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The Cry For Constitutional Reform- A Perspective From The
Office Of Bailiff
Philip
Bailhache
"[I]t is very desirable that the Bailiff should
not be president of the court and president of the States; as president of
the States, the Bailiff often comes in contact with the
members, who are not always very sparing in their attacks upon him, and I
think it tends to lower the dignity of the president of the court, and very
often makes him a political man" [1] . Thus spoke
Helier Simon, an écrivain, while giving evidence on July 26th 1859
to the Royal Commissioners appointed to enquire into the civil laws of
Jersey. It was an observation which found no favour when the Commissioners
reported in 1861, but the opinion of Mr. Simon has been echoed from time to
time ever since. It was repeated to the Privy Council
Committee in 1946 [2] and again to the Royal
Commissioners on the constitution in 1973. More recently it has been renewed
by some senior members of the States in both Bailiwicks of Jersey and Guernsey, and has been given an added impetus by a decision
in October 1998 of the European Commission of Human Rights [3]
. It must now be taken seriously. The purpose of this article is to attempt
to lay the foundations for intelligent discussion of an issue which is of
fundamental importance for the Bailiwicks. The author can speak with inside
knowledge of course only in relation to the Bailiwick of Jersey, but the
remarks which follow may be of interest in Guernsey too. It may be objected
that he is inevitably partisan. It is of course true that those who are
amongst the trees cannot always see the wood. But there ought on the other
hand to be certain advantages from looking outwards from within the thicket.
This is not intended to be a polemic. Others must judge
the success or failure of the end result.
History
The history of the office of Bailiff is a
subject worthy of study in its own right, and cannot be
attempted here [4] . The present rôle of the Bailiff
can only be fully appreciated in the context of the Island’s constitutional
history, but the briefest historical excursion must suffice. The office is
certainly of great antiquity. According to Le Quesne [5] the name was derived from the Latin word bajulus,
signifying "protection". The first recorded Bailiff of Jersey is
Sir Philippe Levesque who was appointed in 1277. But there
seems little doubt that the office was in existence before 1204 and may even
have ante-dated the Norman conquest [6] . The titles
Custos, Warden and Bailiff seem to have been used interchangeably in the 12th
and early 13th centuries. Only after the separation from Normandy in 1204 did
the functions of the official who is now known as the Lieutenant Governor and
the functions of the Bailiff begin to diverge. Originally the Bailiff was
probably a sub-warden, entrusted with the administration of justice and civil
affairs. The Warden, or Captain, eventually became known as the Governor with
the responsibility for the defence of the Island and for military affairs.
Yet defence and military affairs were not in medieval times the discreet and
contained sphere of activity which they are now in time of peace. In time of
war, with the enemy at the gate, the influence of the military, with the
Governor (or his delegate) at its head, was all-pervasive. Most readers will
know how King John, in order to maintain the loyalty of the Islanders,
granted privileges including the right to be governed by the laws and customs
then in force; how the benches of Jurats became established by the constitutions
of King John and how "[t]he Islanders … found
judicial ‘autonomy’ through the liberties of their Jurats as custodians of their customary law"; [7] how the
States Assembly emerged in the 15th century from the process of consultation
by the Royal Court with the rectors and connétables of the twelve
parishes.
The decision by King John not to incorporate the
Islands into the realm of England but to establish separate administrations,
sowed the seeds not only for the unique constitutional status of the Islands
but also for future conflict amongst the Crown’s appointees and between those
appointees and the local people.
The Islanders remained fiercely loyal to their
King/Duke, but equally determined to maintain their own laws and customs and
to claim their distinct identity. As the years unfolded, and further
privileges were conferred as the price of and reward for continuing loyalty,
the Islanders’ quasi-independent status grew. At first through the
Royal Court and then through the States, the Islanders asserted their
privileges and freedoms conferred by successive Royal Charters.
The office of Bailiff has been throughout the
centuries at the centre of this constitutional development, and usually not
far from any controversy which raged. Much of course depended on the
personalities and characters of the Bailiff and other leading Island figures.
Some Bailiffs found themselves in conflict with their Jurats or with the
States. But taking the broad view, as the author must for these purposes, the
critical disputes arose between the Bailiff and the Governor. Perhaps none
was more critical than the long feud between Sir John Peyton, appointed as
Governor by James I in succession to Sir Walter
Raleigh, and Jean Hérault, the Bailiff between 1615 and 1621 and again
between 1624 and 1626 [8] . Both were men of strong and
uncompromising character. When Peyton claimed that the power of appointing
bailiffs lay with the Governor, and that Hérault’s appointment was accordingly
defective, Hérault asserted that the Bailiff could only be appointed by the
King. An Order in Council of August 9th 1615 found in Hérault’s favour [9] . He then however
propounded the novel theory that the Governor was a mere military officer and
that the Bailiff was the King’s representative and the real head of the
insular government. The Privy Council did not agree
but by its Order of February 18th 1617 [10] the Council
laid the foundation of the division of responsibility which exists today.
"[W]e hold it convenient that the charge of
military forces be wholly in the Governor, and the care of justice and civil
affairs in the Bailiff."
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The necessity of balancing the powers of the
Governor and the Bailiff was emphasised by the Commissioners Conway and Bird
in their report of 1617:-
"And for the civil government in cases
where the civil and martial may be for His Majesty’s service mixed, your
honours may be pleased to limit the pretences. A worthy Governor being a sure
pillar to that estate, which lies remote from this Kingdom and a worthy
Bailiff being a principal support for the conservation of the estate, if
their virtue and good affections be seconded with meet and due limited
commission; for where they cease to balance one another equally the danger
grows alike from either of them being left with unlimited power, if malice,
ambition, or desire of change possess them.". [11]
Hérault may not have been the first Bailiff to
view himself not only as a servant of the King but also as a protector of the
Islanders’ privileges. But he certainly secured for the office, and for the
Royal Court and the States, a recognition by the Crown that in the spheres of
justice and civil affairs the Bailiff took precedence over the Governor. The
Governor remained however a potent force. England had made peace with Spain
in 1604 and the French wars of religion had ceased; but renewed hostilities
with France were imminent. Peyton needed money for
insular defence. He called a meeting of the States on April 15th, 1620 at
which Hérault protested angrily that it was for the Bailiff to convene the
Assembly. A marker had been laid down, but the transfer of political and
administrative authority over domestic affairs from the Crown to the States
was gradual.
An important milestone was
passed in 1771 when the so-called Code of
Laws was adopted by Order-in-Council of March 28th in that year. The Order
marked the end of the legislative power of the Royal Court, and provided
"that no Laws or Ordinances whatsoever, which may be made provisionally
or in view of being afterwards assented to by His Majesty in Council, shall
be passed but by the whole Assembly of the States of the said Island….." [12] . In 1800
the influence of the Crown was still substantial. Dr. Kelleher has described
the relationship in these terms:-
"By the beginning of the nineteenth century
Jersey had achieved a high degree of self-government. The Crown was still
effectively in control, but delegation enabled the local legislature, the
States, (Les Etâts), to exercise a greater share of power in
initiating legislation and finance, subject to final ratification.
The States were composed of both elected members
and Crown appointees. Each parish was represented by its municipal head, the connétable,
who combined his rôle of parish administrator with membership of the
legislature. Twelve Jurats or ‘popular law-finders’ were elected for life on
an Island-wide franchise and sat both in the Royal Court and the States; … .
The Island’s rectors, appointed by the Crown, likewise sat in the
legislature. The bailiff, the chief magistrate and
effective civil head of the Island, also a Crown appointee, presided over the
States." [13]
At the end of the twentieth
century much has changed; the jurats and the rectors have been replaced by
senators and deputies, all directly elected by the
inhabitants [14] . Five Crown appointees - the Bailiff,
Lieutenant Governor, Dean, Attorney General and Solicitor General remain as ex
officio members of the States. All have a right to speak but not to
vote, save that the Bailiff has a casting vote as President of the Assembly.
In the nineteenth century the Bailiff could convene
the States only with the prior consent of the Governor [15]
. Today the States convene in ordinary session as they may by standing order
determine. In extraordinary session they may be
convened at the discretion of the Bailiff or on the requisition of seven or
more elected members [16] . In the Crown memorandum in
the Jersey Prison Board case in 1891, the States were described as
"[h]istorically and constitutionally … not a provincial parliament or
local legislature, but a municipal corporation or common council for the whole Island" [17] .
One hundred years later the States of Jersey are without doubt a provincial
parliament or local legislature. They are recognised
by the Crown as having, for practical purposes, autonomy in relation to
domestic affairs [18], and play an active part in the
affairs of the Commonwealth Parliamentary Association. The Crown remains
responsible for defence and for the Island’s external
relations [19] . It also has a reserve or residual
power to ensure good government. But in terms of de facto
responsibility for domestic affairs the Crown has withdrawn from the scene in
favour of the States. Yet Jersey remains a dependent territory - a Crown
dependency - closely linked to the Crown through Her Majesty’s officers in
the Bailiwick.
The Bailiff’s functions today
In a sense this close relationship between the
Crown and the States is best exemplified by the office of Bailiff. The
Bailiff is appointed by the Queen and holds office during Her Majesty’s
Pleasure. He is also the President of the States and the Island’s chief
citizen, and is paid out of the public purse. He is of course accountable to
the Crown, but in a real sense is also accountable to the people
of Jersey and their elected representatives. No Bailiff could long continue
if he did not enjoy the confidence of the States. His office bridges the
divide between Her Majesty’s Government in Whitehall and the Insular
Government. He is a Crown Officer but he is also the guardian of the
islanders’ privileges and freedoms under the constitution. The oath
administered to the Bailiff provides "that you will 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." [20] In earlier times, when the
functions of the Bailiff were performed in the Island by a Lieutenant-Bailiff,
the Bailiff himself would from time to time appear before the Privy Council
to present the island’s case [21]
. None of this is inconsistent with the Bailiff’s status as a Crown Officer.
The Bailiff’s function in this context is to protect against attack the
Islanders’ privileges and freedoms conferred by kings and queens down the
centuries. It matters not from where the attack comes, even if from Her
Majesty’s ministers in England. In that event the Bailiff leads the States in
resisting that attack.
But the threat to the Islanders’ privileges and
freedoms could come from the States Assembly itself. It is worth noting that
the power of the States to enact legislation is limited. Primary legislation
can be enacted only with the sanction of Her Majesty in Council. This
requirement for royal sanction is an important
safeguard against abuse of power for it enables every inhabitant to exercise
his constitutional right to petition the Queen against the grant of royal
sanction [22] . If the States were to seek to avoid the
necessity for obtaining royal sanction by enacting regulations beyond their
powers, the Bailiff would have the power (and arguably a duty) to intervene.
Article 22 of the States of Jersey Law 1966 confers power on the Bailiff to
enter his dissent to any resolution of the States susceptible of
implementation if he is of the opinion that the States are not competent to
pass the resolution. Where he does so, the resolution
must immediately be transmitted to Her Majesty and, in the meantime and
unless the consent of Her Majesty is obtained, the resolution is of no
effect. Interestingly the Lieutenant-Governor has a similar power to veto any
resolution of the States (other than a draft law which requires royal
sanction in any event) but only in respect of such matters as may concern
"the special interest of Her Majesty" [23] . What constitutes the "special interest"
of Her Majesty is an interesting and undecided question. In the author’s view
it would not include the interests of Her Majesty’s Government. The power of
veto could only be exercised in the personal interests of Her Majesty or of
Her Subjects in the Island. If that view is correct, the powers of veto and
dissent are the opposite sides of the same coin. Saving any personal interest
of the Queen, both the Lieutenant Governor and the Bailiff may intervene only
to protect the interests of the people. These powers of veto and dissent were
described by the States in a memorandum submitted to the Privy Council in
1882 as "the negative voice which the constitution has entrusted
respectively to the Governor and to the Bailiff...". The Bailiff’s power
has its origin in an Order in Council of June 2nd 1786. Neither power appears
to have been exercised for a long time.
It is important to emphasise that the Bailiff’s
powers and duties in relation to the public administration are to be
exercised constitutionally. In particular they are to be exercised in the
context of the constitutional convention which has evolved over the past 100
years, but which has crystallized since 1948, that the Bailiff does not usurp
political responsibilities which are properly the functions of the elected
members of the States. The Bailiff’s duties are to advise and to warn, but
not to take political decisions.
What then are the principal functions of the Bailiff today? They may conveniently be grouped under four
headings, viz. -
the Presidency of the Royal Court,
the Presidency of the States,
ancillary functions deriving
from the Presidency of the Royal Court, and
ancillary functions deriving from the Presidency
of the States.
(1) Presidency
of the Royal Court
The Bailiff is the Chef Magistrat
(Chief Justice) and presides over the Royal Court. His judicial functions are
beyond the scope of this article and little more need
be stated under this heading. It may however be worth recording that he is a
judge of law but not generally of fact [24] . He sits
with two or more jurats whose functions are to decide
the facts in civil cases and to determine sentence in criminal cases [25] . The Bailiff is also ex-officio the president of the Court of Appeal. [26]
It was to the Bailiff that King Charles II
entrusted the Royal Mace in perpetuity. The Book of Warrants of the Lord
Chamberlain, Edward, Earl of Manchester contains an entry
dated July 31st 1663 ordering the preparation and delivery to "the
Bailiff of Jersey a silver mace gilt of 200 ounces" [27]
. The Bailiff is also custodian of the Island’s seal,
first granted by King Edward I in 1279. [28]
(2) The Presidency of the States
The Bailiff is ex-officio the President of the
States. This presidency finds statutory form in Article 1 of the States of
Jersey Law 1966 but may be traced back to the very
origins of the States as a parliamentary assembly in the sixteenth century.
The States Assembly emerged from the process whereby the Royal Court, then a
legislative as well as judicial body, consulted with the rectors and connétables
of the twelve parishes. The Bailiff presided over the Royal Court and it was
natural that he should preside also over the enlarged body which incorporated
the members of the court. The Bailiff has no right to vote other than by a
casting vote when the votes of elected members are equally divided.
Traditionally he exercises his casting vote in order to preserve the status
quo. Generally the Bailiff acts as a speaker, as in
any democratic assembly, ensuring good order and the observance of the rules
of the assembly [29] . Until relatively recently the
rules were unwritten. In 1966 however the States adopted standing orders for
the regulation of their proceedings and business. As in many Commonwealth
jurisdictions, those standing orders borrow heavily from the standing orders
of the House of Commons at Westminster. Standing Order 49 provides that
"any question of order or procedure not provided for in these Standing
Orders shall be decided by the Bailiff, whose decision in the matter, or on
any disputed point of interpretation of any of these Standing Orders, shall
be final." For completeness we should add that Article 59 of the States
of Jersey Law 1966 contains a saving provision relating to the prerogatives,
rights and privileges attaching to (inter alia) the office
of Bailiff.
Ancillary functions deriving from the
Presidency of the Royal Court
These functions naturally embrace ultimate responsibility in Jersey for the administration of
justice. The Judicial Greffier, or Clerk of the Royal Court, is appointed by
the Bailiff [30], but may be suspended only by the
Superior Number of the Royal Court and dismissed by Her Majesty in Council.
The Bailiff presides over the College of Electors,
a body established by the Royal Court (Jersey) Law 1948. Formerly the Jurats were members not only of the Royal Court but also of
the States, a dual function which came to an end in 1948. The Jurats are now
appointed by the College of Electors which is composed of the Jurats, the Connétables
of the twelve parishes, the elected members of the States and all practising
advocates and solicitors of the Royal Court. The
Bailiff is a member of the College but may vote only in the event of a tie
after a second ballot. [31]
The Bailiff also presides over the Licensing
Assembly, more properly known as the Assembly of Governor, Bailiff and
Jurats. This Assembly is the remains of a body which once exercised
considerable administrative authority. Its history is outside the remit of
this article; the Loi (1921) sur l’Assembleé de Gouverneur, Bailli et
Jurés (Transfert de Pouvoirs etc.) transferred to the States all the
functions of the Assembly save the function of granting licences for the sale
of intoxicating liquor. That function was confirmed by the Licensing (Jersey)
Law 1974. The Licensing Assembly meets regularly four times a year, although
it can convene in extraordinary session.
Numerous statutes empower the Bailiff to issue
search warrants. [32]
(4) Ancillary functions deriving from
the Presidency of the States
The principal derivative function is that the
Bailiff is the Island’s chief citizen. It may seem curious to describe this
status as a derivative function. In one sense it is not a derivative function
at all. The Island is a Bailiwick and its chief citizen is a Bailiff. That
status ante-dated the emergence of the States Assembly and did not therefore
historically derive from the Presidency of the States. But the author is
attempting to describe the functions in the context of the current state of
the constitution. With the development of the States into a parliamentary
assembly it is, in the author’s view, inconceivable that a Bailiff could
remain the Island’s chief citizen if he were not the President of the States.
The authority to speak on behalf of the Island would disappear if the Bailiff’s rôle were confined to the Royal Court. The
status of chief citizen is accordingly described as a derivative function.
The Bailiff represents the Island abroad and at home when dignitaries,
whether members of the Royal Family, ministers, ambassadors or senior
officials, visit the Bailiwick. When important matters arise in relation
between the Island and Her Majesty’s Government, and a delegation of the
States attends upon the relevant minister, it is usually the Bailiff who
leads that delegation. The Bailiff’s presence is not designed to trespass
upon the political responsibilities of the President of the States Committee
in question, but to add weight to the delegation. He will introduce the
discussion but leave the development of the argument to the Island’s elected
representatives and senior officials.
A secondary derivative function is that the
Bailiff is the channel of communication between the Insular Authorities and
Her Majesty’s Government. In the absence of a cabinet or central executive committee
charged with the responsibility for governmental relationships with the
United Kingdom, the Bailiff is the universal joint which enables the
machinery of government to operate. He is the conduit through
which official correspondence between the Insular Authorities and the Home
Office is conducted [33] . Government by committee will
not function unless some central authority exists. If, for example, the
Education Committee is negotiating an agreement with the relevant authorities
in Whitehall and beyond as to the funding of university education for Jersey
students, the formal exchanges in those negotiations are relayed through the
official channel of Bailiff to Lieutenant-Governor to Home Office. The
negotiating position of the Insular Authorities (in this example represented
by the Education Committee) is expressed in the formal letter of the Bailiff
to the Lieutenant-Governor. The draft of that letter is prepared by the
Committee’s officials or by the Greffier of the States on their behalf and
forwarded to the Bailiff’s Department. The draft expresses the Committee’s
political stance. The Bailiff’s function is to ensure that the letter is
expressed in the appropriate diplomatic language and that
it reflects the Island’s constitutional position. The formal letter goes over
the signature of the Bailiff to the Lieutenant-Governor; it is forwarded by
Government House to the Home Office. The Home Office reply is also addressed
to the Lieutenant-Governor but refers of course to the Bailiff’s letter.
"Official correspondence" therefore consists of letters from the
Bailiff to the Lieutenant-Governor and from the Home Office to the
Lieutenant-Governor, and copies of these are held by the Greffier of the
States. Most official correspondence concerns international agreements or
European Union matters which fall within the competence of the Policy and
Resources Committee. The drafts of such correspondence are now prepared by
officials in the Policy and Resources Department on behalf of the Committee.
The Bailiff exercises a power of control over
public entertainment, which may not take place without his permission. This
function probably emerged in the eighteenth century in response to disorder
caused by licentious theatrical productions. Neither Poingdestre nor Le Geyt,
writing at the end of the seventeenth century, records its existence. It
found statutory expression for the first time in the Unlawful Public
Entertainments (Jersey) Regulations 1992 which were enacted to confer powers
of seizure and forfeiture of anything used in the commission of an offence.
In exercising this censorial power the Bailiff may now
seek guidance from an advisory panel for the control of public entertainment
established by the States in 1988 [34] . This power to
permit public entertainment is to be distinguished from the power to grant a
seventh category liquor licence for places of entertainment which is vested
in the Licensing Assembly. Article 71 of the Licensing (Jersey) Law 1974 provides
that the grant of a seventh category liquor licence is restricted to premises
in respect of which the Bailiff is prepared to authorise the offering of
entertainment. The Bailiff’s permission for public entertainment now serves
two distinct purposes. Firstly it enables a control to be exercised on
proposed venues from the viewpoint of public safety. An applicant for a
permit is required to satisfy the Bailiff that the fire service, public
health and other relevant authorities have no reasonable objection to the
arrangements which have been made. Secondly it enables an assessment to be
made as to whether the public entertainment conforms to a
reasonable standard of public decency. Some critics argue that this is
inevitably subjective and is inconsistent with artistic freedom of expression
within the constraints of the law of obscenity. Other critics (or even the
same critics) would contend that there is no democratic accountability for
the exercise of censorial powers. It might also be said that the exercise of these powers, which will sometimes require the
Bailiff to take politically controversial decisions, should not be within the
remit of the President of the Royal Court or the President of the States. [35]
The Bailiff is also the President of the
Emergencies Council. This Council was established by the Emergency Powers and
Planning (Jersey) Law 1990 and is composed of the Presidents of the Policy
and Resources, Defence, Harbours and Airport, Public Services, Health and
Social Services, Agriculture and Fisheries and Tourism Committees, and a connétable
nominated by the Committee of Connétables. The Lieutenant-Governor
and Attorney General are entitled to attend meetings of the Council which
convenes routinely every quarter. The Council’s functions are "to
co-ordinate the planning, organisation and implementation generally of
measures which are designed to guard against … any happening … that in any
way endangers or may endanger the health or safety of the community or that
in any way threatens to deprive the community of the necessities of
life". In the event that the Lieutenant-Governor considers that events
have occurred, or are about to occur, which threaten the national defence or
the safety of the community, he may, after consultation with the Council,
declare a state of emergency. Wide powers are thereupon vested in the Council
to make orders for securing the essentials of life to the community.
Other relatively minor functions are vested in
the Bailiff by various statutes. An example is the Civil Aviation
(Investigation of Accidents) (Jersey) Order 1975. This Order empowers the
Bailiff, inter alia, to request the Secretary of State to appoint an
inspector to investigate any accident involving an aircraft,
to appoint a Review Board, and to appoint a Commissioner if a public enquiry
is directed by the Royal Court.
The perennial question
Are these functions too disparate or in
potential conflict one with another to be held by one person? The question is
one of perennial interest. In 1861 the Royal Commissioners appointed to
examine the civil, municipal and ecclesiastical laws of Jersey observed:
"The Bailiff, in the first place, as
President both of the States and of the Royal Court, combines legislative
with judicial functions. Whatever may, in the abstract, be the objections to
this combination, it will suffice for our present purpose to state that in
Jersey there neither exists, nor can be provided, any other functionary at
once learned in the law and of sufficient dignity to
preside in the legislative body, and we therefore do not recommend any change
in this respect". [36]
It was last raised before the Royal
Commissioners in 1973. In their report the Commissioners recorded that they
had received suggestions from the Guernsey Labour Group and the Jersey
Communist Party that the office of Bailiff should be split. They stated:-
"The suggestion was opposed by
representatives of both the States of Guernsey and the States of Jersey when
we put it to them. They drew attention to the fact that in 1947 a Privy
Council Committee looked at the matter and recommended no change. The
Committee considered that the objection to the combination of the dual
functions of the Bailiff would be justified only if it were established that
in the States the Bailiff exercised undue influence in the course of
deliberations or that in the court he allowed his political position to
influence his decisions. No evidence had been tendered to the Committee in
support of such contention. The Committee also considered that the Bailiff as President of the States exercised important
functions in advising the Assembly on constitutional procedure, which, from
the nature of the constitution required an intimate knowledge of the privileges,
rights and customs of the Islands. We were told in both Islands that the
States considered these arguments to be equally applicable today, that the
arrangement whereby their President is appointed by the Crown is acceptable
to the members of the States, and that importance is
attached to the maintenance of the status of the office of Bailiff as the
Island’s chief citizen and representative." [37]
In their conclusions at paragraph 1527 the
Commissioners state:-
"On the proposal put to us by private
organisations in Jersey and Guernsey for splitting the office of Bailiff, we
take the same view as the Privy Council Committee of 1947. Although an
arrangement under which one person presides over both the Royal Court and the
Legislative Assembly may be considered to be contrary to good democratic
principle and to be potentially open to abuse, it appears in practice to have
some advantages and not to have given grounds for complaint; and as the
office of Bailiff is an ancient and honourable one which the States in each
Island wish to see continued with its present range of functions, we see no
reason for recommending a change."
The rôle of the Bailiff is
now part of the remit of a Committee under the
chairmanship of Sir Cecil Clothier appointed by the States to review the
machinery of government in Jersey. [38]
European Convention of Human Rights
A new dimension has recently emerged. On October 20th, 1998 the European Commission of Human
Rights concluded in the case of McGonnell v United
Kingdom [39] that there had been a breach of
Article 6(1) of the Convention "as regards the question whether the
Royal Court [of Guernsey] is an independent tribunal". The background to
the decision is that Mr. McGonnell purchased a plot of land with glasshouses
in 1982. He applied for planning permission to build a dwelling which was
refused, and an appeal was dismissed in 1984. In 1986 he was in financial
difficulties and he moved to live in a flower packing shed on the land. In
1992 he pleaded guilty in the Magistrate’s Court to an illegal change of use
of the land and was fined £100. In June 1993 the Royal Court ordered Mr.
McGonnell to vacate the shed and to restore it back to its use as a packing shed.
In August 1993 he applied again to the Island Development Committee for
permission for a change of use and this was refused in October 1994. He
appealed against that refusal to the Royal Court, presided over by the
Bailiff, which dismissed the appeal. Mr. McGonnell subsequently complained to
the European Commission of Human Rights that, inter alia, the Royal
Court was not an independent and impartial tribunal. Article 6(1) of the
Convention provides, so far as relevant -
"In the determination of his civil rights
and obligations … everyone is entitled to a fair and public hearing … by an
independent and impartial tribunal".
The Commission decided that "… it is
incompatible with the requisite appearance of independence and impartiality
for a judge to have legislative and executive functions as substantial as
those in the present case. The Commission finds,
taking into account the Bailiff’s rôles in the administration of Guernsey,
that the fact that he has executive and legislative functions means that his
independence and impartiality are capable of appearing open to doubt." [40]
The Commission accordingly found a breach of
Article 6(1) of the Convention. The Commission has now referred the matter to
the European Court of Human Rights. Analysis of the
implications of the decision for the Bailiwicks, if it is upheld, will have to await the outcome of that reference [41]
. But in the meantime some observations may be made.
(1) There were some unusual facets of the
procedures on planning appeals in Guernsey which may have influenced the
decision of the Commission. Firstly, the Bailiff having summed up the issues
for the consideration of the Jurats, the Jurats withdrew and reached their
conclusion that the appeal should be dismissed. No reasons for the decision
were however given. Secondly, an appeal to the Royal Court on a planning
matter is effectively final; no appeal lies to the Court of Appeal and
although in theory a dissatisfied litigant may petition the Judicial
Committee of the Privy Council for special leave to appeal, such appeals are
in practice subject to narrow constraints.
(2) The administrative responsibilities of the
Bailiff of Guernsey appear on the face of it to be more extensive than those
of his confrère in Jersey. The description of the Bailiff of
Guernsey as "the head of the administration of the Island" (whether
or not that is an accurate description for Guernsey) is certainly inapt in
this Bailiwick. This may be important in that the
Commission was plainly concerned about "the plethora of important
positions held by the Bailiff in Guernsey". [42]
(3) This jurisprudence of the European Commission of Human Rights on the appearance of bias jars with a
series of decisions in the Courts of Appeal of both Guernsey and Jersey. [43]
In the Bordeaux Vineries case Le Quesne
JA, delivering the judgment of the Guernsey Court of Appeal, stated:
"[The Bailiff] can
properly discharge both responsibilities [i.e. President of the Royal Court
and President of the States] because although he is a member of the States
his special position there means he is not responsible for the decisions of
the States or acts of its agencies, nor has he any pecuniary interest, or
indeed other interest, in those decisions or those acts."
Most notably, in the unreported decision of Eves
v Le Main, Collins JA, delivering the judgment of the Jersey Court of
Appeal, referred to the McGonnell decision in the context of an
assertion that the Deputy Bailiff had been a judge in his own cause in
hearing a complaint about the conduct of a States Committee in breach of
Article 6 of the Convention.
"In my judgment this ground of appeal has
no substance. The Bailiff and in his place the Deputy Bailiff sit both as
President and Deputy President of the States and the head of the judiciary,
but this ground alone is insufficient to argue that the Deputy Bailiff should
not have presided at the hearing. Although the Deputy Bailiff has duties in
the States such duties do not extend to responsibility for the performance by
committees or agencies of the States of their functions.
The Deputy Bailiff had had nothing to do with
the reaching of the decisions of the committee of course, and his position as
Deputy President of the States is, in my judgment, no more of a bar to his
hearing this matter than was the position of the Bailiff as determined in Mayo and others v Cantrade Private Bank
Switzerland (C.I.) and others. [44]
(4) The McGonnell decision is also difficult
to reconcile with the leading English case on appearance of bias. In R v
Gough, Lord Goff of Chiveley stated the test to be applied by an appellate
court in the following terms -
"having ascertained the
relevant circumstances, the Court should ask itself whether, having regard to
those circumstances, there was a real danger of bias on the part of the
relevant member of the tribunal in question, in the sense that he might
unfairly regard (or have unfairly regarded) with favour,
or disfavour, the case of a party to the issue under consideration by him
…" [45]
(5) The different functions of the Bailiff of
Guernsey appear less objectionable (in the context of the McGonnell
decision) than those of the Lord Chancellor in England. Not only does the
Lord Chancellor preside over the House of Lords in its legislative capacity
and in its judicial capacity, but he is also a member of the Cabinet, the political head of an important Government department,
and the chairman of several significant committees. [46]
Other considerations
Two other recent developments which might be
said to complicate the position of the Bailiff may be mentioned. The first is
the proposed incorporation into domestic law of the European Convention on
Human Rights. The potential impact of the Convention upon the office itself
has already been mentioned, but the incorporation of the Convention will
bring into further sharp relief the dual rôle of the Bailiff. If the Human
Rights (Jersey) Law follows the format of the UK Human Rights Act 1998, it
will confer upon the Royal Court the power to declare legislation passed by
the States to be contrary to the Convention. The assumption is that the
States will thereupon amend the offending legislation. Clearly the Bailiff
may, in his judicial capacity, be called upon to impugn legislation adopted
by the legislative assembly over which he has presided. The likelihood of the
scenario coming to pass is probably remote. Before any legislation
may be presented to the States, the Committee concerned will be required to
certify, no doubt on the advice of the Attorney General, that the proposed
measure conforms with the requirements of the Convention. In cases of
difficulty the Attorney General will no doubt seek expert opinion before
giving his advice. Nonetheless arguments will certainly be raised in the
Royal Court by counsel seeking to challenge the vires of a law or
regulation if that suits the client’s cause. On the other hand it may be
asked whether a challenge to the vires of a regulation on human
rights’ grounds is different from any other such challenge. Or indeed is it
different in principle from an adjudication as to the meaning of a statutory
provision? It is submitted that the important question is whether the
Bailiff’s function in the States is capable of affecting the performance of
his judicial functions. Does he have an interest one way
or another in the legal validity or meaning of a statutory provision passed
by an assembly over which he presides? [47]
The second development is
the emergence of judicial review of administrative action as a potent force
for challenging governmental or official decision-making. The growth of
judicial review was emphasised by Le Quesne JA in Burt v States of Jersey
when he stated -
"… [T]he question of the appropriate
procedure for judicial review of administrative action, which has been
burgeoning in England over the last twenty years, is in dire need of review
here, if only to cope with the necessity for expedition in
determination by the court of the validity of governmental decisions which
are under challenge." [48]
Whether or not procedural rules are required, there is little doubt that the recourse to the
remedy of judicial review has expanded in this jurisdiction as well. Does
this affect the rôle of the Bailiff? It might be said that the emergence of
judicial review does not involve a qualitative change in the Bailiff’s
functions because the Bailiff has been presiding over
statutory appeals from decisions of States Committees for at least fifty
years. The argument appears however already to have been recognised. Under
the Advocates and Solicitors (Jersey) Law 1997 which makes
provision, inter alia, for professional examinations, the President
of the Board of Examiners is the Deputy Bailiff [49] .
Although, happily, a decision of the Board has not yet been subjected to
judicial review, the Bailiff would be now able without inhibition to preside
over a court hearing such a challenge, although the Deputy Bailiff of course
would not. Conversely a court hearing a challenge to a decision of the
Bailiff in relation to the control of public entertainment would necessarily
have to be presided over by the Deputy Bailiff. But both these examples are
of administrative bodies in which the Bailiff/Deputy Bailiff play a
participatory rôle in the decision-making process. They are arguably
different from the States Assembly where the Bailiff or his Deputy plays a
fundamentally impartial rôle, and undoubtedly different from the committees
of the States in the decisions of which neither plays any part at all.
Conclusion
Whatever the outcome of the reference to the
European Court of Human Rights may be, it is right and appropriate that both
the machinery of Government and the functions of the Bailiff in relation to
that machinery should be reviewed from time to time. Both in Europe and
throughout the Commonwealth, of which the Bailiwicks of Jersey and Guernsey
form part, there is a concern to protect the independence of the judiciary
which is one of the principal foundations of the rule of law. The position of
small quasi-autonomous states like Jersey and Guernsey is different
however from that of great nations. As Commissioner E. A. Alkema observed in
his dissenting opinion in McGonnell v United Kingdom -
"Of course, maintaining the rule of law is
essential also in small insular communities such as Guernsey. For that
purpose it is not, however, necessary to require that such societies
have similar elaborate constitutional structures as generally are to be found
in States of an ordinary size. Careful consideration
should be given to the peculiarities of small scale societies and to both the
specific disadvantages and benefits such scale may entail for the proper
functioning of the body politic." [50]
In the Commonwealth too the special position of
small jurisdictions has been acknowledged. At a Joint Colloquium of
Commonwealth organisations held in June 1998 guidelines on the relationship
between parliament and the judiciary were drafted; they will be submitted to
Commonwealth Heads of Government for adoption as a Commonwealth model. The
Principles provide:
"The successful implementation of these
Guidelines calls for a commitment, made in the utmost good faith, of the
relevant national institutions, in particular, the executive, parliament and
the judiciary, to the essential principles of good governance, fundamental
human rights and rule of law, including the independence of the judiciary, so
that the legitimate aspirations of all the peoples of the Commonwealth should
be met.
...........................................
It is recognized that the special circumstances of small and/or under-resourced
jurisdictions may require adaptation of these Guidelines." [51]
It is submitted that two propositions would be
generally accepted.
The removal of one of the Bailiff’s principal
functions would involve a schism unprecedented in 800 years of constitutional
evolution. If however the choice lay between separating
the Bailiff from the Royal Court or from the States, there is little doubt
that separating him from the Court would cause greater upheaval than
separating him from the States. For a number of reasons, both historical and
practical, the Bailiff must remain president of the Royal Court.
Derivative functions may naturally be pared
away. But it would not be possible for a principal function to be removed
while functions deriving from that principal function remained. For example,
the Judicial Greffier could not continue to be appointed by the Bailiff if
the latter were no longer President of the Royal Court. Equally, as suggested
above, the Bailiff could not remain the Island’s chief citizen if he were no
longer President of the States.
If therefore the conclusion is reached that the
Bailiff’s functions must be reduced, it seems that there are essentially two
options. Firstly, provision could be made for an elected president of the
States. In that event provision would have to be made for the derivative
functions to be performed by the elected president or in some other manner.
Secondly, one or more of the functions deriving from the presidency of the
States could be assigned elsewhere. What would be the consequences of such
changes?
The substitution of an elected speaker for the
Bailiff as president of the States seems superficially straightforward. The
States meet in general once every two weeks and the duties of a speaker per
se are accordingly not time-consuming. The Bailiff is however a lawyer
whose training as a Crown Officer will (or should) have given him a detailed
understanding of the constitutional relationship between the Island and the
United Kingdom both in theory and in practice. The elected president will not
necessarily be a lawyer and is unlikely to have that constitutional
knowledge. The States would need therefore to look elsewhere for advice and
protection. Advice would clearly be available from the Attorney General. But
what about protection? Sometimes situations arise where the Bailiff needs to
take a view on the Island’s privileges against a tight time-scale or against
an embargo against consultation. A recent case in point was the decision in 1997 of the Home Secretary, Jack Straw, to
announce a review of the regulation of financial services in the Crown
dependencies. The Bailiffs of Jersey and Guernsey were informed but only on a
confidential basis and on condition that they did not inform politicians.
Both Bailiffs took the view that the constitutional rights of the Islands
were being infringed and sought to persuade the Home Office to defer the
announcement in the House of Commons so that proper consultation could take place.
Those attempts were to no avail but they laid the
foundations for a later formal protest by the States [52]
. An elected president would need a secretariat of some seniority and legal
expertise to compensate for the absence of the Bailiff and Deputy Bailiff. At
the very least the States would need a legally qualified Greffier.
In the author’s view a more likely, and
sensible, scenario would be the creation of a cabinet based no doubt upon the
existing Policy and Resources Committee. An elected president with executive
responsibilities, particularly in the sphere of official correspondence,
might not feel the same constraints as bind the Bailiff under the convention
that he should not involve himself in political decision-making. Damaging
tensions between the elected president of the States and the president of the
Policy and Resources Committee would be highly likely. These tensions could
be avoided if the derivative function of acting as the channel of
communication for official correspondence, and spokesman for the insular
authorities, were assigned to the president of the Policy and Resources
Committee. The elected president of the States would then be merely a speaker
and, presumably, the civic head of the Island. But the responsibilities for
official correspondence could not be vested in a committee. An individual, as
in the Isle of Man, would need to be vested with the authority to speak on
the Island’s behalf by signing official letters to the Lieutenant-Governor.
This need not sound the death-knell for the Committee system. Nonetheless
executive power comparable to that of a chief minister in systems of cabinet
government would have to be vested in the president of the Policy and
Resources Committee.
The assignment of other
derivative functions would not cause the same difficulties. Indeed a strong argument could be advanced for assigning
the responsibility for controlling public entertainment to a States Committee
[53] . Equally the Emergencies Council could be chaired
by an elected member. In this respect, and indeed generally, the removal of
the Bailiff from the political/administrative scene would however cause
ripples throughout the system. The Bailiff’s position as a Crown Officer
gives him access to Whitehall to an extent which might
not be possible for an elected politician. He is accountable to the Crown and
can accordingly be entrusted with confidences which are of benefit to the
States [54] . On the other hand
it must be accepted that other small dependent territories survive and even
prosper without an official with a foot in both camps [55]
. The irony is that a constitutional change of the kind under discussion in
this article would be likely to enhance considerably the authority and
influence of the Lieutenant-Governor. Without a Crown Officer as President of
the States the Home Office would look increasingly to the Lieutenant-Governor
for advice and he, in turn, would be bound to involve himself to a greater
extent in matters politic in order to be able to give that advice [56] . Jean Hérault would turn in
his grave.
In a debate in the House of Lords on the issue
of separation of powers and in particular the rôle of the Lord Chancellor on
February 17th, 1999 an intervention during the speech of Lord Irvine of
Lairg, L.C., was made by Lord Renton. "My Lords, before the noble and
learned Lord sits down, he may be interested to know that this afternoon I
visited my noble and learned friend Lord Hailsham who, alas, is not at all
well physically, though his mind is alert as ever. I told him of the debate
that we were going to have and his only comment was, ‘do be careful’!"
Even apparently minor matters of constitutional reform
can have unforeseen consequences. The injunction of Lord Hailsham to
"take care" is one which we would do well to heed.
Sir Philip Bailhache has been the Bailiff of Jersey
since 1995.