The Jersey Care Inquiry: Beyond their Remit?

The Jersey Care Inquiry: Beyond their Remit? 

Listening to a former politician this weekend, I heard the argument made that the Care Inquiry went beyond its remit in discussing the role of the Bailiff and the demolition of Haut de La Garenne.

In this short piece, I’d like to focus on the dual role of the Bailiff, and why it should have been within the remit of the case inquiry.

The Dual Role of the Bailiff

The dual role of the Bailiff came up twice in the Care Inquiry.

The first was the power of the Bailiff to veto propositions. This meant initially that the proposition brought by Deputy Mike Higgins to make public the “in camera” debate in which Deputy Andrew Lewis lied to the States could be blocked. But it also brought to light the power behind the scenes of the Bailiff to block the States debating propositions, bringing questions to the States, and undermine the democratic process.

In this case, a matter related, albeit tangentially, to the Care Inquiry, it demonstrated that the Bailiff might be taking a partisan position, and one in which as both Chief Judge and Speaker, it was almost impossible to appeal against.

This would not have mattered so much if the Bailiff had appeared impartial. But the other factor which came into this was the Bailiff’s decision to take a very partisan and political view. The ill-judged Liberation day speech of 2008 demonstrated a Bailiff with pronounced political views, as well as a position on the abuse of children in care which was so worded as to suggest that reputational damage was more important.

He has, grudging, admitted that his words could have been misinterpreted, which is some distance from an apology without qualification. Although not within the remit of the care inquiry, the panel were probably also aware of Sir Philip’s intervention in the case of the Dean, and the reading of papers relating to the case on an aeroplane. Observed by two fellow passengers, with apparent disregard of Data Protection, he then proceeded to smear their testimony in the States before very grudgingly giving an apology, albeit with caveats.

Had Sir Philip not behaved in such a blatantly political manner, the Care Inquiry would probably not have touched upon the issue, but as he did not remain impartial and above the fray – like the Queen and Lieutenant-Governor (her representative) manages to do – the whole vexed question of how this could be prevented had to arise. As a Chief Judge who might be due to preside over cases of abuse, his speech was ill-judged, and showed – even if he recused himself – a position which should not take place.

The Jersey Care Inquiry report commented, very fairly:

On 9 May 2008, Jersey's Bailiff, Sir Philip Bailhache, made the Liberation Day speech, which included the statement:

“All child abuse, wherever it happens, is scandalous, but it is the unjustified and remorseless denigration of Jersey and her people that is the real scandal.”

We have considered whether Sir Philip's words indicated a belief on his part that the reputation of Jersey was of more importance than the child abuse investigation. We cannot accept that a politician and lawyer of his experience would inadvertently have made what he told the Inquiry was an “unfortunate juxtaposition” of words.

We are sure that the way in which Jersey is perceived internationally matters greatly to him. However, his linking of Jersey's reputation to the child abuse investigation was, we are satisfied, a grave political error, rather than a considered attempt to influence the course of the police investigation.

It was clear that the Bailiff was engaging in political matters, and commenting on matters which related to allegations of child abuse which (at that time) could well have led to cases being heard before the Royal Court (several were) which directly damaged his role in giving a lead to the Judiciary as Jersey’s Chief judge.

The Care Inquiry had grounds to support the proposition to separate the role of the Bailiff as Speaker in the States and Chief Judge in order to ensure that the integrity of the office, and in particular the Bailiff’s role as Chief Judge, could not in future be compromised in a way which might affect any future judicial hearings concerning child abuse.

The only acceptable compromise that I could see would be to enshrine a formal code of conduct that the Bailiff could not comment on potential judicial matters outside of his role as Chief Judge, and that he should relinquish the patently undemocratic veto over elected representatives propositions and questions.

But no one made that suggestion during the enquiries deliberations, and the moves to retain the dual role of the Bailiff have to date just been supporting the status quo, a position which internationally will, at some point, impact on Jersey’s reputation.

Nevertheless, the signs are that the political consensus within States members, with every election, is growing more towards separating the role of Bailiff and Speaker, and I suspect that even the delaying tactic of a referendum will not prevent this change happening. I think that, unlike the Constables, the position of the Bailiff is far less likely to command support, for the reasons given above, unless it undergoes reform.