THE ASSEMBLY OF GOVERNOR, BAILIFF AND JURATS: RISE AND (NEAR) DEMISE

Steven Pallot

This Assembly, constituted by Letters Patent of Charles II, came to possess a mix of jurisdiction and functions relating to revenues from customs and excise, Victoria College and, to the present day, the grant of liquor licences.

Introduction

1  “L’Assemblée des Gouverneur, Bailli et Jurés”: one might be forgiven for thinking that such a body had its origins in the Constitutions of King John. In fact the Assembly was of more specific and (relatively speaking) recent origin. Jersey practitioners will know that it has had an extended existence as the Licensing Assembly,^[1] but at its inception in 1669 its powers and functions were quite different.

2  At the time of the Restoration of King Charles II in 1660, the need had long been acknowledged to establish a proper college of secondary education in Jersey. Besides this there were calls for a house of correction^[2] to be constructed, and also a harbour needed to be built. None of these works was going to be funded by Parish rates. At a time when income tax was not conceived of (it was not introduced in Jersey until 1928) other means had to be found to raise money for public works. It was Sir George Carteret^[3] who rose to the challenge. He was Bailiff between 1643 and 1651.^[4] When Charles I was executed in January 1649, it was Carteret who immediately had Charles II proclaimed King in Jersey.

3  In relation to the establishment of a college, two grammar schools already existed: St Mannelier, in the Parish of St Saviour, and St Anastase, in the Parish of St Peter. These had been founded under Letters Patent of Henry VII^[5] “pour l’instruction dans la Grammaire et les autres Sciences Libérales inférieures, de garçons habitant l’Ile”,^[6] but, in the words of Jean Poingdestre in 1682, the schools—

“joined together, and well visited, might prove a good one; but as they are asunder, will hardly tempt any man of parts to bestow his pains therein. They are seated in the two extremities of the Island.”^[7]

Efforts had been made by Laurens Baudains, a local benefactor, at the end of the 16th century and early in the 17th century to endow a college in St Helier, but this goal was not achieved.^[8]

4  It was Sir George Carteret who revived the idea and who (later becoming a member of the Privy Council) had the ear of Charles II after the latter’s accession to the throne in 1660. Thanks almost exclusively to Carteret’s efforts, Letters Patent were granted by the King under which the Assembly of Governor, Bailiff and Jurats was constituted.

Administration of the Impôts

5  The Letters were dated 14 April 1669 and became known locally as the Patente de l’Impôt; indeed it was under this heading that the text of the Letters Patent was set out in full in the body of the Code of Laws of 1771. As Bois^[9] noted—

“power to levy impôts on wines, cider and apples was granted to the Bailiff and Jurats; they were also granted power to levy petty customs . . . The management and disposal of the revenue was confided to the Bailiff and Jurats, with the advice and approval of the Governor. Thus came into being the body known as the Assembly of Governor, Bailiff and Jurats . . .”

6  Here then is the genesis of the Assembly. The Patente provided that the duty levied was to be applied yearly as to the first 2,000 livres (tournois^[10]) towards the building of a school, college or academy “as is now intended to be built in the towne of St Hilier within our said Isle of Jersey by our trusty and Welbeloved Councellor Sir George Carterett . . .”, and as to the next 300 livres (tournois) towards the building of a house of correction.^[11] The balance was to be applied towards the building of a pier at St Aubin; and, following the “full and perfect Erection of the said Peere”, one half of the balance was to be applied for the improvement and advantage of the said school, college or academy; and the other half was to—

“bee from time to time employed and disposed for such other publique uses of and for the said Island as the Governor Bayliffe and Juratts thereof for the time being or the major part of them . . . shall from tyme to tyme thinke fitt . . .”

7  It may be helpful at this point to recall that, in the 17th century, “the States” was a coming together of the three états of the 12 Jurats, the 12 Rectors and the 12 Connétables, whilst the Royal Court consisted of the Bailiff and the Jurats.^[12] Any difference of position between the two was therefore effectively between the Bailiff and Jurats, on the one hand, and the Connétables and Rectors, on the other.

8  Under the terms of the Patente, the States, as such, had no role in the administration of the impôts; it was the Bailiff and Jurats who were given authority “to depute nominate and appoint such subordinate Officers Collectors and receivers for the leveing and collecting [of the impôts] as they shall thinke necessary and convenient . . .”. Here we have the origin of the Agent of the Impôts and the officers of the Impôts to which Jersey’s Customs and Excise legislation still refers.^[13] According to Jurat Charles Le Quesne,^[14] it was from 1806 onwards that the impôt was levied by paid agents nominated annually by the Assembly of Governor, Bailiff and Jurats, as opposed to its having been “farmed” to other agents as was permissible under the terms of the Patente. (Note that in Jersey the term “impôt” has come to be applied exclusively to customs and excise duties, so much so that when income tax was introduced in 1928, it was called “taxe sur le revenu”.^[15],[16])

9  For all that the States were excluded by the Patente from the administration of the Impôt, it seems that they became involved in practice. According to the Crown Memorandum in the Prison Board Case^[17]—

“The power of levying [import duties on wines and liquors] had been granted to the Bailiff and Jurats by the Letters-Patent of King Charles II, which also empowered them to manage the same with the assent and approbation of the Governor. In practice, however, the States had assumed and exercised this power of management from the date of the grant.”

10  This is perhaps not surprising given the political sensitivity of the powers involved; and, as the administration of the Impôt progressed into the 18th century, the objects of the Patente were not fulfilled in anything like the manner that Sir George Carteret had envisaged. The construction of St Aubin’s pier absorbed most of the revenue raised, whilst the college project effectively fell by the wayside,^[18] and the idea of a college was not revived until the mid-19th century (see further below, from para 23).

11  Differences between the Assemblée and the States did arise as to the direction and management of the revenue raising power, with each claiming an exclusive right of managing the revenue.^[19] Not long after the Code of Laws of 1771 had come into force, the States purported to make Regulations concerning the administration of the impôts, intended to have immediate effect (without seeking Royal Assent), but these were declared null by an Order in Council of 1787 in view of the clear wording of the Patente as to the jurisdiction which “reside[d] in the Governor, Bailly, and Jurats”.

12  Not long afterwards, in 1797, the States passed an Act extending the types of wines subject to duty under the Patente.^[20] This Act was duly sanctioned by His Majesty, and was the first instance of the modern procedure for obtaining authority to levy taxes and duties. The States were empowered in the 20th century—by the Loi (1908) touchant la Perception des Impôts sur les Vins et Liqueurs Spiritueuses[21]—to give immediate effect to an Act before it was submitted for Royal Assent. The same power is now contained in art 15 of the Public Finances (Jersey) Law 2005 (Rev Ed, Ch 24.900).

13  The Act of 1797 did not alter the administrative function of the Assemblée in relation to the impôt. Later Acts of the States were made, however, and confirmed by Order in Council, concerning the rates at which customs and excise duties were to be levied; and, in some instances, Acts were confirmed concerning the actual disposal of the revenue of the impôt, e.g. an Act of 1803 which placed certain amounts under the administration of the States. A more extensive Act of the States of 1842, enacted in permanent form as the Loi (1845) sur la régie des Impôts, further apportioned the administration of the impôts between the States and the Assemblée.^[22]

14  Inasmuch as it retained its administrative function, it could be said that the Assemblée developed into a quasi Finance and Economics Committee appropriate to an age before income tax and before the emergence of a welfare state. The Parishes had their rates (râts) and their responsibility to the poor (la Charité), but the need to fund various public works and facilities had increasingly to be met at a centralised level; and, in the 18th and 19th centuries, even if the States were widening their fiscal remit, decisions as to the allocation of funds still rested to a considerable degree with the Assembly of Governor, Bailiff and Jurats.

Liquor licensing

15  The Patente de l’Impôt was concerned with levying duty on alcohol, not with controlling its sale. In the latter regard, an Ordinance of the Royal Commissioners of 1607 had stipulated that—

“Licences for tavernage shall be granted by the Bailiff and Justices, because dwelling in severall parts of the Island, they may best know what are the different men for that purpose, and what will better serve for the common good; and that with the consent of the Governor or his Lieutenant, in his absence (if it shall please him) having notice thereof to be present thereat.” ^[23]

16  The custom in Jersey in even earlier times^[24] was for the Connétable of each Parish annually—après la St Jean^[25]—to convene before the court not only cabaratiers (publicans, taverners) but also butchers and bakers, to determine whether or not they were fit to continue their respective trades “selon le témoignage qui leur étoit rendu”.

17  Of course, one of the functions of the Parish authorities was to garder la paix de Sa Majesté. In doing so, the Connétable took oath before the Royal Court to bring to justice, among others, “tous hanteurs de Tavernes, Yvrognes . . .”. Moreover the Connétable swore not to suffer in his Parish—

“qu’aucune personne tienne de Taverne, autre que ceux établis et licenciés de tems en tems; et aurez soin spécial . . . que le jour du Dimanche ne soit profané, par hantise, ou fréquentation auxdites Tavernes, ou autres lieux, contraire aux Ordonnances sur ce faites.”

In discharging this duty of office, the Connétable was sworn to “executer . . . les Mandemens . . . de Monsieur le Bailly . . . et de Messieurs de Justice . . .”.

18  As Le Geyt^[26] observed: “Si les Connétables, suivant leur serment, ne suffroyent que des gens à licence du Magistrat ils y trouveroyent un grand soulagement eux-mêmes.”^[27]

19  The Code of 1771 brought the Assembly of Governor, Bailiff and Jurats formally into the function of granting licences to sell alcohol. The following passage appeared under the heading “Loix”—

“Le Gouverneur, Bailly et Jurés réformeront les abus des Tavernes et Cabarets, et en ordonneront le nombre, et le réduiront lorsqu’il sera nécessaire: n’en permettant point sans licence, et punissent les yvrognes, et ceux qui contreviendront aux Ordonnances.” [The Governor, Bailiff and Jurats shall deal with the abuses of Taverns and Public Houses, and shall regulate the number thereof, and shall reduce the number whenever necessary: permitting none to operate without a licence, and punishing drunkards, and those who contravene the Ordinances.]

20  This is the origin of what is known today as the Licensing Assembly.

21  Again there was interaction between the Assemblée in this role and the States. The following Act of the States of 1833—here translated, but see the Loi (1833) sur la conduite des taverniers—gives an insight into developments in the six decades following 1771. It also laid the foundation for the jurisdiction of the States to legislate in the area of licensing without the need for Royal Assent—

“THE STATES, having considered an Act of the Assembly of Governor, Bailiff and Jurats touching on Taverners’ licences, lodged au Greffe on the 31st day of December 1832, from which it appeared that the number of Taverners has considerably increased over several years, among which there are many which, instead of being of any public utility, only tend to encourage drunkenness, gambling, and debauchery among the lower classes of the population; and considering that, if the small amount paid annually for the benefit of the public by each Taverner for his licence, i.e. £1 to sell wine, and £1 to sell liquors, were increased, this would have the effect of reducing the number of Taverners and to curb the harm that the large number of Taverners is doing:—

The States resolved to order, subject to the Sanction of His Most Excellent Majesty in Council, that in future persons who obtain licences for the sale of wines and liqueurs shall each pay an annual sum of five pounds to the benefit of the public, and appointed a Committee, composed of Phil. Raoul Lemprière, and Edouard Léonard Bisson, Ecrs. Jurats, the Reverend Jean Thomas Ahier, Rector of Trinity, the Reverend Phil Filleul, Rector of St Peter, and the Connétables of St Peter and St John who are charged with preparing without delay suitable regulations to be observed in the future in relation to the conduct of Taverners, the sale of wines and liquors and the grant of licences.

And the States pray that His Most Excellent Majesty in Council do at the same time authorize them to make such amendments to regulations made in this regard as the circumstances may require.”

22  It is this Act of the States—sanctioned by Order in Council of 6 March 1833, and registered on 23 March 1833—that is cited in subsequent Licensing Laws as the authority for the States to amend the Law by Regulations without the need for submission to Her Majesty in Council.

Victoria College

23  Sir George Carteret could scarcely have imagined when the Patente was granted in 1669 that it would take the better part of two centuries to establish the school, college or academy as was “intended to be built . . . within our said Isle of Jersey by our trusty and Welbeloved Councellor Sir George Carterett”.

24  The stimulus came with the visit to Jersey of Queen Victoria and Prince Albert on 2 September 1846. There was much public discussion afterwards about a permanent commemoration of the visit, and the form it might take. In 1847 the newly appointed Lieutenant-Governor, Sir James Reynett, took an interest and wrote on 18 September 1847 to the Assemblée about resuscitating the primary purpose of the Patente, urging that, as Administrators of the Impôt, they had the necessary funds at their disposal.^[28] The principle was agreed readily enough, but differing proposals for the governing body of the College became a source of political and constitutional tension after it became apparent that Reynett and his successor, Major-General Sir James Love, viewed this as an opportunity to exert an anglicising influence on the Island.

25  A College Committee was set up in 1847, with equal representation given to the members of the Assembly of Governor, Bailiff and Jurats and of the States Assembly,^[29] but this needed to be put on a proper legislative footing. Before the States had had the chance to submit an Act for Royal Assent, an Order in Council was issued at the prompting of Love and sent for registration. This Order provided for a governing council with 16 members, only four of whom were to be elected by the States. Unsurprisingly, the Order was not registered by the Royal Court and was of no effect. The upshot, after much negotiation and discussion, was the formal withdrawal of the Order in Council and the enactment of the Règlement pour la régie et l’administration du Collège Victoria, confirmé par Ordre de Sa Majesté en Conseil en date du 26 octobre, 1860.^[30]

26  Under the Règlement of 1860 a Comité mixte made up of six Members of the States and six Members of the Administrateurs de l’Impôt was formed pour avoir la régie et l’administration du Collège. The Administrateurs consisted of the Lieutenant-Governor and the Bailiff along with four Jurats chosen by the Administrateurs de l’Impôt; the States Members consisted of the Dean along with another Rector, two Connétables and two Deputies^[31] chosen by the States. The Bailiff was the President of the College Committee.

The 20th century

27  A diminution in the fiscal role the Assemblée was inevitable with the growth of the insular economy and the refinement of democratic accountability in Jersey’s governmental institutions.

28  As early as 1856, Jurat Charles Le Quesne^[32] painted a less than optimistic picture of the Assembly’s financial position—

“The revenue of the assembly . . . is derived solely from the impôt. This body has of late years incurred considerable expense in the erection of Victoria College; in voting money, at the request of the States, for the protection of the coasts against encroachments of the sea, and in assisting the States with funds for the drainage of the town. They also contributed £4,500 a year towards the harbour works while in progress; and, in virtue of their agreement with the States and Her Majesty in Council, they incurred a debt of £39,520, being five ninths of the balance due for works of [the] Albert Pier. They also contribute £300 a year towards the expenses of the prison; and the deficit of Revenue of Victoria College, of expenditure beyond the receipts (which is from £1,200 to £1,500 a year) is defrayed by them. The debt of the assembly . . . is about £34,000 sterling.”

29  The story by the turn of the century is taken up by Cottrill^[33]—

“There had been very heavy capital expenditure of almost £20,000 [on Victoria College] since 1899, with the erection of College House, the New Buildings and the gymnasium, and . . . [by 1912] the Assembly’s contribution to ordinary expenditure was also increasing. The increase was absorbing the greater part of the surplus revenues of the Assembly, and leaving virtually nothing to pay off a debt of £12,000.”

30  The position worsened during the Great War. The contribution of the Assembly became yet steeper. By 1920 it was being called upon to pay over double the pre-1912 contribution. As Cottrill put it—

“Failing a fundamental change in the share of the total customs revenue allotted to the Assembly, it seemed necessary to shift the burden onto the States.”^[34]

31  Change duly came in the shape of the Loi (1920) sur l’Instruction Publique (“the Loi of 1920”) and the Loi (1921) sur l’Assemblée des Gouverneur, Bailli et Jurés (Transfert de Pouvoirs,etc.)(“the Loi of 1921”).

32  The Loi of 1920 created the Comité d’Instruction Publique consisting of three Jurats, three Rectors, three Connétables and three Deputies chosen by the States every three years.^[35] To this Comité was transferred (among other things) the functions of the Comité du Collège Victoria. Hence, although the personnel of the new Public Instruction Committee was not dissimilar to that of the Victoria College Committee, the formal link with the Assembly of Governor, Bailiff and Jurats was broken.

33  The Loi of 1920 also placed the responsibility exclusively on the States to vote the funds needed to defray the cost of administering the new Law including, under the heading of Frais de l’Instruction Secondaire, all costs associated with Victoria College.

34  The Loi of 1921 provided for the transfer of all powers and duties, property, rights etc. of the Assemblée constituted under the Patente absolutely to the Assembly of the States which was charged with all of the associated administrative jurisdiction and responsibilities.^[36]

35  Out of these far reaching changes, one function only remained for the Assemblée constituted under the Patente. The Loi of 1921 made a saving provision (art 5) which stipulated that the said Assemblée des Gouverneur, Bailli et Jurés should continue to be “chargée de l’octroi des licences pour la vente et débit de liqueurs spiritueuses”. In other words the Licensing Assembly was untouched, and that Assembly has remained for nigh on a century since, having been governed in its more recent history by the Licensing (Jersey) Law 1974.^[37]

36  The possibility emerged in 2017 of the Assemblée’s final abolition. A draft Liquor Licensing (Jersey) Law 201- (P.54/2017) was lodged au Greffe on 7 June 2017 by the Minister for Economic Development, Tourism, Sport and Culture. This Projet de Loi was withdrawn and replaced on 24 October 2017 by P.103/2017 under the same title.

37  Among the proposed reforms was the establishment of “a new States-appointed Licensing Authority to determine liquor licence applications, thereby replacing the Assembly of Lieutenant-Governor, Bailiff and Jurats”. An amendment to P.103/2017 was lodged on 9 January 2018^[38] with a counterproposal to establish a Licensing Authority composed of a legally qualified person as chairperson, and two or more independent lay members, all to be appointed by the Minister on the recommendation of the Alcohol and Licensing Policy Group. Under either proposal the Assembly of Lieutenant-Governor, Bailiff and Jurats, as such, would be abolished. The Minister’s proposition was, however, withdrawn, and it is not clear whether and in what form such proposals might be pursued in the re-constituted States Assembly following the general elections in May 2018.

38  For the time being at least, therefore, L’Assemblée des Gouverneur, Bailli et Jurés lives on.

Steven Pallot is an advocate of the Royal Court of Jersey and was a senior legal adviser in the Law Officers’ Department, Jersey until his retirement in 2017. He now acts as a consultant to the Attorney General.