Deputy M.R. Higgins: Can I just interrupt before we go through public business? I would like to raise a matter of privilege.
The Deputy Bailiff [William Bailhache]: What is the matter of privilege that you wish to raise?
Deputy M.R. Higgins: It is the fact that I have put a proposition to you seeking to have the release of the transcripts of the 2nd December 2008 in camera debate, or part of it, to be released to the public. I have asked for this proposition to be put forward to the States because I believe the States were misled by the former Minister for Home Affairs at the time. My matter of privilege is that you have denied me the opportunity to bring this proposition, which I think needs to be heard by the House and the decisions need to be made by the House, and I believe the public must be assured that information that was put out at the time is correct.
The Deputy Bailiff: The matter of privilege must relate to something which you, as a Member, have a right to do. Under Standing Orders ...
Deputy M.R. Higgins: I think it is a matter of privilege.
The Deputy Bailiff: Can I please finish? Under Standing Orders the arrangements are that when a Member wishes to lodge a proposition he or she needs to have the consent of the Bailiff before it is an option. It seems to me that it is impossible to say that an issue of privilege arises. Unless there is any other point you wish to raise I would make a ruling here and now that no issue of privilege arises.
Deputy M.R. Higgins: I would make a point on that. I believe that, as I have stated to you in our correspondence, the proposition itself meets the 3 tests laid down by the Bailiff, as I have indicated in the letter. It is lawful, it corresponds with Standing Orders and it is not anything detrimental to States business.
The Deputy Bailiff: Deputy, I am sorry, this is not an issue of privilege. I might also add that you have asked me to reconsider the decision, which I am in the course of doing, and in those circumstances it seems that this is a premature matter in any event. It certainly is not an issue of privilege.
Deputy M.R. Higgins: If I can respectfully disagree and I will state why I believe it is a question of privilege. This House is a sovereign parliament and it should be for Members of this House to decide if a proposition is in accordance with Standing Orders and the Bailiff's 3 tests it should be decided upon by Members of this House who have the ultimate authority in these matters.
The Deputy Bailiff: Very well, I rule against you. It is not a matter of privilege because the Standing Orders make it plain that a Member has no right to lodge a proposition without the leave of the Bailiff. That leave has not yet been given and therefore no issue of privilege currently arises.
There is an interesting piece from last Hansard which shows an often overlooked power of the the Bailiff or Deputy Bailiff - the ability to use his power to block propositions again - this relates to Haut de La Garenne and the Historical Child Abuse Enquiry. Mike Higgins wants to open up a short piece of the transcript of an "in camera" debate on the suspension of Graham Power to the public gaze.
I have been reliably informed that this allegedly relates to the statements made in the course of the debate by a member of the States which apparently contradicts what they stated in public later on. They were allegedly being "economical with the truth", but this cannot be revealed because the States debate was held in secret. Effectively, they could have been accused of misleading the House, but they cannot be, because the debate was "in camera"! This is past history, so why should it matter? It matters, because the States were given information which swayed their decisions - apparently contradicted by information later given in public, and where that situation arises, there seems to have no means of accountability. That could well arise again.
But more importantly, it shows that there is a power to veto propositions held by the Bailiff (and by virtue of that office, devolving to the Deputy Bailiff). Note the way in which the Deputy Bailiff suggests that it is just a matter of form - "a Member has no right to lodge a proposition without the leave of the Bailiff. That leave has not yet been given.".
What is clear is that he has in fact blocked the proposition from Deputy Higgins, and if Deputy Higgins had not raised the matter, no one in the States would know. I'm not objecting to his power to veto a proposition; the States must make their own mind on the powers of the office. But it cannot be good for open and transparent government if the Bailiff or Deputy Bailiff can veto a proposition, and that the grounds for that are not made public - or even the fact that he has done so.
This is something which is perhaps an overlooked section in the Carswell report on the role of the Crown Officers in the States. The report notes that:
Outside the Chamber, the Bailiff has to consider draft propositions and draft questions, which he must admit unless they contravene Standing Orders. The Bailiff may on occasion discuss these matters with individual members of the States. If questions are not properly framed, the Greffier or the Bailiff will regularly suggest amendments to address the defect and allow the questions to proceed.
It was represented to us by a number of respondents that although the Bailiff must apply Standing Orders in all decisions which he makes and is bound to give all members an opportunity to speak when they express a wish to do so, he nevertheless exerts a degree of political influence by the manner in which he carries out his function.
Members of the States may also suppose that the Bailiff has allowed political considerations to affect his application of Standing Orders, particularly when he has ruled against their submissions
Former Deputy Bob Hill made this plain in an interview he had with the Carswell committee:
There are problems where conflicts are clear, and my first conflict came when soon after being elected as a member of the States and we had a big debate on the sixth form college. And I felt really that there was an opportunity here for us to have an overall sixth form college, and I tried to lodge an amendment to include Victoria College as part of the sixth form college system, and it was refused. But, of course, I did argue with the Bailiff [Sir Philip Bailhache] and said, "Well, with respect, sir, you are Chairman of the Governors of Victoria College as well". He said, "Well, that doesn't come into it" and I said, "You allow me to put an amendment in about the ladies' college, but not allow me to put an amendment in". He said, "Well, I make the final decision".
Sir, I learnt at an early stage that there was no right of appeal, because that is the situation. You make your application to the Bailiff, and the Bailiff says you can have something or you cannot. That is the same for amendments and propositions in questions so, if one wants to ask a question, at the end of the day, it is the Bailiff that has the ultimate decision as to whether you can ask it or not.
In his written submission, Bob Hill summarised the lack of appeal against a decision, which might be conflicted:
At present the Bailiff is responsible for approving requests from Members when lodging questions, both oral and written, propositions, amendments and making personal statements. If the Bailiff rejects the requests there is no ability to appeal against that decision. I have personal experience and the current arrangements should not continue.
The lack of accountability, and the way in which the Bailiff could and did block questions and propositions came up in the public meeting that was held by Lord Carswell:
Deputy Le Claire stated that it could be difficult to separate the personalities from the offices they inhabited. He advised that he too had often been to see the Bailiff [Sir Philip Bailhache] in the Bailiff's Chambers en masse with other elected Members. He had personal experience of bringing propositions which had ultimately been refused. Deputy Le Claire admired the Bailiff; however, it was time for his role to be put to rest as the question continued to tear at the community. He hoped that the Panel could untangle the situation through its Review.
Mrs Corbett highlighted that the pertinent issue was the Bailiff's discretion in relation to decisions regarding questions et al. There would always be some form of discretion; however, it was not possible to subject these decisions to judicial review (as might otherwise be expected) given the Bailiff's judicial functions. Advocate Sinel advised that the Royal Court had no jurisdiction over the procedures of the States.
Former Deputy Paul Le Claire expanded on this in his written submission:
Censorship of Propositions: There have been occasions when States members, including me, have put forward propositions, only to have these amended, censored or ruled out of order by the Bailiff in his role as President or speaker of the States. This has happened in the context of matters which were potentially critical of the Courts and the judiciary, ultimately only being permitted without further delay by the Bailiff [Sir Philip Bailhache] in an amended proposition P62/20093. (That proposition related to my involvement in respect of a children case. My criticisms of the Court were vindicated in the Serious Case Review in respect of those children at paragraphs 8.14-8.18, 9.3 and 10 of the recommendations. Further concerns are highlighted subsequently in my submission).
States members (who have been duly elected by the people of Jersey) have consequently felt frustration when thus denied the right to debate an issue by virtue of a decision of an un-elected Crown appointee.
As former Senator Ted Vibert highlighted some 5 years ago that "The right to approve the content of questions and personal statements is a subtle power that controls a certain amount of what a member can say in the House. It will be argued that this vetting process is to ensure that there is no breach of Standing Orders but this power is discretionary and open to question"
I would contend that there have been occasions in my own experience, where this power has been misapplied. Others have made the same point, the other Deputy and three Senators, one being myself when I was the holder of that office some years ago
This was a point also made by Advocate Philip Sinel in his submission to Carswell:
The Bailiff is also President of the States Assembly. That is to say that he convenes all meeting of the States and presides over all sittings. He controls the debates and in particular controls the contents of questions which can be asked of the Government.
In practice the position as President of the States is one of enormous political power. He controls what questions may be asked in the States, he is able to refuse to table questions such as might embarrass the Government, which he heads, himself or his supporters.
Advocate Tim Herbert, in his submission to the Carswell Review, stated that
The title "President of the States" is just that. It does not connote political power.
But Advocate Herbert is mistaken. Clearly, the ability to rule a proposition out, and not allow the States to vote on it, as appears to be the case with Deputy Higgins, does connote political power. But it is a subtle form of power behind the scenes, which is not usually in display, for which there is no means of appeal, and no way to call the Bailiff to account for using his powers to veto any question or proposition. That's probably why Deputy Higgins wished to raise the matter in the States, to call to account that this was happening.
Obviously, there may be occasions where such a veto is justified under the Standing Orders of the States, but as Deputy Higgins states, there are no reasons that he can see why his proposition has been rejected. It is currently being reconsidered, but will if it is rejected, will the reasons be made public? They have not in the past, and this is a serious lack of transparency at the heart of the Bailiff's power. By all means he should be able to veto propositions, as it is within his powers, but he should also make available to public scrutiny the reasons for this, if this is requested.
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