GUERNSEY BAR EXAMINATION 9:30AM, 27 APRIL 2015 COMPULSORY PAPER BAILIWICK LAWS, CONSTITUTION AND ADMINISTRATION THREE HOURS

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1 GUERNSEY BAR EXAMINATION 9:30AM, 27 APRIL 2015 COMPULSORY PAPER BAILIWICK LAWS, CONSTITUTION AND ADMINISTRATION THREE HOURS CANDIDATES ARE REQUIRED TO ANSWER ALL QUESTIONS. THE MARKS AVAILABLE FOR EACH ARE SHOWN. NOT ALL QUESTIONS CARRY EQUAL MARKS. PLEASE WRITE LEGIBLY AND ENSURE THAT YOU ANSWER EACH QUESTION ON A SEPARATE SHEET OF PAPER. PLEASE WRITE ON ONE SIDE OF THE PAPER ONLY AND LABEL EACH SHEET CLEARLY WITH: NAME OF PAPER CANDIDATE LETTER QUESTION NUMBER PART NUMBER OF THE QUESTION (if applicable) MATERIALS 1. The Reform (Guernsey) Law, 1948, consolidated text 2. Rules of Procedure of the States of Deliberation, consolidated text 3. The Alderney (Application of Legislation) Law, 1948, consolidated text 4. Human Rights (Bailiwick of Guernsey) Law, 2000, Order in Council and consolidated text

2 QUESTION 1 25 marks Alfred Abercrombie, who tells you that he moved from Surrey to Sark to avoid UK taxes several years ago, has ascertained via a Freedom of Information Act request in the UK that Her Majesty in Council has approved and sent for registration a Projet de Loi of the Guernsey States of Deliberation entitled The Stealth Tax (Bailiwick of Guernsey) Law, 2015, which purports to impose an annual charge of 5,000 on every Bailiwick resident who was not born in Guernsey and is deemed by a newly established Department of Stealth and Total Obscurity to have engaged in stealing or gliding along unperceived, furtive or underhand action, or eluding observation or discovery at any time since He is very cross with everyone involved and wants to obtain a declaration that the Law is incompatible with the European Convention on Human Rights, damages, and an injunction to restrain its registration, as may variously be most appropriate, against: (a) The States of Deliberation, for passing the Projet de Loi; (b) The Secretary of State for Justice, for recommending approval of the Projet to the Privy Council Committee for the Affairs of Jersey and Guernsey; (c) That Committee of the Privy Council, for advising Her Majesty to approve it; (d) Her Majesty, by and with the advice of Her Privy Council, for approving and ratifying it; (e) The Guernsey Law Officers and the Royal Court, to restrain its registration. Firstly, advise Mr Abercrombie concerning the Court or Courts having jurisdiction to consider such applications, by what means and subject to what limitations each of the above might be summoned to appear, and the issues which will affect his prospects of obtaining the relief he desires, or any alternative relief which you may consider more appropriate, in any of those Courts against each of those parties. Secondly, settle either a Cause (if your advice is that proceedings in a Bailiwick Court are more appropriate) or instructions to English counsel (if your advice is that proceedings in a UK Court are more appropriate).

3 QUESTION 2 20 marks The United Kingdom has announced its intention to withdraw from the European Convention for the Protection of Human Rights and Fundamental Freedoms. In Guernsey the Policy Council is split on retaining the Convention and/or Guernsey s Human Right s Law. Whilst a majority of Ministers are agreed that some form of protection for fundamental rights should be recognised in law, and it should be sufficiently robust to gain respect in the international community, they disagree about the most appropriate methodology; and in those circumstances it looks like they are not going to recommend the States of Deliberation to do anything. Seven States Deputies come to see you. They take the same view as the majority of Ministers; and, rather than disagreeing about methodology, they candidly confess to not understanding what options there may be, or which may be better than others, or in what respects; but they are all uncomfortable about doing nothing. (a) Advise what will be the position, both in domestic and international law, if no action is taken. (b) Advise on the options which you see for retaining some form of legal protection for fundamental rights which will be sufficiently robust to gain respect in the international community; their relative strengths and weaknesses; which, in your opinion would be the most appropriate, and why. (c) On the assumption that the seven Deputies accept your advice, settle a first draft of whatever document you consider best calculated to initiate a process designed to secure that most appropriate option.

4 QUESTION 3 15 marks It has been said that, despite the fact that 94% of public sector expenditure in Alderney is incurred by the States of Guernsey, the current relationship between the two islands is an unhappy one. Explain (a) the constitutional relationship between Guernsey and Alderney (in answering this question you should, in particular, examine the responsibility of both the States of Guernsey and the Royal Court of Guernsey for Alderney), (b) whether you consider there is anything in the constitutional relationship between Guernsey and Alderney to support the quote above and (c) the constitutional relationship between Alderney and the UK, and any actual or potential constitutional relationship between Alderney and any other Channel Island, apart from Guernsey.

5 QUESTION 4 15 marks The constitutionally-defined goals of the European Union pitch it as both a political project of lasting peace, co-operation, and prosperity as well as a free trade area with a market and a currency. The holding of a referendum on the UK's membership of the EU may result in it leaving the Union or changing the UK s current terms and conditions of EU membership and could weaken the unity and integrity of the UK. (EU Referendum could weaken UK unity, J Merkens, Associate Professor of Law at London School of Economics) Critically evaluate the effect that the loss of UK membership of the EU may have on the Bailiwick, by reference to the current relationship between the EU and Bailiwick of Guernsey. Your answer should include consideration as to how any changes to the Bailiwick s relationship with the EU might be effected and what consequences might ensue.

6 QUESTION 5 15 marks The first collation of the coutume of Normandy was the Très Ancien Coutumier in the early 13th century and the Grand Coutumier followed later that century. Guernsey s principal source for Norman customary law is the Grand Coutumier. The Grand Coutumier was replaced shortly after the Approbation des Lois in 1583 by the new Coutumes du Pays de Normandie (the Coutume Reformée). Many of the commentators routinely cited over the centuries in the Bailiwick courts comment on the Coutume Reformée. (M K Duquemin and SV Duquemin v Dunstan Investments Limited Para 20 of the Judgement of Deputy Bailiff G Rowland, Royal Court October 29 th 2004) Of what relevance to the Guernsey Advocate in 2015 is/are (a) the coutume of Normandy, (b) the views of commentators on Norman customary law (your answer should include specific reference to at least 5 such commentators) and (c) the Code Napoleon or French Civil Code, ?

7 QUEDTION 6 10 marks Briefly evaluate the duties and responsibilities of the following officers (a) The Lieutenant Governor (b) The Bailiff (c) The Jurats (d) The Law Officers (e) H M Greffier