STATES OF JERSEY
Bailiff of jersey: investigation into dual role
Lodged au Greffe on 20th March 2008
by Deputy P.V.F. Le Claire of St. Helier
STATES GREFFE
PROPOSITION
THE STATES
are asked to decide whether they are of opinion -
(a) to agree that the advantages and
disadvantages of ending the current dual roles of the Bailiff and Deputy
Bailiff as members of both the Legislature and the Judiciary should be
investigated; and
(b) to request the Chief Minister, in
consultation with the Privileges and Procedures Committee and others as
appropriate, to report to the States on the constitutional and practical
consequences of any such change to enable the States to hold an informed ‘in
Committee’ discussion on this matter before any recommendations for change are
brought forward for debate at the earliest opportunity but no longer than 6
months from agreeing to do so.
DEPUTY P.V.F. LE CLAIRE OF ST. HELIER
REPORT
I would ask members to consider the value of an ‘in
Committee’ debate on this issue with full knowledge and background reports of
the issues involved, prior to there being agreed a date for a debate on the
removal of the posts by an elected member, that may ask our approval for a
debate on this prior to that knowledge being collated and widely disseminated.
I would like the States to decide whether or not they
believe that the time has come for there to be a separation of the dual roles
of the Bailiff and Deputy Bailiff as President and un-elected Speaker of the
States and as the most senior members of the Judiciary, or whether they are
content to remain with the status quo.
What are the
alternatives?
There is, of course, probably no end to alternatives,
but some international examination on the comparative jurisdictions within a
democratic framework can be easily undertaken I am sure.
It might be that in the future one alternative would
be that the President and Speaker of the States of Jersey would be distinct, in
that the President may be an elected member such as the Chief Minister, and the
Speaker could be the Greffier of the States; but that all follows the initial
principle being agreed.
It might be possible that, in the future a separate
system will have consequences in recruitment for the posts and the financing of
them also, and these need to be understood as well.
What is absolutely certain is that there have been
repeated concerns about the need for States members to understand the
constitutional implications prior to making any decision on change.
What are the
issues?
Is a Bailiwick without a Bailiff still a Bailiwick? Is
our position as a Crown Dependency peculiar due to the Crown appointments? Do
the Crown appointments give the U.K. any hold over our jurisdiction that might
bar any further progressions in establishing our own unique identity?
It is obvious that these questions and many more need
to be answered prior to any decision being made, as we would not want to cause
a crisis in the Presidency of the States or the Courts.
What are the
dual roles?
It is important to note that the Bailiff has three
clear and distinct roles and functions within the community which need to be
better understood in terms of replacing or changing these. In practice these
three areas are –
1. The
States.
2. The
Courts.
3. The
Civic Duties.
All of these and any others not here identified need
to be better understood, in particular by States members, as it is no longer
satisfactory that the issue is just dismissed out of hand whenever it is
raised, due to the call for the need to be cognizant of the so called “far-reaching
constitutional implications.”
Some of these may be far-reaching and some will
certainly not be, as with, for example, issuing entertainment licences and
governing the States at Question Time.
Issues which relate to our constitution need by
definition to be well understood by our community, and more importantly
agreeable to our community.
The U.S.A. have for hundreds of years put great store
in their Constitution and make it a point of education for students and
immigrants: we should do the same. At this time it is not possible to explain
them and it has never been an option to agree with them or not because they are
not known by the Public generally. If they were, then it might be possible to
go on the States websites and download all the issues as they are.
In the future it may be possible that the President
and Speaker may be elected from within the community by the States members
themselves. It might also be possible for the Chief Justice to continue to be
an appointment of the Crown.
Whether or not final legislation or decisions are made
of this kind is a matter for further debate and consideration. In proposing we
debate the principle at least then we have done that, if nothing else.
I would like to make it known, for the record, that
this proposal has not been tabled as a criticism of the current post-holders of
the Presidency of the States – the Bailiff of Jersey, Sir Philip Bailhache,
or the Deputy Bailiff, Michael Birt, for whom I have the highest regard, as I
am sure members agree.
This debate will engage us, no doubt in some large
degree, with the intricacies of law and the application and practicalities of
such a change.
I do not therefore intend to draw up an extensive
report at this stage; but request that the Chief Minister and Privileges and
Procedures Committee, having enquired and researched the issues with the
manpower and resources available to them, submit a paper without delay on what
is already known, or make a statement in the house as to its intentions in this
regard.
Given this approach, I will submit a further question
to the Chief Minister and the President of PPC in this regard without delay so
that we will be in a position to know their intentions in this regard.
The questions as approved with their answers are
tabled below. As members can see, the PPC, although having been questioned
about this during several constitutional debates by myself and others in
debates far preceding these events, had actually done and have continued to
choose to do nothing.
Their answer is what one would expect, it is the usual
one that prevents debate even in principle upon these matters.
In my view it is time we knew what the “far-reaching constitutional
consequences” are.
I hope members agree that an in Committee debate will
enable us to know.
The meeting that has been postponed now on a number of
occasions for a briefing has not, understandably, happened yet. I was
instrumental in calling for this and I hope that it will be possible for us to
have it before much more delay.
“TUESDAY,
29th JANUARY 2008
Question
Does the Privileges and
Procedures Committee plan to begin a consultation process regarding the Review
of the Machinery of Government in relation to the non-elected members of the
States?
Answer
The recent review of the
machinery of government reforms, on which the Privileges and Procedures
Committee has already reported (R.105/2007 refers), had detailed terms of
reference and looked at the changes that had already been made. The Committee
is currently consulting on the recommendations made.
The review into the
composition and election of the States Assembly was a separate piece of work,
and the Committee was disappointed that following lengthy consideration, no
changes have been made in relation to the composition and election of elected
members.
The Committee has no plans
to review the role of non-elected members in the Assembly. Any review of
non-elected representatives would have far-reaching constitutional consequences
and would not be a matter for the Committee alone.”
Financial
and manpower implications
The immediate reports to undertake the outline of work
necessary are, I believe, within the budget abilities of the States. I believe
that it may be necessary for extra manpower to be used in drawing up the
reports, but I am not privileged to know them at this time or the desire or
otherwise of the Chief Minister and Privileges and Procedures Committee to
address them at this time. I am informed that a lot of reports and work on this
subject have already been tabled with Policy and Resources and its successor
the Council of Ministers. It is time we all saw them.