Bailiff of Jersey

The position of Bailiff in Norman law predates the separation of Normandy in 1204.[2] When the Channel Islands were granted self-governance by King John after 1204, legislative power was vested in 12 jurats, the twelve "senior men" of the island. Along with the Bailiff, they would form the Royal Court, which determined all civil and criminal causes (except treason).[3]

Any oppression by a bailiff or a warden was to be resolved locally or failing that, by appeal to the King who appointed commissioners to report on disputes. In the late 1270s, Jersey was given its own Bailiff (the first record of someone holding the position is in 1277) and from the 1290s, the duties of Bailiff and Warden were separated. The (Sub-)Warden became responsible for taxation and defence, while the Bailiff became responsible for justice. While probably originally a temporary arrangement by Otto de Grandison, this became permanent and the foundation for Jersey's modern separation of Crown and justice. It also lessened the Warden's authority relative to the Bailiff, who had much more interaction with the community.[4]

In 1462, the occupying French Governor de Brézé issued ordinances outlining the role of the Bailiff and the Jurats.[5]^: 38 It may well be during this occupation that the island saw the establishment of the States. Comte Maulevrier, who had led the invasion of the island, ordered the holding of an Assize in the island. Maulevrier confirmed the place of existing institutions, however created the requirement for Jurats to be chosen by Bailiffs, Jurats, Rectors and Constables.[6] The earliest extant Act of the States dates from 1524.[7]

Peyton was also against democracy in the form of the States and the freedoms of the Courts in Jersey. In 1615, Jean Hérault was appointed Bailiff by the King, having been promised the role by Letters Patent in 1611. Peyton disputed this appointment, claiming it was the Governor's jurisdiction to appoint the Bailiff. Hérault asserted it was the King's jurisdiction to directly appoint the Bailiff. An Order in Council (dated 9 August 1615) sided with Hérault.

Hérault took this to claim the Bailiff was the real head of government and took steps to assert the precedence of the Bailiff over Governor: he ordered his name to be placed before the Governor's in church prayers and was the first Bailiff to wear red robes (in the style of English judges). To back his claims, he cited that in the Norman administrative tradition, the Bailiffs had "noone above them except the Duke".[8]^: 96–7[2] Though the Privy Council did not agree with Hérault's extreme position on the precedence of the Bailiff, on 18 February 1617 it declared that the "charge of military forces be wholly in the Governor, and the care of justice and civil affairs in the Bailiff." This secured for the Bailiff precedence over the Governor on justice and civil affairs.[2]

By 1750, the Bailiffship had de facto become a hereditary position in the de Carteret family. Absences of the de Carterets and all other high-ranking posts left Charles Lempière, the Lieutenant Bailiff, in effective full control over the island. Lempière was a Parliamentarian, but by temperament was autocratic. His family had significant power with a number of high-ranking roles in the island and he issued ordinances and quashed protest through his court.[8]^:195

After the 1948 States reforms, Jurats were removed from the States, now only sitting on the Royal Court (and the Licensing Assembly). The reforms declared that the Bailiff shall be the judge of the law, and the Jurats the "judge of fact".[8]^: 278–9

The Bailiff is appointed by the Crown through Letters Patent after consultation with the Island. They serve at His Majesty's pleasure, usually until an age of retirement as specified in their Letters Patent, unless they resign earlier.[9]

Ex-Bailiff Sir Philip Bailhache divides the role of Bailiff into four 'headings' –

1. President of the Royal Court
2. President of the States
3. Ancillary functions deriving from the Presidency of the Royal Court
4. Ancillary functions deriving from the Presidency of the States

The full list is expanded on in detail below, but the functions can be summarised as --

• Chief Justice and President of the Royal Court
• Speaker and President of the States Assembly
• Chief citizen of the island
• President of the Licensing Assembly
• Official conduit between the Government and UK Government
• Licensor of public entertainment
• Ceremonial functions: keeper of the Royal Mace, custodian of the island's seal

The Bailiff is the Chef Magistrat of the island and presides over the Royal Court and the Court of Appeal. They sit in court with at least two jurats. They are a judge of law but not generally a judge of fact. Instead, the jurats normally decide the facts in civil and the sentence in criminal cases. The Bailiff appoints - but alone cannot suspend or dismiss - the Judicial Greffier (the clerk of the court). The Bailiff can also issue search warrants.[2]

In the States, the Bailiff is the President (Speaker) of the Assembly. This position has been in place from the origins of the States in the 16th century, particularly because the States began as a consulting body of the Royal Court and the Bailiff was the President of the Court. The Bailiff has a vote in the event the States is equally divided, but traditionally uses it to preserve the status quo.[2] In the Chamber, the Bailiff's seat is 18 cm (7.1 in) higher than the Lieutenant Governor's to emphasise the Bailiff's higher position in regard to the island's civil government.[9] Through this presidency, the Bailiff is the island's chief citizen (hence the island is known as a Bailiwick). They are the official channel of communication between the island authorities and the UK Government, though this has altered since the development of ministerial government and the creation of the role of Chief Minister. The Bailiff is President of the Emergencies Council, which was established in 1990.[2]

In addition to these two roles, the Bailiff presides the College of Electors, who appoint the Jurats, and he presides over the Licensing Assembly, the remains of a body which once exercised considerable administrative authority, but now only has the powers to grant alcohol licences. Furthermore, the Bailiff has powers over public entertainment. All public entertainment - such as music festivals or the Battle of Flowers - can only take place by permission of the Bailiff. This is done on consultation with public services and standards of public decency.[2]

The Bailiff is also the keeper of the island's Royal Mace the custodian of the island's seal, first granted by Edward I in 1279.[2]

The dual role of the Bailiff as head of the judiciary and President of the States has been criticised. The 2000 Clothier report (into the Machinery of Government) argues against the dual role on the grounds that –[10]

• No one should hold political power unless elected (the Bailiff is unelected) and the Speaker of a parliament cannot be non-political
  • Consequently, the States cannot remove the Bailiff, as he is appointed by Letters Patent
• No one involved in making laws should be involved judicially in a dispute based upon them.
• The States President makes decisions about who should and should not be allowed to speak, but the Bailiff cannot then determine challenges to those decisions in the Royal Court.

Such calls for the separation of the office's powers are longstanding: in 1859, writer Helier Simon called a potential separation "desirable".[2] The report therefore recommends that the Bailiff is removed as President of the States and that the States should elect their own Speaker.[10]

The dual role has been defended on the grounds that the modern position of Bailiff is held in good temperament. Criticims do not account for the independence in action of successive Bailiffs and therefore the supposed conflict in the lack of separation of powers only exists in theory, and not in practice.[10] Ex-Bailiff Sir Philip Bailhache argues that, if the States Presidency were removed from the jurisdiction of the Bailiff, the Bailiff could no longer be described as the island's chief citizen.[2]

The list of bailiffs is only reliably traceable from Philippe L'Evesque's appointment in 1277, although earlier bailiffs are mentioned and the office may date from before 1204.

18th century

In this caricature of 1873, Bailiff of Jersey Jean Hammond (left) greets the newly arrived Lieutenant Governor with the question: "Your papers, please?"

• Sir Charles de Carteret, 3rd Bt., 1703–1715[11]
• John Carteret, 2nd Earl Granville 1715–1763
• Robert Carteret, 3rd Earl Granville 1763–1776
• Henry Frederick, Lord Carteret 1776–1826

20th century

Lord Coutanche, Bailiff 1935–1962

• Charles Malet de Carteret 1931–1935[13]
• Sir Alexander Coutanche (created Lord Coutanche in 1961) 1935–1962
• Cecil Stanley Harrison 1961–1962[11]
• Sir Robert Le Masurier 1962–1975[11]
• Sir Frank Ereaut 1975–1985[11]
• Sir Peter Crill 1986–1994
• Sir Philip Bailhache 1994–2009

• Lieutenant Governor of Jersey
• List of bailiffs of Guernsey
• Seigneur of Sark