Tuesday, 28 March 2017

Time to remove the Bailiff's Veto

The Jersey Evening Post has highlighted a perennial problem with the role of the Bailiff. Despite protestations that the Bailiff has no vote and no power other than that of Speaker, in fact he has the power to veto questions and propositions from members.

This is the recent example in the JEP:

A DEPUTY’s questions to two ministers about the Innovation Fund scandal have been blocked by the Bailiff, it has been claimed. Deputy Montfort Tadier lodged oral questions to the Treasury Minister and Economic Development Minister asking whether they had been ‘requested by the Chief Minister to resign’ or had offered to resign following the publication of a damning report by the Island’s Comptroller and Auditor General into the fund. He had wanted to ask the questions during tomorrow’s States sitting. However, the Reform Jersey politician claims he has been told by the Bailiff, William Bailhache, that the questions ‘are not allowed’.

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 past exchange with Deputy Mike Higgins, Deputy Higgins said that the Deputy Bailiff, who was then William Bailhache (supposedly 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 or indeed ask a question 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 wanted 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 had in fact blocked the proposition from Deputy Higgins, and if Deputy Higgins had not raised the matter, no one in the States would know. The same has happened now. Unless Deputy Tadier had made apparent this veto, it would have gone hidden.

Surely 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 in 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 also came up in the public meeting that was held by Lord Carswell:

Former Deputy Paul 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.

He 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"

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.

This 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. And why Deputy Tadier has also done so.

This is a serious lack of transparency at the heart of the Bailiff's power. If he does veto propositions, as it is within his powers, but he should also make available to public scrutiny and the States Assembly the reasons for doing so. The veto must not be exercised beyond closed doors.

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.

One individual cannot often see their own bias, and certainly there should also be provision to appeal in the States itself. It is members, democratically elected, who should have the final say on what can or cannot be asked, and not an unelected Bailiff whose decision making is shrouded in secrecy.

PPC should be requested to make necessary changes in legislation so that it can be changed as soon as possible.

It is time for the veto to go! 

No comments: