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Jersey is in danger of losing pace entirely unless it can get its legislation out quicker

later, it has only just been approved by the States. The States seemed to have been striving for the perfect solution, but in the meantime the island has been left with a law introduced in 1911. Wouldn’t it be better to make the changes, even if the new law needed further tweaking? Mark Renouf, Partner at Hanson-Renouf,

certainly thinks so. “We would have had much more chance of landing the likes of Google or Amazon with a law a few years out of date, than with one drafted when wax cylinders were de rigueur and the iPod was 89 years in the future,” he states. So, how to solve the problem? Outsourcing

storage industries are now massive. International data-flows across the Bailiwick now exceed South Africa’s, despite a population of a mere 65,000 (compared to South Africa’s 49 million). It’s not hard to see the benefits that accompany the swift introduction of legislation – especially when many agree that Jersey desperately needs to diversify away from its reliance on financial services. Failure to act quickly now may see

The drafting process

Laws are born in two stages. First, the department behind the Bill develops the substance of the policy. They then pass the instructions to the draftsmen, who must express the concept as a coherent and effective law. These initial instructions are crucial. Nothing matters more than the ideas that form

the backbone of the policy, so the working proposal needs to be detailed and relatively complete. Hence the time often given to consultation periods and working groups, and the release of green and white papers. Yet often a lack of time or money means the instructions aren’t decent enough to begin with. As it’s almost impossible to nail all of a law’s implications at once, the policy tends

to evolve throughout the back-and-forth of the drafting process. The draftsman argue the finer details with the relevant officials before preparing a first draft, which goes back to the department for them to scrutinise and throw in their tuppence-worth. These steps are repeated until the project’s ready to move on to debate in the States and finally to the Privy Council. The content, then, is very much a two-way thing – legal draftsmen add original

ideas as the policy evolves, and comments from the issuing department influence how the law is finally expressed. And if that law isn’t up to scratch, the officials and the draftsman are both liable to be held to account. One side, however tends to bear the brunt – it tends to be the draftsmen who get it in the neck.

18 April/May 2011

even more money flow the way of internet traffic – away from the island and to the coffers of the competition.

Dealing with the problem Yet if Jersey’s approach to intellectual property legislation is anything to go by, the lesson hasn’t been learnt. The draft Intellectual Property (Unregistered Rights) Law was introduced in 2002, and now, nine years

is often touted as a solution. South Africa has outsourced the drafting of its IP laws, but Jersey’s draftsmen insist they’ve tried it with no success. “A draftsman needs to be in office, to be highly skilled, and to understand the quirks of Jersey legislation,” says Staley. “That’s a rare combination. It’s cheaper and more effective to keep it in-house.” Staley’s equivalent in Guernsey, Robert

Titterington, agrees. “Outsourcing is OK if you can find someone who knows your legal system,” he says. “But if they don’t, it doesn’t really work.” Other ideas are equally forthcoming.

Renouf urges cutting the consultation process, and says the States need to prioritise financial services laws. “We could introduce a dedicated ring-fenced fund for finance industry legislation, so that there’s always a team working on these particular laws and encouraging the private sector to maintain the island’s prosperity.” The hitch here is that prioritising laws

is a political issue – thus ripe for yet more prevarication. But with good reason perhaps. Over-emphasise financial services legislation and you’re in danger of wider social issues getting pushed off the agenda. “The Council of Ministers aims for a balance,” says Staley. “Otherwise we’d hear an outcry.” While the relevant players continue to

debate a solution to the slow development of new laws, the pack is pedalling ahead. Jersey is in danger of losing pace entirely unless it can get its legislation out quicker. “Our most important social investment is actually to make sure the wealth continues to be generated,” says Renouf. Perhaps it’s time to finally shift gears. n

DAVE WALLER is a freelance business journalist

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