Doubt thrown as Bailiff's dual role is questioned

IF THE Channel Islands want to live on the international stage they are going to have to accept the consequences.

With it comes more scrutiny, as the clash over zero-10 showed last week, and it might not always work in your favour.

There is little clamour within the islands to reform the role of the Bailiff, but one of the driving forces could end up being the outside world.

The States Assembly and Constitution Committee had on its agenda for this week a review commissioned in Jersey into the role of the Crown Officers.

That it has resonance in Guernsey is plain - both the Law Officers and the Bailiff Sir Geoffrey Rowland made written and oral submissions to it.

Its author, Lord Carswell, does not want to tell Guernsey what to do, but the message from the report is clear.

The Bailiff should no longer sit in the States. Instead there should be a presiding officer elected. The Bailiff would remain head of the judiciary.

It is not a new argument, but the picture is changing since the last time it was investigated in either island as both look to establish an international identity.

In every other democratic jurisdiction, there is a separation of the judiciary from the legislature.

'The present arrangement is unique to Jersey and Guernsey,' the report said.

'People outside the Channel Islands who are unfamiliar with the historical development of the Bailiwicks regularly express their surprise about it. It fails to present to the wider world the image of a modern democratic state.'

The separation of powers argument was key for the author of the Jersey report.

'What has been widely accepted is that sufficient separation should be in place to prevent any one of the three estates of the realm from exercising excessive power. The independence of the judiciary from the legislature and the government of the jurisdiction is a necessary guarantee of impartiality in that it provides freedom from political pressure and judges' detachment from the political process removes a possible source of influence in their decisions.'

The report added that it was universally accepted that those exercising judicial functions should not have been concerned in making the laws that they have to apply and enforce.

'If a judge has been concerned in lawmaking, there is a risk, or a perceived risk, that his interpretation of statutes may be influenced by his understanding of the meaning of their provisions as they went through the legislature.'

There is a set of principles and guidelines for Commonwealth jurisdictions known as the Latimer House principles.

These were adopted and agreed in 2003.

The report said that it was abundantly clear from these that those who drew them up believed that members of the judiciary should not also be members of the legislature.

Some argue that there was a qualifying provision - that the special circumstances of small and/or under-resourced jurisdictions may require adaptation of these guidelines.

But this does not wash with the report's author.

'No doubt there are jurisdictions which are so lacking in financial resources or in the availability of able and educated people that they could not readily comply with the Latimer House principles. We are, however, unaware of any other democratic jurisdictions outside the Channel Islands, no matter how small, in which a judge presides in the legislature. In any event, we are unable to suppose that modern Jersey falls into such a category. We do not think that the conditions for invoking the exception are fulfilled, or that it would be a proper reflection of Jersey's international standing and image for it to seek to do so.'

If it is an argument that does not stand up in Jersey, surely it cannot stand up in Guernsey either?

And anyway, you could ask whether sitting in the States is the best use of time for the chief judge.

And splitting the role would free up the post holder to be able to criticise the executive.

There is some uncertainty over whether the role is in breach of human rights.

Rabinder Singh QC said that in principle, maintaining the status quo would not breach Article Six of the European Convention on Human rights.

'However, the international trend suggests that the law will change in due course. Within the next 10 years, my view is that the present arrangements will come to be regarded as incompatible with the concept of judicial independence as embodied in Article Six, in particular because the Bailiff and his deputy are both judges and presiding members of the legislature.'

So the question becomes whether you reform before or after you are forced to. Sir David and Sir Frederick Barclay's human rights challenge in Strasbourg to the role of the Seigneur and Seneschal in Sark could also become material.

There was a cool response from Sacc chairman Ivan Rihoy to the report. He was more concerned with island-wide voting and does not seem convinced of the need for change.

No doubt 'a wait and see' approach will be adopted.

The Bailiff's role is one that has worked for centuries and will not be reformed with the flick of a switch.

Change will no doubt come, it is the pace of it that remains questionable.

But if Jersey accepted the report's findings and voted for reform, and with Sark already having voted to split the role of the Seneschal, there's no way Guernsey could stand still.'People outside the Channel Islands who are unfamiliar with the historical development of the Bailiwicks regularly express their surprise about it. It fails to present to the wider world the image of a modern democratic state'

Lord Carswell's report