Elected Speaker and Deputy Speaker of the States Assembly: Selection and Appointment - Amendment

STATES OF JERSEY

ELECTED SPEAKER AND DEPUTY SPEAKER OF THE STATES ASSEMBLY: SELECTION AND APPOINTMENT (P.83/2024) – AMENDMENT

Lodged au Greffe on 29th November 2024 by Deputy Sir P.M. Bailhache of St. Clement Earliest date for debate: 10th December 2024

STATES GREFFE

2024  P.83 Amd.

ELECTED SPEAKER AND DEPUTY SPEAKER OF THE STATES ASSEMBLY: SELECTION AND APPOINTMENT (P.83/2024) – AMENDMENT (P.83/2024 AMD.)

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1  PAGE 2, PARAGRAPH (1) –

Before the words "to agree that" insert the words "subject to paragraph (3)," 2  PAGE 2, PARAGRAPH (2) –

For the full-stop at the end of the paragraph, substitute a semi-colon.

3  PAGE 2, PARAGRAPH (2) –

After paragraph (2), insert the following new paragraph (3) –

"(3)  paragraphs (1) and (2) shall be void and of no effect unless the majority of the people voting in a referendum on the question "Should the Bailiff remain the President of the States?", held in accordance with the Referendum (Jersey) Law 2017, have voted against the Bailiff remaining the President of the States."

DEPUTY SIR P.M. BAILHACHE OF ST. CLEMENT

Note:  After this amendment, the proposition would read as follows –

THE STATES are asked to decide whether they are of opinion

1. subject to paragraph (3), to agree that –

1. the  States  Assembly  should  select  its  Speaker  either  from amongst  the  elected  Members  of  the  Assembly,  or  by appointing  a  person  who  would  otherwise  be  eligible  for election to the Assembly;
2. the States Assembly should select a Deputy Speaker from amongst the elected members of the Assembly;
3. the terms for the selection, appointment and functions of the Speaker and Deputy Speaker should be approved as set out in Appendix A; and
4. the Bailiff should remain as the Civic Head of Jersey, continue to swear in Members of the States Assembly in the Royal Court, Preside in the Assembly during the process of selecting a Speaker or a Deputy Speaker, Preside in the Assembly on Liberation Day, Preside in the Assembly on the occasion of a Royal  Visit,  and  be  invited  to  Preside  in,  or  address  the Assembly, on other ceremonial or appropriate occasions; and

2. the Privileges and Procedures Committee should be requested to bring  forward  all  necessary  actions,  including  legislative amendments, to implement these changes in time for the Assembly to select or agree to appoint a Speaker and to select a Deputy Speaker, to take office in October 2025; and
3. paragraphs (1) and (2) shall be void and of no effect unless the majority of the people voting in a referendum on the question "Should the Bailiff remain the President of the States?", held in accordance with the Referendum (Jersey) Law 2017, have voted against the Bailiff remaining the President of the States.

Appendix A

Terms of the selection, appointment and functions of the Speaker and Deputy Speaker of the States of Jersey

1. the selection of the Speaker and the Deputy Speaker should be the first items of business for any new States Assembly to consider following a General Election and, should either office become vacant during the term of an Assembly, be the first items of business at the next scheduled meeting of the Assembly;
2. the Speaker and Deputy Speaker should serve for the duration of an Assembly's term, or for the remainder of the Assembly's term if (for any reason) they are selected or appointed mid-term;
3. the process for selecting the Speaker and Deputy Speaker should follow a similar format as those for the election of the Chief Minister, Ministers and Scrutiny Panel Chairs as set out in the Standing Orders of the States;
4. provision should be made for the Speaker and Deputy Speaker to resign and/or be removed from office by the States Assembly;
5. the Speaker should be required to act impartially, and be seen to act impartially, at all times. To that end, if they are an elected Member of the States, as the Speaker they may not lodge propositions, table questions, participate in debates or vote on propositions. Upon being selected, the Speaker would be required to resign from any membership of a political party;
6. the Speaker, if they are an elected Member of the States, should otherwise be permitted and expected to undertake constituency casework on behalf of their constituents/parishioners  and  to  fulfil  their  other  responsibilities  as  a constituency or Parish representative, and be able to engage with Government departments for that purpose;
7. the   Deputy  Speaker  should  be  required  to  act  impartially  when  chairing meetings of the Assembly and undertaking official duties related to their role as Deputy Speaker. When not acting as Deputy Speaker, the Member elected to this post may continue to lodge propositions, table questions, participate in debates, vote on propositions and sit on Scrutiny panels;

8. the functions of the Speaker shall include –
   1. fulfilling all the functions of the Presiding Officer as set out in the States of Jersey Law 2005 and the Standing Orders of the States of Jersey;
   2. representing the States Assembly within Jersey and overseas;
   3. promoting the understanding of the work of the States Assembly and democracy in Jersey;

9. the functions of the Deputy Speaker shall include –

1. fulfilling the functions of the Speaker in the absence of, or at the request of, the Speaker or at any other time when the office of Speaker becomes vacant;
2. supporting the Speaker in representing the States Assembly within Jersey and overseas;
3. supporting the Speaker in promoting the understanding of the work of the States Assembly and democracy in Jersey; and

10. the additional resources required to support a Speaker and Deputy Speaker should be provided for within the States Greffe.

REPORT

Introduction

1. The Connétable of St John's proposition (P.83/2024) that there should be appointed an  elected  Speaker  and   Deputy  Speaker  of  the  States  Assembly  is  almost indistinguishable from the proposition lodged by a former Chief Minister in 2017. The accompanying report is, however, is, at one and a half pages, but a pale shadow of the fully reasoned report of 2017. To remove the Bailiff from the presidency of the States, and to change over 500 years of history on the basis on such an insubstantial report seems almost indecent.
2. The Connétable presumably relies upon the Clothier report, the Carswell Review, a recommendation of the Independent Jersey Care Inquiry and the 2017 report, (paras 7-11 in particular) to make his case. The key points in favour of change are said to be Democracy, Accountability and Efficiency. The underlying assumption is that the appointment of a Speaker and Deputy Speaker in place of the Bailiff / Deputy Bailiff is a purely political decision.
3. If it were merely a political issue, it could be argued that the replacement of the Bailiff as Presiding Officer by an elected Speaker was something for the Assembly itself to determine. But it is not a purely political issue. It affects the constitution of the States. On constitutional issues, the opinion of the people is important and should not be brushed aside as being of no significance. The composition of the States was seen as a constitutional issue and was submitted to the people in a referendum in 2013. The question whether the Connétable s should remain Members of the States by virtue of their office was seen as a constitutional issue and was submitted to the people in a referendum in 2014. The same principle should be applied to the question of whether the Bailiff remains the President of the States. 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.
4. Furthermore, to attempt to rush through fundamental constitutional change on the back of the Bailiff 's retirement without any consultation with the Public is hardly a good example of representative democracy.
5. Of course, there are arguments in favour of having an elected Speaker; but there are also strong arguments in favour of the status quo. It is the balancing of those arguments which is important, and I deal later in this report with those issues and the need for the public to express a view on where that balance tips.
6. The Connétable touches briefly upon the constitutional question of the separation of powers but without developing any of arguments around this important principle. The impression is given that the Bailiff 's position as President of the States and of the Royal Court is in breach of this principle. In fact, that is not the case, and I shall deal with that in more detail below.

The case for a referendum

7. The  question of whether there is public  support  for  the  change  is  of critical importance. There was reference to an Elected Speaker in the Reform Jersey 2022 manifesto, so that members of the Reform party can claim a mandate, but there is otherwise  a  complete  absence  of  any  public  mandate  for  such  a  significant constitutional change. There has been no popular clamour for change, there has been little public discussion outside the bubble of the States Assembly, there have been no parish hall meetings, and there has been little indication from comments in the media that the Public is really engaged. Nothing of substance has changed since the last debate.
8. At a recent event there was an extraordinary passing comment from the Independent Jersey Care Inquiry ("IJCI") which led to an exchange of correspondence between the Bailiff and the Chief Minister. 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.
9. The Bailiff 's role as President of the States is inextricably linked to his role as civic head of the Island. The proposition acknowledges that link at para (1) (iv) by suggesting that, notwithstanding the  election  of  a  Speaker,  the   Bailiff  should continue to be the civic head of the Island. Given the reservations expressed in earlier reports, it is surprising that it is not explained how this can be achieved if the Bailiff is no longer President of the States.
10. Unfortunately, a recitation in the proposition to that effect 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 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.
11. Jersey's Head of State is the King. 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 King in the United Kingdom.
12. 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."

13. 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 longstanding 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"[1].
14. 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. It has been suggested that how the role of civic head emerged is only of historical interest; but that misunderstands its importance. If the role of civic head is now supported by the presidency of the States, it will not survive if the two are separated.
15. The Connétable proposes that nothing should change in relation to the role of civic head. He sets out the various functions in relation to Liberation Day and Royal Visits which would be expected to continue. What is ignored, however, is the chemistry of relations between the Bailiff and States Members, in particular between the Bailiff and the Speaker and Chief Minister. A former Bailiff , Sir Michael Birt, put it very well in a letter of 25th January 2011 to a previous PPC commenting on the Carswell Review (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 [Speaker]."

16. Some may think that these questions are unimportant details, but they are all relevant to the status of the Bailiff and his standing within the community. 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 .

Guardian of the Constitution

17. A fundamental flaw in the proposition is the absence of any reference to the Bailiff 's duty to act as guardian of the Constitution. The Carswell Report suggested that it should continue. Whether or not that is also the view of the Connétable is unclear. The rationale for the existence of this duty was explained by the Privy Council Committee, chaired by the Home Secretary, which reported in 1947. It stated –

"We also consider that the Bailiff as President of the States exercises important functions in advising the Assembly on constitutional procedure which, from the nature of the constitution, requires an intimate knowledge of the privileges, rights and customs of the Island ".

18. The duty to act as guardian of the Island's constitutional privileges finds expression in the oath which the Bailiff takes upon assuming office –

"You swear and promise before God that you will uphold and maintain the privileges and freedoms of this Island and that you will vigorously oppose whomsoever may seek to destroy them "

19. Of course, the Bailiff 's role, and his relationship with the States, have evolved, particularly since the introduction of ministerial government. Prior to 2005, one of the ways in which the Bailiff was enabled to inform himself in relation to his duty as guardian of the constitution was through the Official Channel. This was the

arrangement by which official communications between the States and the UK Government were transmitted by the Greffier on behalf of States Committees through the Bailiff and Lieutenant-Governor to the Under-Secretary of State. This system  enabled  the   Bailiff  to  make  himself  aware  of  potential  constitutional difficulties to which the attention of States Members should be drawn. In recent years the Official Channel has atrophied. Official communications often now go from Ministers directly to Ministers in the UK Government. Copies should go to the Bailiff , but that does not always happen. In any event, it would then be too late to raise a constitutional issue because the correspondence would have gone.

20. The  principal  remaining  means  whereby  the   Bailiff  can  inform  himself  of prospective  constitutional  risks  is  in  the  exercise  of  his  function  to  approve propositions before lodging au Greffe. Meetings with the Chief Minister and other Ministers are another opportunity to inform himself. Occasionally the Bailiff will draw to the attention of Ministers or officials some issue which appears to him to have constitutional implications. If the Bailiff is no longer the President of the States, it is difficult to see how he will be able to inform himself and fulfil his duty of guardian of the Constitution.
21. It is not clear how the Connétable proposes that this problem should be addressed. If he believes that the function of guardian of the Constitution should not be performed by the Bailiff , the Connétable should explain by whom it should be performed.

The case against changing the Presidency of the States

22. The principal case put forward in favour of removing the Bailiff from the Presidency of the States appears to be based on perceptions, especially that there is a breach of the Separation of Powers principle. I deal with that below. 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.
23. 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 a 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, or result in inefficiency, and then it is time to change. The Bailiff 's dual role is certainly unusual in contemporary parliamentary terms, but there is no evidence that it is outmoded or results in inefficiency. On the contrary, it is very much fit for purpose. The Connétable suggests, echoing the Carswell Review, that it would be more efficient for the Bailiff to sit exclusively in Court. That assumes that it is wasteful of his time to sit in the States. I do not believe that the current holder of the office holds that view. Certainly, his immediate predecessors did not. Presiding over the States is an

important and sometimes challenging function which requires skills which are inherent in a judicial office holder.

24. The Connétable states that he relies particularly on paragraphs 7-11 of the 2017 report.  Those  paragraphs  refer  to  other  reports,  such  as  the  Latimer  House Principles, the Bangalore Principles and the CPA 2006 Benchmarks, which are all concerned  with  international  standards  and  principally  with  ensuring  that  the judiciary is free from political interference.2 This is important in "new" democracies emerging from communist suppression or colonial domination where there is no or no substantial history of judicial independence. Jersey's history is not a blank sheet of paper. The Royal Court has enjoyed judicial independence for centuries. There is no evidence that the Bailiff 's Presidency of the States Assembly has affected the independence of the Royal Court.
25. 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., who was then 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 the Jersey Law Officers have confirmed that that advice remains correct.
26. 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 .
27. 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. He would not have been concerned 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

2 commonwealth-latimer-principles-web-version.pdf, bangaloreprinciples.pdf, recommended- benchmarks-for-democratic-legislatures-updated-2018-final-online-version-single.pdf

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.".

28. 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 sub-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 if the Bailiff were not the President of the States.

29. 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 or from outside the Assembly. They are, however, important factors to be taken into account when arriving at a balanced judgement.

Financial and staffing implications

Holding the referendum, in the event that the proposition is passed, would clearly involve some costs for the printing of ballot papers and the requisite media campaign, which should not exceed £20,000 in total. The costs could be much lower if the Referendum were held at the same time as a General Election. There are no manpower or other resource implications arising from this amendment.

The   Connétable  has  not  specified  the  ongoing  revenue  costs  of  his proposition,  but  they  cannot  be  less  than  £150,000 p.a.  and  may  be considerably more if the Speaker were elected from outside the States Assembly and if a Speaker's Counsel were required. It is very doubtful, in my view, that they could be found within the existing budget of the States Greffe. The costs of this amendment are comparatively insignificant.

Children's Rights Impact Assessment

A Children's Rights Impact Assessment (CRIA) has been prepared in relation to this proposition and is available to read on the States Assembly website.

[1] Lord Carswell's Review of the Crown Officers