Constitutional changes in Jersey

Constitutional changes in Jersey This article by C W Duret Aubin, Attorney-General, was first published in the 1954 Annual Bulletin of La Société Jersiaise

When, in 1948, the Assembly of the States of Jersey enacted, with the sanction of His Majesty in Council, legislation reforming in certain fundamental respects the Constitution of the Island, in so far as the Assembly of the States and the Royal Court were concerned, it added yet another important chapter to the story of the evolutionary development which has been at work ever since the early years of the 13th century when, following the loss by King John of England of the Continental portion of the Duchy of Normandy, the foundations of the modern constitution of Jersey may be said to have been first laid down in a document which has been known through the centuries, perhaps without justification, as "The Constitutions of King John".

Jurats

Article I of those "Constitutions" created duodecim coronatores juratos ad placita, et jura spectantia ad coronam custodienda, and these officials, Jurats or Jure-Justiciers, as they came to be known, soon emerged as the most powerful of local functionaries. Elected, as they then were by the King's Officials and by the optimates patriae, who were, in effect, the large landowners, to administer justice in the Royal Court, they soon began to legislate by Ordinance and Act. Sitting, in early days, under the presidency of the King's Warden and, later, under that of his Bailiff or Chief Magistrate, they were all-powerful, judicially and legislatively.

After some three centuries of this somewhat oligarchic form of government, the embryo of the States of today may be said to have emerged, for it then became the custom of the Royal Court, in the exercise of its legislative jurisdiction, to call, at first into consultation, and later into collaboration, the 12 Rectors, as representing the Church, and the 12 Connetables (whose functions were akin to those of Mayors), as representing the people. The influence and learning of the former made their support valuable, and the good will and co-operation of the latter were essential for the implementation of any necessary fiscal measures.

So the matter stood when, in 1771, a landmark of outstanding importance in the constitutional history of the Island was reached. In that year there was registered by the Royal Court an Order of His Majesty in Council, confirming a "Collection or Code of Laws agreed upon by the States of the Island of Jersey and transmitted for His Majesty's Royal Approbation".

The principal constitutional effect of the "Code", as it came to be known, was to remove from the Royal Court the legislative jurisdiction which it had assumed and exercised, and to vest it for the future in that body, consisting of the Jurats, the Rectors and the Connetables, which had come to be known as the Assembly of the States.

Thus was statutory sanction given to a system which had gradually come into existence during the two centuries preceding the date of the Code. The position of the Bailiff, as President of the Royal Court and of the States, was not changed in any way by the Code, and the holder of that office continued to preside, as he still does today, over both those bodies.

It is to be noted that the Jurats, though deprived of their legislative jurisdiction when sitting in the Royal Court, were left to exercise it when sitting, together with the Rectors and the Connetables, in the States. And it was not until 1948 that the Jurats, as such, ceased, as of right, to sit in the States. Nor was it until 1951 that the complete separation of the judicial and legislative functions of the Jurats was finally achieved, the Judicial and Legislative Functions (Separation) (Jersey) Law, 1951, then making it impossible for the holder of the Office of Jurat to hold the office of Senator or Deputy, and vice versa. But we anticipate.

Elected for life

Judged by modem standards the Assembly of the States created by the Code of 1771 had little claim to be looked upon as a legislative assembly representative of the people. The Jurats, it is true, had by then come to be elected by popular franchise over the whole island, but their election was for life and they were elected rather as judges than as legislators. The Rectors could not even make that modest claim to popular representation, sitting in the States as they did merely by reason of, and during, their occupancy of a Jersey Rectory, the Patron of which was the Crown. The Constables alone, elected for three years by popular franchise - on a parochial basis - could claim to be truly popular representatives subject to the discipline of triennial re-election.

There also sat in the States His Excellency the Lieutenant Governor, with a right to address that Assembly, but not to vote therein. The three Crown Officers, the Attorney-General, the Viscount and the Solicitor-General, were also members of the Assembly, the Attorney and the Solicitor having the right of speech, but not of vote, the Viscount having neither.

No further constitutional development took place until 1853, when a new element, consisting of 14 members elected by popular franchise, was added to the States. They were called Deputies, of whom three were to represent the urban parish of St Helier and the remainder each of the eleven rural parishes.

In 1907 the parish of St Helier, whose representation in the States was numerically quite inadequate, its population being then approximately one half of that of the whole Island, was given an additional three Deputies.

From 1907 until 1948 the constitution of the Assembly remained unchanged and it continued to sit under the Presidency of the Bailiff.

Lack of universal support

It must not be inferred from the fact that no constitutional change took place between 1907 and 1948 that the constitution of the States was accepted by the whole of the Island electorate as being without blemish. Nor was it everywhere held that the constitution of the Royal Court was ideal. A large majority of the population was well content with the status quo, but a small section of the electorate favoured a modification of the constitution of the States, designed to make that Assembly more truly representative of the people by the modification of the life membership of the Jurats and the exclusion of the Rectors.

In so far as the Royal Court was concerned, an increasing number of persons saw an anachronism in the duality of the functions of the Jurats, holding that there was an irreconcilable incompatibility between their position as Judges in the Royal Court and legislators in the States.

During those years no attempt was made to deal with the problem of the Jurats, but legislation was introduced into the States designed to exclude the Rectors therefrom. It was decisively rejected, and there can be no doubt that had any attempt been made during that period to modify the position of the Jurats it would have met with a like fate.

Then, however, came war and, with it, the German occupation of the Island, which lasted from 1 July 1940 to 9 May 1945. To that event can be attributed, and for at least two reasons, the radical change in public opinion which manifested itself immediately after the liberation of the Island.

Of the pre-war population of some 54,000 persons, approximately 13,000 had left the Island immediately before the Occupation and had spent the years thereof in the United Kingdom, where the adults and adolescents among them had become accustomed to a more bracing political climate than that which they had known in the Island.

For the 41,000 persons - the number is approximate - who remained in the Island all political activities became, by order of the occupying authority, absolutely forbidden.

Demand for reform

When, therefore, upon liberation political freedom was immediately restored to those who, for five long years, had lost it, and, at the same time, there began to return to the Island the evacuated Islanders, many of whom during their sojourn in the United Kingdom had acquired a more progressive political outlook, it was inevitable that the demand for reform should be made with greatly increased vigour. And it was not made in vain.

A general election for Deputies - the first since 1937 - was due to be held in December 1945, and, in order that the election might result in a true expression of public opinion, it was necessary first to extend the franchise to both sexes at the age of 21. That having been done, the election was duly held and the results clearly showed that, in the parish of St Helier, as had been anticipated, there was an overwhelming majority in favour of constitutional reform.

In the country parishes, too, where the issue had been thought to be in greater doubt, there was evidence of the existence of a strong body of opinion which favoured the modification of the life membership of the Jurats and the exclusion of the Rectors.

The election had occasioned unusually great public interest. There had been contests in the three St Helier constituencies and in six of the eleven rural constituencies. In those contested elections, 13 candidates had disputed six seats in St Helier and, by a strange coincidence 13 candidates had also contended for the six disputed rural seats. In the five other rural constituencies, members were returned unopposed. In short, there had, in all, been 31 candidates for 17 seats.

The newly elected States took immediate action to give effect to the clearly expressed view of the electorate and, in January 1946, appointed a special committee to enquire into, and to report upon, the matter of the reform of the States.

At the same time the Royal Court took into consideration the matter of judicial reform, with special reference to the position of the Jurats. For the States committee there must have been only one problem of difficulty, that of the position, if any, to be occupied by the Jurats in the reformed States. How was their life membership of that Assembly to be reconciled with the clearly expressed view of the electorate that the States of the future should include no life members? And how was the irreconcilability of their position as Judges in the Royal Court and legislators in the States to be resolved?

As regards the Bailiff, the weight of experienced opinion was against modifying a position which was generally held to be beneficial to the public interest.

As to the Rectors, it was generally held that, without any lack of grateful appreciation of their past services, the time had come for them, in the altered circumstances of the day, to relinquish their ex-officio functions in the States.

As regards the Constables, there was little support for the view that they should be excluded and, in the case of the Deputies, there was general agreement that their number should be substantially increased and that seats should be distributed upon a parochial population basis.

Committee's report

The committee reported to the States in February 1946, and recommended:

• That there should be no change in the position of the Bailiff:
• That the Jurats should continue to sit in the States, as well as in the Royal Court, but that they should in future retire on attaining the age of 70.
• That the Rectors should no longer sit ex-officio in the States, but that the Dean (who is invariably, but not essentially, a Rector) should have a seat and a voice therein, but no vote.
• That there should be no change in the position of the Constables.
• That the number of Deputies should be increased to 28 and that seats should be apportioned between the parishes upon a population basis.
• That the position of the Law Officers of the Crown and of the Viscount should remain unchanged.

Neither at this nor at any other stage of the reform proceedings was it proposed that there should be any change in the constitutional position of the Lieutenant Governor: it will not, therefore, be necessary further to refer to the holder of that office.

It very soon became evident that the recommendation of the committee in relation to the Jurats was unpopular in the constituencies, the majority view clearly being that all members of the States should be subject to re-election upon the conclusion of a specified term of office.

The committee yielded to that view and, amending its report, recommended to the States that the Jurats should in future be elected for a term of six years, during which they would sit in the States as well as in the Royal Court.

Meanwhile the Royal Court had not been idle and had produced recommendations in relation to judicial reform which proposed radical modifications of the status quo in so far as the Jurats were concerned.

In this connection, it should be observed that the Jurats, although not required to possess, and in practice generally not possessing, legal qualifications, had always been the Judges of all questions, whether of law or of fact, the casting vote of the Bailiff, as President, only coming into play if the Jurats were equally divided.

In civil cases the Jurats assessed damages and awarded costs. In criminal or quasi-criminal cases not tried before a jury at Assizes, the Jurats found the verdict. In all criminal cases (including Assize cases) and quasi-criminal cases, the Jurats determined the sentence and the fine. In all those cases the Bailiff had a casting vote.

Recommendations for Jurats

The recommendations now made by the Royal Court were that the Jurats should not in future be Judges of law and accordingly that:

• In civil matters: In contentious cases the Bailiff should be the sole judge of law and should award the costs. The Jurats should be judges of fact and should assess damages, the Bailiff having a casting vote.
• In criminal matters: In Assize cases, where the jury found the verdict, the Bailiff should be sole judge of law and should retain his casting vote in determination of sentence. In cases heard before the Inferior or Superior Number of the Royal Court (that is to say, the Bailiff sitting with two, or not less than seven, Jurats respectively), the Bailiff should be the sole judge of law. The Jurats should be judges of fact and should determine sentence, the Bailiff having a casting vote.

In its recommendation the Royal Court expressed the view that a system under which the Jurats would be subject to re-election on completion of six years' service was not compatible with the functions which it was proposed that they should in future perform in the Royal Court.

There was thus a complete divergence of view between the States and the Royal Court as to the future of the Juratship and, as no suggestion was made by either side that the functions of the Jurats should be separated, two mutually incompatible proposals held the field.

Negotiations between the committee and the Royal Court having failed to resolve the difficulty, the report of the committee was debated in the States and, in March 1946, the recommendations contained therein (as amended) were adopted.

Thereupon the States took appropriate action in order that the pleasure of His Majesty might be ascertained in the matter of the reforms envisaged. This course was essential, not only because the legislation which would implement the decisions of the States would require the sanction of His Majesty in Council, but also because the proposals which were being made materially affected the position of the King's Jurats and, even more materially, that of the Rectors, the nominees of the Crown.

Privy Council committee

His Majesty deemed it expedient that a committee of His Privy Council should inquire into the proposed reforms and, to that end, by Order in Council dated 4 June 1946 appointed as a committee of the Privy Council for the purposes of the said inquiry:

• The Viscount Samuel
• The Lord Ammon
• The Rt Hon James Chuter Ede (Chairman)
• The Rt Hon Richard Austen Butler
• The Rt Hon Sir John Beaumont

Between 15 and 21 September 1946, the Privy Council committee sat in the Royal Court House in Jersey and, as their later report had it, Their Lordships:

"Fully savoured the historic story of the manner in which the States and the Royal Court attained their present stage of development."

The fullest opportunity was given to all persons and organisations interested in reform, whether or not they held any office in the public life of the Island, to express their views to the committee. For Their Lordships the most important issue was, as they later observed, "to decide the future functions to be performed by the Jurats".

Upon this highly controversial problem widely divergent views were pressed upon Their Lordships. At one extreme it was urged that there should be no change whatsoever in the position of the Jurats and that they should continue to sit for life in the States, as well as in the Royal Court. At the other extreme it was contended that the Jurats should be swept away, their place in the Royal Court to be taken by professional lawyers and in the States by additional Deputies.

Neither of these extreme views could, however, claim to enjoy much public support. The problem, therefore, if separation was to be avoided, was how to reconcile, in so far as reconciliation was possible, the view of the Royal Court that the Jurats should remain in the Royal Court and the States until the age of 70, or, by special leave of His Majesty, 75, with the view of the States that they should sit in both Assemblies for a term of six years.

Although separation of the dual functions of the Jurats was not recommended either by the Royal Court or the States, substantial argument in support of that solution of the problem was addressed to Their Lordships, coupled with the proposal that the Jurats should continue to sit in the Royal Court until the age of 70 (or 75 by special leave) and that their place in the States should be taken by a new element of twelve persons, elected on an all-Island franchise, for a term of nine years.

This argument conceded the point that, for the time being, Jurats should not be debarred from offering themselves for election to the States as members of this new element and that, therefore, to that extent the continuation of the dual functions should be tolerated. It was also proposed that the members of this new element should not, after the initial election, all take office at the same time but that, after the establishment of the proposed new system, four of the group should be elected every three years.

Lack of suitable people

In addition to a great deal of argument upon the issues of principle involved in the various proposals, the view was pressed upon Their Lordships that there was not available within the Island a sufficiency of suitable persons to provide twelve Jurats in the Royal Court and, possibly, twelve quite distinct persons to take their place in the States, and that therefore the separation of functions, even with the safeguards provided in the evidence to which reference has been made, was, at any rate for the time being, impracticable.

In the result Their Lordships, taking the view that great importance attached to the "principle of the complete independence of the judiciary" of the Island, recommended that the judicial and legislative functions of the Jurats should be separated and that the latter should continue, as of right, to hold their judicial offices only. They further recommended that a new element of 12 persons be created in the States in their place and that they be elected on an all-Island franchise for six or nine years.

Impressed, however, by the manpower arguments addressed to them, Their Lordships further recommended that, for the time being, a Jurat should be entitled to seek office in the States while retaining his judicial office, and that a member of the States might similarly seek election as a Jurat without resigning his States office,

As a rider to these recommendations, Their Lordships advised that in any legislation which might be passed to carry out the proposed reforms, provision be made for the situation to be reviewed within ten years to examine whether it was possible to ensure a complete separation of functions without unduly depriving the States, or the Royal Court, of experienced persons.

This recommendation necessarily involved a change in the mode of election of Jurats, since, having regard to the fact that their future status would be exclusively judicial, it would clearly be improper to continue to elect them by popular franchise. To avoid this Their Lordships recommended election by an Electoral College.

As to the Bailiff, the Rectors (including the Dean), the Constables and the Deputies, Their Lordships made recommendations endorsing the recommendations of the States.

Their Lordships agreed, too, that there should be no change in the position of the Attorney-General and the Solicitor-General, but thought that there was no need for the Viscount to be a member of the States, although the holder of the office should continue to attend the States to perform his customary duties.

Court of Appeal

In connection with the proposals of the Royal Court for judicial reform, it had been recommended by the Royal Court of Jersey, and of the sister Bailiwick of Guernsey, that there should be instituted a Court of Appeal for the Channel Islands with appeal therefrom to His Majesty in Council. Hitherto, in Jersey, appeals from the Inferior Number of the Royal Court (that is to say, the Bailiff and two Jurats) had been heard by the Superior Number of the Royal Court (that is to say, the Bailiff and not less than seven Jurats), with a final appeal to His Majesty in Council.

This machinery of appeal had proved itself, under modem conditions, to be imperfect, as the final appeal to His Majesty in Council involved a delay and an expense likely to prove a deterrent in all but the most important causes. Nor was the constitution of the Royal Court ideal as an appellate Tribunal.

Their Lordships, in their report, observed that they had no doubt that the constitution of a Court of Appeal with judges appointed by His Majesty in both civil and criminal cases was "a reform long overdue".

The report of the committee of the Privy Council, to which reference has been made, was presented to Parliament by the Secretary of State for the Home Department by command of His Majesty, and on March 17, 1947, an Order in Council directed that it be published and transmitted to be registered and published in the Islands of Jersey and Guernsey (the report dealt also with judicial and legislative reform in Guernsey). The Order in Council was duly registered in Jersey.

In May, 1947, the States formally resolved to accept in principle the recommendations of the Privy Council committee and charged their own reform committee to prepare the legislation necessary to give effect thereto. This mission was speedily accomplished and, later in the year, there were presented to the States Bills designed to modify the constitution of The Royal Court and The Assembly of the States, in accordance with the now accepted recommendations of the Privy Council committee.

The Channel Islands Court of Appeal was to be created by Order of His Majesty in Council and a prayer in that sense was addressed to His Majesty. With the reform legislation before the States, the future position of the Jurats, yet once again, provided the most controversial issue. In the bill modifying the constitution of the States, it was proposed that the Jurats should no longer sit therein, as of right, and that their place in that Assembly should be taken by a new element of 12 members, to be styled Senators, who should be elected by popular franchise over the whole Island and should hold office for nine years, four of the elected Senators to retire every three years. The term of nine years, rather than that of six, had eventually been decided upon for this group.

In order to establish the correct rotation, it was proposed that, in the case of the first election, only the first four elected should hold office for nine years, the second four elected for six years and the last four elected for three years.

Amendment defeated

An amendment, which struck at the very foundation of principle upon which the bill was based, that is to say, that every member of the reformed States should be specifically elected thereto, was proposed, to the effect that the Jurats in office at the time of the enactment of the reform law should continue to sit in the States, as of right, until they attained the age of 70. The amendment was narrowly defeated.

The exclusion of the Rectors, the retention of the Constables and the increase in the number of Deputies were carried with varying majorities and effect was given, without controversy, to the recommendation of the Privy Council committee regarding the Bailiff, the Dean, the Law Officers of the Crown and the Viscount.

On 17 February I948 the States finally adopted the Assembly of the States (Jersey) Law, 1948, which was sanctioned by an Order of His Majesty in Council dated 18 June 1948. The measure reforming the Royal Court was not treated as one of like urgency nor, in spite of the drastic curtailment which it proposed in the future powers of the Jurats in the realm of law, and of the alteration which it proposed in the mode of their election, an Electoral College being substituted for popular franchise, did its passage through the States give rise to any substantial difficulty.

On 5 October I948 the Royal Court (Jersey) Law, I948, was finally adopted by the States and sanctioned - Order of His Majesty in Council, dated 22 December I948.

A period of intense political interest and activity followed the enactment of the Assembly of the States (Jersey) Law, 1948. Elections were due to be held in the months of November and December of that year for the election of 12 Senators and 28 Deputies respectively, and there was no dearth of candidates for either office.

In eight of the 16 Deputy constituencies there were contested elections, 35 candidates being proposed for 15 seats. One of the latter was for the first time in local history won by a woman, the former disqualification of her sex having been removed by the law. In the other eight Deputy constituencies, where there was no contest, 10 candidates were proposed, two of the constituencies having a two-member representation.

In all, therefore, 45 candidates offered themselves for election for 28 seats. Among the 18 candidates for the 12 vacant Senatorships were seven of the displaced Jurats. Four of them were elected in the group which was, on the occasion of the first election, to hold office for six years and one of them was elected in the group which was, similarly, to hold office for three years only. Two of them were unsucccessful.

The start of separation

As none of the Jurats were candidates for any other office in the States, it therefore resulted that, of the twelve Jurats, seven were now purely judicial, the remaining five alone being left to exercise the much disputed dual functions. Separation had indeed begun to operate.

The reform of the Royal Court was not, in the event, to become fully operative with like celerity. The Royal Court (Jersey) Law, 1948, provided that the basic provisions of the law whereby the Bailiff was made sole judge of law should not come into operation until such day as His Majesty might by Order in Council appoint. It was, and is, intended that that day should coincide with the day upon which the Channel Islands Court of Appeal is itself brought into operation by Order in Council.

Various difficulties have caused some delay, and the full reform of the Royal Court has yet to be consummated and the Channel Islands Court of Appeal, which was created by an Order of His Majesty in Council dated 31 May 1949 to be brought into operation. With the enactment of the States and Royal Court Reform Laws previously referred to, it might well have been thought, even by those with reformist tendencies, that the high-tide mark of contemporary reform had been reached and that no further constitutional change was to be expected until, at least, the expiration of the ten years within which the Privy Council committee had suggested that the practicability of the complete and absolute separation of the dual functions of the Jurats should be reconsidered.

In 1950, however, the Royal Court and the States, acting in joint consultation, arrived at the conclusion that the moment for absolute separation had already arrived. The fears of manpower shortage which, as previously stated, had been pressed upon the Privy Council committee had already been found to be without substance, and the advantages of a completely independent judiciary, even though such was yet only in partial operation, had shown themselves to be considerable.

By the Judicial and Legislative Functions (Separation) (Jersey) Law, 1951, therefore, it was enacted that a Jurat should not be disqualified for being elected to the office of Senator or Deputy, but that he should cease to hold the office of Jurat on taking the oath of office of Senator or Deputy, as the case might be. Analogous provisions were made, mutatis mutandis, in the case of a Senator or Deputy.

The Jurats who were elected to the office of Senator at the election held in 1948 were saved from the operation of the Act. The impact of events had, however, made the saving in their favour of diminishing practical importance, as the number of Jurats affected thereby had, by 1951, already been reduced from five to two, one of the original five having ceased to be a Jurat on attaining the age of 70, one having resigned the Juratship and a third having resigned the Senatorship. In the result, therefore, only two of the successors in title of the original duodecim coronatores of the 'Constitutions of John' now continue to exercise the dual functions. Their term of office will expire in November 1954, and the final curtain will then be rung down upon an era which will have lasted no less than seven and a half centuries.

Golden Age

Anachronistic as, to the modem mind, the dual functions must appear, inevitable as had clearly become the reforms which this article attempts to survey, the record of those reforms should not fail to stress the great value of the services rendered to the Island, in the States, by the Jurats in their long Golden Age.

They, upon whom, having regard to their former predominance, the chill wind of reform blew most harshly, leave the States richer for their long presence in that Assembly and over their passing many, perhaps even among the reformers, will shed a furtive, but none the less grateful, tear. Such were, in broad principle, the reforms of 1948. The constitution of an ancient legislative Assembly with, behind it, a statutory life of 177 years and an embryonic life of far longer duration, was radically modified and indeed transformed,

An unrepresentative parliament of whose 53 members only 29 were subject to discipline of the ballot box became a representative parliament, everyone of whose 52 members is subject to re-election, 40 of them every three years and 12 of them every nine.

The constitution, seven and a half centuries old, of a venerable Royal Court was rewritten in an entirely new and modem idiom, the most vital function of a court of law, that of determining the law to be removed from the Jurats and vested exclusively in the Bailiff.

The dual functions of the Jurats were at long last separated and the principle of the complete independence of the judiciary asserted and implemented. And finally there was, by the creation of the Channel Islands Court of Appeal, Civil and Criminal, to be made available within the Island for the first time in its legal history an appellate tribunal manned exclusively by professional lawyers. The mills of Reform had ground slowly but they had ground exceeding small.

Further articles

• Constitution
• Relations between Jersey and the Privy Council, how the Island has got on with England over the centuries
• Constitutional changes in Jersey
• Constitutional petition of 1331