Thursday, 13 March 2014

Rungs on the Ladder?

The new Bailiff will be William Bailhache, but who will be Deputy Bailiff. Traditionally, the Deputy will be the previous Attorney General, and as he moves up (because it seems to be an all-male enclave at the top), the Solicitor-General moves up to become Attorney-General, and someone comes in to fill the bottom rung.

The position of Deputy Bailiff is in fact relatively new in Jersey's history, unlike that of the Bailiff and goes back to 1958, when the law - Deputy Bailiff (Appointment and Functions) (Jersey) Law, 1958.was passed. The reason for this was to do with extra workload:

As the law stated:

WHEREAS it has long been customary for the holder of the office of Bailiff, in exercise of the power conferred upon him by his Royal Letters of Appointment, to name Lieutenant Bailiffs to assist him in the discharge of his functions both in the Royal Court and in the States;

AND WHEREAS the functions appertaining to the office of Bailiff have greatly increased in recent years and it has become necessary to make further provision for assisting the Bailiff in the discharge of those functions;

AND WHEREAS the States, after consultation with the Bailiff and the Royal Court, are of opinion that this object would best be achieved by the appointment of a Deputy Bailiff;

It is also a Crown Appointment:

"The person appointed by Her Majesty to be Deputy Bailiff shall receive such salary and be entitled to such pension as shall be fixed by the States"

But what a lot of people may not know is that it is also an advertised position. The post, when a vacancy will arise, is advertised for suitable candidates to come forward.  Names go before a panel in Jersey which selects a preferred candidate whose name is communicated to the UK Ministry of Justice for approval before a formal recommendation is made to the Queen.

There is in fact a lot of detail about how the appointment is made in one of the public hearings in Lord Carswell's review of the role of the Bailiff and Deputy Bailiff in the States. I have reproduced part of that extensively as I think it makes very clear the process and reasoning and deliberation behind the appointment of Deputy Bailiff and the lesser rungs on the ladder.

Despite the fact that as stated, there were multiple applicants for the roles of Attorney-General, the appointments committee evidently decided last time that the best man was the man already on a rung of the ladder. It is perhaps notable that it is less likely for a Solicitor General to proceed to the office of Attorney General than from Attorney-General to Deputy Bailiff, and this has not always happened. Solicitor-General Stephanie Nicholle being a recent case in point.

The Chairman was Lord Carswell, and also interjecting questions or comments were Mrs M-L Backhurst, Mr G Crill, Dr S Mountford and Mr I Strang. The witness was Jurat de Veulle.

JURAT DE VEULLE:  I sat on the Appointments Panel both for all three offices in the recent round of appointments. They were all advertised posts. At least the Bailiff was not. My understanding is that there is an unwritten rule that the Deputy Bailiff becomes Bailiff. But there was an interview process for the appointment of Deputy Bailiff and of Solicitor General and of Attorney General

JURAT DE VEULLE: There was not one for Bailiff. At least I did not sit on it if there was.

MRS BACKHURST: In past times there has been a Deputy Bailiff who did not move up to being Bailiff and there was a process then initiated.

JURAT DE VEULLE: Yes, I think they were, I hesitate to use stopgap as a word, but I think they were in there for limited periods of time in order to enable the succession to be more ordered.

MRS BACKHURST: I was referring to Mr Tomes. Sorry, I did not want to bring specified...

JURAT DE VEULLE: Yes, Mr Tomes left

Vernon Tomes was, of course, Deputy Bailiff (1986-1992), but he was relieved of his position by the Crown and effectively sacked for exceedingly late delivery of judgements. As the saying has it, justice delayed is justice denied, and because the Deputy Bailiff, like the Bailiff, also exercises a judicial role, this means that they cannot retain their position in the States if they are removed as judge.But Vernon Tomes had ignored many warnings about his backlog of undecided cases. Some judgments had taken over two years to be delivered!

For some of the background and controversy on the Tomes affair, there's an excellent article here:

The only other Deputy Bailiff who did not move to Bailiff was Francis de Lisle Bois OBE (1962-1968). A crisis in the succession to the island's highest offices in 1962, following the retirement of Lord Coutanche and the early death of Cecil Harrison led to his agreeing to a request by Bailiff Sir Robert Le Masurier to become Deputy Bailiff, a post he held with distinction for six years.Evidently he stepped into the breach to fill a gap, and did not want higher office; instead Frank Erault became Bailiff, after becoming Deputy Bailiff in 1969.

Returning to the public hearing, Jurat de Veulle explains how the selection of Deputy Bailiff is made from applicants for the position.

JURAT DE VEULLE: Yes. It might be useful to explain how those interview processes took place. There was a panel of three comprised the Bailiff in the chair, Mr Michael Liston who was chairman of the Appointments Commission and widely experienced in public appointments, and me. The three of us, we saw a series of people. There was a sort of common core; seven or eight senior lawyers from the Law Society, the Chief Minister, the Bailiff's Advisory Committee, which is a committee of politicians, and the Jurats as a body. In connection with the Solicitor General we saw the Attorney General and the Deputy Bailiff. In connection with the Attorney General we saw the Deputy Bailiff so we saw the one above, for whom of course the person had worked, the applicants had worked. In all cases, not in the case of the Deputy Bailiff where there was only one applicant, but in the case of both the Attorney General and the Solicitor General there were three or four applicants.

MR CRILL: Just to understand this, the applicants apply.

JURAT DE VEULLE: Public advert.

MR CRILL: Yes. And then the selection panel of three then consults with these others.


MR CRILL: Then there is an interview process and then there is a selection.

JURAT DE VEULLE: Then there is an interview process with the individual.

MRS BACKHURST: When you are appointing someone, you may not wish to tell me this; I do not know, you are thinking this SG might become Bailiff, or not.

JURAT DE VEULLE: Well, not as much as I think it used to be. I think it used to be a set ladder, but the moment you start, and this must affect the view of the candidates themselves, the possibility that someone will be appointed Attorney General over their head when they apply for Solicitor General must concentrate their minds. Because bearing in mind what we understand to be the relative pay scales, a young lawyer going into the position of Solicitor General will have to weigh that particular matter up extremely carefully.

MR CRILL: And the position of Crown Office is not protected from though more modern ability of employment I suppose.

JURAT DE VEULLE: Absolutely. And of course there is a much higher profile. You are putting your head above the parapet.

MR CRILL: As far as the selection is concerned, invariably, I think, the Crown Officers have been experienced court advocates and consequently the Bailiffs have traditionally come through that court advocacy route. Do you think that the development of the function of the Bailiff - particularly through, I suppose, the lessening of his judging in recent years with the appointment of Commissioners and so on - justifies a continued policy that it is predominantly court advocates who move into the Crown officer roles, or are there other skills, do you think, that the Crown Officers or the Bailiff lack that have to be supplemented from elsewhere by virtue of that?

JURAT DE VEULLE: Certainly in the interview process, the fact that some candidates had not acted as Crown Advocates was a factor taken into account in the interviews. Indeed, in the interview with the appointment of the Deputy Bailiff - I am sure I am not letting any secrets out - the question of the transition from prosecutor to judge was a matter of some fairly intensive questioning and examination. Even though there was only one candidate, nevertheless, one ought to be very sure that that transition was properly understood.

THE CHAIRMAN: Quite right too. Yes.  There is the factor that when, because of the conventional ladder, if I may put it that way, when  you are appointing one of the Law Officers you have in mind that you may be appointing a future judge. Experience in court is, I can tell you, very valuable to a judge, just the way they say some of the best referees have played in the scrum.


THE CHAIRMAN: So there are no easy answers. Certainly, I think - I take Mr Crill's point entirely - one should not be too restrictive in where one looks but all other things being equal, court experience has got a lot to help a future judge. I will put it no further than that.

JURAT DE VEULLE: Yes, and I think in the course of the application processes there were applicants who had not appeared much in court or who had had a very specialist area of activity and this did not count in their favour.

THE CHAIRMAN: But a good person will pick up experience quickly.

JURAT DE VEULLE: Yes, indeed.

THE CHAIRMAN: That always seems to happen.

MR STRANG: A Crown Advocate is appointed by the Attorney General, is what I am saying.

JURAT DE VEULLE: I believe so, yes. 21

MR STRANG: There is a bit of self-serving there, really, because if the Attorney General did not appoint someone as a Crown Advocate, then they might be disadvantaged in the process of moving forward to be Solicitor General or Attorney General.

JURAT DE VEULLE: That may be attributing too much politicking to the workload - which is extreme - in the office of the Attorney General. I think if he can find anybody who is competent in court, he will grab them.

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