By Carl Parslow
IN a recent article, I argued that Jersey would benefit from having an Upper House, not as an exercise in constitutional vanity, but as a practical safeguard: a second pair of eyes to improve the quality of our law-making.
Since then, events have supplied a real-world example of why this really matters. The same wise observer recently drew my attention to the Draft Harassment and Stalking (Jersey) Law 202-. It illustrates, in microcosm, the risks of legislating without sufficient independent and technical scrutiny.
Let me be clear at the outset. The intention behind this draft law is admirable. Protecting people from persistent harassment and intimidation is essential in any modern society. No one disputes that stalking and targeted abuse can be devastating. Jersey is right to take these issues seriously.
But good intentions do not guarantee good law.
Under the draft legislation, a person commits an offence if, on more than one occasion, they engage in behaviour whose cumulative effect causes another person “anxiety, alarm or distress,” and which a reasonable person would know was likely to have that effect. The potential penalty is severe: up to five years’ imprisonment.
On paper, this seems straightforward. In practice, it is alarmingly broad.
“Anxiety, alarm or distress” are not rare or exceptional states. They are part of everyday human experience. A difficult neighbour, a persistent customer, a determined campaigner, a disgruntled employee or even a frustrated parent might, through repeated interaction, cause someone distress without any malicious intent. Yet, under this formulation, such behaviour could potentially fall within the scope of a serious criminal offence.
The test combines subjective harm (“B feels distressed”) with an objective overlay (“a reasonable person ought to know”). But without clearer limits, this hybrid standard creates uncertainty for Islanders and excessive discretion for enforcement authorities. Criminal law should draw clear lines. This draft law risks drawing smudged ones.
This is where an Upper House would add value.
In a bicameral system, a second chamber, ideally comprising individuals with legal, regulatory and human rights expertise, would interrogate the detail. Not the politics. The wording. The unintended consequences. The practical operation of the law.
An Upper House might ask: What distinguishes serious harassment from ordinary persistence? How do we protect legitimate political protest, journalistic inquiry, workplace disputes and community activism? Should there be a clearer threshold of seriousness? Are the available defences sufficiently robust? Is five years’ imprisonment proportionate to the full range of conduct potentially captured?
These are not ideological questions. They are technical ones. They are the kinds of questions that determine whether a law functions as intended or becomes a source of confusion, litigation and resentment.
In Jersey’s current system, much of this work is squeezed into committee stages and ministerial consultations, often under time pressure and political constraint. Scrutiny panels do valuable work, but they lack the standing, permanence and authority of a dedicated reviewing chamber.
Backbenchers, meanwhile, are expected to be legislators, constituency advocates, policy critics and legal technicians all at once. That is not realistic.
The result is predictable. Drafting issues are noticed late, debated briefly and sometimes brushed aside in the rush to “get something done.” Laws are passed that later require amendment, judicial clarification or administrative workarounds.
Supporters of Jersey’s single-chamber model argue that our small size makes an Upper House unnecessary or too costly. I would argue the opposite. Precisely because we are small, our institutional capacity is limited. We cannot rely on informal checks and goodwill alone. We need formal structures that compensate for scale.
An Upper House would not exist to block reform. It would exist to improve it. It would not weaken democratic accountability. It would strengthen it by ensuring that what is passed in the name of the public is workable, fair and resilient.
Jersey faces complex challenges across every area of public policy, not just criminal law.
Meeting them requires careful, technically sound legislation. Good intentions are not enough. We must build systems that consistently turn intention into high-quality law.
The draft harassment legislation provides a useful case study, but it is far from the only example.
Consider journalism. Journalism involves asking awkward questions, pursuing reluctant sources, following up unanswered correspondence and persisting when powerful individuals would prefer scrutiny to go away. Investigative reporters do not contact someone once and politely move on. They return. They probe. They verify. They challenge.
Under the proposed wording, a journalist who repeatedly seeks comment from a public figure, business leader or official – particularly in relation to an uncomfortable story – could, in theory, be accused of causing “distress” through persistent contact. If the subject claims anxiety and argues that a “reasonable person” ought to have known the contact was unwelcome, the journalist may find themselves exposed to criminal complaint.
Even if such cases never succeed in court, the mere possibility matters. The threat of investigation, legal costs and reputational damage can be enough to deter reporters from pursuing legitimate lines of inquiry. This is known as the “chilling effect” and it is corrosive to democratic accountability.
In a small jurisdiction like Jersey, where social and professional networks overlap and public figures are highly accessible, this risk is heightened. Journalists often rely on repeated personal contact. If persistence becomes legally risky, uncomfortable stories may simply go unwritten.
This is precisely the kind of risk that a second chamber exists to identify early, quietly, professionally and before harm is done.
Jersey does not lack good intentions. It lacks sufficient institutional safeguards to ensure those intentions consistently become good law. An Upper House would not be a luxury. It would be a practical investment in better governance, better legislation and greater public confidence in the system that governs us all.
Born and educated in the Island, Carl Parslow is an experienced Jersey Advocate and notary public with over 25 years’ experience. He heads up Parslows LLP business legal services department, advising corporates and individuals on a range of issues with a particular emphasis on acting for Jersey owner-managed businesses. Outside of work, he enjoys rugby and cycling with Lasardines.
