The roles of the Bailiff

To advocates of reform, the answer is simple. In the second decade of the 21st century, they claim, the Bailiff’s position is an anachronistic anomaly which must be removed, bringing Jersey into line with other jurisdictions around the world whose parliaments are refereed by a Speaker, often elected from the ranks of local politicians. What’s more, they argue, it is democratically unacceptable for one person to preside over both courts and parliament, the powers of which must be kept separate and be seen to be separate.

Those basic points were authoritatively made in the Carswell Report of 2010 and are at the heart of the latest proposal, this time from St Helier Constable Simon Crowcroft, to remove the Bailiff from the States. With the current Bailiff, Sir Michael Birt, having almost simultaneously announced his retirement date a year or so hence, the time is clearly right for another rerun of a debate which is nothing like as simple as that confident analysis might suggest.

To begin with, the separation of powers argument has validity in a general philosophical sense and in terms of international perception but it should not be taken as a clincher. In reality, the Bailiff has no direct role in the generation of Jersey legislation later to be enforced by the judicial system over which he (and, so far, it always been a he) presides.

On the other hand, the present incumbent and all his predecessors in recent history have moderated the business of the States with a degree of impartiality, understanding and acuity which can only have been reinforced by their experience as senior judges.

It is extremely hard to see where else the States might find anyone to fill the role to anything like the same standard. A current politician, or a retired one? Who seriously imagines that they would be any more impartial? A civil servant? Perhaps, but this is something more than a functionary’s role, or even a judge’s. The Bailiff presides because he is both Jersey’s chief citizen, appointed by the Crown to safeguard its interests, and the guardian of the Island’s constitutional rights and privileges.

It is unlikely that the future postholders could revert to being simply judges and still expect to retain the ceremonial and diplomatic significance of the job without some further and major re-engineering of Island governance.

Mr Crowcroft has some strong points to make but should heed the old adage: be careful what you wish for.