In September, the States Assembly will have it's first opportunity to vote on one of the recommendations of the Independent Jersey Care Inquiry when it debates P.62/2017 lodged by Deputy Tadier to split the dual role of the Bailiff and allow the States to elect it's own Speaker.
In fact, not only will it be a chance to adopt a recommendation from the £23m ICJI, but also to adopt some of the recommendations of the Clothier Review and the Carswell Review, all of which have said that Jersey needs to introduce a Separation of Powers if it has any hope of meeting modern democratic standards.
The IJCI said that this had to be considered as part of a deliberate drive to eradicate the perception of the "Jersey Way" which has been prevalent in our community for decades, where many people distrust the Island's "establishment" and believe it acts only to perpetuate their own self interest at the expense of the vulnerable.
So, without a hint of irony, in the run up to this debate, the Bailiff William Bailhache, has written to the Chief Minister in an attempt to perpetuate his own self interest by trying to influence his conduct in this upcoming debate.
The full letter can be read from page 6 here - http://www.statesassembly.gov.je/assemblypropositions/2017/p.62-2017com.pdf
The key paragraph reads -
"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."
Let's put that in simple English - an unelected judge (and supposedly impartial Speaker) has written to an elected Chief Minister to instruct him to disregard the evidence and findings of a £23m Inquiry whilst pursuing his policies.
This is absolutely unacceptable in a democracy.
Of course William Bailhache is entitled to his opinion as an individual, but as our Speaker, he is not entitled to use his position to influence our elected politicians. In doing so, he has shown himself to be unfit to hold the office he does, and has shown how absolutely imperative it is that the States votes to relinquish him of these responsibilities.
He has epitomised the Jersey Way that Francis Oldham QC had criticised in the ICJI report.
If John Bercow (Speaker of the House of Commons) did something like this, he would be expelled by the afternoon.
The full letter is an illuminating read.
In the letter, Bailhache attempts to explain why there is no problem with the dual role of the Bailiff and makes an argument which is not only poor, but is just plain weird because of how illogical it is.
He says -
"The system which we have, for the record, does not come nearly as close to breaching the rules around the separation of powers as did that in the UK as recently as 2005. There, the Lord Chancellor was not only a member of the judiciary and the legislature, but also a member of the Cabinet with executive responsibilities."
Spot the problem with this argument?
He refers to a situation WHICH DOESN'T EXIST ANYMORE.
How on Earth does a Bailiff consider it a good argument to compare Jersey to a bad system which no longer exists and was deliberately changed by the Constitutional Reform Act 2005, to split the multiple roles held by the Lord Chancellor?
2017 Jersey may well be better than pre-2005 UK. But the UK accepted this was wrong and now 2017 UK has a better system than 2017 Jersey. That surely is a demonstration that we are too slow to reform ourselves and that there is a problem with the current system.
He goes on with -
"Dicey, that great English constitutional lawyer of the 19th century did not regard that position with disfavour."
Now, every person who has studied law has heard of Dicey. He was no Lord Denning (#legend), but someone we were all taught about. His main work 'Introduction to the Study of the Law of the Constitution' was published in 1885.
William Bailhache is arguing that the lack of separation of powers is okay because some bloke wrote 132 years ago that it wasn't a big deal.
In fact, not just some bloke. Dicey was a staunch anti-democrat.
He opposed every single proposal to offer Ireland more autonomy from the UK (and many have paid with their lives in the conflict which that attitude helped create) and he was a staunch opponent of women's suffrage.
I really don't think that it's a wise argument to reference what an anti-democrat wrote 132 years ago to justify the dual role of the Bailiff in 2017.
"It is right also to add that my own experience is that there are a number of very senior thinkers in the United Kingdom, including senior judges, who do not regard the constitutional changes of 2005 with favour."
Because judges are of course well known for being beacons of progressivism!
"They have led to a hard edged angularity which is unhelpful, as was witnessed by the failure of senior politicians there adequately to defend the judiciary against the disgraceful attack by some part of the media (describing the judges as "Enemies of the people") following the decision in the administrative court on the lawfulness of the government's proposed Brexit strategy."
Now, when he says "senior politicians", what he should mean is the hard-right, Brexiteer Tory MPs who are so hell bent on leaving the EU that they don't care what it does to the British economy or what impact it has on British democracy. Labour politicians were at the vanguard of defending the independence of the judiciary throughout that process, and they cannot be lumped in together with right-wing politicians who were blinded by their extreme agenda.
But the example of the Supreme Court ruling on the lawfulness of the government's Brexit strategy is actually a very helpful one for those who support the separation of powers.
The government led by Theresa May and packed full of hard Brexiteers like David Davis and Boris Johnson believed that they had the right to unilaterally trigger Article 50 and begin the process of withdrawing the UK from the European Union. A member of the public disagreed and challenged this in court, arguing that as Britain's parliament is supreme, Article 50 could only be lawfully triggered after a vote in both Houses of Parliament. The government challenged this view at every step along the way (costing the taxpayer a pretty penny in the process).
The British courts, including the most senior court of the land, ruled against the government and hugely embarrassed them by forcing the Prime Minister to tear up her plans and go down a different route instead.
The Supreme Court of the United Kingdom defended the principle of parliamentary sovereignty and upheld British constitutional law by stopping a government dead in their tracks and forcing them to change their illegal plans.
That was a true example of what an independent judiciary can do to a government which is abusing its position and acting ultra vires.
How does William Bailhache think that the pre-2005 courts could have possibly dealt with this situation any better, when they would have been headed up by a member of the government which was prepared to act illegally?
It is an argument which is so illogical and unnecessary, that it only seeks to highlight the importance of Jersey reforming its constitution to ensure that the public can be truly secure knowing that their judiciary exists to defend their rights and uphold the rule of law, no matter what the whims of a here today gone tomorrow government may be, and which will not be subjected to undue political interference, or vice versa.
I'm optimistic we will get there sooner rather than later and I am certain that the letter from William Bailhache will have the exact opposite effect he intended.
