replaced by a new Royal Assent
Memorandum (RAM). This would give much more detail about the background to new
legislation and would give a fuller explanation of the workings of the new law.
Most significantly, it would deal specifically and at length with the important
questions of ECHR compliance and other international obligations, including any
impact on EU law or the constitutional relationship.
25 One
by-product of the extra resources and the work required to produce the new
style RAM was that it became possible for a much more detailed analysis of the
human rights aspects of a draft law to be prepared in a form which could be
annexed to a proposition for a draft law (Projet de Loi) for the information of States
Members. This is something which had been called for by a number of States
Members in 2011. A similar practice has been followed with government bills in
the United Kingdom Parliament, following a recommendation of the Parliamentary
Joint Committee on Human Rights. This new practice was approved by the Council
of Ministers at the end of 2012, introduced for the draft Discrimination
(Jersey) Law 201-, and adopted for all Projets de Loi lodged since the beginning of 2013.
26 The new process for RAMs has been in place since the end of
September 2012 and while relatively few laws of any great length or complexity
have since been adopted by the States, the tables in the Schedule illustrate a
dramatic difference in the situation before and after the new system. The
tables focus on when a law has been adopted and when it has received royal
assent but arguably the crucial hurdle for a draft law is when it is cleared by
the MoJ legal advisers. The law must then be formally
signed off by the Secretary of State or a Junior Minister, and then submitted
to the Privy Council Office to be put on the agenda for a forthcoming Privy
Council meeting, and this is subject to strict deadlines.
27 Taking
the Debt Relief (Developing Countries) (Jersey) Law 2013 as an example, this
draft law was given clearance by the MoJ legal
advisers a mere nine days after having been adopted by the States, but it was
too late for it to proceed to the December Privy Council meeting given the
deadlines for submission to the Minister and the Privy Council Office. As there
is no Privy Council meeting in January, it had to wait until February to be put
on the agenda and ultimately receive royal assent. So whilst for that
particular draft law the gap between adoption and sanction was three months,
the fact that the MoJ were able to clear it in just
over a week was nothing short of remarkable, especially in light of the
significant delays for legislation in the past, even if one takes into account
the fact that the Debt Relief Law is modelled closely on the United Kingdom’s
own Debt Relief (Developing Countries) Act 2010.
28 Some
of the credit for this reduction in the times for processing laws for Royal Assent
must undoubtedly go to the MoJ legal advisers.
Following a tremendous effort on the part of the MoJ
to clear all the draft laws awaiting Royal Assent by October 2012, the average
time for a law to be sanctioned has more than halved to an average of three
months and, at the time of writing, for the first time in many years there are
currently no Jersey Laws awaiting Privy Council sanction.
29 Within
the limitations of the present system, therefore, much has already been
achieved to reduce the time it takes to get a Jersey law on to the statute
book. But on both sides of the Channel, and in consultation with
opposite numbers in the other Crown Dependencies, the search continues for
changes and improvements which might reduce yet further the delays in the
sanction process or, in some instances, remove the need for Royal Assent
altogether.
30 Pressure for such changes is coming from
both sides: for Jersey it is mostly driven by the need to be able to enact
legislation of all types within the shortest possible delay in order to satisfy
the demands of government and the public, and on the MoJ
side, it is to find ways to reduce still more the burden of
Crown Dependencies’ work on an ever decreasing number of personnel.
31 Clearly, there are limits to what can be
done within the present system and under the existing constitutional position
of dependency. Some aspects of the royal assent process have inherent delays:
the Privy Council does not meet during August and September each year, nor in
January. Thus, a draft law adopted by the States in late June or July cannot be
sanctioned in any event for at least three or four months.
32 Ways are being examined, therefore, to
reduce or even eliminate these problems. One of these might be to confer a
power to give Royal Assent on the Lieutenant Governor, at least in the case of
draft laws which do not touch on the United Kingdom’s international
responsibilities or affect the constitutional arrangements, although care would
be needed to avoid compromising the Governor’s political impartiality. A
similar system has been used in the Isle of Man since about 1981. Indeed, as
regards the aforementioned example of the Debt Relief Law, the Isle of
Man’s equivalent Act was cleared by the MoJ
legal advisers at the same time as the draft Jersey law, and the Isle of
Man’s Lieutenant Governor was able to assent to the Act almost
immediately, whereas Jersey had to wait some three months until the Law
received Royal Assent. Other possible changes, such as enabling the States to
make purely local or municipal laws without the need for Royal Assent or to
expand upon existing powers to make subordinate legislation, which does not
require royal assent, are also under examination.
33 The Justice Committee has recently
announced that it intends to review progress with implementing its
recommendations and it will be receiving submissions from the Crown Dependencies
this year as a follow up to the Report in 2010. In the context of Royal Assent,
Jersey (and this may be true also of Guernsey and the Isle of Man) will be
reporting favourably on this front to the Committee i.e. that Her Majesty’s inbox is
no longer clogged up with a significant backlog of laws relating to such things
as the Jersey Football Association, the Law Society of Jersey or “l’atténuation des peines et
. . . la mise en liberté
surveillée”
Richard
Whitehead is the Director, Civil Division, of the Law Officers’
Department, Jersey. Steven Meiklejohn is one of the
Assistant Legal Advisers in the Civil Division of the same Department.