Philip Bailhache: The Development of Jersey's Constitutional Status 1873 - 2023

Good morning, everyone.

Um, in 1873, the year of the foundation of La Societe Gerzs, Her Majesty's government had a rather patrician approach to Jersey. It was acknowledged that we were not a colony, uh, and our constitutional history was recognised, uh, but there was a strong feeling in London that we should know our place. The attitude to the state's assembly, which had after all been in existence since 1524, was typical. The states of Jersey stated the Crown's council in the prison board case are not a provincial parliament or local legislature but a municipal corporation. Yet 130 years later, the preamble to the states of Jersey law 2005 recognised that, and I quote, Jersey has an autonomous capacity in domestic affairs and an increasing need to participate in matters of international affairs. In 1873, the state was regarded as a town council.

That today there is a recognition that we have a limited international personality, or certainly an international identity, which is different from that of the UK. In 2023 we make treaties and international agreements. We engage with ambassadors and high commissioners, have offices in foreign places, and with some blips along the way enjoy an independence of action which would have been thought extraordinary in 1873. How has all this come about? What can be said at the outset is that the island's relations with the UK at the end of the 19th century were fraught with constitutional difficulty. The battles fought by our ancestors laid the foundations for the broad autonomy that we enjoy today. It may, however, be good to start with the conclusions of the royal commissioners in 1860 because they encapsulate Jersey's attachment to its constitutional liberties and privileges.

The commission has stated. We have not failed to appreciate at their just value the spirit of self-reliance which characterises the natives of this island, their natural attachment to their ancient institutions, and their unwavering loyalty to their sovereign by which now as ever they are distinguished. That last point I think is worth underlining, particularly in the aftermath of the coronation, because whatever the political difficulties and disagreements between Her Majesty's and now His Majesty's government and the government and states of Jersey, nothing has ever diminished the loyalty towards the sovereign demonstrated by most Jersey people. We may struggle with the king's ministers and his officials, but for the person of the sovereign, there is always respect and warmth. In 1873, 1 of the worst periods in the history of the royal court was coming to an end.

It had been characterised by rampant party divisions involving the rose and laurel political parties and very bad behaviour both by jurats and by advocates which the bailiffs of the day had been unable to control. The commissioners of 1860 had remarked that the court is very much lowered in public estimation by a prevalent opinion that it does not feel itself strong enough to restrain very indecent conflicts of language and sometimes even personal violence committed in the face of the court.

That all changed in 1880 with the appointment of Sir Robert Marrett as bailiff.

He was the preeminent lawyer of the century and held office until his premature death in 1884. He was succeeded by Sir George Bertram, regarded by Lord Cuto as one of the finest bailiffs Jersey had ever had. Sir Godfrey Racane states in his lecture Jersey and Whitehall in the mid-nineteenth century. I do not think any advocate would have shown insubordination to Mitt or Bertram for a second time. These were the bailiffs who presided over the constitutional disputes which bubbled over as the end of the century approached.

The first of these concerned a Frenchwoman, Marie Daniel, who had been convicted by the Royal Court of bestiality, but adjudged to have been insane at the time and ordered to be detained until Her Majesty's pleasure was known.

Two months later, on the 27th of December 1889, the jailer reported to the bailiff, Sir George, that a pardon had been received, together with instructions from the lieutenant governor that she be deported to France on the boat leaving early on the following Monday morning.

The bailiff ordered the jailer not to release Danielle until the alleged pardon had been presented to the royal court and registered.

On the following Tuesday at a meeting of the prison board, there was a tense scene. The bailiff demanded of the governor to know if a pardon had been received, but got no reply. He asked again, has a royal pardon been received for Daniel? The governor kept silent. If there is a pardon, said the bailiff, it must be registered by the royal court before it can be put into effect.

What had been a rather unseemly squabble between the bailiff and the governor had become a constitutional confrontation. The bailiff was asserting that the pardon was an instrument of the royal prerogative which required to be registered in the royal court before it could be effective. In other words, the crown could not legislate for Jersey without the consent of the Jersey authorities. On the 11th of January, the governor wrote to the bailiff confirming that a royal warrant of pardon had been received and that he intended to act upon it and send the woman to France.

The bailiff protested that this would be unconstitutional, and with the jurets he drew up a representation asking the queen to direct the governor to present the royal warrant to the court for registration. Now the governor took the law into his own hands.

During the evening of the 31st of January. He went to the prison with the Viscount and others, overawed the prison officers, and took charge of the prisoner. She was lodged overnight in the police station and early the following morning removed by steamer to France. There was a Ferrari.

The governor's unorthodox behaviour had in effect executed the order, and at first the Privy Council was minded to take the matter no further. At the insistence of the states, however, there was a hearing before the Committee for the affairs of Jersey and Guernsey in July 1890. The legal issue turned upon an interpretation of an order in council of 1679 which declared, I quote, that orders, warrants, or letters of your Majesty shall be presented to the Royal Court for registration before being put into execution.

The outcome was not very satisfactory for the Privy Council Committee reported that the pardon was an exercise of the royal prerogative of mercy, which operates immediately.

And was to be distinguished from other warrants and orders referred to in the 181679 order in council.

This was in essence a defeat for the states.

Although the main point, could the crown legislate for Jersey without the island's consent had been sidestepped. It was, however, shortly to rear its head again in the context of a dispute as to the presidency of the prison board.

Was the president, the bailiff or the governor? On the 23rd of June 1891, an order in council was issued declaring inter alia that whenever the governor was present at a meeting of the prison board, he should preside. The order was made peremptorily without any consultation with the states. The order came before the Royal Court on the 3rd of July, uh, but the court refused to register it and referred the order to the states. The states decided to challenge the order and petitioned the Privy Council seeking its recall. They met the argument about competence to legislate head on. They stated that, I quote, it never has been, according to the rights and privileges of the island, competent for the crown to legislate for the island of Jersey without the assent of the states. There is sadly no time to consider in any detail the prison board case.

It was a monumental legal struggle lasting some 3 years and generating thousands of pages of pleadings and submissions. At the end of the day, however, the Privy Council ordered the recall of the 1891 ordering council, but only on the basis that there had been no consultation with the states.

The Privy Council managed once more to avoid deciding whether the Crown had the right to legislate for Jersey. The next milestone in our journey is found in 1923, 100 years ago, in the aftermath of the First World War.

The cost of the conflict to the Exchequer had been immense, and the UK government looked to the Empire, including Jersey, to contribute. The British government at first demanded 275,000 pounds a year from Jersey in perpetuity. In essence, this amounted to a claim that the crown could legislate to impose taxation on Jersey. At customary law, the Duke of Normandy had only a limited right to tax his subjects and generally not without the consent of an assembly of the estates. The states assembly rejected the claim on constitutional and economic grounds. A Privy Council committee headed by the Duke of Atholl came to the island, and the states uh compromised by offering a one-off contribution of 300,000 pounds. Atholl's committee considered this to be quite inadequate and proposed 100,000 pounds a year for 100 years, a total of 10 million pounds, a huge sum in those days.

Alexander Kuto was then the Solicitor General, and he gives an amusing account uh in his memoirs of the dispute.

He told the attorney, uh, Charles de Contre, that he was thinking of visiting the Home Office about the dispute.

De Carrier told him, uh, my dear chap, uh, you do what you like. I've never been there. I don't even know where the Home Office is. Kudos went to the Home Office in September 1926.

saw the permanent secretary and explained the island's position.

In 1927, after further discussions, the island's offer of a one-off contribution of 300,000 pounds towards the costs of the Great War was accepted and the dispute was over.

In 1940, the Channel Islands were occupied by German forces.

The occupation is, I think, generally acknowledged to have been a turning point in our history. The lieutenant governor was withdrawn to England, and the island's authorities faced the invader alone. After the liberation, there was a great impetus for change.

The constitutions of the royal court and the states assembly were reformed. In relation to the UK, there were subtle changes too. The Universal Declaration of Human Rights in 1948 and the European Convention on Human Rights and Fundamental Freedoms in 1950 are much more effective because legally binding convention responded to the barbarous acts of the Second World War. Human rights norms affect our constitutional relationship with the UK. Representative government in the island and the absence of any political representation of islanders at Westminster have human rights consequences. There would need to be compelling reasons to argue that the democratic will of the state's assembly should be overridden. The rush of real constitutional change, uh, however, came in the last 20 years, uh, the 1st 20 years of this century.

First, as I mentioned earlier, there was an acknowledgement by the Crown in the states of Jersey law 2005, uh, that Jersey has an autonomous capacity in domestic affairs. That falls short of a concession that the UK Parliament has no authority to legislate for Jersey without the consent of the states, but there is another provision in the 2005 law which makes it difficult for the UK to do so. That is Article 31, which provides that if an Act of the UK Parliament is to apply to Jersey or an ordering council seeking to extend a UK Act, the Chief Minister must lodge the proposal so that the states can signify their views. If the states were to express the view on a proposal that the act or order in council should not be extended, it is inconceivable that the royal court would register it, and it would not accordingly form part of the law of Jersey.

There would be a stalemate and because no one would want to see such a situation, it seems to me unlikely that the UK Parliament would ever legislate for Jersey without the consent of the states. I have time to note two other important developments. In 2007, the Lord Chancellor and the Chief Minister signed what was called a framework agreement, which acknowledged that Jersey has an international identity different from that of the UK. The UK undertook to support the development of that identity. An international identity necessarily involves the conduct of foreign affairs. Much of our economic activity now has an international flavour, and we need to protect our interests internationally. We cannot realistically expect the UK to do all that for us. In 2013, the states created a new minister for external relations. And uh have also established offices in Brussels, London, uh, Normandy, and I believe that an office in Paris is also in contemplation. These offices have been hugely important in building better relationships. First of all with the British government, but also with European countries too. Everyone now knows where the Home Office is. A physical presence in another country is an indication of gravity, an indication that Jersey cares for its relationships and is to be taken seriously on the international scene.

In 2013, it helped us to extricate the island from the French blacklist, which might have had serious economic consequences.

We are not a sovereign state, but our autonomy is more clearly defined and protected. 150 years have therefore witnessed a transformation in our constitutional status from being regarded as a troublesome and sometimes irritating schoolboy, we have become not quite an independent adult, but a mature young person entitled to respect. Thank you very much.