Elected Speaker and Deputy Speaker of the States Assembly: selection and appointment (P.84/2017) – comments

STATES OF JERSEY

ELECTED SPEAKER AND DEPUTY SPEAKER OF THE STATES ASSEMBLY: SELECTION AND APPOINTMENT (P.84/2017) – COMMENTS

Presented to the States on 13th November 2017 by the Privileges and Procedures Committee

STATES GREFFE

2017  P.84 Com.

COMMENTS

PPC is of the view that it would assist Members, when considering this important issue, for  it  to  recirculate  the  comments  that  it  presented  in  respect  of  P.54/2016,  the Proposition of Deputy M. Tadier of St. Brelade .

Accordingly, the previous comments are set out below, together with links to previous reports and debates on the subject, and the views of the Independent Jersey Care Inquiry in connection therewith.

Also attached to these comments is a letter which the Bailiff has sent to the Chief Minister, copied to the Chairman of the Committee, which PPC feels that Members should take into consideration.

Comments of PPC in respect of P.54/2016

PPC feels that it is important for the debate on the role of the Bailiff as the Speaker of the States to take place, as it is an issue that has been the subject of much discussion since  the  publication  of  the  Report  of  the  Review  Panel  on  the  Machinery  of Government in Jersey in 2000, in which the Panel said: "we recommend that the Bailiff should cease to act as the president of the States or to take any political part in the Island's government and that the States should elect their own Speaker.".

PPC does not make a recommendation one way or another as to how States Members should  vote  on  this  issue,  because  the  Committee  members  themselves  are  not unanimous in their views.

If the States support the proposition of Deputy M. Tadier of St. Brelade , it will be necessary for the Committee to report back to the Assembly with detailed proposals on an elected Speaker and Deputy Speakers, including the full financial implications.

Findings of the Independent Jersey Care Inquiry ("I.J.C.I.")

Recommendation 7 of the I.J.C.I., which released its report on 3rd July 2017, related to the  Jersey  Way'.  In  the  Executive  Summary  of  the  report,  at  paragraphs 13.18 and 13.19, the I.J.C.I. stated –

"13.18  Throughout the course of our work we heard the term the "Jersey Way".

While this was, on occasions, used with pride, to describe a strong culture of community and voluntary involvement, it was more often used to describe a perceived system whereby serious issues are swept under the carpet and people avoid being held to account for abuses that have been perpetrated. This was well summarised in the contribution of a Phase 3 witness who told us: "We (also) have the impossible situation of the non-separation of powers between the judiciary and political and there is a lot of secrecy, non-transparency and a lack of openness. This brings with it the lack of trust, the fear factor that many have spoken about and contributes greatly to the Jersey Way."

13.19  That fear factor and lack of trust must be addressed, therefore we recommend that open consideration involving the whole community be given to how this negative perception of the "Jersey Way" can be

countered on a lasting basis. While constitutional matters are outwith our Terms of Reference, we are of the opinion that this matter cannot be addressed without further consideration of the recommendations made in the Clothier and Carswell Reports.".

Within the main body of its report, the I.J.C.I. further commented –

"Recommendation 7: The "Jersey Way"

41. Throughout the course of the Inquiry, we heard reference to the "Jersey Way" notwithstanding that there did not seem to be any set definition of the term. On some occasions it was used in a positive way, to describe a strong culture of community and voluntary involvement across the island, and this is something we recognise as a strength of the island, from the many contacts we had with voluntary organisations and individuals who give generously of their time to serve the interests of others. On most occasions, however, the "Jersey Way" was used in a pejorative way, to describe a perceived system whereby serious issues are swept under the carpet and people escape being held to account for abuses perpetrated. A Phase 3 witness told us: "we [also] have the impossible  situation  of  the  non-separation  of  powers  between  the judiciary and political and there is a lot of secrecy, non-transparency and a lack of openness. This brings with it the lack of trust, the fear factor that many have spoken about and contributes greatly to the Jersey Way".  It  is  this  strongly  held  perception  by  many  of  those  who experienced abuse that will continue to undermine any attempts to move the island forward from the matters into which we have inquired. We therefore recommend that open consideration involving the whole community is given to how this negative perception of the "Jersey Way" can be countered on a lasting basis.
42. Jersey has a long and proudly held tradition of governance, but that is not to say that steps should not be taken to reflect the modern world in which the island exists. As with many long-established jurisdictions, there can be a resistance to change, which is something that seems to be acknowledged. We are of the opinion that this serious matter cannot be addressed without further consideration being given, in the light of our  findings,  to  recommendations  contained  in  the  Clothier  and Carswell Reports.
43. While these involve constitutional matters, we are firmly of the view that the progress that must be made in relation to future care and safety of children in Jersey will be undermined if they are not dealt with such that  all  perceptions  of  there  being  a  negative  "Jersey  Way" are eradicated once and for all. Achieving this would, in our opinion, provide  a  very  strong  visible  marker  that  there  was  a  deep determination in the island to use the conclusion of the Independent Jersey Care Inquiry as a platform to ensure that the island's children and young people will be looked after in a caring and compassionate system that is underpinned by a system of governance in which there is the utmost confidence among all of the island's citizens.".

Links to previous reports and debates on the subject:

To assist Members in their consideration of this Proposition, references to previous reports  and  debates  on  the  subject  are  set  out  below  in  chronological  order  of publication –

1. Report of the Review Panel on the Machinery of Government in Jersey (The Clothier Review', published December 2000): http://www.gov.je/SiteCollectionDocuments/Government%20and%20adminis tration/ID%20 ClothierReport%20100331%20CC.pdf
2. The Review of the Roles of the Crown Officers' (The Carswell Report'), R.143/2010, presented on 6th December 2010 by the Chief Minister: http://www.statesassembly.gov.je/AssemblyReports/2010/38785-20056- 6122010.pdf
3. Review of the Role of the Crown Officers ("Carswell Review"):

in Committee' debate', R.28/2011, presented on 14th March 2011 by PPC: http://www.statesassembly.gov.je/AssemblyReports/2011/14688-17346- 1432011.pdf

4. Elected Speaker of the States', P.160/2013, lodged on 10th December 2013 by the Connétable of St. Helier : http://www.statesassembly.gov.je/AssemblyPropositions/2013/P.160-2013.pdf
5. Elected Speaker of the States (P.160/2013): comments', P.160/2013 Com., presented on 16th December 2013 by PPC: http://www.statesassembly.gov.je/AssemblyPropositions/2013/P.160- 2013Com.pdf
6. Elected Speaker of the States (P.160/2013): amendment', P.160/2013 Amd., lodged on 15th April 2014 by Senator Sir P.M. Bailhache : http://www.statesassembly.gov.je/AssemblyPropositions/2013/P.160- 2013Amd.pdf
7. Elected Speaker of the States (P.160/2013): additional comments', P.160/2013 Com.(2), presented on 17th April 2014 by PPC: http://www.statesassembly.gov.je/AssemblyPropositions/2014/P.160- 2013Com(2).pdf
8. Elected Speaker of the States (P.160/2013): comments',

P.160/2013 Com.(3), presented on 22nd April 2014 by H.M. Attorney General: http://www.statesassembly.gov.je/AssemblyPropositions/2013/P.160- 2013Com(3).pdf

9. Elected Speaker of the States (P.160/2013): amendment (P.160/2013 Amd.) – amendment', P.160/2013 Amd.Amd., lodged on 23rd April 2014 by Deputy R.G. Le Hérissier of St. Saviour : http://www.statesassembly.gov.je/AssemblyPropositions/2013/P.160- 2013AmdAmd.pdf

10. Elected Speaker of the States (P.160/2013): comments',

P.160/2013 Com.(4), presented on 25th April 2014 by the Chief Minister: http://www.statesassembly.gov.je/AssemblyPropositions/2013/P.160- 2013Com(4) corrected.pdf

11. Elected Speaker of the States (P.160/2013): amendment (P.160/2013 Amd.) – comments', P.160/2013 Amd.Com., presented on 25th April 2014 by PPC: http://www.statesassembly.gov.je/AssemblyPropositions/2013/P.160- 2013AmdCom.pdf
12. The debate on P.160/2013 and its associated amendments took place on

29th and 30th April 2014: http://www.statesassembly.gov.je/AssemblyHansard/2014/2014.04.29%20Stat es%20-%20Edited%20Transcript.pdf

and http://www.statesassembly.gov.je/AssemblyHansard/2014/2014.04.30%20Stat es%20-%20Edited%20Transcript.pdf

13. Bailiff of Jersey: cessation of dual role and the appointment of an elected Speaker of the States, P.54/2016, lodged on 24th May 2016 by Deputy
    1000. Tadier of St. Brelade : http://www.statesassembly.gov.je/AssemblyPropositions/2016/P.54- 2016withCorrigendum.pdf
14. Bailiff of Jersey: cessation of dual role and the appointment of an elected Speaker of the States (P.54/2016) – comments', P.54/2016 Com, presented on 22nd June 2016 by PPC: http://www.statesassembly.gov.je/AssemblyPropositions/2016/P.54- 2016Com.pdf
15. Bailiff of Jersey: cessation of dual role and the appointment of an elected Speaker of the States (P.54/2016) – comments', P.54/2016 Com.(2), presented on 27th June 2016 by H.M. Attorney General: http://www.statesassembly.gov.je/AssemblyPropositions/2016/P.54- 2016Com(2).pdf
16. Bailiff of Jersey: cessation of dual role and the appointment of an elected Speaker of the States (P.54/2016) – amendment', P.54/2016 Amd., lodged by Deputy M. Tadier of St. Brelade on 8th November 2016: http://www.statesassembly.gov.je/AssemblyPropositions/2016/P.54- 2016Amd.pdf
17. The debate on P.54/2016 and its associated amendments took place on

15th November 2016: http://www.statesassembly.gov.je/AssemblyHansard/2016/2016.11.15%20Stat es%20-%20Edited%20Transcript.pdf

S5 / 47

25th January 2011

Connétable Juliette Gallichan  Chairman of Privileges and Procedures Committee   States Greffe   Morier House  

St Helier   JE1 1DD  

Dear Chairman  

Review of the roles of the Crown Officers

1. I refer to your letter of 17th December 2010 in which you have asked for my views on the recommendations contained in the Review of the Roles of the Crown Officers chaired by Lord Carswell ("the Review"). I am happy to do so and both the Deputy Bailiff and I would also welcome the opportunity of attending upon the Committee to elaborate upon these views and, perhaps more importantly, to have an opportunity to respond to any other points members of the Committee may wish to raise.
2. As the debate on the establishment of the Review Panel showed, the future role of the office of Bailiff – and indeed Attorney General – is a matter upon which differing political views maybe expressed and therefore falls within the sort of topic upon which
   • I would not normally express an opinion. However, it seems to me inevitable and indeed desirable that I should on this occasion express views on the recommendations of the Review. I say this for three reasons. First, you have asked for a contribution from me as has the Chief Minister. Secondly, it seems to me desirable that members should hear from the current holder of the office of Bailiff as to the potential implications of any change to the existing structure. Thirdly, as the Review states, the Bailiff has an important role to play in safeguarding the constitutional position of the Island. A change to the Bailiff 's role will have an impact in this area and I therefore consider it proper for the Bailiff to express his views.
3. However, I naturally accept unreservedly that the decision is ultimately one entirely for the democratically elected members of the States and they will decide, having placed such weight as they think fit upon the views expressed in the Review, whether any change to the current position is desirable or not.

4. I made detailed written submissions to the Review and also attended to give oral evidence, as did the Deputy Bailiff . Our respective submissions and evidence can be found on the Review's website and accordingly I do not propose to repeat them. I confine myself to commentary upon the specific recommendations of the Review.

Recommendation 1

"That the Bailiff and Deputy Bailiff should continue to carry out judicial work in the Royal Court"

5. This recommendation is dealt with at paragraphs 5.3 – 5.5 of the Review. I fully agree with the recommendation. The Bailiff has been President of the Royal Court since the 13th century at the latest, well before the States emerged. Judicial work has formed the most significant part of his duties and, as the Review makes clear, the major part of the Bailiff 's time is still spent on such work. The role of the Bailiff is historically associated with the function of Chief Judge. As the Review states at paragraph 5.5, "There was a clear view, unanimous or practically so, among respondents that the Bailiff should continue to act as Chief Judge in the Royal Court. We consider that this is  unquestionably correct".  

Recommendations 2, 3 and 4  

"2. The Bailiff should cease to act as President of the States and the States should elect their own President, either from within or from without the ranks of their members.

3. The Bailiff should continue to act and be recognised as the civic head of Jersey.
4. The Bailiff should continue to be the guardian of the constitution and the conduit through which official correspondence passes. He should also receive copies of communications not forming part of the official correspondence which contain potential constitutional implications."  

6. I take these recommendations together because, as the Review suggests, they are closely interlinked and it is not really possible to consider one in isolation from the others. The Review recommends that the Bailiff should cease to preside in the States but should remain as civic head of the Island. I have to say that, whilst this maybe a tempting compromise for some, I do not believe it is sustainable other than in the short term. I would summarise my reasons as follows:-

• (i) The Review makes clear that a large number of respondents expressed the view
  • that the Bailiff was the most appropriate and acceptable person to act as civic head of the Island in view of the long history and non-political nature of the office. The fact that the Bailiff would normally be in post for a reasonable length of time was also important. The Review went on to conclude (see para

5.25) that it would be of great value to the people of Jersey that the Bailiff should continue to carry out these duties, which give a focus to the public life of the Island. The Review clearly attaches importance to the Bailiff continuing as civic head.

2. The Review asserts that the Bailiff could continue to be civic head even if he ceased to be President of the States. The reasons in support of this conclusion are given in para 5.11.14. In effect there is onlyone reason given, namely a historical one; that the Bailiff 's position of pre-eminence in the affairs of Jersey pre-dated his function as President of the States and that his function as President of the States derived from his pre-eminence.

3. This is true as a matter of history, but in modern times it is his 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 the members of the Royal Court, to lead important ceremonial occasions such as Liberation Day and Remembrance Sunday or to attend themanycommunity 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 new elected President of the States.  
4. Indeed, the Review has within it an inbuilt potential for conflict and misunderstanding because it envisages at para 5.11.13 that an elected President would undertake some of the public engagements which the Bailiff undertakes at present. One can readily envisage difficulties arising. Indeed, one would then have a situation where there were four people who would have to be considered in relation to ceremonial and public engagements (including charity and community matters), namely the Lieutenant Governor, the Bailiff , the President of the States and the Chief Minister. The potential for confusion, uncertainty and dispute as to who takes precedence or has responsibility for various occasions would be enormous and would prompt the pressure mentioned at the end of sub- para (iii).  
5. In short, whilst the Review says that it is important that the Bailiff should retain his position as civic head, its recommendation will in practice inevitably lead to

• in a comparatively short time to the loss of that position.

7. If members of the States are convinced that the Bailiff should no longer be President, I would accept that the recommendation of the Review (that he should cease to be President but remain as civic head) is preferable to an immediate change whereby the newly elected President of the States immediately becomes civic head. This is because it is difficult to foresee the consequences of such a sudden change and such matters are usually best dealt with byway of gradual evolution rather than sudden change. The interregnum would give time for mature reflection as to the exact nature of the role of civic head, whether it should all be performed by one person etc. However, for the reasons which I have given, members should not support the Review proposals in the expectation that, other than in the short term, the Bailiff can remain as civic head of the Island. It is inevitable that at some stage in the future, the new President of the States would become the civic head, which would be contrary to the recommendations of the Review and contrary to the views expressed by respondents to the Review.

8. Turning to recommendation 4, I agree that the Bailiff should continue to be the guardian of the constitution and the conduit through which official correspondence passes. The constitutional relationship between Jersey and the United Kingdom is unwritten and to some extent uncertain. It is based upon custom and practice over many centuries. It is therefore essential from the point of view of preserving Jersey's constitutional autonomy that day to day practice is consistent with that autonomy. A decision taken byJersey for short term advantage in relation to a particular mattermay create a precedent which weakens Jersey's long term constitutional position. It is therefore of vital importance that the Chief Minister of the day is alerted to any possible implications for the constitutional relationship when a particular matter arises. He cannot rely on his civil servants for this as nowadays they tend to be appointed from the United Kingdom and are therefore unfamiliar with the subtleties of the constitutional relationship; and in any event, as non-lawyers, they would not be in a position to advise on the complexities of the constitutional relationship. As the review makes clear at para 5.26, the Bailiff is particularly well suited to provide advice on the constitutional relationship. He would usually have previously been Attorney General. He will be steeped in the nuances and subtleties of the constitutional relationship. I entirely support the conclusion of the Review that "It is in our opinion of considerable importance that the Bailiff should continue to occupy this role."  
9. The difficulty is that it is hard to see how this role could continue if the Bailiff were simply Chief Justice. The underpinning of his role in official correspondence is that he is President of the States. There is no logic in a mere Chief Justice being involved in this correspondence. Again therefore, it seems to me that, whilst this role could continue for a while under the Review proposals, it is inevitable that it will gradually wither in any event and will certainly come to an end if the Bailiff ceases to be civic head.  
10. I do not think it appropriate to comment on all the reasoning of the Review in support of its recommendation that the Bailiff should cease to be President of the States. However, it may be helpful if I comment on two aspects.

1. Who would be the new President?

11. It is easy to assert that the States can simply elect a President from among their number. However, careful thought needs to be given to the practicalities. Jersey is a small community with a small parliamentary body which will in future comprise (following the decision last week) a maximum of 49 members, possibly less if further reforms are implemented in due course. There is therefore a limited pool to choose from. Members tend to stand for election, quite naturally, because they feel strongly about political issues and wish to influence States policy to achieve the outcomes which they desire. This can be achieved by speaking and voting, by becoming a minister or assistant minister or by being on Scrutiny. They would not be able to achieve these objectives as President, as he must remain mute and impartial during debates. They would not therefore  represent  their  constituents  on  these  issues. Thus  many members  would simply not wish to become President. As to those who might wish to do so, many would not be well suited to the role. The States consists of strong minded individuals and

presiding over it is not straightforward. Thus, while in a large parliamentary assembly, one might expect to find a member with the requisite skills who is also willing to take on the role, this will not necessarily be the case in a small assembly such as the States.

12. The election of a member who would otherwise have been a Minister or a leading member of Scrutiny would, I suggest, be a loss to the States and not in the Island's best interests. Conversely, the election as President of someone not well suited to the role would, I suggest, lead to a loss of authority of the Chair and an adverse impact on the conduct of the proceedings of the States.
13. An alternative would be for States Members to elect a non-member as President. If such a person had never previously been a member, there would be a steep learning curve and a lack of familiarity as to what was required of the office and what members expected. It would certainly place a much greater burden upon the Greffier and might well require the appointment of legal counsel to the President. An alternative would be to appoint a former  member  of  the States  as  President. However  he  or  she might well  have considerable "political history" with the consequence that any decision which he orshe made against a member who had previously opposed him or her might not be well received.  
14. The problems canvassed under this heading become even more acute if one takes into account the need to have a Deputy President as well as a President. It is simply not practicable for one person to preside at all the meetings of the States and I know of no jurisdiction which does not have a Deputy President or Deputy Speaker to assist in carrying out these duties.  
15. I accept of course that these concerns are not insurmountable and other small assemblies managed their affairs thus. Nevertheless, one has to pose the question as to whether any change would amount to an improvement. The Bailiff should be in a position to be an effective and impartial President. He will be a qualified lawyer and a judge. These attributes  should equip  him  to  rule  on  procedural  matters  and  to  preside  with  the required authority, dignity and impartiality.
16. The  review  acknowledges  the  difficulties  of  finding  a  suitable  replacement  for  the Bailiff and is reduced to saying that it is "hopeful" that it would be feasible (see para

• 5.19). This language does not suggest great confidence on the part of the Review.

2. European Convention on Human Rights

17. One of the reasons given by some who propose the removal of the Bailiff from the States is that the mere existence of a judge as Presiding Officer amounts to a breach of the European Convention on Human Rights. The Review has authoritively concluded that this is not so. The opinion of Mr Rabinder Singh QC (referred to in the Review) states quite clearly that there would be no breach of the ECHR if the status quo were to be maintained. It goes on to say that within the next ten years, counsel's opinion is that the present arrangements will come to be regarded as incompatible, but it is certainly unusual for a lawyer to predict how case law will develop in the future and it is hard to be see the basis upon which he reaches that view. Naturally, if it were to come about, Jersey would have to change at that stage. But it may not come about and it would seem preferable to do what is thought best for Jersey rather than do something which is thought to be second best on the off chance that the law might change in the future.

Recommendation 5

"The Bailiff should remain as President of the Licensing Assembly, unless an appeal is provided for"

18. I have no observation to make on this recommendation, with which I agree.

Recommendation 6

"The Bailiff should cease to be responsible for giving permission for public  entertainments"  

19. Successive Bailiff s have indicated that they would be happy to transfer responsibility for public entertainments to some other body. I repeated this comment in my submission to the Review. It is nowadays largely uncontroversial and, for my own part, I am happy to continue to undertake it until a replacement body is provided for but I agree with the recommendation.  

Recommendation 7  

"The requirement of Article 1(1) of the Crown Advocates (Jersey) Law 1987 of the Bailiff 's approval to the appointment of Crown Advocates should be repealed."

20. I agree with this recommendation.   Appointment of Bailiff and Deputy Bailiff

Recommendation 12(a)  

"The membership of the recommending panel for the appointment of the Bailiff and Deputy Bailiff should be augmented by the addition of two persons with substantial legal experience, one of whom should be from outside Jersey to be appointed by the Lieutenant Governor."

21. It seems to me that this is ultimately a matter for the Crown. However I believe it to be
    • a very unsatisfactory recommendation. I would hope that, when the time for the next round of Crown Officer appointments takes place, I shall be able to say to the Ministry of Justice that the Council of Ministers and the Privileges and Procedures Committee are thoroughly opposed to the Review recommendation in this respect.
22. It removes power from the Insular authorities to the Lieutenant Governor. The position hitherto has been that recommendations for appointments to Bailiff and Deputy Bailiff have been made entirely from within the Island; thus those consulted, namely the Bailiff 's Consultative Panel (representing the States), the Chief Minister, existing Crown Officers, members of the Judiciary and the senior members of the legal profession, have all been residents of the Island as has the recommending body itself (previously the Bailiff and now the Panel chaired by the Bailiff ). The Lieutenant Governor has had no direct role to play, although he has undoubtedly reported to the Ministry of Justice (representing the Crown) as to the rigour of the process which has been followed by the Insular authorities in making their recommendations. He is in a good position to give an objective assessment.

23. Now, for the first time, it is suggested that the Lieutenant Governor should nominate two out of the five members of the Panel and furthermore that one of these should be a non-resident of Jersey. This seems to me to be a highly undesirable dilution of the Island's autonomy and no good reason is given for it. It gives the Lieutenant Governor a role and influence which he has not had hitherto. We have only moved recently to a Panel making the recommendation rather than the Bailiff alone and I have not heard any criticism of the procedure followed by the Panel. On the contrary, it seems to me an ideal process. It involves the States and the Chief Minister to some degree (by way of consultation) but ensures that political considerations play no part in the appointments because States members are only consultees. The system is thus entirely consistent with good practice as laid down in the various international standards referred to in the Review. Furthermore, it is hard to see what a non-resident of the Island could bring to the process. It is those in the Island who would be familiar with the reputation and expertise of the candidates and it is the Island's Bailiff and Deputy Bailiff who are being chosen.  
24. Indeed, it may well be that Lieutenant Governors themselves would not wish to undertake this role in that it would draw them more fully into the process and therefore possibly into matters of controversy. It is important for the office of Lieutenant Governor that it be seen as entirely above the fray'. The proposal would prevent the Lieutenant Governor giving the entirely objective assessment of the process which he can give under the present system.