The Bailiff is appointed by the Crown, and generally holds office until retirement age (65 in Guernsey, 70 in Jersey). He presides at the Royal Court, and takes the opinions of the Jurats, elected lay judges; he also presides over the States, and represents the Crown in all civil matters.
By constitutional convention he, or she (though to date there have been no recorded women holders of the office), and the Deputy Bailiff are invariably selected from among those who have previously held high office within the Law Officers of the Crown, such as Procureur.
Originally, the Bailiff was both legislator and judge, but in the interim the position has become increasingly concentrated on the judicial aspects of the original role.
A Deputy Bailiff, legally qualified like the Bailiff, in each Bailiwick may preside when the Bailiff is not available. Senior Jurats may be appointed as Lieutenant-Bailiffs to perform some ceremonial duties in lieu of the Bailiff on occasion as well as presiding over judicial proceedings generally of an administrative nature.
In 1617 a Privy Council decision clarified the division of civil and military responsibilities between the bailiff and the governor. For the first time the Crown laid down the bailiff’s precedence over the governor in justice and civil affairs.
In 2000, a judgment in the European Court of Human Rights, McGonnell vs. United Kingdom, concerning the role of the Bailiff of Guernsey, ruled that the involvement of an individual presiding over the passage of legislation and over a judicial process regarding that legislation was incompatible with Convention rights, even if that individual had held different posts on the relevant occasions.
The then position of the Bailiff of Guernsey (who was also head of the Administration in Guernsey and presided over a number of States Committees - functions now abolished) was less clearly delineated as to separation of legislative or administrative and judicial functions than that of the Bailiff of Jersey. Following reforms, the Bailiffs retain positions in both the respective States (legislative assembly) and Royal Court (judiciary), however human rights pressure group, Progress Jersey, continue to campaign for a full and complete separation of legislature and judiciary in line with Council of Europe best practice.
The position of Bailiff was created shortly after the Treaty of Paris 1259 in which the King of England, Henry III, gave up claim to all of the Duchy of Normandy but the Channel Islands. Rather than absorb the islands into the Kingdom of England, a Warden (now Lieutenant Governor) and Bailiff were appointed to run the island on his behalf.
The origin of the States of Jersey lies in the summoning of representatives of the parishes (the Connétables and Rectors) to advise the Royal Court on legislation. The States of Jersey thus evolved a separate identity. Although it was already sitting in the 16th century, the first separate minutes of the meetings were not kept until the 17th century.
The Royal Court, under the presidency of the Bailiff, originally not only administered the law but also wrote it. As a Crown appointment the Bailiff was a powerful figure and the post was the subject of patronage. From the time of George Carteret in the 1660s onwards the position of Bailiff became a political fiefdom of the de Carteret family and the position was de facto hereditary — although many of the de Carteret Bailiffs, such as the Earl Granville, preferred to pursue political careers in England. During this period, the absentee Bailiffs appointed Lieutenant-Bailiffs to exercise office.
In 1750 Charles Lemprière was appointed Lieutenant-Bailiff and set about establishing a powerbase by engineering the election and appontments of members of the Lemprière family to office. A succession of weak Lieutenant-Governors enabled Lemprière to establish an autocratic régime, making the States subservient to the Royal Court and ensuring, by the handpicked appointment of advocates, that opponents would be unable to get legal representation. A threatened shortage of corn sparked popular protest and led to a mob sacking the Royal Court. The Bailiff and Jurats took refuge in Elizabeth Castle and petitioned the King. In 1770 Colonel Bentinck, a Dutchman, was appointed Lieutenant-Governor with instructions to oversee reform.
In 1771 it was laid down in Jersey that no laws might be adopted without being passed by the States of Jersey. From this time on the bailiff was to be the chief power in Jersey as president of the States, rather than as president of the Royal Court. The party of Charlots (conservative supporters of Lemprière who claimed that the States could not pass legislation without the agreement of the Royal Court) were opposed at elections by Magots, and by 1790 the progressive Magots had majorities in both the Royal Court and the States.
In 1826, the long succession of absentee Bailiffs came to an end with the appointment of Thomas Le Breton. Under Jean Hammond (Bailiff 1858-1880) the role became established as a politically impartial, if paternalistic, presidency. The introduction of deputies into the States in 1857 added to the democratic weight of the legislative assembly, but the Bailiff still guided the government of the Bailiwick.
The States continued to use the Royal Court as their debating chamber until the construction of a dedicated States Chamber on an adjacent site in 1887.
The process of democratisation through the 19th and 20th centuries shifted the focus of political influence to the elected members of the States.
In 1921, the property and financial powers of the Assembly of Governor, Bailiff and Jurats was taken over by the States of Jersey, leaving that assembly with only power to act as licensing bench. With the power to levy impôts henceforth in the hands of the States, and with the introduction of the Income Tax law of 1928, the legislators now controlled the budget independently of the Bailiff.
Alexander Coutanche, appointed in 1935, was the last bailiff appointed before the passage of a law on the Bailiff in 1936. He was the last bailiff appointed for life and the last under the sole prerogative of the Crown without the obligation to consult the States of Jersey.
Although the need for centralised administration during the German Occupation 1940-1945 made the Bailiff a commanding figure in the circumstances of trying to maintain the life of the Bailiwick, the constitutional reforms of 1948 which removed the Jurats from the States, replacing them with Senators, separated more clearly legislature and judiciary. Political leadership now rested more clearly with the Senators as purely political senior elected representatives.
In 1958 the post of Deputy Bailiff was introduced to spread the workload of Bailiff - the Deputy Bailiff generally proceeding to replace the Bailiff on the latter's retirement or death.
The appointment of Royal Court Commissioners (acting judges) now ensures that the Bailiff never sits on a case which relied on a law that he had taken part in the legislative process for.
In 2005, the Bailiff's casting vote in the event of a tied vote in the States Chamber was removed. The 2005 introduction of a ministerial system of government under a chief minister is further removing the bailiff from involvement in decision-making.
The powers of the Bailiff may continue to be pared away, a situation that the current incumbent Sir Philip Bailhache laid out in an article for the Jersey Law Society. A States of Jersey report on preparations for independence recommended in 2008 that the "dual role of the Bailiff as President of the Royal Court and President of the States would have to be reviewed in the event of independence.