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Bailiff of Jersey: cessation of dual role and the appointment of an elected Speaker of the States (P.62/2017) – amendment

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STATES OF JERSEY

BAILIFF OF JERSEY: CESSATION OF DUAL ROLE AND THE APPOINTMENT OF AN ELECTED SPEAKER OF THE STATES (P.62/2017) – AMENDMENT

Lodged au Greffe on 6th September 2017 by Senator Sir P.M. Bailhache

STATES GREFFE

2017  P.62 Amd. (re-issue)

BAILIFF OF JERSEY: CESSATION OF DUAL ROLE AND THE APPOINTMENT OF AN ELECTED SPEAKER OF THE STATES (P.62/2017) – AMENDMENT ____________

1  PAGE 2, PARAGRAPH (a) –

Before the words "to agree that" insert the words "subject to paragraph (b),". 2  PAGE 2, PARAGRAPHS (a)(i) and (iii) –

In paragraph (a)(i), for the words "from 4th June 2018" substitute the words "as soon as practicable"; and in paragraph (a)(iii), delete the words ", and do so before the selection of the Chief Minister designate at the first meeting of the States after the 2018 election".

3  PAGE 2, PARAGRAPH (b) –

For paragraph (b), substitute the following paragraph –

"(b)  paragraph (a) shall be of no effect unless the majority of the people

voting in a referendum on the question of whether the Bailiff should remain the President of the States, held in accordance with the Referendum (Jersey) Law 2017, on 16th May 2018, have voted against the Bailiff remaining the President of the States.".

SENATOR SIR P.M. BAILHACHE

REPORT

Introduction

  1. The primary purpose of this amendment is to ensure that, if the States are minded  to  change  a  constitutional  position  which  has  lasted  more  than 500 years, it is done with the consent of the Public. When the States were contemplating enacting the recommendations of the Electoral Commission as to the composition of the States, they resolved to put the matter to the Public in a referendum which was held in 2013. When the States were contemplating removing the Connétable s from the States, they put the matter to the Public in a  referendum in 2014. It is inconsistent and inappropriate to contemplate removing the Bailiff from the Presidency of the States without seeking the views of the Public in a referendum. It is arguably even more important in this instance that the views of the Public should be sought, because the decision could affect the identity of the civic head of the Island.
  2. A secondary purpose of the amendment is to put in writing some of the arguments against removing the Bailiff from the Presidency of the States. As Deputy M. Tadier of St. Brelade correctly states in his report, the case for removing the Bailiff from the Presidency of the States is well-rehearsed. The case against making this major constitutional change is not so often heard. Indeed, even the Chief Minister has been extensively quoted by Deputy Tadier in his report as supporting the proposed change. Given that the Chief Minister has responsibility within the executive branch of government for constitutional matters, it is a fair question as to why he is not himself bringing the proposition brought by Deputy Tadier . The answer must be that the Chief Minister is not persuaded that there is public support for this significant constitutional change.

The case for a referendum

  1. Indeed this question, whether there is public support for the change, is of critical importance. There is a complete absence of any public mandate for such a significant  constitutional  change.  There  has  been  no  popular  clamour  for change, there has been hardly any public discussion outside the bubble of the States Assembly, there have been no parish hall meetings, and there has been no indication from comments in the media that the Public is at all engaged. Since the failure of the last proposition, nothing has changed except that there has been an extraordinary passing comment from the Independent Jersey Care Inquiry ("IJCI"). That comment has led to an exchange of correspondence between the Bailiff and the Chief Minister.
  2. I describe the comment as "extraordinary" because the role of the Bailiff fell outside the terms of reference of the IJCI (as they themselves acknowledged), they heard no evidence from any of the relevant witnesses, and they appeared to base their view that the role of the Bailiff should change upon the testimony of a single anonymous witness. The views of the IJCI were uninformed and add nothing to the reasoned reports of the Clothier Panel and the Carswell Inquiry. They are, in this respect, an irrelevance.
  3. The Bailiff 's role as President of the States is inextricably linked to his role as civic head of the Island. Deputy Tadier 's proposition acknowledges that link by suggesting that the Bailiff should continue to be the civic head of the Island.

Unfortunately, a recitation in the proposition is unlikely to hold back the pressure for change that would follow if the Bailiff were no longer the President of the States. An inexorable movement will have been set in train towards a change in the identity of the civic head of the Island. No such change should be contemplated, in my view, without a clear public mandate. The Public are entitled to have a say before their civic head ceases to be the senior office-holder under the Crown.

  1. Jersey's Head of State is the Queen. In the public administration the senior office-holder under the Crown is the Bailiff , who has been the local civic head of the Island for a long time. There was a dispute in the 17th century as to whether the civic head was the Bailiff or the Governor, but an Order-in-Council of 15th June 1618 resolved that dispute in favour of the Bailiff . The role of the Bailiff has of course evolved over the centuries. Four centuries ago, the Bailiff had much greater executive responsibility, and sometimes concurrently held great offices of state in England as well as his office in Jersey. Many of the local functions were then undertaken by a Lieutenant- Bailiff . Today, the Bailiff exercises  a  more  restrained  role  as  civic  head,  replicating in a  sense  the constitutional role of the Queen in the United Kingdom.
  2. The Carswell Review acknowledged (at paragraph 5.10.7) that one of the arguments against change was that "removing the Bailiff from the States would detract from his standing and tend to undermine his position as civic head." In its  comments upon  the   Connétable  of   St. Helier 's  proposition  P.160/2013 (Elected Speaker of the States') the Privileges and Procedures Committee seemed to accept that that was correct. It stated that "PPC is conscious that some States members and members of the public are concerned about a change to the Bailiff 's role because the Bailiff 's role is broader than his presidency of the States and the Royal Court through his wider civic role. It may not be the case, as suggested by the Clothier and Carswell Panels, that this role could continue unchanged in the long term if the Bailiff was principally nothing more than President of the Royal Court.".
  3. The Carswell Review concluded that the Bailiff 's role as civic head of the Island could continue even if he were no longer President of the States. It stated (at paragraph 5.11.14) that "A number of respondents expressed concern lest the Bailiff 's position as civic head would be undermined if he were no longer to be President of the States. In our carefully considered opinion it should not be. The Bailiff has a long standing position of pre-eminence in the affairs of Jersey which does not stem from his position as President of the States: rather the contrary, his function as President of the States derived from his civic pre- eminence. In our view that pre-eminence can be maintained without having to maintain his Presidency. If he remains guardian of the constitution, as we consider he should, that will help to maintain his paramount historic position as Bailiff of the Bailiwick of Jersey".
  4. That was a convenient finding because it supported the recommendation that the Bailiff should cease to be President of the States. There was no reasoning, however, as to how they reached that conclusion. They appeared to arrive there merely because the Bailiff had a longstanding position of pre-eminence and, they stated,  the  Presidency of the  States derived  from that pre-eminence. Unfortunately that premise is false. The Presidency of the States did not derive

from  the   Bailiff 's  "civic  pre-eminence".  It  originally  derived  from  the Presidency of the Royal Court. The States of Jersey emerged in 1524 from the coalescence of the Connétable s and Rectors with the Royal Court ( Bailiff and Jurats) over which the Bailiff presided. It was natural, therefore, that the Bailiff should preside over the larger body. The Bailiff 's "civic pre-eminence" was only established in 1618, as mentioned above, long after the emergence of the States of Jersey or States Assembly. Whatever the historical position, however, it is now the Presidency of the States Assembly that gives the Bailiff his "civic pre-eminence" and supports his position as civic head of the Island.

  1. Both the current Bailiff and his predecessor, Sir Michael Birt, do not agree that the Bailiff could continue as civic head of the Island if he were not President of the States, other than in the short term. Sir Michael wrote to a previous PPC commenting on the recommendations of the Carswell Review in a letter of 25th January 2011 in the following terms (at paragraph 6(iii)) –

"[I]n modern times it is [the Bailiff 's] position as President of the States which has underpinned his status as civic head of the Island. I know of no country or jurisdiction where a person who is merely the Chief Justice is the civic or ceremonial head of the country or jurisdiction. I accept  that,  if,  for  example,  the  legislation  enacting  any  reform provided in law for the Bailiff 's position as civic head, this would underpin it for a while. However, I do not believe that it would last for more than a few years. It would simply not be sustainable over the longer period. The Bailiff would become a remote figure unknown to members of the States because he would have no regular interaction with them. Nor would there be any good reason for him to be the person to receive visiting dignitaries such as royalty, ambassadors etc. or for him and members of the Royal Court to lead important ceremonial occasions such as Liberation day and Remembrance Sunday or to attend the many community and charitable  events as an apolitical representative of the Island. It is his status as President of the States as well as his historical role which gives legitimacy to the performance of those functions. In my view pressure would soon mount for such functions to be undertaken by the newly elected president of the States."

  1. Questions  of  constitutional  precedence  are  important  because  they determine, ultimately, where responsibility lies in any given situation. The 1618 Order-in-Council established that in the States and in the Royal Court the Bailiff took precedence over the Governor. The States of Jersey Law 2005 establishes the Chief Minister as head of government; outside the States it has been assumed that the Chief Minister ranks joint-third in precedence, with the Deputy Bailiff , after the Lieutenant Governor and the Bailiff . Deputy Tadier 's proposition  states  nothing  about  the  precedence  of  the  elected  Speaker. Presumably it is intended that, in the States, he or she should take precedence over the Lieutenant Governor in the place of the Bailiff , and of course would take  precedence  over  the  Chief  Minister.  The  proposition  refers  to  the possibility  of  the  Speaker  inviting  the   Bailiff  to  attend  and  address  the Assembly – this seems an unlikely scenario, but if it did happen, what would be the order of precedence as between Bailiff , Lieutenant Governor and Speaker? Outside the States, will the Speaker take precedence over the Chief Minister? To what extent would an elected Speaker be expected to carry out some of the functions which the Bailiff currently undertakes as civic head of the Island? The

Chief Minister's letter of 24th August 2017 in reply to the Bailiff 's letter attached to the Comments of PPC (P.62/2017 Com.) states that "An elected President would be able to undertake public engagements and other duties appropriate to his office", clearly anticipating at least some diminution of the Bailiff 's role.

  1. Some may think that these questions are unimportant details, but they are all relevant to the status of the Bailiff . If it is seriously suggested that the Bailiff should retain his position as civic head of the Island, they need to be answered. To put it at its lowest, there is disagreement as to how long the Bailiff could sustain the position of civic head of the Island if he were no longer President of the States. What is agreed is that a strong risk of unsustainability exists. In these circumstances,  do  the  Public  not  have  a  right  to  express  a  view  on  the Presidency of the States and, incidentally, who should be the civic head of the Island? The office of Bailiff is widely respected, and it is suggested that the Public have a right to be consulted in a referendum as to whether the Island's civic head should remain the senior office-holder under the Crown, that is, the Bailiff .

The case against changing the Presidency of the States

  1. The principal case put forward in favour of removing the Bailiff from the Presidency of the States appears to be based on perception. No argument has been made that the Bailiff is not competent to do the job of presiding over the States – if anything, it is suggested that he is too highly qualified for the task. The argument is that the presence of a judicial officer in the Speaker's role appears to be unusual and is inconsistent with current practice across the Commonwealth. It is not that the qualities desirable in a Speaker are different from  the  qualities  usually  found  in  a  judicial  officer –  indeed  fairness, objectivity, integrity and procedural competence are precisely the qualities for which one would look in an elected Speaker. It is because Jersey and Guernsey are different from other countries that outsiders, particularly distinguished outsiders with experience of different parliaments, find it strange that the Bailiff s preside over the legislatures.
  2. Channel Islanders know that the reasons why their Bailiff s preside over the legislatures are historical and traditional, as well as practical. History and tradition are naturally not an absolute bar to change – but they are a reason why one  should  think  carefully  before  changing  systems  that  have  worked satisfactorily for hundreds of years. Sometimes traditions do become outmoded, and then it is time to change.
  3. The Second Interim Report of the Constitution Review Group' presented to the States on 27th June 2008 (R.64/2008) did report that the dual role of the Bailiff would have to be reviewed in the event of independence. The Report stated (at paragraph 76) that: "While the dual role can be justified while Jersey is a Crown Dependency (inter alia) because the Bailiff has a representational role and  is  the  guardian  of  the  Island's  constitutional  privileges,  the  latter justification  would  not  exist  post-independence.  Jersey's  constitutional privileges vis-à-vis the UK would cease because Jersey would have the greater privilege of sovereign status. In those circumstances it would arguably be of greater importance to avoid any perceptions, however misconceived, that the

independence of the judiciary might be compromised by making provision for an elected or appointed speaker other than the Bailiff .". The Report did not consider, while Jersey remained a Crown Dependency, that there was any need for change.

  1. Other reports, such as the Latimer House Principles, the Bangalore Principles and the CPA 2006 Benchmarks, are all concerned with international standards and  principally  with  ensuring  that  the  judiciary  is  free  from  political interference. The Bangalore Principles, for example, refer to the desirability of a judge being free from "inappropriate connections with, and influence by, the executive and legislative branches of government". Lord Carswell argued that the mere fact of the Bailiff 's Presidency of the States was an "inappropriate connection". But if one asks the question: "Are the judges of the Royal Court influenced by the Bailiff 's Presidency of the States?", the answer must surely be "No". There is no evidence that judgements in the Royal Court are influenced by the fact that the Bailiff is President of the States. Lord Carswell asked Rabinder Singh, Q.C., then a respected Silk specialising in human rights law, now a Judge of the English Court of Appeal, to consider whether the role of the Bailiff conflicted with the European Convention on Human Rights. The short answer was that it did not conflict, and more recently the Jersey Law Officers have confirmed that that advice remains correct.
  2. The  European  Court  of  Human  Rights  has  never  subscribed  to  any fundamentalist view of the separation of powers. Some people do, however, continue  to  assert  that  there  is  something  wrong  in  principle  with simultaneously holding a position in a court and in a legislature. Without understanding the principle, people refer to the notion of separation of powers as  enunciated  by Montesquieu as if it were  an obvious consequence that something is wrong with the current role of the Bailiff .
  3. In fact, what Montesquieu so admired about the British constitution in the 18th century was the division of governmental power between the legislature, the executive and the judiciary, which he thought to be the foundation of liberty. It was the power of the judiciary to keep the executive in check that appealed to him. Montesquieu understood very well that an overlap between some of these divisions existed in Britain. He knew that the Lord Chancellor presided in the House of Lords as well as being a judge of the court of chancery. Further afield, he knew that the Vice-President of the United States, a member of the Executive, was also ex officio the President of the Senate. Montesquieu did not hold the fundamentalist view of the separation of powers which considers that the 3 branches of government should be wholly insulated from each other. James Madison, the 4th President of the United States, and the principal author of the American Constitution, explained Montesquieu's thinking when he wrote (of the notion that the power of judging should be separated from legislative and executive power) that "[Montesquieu] did not mean that these departments ought to have no partial agency in the acts of each other. His meaning can amount to no more than this, that where the whole power of one department is exercised  by  the  same  hands  which  possess  the  whole  power  of  another department, the fundamental principles of a free constitution are subverted."
  1. What are the positive advantages of retaining the status quo? They include –
  1. The Bailiff is independent, particularly of government. Back-benchers may not always agree with the rulings of the Bailiff , but they know that his rulings are independent. If a Speaker were to be elected by the States, in which the Chief Minister and the government have a de facto majority, that independence could not always be assumed. In some small dependent territories where the speaker is elected by parliament, there is a perception that the speaker is in the government's pocket.
  2. The  qualities  required  of  a  Speaker,  namely  fairness,  objectivity, integrity and procedural competence, are inherent in a judicial officer. They may not be so easy to find in members who are available for appointment to such a post.
  3. Conversely, those members who do possess the qualities required for a Speaker may have entered politics with a view to holding political office as a Minister or in a senior Scrutiny role. To divert such a person to the Speaker's office would deprive the States of his or her political talents.
  4. The Bailiff has a deputy, who may be assumed to have the same qualities as are set out in paragraph (ii) above; such qualities may not be so easy to find in a deputy Speaker.
  5. Because the Bailiff is a lawyer, there is no need for a Speaker's Counsel which would probably be the position if a lay elected Speaker were in post. Procedural rulings do occasionally require legal knowledge or alternatively benefit from such knowledge.
  6. The traditions of the Bailiff 's ancient office, including the Royal Mace, and the links with the Crown, are part of the traditions of the States Assembly, and would be lost.
  7. The Bailiff is the guardian of the Island's constitutional privileges, and takes an oath to protect and defend them. While it is not impossible for this role to be undertaken by a Chief Justice, it would be significantly more  difficult  because  the  relationship  between  the   Bailiff  and Ministers would be more distant.
  1. These advantages do not amount to insuperable objections to the removal of the Bailiff from the States and the election of a Speaker from the ranks of elected Members. They are, however, important factors to be taken into account.

Financial and manpower implications

Holding the referendum on the same day as the general election will lead to considerable savings, as it will not be necessary to set up polling stations separately, and all the systems for postal and pre-poll voting will already be in place. There will nevertheless be some additional costs for the printing of ballot papers and the requisite media campaign, which should not exceed £20,000 in total. There are no manpower or other resource implications arising from this amendment.

 _____________________________________________________________________ Re-issue Note

This amendment is re-issued to correct the estimated cost provided in the statement of financial and manpower implications.