Phil Falle complains in today’s Guernsey Press that
an unbroken line, which has been an integral part of Sark’s history for the last 338 years, is to be broken. … The title of seneschal was instituted by letters patent in 1675 in the reign of Charles II … hundreds of years of Sark history bites the dust
A refresher of Sark’s history in order. The first Sark Court was established on 27 October 1579 by the people of Sark, without Royal sanction. It consisted of an elected Bailiff and 12 elected Jurats. The Court acted by holding Chief Pleas which all inhabitants were entitled to attend. Minutes of the 27 October 1579 meeting record that the Court was established for the purpose of observance of the laws, customs and usages of Jersey.
Following a challenge to the legality of the Sark Court by the Royal Court of Guernsey, the Order in Council of 24 April 1583 of Her Majesty the Queen Elizabeth I ordered the creation of a Sark Court of 5 elected Jurats, the senior of whom was to be called Juge and was to pass sentence. This Court was duly created on 16 July 1594. The Order empowered the Court to make Ordinances with the consent “of the Seigneur … and of the generality of the Inhabitants”. The Order also provided that the Court should thenceforth apply the laws and customs of Normandy, and the local customs of Guernsey, where they differed.
The original Sark legislature was therefore, and still remains, a Court, which held Chief Pleas, which all adult male inhabitants were entitled to attend and at which the elected Juge and Jurats judged, governed and legislated, subject to the consent of, and therefore the veto of, the generality of the inhabitants on the one hand and of the Seigneur on the other. It was fundamentally a very democratic institution.
During the English Civil War, the Seigneur (and Jersey) supported the King, while Sark and Guernsey supported the Parliament. The Parliament declared the fief of Sark a forfeit, and between 1643 an 1660, the Island was governed without a Seigneur. In 1660, the Seigneur was reinstated by His Majesty the King Charles II. However, during the Commonwealth, Sark had become accustomed to being ruled democratically and the long-absent Seigneur’s influence had waned. To reassert his authority, and undoubtedly helped by the fact that he had supported the King, while Sark had supported the Parliament, the Seigneur procured, through his personal influence at the English Court and against the will of Sark Court and the people of Sark, the 19 May 1675 Order in Council of His Majesty the King Charles II (not, incidentally, a Letters Patent, as Mr Falle writes, but this is a minor point). The Order was very short: it dismissed Sark’s elected Court of five Jurats presided over by a Juge, replaced them with a Seneschal appointed by the Seigneur, and vested all the powers and duties hitherto exercised by the Jurats and the Juge in the Seneschal. The Court remained the primary judicial, legislative, and executive body as heretofore, but the Seneschal now was the Court while the Seigneur now had the power to appoint the Court.
While the office of the Seneschal may be ancient, it is an ancient wrong, and it is not as ancient as the democratically elected court of the Juge and Jurats; the office of the Seneschal was created with the express aim of suppressing democracy, and it was the creation, not the abolition, of this office, with which hundreds of years of benevolent Sark history bit the dust.
Furthermore, the office of the Seneschal today is by no means the same as it was prior to the Reform (Sark) Law, 2008 coming into force. That law granted the Seneschal far more power than he had before. Perhaps the most worrying change was that he now holds his office for life (he cannot be removed by the electorate), whereas previously, he held a 3 year appointment. The 2008 reform law was a further erosion of democracy on Sark, and has turned, as I have written elsewhere, Sark’s legislature into one most comparable to that of either the Roman Empire or the Holy Roman Empire.
Prior to the 2008 reform, there was extensive, democratic, and often highly contentious, debate in Chief Pleas, while there is hardly any, if any, debate now. This is widely acknowledged. Even Mr Falle acknowledges and frequently laments this in the articles he writes for the Guernsey Press. The Ministry of Justice was aware — and was repeatedly warned — of the potentially democracy-suppressing effects of the 2008 reform law before the law was enacted. Indeed, the then Lord Chancellor, Jack Straw, expressed serious concerns about the law. Yet, the Ministry of Justice chose not only deliberately to ignore those warnings and concerns, but instead chose to put their full weight behind the law’s enactment. Lt. Col. Richard Graham, the then Aide-de-camp to the then Lieutenant Governor of Guernsey and Sark, even wrote, in his e-mails to the Ministry of Justice, released much later by the Ministry of Justice only after a Freedom of Information request had been made, speaking — one might argue, given the nature of his position, inappropriately — of Sark’s “salvation”. They all bear a heavy burden of responsibility for their actions.
In the view of this author, the abolition of the office of the Seneschal owes much to the actions of its last holder, Lt. Col. Reg Guille. Despite differences I have had with him (e.g. regarding my well-known contention that in light of the 2008 reform law, the Seneschal’s office needed reform), I have always had a lot of respect for his work as a judge. On the occasions (of which there admittedly had not been many) on which I have seen him perform his judicial duties, I thought he did a splendid and professional job.
Seneschal Guille also carried out his duties as president of Chief Pleas diligently. Only, he seemed to interpret these duties (perhaps correctly) in the sense and spirit of the 1675 Order-in-Council — in the sense of requiring him to keep the will of those attending Chief Pleas managed and enforcing the will of the Seigneur. But the world has changed since 1675 and this way of carrying out the duties of the President of Chief Pleas is no longer considered de rigueur. Instead, a President of Chief Pleas, particularly an unelected one also holding judicial functions, is today expected to conduct himself impartially and not engage in, let alone dominate, political debate. Had the Seneschal adapted in this way, his office might have survived.
This was perhaps most clearly demonstrated during the debates preceding the adoption of the 2008 reform law, which removed the Tenants from Chief Pleas. The Seigneur and the Seneschal were instrumental in steering that law through Chief Pleas, in collaboration with the London administration, and against the repeatedly expressed will of both Chief Pleas and hostility to the change expressed by the inhabitants of Sark, including, when necessary, departing from Chief Pleas Rules of Procedure, keeping mum about what would seem to have been material information in their possession, and/or apparently disseminating inaccurate information to, the Sark public and Chief Pleas. It was the 2008 reform law which threw away hundreds of years of Sark history, marginalized the Tenants, and strengthened the position of the Seigneur and the Seneschal. In more way than one, by sacrificing the Tenants and Sark’s traditions and history while (and one might wonder whether in exchange for) at the same time enhancing their own positions, the Seigneur and the Seneschal also signed their own death warrants, and the chickens have now come home to roost.
While in the view of this author (as well as the unappealed and final judgment of the British Court of Appeal), the splitting of the Seneschal’s dual role was necessary, the question remains whether this will solve all the problems created by the 2008 reform law. This author, at least, is sceptical.