Comparisons are inevitably being drawn between the dual positions held by the Bailiff, Sir Philip Bailhache, as head of the legislature and the judiciary, and those of the UK Lord Chancellor, whose position was last week abolished by Tony Blair’s government.The Lord Chancellor’s Department has already been replaced by the new Department of Constitutional Affairs, which has taken over responsibility for relations with the Crown dependencies.Sir Philip himself is adamant that the changes, which were announced last week as part of moves to separate the powers of the judiciary and politicians, are ‘immaterial’ to his role.But his view is not supported by at least two senior politicians.Both Senator Christopher Lakeman and Deputy Roy Le Hérissier said that the changes at Westminster would have an impact on the role of the Bailiff by reigniting the debate locally.Both were speaking as individuals but could exert influence over future decisions.
Senator Lakeman is president of Privileges and Procedures, which is implementing government reform, and as well as being a member of Privileges, Deputy Le Hérissier is also president of Legislation and a constitutional expert.A question mark has been hovering over the the future role of the Bailiff for many years, particularly since the publication of the Clothier Report on government reform.That report recommended that the Bailiff should cease to act as president of the States or to take any political part in the Island’s government.Although proposals were initially brought forward by the Policy and Resources Committee, these were eventually withdrawn and the question of the Bailiff’s role has not yet been tackled within the States.Senator Lakeman, who is also an advocate, said: ‘It (the UK changes) will call into question the Bailiff’s role and whether the full effect of the Clothier reforms should be dealt with.’There needs to be honest discussion without leaks and hidden agendas, particularly as we are moving towards a ministerial system that will either mean the Bailiff’s role will suddenly change or will waste away.’I don’t believe that it is sustainable in the long-term future.
There is half of me that regrets that, but in terms of democratic accountability, things have moved on.’Deputy Le Hérissier agreed that the UK reforms would reflect upon the Island.
‘It will undoubtedly bring up the role of the Bailiff,’ he said.
As the Department of Constitutional Affairs looked at the new Welsh and Scottish constitutions, so comparisons would be drawn with Jersey’s situation, he said, bringing the spotlight back onto the Bailiff.’It could present problems,’ he said.
‘They might push for something similar here in Jersey.’Deputy Le Hérissier said that human rights would also come into the equation.It was reported in the national press this week that the appeal case of Guernsey grower Richard McGonnell a few years ago had influenced the UK government’s decision to get rid of the Lord Chancellor.Mr McGonnell was prosecuted by the States of Guernsey for living in his packing shed without change of use permission.
But he won his appeal case because the Court of Human Rights in Strasbourg ruled that there was a conflict of interest.This was because the Bailiff of Guernsey, who presided over his Royal Court appeal, was a member of the government as well as the judiciary.
The Bailiff’s powers within the States of Guernsey were subsequently changed.But Sir Philip maintained that the UK government’s reforms would not affect Jersey.
‘It seems to me that the changes which the UK government has made to the role of the Lord Chancellor are irrelevant in the context of the role of the Bailiff,’ he said.’The role of the Bailiff is a matter for the States and the people of Jersey and always has been.’