[2008]JRC073
royal court
(Samedi Division)
12th May 2008
Before : |
M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats Tibbo, Bullen, Clapham, Morgan and Liddiard. |
IN THE MATTER OF THE REPRESENTATION OF THE ATTORNEY GENERAL
AND IN THE MATTER OF A PROCUREUR DU BIEN PUBILC OF ST PETER
T. J. Le Cocq Q.C., HM Solicitor General for the Attorney General.
Advocate A. J. Clarke for the Parish of St Peter.
judgment
the deputy bailiff:
1. Mr Gerald St John Harrison has an outstanding record of honorary service to the parish of St Peter, having served previously as a Constable's Officer and Vingtenier among other posts. For the last six years he has been one of the Procureurs du Bien Public ("Procureur"), a very important position in any parish.
2. He has now ceased to reside in St Peter, having moved to live in another parish some months ago. Nevertheless, his period of office as Procureur having just expired, he was re-elected unopposed to the office of Procureur at an Assembly of the electors of the parish held on 4th March 2008.
3. The Attorney General has presented a representation to the Court seeking a ruling on whether Mr Harrison can be sworn in as a Procureur given that, at the time of his election, he was no longer resident in the parish.
4. The Court wishes to emphasise, as did the Solicitor General in his submissions, that the representation contains no adverse reflection upon Mr Harrison. On the contrary, the Court accepts unreservedly the powerful endorsement of Mr Harrison by the Connétable, who addressed the Court on Mr Harrison's loyal and dedicated service to the parish over many years and spoke of the enormous contribution which he had made to the wellbeing of the parish. The Court will be delighted to swear him as Procureur if he is legally qualified. But the question raised by the representation is unrelated to his personal qualities; it is a straight matter of law which the Court has to determine.
The Law
5. One might have expected this issue to have arisen previously but the researches of counsel have not unearthed any case which is directly in point. We were taken through the statutes which refer specifically to the office of Procureur but they do not assist on the question of residence.
6. The Solicitor General referred us to a number of cases, of which we would mention the following:-
(i) In Re Cabot (1891) 213 Ex 427 the Court held that the fact that a Centenier had ceased to live in the parish for which he had been elected did not give him the right to discharge himself from his duties. However the Court referred specifically to the fact that Mr Cabot had been 'domicilié' in the parish at the time of his election.
(ii) In Re Le Feuvre (1912) 227 Ex 474 the Connétable was relieved of his functions at his own request as he had left the parish. The Court stated specifically that it was in the public interest that a Connétable should be 'domicilié' in his parish. This was consistent with the earlier case of Balleine v Giffard (1888) 212 Ex 540 which held that a Connétable must be 'domicilié' in his parish.
(iii) In Re Potier (1957) 250 Ex 474 the Court accepted the resignation of a Centenier on the grounds that he was about to move to live in a different parish from that for which he had been elected.
(iv) In Re Pirouet (1906) 224 Ex 514 the Court accepted the resignation of the Registrar of Births, Marriages and Deaths in the parish of St Lawrence on the grounds that he had left the parish.
7. We accept the Solicitor General's submission that these cases do not speak with one voice on the question of whether an honorary officer, who moves to reside in another parish after being sworn in, ceases to hold office or must be relieved of his functions as a result. However, we are in no doubt that the customary law required a person to be resident (domicilié) in his parish at the time of his election. We would summarise our reasons for so concluding as follows:-
(i) The researches of counsel have not produced a single example of a parish official (such as an honorary police officer or a Procureur) who has been elected when not a resident of the parish in question. The fact that the Court has been asked on various occasions to rule on whether an office holder who has moved to another parish during his term of office can or should no longer continue in office supports the proposition that he was certainly expected to be resident at the time of his election.
(ii) Although there is no case dealing specifically with the office of Procureur, there is clear authority that a Connétable is required to be a resident of his parish (see Balleine v Gifford and Re Le Feuvre).
(iii) There was also specific statutory authority that a Constable's Officer had to be resident in his parish at the time of his election (see Article 3 of the Loi (1853) au sujet des Centeniers and Officiers de Police, which provided that the Constable's Officers must be chosen from amongst the inhabitants of the parish). It is true that this Law did not deal specifically with the position of any other honorary police officers but it would be extraordinary if the Connétable and the Constable's Officers had to be resident in the parish at the time of their election whereas Centeniers and Vingteniers did not. Furthermore, although the statute dealt with the honorary police, it is in our judgment supportive of the general proposition that parish officials were invariably expected to be resident in the parish when elected.
(iv) Article 1 of the parish of St Helier (Qualifications for Office) (Jersey) Law 1976 ("the St Helier Law") provides as follows:-
"(1) Notwithstanding any enactment or customary law to the contrary, no person being a ratepayer in the Parish of St Helier shall be disqualified for being elected to, or being the holder of, any honorary office in the Parish of St Helier, by reason only of the fact that the person does not reside therein.
(2) For the purposes of this article, a person shall be deemed to be a ratepayer in the Parish of St Helier if the person is on the list of representatives of bodies corporate kept by the Connétable under Article 29(3) of the Rates (Jersey) Law 2005."
The Law applies to all honorary parochial officers. It therefore covers the position of Procureur. It is compelling evidence that the customary law was understood at the time to prohibit the election of a person to honorary office if he did not reside in the parish; otherwise there would have been no need to enact the Law. Although the Law changed the customary law in its application to St Helier, it did not of course do so in relation to all the other parishes which therefore remained subject to the full rigour of the customary law.
(v) In 1999 the States enacted the Honorary Police (Parochial Domicile) (Jersey) Law 1999 ("the 1999 Law"). As the explanatory note stated, the Law was designed to enable a member of the honorary police, other than the Connétable, who ceases to be resident in the parish in which he holds office to continue, with the consent of the Attorney General, to hold office for the remainder of his term. Article 1 provided as follows:-
"(1) Notwithstanding any enactment or rule of customary law to the contrary, but subject to this Law, a person who (not being the Connétable) is a member of the Honorary Police but who, during his term of office, ceases to be resident in the Parish in which he holds office shall not for that reason alone be disqualified from continuing to hold office for the remainder of his term if the conditions set out in paragraph (2) of this Article have been fulfilled......."
Paragraph (2) set out the requirement for the consent of the Attorney General and paragraph (3) stated that the Law was without prejudice to the provisions of the 1976 Law concerning St Helier. In our judgment the inevitable inference from this legislation is that an honorary police officer had to be resident in the parish at the time of his election. Furthermore the report which accompanied the draft legislation stated:-
"This reform would not, however, apply to the Connétable because, in the view of the Committee, his position as 'Father of the parish' is such that he ought to continue to be resident in the parish so long as he holds office. It also would not apply to Honorary Officers such as Roads Inspectors, Procureurs du Bien Publique, etc who do not rank as police officers."
(vi) The 1999 Law was amended by the Honorary Police (Parochial Domicile) (Amendment) (Jersey) Law 2004 ("the 2004 Amendment") so as to provide that, where a person has been allowed to continue to hold office under the provisions of the 1999 Law despite moving to another parish, that person could now, provided that he obtained the consent of the Attorney General and had served continuously as an honorary police officer since ceasing to reside in the parish, be eligible for re-election even though he remained resident outside the parish. The fact that this amendment was thought necessary is supportive of the proposition that the customary law required a person to be resident in the parish at the time of his election to the honorary police. If the customary law had been to the effect that a person did not need to be so resident at the time of his election, this amendment to the 1999 Law would not have been necessary.
(vii) It is true that the 2004 Amendment also introduced a new Article A1 to the 1999 Law which stated specifically that a person is only eligible for election as a member of the honorary police of a parish if he resides in the parish. However, the explanatory statement accompanying the 2004 Amendment made it clear that this new article was intended to simply 're-state' the rule that a person must be resident in the parish in order to be elected.
(viii) The requirement for residence at the time of election is entirely consistent with the history and custom of honorary parochial service. Honorary officials are sworn in to perform important duties in relation to the affairs of a particular parish. Their decisions can have a major impact on the affairs of that parish. It would be only natural for the custom to have developed that a person had to have a 'stake' in that parish in order to be put into a position to influence its affairs and that residence was the required connection with the parish.
8. For these reasons we are in no doubt that the customary law of this island has been that an honorary parochial officer such as a Procureur must be resident in the parish at the time of his election.
9. The Solicitor General managed to unearth a decision of the Ecclesiastical Court in 1946 relating to the office of Surveillant in the parish of St Martin. One of the parishioners, a Mr Billot, objected to the Ecclesiastical Court swearing in a Mr Journeaux as Surveillant on the grounds that Mr Journeaux had ceased to live in St Martin by the time of his nomination and election. The 'Ministre desservant' of the parish contended that Mr Billot was in effect estopped from raising any objection because, although fully aware at the time that Mr Journeaux resided outside the parish, he raised no objection at the Parish Assembly prior to Mr Journeaux being nominated and elected. He held his silence and only mentioned the matter afterwards. The 'Ministre' contended that it was therefore too late for him to protest at that stage. The Ecclesiastical Court decided the matter solely on the grounds of estoppel. It held that because Mr Billot had made no protest at the Parish Assembly when Mr Journeaux was proposed and elected, his objection should be overruled.
10. It might be said that, by necessary implication, the Ecclesiastical Court must have been of the view that Mr Journeaux was not prohibited by law from becoming a Surveillant, as otherwise the lateness of Mr Billot's objection could not confer the necessary jurisdiction to swear him in. However, the fact remains that the Ecclesiastical Court based its decision entirely on estoppel and did not purport to make a decision on whether Mr Journeaux was prohibited from being elected a Surveillant as contended by Mr Billot. More importantly, a decision of the Ecclesiastical Court cannot carry any significant weight when determining the customary law of the island in non-ecclesiastical matters. The decision does not cause us to revise the conclusion reached at paragraph 8 above.
11. Whilst not conceding that, hitherto, the customary law had been as we have held it to be, Advocate Clarke reserved his main submissions for the proposition that the Court should develop the customary law and hold that, whatever may have been the position in the past, the customary law should now be developed so as not to require residence in a parish at the time of election. In support of this he referred to Connétable of St Helier v Gray [2004] JRC 177 where the Court, having referred to the desirability of declaring the customary law in a manner which served the public interest, held that the custom in relation to the appointment of the Chef de Police of a parish had changed in the 50 years since a decision of the Royal Court in 1946 and that accordingly the Court should declare the customary law to have changed to accord with the present custom and practice. The Court referred to Routier, Principes Généraux du Droit Civil et Coutumier de Normandie (1742), Rule 12 of which states:-
"Les dispositions qui sont faites en faveur de la cause publique, s'intreprétent toujours favorablement, et reçoivent toutes les extensions que l'intérêt public requiert."
12. Mr Clarke also referred to the statement by Birt, Deputy Bailiff in Re Amy [2000] JLR 80 at 93:-
"The Court's sole duty is to declare the law of Jersey and it must do so for a community of the 21st century. To insist on adopting some rule laid down or derived from principles laid down several centuries ago, if they are clearly inappropriate for modern times, would in my judgment be an unsatisfactory way of proceeding and is not required by authority."
However that observation was made in the context of ancient Norman principles.
13. Mr Clarke pointed out that there was no continuing need for a Procureur to be resident in a parish. One could understand why this requirement existed in the past when there were limited communications and travel to other parts of the island was a major undertaking. But nowadays, no matter where he lived, a person would never be more than about half an hour from his parish hall. E-mail and other modern methods of communication would enable him to keep in touch with all developments and he could even use his computer to link into the relevant books and records kept at the parish hall. In summary, a person could act perfectly effectively as Procureur even though living in another parish. Furthermore, the ultimate choice lay with the electorate. Whilst it might be expected that the majority of parochial officers would be resident in the parish, it should be open to the electorate at Parish Assembly to decide whether someone residing outside the parish could nevertheless be entrusted with a role within the parish municipality.
14. Mr Clarke's submissions were strongly supported by the Connétable of St Peter. The important thing for the parish, he said, was to find the best people and if the Parish Assembly wished to elect someone who had strong ties to the parish but no longer lived there, why should it not be able to do so? He also pointed out that Deputies do not have to reside in the parish which they represent. In short, he supported the submission that the Court should declare the customary law to have moved on so as to fit the requirements of the modern day.
15. The Court has carefully considered these submissions but has concluded that it would not be right for the Court to change or develop the customary law in this way. We would summarise our reasons as follows:-
(i) The St Helier Law applies to all honorary positions including that of Procureur. The effect of the Law is that, in order to be eligible for office in St Helier, a person must either be resident in that parish or a ratepayer (as defined). If we were now to declare that the customary law enables any person in the island to be elected to honorary office, regardless of whether he is resident in the parish concerned, this would be to take the position beyond that which applies under the statute in St Helier. We would have to say either that this new rule of customary law applied only in the eleven other parishes (because the Court cannot act inconsistently with the statute) or we would have to say that the customary law applies to all parishes and the St Helier Law has simply become completely otiose because the customary law now allows a wider category of person to stand for election than is permitted under the statute. Either way, we do not think it is open to the Court to act in a way which is so inconsistent with legislation.
(ii) A similar argument applies in relation to the 1999 Law, as amended. As recently as the 2004 Amendment, the States specifically re-affirmed the customary law by providing that (subject to certain closely defined exceptions) a person is only qualified for election as a member of the honorary police of a parish if he resides in the parish. It is true that the 1999 Law only applies to the honorary police and that we could therefore perhaps theoretically confine our decision to develop the customary law to honorary officers other than the honorary police; but in our judgment there can be no logical reason for introducing a distinction between the honorary police and other honorary parochial office which the customary law has not recognised previously. If it is still thought appropriate by the legislature that honorary police officers must (save in the circumstances outlined in the 2004 Amendment) be resident in the parish at the time of their election, it would in our judgment not be appropriate for this Court to declare the customary law to be to the opposite effect for other honorary parochial office.
(iii) This case is quite different from that of the Connétable of St Helier case referred to para 11 above. In that case the custom and practice had changed and, relying upon the principle to be found in Routier (supra) r12, the Court felt able to develop the customary law so as to reflect the change in custom and practice. Here, however, there is no change to custom or practice. On the contrary, the practice remains what it has always been, namely that persons must be resident in the parish when elected save to the extent that statute has intervened. The principle summarised by Routier can therefore be of no application in this case.
(iv) Even if it were theoretically open to this Court to develop the customary law in the manner suggested by Advocate Clarke and the Connétable, we do not think that it would be right to do so. The issue before us is one upon which opinions may quite reasonably differ. Some may support the Connétable of St Peter and be of the view that the speed of travel and the existence of modern communications means that there is no need for retention of the residence requirement and matters can be left to the good sense of the electors at Parish Assembly. Others, on the other hand, may take the view that it remains important that honorary officers of a parish should have a real connection with and stake in the parish in which they will hold office and wield influence and the requirement for residence ensures that this is so. In our judgment these are matters for resolution democratically through the legislature rather than by decision of this Court. If there is to be a change in the customary law, it is a matter for the States.
16. For these reasons, whilst having every sympathy with the Connétable's desire not to lose the services of a highly regarded Procureur, we rule that the customary law of this island continues to require that, in order to be eligible for election to the office of Procureur in a parish, a person must be resident in that parish at the time of his or her election and swearing in. In the circumstances we cannot therefore administer the oath of office to Mr Harrison and a new election must be held.
Authorities
Re Cabot (1891) 213 Ex 427.
Re Le Feuvre (1912) 227 Ex 474.
Balleine v Giffard (1888) 212 Ex 540.
Re Potier (1957) 250 Ex 474.
Re Pirouet (1906) 224 Ex 514.
Loi (1853) au sujet des Centeniers and Officiers de Police.
St Helier (Qualifications for Office) (Jersey) Law 1976.
Honorary Police (Parochial Domicile) (Jersey) Law 1999.
Honorary Police (Parochial Domicile) (Amendment) (Jersey) Law 2004.
Connétable of St Helier v Gray [2004] JRC 177.
Routier, Principes Généraux du Droit Civil et Coutumier de Normandie (1742).