A question of when, not if

There has been considerably more attention paid publicly to the dual role issue in the sister island than there has been locally.

And considerably more action in trying to address it, too.

Three years ago an independent report on the make-up of the States of Jersey by Lord Carswell argued that there should be a change – this followed similar recommendations made earlier when ministerial government was introduced.

Some legal opinion has suggested that the 'tide of history is in favour of reform'.

That was Rabinder Singh QC in 2010 when he suggested the legal position for reform would be different in 10 years' time.

All the arguments that are being played out in Jersey reflect on Guernsey too, where the conflict between being head of the judiciary and effectively the speaker in the States is just as apparent.

Guernsey has played much more of a waiting game.

Within the establishment, there is no desire for change. There is no legal reason at the moment and no public clamour for it to happen.

So Guernsey watches with interest as Jersey moves the debate forward.

But it is becoming increasingly relevant when any form of conflict of interest, whether apparent or real, comes under the international microscope.

Both islands are driving for greater independence from the UK, seek more powers to sign off on laws and to negotiate internationally and, with that, will come more responsibility for ensuring the island's house is in line with international norms.

The Jersey debate is full of interesting nuances.

Former Bailiff Senator Philip Bailhache, whose brother is currently Deputy Bailiff and is set to take over as Jersey's Bailiff next year, is opposed to change.

While he will lead those no change voices, he has also lodged an amendment which would lead to a referendum to find out what islanders want.

Now Jersey has form in holding referendums and then ignoring the outcome, as it did with the recent one concerning its structure of government.

Guernsey has no form of referendum because the legislation to hold one has got bogged down in bureaucracy and disagreement about whether they should be binding or not.

So the debate in Jersey again manages to highlight a shortcoming in the democratic underbelly of Guernsey's political system.

Senator Bailhache argues that the decision to end the Bailiff's role in the States should not be taken without a clear mandate from the public.

'There has been no popular clamour for change, there has been hardly any public discussions, there have been no parish hall meetings and there has been virtually no comment in the media,' he said.

He believes, as others have argued, that removing the Bailiff as president of the States could undermine the role as civic head of the island.

'No such change should be contemplated without a clear public mandate.'

The role of the Bailiff in both islands has slowly evolved with time to reflect the needs of society. This has rightly included diminished political powers as democratically-elected politicians have taken centre stage.

But it is still a position which influences the political process: advising and influencing the tone of debate, for example.

Government reform is on the agenda in both islands – and any move to an elected speaker in Jersey would turn the harsh spotlight right back on the role in Guernsey.

It should be impossible to avoid at least having the debate. After all, it is some 10 years since the system of government reforms last touched on the concept of a speaker.

The political landscape is very different now.

Last month, Lord Carswell made a presentation to States members in Jersey. He reminded them of the practical and constitutional reasons for change.

It was a waste of time and valuable legal skills for the Bailiff to spend a large amount of time sitting in the States, he said, and the Bailiff should be more available to carry out judicial work.

It also does not need someone with such a high level of skills to preside over the States, he added.

And there is always the risk of being involved in a political controversy.

He also argued that the role was inconsistent with modern ideas of democracy and open to challenge on grounds based on the European Convention on Human Rights.

'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,' said Lord Carswell.

'It is universally accepted that those exercising judicial functions should not have been concerned in making the laws which they have to apply and enforce. The reason is that if a judge has been concerned in law-making, 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.'

This risk is currently supposed to be managed by good diary keeping, making sure the Bailiff is not involved in judging cases in which he sat on the debate which led to the law being drafted.

Much is made of the argument that the Bailiff's role of civic head would go if a change to an elected speaker was made.

However, Lord Carswell argued that was not the case.

'He has the position of Bailiff, to which considerable power and prestige have long been attached. One has to ask whether removal of one part of his many functions, even so important a part, would diminish his standing to that degree?'

A vote for the status quo in Jersey may well quell any debate here for several years. It would not, however, be the end of the argument.

There is an unstoppable tide towards change in the role of the Bailiff. The questions is not so much whether it is needed, but when it will happen.