The Bailiffs' role as speakers

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This article by Sir Peter Crill was first pubished in the 1997 Annual Bulletin of La Société Jersiaise

The Presiding Officers of the States of Jersey in the Channel Islands came to the Chair by a completely different route from their Commonwealth counterparts. The office of Speaker in Parliament is, of course, an ancient and honourable one which is well understood in the United Kingdom. It was exported, along with other parliamentary institutions, to the English colonies and took root in the local legislatures, sometimes strongly, sometimes tenuously, but it flourished and survived, and a recent Conference of Speakers and Presiding Officers of the Commonwealth testified to its strength today.

A different path to democracy

The Channel Islands of Jersey and Guernsey, however, whilst within the British Isles but outside the United Kingdom, have never been colonies and their geographical position, and early poor communications between England and the Islands, meant that for many years parliamentary institutions and practices were hardly known to the insular legislatures which, evolving over the centuries, are called the States, a name which they have borne for over four hundred years.

It is not surprising that this was so because, originally, the Islands were part of the Duchy of Normandy and remained so until the Duchy became separated from England when King John lost his continental possession in 1204. Norman institutions survived in form because the origins of parliamentary democracy in the Islands were different. The name of Speaker is not to be found in any statute or standing order of the States of Guernsey or Jersey.

The States evolved from the much more ancient Royal Court, which had consisted only of the Bailiff and twelve elected jure-justiciers (Jurats). In the course of time the Royal Court, in Jersey, enlisted the help of the twelve Rectors and Constables, first as advisers and eventually as members. This increased assembly became known as Les Etats (the States), the present legislative chamber. All permanent legislation (projets de loi) passed by the States still has to be registered in the Royal Court after sanction by the Crown in Council.

That symbol of parliamentary sovereignty, the Mace, given by the House of Commons to several early fledgling Parliaments in the Commonwealth, has been carried before the Bailiffs of Jersey since 1663, when it was given to the Bailiff of that time by Charles II, but with a difference. It is not the Speaker's Mace. It is the Bailiff's Mace, and it is carried before him, not only when he presides over the States, but when he sits as Chief Justice in the Royal Court. Guernsey did not enjoy Royal favour after the Civil War of the seventeenth century because it took the parliamentary side; therefore it does not have a similar Royal Mace.

Royal connections

It may be helpful, before examining the Bailiff's role as Presiding Officer of the States, briefly to outline some salient parts of the Channel Islands' constitutional history.

The Islands consist of two Bailiwicks, Guernsey and Jersey, and each has its own smaller dependencies. Jersey and Guernsey are not independent states, but dependencies of the Crown, which exercises its paramountcy through the appointments of its Lieut-Governors and the other Crown Officers: the Bailiffs, the Deputy Bailiffs, the Attornies-General, and the Solicitors-General. Yet, whilst the Crown is ultimately responsible for the good government of the Bailiwicks, both of them have a high degree of internal self-government, subject to the sanction of permanent Bills by the Crown in Privy Council.

Originally the Crown exercised its legislative powers in the Islands by means of prerogative Orders-in-Council. In 1970, the States of Jersey submitted to the Crowther, later Kilbrandon, Royal Commission, which was charged inter alia with the examination of the constitutional and economic relationships of the Islands (and the Isle of Man) with the United Kingdom, that the prerogative Order-in-Council had fallen into disuse. That claim was resisted by the Home Office in its memorandum to the Royal Commission.

It used to be the Sovereign's principal Secretary of State who advised the Crown on the Islands and, following the creation in 1804 of the Colonial Office, the Islands remained under the aegis of the Home Office. It is the Home Secretary as a Privy Councillor who exercises, through his Department, the oversight of the Channel Islands and who advises the Queen whether to assent to Bills sent up for sanction. There is a convention that, although the Crown in Parliament may legislate for the Islands, it does not do so in domestic matters, which include taxation.

On the statute books

An interesting resume of the origins of the laws of Jersey in particular is to be found in an English case of a debtor as regards the Royal prerogative in the Channel Islands. At page 671, Goulding says this:

"Council for the debtor emphasised the reference to the Crown's sovereignty in right of Normandy, and said that therefore the Channel Islands are not possessions of the British Crown at all. It is, however, far too late today, whatever may have been the position during the lives of the Conqueror's sons, to think of England and Jersey as connected by a mere personal union of Crowns, like Great Britain and Hanover before the accession of Queen Victoria. The legislative authority of the Parliament at Westminster and the appellate jurisdiction of the Privy Council ... are testimony to the contrary. As long ago as the middle of the seventeenth century, Sir Matthew Hale concluded a discussion of the Royal prerogative as to the Channel Islands with the sentence: "And now by long usage these islands are annexed unto the Crown of England, and though not infra regnum, yet they are infra dominium regnisui Angliae".

Officers in the States

After the loss of continental Normandy, the English Kings retained the Channel Islands as part of their possessions and they were finally annexed to the English Crown by Henry II. To govern the Islands, the Kings appointed a Warden, or Governor, who had both military and civil powers. Eventually Guernsey and Jersey each had a Governor and they in turn appointed Bailiffs to act under them to attend to civil affairs.

Since 1495 the Bailiffs have been appointed by the Crown. In the time of King John there came into being the office of Jurat - the nearest modern equivalent approximates to a Justice of the Peace, but the analogy must not be pressed too far. As was stated in a recent judgement in the Jersey Court of Appeal: "The Jurats number only twelve and they are chosen to administer justice in this Island on the basis that they will bring knowledge, experience and independence to their important office".

The Jurats declared, sometimes with the King's Justices in Eyre, what the common law was. The Jurats, with the Bailiff and eventually with the Rectors and Constables of the twelve ancient Parishes, and popularly elected Deputies from the middle of the 19th century, acted as legislators and administrators.

The final change (is there ever any final change in political evolution?) came in 1948 when the Jurats and Rectors were removed from the States, partly by their own votes, and the States of Jersey now consists of twelve island-elected Senators, twelve Constables and 29 Deputies, together with the Dean, the Attorney-General and the Solicitor¬General, all three of whom have the right to speak but not to vote.

It is over this body that the Bailiff now presides as his predecessors did over earlier bodies for many years. Thus the office and its functions are well understood and accepted by the Islanders.

Differences in the Chamber

The Bailiff, therefore, as presiding officer over the States, is nominated and not elected, but he presides over the Assembly, acting partly under standing orders and partly, where they do not cover a particular situation, by his own judgement and intuition. Erskine May [Treatise on the Law, Privileges, Proceedings and Usage of Parliament] is available and consulted, but the vast body of rulings by the Speaker of the House of Commons is too large for all his or her rulings to be applicable to a small Chamber consisting of 53 independent Members. Although not elected, it is now accepted that, in advising the Queen as to who should be Bailiff, the Home Office has to be satisfied, by informal soundings, that the candidate would be acceptable to the Island.

Unlike the House of Commons, prayers in the States are said in public, and also the roll call is taken in public. Again in contrast with most Legislatures, the Bailiff remains seated throughout, except for prayers and when reading, for example, a Royal communication or rising to obtain order when exhortations have failed.

The Crown's executive powers are retained in the veto - over matters affecting the Crown's interests - of the Lieut-Governor who has a seat in the States but no vote and, traditionally, speaks only on his retirement. As a result of earlier squabbles over jurisdiction between Governor and Bailiff, the Bailiff's seat in the States Chamber and in the Royal Court is higher than that of the Lieut-Governor.

Role of the Bailiff

The Bailiff has a right of dissent under an Order-in-Council of 1786, but since given statutory recognition. It suspends the operation of measures which the Bailiff considers the States are not empowered to pass until the Crown in Council has considered and allowed them.

The Bailiff has the right, if he and the Deputy Bailiff are unable to preside over the States, to nominate a Member or Officer of the States to act for him. This does not happen very frequently because in a non-party Chamber most Members wish to speak in all but the most routine of debates, and the President of the House has only a casting vote which, by custom, he uses in order to enable the States to debate the matter again during another sitting.

The Bailiff is available to any Member to assist in drawing up propositions, or advising on procedure. Sometimes he chairs a meeting of senior Members on general matters arising out of earlier debates, such as the Order Paper for the next sitting. He is the channel of communication between the insular authorities and the Lieut-Governor who, in turn, transmits the official views of the States to the Home Office.

In addition to his duties as presiding officer, the Bailiff is called upon as civil head of the Island to represent it at a number of official functions in both the Island and the United Kingdom. On important matters of policy, for example civil aviation, he is expected to lead delegations for discussions with the Home Office and other ministries. To some extent, therefore, his duties in relation to his position as presiding officer are fuller than merely acting as a Speaker. Moreover, he is the President of the Court of Appeal and Chief Justice of the Royal Court, which roughly corresponds to the High Court.

His position in relation to his dual functions - judicial and legislative, but not administrative - was examined by two Royal Commissions, firstly in 1946, and then the one I have mentioned, the Crowther Commission, in 1969; no recommendations were made for any change, mainly because there had been no representations to that end by the States or people in the Island.

Thus the Bailiff, qua Speaker, has extensive powers, but he must be careful to exercise them constitutionally and in accordance with the well-established constraints of his office.

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