‘End the Bailiff’s dual role’
Tuesday 7th December 2010, 2:57PM GMT.
Lord Carswel
THE States should remove the Bailiff from his position as President of the House to save Jersey the embarrassment of being forced to make the change by the European Court, says one of the UK’s most eminent judges.
Speaking yesterday following the publication of the review into the roles of the Crown Officers which he was asked to lead and which recommended that the Bailiff should cease to be President of the States, Lord Carswell warned that inaction could damage Jersey’s reputation.
The former Lord Chief Justice of Northern Ireland explained that the review panel, which he chaired, had sought the advice of an eminent London barrister on the legality of the dual role of the Bailiff as President of the States and head of the judiciary.
The lawyer, Rabinder Singh QC, said that while he thought Jersey might be able to successfully defend a challenge to the Bailiff’s role in the States in Europe now, the position was likely to be less tenable in ten years.
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But will they listen? I doubt it,, He is un-elected by the people so he should have no part in the states,, And the Chief Minister should be voted in by the people too ,,,,
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Why mess with something that works! Surely the Island has more important matters to be concerned about. Do we really care that Europe considers us out of step, look at the mess they are in!!!!
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Here Here,even though only a part solution…but validates what ex Senator Syvret was on about and vilified for.it is a throwback and not acceptable in a modern society…..you can’t be judge jury and executioner…whatever the old school tie protestations….so grow up and let’s get it done and move on.
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What on earth does this have to do with the European Court? They’ve got better things to worry about at the moment I would have thought!
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Could damage Jerseys reputation? Already done and globally people have been aware for many years.. its only now that it is finally sinking in.
Its a relief that at last somebody has a degree of humility and intelligence and brave enough to challenge this bunch of democratic, privilege abusing, bigots (a majority of, have come across a few people in the legal profession that believe in social justice and the true meaning of law before anyone starts) thank you Lord Carswell some moral ethic would be great served up for most christmas dinners over here.
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This is a really obvious thing that needs change and the cost of finding out the obvious is for us tax payers pay. Another joke!!!
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Lord CarswelL is a brave man, I’m surprised Jersey hasn’t conspired to lock him up. I guess my teachers were right; bullies choose their victims and he will be left alone.
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I agree with 3 and 6.. and thanks for validating that some people within the legal industry have some integrity and remember why they went into law in the first place I think you are a formidable man Lord Cardwel to tell our lot how it is, its about time some one did.
And again Jersey does not need the European courts to embarrass them the world is fully aware of whats going on and has been for years over here.. the untouchables are not as intelligent as they may like to think
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Tricky..Do mess with it because it does not work!
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Susan: why doesn’t it work? I really don’t know what the big deal is. And don’t give me the whole serparation of powers argument – its irrelevant: He only chairs the assembly, he doesn’t vote.
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But if we are to change, what do we change it to? The UK elects its own speaker who loses the right to vote or to be “political”: can you see any Jersey politician being willing to give up that right?
So presumably we either elect someone to the role of speaker who will have no power to suggest, amend or vote on policy, or some body appoints a senior Island lawyer to do it. At which point everyone will claim it is an establishment fix.
So while the present system has its faults, don’t think any alternative will be either better, simpler or cheaper.
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I do suggest that some of the people commenting should actually read the report which deals with all the issues of why things sometimes need to change. You may not agree, but it is pointless now saying ‘don’t fix it’ – did you take the opportunity of telling the Carswell Commission of your view as you were invited to? Well, a lot of pepeople did, and many said that ‘been like this fofor ages, leave it’ and Carswell has argued that it should be changed in part. Here is the lilink and you can also find all the inputs too wiwith all the arguments.
http://www.gov.je/Government/Pages/StatesReports.aspx?ReportID=491
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Jonty @9
I dont really think it’s a question of whether it works or not its the whole world telling you thats it’s not really best practice and that it should be changed. If it’s not a big deal then why allow it to damage Jersey’s reputation especially if he only chairs the assembly like you say. I am pretty sure that these people saying that it should be changed know what they are talking about.
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The most telling sentence by Lord Carswell and his panel tells us,
Quote from the JEP hard copy,
“it was now a firmly established principle of modern democracy that there should be a clear divide between the legislature and the judiciary”.
Well done Deputy Bob Hill for proposing the report and this echoes the sentiments of Stuart Syvret who has been proved right again.
Why did our modern day Senators and council of ministers not propose the report. Repeat, there is no such thing as an old boys club in the States of Jersey.
Davey West.
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#9 Jonty,,,, Its a conflict of interests or doesn’t that bother you?
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“But if we are to change, what do we change it to? The UK elects its own speaker who loses the right to vote or to be “political”: can you see any Jersey politician being willing to give up that right?”
I can think of one or two of the older and longer serving members who would jump at the chance to be Speaker of the States. They might even have to have an election for the post!
The Speaker would get to be involved in all the flummery that the present Bailiff enjoys plus I reckon there could well be a gong or even a K at the end of it.
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donald pond#10
as per usual, Excellent understanding of the problem.
If it aint broke why try to fix it.
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Of course its not best practice. But the risk was largely theoretical and I go back to my earlier comment: what do you replace it with? Someone who is not political but is strong enough to stand up to politicians and doesn’t want a big salary for being the subject of constant abuse.
Jersey needs to wake up to the fact that the biggest threat to its future is the fact that so few able people now want to become Crown Officers or States Members.
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14.. Jonty probably knows half of them LOL… and yes agree Mick it has conflict of interest written all over it like every other prehistoric policy kept untouchable over here to suit the old dodgy network (which is not fit for purpose) and to side with those wealthy enough or mixing in the appropriate circles.. half of which I would not entertain due to the sheer arrogance and self preservation…
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Are we in the EU ?
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I have a feeling that change is inevitable.
We can change of our own volition or we can wait for ten to fifteen years when change will be forced upon us.
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Sark didn,t want change but unfortunately 2 outsiders interferred and the old ways where scrapped who says money don,t talk ????
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Another waste of time and money, because the States will never vote for a change away from the present arrangment (as amply demonstrated by the support in the local media scaring people about “losing 800 years worth of history”!).
The Establishment bloc vote would keep things as they are, with the Bailiff free to dictate who can speak and for how long, vetting what the progressives can achieve in the House.
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“The Establishment bloc vote would keep things as they are, with the Bailiff free to dictate who can speak and for how long, vetting what the progressives can achieve in the House.”
Right, I’m starting to get annoyed with comments like this. I’ve asked the question, will somebody answer it: if the Bailiff is not going to be the notionally apolitical president of the States, who should be?
I’m no great fan of the Bailiff, but I struggle to think of any alternative that would no be open to the same criticism of bias or lack of accountability. Are we now suggesting there be no “control” of the States and elements such as Wimberley should be allowed to speak for 8 hours about yoghurt recycling facilities or whatever bee he has in his bead this week?
Or are actually considering electing a non-political figure (that would make a good hustings – “Vote for me, I have no opinions”) to fill this role?
It’s easy to say the current cyctem is flawed – the challenge is to think up an alternative.
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donald “Of course its not best practice”
It is undemocratic to have 5 members unelected in the house. What part of undemocratic don’t you understand?
As far as I am concerned the sooner he and the other 4 are gone the better, then Jersey will be another step forward on the long road to democracy.
It is good to see others have noted the establishment exists, unlike some who can’t see the elephant in the room.
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Sorry all of you but the real elephant in the room is not the crown officers most of whom are very well qualified and bright individuals but the other numpties we have elected. Sadly since we started paying politicians we have ended up with all the failures who are unable to make it in real life and who are now making a complete cock up of trying to run the island. Thank goodness we have 5 members who have enough brains to rein in the lunatics who have been elected!!!
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Stuart Syvret has been giving this very same advice out for free. Once again he has been proven correct.
Perhaps Lord Carswel will have his home raided without a warrant too?
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Mick @ 15,
Just because its best practice in other jurisdictions, doesn’t make it best practice for us.
Where is the conflict of interest? The Bailiff has no ‘interest’ in the acts of the legislature as he has no vote in respect of legislation. I have read the report and the problem appears to be one of perception more than anything.
At the moment we have a very capable intelligent president who has not vote. What is suggested is a president from the Members, most of whom are not capable or intelligent, and who will have a vote. Hardly a better position.
Also, how far does this apparrent conflict go? Carswel has concluded that the law officers remain ex officio members of the states – i.e. stick in their advisory roles. Arguably they have more influence on the legislation passed by the States by virtue of this advisory role – yet they are also responsible for prosecutions and enforcement. I would suggest that is a far more apparent conflict than that which the Baillif is said to have.
In my opinion, people are far too easily persuaded that what we do here as a small Island must be out dated and unsuitable if its not in line with the UK.
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Actually Donald, Deputy Wimberley managed a one hour speech on his alternative budget on Tuesday morning and other members regularly ramble for ages.
Yoghurt recycling could be quite good, it would certainly beat anecdotes about the war and when the member kept pigs!
Senator Ozouf’s tiddler of a budget is now into it’s third day and not out of puff yet. Think if the UK Finance Act took a similar length of time for every £600M spent, it would go on for months.
Currently every single member can speak for as long as they like in a debate and some come back for seconds or even thirds.
A properly elected Speaker from the body of the house could curtail this.
My Deputy and Constable have no policies; in fact the Constable will only talk about old folks homes, etc but I know where they will have voted on GST!
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#24 Donald Pond
I’m afraid that asking the likes of Adrian and Emp T. Pencil for a positive suggestion which would improve things, is doomed to failure. What they want, but can’t quite dare to admit, is a glorious future in which an opposition-minded politician becomes Speaker of the States – for them, the loss of one direct vote in States debates will be amply compensated by the future Speaker’s ability (they hope) to sway all debates in their favour.
Such people are cheering Carswell (in the same way that they call for any other constitutional change that they hope may favour their own brand of politics) because he’s said something they want to hear – no other reason. They studiously ignore, and will steadfastly continue to ignore, all inconvenient facts, such as:
The Bailiff is only one of a number of people who regularly try to perform the very difficult and thankless task of presiding over the States;
there has never been a shred of evidence to suggest that any one of the presiding officers performs his duties in a biased way (despite the occasional pram-toys Member who firmly believes that every decision ought to go in his favour);
any new person taking over the duty of presiding over the States, would either have no publicly-announced political opinions (in which case he will never have stood for public election), or will risk being criticised for the perception of allowing his decisions to be swayed by his political opinions (although of course it is understood that Adrian and Emp T Pencil won’t criticise him, so long as his decisions appear to favour their personal pet politicians);
any new Speaker appointed by the House acting as an electoral college would not satisfy their mantra-requirement that all public offices should be filled directly by public election, in order to protect us all from the ‘Establishment’ – therefore the new Speaker would have (according to them) to be someone with well-known political views;
any new Speaker would have to work within the framework of powers contained in the existing Standing Orders – interestingly, Emp T. Pencil recently insisted, on this site, that the President of the States had no powers to maintain order, but when challenged, changed tack, saying that actually, the Bailiff doesn’t exercise these (non-existent?) powers effectively;
any new Speaker would have a duty to ‘dictate who can speak next and for how long’, i.e. would do what is done in parliaments the world over, calling on the next speaker, and cutting them off when necessary;
whoever is elected, under whatever system, Adrian and Npec Limpet will continue to categorise the prevailing government as the ‘Establishment’, until such time as the voters decide to elect a majority of people of whom they personally approve.
When the Jersey electors finally see sense, and elect Adrian’s slate, those new States Members will have to abandon the easy excuses of opposition, and take on the hard responsibilities of majority government.
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Donald Pond,
“Jersey needs to wake up to the fact that the biggest threat to its future is the fact that so few able people now want to become Crown Officers or States Members”. Yes indeed and a well informed observation. The only “but” is that, as we both know, the recent post of Solicitor General went to a newly qualified advocate who, as such, would not have got anywhere near the £150,000 salary anywhere else. Had it been known that the bar would be set so low, then a flood of applicants would have ensued. As it is, there were a number of applicants who failed in their quest for reasons unknown but which you and I can perhaps guess.
Were the procedure to have been open, then the matter of applicants would not be a problem. Incidentally, the Carswell panel did touch upon the perhaps rather dubious appointments procedure but, inexplicably (or perhaps predictably) the panel accepted what the crwon officer witnesses said and did not undertake the robust questioning which the activity should have warranted.
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It’s not just former Senator Syvret who has been proved correct. The late, great, Vernon Tomes, who was, respectively, Deputy, Solicitor General, Attorney General, Deputy Bailiff and Senator (he would have been Bailiff but for the successful plot to oust him as the event of his appointment approached)predicted as much as long ago as 1992. He couldn’t get anywhere then, such were the vested interests, but, as they say, “every dog has his day” and the old order will surely fall very soon indeed!
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I think most people fail to realise what norman law actually is.. and that Jersey does not have to fall in line with the UK.. it just has to be lawful and have a bit of integrity towards its own on all aspects of law regardless of wealth!!!
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Had the Baillache brothers been less dogmatic and had more humility I dare say this may not have come to this..however it is the right thing..honorary positions only function on visibly transparent integrity and honorable behaviour..if the cold glare of the open spotlight sends them running for cover..it is a sure thing it won’t be trusted.If it is not trusted it is not fit for purpose….
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I am not sure how you manage to get that interpretation of my views from my published posts, maybe your dogged resistance to any reform or your paranoid search for reds under the bed is distorting your world view?
For the record.
I have suggested that the present Bailiff should be replaced by an elected Speaker in line with Carswell’s recommendations. I suspect that the Speaker would be someone like Senator Ian le Marquand in a few years time.
The post would tend to go to a member with a history of fairness and broad support across the house. I doubt that a purely left or right wing candidate could win.
I believe that this post holder would have the support needed to enforce a policy of slightly more brevity on the members. Speeches at the moment can just go on and on and well, on. Sometimes a member just says the same thing in a different order several times and as I have pointed out there are offenders across the political spectrum.
Honestly I would like to improve the number and quality of candidates and boost turn out at the polls, it is probably the lowest in any democracy.
If we can change the system of election and the way the house is run so more and better candidates come forward I believe we would all be winners.
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Jerry I believe that it would be more democratic if all were to be elected, by the electorate, to office. Maybe this is too left wing an idea for you to contemplate?
I would like to see Direct Democracy in Jersey. What about you?
As per the establishment this is the name given to those running the show, would you not agree?
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The Carswell panel did not ask the right questions and it treated most of the witnesses (except those whom the panel didn’t like) with kid gloves.
Quasi-musing highlights on the transcript include the Bailiff’s explanation of why his job was not advertised and remarks by the present Deputy Bailiff as to why complaints against the crown officers were not looked into. The panel could and indeed should have pressed these issues but failed to do so.
For the first time, the hitherto opaque and mysterious mode of appointing crown officers (basically by the Bailiff with two advisers)was publicly acknowledged so perhaps the exercise was not as futile as all that, even if the panel (some of whom were established legal figures who, in one case, was related to an ex-bailiff!) didn’t perform any proper inquisitorial advocacy.
See for yourself!
http://www.gov.je/Government/HowGovernmentWorks/ReviewCrownOfficers/Pages/PublicHearings.aspx
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Professor Dicey. Say no more.
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Adrian,
“Direct democracy”? How would that work?
Let’s say the chief minister gets elected by the people. Some people say that Stuart Syvret would have been chief minister following his last election. Let’s say he was.
He then appoints a CoM. Then they try to put policies through the States. Oh dear. They don’t have a majority of States members behind them. All of their policies are defeated. But the “establishment” back benchers do have a majority. So their policies go through, as do any votes of no confidence they bring against the chief minister.
In a parliamentary system the chief minister must command the support of the house. Or you can go for a presedential system, but that needs someon who can work with the legislature.
“As per the establishment this is the name given to those running the show, would you not agree?”
I think in a democracy the people running the show are called the “majority”.
As for Pip’s view, there may be the odd candidate like Le Marquand or possibly Le Herrissier who is so spineless that they might want to be a speaker of the house. But that would disenfrancise the people who voted for them. Given that we are to be reduced to 8 senators, I don’t want one of them to lose the right to vote or speak.
If the suggstion is that we have an election to see who should fill a non-political post, I don’t opppose it as such: I just don’t see the point.
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Actually, we could invite Nicholas Parsons to be the president of the house and allow States members to challenge those who deviate, hesitate or repeat themselves. Tht should keep things rolling most satisfactorily.
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We could call it ‘Just An Hour’, but hang on, that is what they play at the moment but challenges are not allowed!
Seriously we could have a directly elected Chief Minister but we would have moved towards a presidential system. Plenty of countries use this system and it is quite frequently the case that the legislature is of the opposite political persuasion to the executive. Both sides have to get down to a bit of old fashioned horse trading to keep the government going.
I do not see Ian le Marquand or Roy le Herrisier as spineless, they are just not wired for sound by one of the factions within the house.
Personally I think we are going to be ‘requested’ to make a change in a few years time and I think a Speaker elected by the House is the best option.
I do not like the idea of losing four Senators either, it is possibly the madest reform they could have gone for, but then my flabber is frequently left gasted by the antics of the Gas Factory!
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donald that would rule out Ozouf then as his sentences are full of ehs! So that’s one of your favourites gone for a start.
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#41 Roy Le Boy not wired for sound?? A voice which, without artificial amplification, is a danger to passing air traffic?
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#39 ‘Or you can go for a presedential system’
That’s where someone’s already sitting?
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Donald Pond; Nicholas Parsons indeed! It could just be the sale of the century. Instead of the car as the “star prize”, we would have the so-called Chief Minister’s job. Other spot prizes would include crown offices, ministries, assistant ministries and lucrative contacts and directorships. If you’re in the game, you can’t lose really, because you will be gambling with taxpayers’ money and you will get away scot free if it all goes wrong!
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No 37; very interesting link. One of the things that a witness (W. Bailache esq) said was as follows:
“Yes. If people want to take the view that it was a dreadful thing to have two
brothers as Bailiff and Attorney General at the same time, the right thing was not to have
appointed me as Attorney General. It is quite straightforward.”
All very well. The thing is, there is no mechanism whereby the appointment could have been stopped. Why did the Carswell panel not home in on this? The panel simply took the statement at face value and moved on. Surely the next obvious question would have been to have asked the witness to explain how the “people” to whom he referred could have caused him not to have been appointed?
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“The thing is, there is no mechanism whereby the appointment could have been stopped.”
Must we endure this tripe? Like the UK, we have an unwritten constitution. There is always a mechanism for doing everything, it just isn’t always enshrined in a document.
When William B was made attorney general, the view in the legal profession was that nobody else wanted it. He was appointed at a time when law firm profits were beginning to rise sharply and Mourant and Ogiers were increasingly focussing on ancillary businesses: fund servicing, trust companies etc. There were very few lawyers of the right level of seniority who were interested in the vast loss of income and increase in personal grief that would result from taking the AG’s role. I could go through the candidates one at a time but it wouldn’t be fair to do so: suffice to say most people thought he was the only senior lawyer of repute who could be persuaded to take on the role.
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Donald Pond, I don’t think that you really do know your stuff and I am most disappointed. please tell me (if you are able to do so) how you, as a lawyer, would be able to stop a crown appointment. Waht is the mechanism, please? And please also don’t describe other people’s views as “tripe”. I for one am happy to “endure” mature debate so the “we” of which you speak must be the Royal “we”!
You are clearly of intelligence so why not behave in an intellectually mature way? Name calling ill-behoves learning. As an aside, there was at least one other applicant back in 2000, so your viewpoint is ill-informed in any event.
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The fact that we are debating whether there is or is not a mechanism for blocking unpopular crown appointments (there is certainly none advertised) shows that the Carswell panel should have explored this point. To be honest, I cannot see any advocate coming forward and arguing that a candidate (particularly a well-connected one) is unfit for office. His life would become very hard, in court and elsewhere within the profession
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Well, I would think there would be some retired politicians who would be
quite pleased to do the job. I think that is quite possibly so because they’ve enjoyed, many of
them have enjoyed being in the cut and thrust of the States and, when that’s taken away from
them, they quite like to get back in there again, but albeit in a different capacity. So it wouldn’t
surprise me if there were some retired politicians who would want to do the job.
Mind you, at such a “vast drop in salary”, it is truse that any lawyer is doing us a favour being a crown officer for a mere £200,000 a year. How on earth do they make ends meet?
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Donald Pond, read post 46 again. The commentator was speaking in procedural terms and was looking at the evidence given by a particular witness. Rather than becoming hamstrung about a particular appointment (which was clearly not the import of the post), regard should be paid to the appointment mechanism. What the commentator is drawing attention to is the failure of the panel to look behind the simplistic statement that it would be, as put by the witness, “straightforward” for “people” to block a crown appointment. Two issues flow: Firstly, the ready and unqualified acceptance by the panel of this assertion and, secondly, the fact that no mechanism seems to be in place whereby such a thing might be achieved. If there is such a device, then it certainly is not transparent, as it would need to be if it were to be effective in any meaningful way.
You have suggested in your post that it is possible for the “people” to contest a crown appointment. Would you be able to kindly tell us how this apparently covert procedure operates?
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Very defensive post, Don Pond. And self contradict’s. You say that no one else wanted the job (ie one applicant) then you go on to speak of “all of the candidates”. And yes, it might be that the “mecanism” for saying no to some-one isn’t written down but then where is it? In some closed office somewhere? In some official’s head? I have never seen or heard of it and we do live in a democracy so we should have a say. Shouldn’t we? Pretty dangerous really. Why did the panel not look at this? How much did it cost?
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*47 I think that your valuable, if slightly caustic, insight shows the value of this forum. It has long occurred to me that there is no means by which the people of jersey can oppose a crown appointment, which is usually presented as a fait accompli.
It now appears that I have been mistaken for all these years because you have identified the hitheto unknown procedure. Would you please explain to us what (written or unwritten) mechanism is in place for the man in the street to give an opinion on a prospective crown appointee?
It’s a pity that the public didn’t know this before. There have been several appointments recently and I am sure that the appointments panel (which we didn’t know about until Carswell brought it out) would have have welcomed public consulatation on the appointments. At elast your forthcoming explanation will provide the necessary information, although why has not been publicised from the correct channels does seem a bit of a mystery.
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as much as i dissagree with the dual role of the bailiff, i must say, personal attacks on either Sir Phillip Bailihache or Mr Michael Birt should not be incouraged or tolerated. both have done/are doing fantastic jobs in their roles as president of the states, chief of the courts and civic head of the island. both are exemplary figures and merit every award given. i do believe the rold should be split and i do agree that the new “bailiff of the states” should be from within the ranks of the house, however, unlike in the uk, there are not over 400 mp’s and therefore not enough memebers to take one from the benches and place him or her as bailiff. there should be a seperate chief judge and states president but we must be careful as an island in how me develop this new system. jersey is jersey, we wish it to change, it will not change, all we can do is improve!
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I agree, Jersey Boy. We should not have people criticising those who hold crown office. Any such comments should be censored or stifled altogether. It should be a criminal offence to speak out or to voice dissent. With other parts of the world seeing a gradual dismantling of despotic states and dictatorships, it would be truly refeshing to see Jersey create its own path and buck the democratic norm. You simply cannot have peasants speaking out with regard to those betters who hold high office and who so so for a pittance of £200,000 per year. Have you considered standing for the States?
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OK, let me clarify.
If there was huge opposition to a crown officer’s appointment it would be reversed. Vernon Tomes is an example: while people say how popular he was, they forget that it was taking him 18 months to produce judgments. There was a widespread feeling among those who used the courts that this simply could not go on. Justice delayed is justice denied. And so, although no mechanism exists for replacing a crown officer, he was replaced.
It is worth remembering that there is no “public consultation” on appointments to the Supreme Court in either the UK or US.
If you think democracy means that people who don’t know about a matter should be able to dictate it fair enough.
I can see that there should be an election for the Island’s “figurehead” and I have no problem with the figurehead no longer being the Bailiff.
But why should the appointment of judges be voted upon? Do the population of Jersey really have the technical knowledge of what makes a good judge for any vote to be meaningful.
I have never heard any lawyer in Jersey talk about either Philip Bailhache or Michael Birt as being anything other than technically extremely competent and utterly unbiased. And that, for a judge, is what it is all about.
But if 5,000 people went out on the street and provided the LG with a reasoned explanation of why they thought Howard Sharp, Tim Le Cocq or William Bailhache were not suitable appointments I’m sure something would happen. But a few voices banging on about “the establishment” with neither evidence to support their views nor proposals for any alternative will, in general, be ignored.
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At 47, “Must we endure this tripe?”. Brilliant! That one sentence sums up everything that is wrong with accountabilty in Jersey. With supposedly intelligent, professional people making comments like that, is it any wonder that our closely-knit institutions are coming under ever-increasing scrutiny?
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There is no mechanism whereby an appointment can be stopped. Why did the Carswell panel not home in on this? The panel simply took the statement at face value and moved on. Surely the next obvious question would have been to have asked the witness to explain how the “people” to whom he referred could have caused him not to have been appointed? Was the review panel a whitewash which simply made one general finding that it had to make anyway?
What likelihood was there of established members of the legal profession who wre on the panel making a finding against what is established (answer: none) How much did this “going though the motions” exhibition cost the taxpayer?
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It doesn’t matter that we have no say in how they make crown officers. The people who do this job are doing us a favour bacause no-one else wants the salary, the perks (including free parking) or the possible knighthood. I’m quite happy on my £19k a year and it gives me a warm glow knowing that my betters are looking after me for only ten times my salary.
Also, they are all such nice people that nothing could possibly go wrong. You can’t remove them anyway. So I agree with Jerseyboy that anyone who says anything rude about the crown officers or the legal process should be put in prison and the key thrown away.
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Don Pond very good. But there is no mechanism, as WB said when he gave evidence, for “people” to stop an appointment and believe me, there have been concerns over the years from both within and outwith the profession.
And as for Mr Tomes, if you read his judgments you will see that they are (what are the words which you used?) “technically extremely competent and utterly unbiased”. Indeed, he was probably the finest ecrivain of this time and his judgments were seldom successfully appealed. I think we both know that the removal from office of Tomes is something which was painstakingly engineered after the island had had the benefit of his legal mind for 24 years as a crown officer. You forget as well, that Tomes not quite replaced; indeed, his “replacement” was in office as a commissioner for three years with a view to assisting the workload of that department. The true reasons of the Tomes affair are more complex than the simplistic version which you have clearly adopted. The opposite of delayed judgment is over extemporising; if indeed you have used the court you will know what I mean and to whom I refer when I mention this.
So, there we have it. The topic is not “tripe” as you intially asserted and contrary again to your initial stance, there is no mechanism by which concerned parties can have any input into crown appointments. The incorrect statement made to Carswell which suggested that such a thing did exist (and that it was “quite straightforward”) was not challenged by the panel, who appeared to be quite happy to accept the fiction at face value and not to quesion it, no doubt for reasons which will never be explained. That last part, at least, is not surprising, particularly against the background of secret soundings.
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Donald Pond said
“If you think democracy means that people who don’t know about a matter should be able to dictate it fair enough.”
What does this mean? Does this mean that the public is too stupid to have a view on crown appointments? Have you assumed that the public is of such low collective iq (unlike yourself) that it can’t possibly discern what may or may not be a festering miasma?
Or does it mean that the “secret soundings” (a process now discredited in England and elsewhere) should continue because the people wouldn’t have the sense to know so why tell them anything?
Either way, it seems to sum up a lot about waht is wrong with the island. Ivory towers and secret process sounds like a particularly dangerous and unpleasant combination. Someone became Chancellor somewhere not so far away in 1933 and we all know where that led.
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It looks as though someone is suggesting that people are too stupid to hold educated views. How funny in this day and age! Perhaps that is why the Carswell panel didn’t ask too many of the right questions…….
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“But if 5,000 people went out on the street…” they have done, Queens Valley (11,000), GST (20,000), the Tomes affair (hundreds in the Royal square) and no-one listened!
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#61 Naughty Democrat “Someone became Chancellor somewhere not so far away in 1933 and we all know where that led.”
I think you have a good point, in respect of the public’s right/ability to have a say, but I don’t think this is the best example to support your case: There were a great many things which contributed to Hitler’s rise to power. ‘Secret process’ was arguably one of them – for wherever there is politics, there will always be political deals done; but it is undeniable that electoral success was another.
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“Does this mean that the public is too stupid to have a view on crown appointments?”
No: it means that the job of a judge is a technical one and that the public doesn’t have the technical expertise to make the appointment. Would you decide who should be a surgeon or the head of the armed forces based on a popularity contest? What would the judge’s policy be for this election you propose – they have no power to make laws or to control policing?
By all means have an elected head of state. I have no problem with that, But an elected judiciary is fraught with difficulty. The fact that people don’t see that shows how little they understand the problem.
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donald pond (65) , But an elected judiciary is fraught with difficulty.
Donald, whilst I cannot agree with all you say, on this I do agree, but answer me this; If the Bailiff is a Crown appointment, why should the Bailiff not be appointed like all other Crown judiciary?
Most Crown courts employ circuit judges, as required, after all even Jersey currently employs UK based judiciary on a locum basis, as required. This would solve the problems for both Jersey and Guernsey, both of which have Crown courts in accordance with our much cherished customary law and practice. Might even save on the wage bill, but that is secondary to justice.
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Frozen Aspic (60)
For the sake of completeness I should saw I wasn’t in the Island at the tme of the Tomes affair and you obviously know the details better than I do. My point was simply that a crown officer was removed, so there must be a mechanism for doing so.
I’m not that happy being painted as an establishment figure: I’m not on speaking terms with any of the Crown Officers and am not a member of any club etc. I can see a strong argument for having an elected head of state (though its unclear what powers he would have).
But electing judges: no thanks. I do however wish the States would take a more active role in drawing up sentencing guidelines. But none of them have the brains or legal knowledge to stand up to the crown officers. I’d say that’s where one of the problems is: not the calibre of the crown officers that we don’t elect but the ship of fools that we do.
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Donald Pond; interesting points again. Firstly, the surgeon analogy which you have put. That really is a different matter bacause, in general terms, a medical practitioner’s duties do not impact upon politics and the rights of people. A medical practitioner is a scientist while a judge, although of technical expertise, is also supposed to reflect society’s mores, to be in tocuh with the people and to be politically mature. The latter particularly applies in Jersey where the judge also acts as speaker and can influence to a certain but nonetheless significant extent the questions which can be asked in the house.
You also seem to have become confused between transparancy and public consultation and election. The two things are not the same. You have also lost sight of the original thrust of the argument, namely the incorrect assertion by a crown officer that “people” could stop and appointment and that such a thing would be “straightforward”. That point was not challenged by Carswell, even though it clearly begged further examination. The fact that the panel did not look behind the assertion seems to speak volumes about the terms of reference. The panel did not even properly question why the Bailiff’s post was not advertised.
You go on to suggest that members of the States do not “stand up” to these unelected figures. I am afraid that they do from time to time. If you read the Carswell transcripts, you will see that complaints have been made. The authorities in England have refused to deal with the complaints. The rather glib explanation as to why that was so came from the same witness who made the statment referred to above. Do have a look, it is rather amusing and telling.
Don’t worry about your perceived credentials. I had already gathered from your comments that you were not in the island at the time of the Tomes affair. Had you been so, I doubt that you would have been so ready to have accepted the official version of events. Much, if not all, of the fault lies with those who persist in promulgating the same. The value of this forum in blowing such nonsense out the water remains pertinent!
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Nouva vista:
I agree. I have no problem at all with the judiciary being appointed by and shared with the UK and Guernsey. And were it not for the theoretical conflict of interests, such persons (senior UK judges) would be the best choice of president for the States.
It’s when the Bailiff takes on the political figurehead role that I believe problems arise (or when he took it on himself to reintroduce a tradition of Norman customary law governing contracts that had been extinguished 50 years previously and for which there was no demand).
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Interesting that all the anti Government posters evidence their claims that Jersey is a right wing dictatorship on the basis that the people of Jersey don’t vote for extreme left wing, anarchist candidates because they continually put their “X” in the wrong box.
Now they claim that the only way forward to entrust these same misguided, brainwashed voters who put their Islands prosperity ahead of political correctness to appoint a new “peoples” bailiff. When Frank Walker returns to the Island to take up his £250k appointment these same posters will be demanding that such appointment is made by the States from some non political jurat.
In the meantime I assume that Lord Carswell is on his way back to England to dismantle the monachy!
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It’s been said before; we need an appointments commission instead of all these secret soundings. In England, the appointment of queen’s counsel and of judges used to be by secret soundings but that system has gone. It has been replaced by a proper consultation procedure. Until Carswell, we did not even know what the procedure was in Jersey. Now we do. It is, in simple terms, the Bailiff who chairs a panel with two others, one of whom is a jurat (made Lieutenant Bailiff by the Bailiff!). In passing, one might question whether the honorary role of jurat should rightly encompass this responsibility, which naturally has an effect on someone’s career as well as the wider aspects of the office.
In reality, the Bailiff probably has the actual “say so”, because who would disagree with his view, particularly the Lieutenant Bailiff appointed by the Bailiff!
There are those, furthermore, who would question whether it is correct for a judge to be involved in, far less to influence, the appointment of a public prosecutor. This came up before the Carswell panel. What did the panel do? Bearing in mind the comments made in the above posts, it will come as no surprise to hear that it effectively did nothing. It did not question the evidence, nor did it look further into the matter. One has to ask really what indeed was the point of the exercise?
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donald pond (69) It’s when the Bailiff takes on the political figurehead role that I believe problems arise (or when he took it on himself to reintroduce a tradition of Norman customary law
Donald, could not agree more. The problem being; just what did the Dukes and Kings of the Norman tradition mean, or want to mean, pre1204 or should we say pre1214. I don’t believe this can be taken as a reliable benchmark in the context of a 21st Century Europe. Norman customary law is a heart feudal. Is that what we want? We have been a constitutional monarchy for the last 300+ years!
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#68 Solvalub “a judge, although of technical expertise, is also supposed to reflect society’s mores, to be in tocuh with the people and to be politically mature.”
Many people may have such expectations, but I don’t believe they are reasonable. Social mores are far from being central to interpretation of the law, which generally follows some way behind social change; and any politicisation of the judiciary strikes me as being inherently a very bad thing.
It is for politicians in framing law, not judges in interpreting it, to reflect social mores (while also having a mind of their own, since they are elected representatives, not delegates), and to be in touch with the people. There are many occasions when a judge, for sound reasons, will reach a decision which is politically unpopular, or which would not be supported by a referendum or an opinion poll.
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Electing the judiciary is completely out, Donald Pond is correct about this.
But the idea of getting judiciary from UK is also completely out – they are NOT qualified in Jersey law. Appointing one or two as commissioners for certain cases is one thing, but they would not be competent to deal with matters involving Norman law, or anything with authorities in French, such as wills and land issues.
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Here is an idea for a Speaker to preside over the States.
Only people who had been elected to the States and served as an elected member for a minimum number of years or terms (say five years or two terms) would qualify, but such people could stand in island-wide elections to be elected as Speaker.
Or an additional Senator could be elected island -wide and then the States would elect one of the newly elected Senators to be Speaker, and 1 or 2 others to deputise if Speaker was ill or absent. No one could be Speaker for more than two terms.
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I can’t agree with the comment regarding the “reintroduction” of contract law that had been “extinguished” fifty years previously…..what exactly do you refer to? If the case in hand is Selby v Romeril then we seem to be talking standard stuff which, as the headnote states, is in the light of ongoing developments. You could equally argue that the then Deputy Bailiff got it wrong years ago when he disrgarded the law of “resolution”. Commercially sensible, perhaps, but the law of Jersey it was not. There is a law commission paper on the subject. Have a look when you are in between clients!
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You’re right Jerry. Hitler was elected. He tried to get in by revolution but failed and was imprisoned. While in Jail, he wrote” Mein Kampf”, which clearly set out his intentions. Very unfortunately, no-one took him seriously and he went on to carry out what he had said he would. What is the answer? Don’t vote for these people! Closer to home, there are, as you know, at least one or two rather sinister figures in the states who, like Hitler, are persuasive speakers. Like Hitler did, they appear on the face of it to be a “safe pair of hands”. I wonder if they will get in again next year?
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71.The powers that be had better shape up to their responsibilities PDQ.the people have rightly had enough of being made fools of…it is the right of the people to have Govt and systems in place that are Honorable, transparent, and trustworthy…or the whole house of cards will come down….Z
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Well seeing that we can not or will not get it right we should consider making it at least Fun, and as we are willing tom pay Tom ,Dick and Harry as consultants and experts on every conceivable subject then ignoring it ..I propose we pay Billy Connolly to preside over States sittings, the jovial interjections would give Ben Queree something to write about and the wee buggers could finally have someone to look up to..see you, ya Bassa.
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Jerry; It is for politicians in framing law, not judges in interpreting it, to reflect social mores
Nonsense! The judges have to interpret the law to move with the times, sometimes to the embarrassment of the legislature. Your manner of thought would lead to stagnant and ineffective law. You clearly have no legal education (no offence intended), otherwise you would know that judges do make the law, even if they pretend not to. Look up the english case of RvR and numerous other cases involving “womens’ property equity” if you don’t believe me! Similarly, the now late Professor Griffith wrote an excellent, if slightly left of centre, book on the matter. Judges have to be in touch with society in order to do their job. Otherwise, we will get “who are the Beatles” on the bench!
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I do not suggest it to be deliberate but the Carswell report makes no mention of probity, as if it were not a consideration. The so-called ‘guarantee’ of independence owing to appointment by the Crown doesn’t assure conscionable service.
Independence is no guarantee of probity or of satisfactory performance. If, for instance,the behaviour of the Attorney General was not ‘good’, what is the reality of the situation? Would the Crown intervene or would it be an impossibility to get any action?
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#77 Elton
Many local politicians have faults, and all of them, I expect, have enemies; but rationally, there is no-one in the States who warrants comparison with Hitler on either of your measures (‘sinister figure’ and ‘demagogue’). So, contrary to what you claim, I do NOT ‘know’ of these ‘sinister figures’, and have no wish to be associated with your private witch-hunt, whether its unnamed targets are on the left or right of Jersey politics.
#61 adduced Hitler as an archetypal example of ‘secret process’ leading to power. All I said was that Hitler’s rise to power can’t be so simplistically categorised, and included (as well as, for example, demonisation of his opponents) a number of public elections in which his evil message resonated with a large number of voters.
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Hello, 81. You asked what the Crown would do if there were to be a complaint against a crown officer. I can answer that question, I think. Two complaints were made relatively recently, by Deputy Hill I believe. The authorities in England declined to do anything. Indeed, their stance was that it should be a matter for the insular authorities. In other words, the complaint would be handed back to those about whom the complaint was made. So much for accountability.
The Carswell report raised this matter with the witness W Bailhache. Mr Bailhache said (see transcript to which the link appears at post 37 above) that the fact that the UK authorities did not want to look at the complaints was probably because they thought that there was nothing in the complaints. If true, this would seem to be a somewhat unsatisfactory state of affairs.
Again, one can validly question why the Carswell panel did not take this rather circular argument further. Surely the witness should have been questioned on the simplistic observation? How can the crown officers be supervised or otherwise held accountable? It seems that they cannot. On that basis, one would have expected the panel to recommend the implementation of a check or balance as a matter of the utmost urgency. Unless I am mistaken, no such recommendation has been made. This tends to lend weight to the growing perception that the panel has undertaken, no doubt at great public expense, what would be termed a “whitewash”.
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You sound a bit prickly there, Jerry. The lady doth protest and all that? I don’t think anyone is asking you to associate with anything so why be so pompous!? What is “demogogue”? Do you mean “demi god”, a phenomenon which sometimes causes votes to be cast for charismatic, if ofetn evil, figures?
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I don’t think anyone is talking of a witch hunt, Gerry. In fact, you mentioned the dictator youself, so you can hardly be blamed if someone else does as well. Think of it as mature and abstract debate; the point of the post as I read it is that some people, while elected and charismatic, are quite clearly unfit for office. Simple as that, really. And I do agree that some of the people in the states at the moment are slighly “sinister”. If you can’t tell which ones are which, then I guess your voting paper will reflect that!
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#80 Npec Limpet
So you’ve had some legal education, and you may have read a book, once. Congratulations – I’d never have thought you had it in you! Real shame about the exams though, eh?
I’m afraid the more you try to sound magisterial, the more you show yourself up as the failed apprentice.
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Any comparison between the States as they now stand and the rise of Hitler and the NSDAP is completely insane.
Hitler was on the surface a democratic politician but he was the leader of a party that did not believe in democracy or the rule of law in a large part.
The other parties could have blocked his rise to power but they did not, more shamefully some people believed that they could use the NSDAP but then found that it was stronger than they were.
The SA and SS were paramilitary arms of the NSDAP and they operated with sometimes the covert approval of the authorities before Hitler became Chancellor, after that they were incorporated in to the state.
There are plenty of good books on the Nazi period, I would recommend Tolland or Bullock, it was a tyranny and a mess. It was amazing that it worked at all let alone conquered most of Western Europe.
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#84 Tom – I have no idea what a ‘demogogue’ might be. The word I used was ‘demagogue’.
#85 Word salad – If you read the thread, you will see that I didn’t raise the subject of Hitler. The person who did that was Naughty Democrat @61, and I disagreed with his analogy.
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Trying to make any Comparison of GST to the Nazi holocaust is just sick.
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87 Pip…you really think so…this is NOT democracy ,it merely pays lip service to it…Europe says it’s illegal to import Tazers..this lot still want them….Ian Le Marquand stated in the Curtiss Warreen case that it was o.k. to break the law in “Certain circumstances” and he an ex magistrate the cops broke the law in France to enhance their case.Stuart Syvret was dawn raided…NO warrent required under the new Pace law which I’m convinced contravenes European Human Rights law..and scarilly very few citizens seem to understand how invasive to the private individual it is.ie if someone tells the cops they suspect you have xyz at your house they can steam in and turn your place over no questions asked…and Pip you see no similarities……sheesh
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Jersey has a rather febrile democracy and the Jersey police are lucky that there is still not a police authority.
However it is not comparable with interwar Germany. The later years of the Weimar Republic saw both the Nazis and Communists murdering hundreds in a vicious street war.
After the Nazis were in power they liquidated their opponents both inside and outside the party.
Curtis Warren and Stuart Syvret would never have made it to trial under the Nazis, they would have simply disappeared!
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What does demagogue mean Jerry? And what are these exams that you have taken?
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Jerry at 86/88; before you result to what seems to be a personal attack on post 80, always the sign of a loost argument in my view, why not just read the cases which he/she mentions. You might actually learn something. Think before you take umbridge and try to get all pedantic/superior. What is npec limpet anyway!?
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Pip has a good point. The nazi analogy which Gerry brought up is a good one because it shows what, goodness forbid, might happen under an extreme government. In comparative terms, we do have a democracy, it just isn’t a very mature or sophisticated one yet.
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truthseeker @ 90, as usual, your post contains so many falsehoods, it’s difficult to know where to start. Regarding police searches without warrants, there are a number of cases where it is perfectly legal without a warrant, including after arrest. Our laws are almost exactly the same as the UK, where it would happen just the same in the same circumstance. Still, no need to let the truth get in the way of a typical nonsensical truthseeker rant is there…?
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92 Puzzled – Does the word ‘dictionary’ mean anything to you? No? Then I’m afraid I can’t help you.
93 Carlos – I’ll take your word for it that taking umbridge is the sign of a loost argument – Rofl.
94 Sensible – I didn’t bring up the Nazi analogy – Naughty Democrat did.
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