Time to reform the Bailiff's role, by Nick Mann

It did not – but the argument is now back in the public arena.

It was in 1995 that the Royal Court in Guernsey dismissed the appeal of Richard McGonnell who was prosecuted after converting a flower packing shed into living accommodation without planning permission.

The Bailiff sat in that case – five years before as Deputy Bailiff he had presided over the States when the island development plan was debated.

The decision went to Strasbourg.

On 8 February 2000 the European Court of Human Rights stated that: 'the mere fact that the Deputy Bailiff presided over the States of Deliberation when DDP6 was adopted in 1990 is capable of casting doubt on his impartiality when he subsequently determined, as the sole judge of the law in the case, the applicant's planning appeal.'

And that really should have been that.

But arguably the case drove more reform in the UK and Sark than it did in Guernsey and Jersey. In the UK it influenced the abolition of the post of Lord Chancellor under the Blair government and in Sark the dual role of the Seneschal – that of both speaker in the parliament and judge – has been scrapped.

But reform in both Guernsey and Jersey has not been so forthcoming

Both islands did the least possible in an attempt to appease human rights considerations – primarily a bit of diary management so that for the most part the Bailiff does not sit in judgement for cases in which he had a role in the legislation being drafted.

Political reform in both islands has been much more considerable since the ruling – Jersey moving to ministerial government and Guernsey to a streamlined committee system.

But with each step, the role of the Bailiff remained largely unaltered.

While in Guernsey there has been a reluctance to create waves by reviewing the post, very much adopting a wait-and-see approach with an eye on what happens in the south, Jersey has shown no such reticence.

In December 2010, the Caswell report recommended an elected speaker, but somewhat blurred the lines by saying that the Bailiff should continue to be the guardian of the constitution and the office through which official correspondence between the UK and Jersey governments should pass.

That would seem out of step with how government now operates, more of a roadblock than an aid. At the time, legal opinion attached to the report suggested that while there was currently no reason in law for the Bailiff's position to change, that would be different in 10 years' time.

If that opinion still stands the clock has ticked but not much has moved.

But the issue will rightly not go away.

Next month Jersey will again debate the role of the Bailiff.

St Helier Constable Simon Crowcroft has lodged a proposition calling for the Bailiff to be replaced in the Assembly by an elected speaker. It is due to be debated on 4 February.

He sees the retirement of the present Bailiff, Sir Michael Birt, who leaves next year, as affording the ideal opportunity to effect change.

Mr Crowcroft argues that having the chief judge presiding over States deliberations is inconsistent with modern ideas of democracy and projects an inappropriate image to the outside world.

He points out that in every other democratic institution, except Guernsey and Jersey, a presiding officer is chosen to act impartially.

There remains the perception that the Bailiff has an influence over the deliberations and decisions of the States Assembly, he says.

An elected speaker can be removed from office if elected members lose confidence in them.

And removing the Bailiff from the States would give the highly-skilled postholder more time to concentrate on the job they are trained to do – that of chief judge.

Those arguing for the status quo cite the fact that the role is deeply rooted in the island's history.

They state that the Bailiff is the guardian of the constitution, able to warn of potential threats to the island's autonomy.

But most of all it is the role as civic head of the island that they see as being under threat from reform.

'Would islanders prefer their civic head to be someone such as a retired politician, or the senior office holder under the Crown as has been the case for more than 800 years?' asked former Bailiff Senator Philip Bailhache.

That assumes that the public really cares – ask them who they think the leader of the island is and, if they can answer, would they go for the chief minister, Lt-Governor or Bailiff?

Of course anti-reformists are fighting a losing battle.

Change may not come quickly, but it will come as society moves forward and, crucially, the island's relationship with the outside world also matures.

No election campaign will ever be won or lost on reform of the role of the Bailiff, so the drive for change is not as great from within as it may become from the outside.

But equally the days of the public unquestionably doffing a cap to anyone in officialdom have long since gone and with it the argument of 'that was the way we have always done it and so it shall remain'.

Guernsey will not move before Jersey, but the position becomes increasingly untenable if there is a move to change there.