Written evidence from Advocate Gordon Dawes on behalf of Sir David and Sir Frederick Barclay

Crown Dependencies:  developments since 2010

I am instructed on behalf of Sir David and Sir Frederick Barclay and writing to you in your capacity as Chairman of the Justice Committee and its inquiry into developments in the Crown Dependencies since the Committee's report of 2010.  Please treat this letter as written evidence submitted on behalf of my clients.

May I begin by referring to the attached copy correspondence setting out my clients' views on the shortcomings of the section concerning Sark in your original report (8th Report of Session 2009-10). That correspondence comprises:

i)              My letters to you/the Committee dated 29 and 30 March 2010;

ii)              The Clerk to the Justice Committee's letter to me dated 31 March 2010;

iii)              My letter to you dated 20 April 2010.

iv)              The Clerk to the Committee's further letter dated 11 May 2010.

Matters were left very unsatisfactorily in 2010 with the suggestion that my clients somehow represented a threat to the operation of democracy in Sark.  Indeed this has affected the media's perception of events on Sark ever since.

By contrast, my clients regard themselves as vindicated by events since 2010 and hope that this will be reflected in your forthcoming report, which should itself take the opportunity to redress the balance of your one-sided report of 2010.

A number of important points emerged from Lord McNally's recent evidence to your committee on 5 November:

1. That all the Crown Dependencies were well governed, except for Sark which, alone of the Crown Dependencies, could not be given a clean bill of health;

2. The people on Sark remained "wedded" to the old ways and the feudal regime;

3. However, the world had moved on and Sark had to operate to 21st century standards;

4. The MoJ had had to take action to insist that Sark get on and separate the roles of Seneschal and President of Chief Pleas in accordance with the unappealed judgment of the English Court of Appeal that the 2008 reform legislation was not Human Rights Convention compliant, but still took 3 years to do so (significantly longer in fact);

5. Lord McNally had had to twist arms even to have an election observer appointed in December 2012;

6. Lord McNally personally felt a sense of failure in respect of Sark;

7. Sark had to provide a living for its people, and had to have an economic future other than for retirees;

8. There was a lack of empathy in the community (for progress) and that people were "clinging to the old ways", feared change and opposed "investments and ideas", seeing everyone as "an enemy";

9. It was difficult to find anyone who gave proper leadership in Sark.

My clients have noted the exchange you had with Lord McNally as follows:             

Sir Alan Beith:

… let's be clear what we are talking about:  Those who represent the majority view in the Chief Pleas … and the Barclay brothers and their management, their economic interests on the island who tend to express their dissatisfaction in extremely strident terms or to take court action which led to some of the democratic changes.

Lord McNally:

I was almost tempted to bring two guides to you, one is the Sark scribe and the other is the Sark Newsletter.  In the Sark Scribe, Sark is a bucolic land of people, sheep racing and maypole dancing and having tea at the vicarage and the Sark Newsletter, Sark is a fascist 1930s state.

Let me be clear, and I'll say again as I have said to the Barclay Brothers and their representative, I wish that they would cease publication of the Sark newsletter because I think it impedes getting the kind of empathetic relationships in Sark that would take the Island forward.

Lord McNally appeared to identify Sir David and Sir Frederick as publishers of the Newsletter.  This is incorrect.  Mr Delaney alone is the editor and publisher of the Newsletter.  He is ultimately responsible for its content, not Sir David and Sir Frederick.

What is clear from Lord McNally's evidence is that nothing has come of the suggestion in the 2010 report that my clients were somehow responsible for Sark's ability to function properly as a democracy.  The problems identified by Lord McNally have nothing whatsoever to do with my clients.  The criticism is of what can be labelled "the Sark establishment".  Those who would take Sark back to feudalism and obstruct reform, investment and progress generally, even at the expense of future generations.  That, my clients say, is the true scandal of Sark, the capacity of its establishment to damage itself in the stubborn defence of the

indefensible and the spurning of assistance and opportunities which any right-minded community would leap at.

Of course, Lord McNally's evidence takes as its premise that there is genuine democracy on Sark, but my clients say there is not, and this is a fundamental part of the problem on Sark and its lack of progress.

It is remarkable to have to report that even in the second decade of the 21st century and even under legislation made only as recently as 2008, the following remains the case on Sark:

1. The feudal Seigneur has a seat as of right in Chief Pleas and for no better reason than that he inherited the fief from his grandmother, whose predecessors had acquired the fief after foreclosing on a mortgage in 1852;

2. He has the right to speak politically at Chief Pleas meetings and to bring contentious propositions (and has done so in the past);

3. He has a limited right of veto over Sark legislation (a provision opposed by the Guernsey Attorney-General of the day);

4. He has extensive powers of appointment and/or removal in respect of the Island's resident judiciary (and indeed only he can initiate the involuntary removal of the Seneschal and Deputy Seneschal), the Prévôt (equivalent of a High Court Sheriff) and Greffier (Court clerk and Island registrar).  He appoints his own deputy;

5. If the President of Chief Pleas alone wishes to summon an extraordinary meeting of Chief Pleas, he requires the consent of the Seigneur;

6. The Seigneur's consent is required to remove a special constable from office;

7. He is ex officio a trustee of Sark's publicly owned assets;

8. His consent is required for the professional Guernsey police to land on Sark and carry out their duties (Sark's resident police being lay volunteers).

Meanwhile the Seigneur continues to enjoy an index-linked annuity exceeding £30,000 for unspecified duties which will, as matters stand, be inherited by his son and future generations.

It is a mystery to my clients how the British Government can support the role of Seigneur in Sark.  The idea of such a figurehead in the United Kingdom only has to be considered to be dismissed as absurd.  The Seigneur has considerably greater powers in relation to Sark than the Queen has in relation to the United Kingdom or any part of it.  He is very far from being a mere constitutional head of state acting on the advice of elected politicians.

My clients note though that it was the express intention of the MoJ to push forward reforms of the role of the Seigneur at the time of the making of the 2008 Law.  It was a beginning of reform not an end.

After what were, to any objective onlooker, very deliberate attempts to avoid reforming the 2008 legislation, the dual role of Seneschal and President of Chief Pleas was finally split in early 2013, only for Lt. Col. Reg Guille to remain in office as the unopposed candidate for the post (which would otherwise have been filled on a vote of Chief Pleas members, not the electorate at large).  Lt. Col. Guille has been in office since 2000 and was the appointee of the Seigneur.  My clients have had cause to make repeated complaints to the Lt. Governor about the conduct of Lt. Col. Guille, including defamatory statements and obvious partisanship when conducting Chief Pleas business.  Again it is clear to any objective observer that Lt. Col. Guille is an obstacle to progress on Sark.

By contrast, it should be as clear as it possibly can be that it is my clients who have championed true democracy on Sark, only to be obstructed and vilified by the Sark establishment and the vested interests it represents, something which is only now coming to light and being appreciated fully.  Sark is not governed well and that is the exclusive responsibility of those in positions of influence and power on Sark, and again it is my clients' complaint that those in Chief Pleas not elected by Sark's electorate retain considerable influence and power to obstruct progress, namely the Seigneur and the President of Chief Pleas, along with other prominent individuals who openly oppose progress.

Sark has no clear leadership because of the 2008 legislation, which left the feudal establishment very largely intact and an incomplete democracy.  Sark has been left with two conflicting systems of government.  An ineffectual committee-based system of government continued with chairmen who had no additional powers, not even the committee generally recognised to be the most important, the General Purposes and Advisory Committee.  Even the seating arrangements of Chief Pleas continued unchanged, notwithstanding the supposed introduction of democracy, with the Seigneur sitting on a large wooden throne on an elevated dais, flanked by the President on a slightly smaller wooden throne.  There is no opposition or opposition party of any political persuasion and no separation of powers between Chief Pleas as a whole, Chief Pleas as a legislature, or as an executive given the confusion of all roles and the committees drawn from it.  Indeed the 2008 Law gets off to a bad start when it expressly provides at s.1 that "all legislative and executive functions which may be exercised within Sark are exercisable by the Chief Pleas ..".  Sark's elected politicians enforce the laws they make, which is  not a healthy system of government.

The Seigneur even continues to own the Island of Sark itself and, therefore my clients say, its very constitution.  It is open to him to surrender the fief and the Island to the Crown and he has threatened to do so in the past when matters have not gone his way.  At the same time land reform is long overdue with a system of land law which is medieval and entirely without justification, including the inability to sub-divide Sark tenements (the parcels of land into which Sark was divided by the settlers of 1565) or to mortgage Sark land.  The Seigneur continues to own the foreshore and all of the "common parts" of Sark not expressly in private or other public ownership.

True democracy and true democratic leadership on Sark has no chance of success while feudal institutions remain intact.  It is the ultimate cause of the inability to give Sark a clean bill of health.

Apart from Sark's continuing feudal state, my clients say that there is a further and considerable threat to functioning democracy through the ability of a single group of interests to dominate Chief Pleas entirely and then misuse the assembly by using its legislative powers as a weapon against my clients' interests.

It is a point which has been raised repeatedly before, but Sark is a single constituency.  All voters vote for all candidates (and the qualification period for the electoral role was very deliberately extended from 1 to 2 years in 2010, which is part of a pattern of the establishment tightening its control over Sark, a recent example has been to redefine what it is to be ordinarily resident on Sark to qualify as a local person as requiring residence for fully 273 days a year for 15 years).  This means that if a single interest group (here the Sark establishment, those opposing change) can organise sufficient votes to secure the last seat to be filled then you have what amounts to a single party state – which is what Sark effectively has and hence the obstruction even to "ideas", which Lord McNally so strikingly identified.  It also means that no individual resident can point to any single Conseiller and identify that person as "their" Conseiller.  All Conseillers nominally represent all residents, in reality they represent only themselves.  It is very rarely that a Conseiller says that he or she has been asked to take up an issue or a point of view on behalf of a resident.

As to the use of Chief Pleas as a weapon since 23 March 2010 my clients point to the following events in Chief Pleas (and please bear in mind that Chief Pleas only meets 4 times a year, plus the occasional extraordinary meeting):

14th April 2010:              Chief Pleas passed legislation, the only purpose of which is to hamper further the ability of my clients' cargo vessel, the Brecqhou Warrior, to operate – no other vessel of any significance was affected.  At the same time the monopoly position of the Chief Pleas' owned shipping line was strengthened.  A challenge by way of judicial review was discontinued when in fact my clients managed to secure licenses from the Lt Governor to carry on operating as before, but the intention of Chief Pleas was clear;

              Chief Pleas also resolved to introduce legislation to control marquees and signs.  This again appeared to be a direct response to activities on behalf of my clients' interests;

7th July 2010:              At very short notice (an addendum to the agenda dated 25th June 2010) newly drafted legislation was introduced to give new powers to Chief Pleas to regulate the placing of moorings in Sark waters; this was in direct response to my clients' company on Sark (Sark Estate Management Limited) placing new visitor moorings in Dixcart Bay in the vicinity of their hotel, the Dixcart Bay Hotel.  This is a prime example of Chief Pleas attempting to obstruct and stifle investment/the economy;

6th October 2010:              Chief Pleas refused to adopt the civil remedies sections of the Protection from Harassment (Bailiwick of Guernsey) Law 2005 (itself copied from English legislation which contains both criminal and civil remedies) again to frustrate attempts to secure greater protection in law for the manager of my clients' interests on Sark, Mr Delaney;

              Chief Pleas voted to instruct the Guernsey Law Officers to draft legislation to regulate the production of alcohol in Sark and to allow it to tax alcohol production.  This was a clear and direct response (despite denials) to the planting of vineyards in Sark by my client's interests;

18th January 2011:              The Chief Pleas meeting was used as a platform (exploiting the protections against liability for defamation introduced by the 2008 Law) to publicise and attack confidential correspondence from my clients to the Seigneur.  In response my clients disclosed correspondence passing between them and the Seigneur offering to buy the Seigneur's feudal rights in order to give those rights to Chief Pleas, which prompted another debate on 4th May 2011 again attacking my clients;

6th July 2011:              Sark passed the Housing (Control of Occupation) (Sark) Law 2011 which further stifles the possibility of developing Sark property by making any sub-division of "open" market dwellings automatically "local" market and thereby uneconomic as a proposition;

              Planning application fees were increased with express calls from members to impose swingeing increases for commercial developments (i.e. by my clients);

              Attempts were made to prompt Chief Pleas to introduce conservation areas, again in response to my clients' investment and the planting of vineyards (a later attempt was made expressly to prevent the planting of new vineyards but came to nothing);

18th April 2012:              Chief Pleas voted to spend public funds engaging a consultant on night-time helicopter medical evacuation rather than use the freely offered services of the Brecqhou helicopter and the facilities already installed on Sark permitting night-time landings.  Emergency evacuation by sea from Sark takes not less than two hours whereas the Brecqhou helicopter can transfer a casualty in 15 minutes.  Chief Pleas would rather waste public funds than liaise with my clients.  A similar situation arose where Chief Pleas replaced the Island's crane at a cost in excess of £200,000 rather than take up offers to transport a failed part for repair at a fraction of the cost;              The Seneschal (and still President of Chief Pleas) made a highly charged and political speech (unlawfully under the 2008 legislation preventing him from speaking) saying:  "Our rights and privileges have been trampled underfoot by wealthy men who claim to bring democracy to Sark but don't go on the electoral role" and that they were "assisted in (their) assaults on Sark" by expensive law firms, and complained that "We have not been properly protected by the UK from those attacks".  He complained that the role of Seneschal was to be "wiped out for no other purpose than revenge for rejecting their vision of Sark";

This was again a prime example of the Sark establishment obstructing reform and progress, here the implementation of the Court of Appeal's ruling concerning the non-compliance of the Seneschal's role with the Convention.  At the same meeting the proposed legislation to regulate and tax alcohol (wine) production on Sark advanced further.  The Seneschal was later reprimanded by the Lt Governor for his conduct but remains in office as President of Chief Pleas;

3rd October 2012:              Chief Pleas passed the Regulation of Production of Alcoholic Products (Sark) Law 2012.  The only business it affects is that of my clients.  The Alderney and Sark (Licensing of Vessels) (Sark) Law 2010 was also implemented, again the only vessel it affects in practice is that of my clients;

10th April 2013:              Chief Pleas voted to introduce new requirements for a license to import construction vehicles into Sark, again perceived as a direct attack on my clients' interests;

              Chief Pleas voted to impose charges for the assistance of the harbour master when embarking/disembarking more than 12 passengers whether or not such assistance was actually requested (there being no equivalent mandatory service in Guernsey or elsewhere that my clients are aware of).  This was in direct response Sark Estate Management's objections to charges for unwanted harbour services.  Again the measure stifled Sark's economy by obstructing successful day trips between Sark and Brecqhou;

              Chief Pleas voted to introduce legislation to protect wildlife in Sark which again seemed aimed at stifling my clients' investments and an attack on the vineyards, nothing has come of this to date;

4th October 2013:              Chief Pleas passes legislation which provides that one can only become Sark qualified for housing purposes (ie the right to live in local market and therefore cheaper housing) if you have been ordinarily resident for 273 or more days a year for 15 years;

              Detailed proposals for the taxation of alcohol production are put forward.  These proposals mean that my clients' business will be the only business on Sark to be taxed because there are no other business taxes; it also seems to be proposed to tax not only domestically consumed alcohol but also exported alcohol, which is contrary to all other known systems of imposing duty in related jurisdictions.

Yours sincerely

Gordon Dawes

Partner & Advocate
15 November 2013

The Justice Committee

House of Commons

London

SW1A 0AA

29 March 2010

Dear Sirs

Embargoed copy of the Justice Committee Crown Dependencies Report

I am instructed on behalf of Sir David and Sir Frederick Barclay.  I write with reference to paragraphs 46 to 49 of the above report under the heading "Sark".

My clients are very concerned to see that a number of allegations are made in your report without any right of reply being given to them.  Your Committee travelled to Sark and met in person with the Sark political authorities but afforded no opportunity to my clients to comment on what was being said against them, which is fundamentally unfair and a breach of natural justice.  It is not sufficient that the Committee states that it has not tested the allegations and does not take sides if it nevertheless publishes the allegations.  Indeed it gives credence to the allegations through the recommendation it makes that "... any threat to the ability of (democratic government) to operate fairly and robustly has the potential to raise good government issues which might require UK Government intervention".

My clients ask you to note the following:

1   The events of December 2008 were not reported fairly at the time and are misdescribed by you in your report.  The businesses were closed for a matter of days, not weeks.  You should note also that the political authorities who complained that the businesses were closed had actively sought election on an anti-Barclay family/anti-Barclay investment platform in circumstances where, without that investment, all such businesses on Sark would have been closed throughout the winter in any event.  The Barclay family's investment programme has in fact continued at a rate of millions of pounds per annum and has sustained Sark's economy throughout the recession.

2   It is unfair to present Sir David and Sir Frederick as repeatedly threatening proceedings and Islanders capitulating because of a lack of resources.  Sir David and Sir Frederick are entitled to protect their interests and reputation in the same way as anyone else.  Where letters have been written there has been ample justification, nor have such complaints been pursued in the way that they could have been pursued if Sir David and Sir Frederick carried on in the way you imply.  There have been no Court proceedings in Sark against individuals of the kind you refer to.

3    What your report fails to note is the fact that, but for the considerable efforts of Sir David and Sir Frederick Barclay, there would be no democracy on Sark at all.  When they first came to Brecqhou in the 1990s Sark was still a feudal society with a feudal government.  It is largely due to the Barclay family that:

a)     the right of male primogeniture in the context of inheritance has been abolished;

b)     the Seigneur's feudal right to take 1/13th of the purchase price of all real property transactions by way of private taxation has been abolished; and

c)     there is a nearly fully elected assembly in Sark rather than one dominated by unelected landowners.

4    Unfortunately there is still no fully elected assembly on Sark because the Reform (Sark) Law 2008 failed to reform the roles of the Seigneur or the Seneschal, the Seigneur being the feudal overlord of Sark and the Seneschal being both the speaker of the assembly and the island's principal judge.  Both are unelected and unaccountable to the elected Conseillers.  Both have considerable powers in the new assembly.  The Seneschal is the Seigneur's appointee for life (no retirement age is stated, he can only be removed voluntarily or by the Lieutenant-Governor for cause).  The Seigneur can both speak and move legislation.  The Seneschal controls debate and runs the business of the assembly.

5    Sir David and Sir Frederick Barclay brought Judicial Review proceedings in the High Court in London challenging the Ministry of Justice/Privy Council decision to recommend the 2008 Law for Royal Assent.  The English Court of Appeal upheld their challenge to the role of the Seneschal as a breach of Article 6 of the European Convention on Human Rights.  The challenge under Article 3 of the First Protocol (right to free elections) went to the Supreme Court and will now go to Strasbourg.

Far from the Ministry of Justice having to keep a watchful or protective eye over the Sark political authorities/establishment it is Sir David and Sir Frederick who have repeatedly appealed to the Ministry over the years to do what they can to ensure that Sark in fact meets its international law obligations to have a system of government which complies with the European Convention on Human Rights.  Your statement of general principle could not be further from the mark when it comes to the experience of my clients when dealing with Sark.

Even now, and notwithstanding the UK government's acceptance of the English Court of Appeal decision as to the Article 6 breach of the dual role of the Seneschal, the Sark political authorities are failing to amend the 2008 Law to separate his roles.  Sark is, in effect, failing to make reforms which the UK itself accepted as inevitable when the roles of the Lord Chancellor were separated.

Meanwhile I have instructions to write to the Ministry of Justice again asking them to intervene to urge Sark not to make legislation which patently discriminates against Sir David and Sir Frederick by attempting to prevent them from using their own vessel to transport cargo to and from Sark and Brecqhou.

Your section on Sark fails to recognise that a small jurisdiction can itself become dominated by establishment interests, vested interests and other such cliques requiring the Ministry of Justice to keep a watching brief.  That is the case with Sark and I have files of correspondence with the Ministry to support my clients' position.

My clients ask that if your report is to be published in its present form that this communication is added to it by way of clarification and answer.

Yours faithfully

Gordon Dawes

Partner

The Justice Committee

House of Commons

London

SW1A 0AA

30 March 2010

Dear Sir

Crown Dependencies, Eighth Report of Session 2009-10

I am instructed on behalf of Sir David and Sir Frederick Barclay and write further to my letter of 29th March, copy attached for your convenience.

My clients wish to record formally their concern and objection to the fact that your Committee visited Sark, met with individuals who have exhibited bitter enmity against the Barclay family and then published their allegations in a Select Committee report to the House of Commons without first giving my clients the opportunity to respond.  The mere fact that the Committee professed not to take sides or adjudicate on the allegations is neither here nor there.  You have provided a very public and one-sided platform to Barclay family critics in Sark.

My clients have asked me to point out that until they began their very substantial investment programme on Sark, there was little or no employment on Sark for 7 or 8 months of the year.  The Barclay investment programme is worth in the region of 4.5 times the Island's annual public revenue/expenditure.  It is intended to create a long term, sustainable economy for Sark based upon an integrated tourist industry.  There is, however, a strong establishment clique which is bitterly opposed to any change on Sark at all, and any investment by the Barclay family in particular.

My clients ask me to emphasise that they have no political role on Sark of any kind.  They have no seats in Chief Pleas.  However, they do insist upon transparency and accountability from the elected Conseillers and administrators and work hard to promote the kind of standards which you would accept unquestioningly in the functioning of the House of Commons.

Again I point out the irony that it is my clients who have consistently lobbied the Ministry of Justice to ensure Sark government reform as opposed to the Sark authorities lobbying the Ministry for protection or anything of the sort.

It is unfair to imply, as your statement of general principle does, that my clients have skewed the operation of democratic government.  Quite the contrary is the case.  Without my clients there would be no recognisable democracy on Sark at all.  Again as noted already, the real risk in a small jurisdiction such as Sark is of internal cliques.  I would draw to your attention the fact that there is no constituency system on Sark of any kind.  All Conseillers are elected to represent the whole island; which in reality means that no single Conseiller identifiably represents any given section of the populace.  There is no sense at all of a Conseiller representing the interests of those whose views he does not share.  My clients' very strong impression is that they are entirely without representation in Chief Pleas; a body which consistently works against their interests.

My clients do require an explanation for the coverage you have given of Sark and why they were given no opportunity to reply and how that omission can be rectified beyond the rather weak proposals put forward by the Clerk to the Committee.

Yours faithfully

GORDON DAWES
Partner

Encl:              Copy of letter to The Justice Committee dated 29 March 2010

31 March 2010

Crown Dependencies, Eighth Report of Session 2009–10

Thank you for your letter of 30 March to the Chairman of the Committee, on behalf of your clients, to which I have been asked to reply.

This Committee is unlikely now to meet again in view of the impending Dissolution of Parliament. The Chairman has therefore directed me to place your correspondence before the new Justice Committee – or equivalent – for its consideration in a new Parliament.

I hope this is helpful.

Fergus Reid

Clerk

Justice Committee

The Justice Committee

House of Commons

London

SW1A 0AA

20 April 2010

Dear Sir

Crown Dependencies, Eighth Report Session 2009-10

My clients have instructed me to write further to you on the subject of your report and the impression it gives that their activities have somehow threatened the ability of democratic government on Sark to operate fairly and robustly.

They say that this is very far from the truth and have asked me to send to you the attached diagram which they believe summarises the true state of affairs on Sark.  The reference to SEM at the side of the graph is "Sark Estate Management".  This is the organisation which runs Barclay affairs on Sark.

You will see that my clients maintain that political power on Sark is in fact held by the unelected Seigneur, the unelected Seneschal and the Chairman of the General Purposes Committee, Charles Maitland, himself not directly elected by the people of Sark to that position.  My clients point out that they have no influence or control over any of these office holders.  They further point out that they regard themselves as having no representation in Chief Pleas itself.  There is no constituency system and Brecqhou has no separate representation.  Indeed they see themselves as having no political power in Sark at all and therefore find it extremely surprising that it should be suggested that they threaten democracy on that Island.

My clients believe that the true history of Sark politics and what passes for democracy over the last few years has been the domination of Sark by a clique which has the Seigneur and the Seneschal at its centre.  The reforms which took place in Sark have affected matters hardly at all.  Indeed the Seigneur continues to sit on a dais in Chief Pleas with his appointee for life, the Seneschal, at his side, controlling and conducting the business of Chief Pleas.

By way of illustration only I outline the nature of the Seneschal's office:

a)              it is unelected, whether directly or indirectly;

b)              the holder is appointed by the unelected feudal overlord of Sark;

c)              no retirement age is specified;

d)              the holder cannot be removed from office by Chief Pleas, only by the (again unelected) Lieutenant-Governor and then only "for good cause";

e)              the holder has considerable powers over Chief Pleas, as evidenced by the Reform Law and the Rules of Procedure.  The Seneschal draws up the Agenda and controls the order of business, which can have a significant effect on how business is in fact disposed of.  He controls the debate, the order of speakers, the length of debate, when a vote is taken and whether a named vote is allowed.  He has a considerable discretion as to the application of the rules and whether there are in fact any rules for any given issue;

f)              the Seneschal operates in a parliament with no organised political parties, and no ministerial system; there is no true Chief Minister or opposition leader, all Conseillers are, in effect, at the Seneschal's beck and call, there is a sense in which he is the true Chief Minister as well as being Speaker;

g)              he controls the calling of meetings, indeed his consent is required in some circumstances to call a meeting (for example when Conseillers request that an extraordinary meeting take place);

h)              he is the returning officer for elections;

i)              he is the principal judge in both criminal and civil matters; he decides both issues of fact and law sitting alone and without any legal qualification;

j)              he is one of the three trustees of Sark's publicly owned assets, the other two being more junior officers of Chief Pleas;

k)              the present incumbent has a personal manner which is powerful and domineering.  As a matter of law the Seneschal has no vote and is supposed to have no voice, but in practice he frequently speaks beyond the limits of his role of President and is politically active outside of Chief Pleas as evidenced by the memorandum he submitted to your Committee and comments he has made in the past, particularly after the December 2008 elections.  His personal opposition to my clients is well known;

l)              the Seneschal is, in many respects, the central focus of Sark politics.  He works closely with the Seigneur and the Committee Presidents.  He works closely with the Guernsey authorities.  All legislation passes through his hands.  He reports to the Guernsey authorities after each Chief Pleas meeting;

In summary, the Seneschal is the Seigneur's appointee and man.  He controls Sark politics, Sark's justice system, Sark's electoral system, Sark's conveyancing system, Sark's liquor licensing system and is the dominant trustee of the publicly owned assets.  He is unelected by the people and unaccountable to them whilst having strongly held and very publicly known political views opposing my clients.

Notwithstanding the unappealed judgment of the English Court of Appeal from as long ago as 2nd December 2008 that the Seneschal's role breaches Article 6 of the European Convention on Human Rights, Sark has still failed to introduce legislation (even in draft) to reform his office and separate his judicial and legislative roles.  Indeed when the issue was considered by Chief Pleas on 14th April the matter was placed at item 20 of a 31 item agenda, by the Seneschal.  This is another powerful indicator of the Sark's establishment's disregard for true democracy and an indication of where the real problem lies.  As noted before, without the consistent pressure brought to bear by my clients, there would be no democracy on Sark, not even the seriously flawed version that exists today.

My clients maintain that your report gave a one-sided account reflecting exclusively the point of view of those who oppose them on Sark.  You failed, inexplicably, to obtain the views or comments of my clients before publishing your report.  That report has since been relied upon on a number of occasions by their detractors as some kind of

authority or support for their viewpoint.  Your report has also been misrepresented in the Guernsey Press, leading to correspondence and a printed apology.

My clients would wish to know what you intend to do to remedy the injustice they believe they have suffered at your Committee's hands.

Yours faithfully

GORDON DAWES

Partner

11 May 2010

Crown Dependencies, Eighth Report of Session 2009–10

Thank you for your letter of 20 April to the then Chairman of the Committee, on behalf of your clients, to which I have been asked to reply.

The Justice Committee, or an equivalent body, is likely to be reconstituted by the House in due course. I will put the issues you have raised on behalf of your clients before members of the new committee once established.

I hope this is helpful.

Fergus Reid

Clerk

Justice Committee