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An important issue that keeps being put into the 'too difficult' drawer

Voices | Published:

By John Henwood

(23583200)

It is 20 years since Clothier recommended ending the dual role of the Bailiff, ten years since Lord Carswell came to the same conclusion and two since the Independent Jersey Care Inquiry reinforced both.

WITH Christmas and New Year festivities a rapidly receding memory, I have been looking back at Michael de la Haye’s excellent short series in December on the post-Occupation reform of the States. A number of issues emerged, including the impact of party politics at that time.

With the exceptions of Reform, which is slowly building a power base within the States, and the failed attempt of the Jersey Democratic Alliance to gain popularity from 2005, party politics made no impact on local political life for 50 years, but it was interesting to be reminded how powerful and effective party politics were in bringing about essential change in the late 1940s and 50s. Of particular note is the fact that the left-of-centre parties failed to gain any traction in post-Occupation Jersey. By contrast, across the Channel the Labour Party, having swept Winston Churchill’s government from power, was busy creating the welfare state.

Here, it was the undeniably right-leaning Jersey Progressive Party, principally comprising businessmen, farmers and lawyers, which led the reform movement and gained political power that lasted long beyond the party itself. Today, we’d probably label the JPP as ‘social democrat’ because, far from a reactionary agenda, its policies included extensive reforms in, among other areas, social services, health and education. After sweeping to power and having achieved initial key objectives, the JPP dissolved itself and there has not been a party with a fraction of its impact since. If there’s a lesson here it may be that a centre-right party with a similar ability to project a vision for a future Jersey might be worth running up the flagpole.

It was interesting too to be reminded that between 1946 and 1948 there were concerted efforts by vested interests to derail the reform bandwagon. The same factor of self-interest shown by some States Members was responsible for continually stalling the Clothier reform proposals. In the late 1940s there were those who predicted that removing parish rectors and Jurats from the States would destroy the honorary system. It didn’t. Surely something to think about for those who predict a similar fate should the Constables no longer have the automatic right to sit in the States.

This year the States will once again consider the role of the Bailiff, an issue that was debated long before the Clothier and the Carswell panels had recommended that the Bailiff should not preside over both the Royal Court and the States and that the roles should be separated. The Privy Council Committee of 1946 took evidence on this issue, as well as the conflict of interest evident in the Jurats sitting both in the States and the Royal Court.

It was over this issue that the Privy Council Committee oddly contradicted itself. On the one hand they were clear that the separation of legislative and judicial responsibilities was a sound principle that should be upheld and consequently they recommended Jurats should not sit in the States. However, they appeared to deny the same principle when seeing nothing wrong with the Bailiff maintaining his dual role. There was no attempt to justify this strange differentiation of position between the Bailiff’s and Jurats’ roles and it seems likely the Privy Council Committee, in making a raft of recommendations that were in themselves far-reaching, simply regarded a change in the Bailiff’s role as too much medicine to swallow in one go.

It’s an anomaly that must be addressed. The principles have not changed since they were considered in 1946. They were reviewed again in 1999 by Clothier, in 2009 by Carswell and more recently (though not part of their remit) in 2017 by the Independent Jersey Care Inquiry. Put simply, those principles are that no one involved in the process of law-making should also be involved in making legal judgments based on those laws; no one should hold political power or influence unless elected by the people to do so; an elected assembly is entitled to choose its own presiding officer.

Michael de la Haye reminded us that in the aftermath of the Second World War and the Occupation of Jersey, the whole process of reform of the States was completed in just two and a half years. Yet it is 20 years since Clothier recommended ending the dual role of the Bailiff, ten since Lord Carswell came to the same conclusion and two since the IJCI reinforced both by stating: ‘While constitutional matters are outwith our Terms of Reference this matter cannot be addressed without further consideration of the recommendations made in the Clothier and Carswell Reports.’

How many more times will this important issue be put in the ‘too difficult’ drawer? It’s time to act.

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