Tuesday, 22 August 2017

An outrageous political intervention from William Bailhache



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.

42 comments:

  1. Sam.

    A good critique of the unelected Bailiff's letter attempting to influence the outcome of a proposition. A further paragraph/sentence from his letter could have been (and should be at the debate) destroyed is this:

    “The link between any so called brushing under the carpet and the judiciary is not just unproven but it is intrinsically illogical. Once issues get to judiciary (that is, to court), they have by definition not brushed under the carpet, because the court sits in public.”

    As we know and Stuart Syvret could confirm (if he isn't subject to a superinjunction) that taxpayer funded "secret" court cases DO happen. Of course by the very nature of secret court cases we can have no idea of how many people have become victim to them.

    The Bailiff's argument is further flawed because not all cases that should go to court do go to court thanks to the Centeniers. The most recent example is the case of (now convicted paedophile) Chris Bacon. Who, in 1985 appeared before a Centenier and reportedly represented/assisted by William Bailhache was able to cut a deal that he retired as a teacher and he won't face prosecution for allegedly abusing minor(s).

    So "they have by definition not brushed under the carpet, because the court sits in public” holds about as much water as a sieve.

    ReplyDelete
    Replies
    1. Sam.

      Unfortunately it doesn't look as if Stuart Syvret is able to confirm (or deny) whether he is subject of a superinjunction as a result of a secret taxpayer funded COURT CASE.

      Delete
  2. "...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."

    Oh William, people no longer bow down to 'senior thinkers'. You are a snob, an elitist with no basic connection to the world of the masses. I suggest you do a week of voluntary work in Oxfam and another in the Shelter. Discover empathy. Meet ordinary people. Roll up your sleeves. Listen. Become one with them, not one set aside by hubris. By learning how to speak with Joe Public, you can then go out and ask people what the Jersey Way is for them. It will differ from your version. You will see you are in a minority and have lost touch. Listen and learn from what they say. Drop your 19th Century senior attitude. Have a change of heart. Stop blocking the sun and let the light in.

    ReplyDelete
  3. I just want to quote the Bailiwick Express - all with regards "Perception" and "Reality"

    https://www.bailiwickexpress.com/jsy/news/bailiffs-views-jersey-way/?t=i#.WZwiPj596iR


    "Critics of the dual role say even if the conflict is more perceived than real, for reasons of clarity and openness it is still important to separate the jobs. Those critics, say this latest intervention by the Bailiff is further proof that – whatever he might say – the Bailiff is not apolitical, and is getting himself involved in matters that shouldn’t involve him.

    Deputy Mezec - Would you like to see some evidence and arguments , in fact and law , which shows that the Bailiff roles is conflicted without any reasonable doubt - not perception but fact ?

    It could help you politically to make your point. I would be more than happy to meet with you and another States Member who is currently trying to deal with a matter regarding a conflict of interest of the current Bailiff Sir William Baillhache and which is obstructing him exercising his powers within standing orders.

    Let me know if you do on this post and I'll ask the states member to contact you.

    ReplyDelete
  4. Is it possible for PPC to bring a vote of censure against the Bailiff for this political interference like they have with Andrew Lewis for lying and breaking the code of conduct?

    ReplyDelete
    Replies
    1. I think it's technically possible, but I doubt they would do it unilaterally unless there was a groundswell of public opinion on the matter.

      Delete
    2. Good question Anon 22 August 2017 at 14:36 – The answer to your question is YES .

      Deputy Mezec is correct in saying that it is possible for PPC – however there are two other options which are much easier.

      What about you Sam ? You could do either of the following

      1. Vote of Censure
      2. Vote of No Confidence


      Its standard procedure for a Member of the States to be able to lodge a proposition to censure the Bailiff or to express no confidence in him. This is a matter of FACT - One would need solid grounds for that and i believe the Bailiff has just provided it to you on a platter.

      We all know that under Standing Orders the procedure is that the Bailiff can refuse to allow a proposition - this is where it gets interesting. If I was a States Member I would firstly be publicly asking the Bailiff to retract his letter to the Chief Minister. If he didn’t then it would be opening the floodgates imo.

      If a Member sought to lodge a proposition via a Vote of Censure or Vote of No confidence and the Bailiff declined to allow it under the standing orders, which is unlikely, then that Member would have an even stronger case then he or she would already have. The Bailiff's recent letter and political interference would be new grounds to support his censure and no confidence vote so soon after the Care Inquiry. Im not actually 100% sure if it would fail with everything that’s going on … but it probably would - but at least it will expose a few in the assembly.
      Go for it Sam – I know that this is correct procedure and it is a clear opening for you to follow this through within standing orders.

      Public opinion is with you on this one – it wouldn’t matter if it was or not anyway – you have grounds to expose a few here – that care inquiry made recommendations and we have a blatant attempt by an unelected spokesman trying to order politicians with what is being supported or not.


      Delete
    3. Interesting suggestions.

      At this point I want to take a deep breath and consider with other colleagues what the best way forward is practically.

      I've received a lot of messages today from people who don't usually comment on this sort of thing saying they're astounded he has done this.

      In all honesty, I think the priority now should be to win P.62 and get the ball rolling on introducing an elected speaker. There is no guarantee of victory at this first step, and I think that should be our main focus for now.

      Delete
  5. Sam,

    Another "Jersey Way" scandal from Philip Bailhache. He has protected his Twitter account, meaning one is forced to follow him if one wants to see what he tweets:

    "This account's Tweets are protected.
    Only confirmed followers have access to @JerseyDiplo's Tweets and complete profile. Click the "Follow" button to send a follow request."

    This is an elected person, holding a Ministerial role, being paid public money to do so. Yet he is deliberately limiting access to the communications issued by him in that role (and as a consequence, his department). This is not the open, honest and transparent government that WE PAY FOR...

    Seems like a clear breach of the Ministerial Code of Conduct to me:

    "Openness
    Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands."

    https://twitter.com/JerseyDiplo

    Appendix 1, Seven Principles of Public Life
    http://www.statesassembly.gov.je/AssemblyReports/2015/R.11-2015.pdf

    ReplyDelete
  6. Anon 10.40 - I know that Philip Bailhache and his brother believe they are above the law and use Jersey's government for their own means - they have no issue in not being transparent - they dont believe in balance, justice , democracy , only the image and portrayal of it.

    There are several examples of this politically - i can think of at least 5 prime examples of PB's behavior and actions over the past 5 years which highlight his overall approach to Ministerial roles - he has no issue in hiding it.

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  7. Re:VFC.

    Who would want to re-elected a politician who has been to Prison or made the subject of Bankruptcy.

    ReplyDelete
    Replies
    1. There was a bloke a few years back who got elected president of his country after spending 27 years in prison.

      Delete
    2. Depends what its for.

      Delete
    3. Only desperate Lefties would ever want such trash back in.

      Delete
    4. Yeah, the person I was referring to above was Nelson Mandela.

      Not surprised you think he's trash.

      Delete
  8. So you'd support a come back from Graeme Butcher.

    ReplyDelete
    Replies
    1. I'd certainly support the right of voters to pick him if that's who they wanted.

      Personally, I wouldn't vote for him. But I believe in there being as few restrictions as possible for who can stand as a candidate.

      Let the voters decide.

      Delete
  9. Sam.

    What is it with some politicians and their reluctance to impart THE TRUTH?

    ReplyDelete
    Replies
    1. Con Chris Taylor brought a VONC in the CM only a few months ago and here is VFC slagging him off over this petty minded vendetta against Lewis. Shame on you Dep Sam Mezec for hyper linking it.

      Delete
    2. Shame on me for impartially allowing links to other blogs making democratic criticisms of elected politicians?

      Delete
    3. Democratic criticism when you go livid very time Reform Jersey are criticised on Facebook or the JEP Website.
      That's a laugh.

      Delete
    4. You call it going livid, I call it responding to justify our position. It's just engaging with the public and politicians should do more of it, not less.

      Delete
    5. You take it personally and then attack people back in a personal way. What you've said above with your collection of PPC apology letters is ridiculous.

      Delete
    6. Ah, I see. What you mean is that you're offended that I sometimes stand up to racism.

      PPC can apologise for that if they want, but I won't.

      Delete
  10. Keep up the good work Deputy Mezec but please be on the look out for trolls and those with fake Facebook accounts.

    Julie Hanning (whoops I done it again)

    ReplyDelete
    Replies
    1. That the other thing you do, call people trolls who criticise Reform Jersey. How pathetic.

      Delete
    2. What word should I use for the person who has run about dozen fake social media profiles over the last few years to attack victims of child abuse and the people who advocate support for them?

      If you're hiding behind pseudonyms to attack people, doesn't that make you a troll?

      Delete
    3. Hilary from St Brelade4 September 2017 at 14:29

      Who are you calling a troll?

      Gary Cummins (did I just do it again?)

      Delete
    4. We're done for today Jon. The weather has picked up, so maybe you can go outside and get some fresh air.

      Delete
    5. Good work Deputy.

      Delete
    6. I agree with Hilary from St Brelade - July Hanning - Gary Cummins - Andy Le Vesconte and Red 35. As a matter of fact I always with everything I (I mean they) write.

      Delete
  11. Replies
    1. We'll have more than three votes in the Assembly after the election.

      That's the point of this.

      Delete
  12. I would have come along tomorrow but not sure after reading the Maureen Morgan post on Politics Jersey. If you cannot concentrate on serious Island issues then there is no future.

    ReplyDelete
    Replies
    1. Why do you bother posting this sort of stuff?

      Everyone knows you're lying.

      Delete
    2. You do not partake in the conversations on there.
      Said yesterday that it was about time Deputy Tadier did something useful in the States but after so many years its never going to happen.

      Delete
    3. Why do you bother with this nonsense?

      You know that Monty works incredibly hard and asks the toughest questions in the States. You just don't like him because of his role in securing the child abuse inquiry (for some reason).

      Delete
  13. I wasn't able to attend.
    How did it go?

    ReplyDelete
    Replies
    1. Really well. Had loads of good chats and lots of faces I didn't recognise.

      Delete
    2. Cost of housing?

      Delete