constitutional law 2019 past paper Flashcards
An important foreign client has asked your Senior Partner “what does the Chief Minister do?” The client was apparently confused by your boss’s explanation, as it is all so different to what he is used to at home, and asks whether the Chief Minister is actually in charge of anything? He asks you to prepare a note on the role Chief Minister and the limitations of the office.
Under Article 26 of the States of Jersey Law 2005, each Minister (including the Chief
Minister) is a corporation sole with an official seal. Each Minister has the power to:
* enter into agreements for the purpose of his office;
* acquire, hold and dispose of moveable property;
* do any other thing which he can do by virtue of his office; and
* do anything reasonably necessary or expedient for or incidental to any of the above.
A Minister may, in the name of his office:
* sue or be sued in civil proceedings; and
* be charged in criminal proceedings.
The Chief Minister is ineligible for appointment as a Minister or Assistant Minister
(Article 20). Article 21 states that the appointment of the Chief Minister ceases when a
further appointment takes effect or where the Chief Minister ceases to be a Member by
reason of disqualification from office. The Chief Minister may resign by notice in writing
to the Bailiff, who then notifies the States.435 The Chief Minister may appoint any
Minister to be Deputy Chief Minister, and may dismiss such person.
The Chief Minister
may personally discharge, or delegate, the functions of an absent or incapacitated
Minister.
The Chief Minister may appoint one or more elected members as Assistant
Ministers.438 The Chief Minister may, with the States approval, move a Minister from one
office to another. The Chief Minister is required to establish, maintain and publish a list
of Ministers and Assistant Ministers and the functions exercisable by them and by the
Chief Minister personally.
what is the basi =c nature
ststes ass chooses chief
and chsooses minister
in chrge of
chief minister has the supporting vote of the majority, they are not necceary a praty supporter, the chief is to nominate the other minsiters and the states assembly will then agree or disagree.
you could compare with the UK.
he cannot have the majority in the states assembly noy necessarily .
chief minister will have statuary power as given in statute. they are in constant negotiation with the states assembly.
They are effectvly the primonister forthe outside world.
Bois and Kilbrandon were both writing about the same time. The last fifty or so years shows us that there is no such thing as a “reserved power” (i.e. reserved to the UK Parliament) where Jersey’s legislative competence is concerned. There is instead a still very active debate about the UK’s constitutional right to withhold the royal assent. Discuss critically.
the first case which springs to mind in this debate is Barclay, R (on the application of) v Secretary of State for Justice the court stated that
The United Kingdom Parliament has power to legislate for the Islands, but Acts of Parliament do
not extend to the Islands automatically, but only by express mention or necessary implication. The
more common practice is for an Act of Parliament to give power to extend its application to the
Islands by Order in Council.
The significance of this statement of the law is difficult to determine. The UK Supreme
Court has no jurisdiction over the Royal Court or States and so the decision is in no way a
direct statement of Jersey law. However, it comprises judges who, in another capacity, sit
on the Judicial Committee of the Privy Council and so are the judges of the highest
authority in Jersey.
Furthermore, the statement was obiter as the issue before the court was
the judicial review before the High Court of England of a decision of the Privy Council
giving Royal Assent to a Sark law (which the Court concluded was possible in theory, but
not generally appropriate). Finally, the statement refers to Madzimbamuto which related to
legislative power over a colony (Southern Rhodesia) and not a Crown Dependency which
have different constitutional status even under British law. The view expressed is therefore
of uncertain weight.
Accordingly, if Jersey does not legislate in accordance with its obligations then the United
Kingdom could renounce any extension to Jersey. There is normally no need for the
problem to be resolved by the United Kingdom imposing legislation on Jersey. Further,
developing the arguments of Jowell, he suggests that if the United Kingdom legislates
against the wishes of Jersey to comply with international law it may well, at the same time,
be infringing Article 3 of the First Protocol. The United Kingdom cannot acquire an
undemocratic right to legislate for Jersey by its own undemocratic choice to impose an
international law obligation on the Island.
It might be noted that Baroness Hale was entirely unreflective on the problematic issue of
the royal prerogative in foreign policy being used to justify the subversion of representative
democracy in Jersey. This is ironic given the recent UK Supreme Court decision in Miller
(No.2) led by Baroness Hale on the use of the prerogative to restrict the functioning of
representative democracy.
when is it constitutional for the UK to deny royal assent.
“Le Geyt said that the new customary law of Normandy had become a torrent prevailing in Jersey. It is strange that 300 years later there can be doubt about the legitimacy of referring to the coutume reformee.” Critically discuss
it
did not have the force of law, but was merely illustrative of what the law was at the time
and the customary law could and did continue to develop. Once a customary law was
redacted by royal authority in the form of the Coutume Reformée, it could no longer be
amended other than by legislative authority, and any development through usage would
have to be a matter of interpreting the coutume. In the case of Jersey law, the customary
law was never redacted by royal authority and, accordingly, to this day remains capable of
development through judicial decision. so in refrenceing the coutume you run the
poingdestre 1847 comisioner
raise the doubts and counteract then in term.
know cotume reformee
Advocate Cheetham wants his firm to contribute articles to the Jersey and Guernsey Law Review, and asks you to set to work on the topic of “Article 31: how does it work, its scope, its limitations, and does it actually achieve anything?” He particularly wants this to include the main points of the Article.
four subheadings
what is art 31
it governs the approach to consent to certain
how does it work (scope)
by convention the uk doe snot leg without consemt on JSY. no rule in placde pror to 2005. it reats a code as to how it is done. uk orders of council. uk statury apllying to JSY will be reg in royal court. there is a question to wherether reg is nessecary. conset is sought and given? Royal court will say has it been gieven or not, if it has not it will be reffred to chief minister. Does this applu to all UK legistation it does not apply to perogative orders.
cobsent is gieve or demised what happens next (does it achive anything)
if consent is not given you have an impass, uk woudl say reg not necceasry is there anything in the lae to say that the royal court woudl not just register it anyway. It achives a clarity as to the consent. Lord anderson no clarity as to whether theis any legal consequesnce to the registration.
if you have a dfinadamental constituatioa principle it cannot be overturned?
mention Lord andersons point.
Article 31 - Duty to refer certain matters to the States
(1) Where it is proposed –
(a) that any provision of a draft Act of the Parliament of the United Kingdom should apply directly to Jersey; or
(b) that an Order in Council should be made extending to Jersey –
(i) any provision of an Act of the Parliament of the United Kingdom, or
(ii) any Measure, pursuant to the Channel Islands (Church Legislation) Measures 1931 and 1957,
the Chief Minister shall lodge the proposal in order that the States may signify their views on it.
(2) Where, upon transmission of an Act of the Parliament of the United Kingdom containing a provision described in paragraph (1)(a) or of an Order in Council described in paragraph (1)(b) to the Royal Court for registration, it appears to the Royal Court that the States have not signified their agreement to the substance of the provision or Order in Council –
(a) the Royal Court shall refer the provision or Order in Council to the Chief Minister; and
(b) the Chief Minister shall, in accordance with paragraph (1), refer it to the States.
Article 31 States of Jersey Law 2005 imposes a duty on the Chief Minister to lodge any
proposal that a UK Act should apply directly to Jersey or that an Order in Council should
extend a UK Act or any measure pursuant to the Channel Islands (Church Legislation)
Measures 1931 and 1957 to Jersey. Where such legislation is transmitted to the Royal
Court for registration and it appears that the States have not signified their agreement to
the substance thereof, the Royal Court shall refer the provision or the Order in Council to
the Chief Minister, who shall refer it the States.
In the Matter of the Terrorist Asset-Freezing (Temporary Provisions) Act 2010 the court considered
“The effect of Article 31 of the 2005 Law is that, as a matter of Jersey law, the approval of the
States is necessary before an Act of the Westminster Parliament can be registered with the Royal
Court”.
The court noted that the only previous statement about the effect of not registering a UK
Act is in Ex p Bristow
Discuss this statement with reference to Jersey law and its linkage to the Code civil.
Jersey has much more in common French law than english law and Pothier’s works served as the basis for many of the provisions of the Code Civil,
and he has frequently been described as the father of the Code Civil.
Upon the
coming into force of the Code Civil in 1804, customary law in Normandy and the rest of
France came to an official end. Given the parallel development of Jersey and Norman
customary law until that time, the extent to which the provisions of the Code Civil, and
developments in French law since then have relevance when considering Jersey law is key.
A starting point is to examine the extent to which the Code Civil represented a significant
change to what had been the law in mainland Normandy at the time that it came into
force. Although the Code Civil did introduce changes, it has been described as more
reactionary than revolutionary. Much of the Code Civil was based on the writings of the
likes of Pothier and Domat. The Code Civil had an early influence on Jersey law, for
example parts of the Loi (1880) sur la propriété foncière. To that extent, an enquiry into
developments in the French law in such areas is of interest (albeit not binding) in Jersey. It
was noted in the Civil Law Commissioners’ Report that the education of Jersey lawyers in
France helped to impart a modern French complexion to the jurisprudence of the Island.
Much of the Code Civil has now changed due to subsequent intervention by the French
legislature. However, much also remains in its original form, which (at least in parts)
reflected the customary law in Normandy and elsewhere or the influence of writers such as
Pothier who had, and continue to have, much influence on parts of Jersey law.
it is worth noting Maynard v Public Services Commission
care has to be taken in referring to French legal texts in connection with the law of Jersey. After
the Channel Islands were severed from the rest of the Norman territories in what is now France,
Norman customary law continued to develop in Jersey, Guernsey and Normandy in parallel, but
not with identical developments.
Others believe that it is only natural for Channel Island lawyers, where there is no local
statute, to turn to the Code Civil and decisions of the French courts, at least where the
relevant provision of the Code Civil can be traced back to the Norman law pre-1804 or to
the writings of the likes of Pothier. Thus Kelleher suggests that the warning sounded in
Maynard v Public Services Commission (1996) could similarly (and perhaps more cogently) be
sounded about relying on English law. In Selby v Romeril223 it was observed that, despite the
value of Pothier’s works, the law could not be considered to be “frozen in the aspic of the
18th century”. In that case the court considered and adopted the Code Civil requirements
for the formation of a contract. And in Kwanza v Sogeo,224 in relation to vices cachés, the
Court thought that the provisions of the Code Civil, rather than the law of England, was
the surer guide to the discovery of the law of Jersey.
tort much more closley follows english law
Stephanie Nicolle suggested that the continuous grafting of post-separation developments in Norman
law into the Jersey legal system, where they took root and flourished, was a recognised
feature of Jersey’s legal development from an early date and should continue to be the case.
The Code Civil and cases decided under it are relevant to Jersey in three ways:
i. where the provisions of the Code Civil are derived from pre-existing law which
would have been followed in Jersey, they may be of assistance when interpreting or
applying the pre-existing law (Selby v Romeril230);
ii) to the extent that the Code Civil was used as the basis for Jersey legislation, e.g. the
Loi (1880) sur la propriété foncière, they may be of assistance in interpreting such
legislation (De Quetteville v Hamon231); and
iii) as a result of the continued assimilation of French law into Jersey law, which is
perhaps not surprising that practitioners for a long time largely studied law in
France.
There are a number of areas of law where Jersey courts may have regard to French law,
including contract, propriété foncière and succession. Particular note should be made of
areas in land law such as usufruct, where there is no English law equivalent. In such cases,
French law may be the only logical source to borrow from in the absence of established
local authority.
French works such as Merlin, Rondonneau, Planiol, and Dalloz have been cited in relation
to Jersey law and have since continued to be cited in Jersey. Planiol and Dalloz are perhaps
the most cited of these works:
it is importnat to inclue who would disgree, it is difficult to accuratley say that the french code should be used as the majority of practioners in Jersey speak English and would thereforw lean to Emglish law
Richard Southwell - counter argument.
Terrian, 1847 critique and couter argument - customary law as it was at the time
customary law is a magpie drawing in law from lots of sources.
State V Qatar?
Basnage - explain.
smith v Harvey
when English law is used?
which areas of other law have been called in for?
“If party politics takes off in Jersey at the next election, we can expect the debate on the Constables’ ex officio membership of the States Assembly to make another return.” Discuss briefly
the part gets voted in majority 12 costables who are not elected
the purpose of an election is to chose the government.
if you have party politcts you will take away from the coustablesnthey are supposed to take on the bset interest of the parish
if you win the election it is not really ?
The Minister for Health wishes to empower any duly authorised officer of the States to confiscate the cigarettes of any person found smoking in a public place. There is nothing in any existing legislation that would help, and he is reluctant to bring a Law to the States until the scheme has had a trial run. Is there any other course worth considering? Discuss briefly
listing various criteria and Triennial regulations and give opinion
briefly outline the constitutional importance of King John
Essentially, he created
the distinct identity of Channel Island justice
he set out two things, of which are relevant for constitutional importance
First, it specified that there were twelve coroners (coronatores) sworn to keep the
pleas and rights of the Crown. Their role was to oversee the judicial actions of the Bailiff
not as judges but they had to be present)
they also provide control and support to the
Bailiff.
It is arguable that they became the Jurats.
IGNORE (there is an alternative view that the Jurats
existed earlier and are a descendent of the Visigoth judges: see Balleine).
The second
element of the Constitutions was that the Bailiff, in the view of the coroners, could deal
with the “petty” assizes ‘without a writ’
IGNORE(this eventually covered matters of up to the value
of half a knight’s fee – leaving only the very rich requiring a writ).
This gave access to Royal
Justice more cheaply and effectively. It also enabled the Jersey legal system to be
independent of that in England (and to have a largely SPOKEN tradition).
possibly a forgery although it would not make a difference if it was. earliest statement how the relationship jsy gsy and english were to be dealt with after separation. a bribe to see if Jersey would stick with the crown.
jujstice was very oftern exercised by the local lords and their local courts in these days.
this meant that they coudl appeal to the king without going al the way to england.
Briefly the constitutional importance of the quo warranto proceedings
