The query of separating constitutional powers in Jersey is extra advanced than it seems. Right here’s why.
Jersey and Guernsey are distinctive globally in having constitutions that within the historical workplace of Bailiff fuse collectively the roles of chief justice and presiding officer of their respective courts and parliaments. As I argue, that is additional difficult by a 3rd position, as “guardian of the structure”.
Jersey’s present Bailiff, Sir Timothy Le Cocq, has described the place as “the finest job on the planet” however plans to retire in 2025. Beneath the present system, his successor will mechanically be the present Deputy Bailiff, Mr Robert MacRae – except, that’s, the States Meeting agrees to Proposition P.83/2024 to finish the Bailiff’s position as its President. The proposal, made by a politically various cross-section of members, would be the fourth try in 11 years to offer the Meeting the facility to nominate its personal speaker, both from amongst elected members or an exterior candidate.
The talk is extremely emotive, reaching deep into emotions concerning the island’s heritage, nationwide establish, and Jersey’s place within the fashionable world. The depth of opinion amongst reform advocates and traditionalists is akin to debates within the UK about Scottish independence or Brexit.
The case for reform
Reform advocates make two primary arguments for change.
First, as Jersey matures as a democracy, members of the island’s parliament ought to have energy to pick – and, if mandatory, dismiss – its speaker. There have been main constitutional modifications in not too long ago years, notably in 2005 the introduction of ministerial authorities and a parallel scrutiny operate within the Meeting. At present, the Deputy Bailiff, a place (like that of Bailiff) reserved solely for Jersey-qualified attorneys as a consequence of its judicial tasks, mechanically succeeds the Bailiff upon retirement and not using a full appointment course of. The Deputy Bailiff’s appointment is made formally by the Crown, on the advice of a panel consisting of the Bailiff, one other decide of the Royal Court docket, and the chair of the Jersey Appointments Fee. The method is comparatively clear, with an commercial, job description and session course of, together with of some States members who maintain explicit Meeting roles. However what’s lacking within the Deputy Bailiff’s choice course of, reformers say, is a vote by the complete Meeting.
This lack of parliamentary authority was starkly highlighted through the 1992 Vernon Tomes affair. As Deputy Bailiff, Tomes repeatedly presided over the Meeting however got here into battle with the Bailiff over shortcomings within the judicial facet of this position, together with tipping off mates about police raids and delays in issuing judgments. On the request of the Bailiff, Tomes was faraway from workplace by UK House Secretary Kenneth Clarke. States members had no say within the course of that in impact eliminated considered one of their presiding officers. In a twist, Tomes stood for election as a States member the next 12 months, topping the polls.
The second reform argument issues adherence to internationally accepted requirements of judicial independence. Reformers level to 3 main exterior inquiries, all of which advisable separating the Bailiff’s judicial and legislative features because of this: Sir Cecil Clothier QC’s 2000 blueprint for ministerial authorities; Lord Carswell’s 2009 evaluate of the Crown Officers; and the 2017 Jersey Unbiased Care Inquiry chaired by Frances Oldham QC which, whereas specializing in systematic failures in little one care, additionally flagged issues about governance constructions.
The traditionalist perspective
Opponents of reform say the Meeting advantages from the Bailiff’s and Deputy Bailiff’s standing as figures from outdoors the world of elected politics. They provide continuity and stability over electoral cycles. Past sensible concerns, traditionalists view the Bailiff’s twin position as a cornerstone of Jersey’s constitutional heritage and an important facet of the island’s nationwide identification. There may be important anxiousness concerning the ripple results of altering the Bailiff’s tasks. Traditionalists warn that eradicating the Bailiff as President of the Meeting may weaken the workplace’s standing because the civic head of Jersey and undermine its position because the guardian of the structure. Furthermore, they concern that shifting this operate would possibly subtly switch affect to the Lieutenant Governor, the Crown’s resident consultant.
Traditionalists look to the suggestions of two earlier inquiries that noticed no want to change this historic position of Bailiff as President of the States: the post-Occupation 1947 report of the Committee of the Privy Council on Proposed Reforms within the Channel Islands (Cmd 7074) ; and the 1973 Kilbrandon Royal Fee on the Structure.
My evaluation
My evaluation of the state of affairs will irritate each reformers and traditionalists. I imagine reformers appropriately establish the necessity to tackle points associated to judicial independence. Nevertheless, they’re focusing on the improper downside, and in consequence, proposing an answer that won’t adequately tackle what needs to be a core concern.
Judicial independence: ECHR Article 6
In McGonnell v UK (2000) 30 EHRR 289 – a Guernsey, not Jersey, case – the European Court docket of Human Rights held there was a breach of Article 6 as a result of the Bailiff, whereas Deputy Bailiff, had presided over the Guernsey States of Deliberation when it adopted the planning regulation that a number of years later was the topic of the case that the Bailiff determined as a decide. The fundamental lesson for each islands is that the Bailiff/Deputy Bailiff shouldn’t be the decide in a case involving laws adopted by the States at a session after they have been the presiding officer (I mentioned the difficulty right here in 2011).
The 2009 Carswell evaluate grappled with a broader query: does Article 6 have structural implications for the Bailiff’s twin position as each a decide and President of the legislature? To discover this, Carswell bypassed Jersey’s Lawyer Normal and sought an exterior opinion from Rabinder Singh QC of Matrix Chambers. Singh’s evaluation concluded that the Bailiff’s twin position didn’t inherently breach Article 6. Nevertheless, Singh went on to say “the worldwide pattern suggests the regulation will change sooner or later. Inside the subsequent 10 years, my view is that the current preparations will come to be considered incompatible with the idea of judicial independence as embodied in Article 6, particularly as a result of the Bailiff and his deputy are each judges and presiding members of the legislature” (see P.160/2013 Com.(2) pages 25–32).
Jersey’s Lawyer Normal on the time, Timothy Le Cocq (now Bailiff), and the Solicitor Normal, sharply criticized Singh’s reasoning. Of their commentary on the 2013 proposal to take away the Bailiff’s twin position, they dismissed Singh’s hypothesis as unfounded. They argued that “English counsel didn’t point out that the European Court docket has constantly held that constitutional theories [such as separation of powers] usually are not related to figuring out judicial independence.” They asserted there was no cause to anticipate Strasbourg to deviate from this established strategy (P.160 Com.(3)/2013).
For my part, eleven years on, the Lawyer Normal’s 2013 critique stays related and persuasive. Strasbourg jurisprudence has proven little indication of adopting the expansive interpretation of Article 6 that Singh predicted.
The Bailiff’s triple position: guardian of the structure
An missed facet of the controversy on judicial independence in Jersey is the Bailiff’s third position, because the guardian of the structure. This operate is separate from his position as chief justice and President of the States Meeting. It obtained no consideration within the 2000 Clothier report and solely transient consideration within the 2009 Carswell report, which devoted simply two pages to the difficulty. Carswell concluded:
“The Bailiff ought to proceed to be the guardian of the structure and the conduit via which official correspondence passes. He must also obtain copies of communications not forming a part of official correspondence which include potential constitutional implications” (pp 42-43).
In a 2020 article for the Jersey and Guernsey Legislation Assessment, Robert MacRae, the present Deputy Bailiff, supplied what the editor (Sir Philip Bailhache, a former Bailiff) described as “the primary detailed clarification in fashionable occasions of the origin and extent” of this operate. MacRae famous that “it has not been advised that the Bailiff ought to stop to be guardian of the structure”. I problem that assumption right here. For my part, which shall be considered heretical in Jersey, it’s wholly inappropriate for a chief justice to have a “guardian of the structure” position of the sort that exists in Jersey. After all, there could be no objection to a chief justice exercising affect over constitutional rights via courtroom judgments – however practices in Jersey are fairly totally different.
MacRae’s evaluation highlights a number of historic cases the place the Bailiff has performed a pivotal position in Jersey’s negotiations with the UK authorities. Probably the most important instance was the management of Bailiff Sir Robert Le Masurier throughout negotiations surrounding the UK’s entry into the European Financial Neighborhood (EEC). His efforts secured Protocol 3 to the UK Accession Treaty, which established Jersey’s particular relationship with the EEC whereas preserving key elements of the island’s autonomy.
A extra technical instance cited by MacRae was the Bailiff’s intervention to safe higher preparations for the appliance of the UK’s Wi-fi Telegraphy Act 1949 to Jersey, safeguarding the island’s pursuits.
For the reason that introduction of ministerial authorities in Jersey in 2005, nevertheless, the constitutional guardian position has developed. MacRae explains that the Chief Minister and the Minister for Exterior Affairs now preserve extra direct contact with UK officers and ministers, typically bypassing the Bailiff. This shift displays a broader transformation in Jersey’s governance.
Macrae identifies 4 particular options of the Bailiff’s fashionable constitutional guardian position.
Two are uncontroversial: “defending the independence of the judiciary” and “performing as a pure conduit for communications between the judiciary and the manager, so that every understands the official targets of the opposite”. These actions are broadly accepted as regular tasks of chief justices in most authorized programs.
Nevertheless, the opposite two aspects are in my opinion problematic:
“giving voice to constitutional issues that may undermine the rights and privileges of the Island and of Islanders, and advising and warning the Chief Minister and Authorities of Jersey accordingly” and
“advising the Lieutenant Governor who in flip advises the Sovereign on constitutional issues affecting the Island’s privileges and freedoms”.
To allow the Bailiff to hold out these features, underneath an MOU with Jersey ministers, he receives copies of correspondence between Jersey ministers and their counterparts and officers in London. Macrae notes, “That won’t occur as repeatedly because it did” (p 90).
Why does Jersey’s chief justice have to have an advisory operate? Giving proof to the Carswell inquiry, Bailiff Sir Michael Birt acknowledged that offering recommendation to Jersey ministers and the Lieutenant Governor is the first accountability of the Lawyer Normal. However, Sir Michael mentioned, “an Lawyer Normal could also be comparatively new to the duty and never but steeped within the constitutional relationship in the best way that the Bailiff is. The Bailiff is a vital further safety to safeguarding the constitutional place of the Island” (quoted in Macrae, p 89).
For a lot of islanders, the thought of a senior determine outdoors of ministerial authorities overseeing constitutional issues is reassuring, significantly in safeguarding Jersey’s autonomy from potential overreach by UK ministers or officers. Nevertheless, it raises basic points.
First, it’s troublesome to see how privileged entry to authorities correspondence and an influence to advise ministers and the Lieutenant Governor behind closed doorways doesn’t fall foul of worldwide accepted worldwide requirements set out within the Bangalore Ideas of Judicial Conduct. Worth 1 on Judicial independence states that this “is a prerequisite to the rule of regulation and a basic assure of a good trial. A decide shall subsequently uphold and exemplify judicial independence in each its particular person and institutional elements”. One of many given functions of this precept is that:
“A decide shall not solely be free from inappropriate connections with, and affect by, the manager and legislative branches of presidency, however should additionally seem to an affordable observer to be free therefrom”.
The gist of the precept is that judges should stay – and be seen to stay – at arm’s size from government authorities.
Second, the guardian of the structure position rests on a shacky premise that the Bailiff’s interventions usually are not political and that on any given subject there’s a broadly shared view about what’s within the island’s and islanders’ finest curiosity. The truth is that the issues on which a Bailiff might intervene could be – and have been – deeply political and divisive.
Illustration: the battle for homosexual equality in Jersey
Jersey’s hesitant journey towards LGBT equality illustrates the Bailiff’s constitutional guardian. Within the 12 months I used to be born, 1964, the island was an inhospitable place for homosexual males. That 12 months, two males of their 30s have been sentenced to 6 months’ imprisonment for consensual sexual acts, and considered one of them—a non-British citizen—was banished from the island for all times. (This stark instance of discrimination is detailed by Michael de la Haye, “The battle to finish an extended historical past of discrimination”, Jersey Night Publish, 18 Might 2024 pages 22-23).
In 1981, the European Court docket of Human Rights determined Dudgeon v United Kingdom, ruling that the criminalisation of consensual homosexual intercourse amongst adults violated Article 8 of the European Conference on Human Rights (ECHR), which protects the best to privateness. Regardless of this landmark determination, Jersey’s authorities have been sluggish to reply to its implications.
By 1989, Jersey’s Laws Committee, chaired by Deputy Edgar Becquet, remained resolutely against reform. Addressing the States Meeting, Becquet argued that Article 8 included a provision allowing interference with privateness “for the safety of well being or morals.” Citing AIDS as a public well being concern, he claimed that “the well being of the inhabitants of this Island should take priority” over the rights of people to interact in what he known as “unnatural practices.” The UK Authorities turned conscious of Jersey’s stance.
Just a few months later, in April 1990, Becquet returned to the Meeting to report on a gathering on the UK House Workplace. He assured members that there was “no constitutional disaster,” however recounted a stark warning from the UK authorities. The Minister for State on the House Workplace made it unequivocally clear:
“If the island didn’t legislate, whereas the UK authorities was wholly sympathetic to the island’s constitutional place, which was not in query, then to be able to fulfil its worldwide obligations, the UK would reluctantly haven’t any possibility however to legislate itself on this matter.”
Sir Peter Crill, then Bailiff of Jersey, corroborated this account in his privately revealed memoir, A Little Temporary Authority (2005). Crill led the delegation to the House Workplace:
“On arrival on the assembly, Mr John Patten, Minister of State, greeted us with one thing like this: ‘Good morning, Mr Bailiff and gents. If the States don’t change the regulation, we will do it for them. Now, what was it you wished to see me about?’ Collapse of stout celebration.”
Crill’s major motivation on this affair targeted on preserving Jersey’s autonomy, not the human rights of homosexual islanders. Whereas the States of Jersey finally handed laws to decriminalise homosexuality, Crill’s memoir revealed his private opposition to the reform, characterising homosexuality as each un-Christian and “an offence in opposition to nature.”
An issue missed by Carswell
The Carswell Assessment’s conclusion concerning the Bailiff’s twin position chief justice and President of the States Meeting was strikingly clear: it “fails to current to the broader world the picture of a contemporary democratic state.” Nevertheless, what’s perplexing is the Assessment’s failure to critically study the implications for judicial independence of the Bailiff’s position as a constitutional adviser and recipient of official correspondence. This oversight is stunning, given the requirements for judicial independence articulated within the Bangalore Ideas of Judicial Conduct. As famous above, this states that:
“A decide shall not solely be free from inappropriate connections with, and affect by, the manager and legislative branches of presidency, however should additionally seem to an affordable observer to be free therefrom.”
A Bailiff routinely uncovered to ministerial and official correspondence and providing recommendation to the Lieutenant Governor or ministers can not plausibly be perceived as totally unbiased when required to adjudicate upon issues relating to those interactions. Judges shouldn’t be providing recommendation to their authorities besides via judgments delivered in open courtroom.
Illustrating the issue
The 2006 case of Small v UK (Software no. 7330/06) offers a stark illustration of how the Bailiff’s constitutional guardian position may battle with their judicial position. On the time, Jersey maintained a discriminatory age of consent: 18 for anal intercourse between males and 16 for vaginal intercourse between men and women. This clearly violated ECHR Article 8 (proper to privateness) and Article 14 (prohibition of discrimination). In a brave act, 16-year-old Luke Small, questioned by police over his relationship along with his boyfriend, introduced Jersey to account by making an software to Strasbourg. Confronted with the inevitability of an opposed ruling, Jersey settled the case, agreed to pay compensation, and amended its regulation. Going to Strasbourg was mandatory as a result of the Human Rights (Jersey) Legislation 2000 was not but in power, leaving Small with no home treatment. But when such a case been introduced domestically, a essential query arises: may the Royal Court docket have been considered an unbiased and neutral tribunal underneath Article 6 of the ECHR if the Bailiff, with prior involvement in these issues, presided? Bailiff Sir Peter Crill was lengthy retired. However had he nonetheless been in workplace, his judicial independence would have been compromised—not due to his private socially conservative beliefs, which he was entitled to carry, however as a consequence of his prior involvement in lobbying UK ministers in opposition to the decriminalisation of homosexuality. His roles as each constitutional adviser and adjudicator in a matter of such controversy would have eroded the independence required of a decide.
The issue is that islanders have no idea when and the way a Bailiff workout routines their advisory powers as guardian of Jersey structure. That is carried out confidentially, behind closed doorways. A decide—particularly one ready as influential because the Bailiff—can not moderately be perceived as unbiased after they have been immediately concerned in advising or shaping the coverage framework that later comes underneath judicial scrutiny. The overlap between judicial and advisory roles just isn’t merely theoretical however strikes on the coronary heart of the legitimacy of Jersey’s justice system. The institutional design that enables the Bailiff to straddle judicial and advisory roles locations Jersey plainly at odds with the Bangalore Ideas. If, sitting as a decide within the Royal Court docket, a Bailiff have been to adjudicate on a matter that had featured in official correspondence beforehand shared with him whereas Bailiff, or on which he had given constitutional recommendation on whereas Bailiff, it’s troublesome to see how this might be suitable with ECHR Article 6.
What to do?
My views on the Bailiff’s constitutional guardianship position shall be unwelcome in some political circles. The island’s autonomy vis-à-vis UK interference is so extremely valued that any perceived weakening of mechanisms designed to safeguard it’s broadly seen as unacceptable. However Jersey ministers and the Lieutenant Governor have a authorized and constitutional adviser within the type of HM Lawyer Normal for Jersey, supported by HM Solicitor Normal and a staff of authorized consultants within the Legislation Officers’ Division. It’s not mandatory, in my opinion, for Bailiffs to proceed to be concerned outdoors the courtroom in diplomatic and political issues.
But when my evaluation resonates with others, the States Meeting may search for inspiration to current developments in Guernsey. In July 2024, the Guernsey States of Deliberation permitted a Requête (proposal) “to agree that the [Commonwealth Parliamentary Association] Latimer Home Ideas [on the Three Branches of Government] are related to making sure that Guernsey maintains a robust and functioning democratic system” and arrange a evaluate reporting to the States after the subsequent election in 2026. Introducing the proposal, Deputy Gavin St Pier pre-empted criticism by emphasising its sensible implications: “it might be trite and simple to dismiss this Requête as institutional navel-gazing and irrelevant to our neighborhood’s key challenges of the second. Nevertheless, the eclectic mixture of requérants drawn from throughout this Meeting is an indication of why this requête is very pertinent to our potential to satisfy the wants and expectations of our neighborhood within the fashionable period”.
In Jersey, the twenty fifth anniversary of the Clothier evaluate in December 2025 presents a well timed alternative for a sharply targeted however complete evaluate of Jersey’s governance constructions, together with the Bailiff’s features. This might be far simpler than fixed fragmented debates. So many new options have been grafted onto Jersey’s venerable and historic constitutional foundations that there’s a danger of subsidence. It’s time for a correct structural survey.
Andrew Le Sueur FRSA is Professor of Constitutional Justice at Essex Legislation College. These views expressed are in his tutorial capability.
(Recommended quotation: A. Le Sueur, ‘Lastly, separation of powers in Jersey?’, U.Ok. Const. L. Weblog (twenty eighth November 2024) (obtainable at https://ukconstitutionallaw.org/))
