Knowledge

A Code for Jersey

In 1769, a group of hungry islanders stormed the Royal Court. They demanded legislative action to reduce the cost of wheat. The following year, the Crown sent an expedition headed by Colonel Bentinck to re-establish order and address the islanders' concerns. 

This enquiry produced the Code of Laws for the Island of Jersey (1771) (the "Code"). As the first comprehensive written compilation of Jersey's laws, the Code (in the words of Bentinck) hoped to prevent islanders from living in "continual dread of becoming liable to punishments" by "disobeying Laws [that] it was morally impossible for them to have the least knowledge of". Despite Bentinck's promises, the Code retained some measures that might seem draconian by today's standards: for example, you could receive eight days imprisonment, on bread and water, for clearing sand dune rushes. Regardless, the Code was paramount in defining Jersey's legal and constitutional authority.

Amending customary law

The Code declared that "all other political [i.e. customary] and written laws heretofore made in Said Island, and not included in Said Code… shall be henceforward of no force and validity". This was hugely significant in establishing that legislation had the power and seniority to abolish customary law. Equally, it introduced the precedent that statutory provision was required to override an element of custom.

That being said, the Code expected future Laws and Ordinances to "become part of the Code of the Political Laws". This is important for underlining that the Code never intended to abolish the customary "Charters and Privileges" of Jersey. Instead, it looked to rationalise and compile diffuse pieces of custom and Acts of Council.

The abolition of interest caps in 1962 was one such legislative milestone influenced by this precedent. The customary limitation was influenced by islanders' experiences of usury and wider medieval Christendom's concerns with the linkage between moneylending and sin. In removing this restriction, the way was paved for the explosive growth of Jersey's finance industry - which remains the island's primary economic engine.

Defining Jersey's legislature

The Code also played a key role in defining the relationship between Jersey's domestic institutions. It transferred legislative authority from the Royal Court to the States Assembly (the "States"), creating a separation of powers between the judicial and legislative arms of government. This change introduced a cornerstone of modern democratic principles to Jersey. The Code also formalised the mechanisms of legislation. Going forward, Laws were to be passed by the States, confirmed by the Sovereign in Council and then 'registered' in the Royal Court before promulgation. This process allowed for local appeal and, importantly, meant that legislation did not come into effect until it had obtained the Crown's assent.

The Code's changes presented a mixed image for Jersey's legislative autonomy. Independence was curtailed to some extent; Local Ordinance, without the sovereign's renewed approval, became invalid after three years. Conversely, the Crown could directly legislate in Jersey through Orders in Council, although said Orders had to undergo the process of 'registration' before taking effect.

Affirming Jersey's sovereignty

The stringency with which these provisions were observed varied considerably. The restrictions on Local Ordinance were largely ignored, whilst the requirement of 'registration' was used to seriously impede the Royal Prerogative. In 1891, Her Majesty in Council amended Jersey's prison board constitution to grant the Lieutenant-Governor (the Crown's representative) a deciding vote. The decision, however, was made without the consent or awareness of the States. In the ensuing Prison Board case, the States appealed this decision, using the Code to argue that 'registration' was a substantive act of mutual assent, and an integral part of legitimating legislation in Jersey. The decision was repealed in 1894, thus affirming Jersey's constitutional independence from the United Kingdom.

The Code today

Indeed, the Code is still referred to by islanders today. In Buckley v Minister for Treasury and Resources and Ors [2024] JCA 288, a recent Jersey Court of Appeal case, the Appellant requested leave for a judicial review. The Appellant suggested that the introduction of higher Land Transaction Tax and Stamp Duty rates under the Finance (2023 Budget) (Jersey) Law 2023 was unlawfully retrospective and discriminatory (under the Human Rights (Jersey) Law 2000). The Code's role in defining Jersey's constitutional history was important for dismissing the Appellant's basis for judicial review. The Royal Court affirmed that once legislation had passed registration, it had no right to impinge on the States' legislative competence – a separation of powers indebted to the Code.

Conclusion

Ultimately, the Code offers a window into the development of Jersey's unique constitutional and democratic history. The legislative precedent set by the Code remains pertinent to this day.