Looking beyond 250 years of Jersey legislation

Monday 29 March 2021

On the 250th Anniversary of the '1771 Code’, the team responsible for drawing up Jersey's laws spoke to Express about drafting legislation in the age of covid, and what the future holds for their office.

250 years ago, Jersey brought together all its legislation into one comprehensive book for the very first time.

Pictured: The original 1771 code (left) is now available to view online in both its original, official version and the English translation.

Commonly known as the '1771 Code', the document was a direct response to the Corn Riots of two years prior, where one of the rioters’ key complaints was that the island’s courts were enacting laws without publishing them for islanders to see, leaving them clueless as to whether they were breaking the law or not.

Two-and-a-half centuries on, the Legislative Drafting Office is now an independent office working in tandem with the States Greffe, offering a service to both Ministers and States Members alike to help them draft laws in the appropriate and correct fashion, as well as publishing up-to-date laws on their website.

For the office, accessibility to the law for islanders continues to be a key concern. Launched yesterday, their ‘Beyond 250’ project looks to further increase the ease at which islanders can engage with and understand the rules that govern their day-to-day life.

“The Beyond 250 idea is that we’re taking that forward in what we’re doing on the website to make sure that Jersey people can access all of Jersey’s legislation in one place, up to date and current,” Senior Legislative Drafter Matthew Waddington explained.

Pictured: The 'Beyond 250' project aims to increase accessibility to Jersey's law, as part of celebrating 250 years since the 1771 Code.

The project is planned to run to end of September to mark the anniversary of the Corn Riots themselves, when the States Greffe will hold a 'Parliament Week', and proposals for an extra bank holiday at the time have been lodged.

One of the key outcomes the office are hoping will come alongside the initiative is the implementation of a brand new law.

Since the Law Revision Jersey (2003) Law was brought in, the office has been publishing an annually revised physical edition of the legislation showing the changes as of 1 January of the published year. However, with the documents usually published in April, they would often soon be outdated, if not already by the time they were published. 

With this new law, the online list of Jersey's consolidated legislation - which is currently updated as soon as a new law is passed - would replace these annually released books as the officially recognised version, and used in court as such.

“Since May of 2019, we’ve kept the law absolutely bang up to date [online], so what we’re doing now is using legal powers to say that’s the official version… the law also provides for duties on the Principle Legislative Drafter to publish everything and keep it up to date going forward,” Principle Legislative Drafter Lucy Marsh-Smith said.

Pictured: The Jersey Archive has an exhibition detailing the 1769 Corn Riots, which led to the 1771 Code being collated.

As Ms. Marsh-Smith pointed out, collating the law solely as these books “would have been hopeless for covid, because I think we’ve done about 120 covid orders altogether now, and it’s constantly changing.”

The pandemic has led the team to work at a pace like never before.

“We had to produce legislation very quickly,” Ms. Marsh-Smith said. “We had to produce an enabling law first of all to give us the powers to be able to do things by regulations, and regulations then to do things by orders so that the Minister could produce orders without the need to go to the States.”

Even then, it was not as simple as just handing over the power to legislate to Ministers – safeguards needed to be put in place to make sure Ministers was not given absolute power, and ensure that any decisions were kept in check.

Pictured: The Draft Legislation (Jersey) Law 202- is due to be voted on by the States Assembly on 11 May.

“We had to have the safeguards in place by first of all the authority from the law, and then for the regulations to set out the framework of what the Minister can and cannot do,” she continued. 

“We’ve gone through a whole load of orders with limited duration, so that’s forced the Minister to reconsider every so many weeks or whatever the time period is, whether they still need that legislation, and then we’ve just been modifying it.” 

She added: "It’s not the way we normally work... we've fitted that round our normal schedule, and of course we had Brexit as well, and because we’ve got the election next year, it’s a very busy time."

Though the urgency to keep up-to-date-laws as accessible as possible is one of the main considerations of the 'Beyond 250' project, another element they are deeply conscious of is making historic laws as easily available as possible.

“People don’t necessarily need to know what the law is today, they want to know what the law was for the last tax year, or for a particular tax year in the past, or when a contract was made, or they might be getting advice for a lawyer who wants to know the law when the offence was committed,” Ms. Marsh Smith explained.

The drafters are hoping the Jersey Legal Information Board website will be redesigned to incorporate what they call the idea of ‘Point in Law’, where users will be able to more easily search for a given law at a specific point in time, with specific emphasis on making the search engine easier to use.

Looking even further into the future, the office wants to become more involved in a global 'Rules as Code’ initiative, which could see code for digital and app developers drafted alongside laws.

Pictured: The Legislative Drafting Office are looking at potentially following the 'Rules as Code' initiative, and having code versions of law drafted up too.

“It’s about trying to, when we draft the legislation, produce some sort of computer marker of coding that enables a computer to pick up not just ‘this is the... law’ as of this date, but 'this is the definition, this is the defined term, here are all the cases in the rest of this law where that defined term comes up’ and then it can flag back to them,” Mr Waddington said.

“The idea would be the Government’s publish that marked up basic coding, and then developers from outside use it to produce either something that helps somebody actually do whatever it is that’s in the law.

“So [if it’s to] make an application for Social Security, or help them understand what their legal position is, they can work it out.”

Speaking to these overseers of our legislation, and looking back at the original documents that formed the roots of the very different laws we have today, reinforces just how malleable the presentation of law needs to be for changing circumstances - whether they be Brexit, a pandemic, or simply keeping up with the digital age.

With the 'the Draft Legislation (Jersey) Law 202-' now lodged and ready for debate by the States Assembly in May, the next step in that ever-evolving process started in 1771 is on the horizon.