Friday, 1 April 2016

A Squalid Compromise to Please No-one - The Dual Role of the Bailiff

Today the media has reported Chief Minister Ian Gorst's latest bright idea.

Jersey is one of only two places in the world (Guernsey being the other) where an unelected judge also acts as presiding officer of the elected parliament, with the power to deny democratically elected members permission to lodge propositions and the power to instruct them on what they are not allowed to say. We have had two independent reports recommending we abolish the dual role, all of the government's legal advice has said that we may one day open ourselves up to human rights legal challenges if we do not change it and our sister island Sark was forced to change their formerly identical system after the Barclay brothers won a legal challenge against the UK government.

Ian Gorst may have most aspects of his political agenda completely wrong, but he knows that the writing is on the wall for the dual role of the Bailiff and that the Island's reputation is at risk if we persist with an out of date and undemocratic system. Not to mention that when we're £145m in the red, a potential human rights legal challenge is something we can scarcely afford when the solution is right in front of us.

The last time that the prospect of splitting the dual role came up in the States, Ian Gorst lodged comments which were absolute dynamite. If you're into that sort of thing, I recommend giving them a read. They are impossible to argue against -

However he has a big problem - he can't convince all of his ministers.

For some bizarre reason, there are a quite a few States Members whose misinformed understanding of Jersey's traditions leads them to oppose any sort of modernisation to improve Jersey's government system.

Personally, I cannot fathom why politicians who claim to support Jersey's finance industry (an industry which is incredibly modern, forward thinking and which requires constant attention to make sure our regulatory framework matches international expectations) are not prepared to support a government system which matches those expectations.

Senators Gorst and Ozouf get it, but the others are stuck in the 18th Century unfortunately.

So in an attempt to move forward, he has suggested that many of the worries concerning the dual role of the Bailiff could be resolved by simply not allowing the Bailiff to preside over the States when we are debating legislation.

The "logic" behind this is that the fundamental problem with the dual role is that it is wrong for somebody who is involved in the law making process to then be involved in the business of applying the law.

Let's be clear - this proposal suggests moving from a situation where a significant group of States Members are unhappy, some are happy and we defy the internationally accepted fundamental democratic principle of the separation of powers to a situation were all States Members are unhappy and we still defy the principle of separation of powers!

A sensible compromise? Hardly!

For those who believe in the principle of the separation of powers (which in a democratic society should be all of us) this will never be enough. We want Jersey to abide by this principle and this compromise barely moves us an inch in the right direction.

It also doesn't really do what it is meant to do.

The States Assembly actually spends very little time debating pure legislation. Most of our time is spent either in question time where we hold the executive to account, or it is spent debating propositions which are usually in-principle debates which will lead to legislation which tends to go through very quickly (which may actually be a bad thing, but that's a debate for another day).

In practice this would mean the Bailiff presiding over the States for the vast majority of the time and sometimes leaving the chamber for it to be presided over for as little as 10 minutes of business at the end of the session as members merely nod through something uncontroversial.

Which begs the question, what is the point? It would be a lot of effort for virtually no difference.

I also think it is wrong to suggest that the legislation is the key part which causes the problem.

The legislation may be the fine print which actually comes into force, but it usually reflects the principles which are debated in propositions beforehand and sometimes even thrashed out during question time as members question ministers' intentions to draft legislation.

The whole of States Assembly proceedings is part of the legislative process, right from the very beginning. The substantial bit is rarely the actual moment where the final piece is voted through.

But ultimately, the compromise which is being suggested is a waste of time for the simple reason that if a proposition is brought to the States to achieve it, all it will take is one States Member to lodge an amendment to go the whole way and have an elected Speaker (and is no shortage of members who will be prepared to do that) and it will instead become a debate on that, not Ian Gorst's compromise.

So it has no mileage whatsoever and Ian Gorst should just forget about it right now.

I believe that Ian Gorst is showing an appalling lack of leadership over this issue and I know that his refusal to get to grips with it is causing discontent amongst some members who are prepared to simply bypass him and make their own attempt to push forward. This attempt would be doomed to fail, but that failure would be the responsibility of the Chief Minister for not taking action himself.

The Chief Minister's department has already done the work to construct the necessary report to accompany a proposition to split the dual role of the Bailiff and it is even one of the very few political topics that Ian Gorst had a clear policy on when he stood for election.

Ian Gorst should lodge his own proposition to establish an elected Speaker and he should tell his Council of Ministers to back him like he would expect them to over any other issue he had been so forthright about during his election.

Who would choose to resign from his cabinet over such an issue? Most ministers, when push comes to shove, would stay put.

There is of course one exception - Senator Philip Bailhache.

Senator Bailhache wrecked the last attempt to have a debate on the dual role of the Bailiff by lodging an amendment to turn it into a debate on having a referendum on splitting the dual role, rather than splitting the dual role outright.

He is the brother of the current Bailiff and his resignation would be interpreted by the vast majority of observers not as some sort of grand defence of Jersey tradition, but as a defence of his brother and his job. It will simply be too much of a coincidence for many people to come to any other conclusion, whether it is true or not.

On that basis, he is expendable.

Over the past few months, the incumbents have been acting in a way which is so counterproductive to their intention to hold on to this undeserved privilege as long as possible that for people like me it has sometimes almost felt like winning the lottery.

There is scarcely a single Islander who believes that William Bailhache made the right decision in expelling Deputy Tadier from the States for referring to Jesus in a rhetorical way during a debate on stopping cuts to support for disabled people.

When I have explained what happened to both visiting political campaigners/ journalists and even to school children, they have all burst out laughing at how absurd it was.

A few weeks ago I stated during question time that I believe that the way the Infrastructure Minister is handling his outsourcing programme (which is seeing working people facing a prolonged period of uncertainty over their future) is immoral. The Bailiff asked me twice to withdraw that allegation. I refused and said it was an opinion I was perfectly entitled to hold, it was not unparliamentary and I was not prepared to withdraw it. He caved in, but everybody who was listening thought it was wrong for him to have even considered it appropriate to wade in on what was blatantly a political point.

The Deputy Bailiff rarely even attempts to conceal his bias when he presides over the States. He allows ministers (who until recently he acted as their legal adviser) pretty much free reign over what they can say and how long they take to say it, yet will immediately shut down any member who attempts to challenge a minister by prefixing their question with some context. If you are prefixing a question without challenging the minister, he will allow you to say what you want and wait until the end before suggesting that the member could be a little bit more concise in their questions, maybe, if they felt like it.

This has meant session after session where elected members have been denied their right to challenge ministers with supplementary questions on important topics.

As every single States sitting goes by, the breaking point gets closer and closer, and I'm eagerly looking forward to the next occasion these people dig their own graves a little bit deeper.

Disillusionment in Jersey politics has never been higher. It was 70% when I was first elected and it's now 84% (no connection, I swear!) But that disillusionment is not just directed at the government, but also at the States Assembly too (according to the poll).

I believe that part of this stems from the fact we have an apolitical culture in the Island (partially as a result of not having a long history of entrenched party politics like most countries) and our parliament does not have a rich history as an institution of democratic virtue and principle.

The role of the Speaker is not to just be impartial in the chair, but it is to be overtly partisan outside of the chair in support of the institution of the parliament, it's purpose and it's rights and privileges.

We need somebody who represents the traditions and purpose of our Island parliament and goes out into the community to make the case for the institution and to advocate and educate what it is we do and how the public have the power to force us to do it better.

The Bailiff can never perform this role.

When we are a proper democracy, we will begin to rebuild trust with the public in our ability to function as a parliament for the people.

This change is inevitable. So let's get on with it.


  1. Sam

    While I appreciate that you wish to set out the full case on an issue on your blog and that is very useful, many readers are confronted with a lot of stuff, including from social media, when they log on, and, at other times of the day may not have the time there and then to follow stuff through. Would you consider providing a one paragraph abstract at the head of any longer post?

    It wouldn't stop people coming back to it and might even provoke them to stay with it there and then.

  2. Sam.

    Jersey Child Abuse Committee of Inquiry Transcripts Part three ANDREW LEWIS.