Why the Bailiff’s Role needs reforming

Why the Bailiff’s Role needs reforming

The 2000 Clothier Review, said the Bailiff should not act as both head of the judiciary and speaker in the States. Three reasons were put forward by the review:

• No one should hold or exercise political power or influence unless elected by the people so to do.
• No one who is involved in making the laws should also be involved judicially in a dispute based upon them.
• The Bailiff makes decisions about who may or may not be allowed to speak, or put questions in the States, or about the propriety of a member’s conduct. Such decisions may well be challenged in the Royal Court on grounds of illegality but, of course, the Bailiff cannot sit to hear and determine those challenges to his own actions.

The 2010 Carswell review found several reasons why the Bailiff should not have a dual role, including:

• The current role is "inconsistent with modern ideas of democracy" and "projects an inappropriate image of Jersey to the wider world"
• The practice is "unique to Jersey and Guernsey, as in every other democratic jurisdiction there is a separation of the judiciary from the legislature"
• "Spending large amounts of time presiding in the States is a wasteful use of the time of a skilled lawyer with judicial ability and experience

The matter has arisen again, and Sir William Bailhache, the Bailiff, cannot see the grounds for the Care Inquiry making such recommendations, as beyond its remit. I think this is not the case for several reasons:

It is clear that the speech by the former Bailiff (Sir Philip Bailhache) on Liberation day was the main reason for the inquiry making its recommendation. Here was the head of the judiciary, acting in a political manner. While his brother (Attorney-General) was trying to curb politicians from making statements which could weaken the legal cases because of their criticism of Operation Rectangle, Sir Philip was doing just that, and coming perilously close to an abuse of process argument, as his juxtaposition of words could have been taken as suggesting that “alleged victims” could be making things up as much as the media did.

While Sir Philip made a grave mistake over Roger Holland, and I have blogged on that, it was a judicial mistake, and not a political one. That can’t therefore be grounds for separation of powers, although it does call into question how good he was as a judge.

http://tonymusings.blogspot.com/2011/10/philip-bailhache-and-roger-holland.html

Within the chamber, there are aspects which would be present with an elected speaker as well – the right to veto propositions before they make it to the States Chamber. That is probably more important than separation of powers. But it ties into it. The only route of appeal against a decision by the speaker in the States is by reference to the Royal Court... presided over by the Bailiff. So either there is a separation of powers, or the Bailiff loses that veto. The status quo is not an option. Good for Gary Burgess for spotting the problems with the veto – I’ve thought this is more of an issue than who is in the chair.

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.

http://tonymusings.blogspot.com/2017/03/time-to-remove-bailiffs-veto.html

The other thing which needs addressing is the protocols regarding use of language. At present, it is the Bailiff who can rule a word – “godforsaken” (a word with no religious significance today) or the use of Jesus inadmissable. Just as the Bailiff lost the right to veto films and has an advisory panel who he should not override – something should be in place here. One individual cannot let their own religious prejudices rule - especially as they are far out of touch of what the rest of society and the Mother of Parliaments would consider acceptable – in my blog I showed how the UK had long changed here:

http://tonymusings.blogspot.com/2015/10/our-bailiff-who-art-in-states.html

Given all that, it might be thought I am in favour of removing the Bailiff. But I don’t think that an elected politician would do a better job, and I think the main issue is with curbing some of the powers of the Bailiff. An elected speaker with those powers would be just as bad.

• The Bailiff’s veto should go, or be made advisory, subject to decision of PPC.
• The Bailiff alone should not be able to judge on matters of language, any more than he can judge on movies – there is now an influential advisory panel to ensure that doesn’t happen there, and the same should happen with language. Again I would suggest PPC who after all are concerned with procedures – and language is a procedural matter – should be the final arbiters.
• There should be formal mechanisms to determine when the Bailiff must recuse himself either from the States or the Courts, and it should not be a matter of challenging him (as Simon Crowcroft did recently over the Bellozane Court Case).

I see nothing in the recent submission by the current Bailiff which addresses these issues, but I think they are important if the role of the Bailiff is to survive into the 21st century.

Just as the absolute power of monarch's under the Stuarts was curbed after the Glorious Revolution, setting the foundations for restricted power in a constitutional monarchy, so these changes are needed if the position is to survive. At the moment, it is "either / or" and neither is an option I would like.

I'll probably get opposition for both sides for this position!