Wednesday, 22 August 2012

The Unelected Classes of States Member - the Bailiff

This is my latest submission to the Electoral Commission.

It covers some ground previously in a blog posting, but has been reworded with some extra text. It seems extraordinary to me that the Terms of Reference do not mention whether they deal with elected or unelected States members - of which the Bailiff and Dean are surely there - but the Commission website excludes those in its list of types of member. It's clear that the terms of reference do not rule out any consideration of those offices, but the Commission, in its wisdom (!), has seen fit to restrict the way it interprets those terms of reference.

Daniel Wimberley (in the guest post on Trevor Pitman's blog) notes that:

One of them, Mr. Storm I think, said that bias is in the eye of the beholder. He completely ignores the fact that people have every reason to think the Commission is biased.

In the case of the Bailiff, given the Carswell submissions, Sir Philip Bailhache may or may not be biased, but he is certainly conflicted. How can he judge his own actions fairly, dispassionately? Or will the submission, and the whole question of whether the Bailiff should stay in the States be ignored, or put off for another day?

Laying my cards on the table, as will be seen, I have no objection to the Bailiff presiding over the States (although cost-wise, I'm not sure it is necessarily value for money), but I do have an objection to his right to veto - however finely you want to dress it up - any propositions put forward.

That's the key problem - not that he's in the Chair, but what he does when he's not in the Chair in the Chamber. When even an Advocate like Tim Herbert is patently ignorant of that power, that needs to be made more public: an unelected member of the States deciding on whether elected members propositions can be accepted by him or not, with no need to put anywhere on the public record that they have been rejected, with reasons why.

The Unelected Classes of States Member - the Bailiff

The Commissions' brief is to consider:

"The classes of States member"

"all other issues arising in the course of the work of the Commission which are relevant to the needs stated above"

While the Commission website focuses on the elected members of the States, surely it should consider ALL classes of States Member, and to ignore the unelected, ex-officio members of the States is to diminish the scope of its terms of reference - which nowhere state that it is elected members alone that should be considered in its four paragraphs.

In this respect, two members of the States should be considered - the Bailiff and the Dean. In this submission, I'd like to focus on the Bailiff, who has considerably more political power than the Dean.

While the Bailiff is President of the States, unless deputised to the Deputy Bailiff, the Greffier or even (as in the law), a States member (which has happened in the past), what is of more concern is not keeping order, making sure standing orders are adhered to, but what happens behind the scenes.

In a recent exchange with Deputy Mike Higgins, Deputy Higgins said that the Deputy Bailiff (acting on behalf of the Bailiff) had denied the opportunity to bring forward a proposition to the States:

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.

In reply, the Deputy Bailiff noted that "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."

Propositions should, as Deputy Higgins himself mentioned, meet three tests -to be lawful, to corresponds with Standing Orders and not to be detrimental to States business. What emerged was that the Standing Orders make it plain that a Member has no right to lodge a proposition without the leave of the Bailiff.

This incident is significant because it 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.

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.

Now 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 (unelected members) 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.

I have no objection to the Bailiff remaining President of the States, but - because his office is not open to election at the Ballot Box, the power of veto, behind the scenes, should not be exercised by an unelected and unaccountable individual.
Clearly the Committee should consider this, and they should also consider whether Sir Philip should excuse himself from any decision, as the evidence of a veto, as noted by Carswell, would mean that he is conflicted from his time in office; he is hardly likely to be an impartial judge of his own actions.

This would be a similar step in a way, to the Bailiff's consultative panel, which was formed after it was decided that the Bailiff himself needed a wider forum to discuss matters rather than summarily ruling on whether shows could be performed or cinema films be shown (soon after, notoriously, one Bailiff banned "The Life of Brian").

One individual cannot often see their own bias, which is why that body came about. A similar reform should be considered by the Committee at the very least, and certainly there should also be provision to appeal.


Anonymous said...

All the Crown Officers should be removed from the States and a Jersey Deprtment of Justice formed to deal with all matters legal and judicial.
All appointments should be made within the Island including Judges, AG and SG.
The Lt Governor should be retired to wherever old soldiers go and Government House (what a silly name) recycled for more democratic use as a place for residents to meet with representatives of the UK government, EU, UN, OECD, IMF, Council of Europe etc etc
The Greffier's Office should usually chair the States Assembly assisted if necessary on occasions by the AG or SG as employess of the Justice Department and the States.
Divisions of the Justice Department could deal with prosecutions, legal advice to States members and Departments, adminsitration of Justice through the courts, the supervision and training of lawyers, administration of records, production and publication of legal inforamtion and much much more just as in more grown-up jurisdictions.

Since the Bailiff would no longer exist the Island would be called an Island and not a Bailiwick and would have powers to remove a defective Magistrate without asking Mother....

Anonymous said...

During the Carswell hearings a lot was heard about the dangers of unpicking the constitution – were but one thread to be pulled the entirety could unravel. Another metaphor that was used, only briefly, was of removing a brick from a wall could cause it to collapse. The brick was of course the position of Bailiff in the constitution. The use of the metaphor ceased when it was pointed out, by those more knowledgeable about building design, that large holes can be knocked through a brick wall without it falling down, as the load is displaced. The point is that at the very moment Carswell was deliberating so delicately (March- December 2010), the legislature of Sark passed a law separating the dual role of Senechal, the President of Chief Pleas and Chief Magistrate/Judge. Henceforth, or at least from 2014, the Senechal will no longer sit as President of Chief Pleas and in his place the 28 Conseillers will elect a President from among their number. So much for the pious sentiments about extreme caution; the UK government forced Sark to make the change.

The position of the Bailiffs in Jersey and Guernsey were thrown first into legal doubt by the decision in McGonnell v UK (2000), a European Court of Human Rights decision. There was further damning criticism in the Court of Appeal in the Barclays case (December 2008) [] to the effect that there were breaches of Article 6 (right to a fair trial) of the European Convention on Human Rights.

The precedents, legal and otherwise, for separation of the dual role of the Bailiffs can no longer be ignored. The status quo is no longer tenable. It is the legal precedents that will be of most worry to the Jersey government. There is room in the legal precedents for continuation of unelected persons in the legislature; however at a political level the argument is weak

Clearly it is time for the Bailiff to go and likewise the Constables, being ex-officio and not directly elected, are doubtful on legal and democratic grounds.

TonyTheProf said...

Actually Constables ARE directly elected to the States under the Public Elections (Jersey) Law 2002. It's a popular misconception that they are there ex-officio.

Anonymous said...

Connétables are elected, but to their office as Connétable, under the Connétables (Jersey) Law 2008 (as amended).

Article 2(1) of the States of Jersey Law 2005 states the 12 Connétables are members of the States by virtue of their office.

That Law states the Constitution of the States is as follows:

“2 Constitution of the States

(1) The States of Jersey are constituted as follows –
- the Bailiff;
- the Lieutenant-Governor;
- 10 Senators, elected as provided by this Law;
- the Connétables of the 12 Parishes of Jersey, who are members of the States by virtue of their office;
- 29 Deputies, elected as provided by this Law;
- the Dean of Jersey;
- the Attorney General;
- the Solicitor General.

(2) All members of the States shall have the right to speak in the Assembly.

(3) Only elected members shall have the right to vote in the Assembly.”

Under the definitions in that Law “elected member” means a Senator, Connétable or Deputy.

So, a Connétable is a member of the States ex officio, by virtue of their office. They are not directly elected to the States as such and therein lies the concern.

The Public Elections (Jersey) Law 2002 deals with the process of elections (Parish and States), not who is entitled to be a member of the States.

Daniel said...

Incorrect Tony
Here is article 2 of the SOJ law 2005

2 Constitution of the States

(1) The States of Jersey are constituted as follows –

the Bailiff;

the Lieutenant-Governor;

10 Senators, elected as provided by this Law;

the Connétables of the 12 Parishes of Jersey, who are members of the States by virtue of their office;

29 Deputies, elected as provided by this Law;

the Dean of Jersey;

the Attorney General;

the Solicitor General.[1]