States Meeting Transcript - 15th November 2017

STATES OF JERSEY OFFICIAL REPORT

WEDNESDAY, 15th NOVEMBER 2017

PUBLIC BUSINESS - resumption................................................................4

1. Ratification of the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (P.83/2017).....................4

1.1 Senator P.M. Bailhache (The Minister for External Relations):..........................4

1. Deputy M.R. Higgins of St. Helier:......................................................5
2. Deputy G.P. Southern of St. Helier:......................................................5
3. Senator P.F. Routier: ....................................................................5
4. Senator P.M. Bailhache : .................................................................5

2. Elected Speaker and Deputy Speaker of the States Assembly: selection and appointment (P.84/2017)..................................................................7

1. Elected Speaker and Deputy Speaker of the States Assembly: selection and appointment (P.84/2017) - third amendment (P.84/2017 Amd.(3)) - amendment - proposal of the Chief Minister to reducing the lodging period to enable debate on 15th November 2017............................................................................7

1. Senator I.J. Gorst (The Chief Minister):..................................................7
2. Deputy J.A.N. Le Fondré:................................................................8
3. Senator P.M. Bailhache : .................................................................8
4. Senator P.F.C. Ozouf :....................................................................8
5. Deputy J.A. Martin of St. Helier:........................................................9
6. Connétable C.H. Taylor of St. John : ....................................................10
7. Deputy J.A. Hilton of St. Helier:........................................................10
8. Senator I.J. Gorst :......................................................................10

2. Elected Speaker and Deputy Speaker of the States Assembly: selection and appointment (P.84/2017)................................................................11

2.2.1 Senator I.J. Gorst (The Chief Minister):................................................12

3. Elected Speaker and Deputy Speaker of the States Assembly: selection and appointment (P.84/2017) – third amendment (P.84/2017 Amd.(3))....................16

2.3.1 Senator P.M. Bailhache : ................................................................16

4. Elected Speaker and Deputy Speaker of the States Assembly: selection and appointment (P.84/2017) – third amendment (P.84/2017 Amd.(3)) – amendment (P.84/2017 Amd.(3).Amd.) ..............................................................18

1. Senator P.F.C. Ozouf :..................................................................19
2. The Connétable of St. John:............................................................21
3. Deputy S.M. Brée of St. Clement:......................................................21
4. Deputy J.A.N. Le Fondré:..............................................................22
5. Deputy J.A. Martin:....................................................................23

6. Connétable J. Gallichan of St. Mary : ...................................................23
7. Deputy J.M. Maçon of St. Saviour:.....................................................23
8. Deputy M. Tadier of St. Brelade:.......................................................24
9. Connétable L. Norman of St. Clement:.................................................25
10. Deputy A.D. Lewis of St. Helier : ....................................................25
11. Senator P.M. Bailhache :.............................................................26
12. Deputy G.P. Southern : ..............................................................27
13. Senator P.F.C. Ozouf : ...............................................................27

5. Elected Speaker and Deputy Speaker of the States Assembly: selection and appointment (P.84/2017) – third amendment (P.84/2017 Amd.(3)) - resumption......30

1. Deputy K.C. Lewis of St. Saviour:......................................................30
2. Deputy S.Y. Mézec of St. Helier:.......................................................30
3. The Connétable of St. Mary:............................................................33
4. Senator L.J. Farnham :..................................................................33
5. Deputy J.A.N. Le Fondré:..............................................................34
6. Senator S.C. Ferguson:.................................................................38
7. Deputy S.M. Wickenden of St. Helier:..................................................38
8. Connétable A.S. Crowcroft of St. Helier:...............................................38

LUNCHEON ADJOURNMENT PROPOSED..................................................40 LUNCHEON ADJOURNMENT................................................................40

9. Deputy M. Tadier :......................................................................40
10. Deputy R.J. Renouf of St. Ouen : ....................................................43
11. Deputy P.D. McLinton of St. Saviour:...............................................45
12. Deputy S.M. Brée: ..................................................................46 Deputy J.A.N. Le Fondré:....................................................................46 The Attorney General:........................................................................47 Senator I.J. Gorst :............................................................................47 Deputy M. Tadier : ............................................................................49
13. Connétable P.B. Le Sueur of Trinity :................................................49
14. Deputy G.P. Southern : ..............................................................50
15. Deputy M.J. Norton: ................................................................52
16. Deputy G.J. Truscott of St. Brelade:.................................................52
17. Deputy J.A. Martin: .................................................................52
18. Deputy A.D. Lewis : .................................................................53
19. Deputy L.M.C. Doublet of St. Saviour : ..............................................54
20. Connétable J.E. Le Maistre of Grouville :............................................55
21. The Connétable of St. John : .........................................................55
22. Senator I.J. Gorst : ...................................................................56 The Attorney General:......................................................................56
23. Deputy R. Labey of St. Helier:......................................................59
24. The Deputy of St. Mary:.............................................................60
25. Senator P.F.C. Ozouf : ...............................................................60
26. Deputy M.R.Higgins:...............................................................64
27. Senator A.J.H. Maclean:.............................................................65
28. Senator P.M. Bailhache :.............................................................66

6. Elected Speaker and Deputy Speaker of the States Assembly: selection and appointment (P.84/2017) –amendment (P.84/2017 Amd.) - as amended...............70

1. The Connétable of St. Clement (Chairman, Privileges and Procedures Committee):....70
2. Senator P.F.C. Ozouf :..................................................................71

7. Elected Speaker and Deputy Speaker of the States Assembly: selection and appointment (P.84/2017) – second amendment (P.84/2017 Amd.(2))..................72

1. Senator P.F.C. Ozouf :..................................................................73
2. Deputy J.A.N. Le Fondré:..............................................................73
3. Deputy S.M. Brée:......................................................................75
4. Senator I.J. Gorst :......................................................................76
5. Deputy A.D. Lewis :....................................................................76
6. Deputy J.M. Maçon:....................................................................76
7. Deputy L.M.C. Doublet :................................................................77
8. The Deputy of St. Ouen:................................................................77 Senator P.F.C. Ozouf :........................................................................78 The Connétable of St. Clement:..............................................................78 Deputy M. Tadier : ............................................................................79 Deputy J.A.N. Le Fondré:....................................................................79 Senator P.F.C. Ozouf :........................................................................79
9. Deputy M. Tadier :......................................................................80

ADJOURNMENT................................................................................82

[9:30]

The Roll was called and the Dean led the Assembly in Prayer.

PUBLIC BUSINESS - resumption

1. Ratification of the Multilateral Convention to Implement TaxTreatyRelatedMeasures to Prevent Base Erosion and Profit Shifting (P.83/2017)

The Greffier of the States (in the Chair):

The first item of business is the Ratification of the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting, P.83/2017, and I ask the Greffier to read the proposition.

The Deputy Greffier of the States:

The States are asked to decide whether they are of opinion to ratify the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting, signed at Paris on 7th June 2017 under the aegis of the Organisation for Economic Co-operation and Development (O.E. C.D .).

1.1 Senator P.M. Bailhache (The Minister for External Relations):

In the context of the furore surrounding the publication of the papers stolen from the law firm Appleby, this is a fortuitously timely proposition. It underlines the fact that Jersey has been in the forefront and one of the leading countries in seeking to establish international rules to ensure that multinational companies pay their fair share of tax in jurisdictions where they operate. The Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting, which I will call the Convention, is one of the outcomes of the O.E. C.D . and G20 projects to tackle the problem of aggressive tax-planning strategies that exploit gaps and mismatches in tax rules so as artificially to shift the making of profits to jurisdictions which have no or very low tax. Jersey became a B.E.P.S. (Base Erosion and Profit Shifting) Associate and a member of the B.E.P.S. inclusive framework at its inaugural meeting in June 2016. The Government is fully supportive of the B.E.P.S. project and is active in implementing the actions which make up the project. As a B.E.P.S. Associate, Jersey is able to contribute to the overall development of the project through policy dialogue and exchange of information, participating in this case on an equal footing with O.E. C.D ./G20 and many other countries and jurisdictions. On 7th June this year the Chief Minister, together with other Ministers and high-level officials from 76 different countries, signed or formally expressed their intention to sign the Convention. It has been described as an innovative multilateral convention that will swiftly implement a series of tax treaty measures to update the existing raft of bilateral tax treaties and reduce the opportunities for tax avoidance. The Convention will also strengthen provisions to resolve treaty disputes through mandatory binding arbitration and thereby reducing double taxation and increasing tax certainty. The Convention applies to modify the tax treaties between 2 or more parties to the Convention and Jersey is a party to this Convention. It will be applied alongside existing tax treaties, modifying their application in order to implement the B.E.P.S. measures. The Convention has needed to be flexible in order to ensure that the B.E.P.S. measures can be fully implemented and to acknowledge the positions of different countries. It provides flexibility by specifying the tax treaties to which the Convention applies, and they are called the "Covered Tax Agreements". The Convention will only apply to those agreements that a country has specifically listed in that respect. It provides flexibility with respect to provisions that relate to a minimum standard, so whether a Covered Tax Agreement, that is a Double Tax Agreement, meets the B.E.P.S. minimum standard will be determined in the course of the overall review and monitoring process by officials in the B.E.P.S. framework. Opting out of the provisions or parts of the provisions with respect to Covered Tax

Agreements is possible and is accomplished through a mechanism of reservations. Choosing to apply optional provisions and alternative provisions can be done by applying a number of provisions if all the contracting jurisdictions to the Covered Tax Agreements affirmatively choose to apply them. At the time of the signing of this Convention, signatories were requested to produce a document listing the agreements to be covered and specifying the reservations expected to be entered. The document which applies to Jersey is attached as Appendix 2 to the Report and Proposition showing that the agreements to be covered are those Double Taxation Agreements which we have with Cyprus, Estonia, Hong Kong, Luxembourg, Malta, Qatar, Rwanda, Seychelles, Singapore and the U.A.E. (United Arab Emirates). The document lists the expected reservations covering treaty amendments that are considered not to apply to the Jersey agreements. The ratification of the Convention, if the Assembly agrees to do so, will further reinforce Jersey's commitment to the B.E.P.S. project. The Convention is expressed to enter into force following the deposit of the fifth instrument of ratification, acceptance or approval. If the Assembly ratifies the agreement today, it is hoped that Jersey will be one of the first 5 countries to ratify the Convention and to bring it into force. We think that this will further endorse Jersey's international reputation as a responsible jurisdiction, which is among the leaders of those countries promoting the adoption of international standards to tackle aggressive tax avoidance. Two jurisdictions, 2 countries, have so far ratified the Convention. The first to do so was Austria, the second was the Isle of Man; I very much hope that the third will be Jersey. I move the proposition.

The Greffier of the States (in the Chair):

Is the proposition seconded? [Seconded] Does any Member wish to speak on the proposition?

1. Deputy M.R. Higgins of St. Helier :

I am in favour of this particular proposition, but could I ask the Minister for External Relations whether the recent Apple transactions would be covered by this? In other words, is it trying to stop that type of thing? They are moving their profits, they have got offshore profits, they are not repatriating them to the United States or they are not paying their taxes in the countries in which they operate, and it is coming through centres like our own. So would this particular treaty prevent that happening?

2. Deputy G.P. Southern of St. Helier :

Following on from that question: would the Minister explain how the substance test mentioned yesterday by the Chief Minister might apply to this particular treaty or how this treaty might impact on the substance test proposed yesterday for doing business that is not aggressive or abusive tax avoidance?

[9:45]

3. Senator P.F. Routier:

I very much welcome this proposition because in doing my time with involvement on the Overseas Aid Committee and then Commission as a chairman, it was always one of the worrying things that we were supporting projects in developing countries who, in their own countries, it was suspected that they were not gaining the best from their own community from the resources within their own jurisdiction and that major multinational companies were using the resources of the country and then taking the profits out and putting them in other countries. I think this is a very welcome proposition which hopefully will try and avoid that in the future and the people in developing countries will then be able to share in their own resources.

4. Senator P.M. Bailhache :

I thank those Members for their contributions. So far as the question from Deputy Higgins is concerned, the difficulty in relation to the alleged Apple transaction is that, as the Chief Minister explained yesterday, we do not really know very much about it. The extent to which the Apple Corporation did, through companies which are not Jersey companies, put money into Jersey is being investigated, as I understand it, and it may be that we will know a little bit more in due course. The overall thrust of this convention is to do exactly as Deputy Higgins suggests: it is to prevent multinational companies from moving profits around to low tax or no-tax jurisdictions and

thereby avoid tax which they should legitimately be paying. One of the mechanisms for achieving that end will be a requirement that corporations should show in their accounts exactly where profits are made. Those accounts will be available publicly and will enable tax authorities in different countries to assess whether or not there should be a tax on profits that have been made by a multinational in their jurisdiction. So, I cannot answer the question specifically about Apple but in principle I think that the Deputy is correct. So far as Deputy Southern 's question on the substance test is concerned, this is work which the O.E. C.D . is undertaking at the present time. This Convention does not settle a substance test, it is still uncertain what the ultimate internationally- acceptable substance test will be, but it is work which the O.E. C.D ., and I think also the European Union, are working on to see whether there can be international agreement on what it should be. I thank Senator Routier for his comment and I agree with him. I move the proposition.

The Greffier of the States (in the Chair):

Those Members who are in favour of adopting the proposition, kindly show. The appel has been called for on the proposition and I ask the Greffier to open the voting.

POUR: 43 CONTRE: 0 ABSTAIN: 0 Senator P.F. Routier

Senator P.F.C. Ozouf

Senator A.J.H. Maclean

Senator I.J. Gorst

Senator P.M. Bailhache

Senator A.K.F. Green

Senator S.C. Ferguson

Connétable of St. Clement

Connétable of St. Peter

Connétable of St. Lawrence

Connétable of St. Mary

Connétable of St. Ouen

Connétable of St. Brelade

Connétable of St. Martin

Connétable of St. Saviour

Connétable of Grouville

Connétable of St. John

Connétable of Trinity

Deputy J.A. Martin (H)

Deputy G.P. Southern (H)

Deputy of Grouville

Deputy J.A. Hilton (H)

Deputy J.A.N. Le Fondré (L)

Deputy of Trinity

Deputy K.C. Lewis (S)

Deputy M. Tadier (B)

Deputy E.J. Noel (L)

Deputy of St. John

Deputy M.R. Higgins (H) Deputy J.M. Maçon (S) Deputy of St. Martin Deputy R.G. Bryans (H) Deputy S.Y. Mézec (H) Deputy A.D. Lewis (H) Deputy of St. Ouen

Deputy L.M.C. Doublet (S) Deputy R. Labey (H) Deputy S.M. Wickenden (H) Deputy S.M. Bree (C) Deputy T.A. McDonald (S) Deputy of St. Mary

Deputy G.J. Truscott (B) Deputy P.D. McLinton (S)

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

The Greffier of the States (in the Chair):

We now move on to the proposition from the Chief Minister entitled Elected Speaker and Deputy Speaker of the States Assembly: selection and appointment.

1. Elected Speaker and Deputy Speaker of the States Assembly: selection and appointment (P.84/2017) - third amendment (P.84/2017 Amd.(3)) - amendment - proposal of the Chief Minister to reducing the lodging period to enable debate on 15th November 2017

1. Senator I.J. Gorst (The Chief Minister):

I wonder if it would be helpful if we could deal with the amendments issue at this point prior to reading the proposition. It seems to me, I think, although you will advise, there are at least 2 amendments which are not yet in time. We are going to, I hope, have a productive and wide- ranging debate on this issue during the course of the day. It would seem to me sensible for the Assembly to allow both of those amendments to go forward whether Members are going to support them or not and I wonder if I could just move that proposition.

The Greffier of the States (in the Chair):

That was not what I was going to do, but, yes, that is fine. [Interruption] So there are 2 amendments. Sorry, can I finish, Deputy Le Fondré? There are 2 amendments, which I think you are talking about here, one is the amendment to the third amendment lodged by Senator Ozouf and the other is the fourth amendment lodged by Senator Ozouf ; neither of them have served their lodgement period yet and the proposition, as I understand it, is to use Standing Order 26(7) to allow both to be debated, correct?

Senator P.F.C. Ozouf :

Indeed.

The Greffier of the States (in the Chair): Is this a speech or a ..

Deputy J.A.N. Le Fondré of St. Lawrence :

It is a question .. well, I do not know. Is this a proposition that we talk on, because I do have some reservations?

The Greffier of the States (in the Chair):

Yes, it is a proposition you can talk on, yes. Deputy J.A.N. Le Fondré:

I would like to express those reservations. The Greffier of the States (in the Chair): Is the proposition seconded? [Seconded]

2. Deputy J.A.N. Le Fondré:

I would like to express those reservations. It is mainly that I am slightly uneasy on a matter like this that an amendment was lodged so late in the day, and I quote from Senator Ozouf 's .. this is particularly the third amendment, when he says he started work on it on 3rd November but the proposition or the amendment lodged by Senator Bailhache was .. I have not got it right to hand, was lodged or presented to Members some 10 days before. So I am slightly uneasy essentially that despite the 10-day gap that the Senator started work 10 days after, according to his own report, that I believe it only went to the Bailiff on the Monday, so the date he registers is a Friday, and so I am not too sure if the reason that he did not understand the lodging dates from such a senior Member of the States, who should know these things, and could have very easily asked, is a worthwhile or valid reason for allowing the lodging time to be reduced. So I just really wanted to express my reservation on that front.

3. Senator P.M. Bailhache :

I see that Senator Ozouf 's light is flashing and all I was going to ask was, whether Members could be reminded what the Standing Order says and whether Senator Ozouf could identify why he falls within the Standing Order and the Assembly ought to debate these amendments.

The Greffier of the States (in the Chair):

That is a very good point. Just to issue the reminder: "The States may reduce the minimum lodging period for a proposition if they are of the opinion that it is in the public interest to do so."

4. Senator P.F.C. Ozouf :

I made it very clear that I would ask the Assembly, and I am grateful because the Chief Minister had made the proposition himself. I did start drafting the amendments on the date that I said and I offer no criticism whatsoever to the Presiding Officer .. or the enormous assistance of the Greffe. However, it is the case that there was quite a lot of work done in order to ensure that the amendments that were eventually lodged were compliant with Standing Orders. I believe I drafted an amendment which was and it was submitted and it was rejected and so there was quite a lot of toing and froing over a period of some 48 hours. I was not expecting that and so I was expecting, in good faith .. and, again, I was given, as always, excellent assistance by the Greffe but that was not assisted by the fact that I did not realise that the Greffier himself was out of the office and also the Deputy Greffier and so I was trying to get hold of people that I was not able to do so. So I regret that .. I believe it is in the public interest that there is a debate on a most important matter of a referendum, which is effectively the first referendum. In fact if we were having this debate tomorrow then the amendments would be within time. In fact we are taking it today, which is fine, so effectively I am asking for a lodging date reduction of one day in order that we may have a debate otherwise there will be no option. There will be no optionality for the amendment that Senator Bailhache lodged in terms of his referendum. I will not go into the arguments now because that is clear to Members but effectively there will be no debate on the option to what I believe is to be a fundamentally important matter of public importance and that is a referendum, and effectively I attempted to try and put in place some strictures to that amendment in order to make it slightly more palatable if that amendment is going to be successful. So I beg the indulgence of the

Assembly. I wish it would have been different. To Deputy Le Fondré I say, I am learning to be a Back-Bencher and I find myself in a rather curious position of having genuinely believed that it was in fact a 4-day lodging period because effectively we have got the rather odd situation, and I do know how to read Standing Orders, that if the Chief Minister's proposition, which does not account to the Minister's proposition is a .. would have been in his own name and an amendment to an amendment would have been 4 days not a week but because the proposition is in the name of the Chief Minister, which does not have collective responsibility, which has been amended by a member of the Council of Ministers in his own name, it falls within the week limit. So for that reason I hope that Deputy Le Fondré will understand that notwithstanding 18 years in this Assembly even I was confused by that, so I beg the indulgence of the Assembly and ask them to support the Chief Minister's proposal for a lodging reduction day of one day.

Deputy J.A.N. Le Fondré:

Just to clarify, is this on both amendments because .. The Greffier of the States (in the Chair):

Well, I was going to clarify that. There are 2 amendments in question. The amendment to the third amendment, Senator Ozouf is absolutely right, the lodgement period would be met tomorrow, if the debate were tomorrow. The fourth amendment, however, was significantly out of time and it would not be debatable without this sort of provision until 23rd November.

5. Deputy J.A. Martin of St. Helier :

I do have sympathy for Senator Ozouf coming across these benches and having to do some, you know, extra [Interruption] .. I did not say that at all. He works very hard and he always has done. I go back to the point, just what the Chief Minister has proposed, I think I could swallow, the one day. The other amendment, obviously I looked at that, and I do not see this, depending on the outcome of today, this is not something that Senator Ozouf could relodge as a standalone proposition. It is asking to constitute a different panel on the outcome so I would urge the Chief Minister to separate his proposition out. He might have some more sympathy. One day; I think we could all live with. We cannot keep stretching Standing Orders, as Senator Bailhache has said.

Senator P.F.C. Ozouf :

Could you just remind us, which ones because the Chief Minister said both? Perhaps we could just be advised about which ones because I am confused as well.

The Greffier of the States (in the Chair):

It is the amendment to the third amendment; that is the one which would be out of time until tomorrow. The fourth amendment, which is out of time until 23rd November, which is the subject of Deputy Martin's comments.

Senator P.F.C. Ozouf :

If it may assist ..

The Greffier of the States (in the Chair): Well, okay.

Senator P.F.C. Ozouf :

Can I just add as a supplementary? If it may assist I am more than happy to concede that that is a standalone proposition.

The Greffier of the States (in the Chair):

Well, it is not in your gift I am afraid because it is the Chief Minister's proposition. Can I ask if any other Member wishes to speak on the Chief Minister's proposition?

6. Connétable C.H. Taylor of St. John :

I believe I am on record last time this request was made to allow a debate to take place early and I said: "For the very last time." The rules keep being bent and I think sooner or later we have got to install discipline and one has got to firmly say "no" and that, I am afraid, is my feeling.

7. Deputy J.A. Hilton of St. Helier :

I stand to say I think it really is a question about fairness. We are being asked to extend the lodging period by one day for one of Senator Ozouf 's amendments. I think in the recent past .. I cannot remember a time when the Assembly have been asked to do that, generally for one of the Back- Benchers, and the Assembly have agreed to do it. Senator Ozouf is a Back-Bencher and I think it is a question of fairness in these circumstances so I would appeal to Members to, on this occasion, allow it to happen and let us treat all Members fairly regardless of what their position was previously.

[10:00]

The Greffier of the States (in the Chair):

Does any other Member wish to speak? If not I ask the Chief Minister to reply.

8. Senator I.J. Gorst :

I think Deputy Hilton has just eloquently made my point for me. I think it is right that this Assembly holds Ministers and departments to a higher and different standard to Back-Benchers. I have said, not at the last States sitting but the one before, and I might mention it again during this debate, it is totally inappropriate that Back-Benchers do not have appropriate support to undertake their work in bringing forward propositions, amendments to legislation and support for their constituency work. It cannot go on and we have got to stop playing games in this Assembly that pretends anything other than that. For my part, I think most Members are absolutely reasonable and I accept what Deputy Martin said, a reasonable approach is to allow the amendment which is just one day short and therefore I can either take 2 votes or just take a simple vote on the first amendment and withdraw the second amendment and accept that Senator Ozouf will bring forward, if he so desires, a standalone proposition at a future date. So it is just the first amendment. I know Members are reasonable and I ask them to be so in supporting the allowance of this amendment to be brought forward one day so it can be taken today.

The Greffier of the States (in the Chair):

So I understand from that that the proposition is that debate will be allowed on the amendment to the third amendment and you do not wish to press the fourth amendment? Fine. That is the proposition. Those Members who are in favour .. the appel has been called for. Members are invited to return to their seats. The vote is on whether to reduce the lodgement period for the amendment to the third amendment and I ask the Greffier to open the voting.

POUR: 38

Senator P.F.C. Ozouf Senator A.J.H. Maclean Senator I.J. Gorst

Senator P.M. Bailhache Senator A.K.F. Green Connétable of St. Clement Connétable of St. Peter Connétable of St. Lawrence

CONTRE: 5 ABSTAIN: 0 Senator S.C. Ferguson

Connétable of Grouville

Connétable of St. John

Connétable of Trinity

Deputy J.A.N. Le Fondré (L)

Connétable of St. Mary Connétable of St. Ouen Connétable of St. Brelade Connétable of St. Martin Connétable of St. Saviour Deputy J.A. Martin (H) Deputy G.P. Southern (H) Deputy of Grouville Deputy J.A. Hilton (H) Deputy of Trinity

Deputy K.C. Lewis (S) Deputy M. Tadier (B) Deputy E.J. Noel (L) Deputy of St. John Deputy M.R. Higgins (H) Deputy J.M. Maçon (S) Deputy of St. Martin Deputy R.G. Bryans (H) Deputy of St. Peter

Deputy S.Y. Mézec (H) Deputy A.D. Lewis (H) Deputy L.M.C. Doublet (S)

Deputy R. Labey (H) Deputy S.M. Wickenden (H) Deputy S.M. Bree (C) Deputy M.J. Norton (B) Deputy T.A. McDonald (S) Deputy of St. Mary

Deputy G.J. Truscott (B) Deputy P.D. McLinton (S)

Senator P.F.C. Ozouf :

May I take this opportunity of thanking Members for that but I can also withdraw the amendment that would be significantly out of time and I will simply relodge that as a standalone proposition in due time because it seems to be that inadvertently I did not realise that it was so out of time and I will withdraw that and I will consider what to do with the amendment that is underlying the amendment to my own amendment. So that one is being withdrawn.

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

The Greffier of the States (in the Chair):

Okay. So the fourth amendment has been withdrawn. So before we get going I just wanted to say something about the order of proceedings, just to make sure everyone is clear from the start. I circulated a running order last week, or earlier this week, sorry, which sets out the order in which the amendments are to be taken. The first Member to speak will be the Chief Minister to move his proposition. After that I will invite Senator Bailhache to move his amendments and after that, following what has just happened, I will ask Senator Ozouf to propose the amendment to Senator Bailhache 's amendment. The debates on each of the amendments and amendment to amendments are on specific subjects. I understand for some Members they may wish to set out their overall position on the main proposition briefly during debate on perhaps Senator Ozouf 's amendment to the amendment or Senator Bailhache 's amendment, particularly if they only wish to speak once

today and within reason that will be permitted but detailed remarks about the history of the role of the Bailiff , the civic role of the Bailiff , the relationship between a proposition and the Care Inquiry, the specific provisions in the Chief's Minister's proposition; these should all be left to the debate on the proposition itself which will take place after the amendments. So I will attempt to be fairly strict on Members to try and keep some sort structure to the day and I hope that is helpful. [Approbation] My next act of kindness is to [Laughter] .. is to spare the Deputy Greffier the job of reading out the entire proposition as it is very long and I imagine you have all read it - unless you feel there is a need to hear it - otherwise I think we should take the proposition as read and I will invite the Chief Minister to propose it.

2.2.1 Senator I.J. Gorst (The Chief Minister):

I have been in this position for a number of years now and throughout that time I have been of the view that this Assembly would, at some point, need to consider in detail the question of who should serve as our elected Speaker and whether we  wish to allow the current overlap between our legislature and judiciary to continue. It should not come as a surprise to Members that I make that opening point. I have made it in the previous 2 elections and, depending on the outcome of our deliberations today, will continue to make it. The impartial advice provided to the Assembly on several occasions  has  been clear.   Modern,  international, democratic standards  are also  clear. Unfortunately what is also clear is that so far we, as an Assembly, have complied with neither of those. It is for these reasons that I have brought forward this proposition asking the Assembly to take the in principle decision to elect its own Speaker and Deputy Speaker. It is not a decision that I have taken without careful consideration because I acknowledge that there are differing and strongly held views on this subject, not only in this Assembly but also across our community. I have got to say it would be far easier for me to be listening to someone else making this proposition this morning but that would not have been right nor would it have been in keeping with the responsibilities of the office of Chief Minister or the interests of our Island. During previous debates of course Members have often commented that they do not have sufficient information to take this decision even in principle. It was therefore clear to me that I should bring forward a detailed proposal for Members in order that we can have this in-depth debate and I believe that Members on both sides of the argument support us having that debate today. So I do so as a person who greatly respects and holds dear our Island's unique identity, customs and culture. I value the historic role of the Bailiff , as I know many across our community do. I am not a revolutionary, nor will I ever be. I am sometimes referred to, I think probably disparagingly, as a quiet reformer but I bring forward reform in what I believe to be the best interest and the best long-term interest of our community. On Liberation Day this year the Bailiff spoke about our institutions and respect for our institutions and the people in those institutions endeavouring to do their best on behalf of the whole community. I thought that was a brave speech but what he said was absolutely right. I want to continue to support our institutions because I believe they have served our Island well. But in supporting them I want them to remain relevant and sustainable for the modern day and into the future, and that is a further reason why I am bringing forward this proposition today. So perhaps it is a valid criticism to say I should have done this earlier. Why have I waited until now? I also fully accept that we did not need the Independent Care Inquiry's recommendation to alert us to the fact that we have a lack of separation of powers and have not implemented all the recommendations of the Clothier and Carswell Reviews. It is equally the case, however, that the Inquiry did make its recommendations that we give further consideration to the recommendations of both of those reviews and it included a specific quote regarding the lack of separation of powers. Of course, it

was strictly outside of the Inquiry's terms of reference but they made the recommendation nonetheless. I argue that we cannot ignore independent advice, especially when it has been repeated for a third time in a third report; all of which has been commissioned by either this or previous Assemblies. As I have said, all Members are aware, the question of who should serve as

our elected Speaker in this Assembly has been the subject of debate for decades. I think, however, what has been noticeable in recent years is the greater intensity and regularity of the debate than at any other time previously. I do not think there is any prospect of this trend reversing. In fact quite the opposite. Both the independent advice that has been provided to the Assembly and the clear global democratic standard means that if nothing is done the debate can only continue and, if anything, intensify further. I think it is that, failure to reform, that has the potential to damage our Island and our institutions, especially this Assembly and ultimately the office of Bailiff . I do not want that to happen in either case. Members have often observed that change in this regard is inevitable. It is simply a question of timing and of the amount of information that they require in order to make the change and an understanding of the detailed implications and implementation and how such a change would work in practice. Today Members have greater detail than they have previously had and therefore I think the time has come for the Assembly to elect its own Speaker. I know that some of those Members who felt in the past they do not have enough detail will continue to have questions and I am very grateful to those Members that I have met with, who I know continue to have questions, and for that reason cannot support the proposal at this time. I would, however, suggest that there will always be questions.

[10:15]

There will always be questions of procedural detail and what this proposition does is ask that P.P.C. (Privileges and Procedures Committee) think carefully when developing the legislation that would result  from this in principle decision being agreed. It will be scrutinised. There will be an opportunity for further public consultation but I am absolutely convinced that any questions that arise can and will be resolved because today is about taking the first step, an in principle decision, that this Assembly should elect or appoint its own Speaker in common with every other democratic legislature in the world, except for our friends in Guernsey. The arguments in favour of the Bailiff ceasing to serve as Speaker and being replaced by an elected Speaker are well known and have clearly been set out on several previous occasions, including in the report to this proposition. I do not want to go into great detail this morning but I do want to highlight a few important points that I hope Members will keep in mind during the debate and then ultimately in deciding how to vote, either later today or perhaps even tomorrow. The proposition makes clear how a Speaker would be elected, should it be agreed that the Speaker should be chosen from among elected Members, but very importantly it leaves open the option for a non-States Member to be appointed to the role. I know that this is another issue that Members disagree on. Some strongly believe it should be an individual elected from elected Members in this Assembly and others strongly believe it should be a person appointed from outside of the Assembly. This proposition does not decide that question. We have often asked whether a Deputy Speaker would also be needed and this proposition sets out why we would need to elect one Deputy Speaker while also maintaining the provision for another elected Member to preside if necessary. The election process, term of office and process for the removal of Speaker and Deputy Speaker are set out. The proposition also clarifies the means through which the Speaker and Deputy Speaker would continue to represent their constituents while maintaining impartiality either in the Speaker's case at all times and for the Deputy Speaker when in the chair or deputising for the Speaker in his or her other duties. Finally, the additional resource that would be needed to support a Speaker is confirmed. The Speaker would clearly need the support of one additional senior officer but otherwise could depend on the existing support provided by your own office and the Law Officers' Department. It, of course, has been pointed out by P.P.C. in their amendment that further work would be required should the Assembly opt to appoint its Speaker from outside its membership and I accept that and therefore accept P.P.C.'s amendment. The key point I would raise at this stage is that any challenges and questions we face regarding the topic will almost certainly have been faced previously and resolved by other countries and other jurisdictions and therefore we need not fear. Whether we opt for an appointed or an elected Speaker we are not breaking new ground. In fact we are at the rear of the pack. While the matters of process are important it is arguably of more interest at this stage to mention the significant advantages for this Assembly in having their own elected or appointed Speaker. A Speaker would be the dedicated servant of this Assembly only with no other calls on his or her time. The Speaker would be a representative of this Assembly both within the Island and externally, perhaps at C.P.A. (Commonwealth Parliamentary Association) type events. They would have the time necessary to play a key role in promoting the development and understanding of the States Assembly and democracy in Jersey. As was mentioned by Lord Carswell a Speaker could also fully involve him or herself in the development of the Assembly's procedures. Something which historically Bailiff s have not felt in a position to do. In essence, we would have a champion for the Assembly and that can only be positive for democracy in Jersey. It is not just in the Assembly's interest to choose its own Speaker of course. The advantages are much wider. Members will recall that the Carswell Review highlighted the restrictions that the Bailiff 's current role has on the proper exercising of his judicial responsibilities. There are occasions where it is both necessary and in order for the Chief Justice to criticise the Executive, possibly even the legislature, as part of a healthy system of checks and balances. But I can only imagine it is difficult for the Bailiff undertaking both roles to do so and that is why we have seen it rarely happen or we have seen Bailiff s rarely make such criticisms. This could, of course, be because we are all so good at doing what we do or it might be because the Bailiff , rightly, has to be seen to be above politics and maintain their neutrality in this Assembly. But either way it cannot be good for our Island that our Chief Justice finds themselves in such a position. By extension, Members should remember that a decision by the Assembly to elect its own Speaker would allow the Bailiff and Deputy Bailiff significantly more time to devote to their primary responsibilities of being the chief and deputy Chief Justices of Jersey. It is for their skills, after all, in these roles that they have been appointed and are remunerated and allowing them to have greater focus on their vital Royal Court work I think will be extremely positive and enhance further our judicial system in Jersey. A further advantage of making this change, which is often overlooked, is that it will further enhance the principle of judicial independence in Jersey. Value 1.3 of the Bangalore Principles states that: "a judge shall not only be free from inappropriate connections with and influence by the Executive and legislative branches of government but must also appear to a reasonable observer to be free therefrom." At present, it is difficult in Jersey to be absolutely categorical to say that we adhere to that last requirement of that principle and that is simply because of the lack of separation of powers in the current role. Members should also be aware that earlier this year I brought forward draft proposals for enhancing judicial independence and establishing a Judicial and Legal Services Commission in Jersey, and I am very grateful to those Members of this Assembly who have been working together with Senator Routier on those proposals. A number of responses to the consultation, which concluded in August, pointed out the irrationality of bringing forward such proposals while making no reference to the Bailiff 's concurrent role as Speaker and Chief Justice. I have to say that while it was my consultation and they are my proposals I simply cannot argue against the point that those consultees were making. How can we proclaim the virtues of judicial independence in one breath and then support an overlap between the legislature and head of the judiciary in the next? I will, of course, bring forward those proposals no matter what the outcome of this debate today because they make important progress in our judicial appointments process but

we should be under no illusion; this Assembly cannot claim to be truly and wholly committed to the principle of judicial independence while it allows the current arrangement to continue. I should also touch on, at this stage in my speech, about the day-to-day management of any potential conflict. I think in practice, it is a concern of principle. The Bailiff and Deputy Bailiff manage their arrangements accordingly and recuse themselves when they are sitting in the court and remove themselves from the chair that you are sitting in this morning when they consider there is a conflict. Of course, the very fact that they have to do this at all demonstrates that there is a conflict at the heart of their role. There is a conflict and it exists every day. In allowing it to continue I think we do a great disservice to our courts, to the public and to ourselves, the democratically elected Members of this legislature. I want to touch also on another key aspect of the debate which I know is of concern to a number of Members and Islanders and that is the future of the Bailiff 's role as civic head of Jersey. In fact in previous debates there have been 2 areas of argument about why we should not make this change. One being all of the details that I have already spoken about and the second being the perceived knock-on effect to the Bailiff 's civic head role, and I have no doubt that my colleague here to my right will be speaking at length about that. Let me, for my part, be absolutely clear. My commitment to the Bailiff 's role as civic head is absolute and resolute. The proposition is about improving our democratic structures and public institutions and, for my part, that means doing all we can to maintain and strengthen the Bailiff 's civic head role. Before bringing this proposition I gave very careful consideration to ensuring that the civic head role would and could continue. In seeking the reassurances that I needed and desired I again referred to the independent advice we have been given on this matter, both by Clothier and Carswell, all recommending that the Bailiff continue in his role as civic head. I have tried, therefore, to firmly establish not only that this will be the case but how also we can ensure it continues to be the case. It is important to keep in mind that the Bailiff 's role as civic head is held separately to that of his other roles. It is not dependent on his role as presiding officer and will not disappear if we choose to elect our own Speaker. The Bailiff would continue to undertake his or her community engagements, their representative role with visiting ambassadors and politicians and their ceremonial role on important Island occasions. The Bailiff would also maintain a link with this Assembly. They would swear Members in, preside for the process of electing or appointing a Speaker and take the chair on Liberation Day and other appropriate occasions.

[10:30]

The proposition would ensure that on civic occasions the Bailiff continued to be the first in the order of precedence and the office would continue to be afforded the respect it is currently held in and it deserves. Put simply, as far as the Bailiff 's civic responsibilities are concerned there should and would be no change. While it is difficult to add any further clarity to my own position and the words I have just spoken on the Bailiff 's continuing role as civic head, I acknowledge that some Members are of the view that warm sentiments, positive intent and goodwill are not enough to secure the role on a long-term basis. There is a view that the civic head role is intertwined with that of President of the Assembly. I disagree with that, as I have said, but I do understand why Members take and make that point. I have therefore gone further; in the report to my proposition in order to clarify that I would be willing to place the civic head role on a statutory footing should this be seen as necessary by Members. This will put the debate beyond any doubt and ensure that the role of civic head is protected long into the future as a key part of the office of Bailiff . In fact it would strengthen the office of Bailiff from the current role of civic head and the way that it is interpreted and how it extends from ancient traditions. Before bringing my opening comments to a close I do wish to make reference to international standards, a matter which I have often referred to with regard to this subject. A key argument which I believe bears remaking is that Jersey's current arrangements are not consistent with modern international democratic standards. I know that this comparison can antagonise some Members of the Assembly and our community who argue that we do not simply need to follow every other country's arrangements just for the sake of it and that is a principle that I agree with and support. I understand that there are occasions when a Jersey specific solution is more appropriate and is the standard that others could follow. The role of the Jurat, the Honorary Police system, the Parish Hall Inquiry system; these are not common global institutions but, as I have said, they work incredibly well for us in our community and they are widely admired. There are times and areas where it is the right thing to be unique but there are times and areas where it is less so and being in a position where one clearly breaches a globally accepted principle

of the separation of powers for my part I believe falls the wrong side of that division. We, in this Assembly, are used to adhering to global standards. It is not a new phenomenon. Right across the business of government we are at the forefront of setting global standards and in other areas where we encourage Ministers to bring forward legislation, policies and procedures to ensure that we do into the future. Only yesterday the Minister for the Environment was rightly challenged about environmental standards and whether we are meeting the globally accepted standards in our community. Members were right. I hope that they do not argue today on this particular issue that this is a standard we should just put to one side. Take housing, we are following U.K. (United Kingdom) decent home standards. We get criticised for that but it is the right thing to do, to bring the standard of social housing in our community up to and beyond standards elsewhere around the world. As we have already mentioned this morning, this proposition has been the subject of a number of amendments and I look forward to discussing and debating those as well throughout the course of the day. I look forward to endeavouring to answer Member's questions and I look forward to hearing the views of all Members, especially perhaps, those Members who have come to this debate genuinely undecided on how they will vote today. I hope that they find the proposition has given sufficient detail to feel that they are able to take an in principle decision in favour of this change and to work with P.P.C. bringing forward the next phase of the work. We have recommendations from 3 independent reports. We have clear democratic standards to aspire to and there are numerous potential advantages for our Assembly and other public institutions. Whatever the result of this debate today it will not go away. We must continue to reform and enhance our public institutions so that they meet democratically international standards so that they work and perform for the benefit of the whole of our community. This is not revolution. This is meeting current standards today and into the future and there are many benefits to be derived from it. We will have to make the change carefully but it is right that today we make the decision to change and

I urge Members to think and consider carefully before they cast their vote.

The Greffier of the States (in the Chair):

Is the proposition seconded? [Seconded]

3. Elected Speaker and Deputy Speaker of the States Assembly: selection and appointment (P.84/2017) – third amendment (P.84/2017 Amd.(3))

The Greffier of the States (in the Chair):

We move on to the third amendment, lodged by Senator Bailhache , and I ask the Greffier to read the amendment.

The Deputy Greffier of the States:

Page 2 paragraph (1) - before the words "to agree that -" insert the words "subject to paragraph (3)." Page 3, paragraph (2) - for the full stop at the end of the paragraph, substitute a semi-colon. Page 3, new paragraph (3) - 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 of whether the Bailiff should 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."

2.3.1 Senator P.M. Bailhache :

I should like to begin by making the usual declarations of interest. The Bailiff is my brother and I held the office of Bailiff between 1995 and 2009, neither of those facts affects or influences me in the slightest. I am concerned only with what is in the best interests of Jersey, as I see it. I should also like to say that this is not a wrecking amendment. That unjustified accusation was levelled against me on a previous occasion. The amendment is brought because I believe it should be

brought, as I will explain. I am, however, going to adopt a different stance from the one that I took on an earlier occasion when the Constable of St. Helier brought a proposition and when I voted against the Constable's proposition, even though it had been amended by my amendment. If this amendment is adopted, as I hope it will be, I shall vote for the Chief Minister's amended proposition. The reason for that is that in many respects I agree with the Chief Minister's remarks about the intensity of the debate increasing. I think that the constant sniping at and criticism of the Bailiff 's position as President of the States is beginning to undermine the office itself and to destabilise one of our important institutions. So I, as I have said, am going to vote for the Chief Minister's proposition if it is amended because I think it is time a final decision was made. That decision can only be made by the States but with the consent of the people. I am going to be fairly brief in moving the amendment because the arguments in favour of a referendum on this important constitutional matter have been substantially set out in my report, which I hope that Members will have had the opportunity to read and to reflect upon. Is it a political issue, as suggested by the Chief Minister, or is it a constitutional issue? It seems to me blindingly obvious that a change to our constitution, particularly a change to a position which has endured since the States Assembly came into existence in 1524, must be a constitutional matter and that, in fact, is what the law states. Article 2 of the States of Jersey Law 2005 states, and I quote: "The States of Jersey are constituted as follows, a Bailiff , a Lieutenant Governor, 8 Senators, the Connétable s of the 12 Parishes" and so on. When it was proposed to remove the Senators from the States we had a referendum. When it was a question of whether the Connétable s should remain in the States by virtue of their office we had a referendum but when it comes to the Bailiff , who has been in the States for 400 years or more, and centuries longer than the Senators, it is apparently all right to remove him without asking what the people think. Would we take the same view with His Excellency? Would we remove Her Majesty's personal representative from our Assembly without asking what the people think? I sincerely hope not. The same principle applies to Her Majesty's Bailiff . It is a constitutional issue. The truth is that many of those who oppose this amendment really do not want to know what the people think. The unspoken message is that the views of the public are irrelevant and that is not my approach. With any important constitutional issue the public is entitled to have a say. This is a principle which is not unique to Jersey. The United Kingdom Government took that view in relation to leaving the European Union and as to the question of whether Scotland should become an independent state. That is democracy, whether one likes it or not. I do not think that any

Member who votes against this amendment can truly call himself or herself a democrat. [10:45]

Senator Ozouf is a Member of many talents but when he has a bee in his bonnet about something, and he has dozens of energetically buzzing bees in this particular bonnet about the Bailiff 's role, he forgets about democracy. He does not want to risk knowing what the public thinks about the proposal to remove the Bailiff from the States. During one of the senatorial hustings before the 2014 election he tried, very properly I would say, to raise the issue with the public and I remember it well. He got, in fact, no support from his audience and he dropped it like a hot potato. Now, of course, things may have changed, I accept that. The public may very well now have a different view but we will never know unless we ask them to express their views in a referendum. I hope that the Chief Minister will deal with the issue of democracy when he speaks on this amendment too. After the last elections the Chief Minister asked me to go and see him and asked me whether I would continue as Minister for External Relations. I said that I would like do so but that we were divided on the question of the Bailiff 's role and was that a problem? His response was that the electoral campaign had shown that the public had no appetite for change and that so far as he was concerned it was a matter for the future but not for this term. Now, of course, the Chief Minister is entitled to change his mind. I would not suggest otherwise. But I would like to know whether he now subscribes to the Senator Ozouf view that the opinion of the public does not matter or does he believe that the public is in favour of change and, if the latter, what is the basis for that change of opinion? Some Members may think that the election of a Speaker is an internal matter for Members and in a sense so it is. If it were simply the political issue of whether the Speaker should be the Bailiff or an elected Member it would be an internal matter for the States but removing the Bailiff from the States is not such a simple matter because he is not only the President of the States but he is also the chief citizen, the Chief Minister has spoken a bit about that, and guardian of the Island's constitutional privileges. Those 2 issues turn what might otherwise have been a straightforward political matter into a constitutional issue. I set out in my report why I believe that contrary to the views expressed by the Chief Minister the Bailiff would not long remain chief citizen. It is a view which is shared by my predecessor as Bailiff who gave evidence to the Carswell Commission to that effect. I will not, however, go into those matters now. They might return to them in the context of the debate on the Chief Minister's proposition. The issue of the guardian of the Island's constitutional privileges is very relevant to the question on whether or not this is a constitutional issue and there should, accordingly, be a referendum. I am not clear where the Chief Minister stands on the issue of the Bailiff 's role as guardian of the constitution. I do not personally think it will be possible for the Bailiff to exercise that function if his connection with the States Assembly is severed. Even if he were to return on Liberation Day, and why on earth should he return on Liberation Day, to preside over the Assembly? It does not seem to me that there will be any longer any connection with the States. So the Bailiff will not know what is going on in relation to the United Kingdom and the relationship with the U.K. and what is going on in Whitehall because there will be no opportunity to find out. Presumably his oath of office will be changed to omit to the reference to protecting the privileges and freedoms of the Island. So who, in the absence of the Bailiff , is going to do it? Will it be the Attorney General? What would then happen if the Attorney was newly appointed to the role and had no experience of the constitutional relationship? As both law officers are usually appointed at the same time, or more or less the same time, they could both easily be in the same boat. A great advantage of having the Bailiff as guardian of the constitution is that he has had years of experience of the constitutional relationship and how it works in practice from his time both as a law officer and later as Deputy Bailiff and Bailiff , and of course he is a constitutional lawyer. So will the Chief Minister himself become the guardian of the constitution? If so, how is he or she going to acquire the knowledge and experience that will enable him or her to undertake that role or are we going to rely upon the top civil servants who are, however talented, usually from England and without any longstanding feel for the constitutional relationship. We need to know the answers to those questions. The Chief Minister has elaborated very considerably on his proposal but, as I said in my report, there is one very substantial omission and it relates to the role of guardian of the constitution. The answers to these questions underline the fact that whether or not the Bailiff remains the President of the States is a constitutional issue and not a political issue and the States should not change the current position

without knowing that they have the consent of the people. I move the amendment.

The Greffier of the States (in the Chair):

Is the amendment seconded? [Seconded]

4. Elected Speaker and Deputy Speaker of the States Assembly: selection and appointment (P.84/2017) – third amendment (P.84/2017 Amd.(3)) – amendment (P.84/2017 Amd.(3).Amd.)

The Greffier of the States (in the Chair):

We now move on to Senator Ozouf 's amendment to the amendment and I ask for the amendment to the amendment to be read.

The Deputy Greffier of the States:

Page 2, amendment 3, for the proposed new paragraph (3) substitute the following - "(3) paragraphs (1) and (2) shall be void and of no effect until 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, takes place and shall not be implemented if the result of the referendum shows that a majority of registered voters have voted for the Bailiff to remain President of the States."

1. Senator P.F.C. Ozouf :

I, yesterday, was interviewed on why I brought forward my amendment to Senator Bailhache 's amendment and indeed there was media coverage yesterday also in one online publication about my amendment which said: "Goodbye, the Bailiff ." The interviewer that I was interviewed by in the Royal Square started the discussion and indeed was a journalist, I think who had been in Jersey for some time, started the interview by saying to me: "So you are removing the Bailiff ." Now, both of these examples, and both of these examples from yesterday, are very relevant to whether or not the question of a referendum is .. without in any way describing and suggesting that we cannot have a referendum does really emphasise and explain the point of, can we have a rational and detailed debate on the issue of Bailiff and what the Bailiff will be, because the emotional arguments and all decisions to vote are apparently made on emotion, with the basis of fact, is that we will have a referendum that will be characterised by people to say that we are effectively saying goodbye to the Bailiff . In one of the media responses to my proposition yesterday I stated that it is not goodbye to the Bailiff , and this is directly relevant to the amendment that I am seeking to make. Senator Bailhache 's position is clear. He does not want to see the removal of the Bailiff from this Assembly and I respect and understand that. He discharged the functions of the Bailiff when I was a Member and did so extremely well. He did so in a time before the introduction of ministerial government. Constitutions - and he made reference to previous referenda - evolve and have constantly evolved since the position of Bailiff was created. Perhaps it was in 1066. Perhaps it was in subsequent years. When the position of Bailiff was originally conceived the world was different. The Royal Court was the Legislative Assembly. It was in a world where the Monarch did not, whether or not it be King Rollo, the Duke of Normandy, the Kings or Queens of England and their successors, had not delegated their powers to a parliament. The origins of the legislature of Jersey, as explained by Senator Bailhache , were in fact and must be importantly relevant to this debate and whether or not it is the right thing to have a referendum, and particularly what Senator Bailhache 's underlying proposition seeks to do, and correct me if I am wrong, it proposes to have, effectively what I understand, a binding referendum which is effectively something that goes above and beyond that of previous referenda that have been held in Jersey and has no tests associated with it. If I may just ask the Greffier for a copy of my proposition in written form that I am going to just refer to rather than .. because my iPad because keeps breaking down. I am extremely grateful. There has been, and my report sets out, referenda held in other places. The Senator referred to the importance of referenda in the Scott ish debate, in the recent Brexit debate. He referred to the referendum that was held in 1947 or perhaps 1948 when the Jurats were removed and he says for that reason we must have a referendum on the issue of Bailiff . Now, I am yet to be persuaded that a referendum is needed. I am not sure that it is such a constitutional issue so much as a democratic issue but the proposition of Senator Bailhache , even if you agree or not with the referendum, comes with no tests to be met. None whatsoever. There is no test of turnout. It is binding and the proposition of the Chief Minister will be null and void if a majority of people voting vote in favour of the referendum question in the affirmative of the removal of the presiding officer. Jersey has low voter turnouts. There has been a live debate in the U.K. as to whether or not the Brexit referendum should be effectively adopted notwithstanding the fact that a majority of people in the United Kingdom voted in favour. That was a clear referendum. Okay, the debate was largely inflamed and on both sides of the argument arguments were put that were largely emotional and

everybody looking at that referendum would question whether or not the arguments were valid.

[11:00]

But the fact remains is that it was advisory and indeed the U.K. Parliament .. the Prime Minister yesterday had said the final decision on Brexit will come back to this Assembly and I have made another proposal, which I believe is in time, that the final decision of the adoption of any Speaker after the P.P.C. amendment should come back to the States only after the next election. So Members effectively have a palette of choices. They have a choice to put some strictures on the referendum. I wished there to be, and I am sorry that Senator Bailhache thinks that there are lots of buzzing issues and wasps or otherwise in my head. [Interruption] Bees, yes, bees. I am not sure what the difference is between bees and wasps, yes. Well, obviously there have been some bees in my head. Perhaps I must not be waspish today, must I? Yes, I do have a bee in my bonnet but we will come to that at the Christmas Party. [Laughter] The fact is .. which will not be televised I hope. I cannot see Deputy Labey here at the moment. I wanted to put in for the avoidance of doubt but was ruled out of order, and I accept the rulings of the Chair, I wanted .. but I have put in the appendix to my proposition. I do not want not to hear the people of Jersey and what they think, I say to Senator Bailhache . I want to hear what the people of Jersey think and if I may remind him most respectfully he says that I raised the issue and quickly dropped it in the last election. It was in Trinity that I raised with the Chief Minister the issue of Bailiff . If I may just say I was returned in that fine Parish of Trinity not with quite the same eighth position as some of the other candidates, so clearly the voters of Trinity knew exactly what I was proposing. I did not drop it. That is absolutely incorrect. My position on this has been clear from the start. I wanted to adopt Clothier; that removed the Bailiff . I have been a tireless supporter of various different attempts to try and get .. including the issues of Senator Bailhache in terms of reform of the States. I am afraid the good parishioners of Trinity afforded me 618 votes and that was not far behind the amount of votes that the good Senator had himself. Indeed I think I can ..

The Greffier of the States (in the Chair):

Senator, I think move on, back to the amendment rather than .. Senator P.F.C. Ozouf :

Fine, okay, fine. Just the point is: it is not fair to say that it was dropped like a stone. That is not right to say and I reject that argument made by Senator Bailhache . Now, Senator Bailhache also says because there was a referendum held in 1947 there must be a referendum held. Now, that referendum in 1947 was not the only referendum that has been held and did not .. was advisory, was not compulsory and was effectively up to the States to approve afterwards. It was not binding in the way that Senator Bailhache is proposing. There have been other constitutional changes which have not been the subject of referenda of a binding nature in this Island. The increase of Deputies in 1854. The Senator went on in his remarks to speak about the various evolutions over time but I mean I could also say to Senator Bailhache that effectively there was no referendum in 1854 when the amount of Deputies was there. I would also draw the attention to the Assembly that in 1947 that referendum was very much about elected representatives. It was the removal of the Jurats and the creation of the Senators. That is a democratic issue. It was not like effectively a constitutional matter. It was a democratic issue. Now, for me there is an important issue. This is a democratic issue. It is for democratic members of the Assembly to make this decision. I was not able to remove the words "null and void". I am hugely perturbed by this. I am hugely concerned about the null and void and binding referendum particularly with the knowledge that effectively we have such low voter turnout. What are we to have? Are we to have a referendum with a turnout of 30 per cent on an issue that is going to be emotionally driven? Driven by a media that will say, and I cite in evidence, the 2 stories yesterday: "Goodbye to the Bailiff ." Are we going to have an emotional debate pulling at the heartstrings where people do not understand? No, I wanted to put the additional stricture that if we are to have a referendum, it must be accompanied by a meaningful

and informed campaign of public information, which should incorporate the provision of independent information on the role of Speaker as well as holding of hustings and deemed appropriate focus groups in order to engage with the maximum number of Islanders. If this amendment is successful, and I hope it will be, then that can come certainly later, because the worst thing we need to do is to have simply a referendum on a question which people will not understand the issue they are voting on. Votes are based upon emotion. If it is going to be a referendum without any test of turnout and it is going to be illegitimate, then how can we say that that is democratic? My amendment, not perfect, I fully accept, is certainly better than having an unamended proposition. Apparently I was not able to remove the words "null and void" but effectively it should be for a majority of registered voters. At least that would mean that there is effectively a test of legitimacy as to whether or not it is going to be binding. The mover of the unamended proposition has not really given any justification as to why this amendment should be binding, has no tests and has given no reasons why there is not a good reason to vote in favour of at least putting some sort of stricture on the binding referendum which we are to decide. Referenda have their place. They have their place on important constitutional issues, they have of course a role on membership of the European Union, Scott ish independence, et cetera, but on an elected Speaker, I am doubtful. If we are to have one, then there should be at least a test of legitimacy. That is the purpose of this amendment, because if we do not have some sort of test of legitimacy, I seriously worry that we will not have a proper debate and that we will be put into a position which almost means that the will of the Assembly .. and I think that the issue of the elected Speaker being the elected Speaker's Assembly Speaker and not, if I may say, the people's Speaker, because they are unelected, they are imposed upon us, issues not only of the separation of powers are relevant and I think that it is extremely difficult to hold a referendum on that. I have done my best to try to put some controls in place and to make it democratically safer than unamended. I ask Members to, on that basis, at least support putting in place a test, not the most ideal test. Yes, we can put some further strictures in later with a campaign, but certainly unamended I think it is simply completely

unacceptable. I move the proposition.

The Greffier of the States (in the Chair):

Is the amendment seconded? [Seconded] Constable of St. John , it is your turn.

2. The Connétable of St. John :

I have heard a most frightening speech. If I read about the proposed amendment to the amendment, that a majority of registered voters I have been thinking through the last election and I do not think anybody sitting in this Assembly having achieved a majority of the registered voters in their district. On that basis, none of us would be here. Senator Ozouf went on to say: "If a majority of the electorate" and I will repeat that: "If a majority of the electorate voted in favour of keeping the dual role, then the Chief Minister's proposition would be nullified." Oh dear, perhaps we should not listen to the people we represent. We are, after all, their servants and I am sure that the Chief Minister himself would be the first person to say that we are here to serve the people of Jersey. The Senator went on: "How can we say it is democratic when the public are voting on a subject they do not know about?" Oh dear. How dare he turn around and say the people who democratically elect us do not know what they are voting for? Although I am prepared, in his particular case, to make an exception. This is very clearly, I believe, an attempt to derail what is a necessity. There is no doubt whatsoever that this is a constitutional battle. It has been clearly shown to be a constitutional matter and it should therefore go to a referendum. Anyone who is opposed to a referendum on this subject is putting himself above democracy, because at the end of the day, it will be decided democratically and no one can argue against that.

3. Deputy S.M. Brée of St. Clement :

It is a great pleasure to follow the Constable of St. John, because he has picked up on a number of areas that I think we need to just look at. This is the amendment to the amendment. It is a very clever amendment, because on the one hand it says we have to have a minimum number of people agreeing, but as the Senator well knows, previously general election turnouts have been below, on average, 40 per cent. By bringing this amendment to the amendment, the Senator knows full well that it is highly unlikely the bar he is setting will ever be reached. It then raises the question, why? Why has the Senator brought this? Because essentially I believe the Senator is against a referendum of any kind. Surely the question we and the public have to ask ourselves is why? Why has the Senator set the bar so high that it is highly unlikely it would ever be reached? Therefore I would urge Members to just reject this amendment to the amendment and get back to the important debate, which is on Senator Bailhache 's amendment as to a referendum.