By Jennifer Bridge
The Constable of St John, Andy Jehan has decided to withdraw his proposition to replace the Bailiff as President of the States Assembly with an elected Speaker and Deputy Speaker. No doubt he has taken soundings and realised that the debate was lost before it began. It is true that this proposition did not arise from a groundswell of public opinion pushing for changes to the machinery of government (as there was in the 1990s) but I suspect, from taking an opportunistic window for debate provided by the current Bailiff giving significant notice of his retirement date.
The proposition is not without precedent. Three formal reviews in recent years have recommended that the Bailiff should no longer be the President of the States Assembly: The Clothier review on the machinery of government in Jersey (2000), the Carswell review of the Crown Officers (2009) and The Independent Jersey Care Inquiry (2017).
Prior to the publication of the Clothier Review, the then Bailiff, Sir Philip Bailhache, wrote: “The removal of one of the Bailiff’s principal functions would involve a schism [my emphasis] unprecedented in 800 years of constitutional evolution.” However, as former Deputy Dr Roy Le Hérissier stated in his 1972 doctoral thesis: “From 1771 to 1940, the States slowly detached themselves from the influence of the Royal Court.” Is separation of powers really a schism or an inevitable evolution as our democracy matures?
The proposed removal of Bailiff as Speaker (but keeping him or her as Chief Citizen) can be found in the Report of the Review Panel on the Machinery of Government in 2000. This recommendation was quickly dropped by the then Policy and Resources Committee, which perhaps was keen to get the main recommendations on the new executive system of government through the States Assembly without distraction. Perhaps on that occasion, they felt that the chicken did need to come before the egg and that having the new executive was structurally necessary before any reforms could be made to the roles of the Crown Officers.
Sir Cecil Clothier said in December 2000: “Indeed it is only in Jersey and Guernsey that one finds this most unusual arrangement whereby the Speaker of the Island Assembly and the chief justice are one and the same person.” We have a situation unknown elsewhere (save for Guernsey) where the Bailiff could preside over the debate of a proposition for a law, speak outside of the States on the issue the law addresses, making his or her views public, and then preside over a case in the Royal Court covered by that legislation.
There is comfort and assurance to be found in looking elsewhere; there are notable similarities in the role of Speakers in Commonwealth small jurisdictions and in British Oversees Territories: impartiality is paramount, Speakers are elected by the Assembly as a whole, the office is not held with any other, the Speaker may or may not have legal qualifications, the Speaker is the servant of the Assembly and defender of its roles and privileges.
On reading some negative comments about this proposed change, I am reminded of the argument used in 1948 against removing the Jurats from the Assembly and replacing them with Senators. The concern was that they would not find twelve men (sic) of standing to replace them – but of course, they did.
It is possible for the Bailiff to be divested of the role of Speaker while remaining guardian of the constitution. His or her oath of office is clear on this, and as Deputy Bailiff Robert MacRae wrote in the Jersey and Guernsey Law Review in 2020: “The Bailiff has an important function, as enshrined in the oath of office, to ‘uphold and maintain the laws and usages and the privileges and freedoms of this Island and that you will vigorously oppose whomsoever may seek to destroy them’. The oath of office is contained in the Schedule to the Departments of the Judiciary and Legislature (Jersey) Law 1965 and will be unchanged by the introduction of an elected Speaker.”
Much has been vested in the wording of the oath of office but, as an aside, it is worth noting that the States Members’ oath is somewhat similar in intent, “that you will uphold and maintain the laws, privileges, liberties and franchises of Jersey, opposing whomsoever may wish to infringe the same”. Even the Advocates’ oath states “….vous opposant à quiconque les voudroit enfreindre”. So the Bailiff is not alone in his defence of the constitution.
While I believe an elected Speaker is a logical step in the separation of powers based on the Commonwealth Latimer House Principles on the three branches of government, I agree with Sir Philip Bailhache where he stated in his 1999 article, “The Cry For Constitutional Reform – A Perspective From The Office Of Bailiff” that it is “inconceivable that a Bailiff could remain the Island’s Chief Citizen if he were not the President of the States”. As we mature as a democracy with an increasing international personality, the logical conclusion is that the reforms that began in 1771 must be completed, and that leadership must come from the executive. However, the current model of government does not provide the mandate for the Chief Minister to be the Chief Citizen. The Chief Citizen must have the confidence of the public.
Logically, if the Chief Minister is to become Chief Citizen, then I think direct election for this role must be considered, with the public understanding that whomever they choose will have important public and ceremonial duties such as receiving royalty and prominent visitors, leading Liberation Day and Remembrance Sunday.
I hope that a proposition for an elected Speaker is not put in the “too difficult” pile. I also hope that changes to the role of the Bailiff might be considered holistically having regard to his or her role as guardian of the constitution, Chief Citizen and senior judge.
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Former States Deputy Jennifer Bridge MBE is a non-executive director and part-time teacher. Outside of work, she is known as an experienced chair in the third sector. She recently stepped down after nearly ten years as chair of Jersey Festival of Words. When not leading community campaigns such as Jersey Assisted Dying Action Group, she enjoys running Jersey Repair café: Grouville group, attending two non-fiction book groups and sea swimming.
