Jeremy Patrick Michael Gosselin v Minister for Social Security

JurisdictionJersey
CourtRoyal Court
JudgeBailiff
Judgment Date08 November 2016
Neutral Citation[2016] JRC 204
Date08 November 2016

[2016] JRC 204

ROYAL COURT

(Samedi)

Before:

W. J. Bailhache, Esq., Bailiff, sitting alone.

Between
Jeremy Patrick Michael Gosselin
Representor
and
Minister for Social Security
First Respondent

and

Her Majesty's Attorney General
Second Respondent

The Representor appeared on his own behalf.

Advocate G. G. P. White for the Respondents.

Authorities

Income Support (Jersey) Regulations 2007.

Income Support (Miscellaneous Provisions) (Jersey) Regulations 2013.

Committee of the Privy Council on proposed reforms in the Channel Islands.

Porter v McGill [2002] 2 AC 357.

Bordeaux Vineries Limited v The States of Guernsey – Plaits de Meubles 13.11.92, reported in 1993 Guernsey Law Journal 33.

Mayo Associates SA and Others v Cantrade Private Bank Switzerland (CI) Limited and Another [1998] JLR 173.

Eves v Le Main [1999] JLR 44.

McGonnell v United Kingdom (2000) 30 EHRR 289.

Findlay v United Kingdom [1997] 24 EHRR 221.

Procola v Luxemburg (1996) 22 EHRR 193.

Pabla Ky v Finland [2006] 42 EHRR 35.

Davidson v Scottish Ministers [2004] UK HL 34.

Crown Proceedings Act 1947.

R (on the application of Barclay and others) v the Secretary of State for Justice and others [2008] EWCA Civ 1319.

Panton and Panton v Minister of Finance and the Attorney General [2001] UK PC 33.

Kartinyeri v Commonwealth of Australia [1998] 156 ALR 300.

Victoria v Commonwealth and Connor [1975] 134 CLR 81.

R (on the application of Sir David Barclay and another) v Secretary of State for Justice and the Lord Chancellor and others [2014] UKSC 54 ( Re Barclay No.2).

Craighead in Helow v Home Secretary [2008] 1 WLR 2416.

Syvret v Chief Minister and others [2011] JRC 116.

Income Support (Amendment) (Jersey) Law 2015.

Social Security (Jersey) Law 1974.

Income Support (General Provisions) (Jersey) Order 2008.

Social Security (Determination of Claims and Questions) (Jersey) Order 1974.

Employment of States of Jersey Employees (Jersey) Law 2005.

O'Reilly and Others v Mackman and Others [1983] 2 AC 237.

Boddington v British Transport Police [1999] 2 AC 143.

Wandsworth London Borough Council v Winder [1984] 3 WLR 1254.

Pawlowski (Collector of Taxes) v Dunnington CCRTF 98/0552.

Trustees of the Denis Rye Pension Fund and another v Sheffield City Council [1998] 1 WLR 840.

Human Rights (Jersey) Law 2000.

Burt and another v States of Jersey [1996] JLR 1.

Appeal against decisions of the Minister for Social Security.

Bailiff

THE

1

This judgment is delivered in connection with the appeal by the Representor against decisions of the Minister for Social Security, the First Respondent. The Representor has asserted that in one form or another the States acted ultra vires by adopting the Income Support (Jersey) Regulations 2007 (“the 2007 Regulations”), which he also asserted breached his rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the European Convention on Human Rights” or sometimes “the Convention”) as well as his right to property under Article 1 of Protocol 1 to that convention. As a result of these claims the Second Respondent was joined to the Representation.

Preliminary
2

At paragraph 302 of his Representation, the Representor set out his first prayer for relief:

“That the present Bailiff, Mr William James Bailhache QC and the present Deputy Bailiff Mr Timothy John Le Cocq QC recuse themselves from hearing any part of this representation because of a potential conflict of interest, namely that whilst they both separately held the position of Attorney General, the Law Officers' Department, of which they were Head, is believed to have provided confidential legal advice to the Social Security Minister on various aspects of the income support legislation, including on its compatibility with Convention rights. Furthermore, that the present Bailiff, whilst holding the position of HM Attorney General and also an ex-officio member of the States Assembly, provided verbal advice to States members on legal aspects of the draft Income Support (Jersey) Law (P102/206) when it was adopted by the States Assembly during a sitting held on 10th October 2006 and similarly provided verbal advice to the States on legal aspects of the draft Income Support (Jersey) Regulations 200—(P90/207) when it was adopted by the States Assembly during a sitting held on 10th October 2007.”

3

At the opening of this appeal, I asked Mr Gosselin whether he maintained that prayer in the Representation in the circumstances that when he and Advocate White had attended on the Bailiff's Judicial Secretary to fix a date for the hearing of the appeal, she had indicated that the date set would be available if I presided, and no objection had been taken at that time. However Mr Gosselin made it plain that he did wish to pursue the recusal application and accordingly he made some submissions to which I will come shortly. Because Advocate White was not expecting the recusal application to be made, he had not prepared either submissions or authority for me to consider. Having heard from the parties, I announced that I did not regard myself as under a conflict which prevented me from hearing the case and that the judgment would contain my reasons for that conclusion. I later prepared a list of potential authorities of relevance and procured that the list was sent to the parties in order that they would have the opportunity of making written submissions on any of the cases in question if they wished. Neither party took me up on that invitation, although Advocate White contacted the Judicial Secretary to inform her that he considered the list of authorities was comprehensive and that in his view I was right to conclude there was no conflict.

4

When he appeared before me, Mr Gosselin accepted that I was not directly concerned with the Income Support ( Miscellaneous Provisions) (Jersey) Regulations 2013 (“the 2013 Regulations”) but that I did give the States members some advice in the Assembly when the Income Support (Jersey) Law 2007 (“the 2007 Law”) was debated. He accepted that the advice I gave members in the States Assembly was completely irrelevant to the issues which arose in this appeal. He made the more general point that I personally have had a long history with the Law Officers' Department and his contention was that the Law Officers had given the wrong advice and that he had been treated unlawfully. He went on to mention that the tradition appeared to be that there was a succession to the office of Bailiff, and that in particular whoever was the Attorney General would normally succeed first the Deputy Bailiff and then the Bailiff. In effect his submission was that I was a former Attorney General, and a decision in his favour during the current hearing could be very embarrassing for the current Attorney General and his immediate predecessor, now the Deputy Bailiff, and possibly by implication even embarrassing for me because I had been Attorney General. He said that amounted to a potential conflict and he added that in as much as it was the States Assembly which have passed the unlawful regulations, the Bailiff is currently the President of the States, and my sitting in Court would amount to my taking a decision to damn my own association, of which I am the President.

5

It is a matter of record that I was appointed Attorney General in February 2000, and I held office in that capacity until November 2009 when I was appointed Deputy Bailiff. I was appointed Bailiff in January 2015. It is also a matter of record that the Bailiff is, ex-officio, President of the States. In that capacity he presides over meetings of the States and when he is not able to do so either the Deputy Bailiff, or a person whom the Bailiff selects from amongst the members of the States, the Greffier and Deputy Greffier of the States presides. In presiding over the Assembly, the limit of the Bailiff's role is to ensure that the debate moves ahead appropriately in accordance with Standing Orders. Although the Bailiff has an unfettered right to speak, he does not express political views, and certainly does not express any views on the matters which are being debated. The Bailiff's function is to ensure that the debate continues in accordance with Standing Orders. He has no vote, the legislative provision enabling him to cast a vote in the event of an equal number of votes for and against the proposition having been removed when the States of Jersey Law 2005 was adopted; neither has he the power of dissent which existed until the same Law was passed.

6

Outside the States Assembly, the Bailiff has no executive role other than, in theory, in the grant of entertainments licences. I say “in theory” because in practice the grant of such licences is delegated to others in the Bailiff's department who deal with the matter on his behalf, and the Bailiff never sees the applications unless there is something very unusual on which his advice is sought. In practice the decisions are taken, on delegated authority, by the Bailiff's Chief Officer in consultation with a number of civil servants and public officials ensuring thereby that public safety and other considerations are met. Linked to his functions as President of the States Assembly, the Bailiff is also the civic head of the Island, and had a number of public functions in that respect. Once again, in all of these he acts entirely apolitically.

7

The question of the dual roles of the Bailiff in acting as President of the States and also as chief justice is one which is raised periodically and indeed there is currently before the States Assembly a proposition brought by a member with a view to removing the Bailiff from the States by 2018. In order to achieve that result, an amendment to the States of Jersey Law 2005 would be required. It is entirely a matter for the States Assembly to decide whether such an amendment should or should not be...

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1 cases
  • Jeremy Patrick Michael Gosselin v Minister for Social Security and Attorney General
    • Jersey
    • Court of Appeal
    • 23 May 2017
    ...behalf. Advocate S. M. Roberts for the Respondent. Authorities Gosselin v Minister for Social Security and Her Majesty's Attorney-General [2016] JRC 204. Income Support (Jersey) Law 2007. Income Support (Jersey) Regulations 2007. Income Support (General Provisions) (Jersey) Order 2008. 2007......

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