The question of separating constitutional powers in Jersey is more complex than it appears. Here’s why.

Jersey and Guernsey are unique globally in having constitutions that in the ancient office of Bailiff fuse together the roles of chief justice and presiding officer of their respective courts and parliaments. As I argue, this is further complicated by a third role, as “guardian of the constitution”.

Jersey’s current Bailiff, Sir Timothy Le Cocq, has described the position as “the best job in the world” but plans to retire in 2025. Under the current system, his successor will automatically be the current Deputy Bailiff, Mr Robert MacRae – unless, that is, the States Assembly agrees to Proposition P.83/2024 to end the Bailiff’s role as its President. The proposal, made by a politically diverse cross-section of members, will be the fourth attempt in 11 years to give the Assembly the power to appoint its own speaker, either from among elected members or an external candidate. 

The debate is highly emotive, reaching deep into feelings about the island’s heritage, national identify, and Jersey’s place in the modern world. The intensity of opinion among reform advocates and traditionalists is comparable to debates in the UK about Scottish independence or Brexit. 

The case for reform

Reform advocates make two main arguments for change.

First, as Jersey matures as a democracy, members of the island’s parliament should have power to select – and, if necessary, dismiss – its speaker. There have been major constitutional changes in recently years, notably in 2005 the introduction of ministerial government and a parallel scrutiny function in the Assembly. Currently, the Deputy Bailiff, a position (like that of Bailiff) reserved exclusively for Jersey-qualified lawyers due to its judicial responsibilities, automatically succeeds the Bailiff upon retirement without a full appointment process. The Deputy Bailiff’s appointment is made formally by the Crown, on the recommendation of a panel consisting of the Bailiff, another judge of the Royal Court, and the chair of the Jersey Appointments Commission. The process is relatively transparent, with an advertisement, job description and consultation process, including of some States members who hold particular Assembly roles. But what is missing in the Deputy Bailiff’s selection process, reformers say, is a vote by the entire Assembly. 

This lack of parliamentary authority was starkly highlighted during the 1992 Vernon Tomes affair. As Deputy Bailiff, Tomes regularly presided over the Assembly but came into conflict with the Bailiff over shortcomings in the judicial side of this role, including tipping off friends about police raids and delays in issuing judgments. At the request of the Bailiff, Tomes was removed from office by UK Home Secretary Kenneth Clarke. States members had no say in the process that in effect removed one of their presiding officers. In a twist, Tomes stood for election as a States member the following year, topping the polls.

The second reform argument concerns adherence to internationally accepted standards of judicial independence.  Reformers point to three major external inquiries, all of which recommended separating the Bailiff’s judicial and legislative functions for this reason: Sir Cecil Clothier QC’s 2000 blueprint for ministerial government; Lord Carswell’s 2009 review of the Crown Officers; and the 2017 Jersey Independent Care Inquiry chaired by Frances Oldham QC which, while focusing on systematic failures in child care, also flagged concerns about governance structures. 

The traditionalist perspective

Opponents of reform say the Assembly benefits from the Bailiff’s and Deputy Bailiff’s status as figures from outside the world of elected politics.  They offer continuity and stability over electoral cycles. Beyond practical considerations, traditionalists view the Bailiff’s dual role as a cornerstone of Jersey’s constitutional heritage and a vital aspect of the island’s national identity. There is significant anxiety about the ripple effects of altering the Bailiff’s responsibilities. Traditionalists warn that removing the Bailiff as President of the Assembly could weaken the office’s status as the civic head of Jersey and undermine its role as the guardian of the constitution. Moreover, they fear that shifting this function might subtly transfer influence to the Lieutenant Governor, the Crown’s resident representative.

Traditionalists look to the recommendations of two earlier inquiries that saw no need to alter this historical role of Bailiff as President of the States: the post-Occupation 1947 report of the Committee of the Privy Council on Proposed Reforms in the Channel Islands (Cmd 7074) ; and the 1973 Kilbrandon Royal Commission on the Constitution.

My analysis

My analysis of the situation will irritate both reformers and traditionalists. I believe reformers correctly identify the need to address issues related to judicial independence. However, they are targeting the wrong problem, and as a result, proposing a solution that may not adequately address what should be a core concern.

Judicial independence: ECHR Article 6

In McGonnell v UK (2000) 30 EHRR 289 – a Guernsey, not Jersey, case – the European Court of Human Rights held there was a breach of Article 6 because the Bailiff, while Deputy Bailiff, had presided over the Guernsey States of Deliberation when it adopted the planning law that several years later was the subject of the case that the Bailiff decided as a judge. The basic lesson for both islands is that the Bailiff/Deputy Bailiff should not be the judge in a case involving legislation adopted by the States at a session when they were the presiding officer (I discussed the issue here in 2011). 

The 2009 Carswell review grappled with a broader question: does Article 6 have structural implications for the Bailiff’s dual role as both a judge and President of the legislature? To explore this, Carswell bypassed Jersey’s Attorney General and sought an external opinion from Rabinder Singh QC of Matrix Chambers. Singh’s analysis concluded that the Bailiff’s dual role did not inherently breach Article 6. However, Singh went on to say “the international trend suggests 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 6, in particular because the Bailiff and his deputy are both judges and presiding members of the legislature” (see P.160/2013 Com.(2) pages 25–32).

Jersey’s Attorney General at the time, Timothy Le Cocq (now Bailiff), and the Solicitor General, sharply criticized Singh’s reasoning. In their commentary on the 2013 proposal to remove the Bailiff’s dual role, they dismissed Singh’s speculation as unfounded. They argued that “English counsel did not mention that the European Court has consistently held that constitutional theories [such as separation of powers] are not relevant to determining judicial independence.” They asserted there was no reason to expect Strasbourg to deviate from this established approach (P.160 Com.(3)/2013).

In my view, eleven years on, the Attorney General’s 2013 critique remains relevant and persuasive. Strasbourg jurisprudence has shown little indication of adopting the expansive interpretation of Article 6 that Singh predicted. 

The Bailiff’s triple role: guardian of the constitution

An overlooked aspect of the debate on judicial independence in Jersey is the Bailiff’s third role, as the guardian of the constitution. This function is separate from his role as chief justice and President of the States Assembly. It received no consideration in the 2000 Clothier report and only brief attention in the 2009 Carswell report, which devoted just two pages to the issue. Carswell concluded:

“The Bailiff should continue to be the guardian of the constitution and the conduit through which official correspondence passes. He should also receive copies of communications not forming part of official correspondence which contain potential constitutional implications” (pp 42-43).

In a 2020 article for the Jersey and Guernsey Law Review, Robert MacRae, the current Deputy Bailiff, offered what the editor (Sir Philip Bailhache, a former Bailiff) described as “the first detailed explanation in modern times of the origin and extent” of this function.  MacRae noted that “it has not been suggested that the Bailiff should cease to be guardian of the constitution”. I challenge that assumption here. In my view, which will be regarded as heretical in Jersey, it is wholly inappropriate for a chief justice to have a “guardian of the constitution” role of the type that exists in Jersey. Of course, there can be no objection to a chief justice exercising influence over constitutional rights through court judgments – but practices in Jersey are quite different.

MacRae’s analysis highlights several historical instances where the Bailiff has played a pivotal role in Jersey’s negotiations with the UK government. The most significant example was the leadership of Bailiff Sir Robert Le Masurier during negotiations surrounding the UK’s entry into the European Economic Community (EEC). His efforts secured Protocol 3 to the UK Accession Treaty, which established Jersey’s special relationship with the EEC while preserving key aspects of the island’s autonomy.

A more technical example cited by MacRae was the Bailiff’s intervention to secure better arrangements for the application of the UK’s Wireless Telegraphy Act 1949 to Jersey, safeguarding the island’s interests.

Since the introduction of ministerial government in Jersey in 2005, however, the constitutional guardian role has evolved. MacRae explains that the Chief Minister and the Minister for External Affairs now maintain more direct contact with UK officials and ministers, often bypassing the Bailiff. This shift reflects a broader transformation in Jersey’s governance.

Macrae identifies four specific features of the Bailiff’s modern constitutional guardian role.

Two are uncontroversial: “defending the independence of the judiciary” and “acting as a natural conduit for communications between the judiciary and the executive, so that each understands the legitimate objectives of the other”. These activities are widely accepted as normal responsibilities of chief justices in most legal systems.

However, the other two facets are in my view problematic: 

• “giving voice to constitutional concerns that might undermine the rights and privileges of the Island and of Islanders, and advising and warning the Chief Minister and Government of Jersey accordingly” and 
• “advising the Lieutenant Governor who in turn advises the Sovereign on constitutional matters affecting the Island’s privileges and freedoms”. 

To enable the Bailiff to carry out these functions, under an MOU with Jersey ministers, he receives copies of correspondence between Jersey ministers and their counterparts and officials in London. Macrae notes, “That may not happen as regularly as it did” (p 90).

Why does Jersey’s chief justice need to have an advisory function? Giving evidence to the Carswell inquiry, Bailiff Sir Michael Birt acknowledged that providing advice to Jersey ministers and the Lieutenant Governor is the primary responsibility of the Attorney General. But, Sir Michael said, “an Attorney General may be relatively new to the task and not yet steeped in the constitutional relationship in the way that the Bailiff is. The Bailiff is an important additional protection to safeguarding the constitutional position of the Island” (quoted in Macrae, p 89).

For many islanders, the idea of a senior figure outside of ministerial government overseeing constitutional matters is reassuring, particularly in safeguarding Jersey’s autonomy from potential overreach by UK ministers or officials. However, it raises fundamental issues.

First, it is difficult to see how privileged access to government correspondence and a power to advise ministers and the Lieutenant Governor behind closed doors does not fall foul of globally accepted international standards set out in the Bangalore Principles of Judicial Conduct. Value 1 on Judicial independence states that this “is a prerequisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects”. One of the given applications of this principle is that:

“A judge shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to a reasonable observer to be free therefrom”.

The gist of the principle is that judges must remain – and be seen to remain – at arm’s length from executive government.

Second, the guardian of the constitution role rests on a shacky premise that the Bailiff’s interventions are not political and that on any given issue there is a widely shared view about what is in the island’s and islanders’ best interest. The reality is that the matters on which a Bailiff may intervene can be – and have been – deeply political and divisive. 

Illustration: the struggle for gay equality in Jersey

Jersey’s hesitant journey toward LGBT equality illustrates the Bailiff’s constitutional guardian. In the year I was born, 1964, the island was an inhospitable place for gay men. That year, two men in their 30s were sentenced to six months’ imprisonment for consensual sexual acts, and one of them—a non-British citizen—was banished from the island for life. (This stark example of discrimination is detailed by Michael de la Haye, “The battle to end a long history of discrimination”, Jersey Evening Post, 18 May 2024 pages 22-23). 

In 1981, the European Court of Human Rights decided Dudgeon v United Kingdom, ruling that the criminalisation of consensual gay sex among adults violated Article 8 of the European Convention on Human Rights (ECHR), which protects the right to privacy. Despite this landmark decision, Jersey’s authorities were slow to respond to its implications.

By 1989, Jersey’s Legislation Committee, chaired by Deputy Edgar Becquet, remained resolutely opposed to reform. Addressing the States Assembly, Becquet argued that Article 8 included a provision permitting interference with privacy “for the protection of health or morals.” Citing AIDS as a public health concern, he claimed that “the health of the population of this Island must take precedence” over the rights of individuals to engage in what he referred to as “unnatural practices.” The UK Government became aware of Jersey’s stance.

A few months later, in April 1990, Becquet returned to the Assembly to report on a meeting at the UK Home Office. He assured members that there was “no constitutional crisis,” but recounted a stark warning from the UK government. The Minister for State at the Home Office made it unequivocally clear:

“If the island did not legislate, while the UK government was wholly sympathetic to the island’s constitutional position, which was not in question, then in order to fulfil its international obligations, the United Kingdom would reluctantly have no option but to legislate itself on this matter.”

Sir Peter Crill, then Bailiff of Jersey, corroborated this account in his privately published memoir, A Little Brief Authority (2005). Crill led the delegation to the Home Office:

“On arrival at the meeting, Mr John Patten, Minister of State, greeted us with something like this: ‘Good morning, Mr Bailiff and gentlemen. If the States do not change the law, we shall do it for them. Now, what was it you wanted to see me about?’ Collapse of stout party.”

Crill’s primary motivation in this affair focused on preserving Jersey’s autonomy, not the human rights of gay islanders. While the States of Jersey ultimately passed legislation to decriminalise homosexuality, Crill’s memoir revealed his personal opposition to the reform, characterising homosexuality as both un-Christian and “an offence against nature.” 

A problem overlooked by Carswell

The Carswell Review’s conclusion regarding the Bailiff’s dual role chief justice and President of the States Assembly was strikingly clear: it “fails to present to the wider world the image of a modern democratic state.” However, what is perplexing is the Review’s failure to critically examine the implications for judicial independence of the Bailiff’s role as a constitutional adviser and recipient of official correspondence. This oversight is surprising, given the standards for judicial independence articulated in the Bangalore Principles of Judicial Conduct. As noted above, this states that:

“A judge shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to a reasonable observer to be free therefrom.”

A Bailiff routinely exposed to ministerial and official correspondence and offering advice to the Lieutenant Governor or ministers cannot plausibly be perceived as fully independent when required to adjudicate upon matters relating to these interactions. Judges should not be offering advice to their government except through judgments delivered in open court. 

Illustrating the problem 

The 2006 case of Small v UK (Application no. 7330/06) provides a stark illustration of how the Bailiff’s constitutional guardian role could conflict with their judicial role. At the time, Jersey maintained a discriminatory age of consent: 18 for anal sex between males and 16 for vaginal sex between males and females. This clearly violated ECHR Article 8 (right to privacy) and Article 14 (prohibition of discrimination). In a courageous act, 16-year-old Luke Small, questioned by police over his relationship with his boyfriend, brought Jersey to account by making an application to Strasbourg. Confronted with the inevitability of an adverse ruling, Jersey settled the case, agreed to pay compensation, and amended its law. Going to Strasbourg was necessary because the Human Rights (Jersey) Law 2000 was not yet in force, leaving Small with no domestic remedy. But if such a case been brought domestically, a critical question arises: could the Royal Court have been regarded as an independent and impartial tribunal under Article 6 of the ECHR if the Bailiff, with prior involvement in these matters, presided? Bailiff Sir Peter Crill was long retired. But had he still been in office, his judicial independence would have been compromised—not because of his personal socially conservative beliefs, which he was entitled to hold, but due to his prior involvement in lobbying UK ministers against the decriminalisation of homosexuality. His roles as both constitutional adviser and adjudicator in a matter of such controversy would have eroded the independence required of a judge. 

The problem is that islanders do not know when and how a Bailiff exercises their advisory powers as guardian of Jersey constitution. This is carried out confidentially, behind closed doors. A judge—especially one in a position as influential as the Bailiff—cannot reasonably be perceived as independent when they have been directly involved in advising or shaping the policy framework that later comes under judicial scrutiny. The overlap between judicial and advisory roles is not merely theoretical but strikes at the heart of the legitimacy of Jersey’s justice system. The institutional design that allows the Bailiff to straddle judicial and advisory roles places Jersey plainly at odds with the Bangalore Principles. If, sitting as a judge in the Royal Court, a Bailiff were to adjudicate on a matter that had featured in official correspondence previously shared with him while Bailiff, or on which he had given constitutional advice on while Bailiff, it is difficult to see how this would be compatible with ECHR Article 6.

What to do?

My views on the Bailiff’s constitutional guardianship role will be unwelcome in some political circles. The island’s autonomy vis-à-vis UK interference is so highly valued that any perceived weakening of mechanisms designed to safeguard it is widely seen as unacceptable. But Jersey ministers and the Lieutenant Governor have a legal and constitutional adviser in the form of HM Attorney General for Jersey, supported by HM Solicitor General and a team of legal experts in the Law Officers’ Department. It is no longer necessary, in my view, for Bailiffs to continue to be involved outside the courtroom in diplomatic and political matters. 

But if my analysis resonates with others, the States Assembly could look for inspiration to recent developments in Guernsey. In July 2024, the Guernsey States of Deliberation approved a Requête (proposal) “to agree that the [Commonwealth Parliamentary Association] Latimer House Principles [on the Three Branches of Government] are relevant to ensuring that Guernsey maintains a strong and functioning democratic system” and set up a review reporting to the States after the next election in 2026. Introducing the proposal, Deputy Gavin St Pier pre-empted criticism by emphasising its practical implications: “it would be trite and easy to dismiss this Requête as institutional navel-gazing and irrelevant to our community’s key challenges of the moment. However, the eclectic mix of requérants drawn from across this Assembly is a demonstration of why this requête is highly pertinent to our ability to meet the needs and expectations of our community in the modern era”.

In Jersey, the 25th anniversary of the Clothier review in December 2025 presents a timely opportunity for a sharply focused but comprehensive review of Jersey’s governance structures, including the Bailiff’s functions. This would be far more effective than constant fragmented debates. So many new features have been grafted onto Jersey’s venerable and historical constitutional foundations that there’s a risk of subsidence.  It’s time for a proper structural survey. 

Andrew Le Sueur FRSA is Professor of Constitutional Justice at Essex Law School. These views expressed are in his academic capacity.

(Suggested citation: A. Le Sueur, ‘Finally, separation of powers in Jersey?’, U.K. Const. L. Blog (28th November 2024) (available at https://ukconstitutionallaw.org/))