Constitutional Change – How Long Will it Take?

On 26 September 2017 Senator Ian Gorst, our Chief Minister, presented a proposition to that effect. The proposition was carried by 25/21 votes. Implementation was delayed pending a Referendum on the question of implementation.

The proposition for a Referendum was moved by Sir Philip Bailhache, the former Bailiff and brother of the present Bailiff. In the author’s view this was a last-ditch attempt by, what might politely be termed, the old guard to either kick the inevitable implementation into the long grass by relying on ignorance of the true issues (ie the social and economic advantages of constitutional change) and resistance to change ingrained in parts of the electorate.

Ignorance (an absence of accurate factual matrix) is always used as a bad defence to change, we see that in many countries, not just Jersey, most electorates labour in ignorance and votes are often cast for all the wrong reasons.

The mainstream media in the United Kingdom are notoriously partisan in their reporting, reporting which fails so often to grapple with the facts but which pushes emotive buttons in the electorate, for years the “King Makers” (ie the predictors of election results) were so often the popular newspapers, who did and still alternatively promote and denigrate candidates and parties for reasons of their own.

The last English election result was shocking (a surprising swing in favour of Mr Corbyn) in its outcome, shocking because it did not conform with the predictions and was not what the media moguls wanted and because much of the electorate informed itself online and took its own view despite the obviously partisan sensationalistic and plainly unpleasant views expressed by many of the newspapers.

The Brexit farrago has, in my view, come about because the facts, ie advantages and disadvantages, benefits and costs were obscured by rhetoric. Ask most English voters what Brexit means and they will struggle to produce a coherent informed answer, as will their elected representatives. In short, people did not really know what they were voting for. I can see the same thing happening in a Jersey referendum.

Jersey is by definition insular. We are only 100,000 or so people. In my view our only paper, the JEP, is now doing its best but it cannot do better than analogous regional papers. The true rationale for change should be defined by what I might clumsily define as a costs benefits analysis. What are the advantages and disadvantages to the Island as a whole (ignoring the feelings of the incumbents who have a vested interest in the status quo) of the proposed change?

In my view, a view I have held for over 35 years, the advantages of the proposed change are overwhelming, a topic I will refer to in future blogs.

This debate will continue one way or another until the change is made. History and the evolution of mankind is not on the side of the traditionalists.

On 24 July 2017 the present Bailiff wrote to Senator Ian Gorst (Chief Minister) relative to what was then proposed to be a debate in September 2017, pursuant to a proposition then lodged by Deputy Tadier to remove the Bailiff from the presidency of the States (the full text of the letter is at page 6 of http://www.statesassembly.gov.je/assemblypropositions/2017/p.62-2017com.pdf).

The starting point, leaving on one side the fact that we are, in Jersey, some eight hundred years or so, late in debating and implementing the separation of powers is that historically the justification for not altering the position has been that it does not need altering, on the oft claimed basis, that the Bailiff’s political role does not interfere with the discharge of legal functions and that the Bailiff/Deputy Bailiff’s role as unelected and uncontrolled (ie without oversight or accountability), Speaker, does not impede or affect political debate as the Bailiff/Deputy Bailiff are supposedly neutral on all issues.

The Carswell Enquiry’s report “The Review of the Roles of the Crown Officers” http://www.statesassembly.gov.je/AssemblyReports/2010/38785-20056-6122010.pdf built on the work of the Clothier Enquiry. To quote from the Carswell Review in relation to the reasons advanced for retaining the status quo, in which he quotes from the Clothier Enquiry:

“5.10.4 There is no evidence that Bailiffs have exercised or attempted to exercise any political influence.

5.11.1 Clothier’s first reason has some force, but the weight to be placed upon it is a matter on which opinions may vary. It in fact contains two grounds:

5.11.1.1 The first is that the Bailiff exercises political power or influence, and only elected politicians should do that. Those supporting the Bailiff’s present role deny that he exercises any significant political power or influence, since he must operate within the Standing Orders of the States. As against that, a number of respondents have maintained that Bailiffs have in the past exercised something of a political role in the way they have carried out their presiding function and that they have been decidedly influential. There may be some force in this contention, and certainly there seems to be at least a perception in some quarters that it continues to be correct.

5.11.1.2 The second ground is that the speaker should be the servant of the legislature, which can remove him from office if the members see fit. It is standard in most jurisdictions for the speaker or presiding officer to be appointed by the legislature. In that position the speaker is commonly described as the servant of the legislature. What that appears to mean in reality is that the speaker must act in accordance with the standing orders laid down by the legislature. The Bailiff accepts that he must do this and that it is open to the members to amend Standing Orders if they choose. His function is therefore in most respects very little different from that of a speaker appointed by the legislature. The exception is that the Bailiff cannot be removed by the States from the office of President, although it would appear to be possible for them to pass a vote of no confidence in him.

5.11.2 Clothier’s third reason: “The third reason is that the Bailiff in his role as Speaker of the States, makes decisions about who may or may not be allowed to speak, or put questions in the States, or about the propriety of a member’s conduct. Such decisions may well be challenged in the Royal Court on grounds of illegality but, of course, the Bailiff cannot sit to hear and determine those challenges to his own actions” would contain most significance if challenges to the President’s rulings could be readily or regularly brought. It was authoritatively decided, however, in the Royal Court by Mr Commissioner Beloff in Syvret v Bailhache [1988] JLR 128 that rulings of the President of the States relate to the regulation of the internal proceedings of the States, a legislative privilege which is subject to the exclusive jurisdiction of the States and with which the courts cannot interfere. This principle is generally followed in other jurisdictions. The only ground on which legal challenge could be made is one on which judicial review of the ruling would lie. That ground would have to be that it fell outside the legal powers of the President or, conceivably, that it was irrational, ie that no reasonable presiding officer could possibly have made it. Such challenges would be exceedingly rare, and we consider the significance of the reason to be slight.”

I have a well-informed contrary view. Running any form of legal challenge to any act of the Bailiff performed in his political role is fraught with difficulty and expense and is dangerous for the participants and their lawyers “it is simply not an effective remedy, which brings us back to the absence of accountability, and the absence of checks and balance”.

The statement “Such decisions may well be challenged in the Royal Court on the grounds of illegality” is frankly daft.

Many politicians have complained privately about political control being exercised by control over the content of questions, that was at the heart of Syvret v. Bailhache [1988] JLR p188, the Court in effect declined jurisdiction, it was of course a Court the president of which was the Defendant even if he was not sitting on that occasion. Any appeal from the Royal Court would have been heard by the Court of Appeal of which the Bailiff is President even when not sitting.

The Fundamental Problem

In simplistic terms, whilst the law may fulfil a function in relation to the implementation of laws, the whole point of the separation of powers is that the function of elected members is sacrosanct. They are accountable to people, they can be voted in or out of office. Irrespective of the criticisms of how the democratic system actually works, there is some form of accountability and at least in theory the opportunity to elect alternatives more closely aligned to the views of the electorate.

Historically, like the Queen, the Bailiff has been in theory essentially non-political. We are now in the position where the present Bailiff and his brother, a former Bailiff, are in effect leading the charge in relation to the retention of the status quo. The Bailiff has, in the view of many, overstepped the mark considerably. I cannot recall any previous incumbent entering into the political arena in such an overt fashion.

The Bailiff’s letter to Senator Gorst on 24 July 2017 (referred to earlier) is quite clearly an effort to sway political opinion and the content of the debate.

A detailed dissertation in relation to the content of the Bailiff’s letter under question might lead people to say that it is driven by self-interest and that it is inaccurate in many respects but what it unquestionably does is transgress the rule in relation to whether or not the Bailiff, who is unelected, should seek to dictate or influence political policy or political outcomes.

On page 2 we have a recommendation that there should be a referendum; “Some might think that the outcome of such a referendum would be helpful whatever the result – it would silence those opposed to change if the vote was in favour of that change, and it would silence all critics whether in or outside the Island if it were not.”

The first problem is that the Bailiff is advocating a political course of action which is what he should not do.

Secondly, what he says is, in my view, wrong. The notion that a referendum which voted in favour of the status quo would silence critics in or outside the Island is plainly untenable. Both those inside and outside the Island will see it as further evidence of the Jersey Way in action, ie. an absence of democracy, conservatism for conservatisms sake, and a failure to embrace fundamental political and judicial safeguards.

Thirdly, it is clear that the Bailiff does not want reform and that he wishes the electorate and or elected representatives to be aware of his views.

Whatever view anyone takes on the merits, this is an overt political suggestion which I personally cannot recall ever having been made previously in the history of the Island by any Bailiff in living memory.

The worst of this letter, in my view, is that it sought to dictate both to the Chief Minister and to the Council of Ministers what they should say during the debate, namely that they are not to endorse the Care Inquiry’s Recommendation 7.

The final paragraph of the letter in question reads as follows: “I realise that you have expressed the view previously that the dual role of the Bailiff should change and I am sorry that you have never been willing to discuss that either with me or my predecessors. However, in the forthcoming debate, I should be grateful for your assurance that you will not take the line that the Care Enquiry’s Recommendation 7 is a reason for supporting the proposition of Deputy Tadier or indeed for re-visiting the issue of the Bailiff’s role generally.”

To say that this crossed the line is an understatement.

By his actions the Bailiff has destroyed one of the reasons advanced for retaining the status quo. “There is no evidence that Bailiffs have exercised or attempted to exercise any political influence”.