Legislation in the Bailiwick of Guernsey can comprise a number of forms, mainly as follows: Projets de Loi, which after Royal Assent, become Laws; Ordinances; and, Statutory Instruments.
Legislation in Guernsey is prepared by the Law Officers. Amongst other things, they take cognisance of international law obligations arising from treaties and conventions and of human rights.
They give legislative effect to policies which have already been approved by the States after consideration of a States Report (or occasionally a Requête). Projets de Loi and Ordinances will have been carefully examined by the Legislation Select Committee to ensure, amongst a range of factors, that they conform with those States approved policies, before being presented to the States for approval.
Projets de Loi
Projets de Loi require the sanction of Her Majesty in Council, which is given by an "Order in Council". Following registration by the Royal Court, they are known as Laws.
Orders in Council are the pre-eminent legislation, and may significantly impact on peoples' (or companies') rights and obligations.
Laws adopted by the States of Deliberation may (or may not) be intended to apply also in Alderney and/or Sark. If they are to apply beyond Guernsey they usually (but not always) require the assent of the legislative assemblies of Alderney and/or Sark. Common assent is not necessary in the case of criminal laws, nor in the case of Alderney Income Tax (because Guernsey Income Tax extends also to Alderney), nor in the case of legislation on transferred services.
Because of the need for approval in some instances in Alderney and/or Sark and the need for Royal Sanction, Orders in Council cannot come into force until some time has elapsed after approval by the States of Guernsey.
It is worth noting that the Taxes and Duties (Provisional Effect) (Guernsey) Law, 1997, enables the States when approving a Projet de Loi dealing with tax related provisions to declare by Resolution that that Projet, or part of it, shall have effect from such date as may be specified in the Resolution as if it were a Law sanctioned by Her Majesty.
The Law Officers prepare an opinion letter on a Projet de Loi. In essence it is a short summary of the proposed legislation. The opinion letter is sent to the Bailiff and is incorporated in a Petition which the Bailiff signs and sends to the Lieutenant-Governor who transmits the Petition to the Ministry of Justice. Projets are usually sent by the Ministry of Justice to the Government Department which in the United Kingdom deals with the same area of law. The purpose of the referral is to obtain confirmation that none of the provisions may be in breach of international obligations. Advice is also sought from Ministry of Justice lawyers before submission to Ministry of Justice Ministers for consideration as member of the Committee advising the Privy Council.
A summary of the legislation is then submitted to the Privy Council Office some five days before a meeting of the Privy Council. Privy Council Office officials prepare a note for the Lord President of the Council referring to each item of business for the meeting of the Privy Council. With the approval of the Lord President of the Council an Order of Business paper is submitted to Her Majesty's Private Secretary for the meeting of the Council. From time to time, the Law Officers will have a sent a draft Projet to the Ministry of Justice before submitting it to the States of Deliberation in order to benefit in advance from any observations by lawyers in the relevant Government department or Ministry of Justice lawyers.
Her Majesty will sanction the legislation in the presence of at least three Privy Councillors. Following Royal Sanction, the Secretary to the Privy Council signs the Order in Council which is then transmitted to the Ministry of Justice through official channels for registration in the Royal Court. At the direction of the Royal Court, Orders in Council applicable to Alderney and Sark are transmitted to those islands.
Orders in Council are made by Her Majesty as Orders in right of the Crown and not in right of the United Kingdom. When the Lord Chancellor and the Privy Council Committee for the Affairs of Jersey and Guernsey advise Her Majesty, they do so as servants of Her Majesty. Her Majesty's Government should not become involved in the process for United Kingdom political reasons.
There are nullification and consequential provisions in the event that Her Majesty in Council declines to sanction it.
Ordinances can be free-standing legislation concerning less fundamental matters. There has for many centuries been a power for the legislatures in the Bailiwick to make Ordinances in exercise of a customary power to do so, but the limits of that customary power are ill-defined. The common law power can be deduced from an analysis of established custom and practice.
These days, Ordinances are more often than not made pursuant to an express power conferred by a Law (often referred to as an enabling Law). Ordinances in such cases fill out the detail not included in the text of Orders in Council to the extent, in effect, permitted by Her Majesty in Council. Over the last century, the extent of the Ordinance making powers conferred in an Order in Council, has expanded in line with the evolving maturity of the legislatures. Custom and practice is ever developing.
Guernsey Ordinances usually apply only in Guernsey (which normally includes Herm and Jethou). Because no further sanction or assent is necessary they can, and frequently do, come into force immediately on approval by the States of Guernsey. In recent decades certain Ordinances apply in Alderney and Sark where a power has been conferred in an Order in Council and Alderney and Sark have agreed that this be so. Recently, some Ordinances give to each of Alderney and Sark the option of disapplying the Ordinance by a vote within four months of the Ordinance being made in Guernsey.
In very urgent cases, pursuant to the powers conferred in The Reform (Guernsey) Law, 1948 as amended, a Guernsey Ordinance can be made and brought into force immediately by the Legislation Select Committee, but is subject to subsequent annulment by the States. There are similar powers to legislate urgently by Ordinance in Alderney and Sark.
A Statutory Instrument is a form of delegated legislation, invariably delegated to Departments of the States, enabling matters of detail to be filled out within the legislative framework. Statutory Instruments will come into force according to the provisions of the Order in Council or Ordinance which permits such detailed provisions to be enacted by Statutory Instrument. Commonly the words Regulations or Rules or Codes of Practice are used.
In most cases a Statutory Instrument can come into force immediately, but subject to a right of annulment by the States; in some others it cannot come into force until approved by the States.