Wednesday, 28 October 2015

The Terminological Inexactitude of Sir Philip Bailhache

Sir Philip Bailhache has responded to the calls by Montfort Tadier and Philip Ozouf to remove the Bailiff from the States, by saying:

“The Bailiff fulfils no political function in the States, he plays no part in the framing of the passage of laws other than sitting in the chair to make sure the debate is fair and in accordance with the rules. So far as the court is concerned, the Bailiff does not sit in court on any matter where he is presided over the States so I don't think that part of the dual role is a concern so far as the question of democracy is concerned. The important thing for a speaker of any parliamentary assembly is, he or she should be independent and the Bailiff is undoubtedly independent.”

But as a former Bailiff, Sir Philip should be well aware of the situation. He is being extremely disingenuous. His own brother, when Deputy Bailiff, stated in the States that:

“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.”

This was also picked up by 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."

Being something of a traditionalist, I’m actually in favour of keeping the Bailiff in the States, but there need to be two significant changes:

Firstly, the Bailiff’s veto, as outlined above, should be removed. It should not be right for an unelected member of the States to have the say over whether members’ propositions can see the light of day. This must go, and soon.

Secondly, the Bailiff needs a more detailed reference guide based on the United Kingdom Hansard and their speaker's guidelines, so that when he pontificates on whether something is “unparliamentary”, he stands on solid ground, and not just personal taste (based perhaps on his own religiosity).

It does seem strange that Jersey makes a point of following the UK parliamentary guidelines for etiquette in some respects - for instance, following Erskine May, the parliamentary 'bible', in respect of attire, but ignoring customary practice in the UK Parliament when it suits.

If the argument for attire is that we should follow "the mother of Parliaments", then why the inconsistency with the use of language? Contrariwise, if Jersey follows its own practice and precedents, which are at odd with the UK Parliament, where is the justification for citing the UK Parliament as an authority for attire?

It is also worth reflecting on the submission "Use of unparliamentary language" which was written evidence submitted by the Clerk of the House of Commons, Robert Rogers in June 2012. He says:

Expressions which are unparliamentary and which normally call for prompt intervention from the Chair include:

(1) the imputation of false or unavowed motives;

(2) the misrepresentation of the language of another and the accusation of misrepresentation;

(3) charges of uttering a deliberate falsehood;

(4) abusive and insulting language of a nature likely to create disorder.

The Speaker has said in this connection that whether a word should be regarded as unparliamentary depends on the context in which it is used.

But he goes on to add:

The Chair does not generally intervene on matters of taste, but Members may take a collective view; and I have from time to time seen an individual Member, by the way he expressed himself, damage himself more in the estimation of the House than he damaged the target of his accusation.

and further comments:

It is not very sensible in my view to return to the "taboo" list of supposedly naughty words. On the one hand this would ignore the all-important issue of context; and on the other it would provide perhaps irresistible temptation to some.

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