Who's Proposition would you vote for?

After reading the exchange below, who do you trust? who's proposition would you vote for?

Either Chief Minister Le Sueur, or Deputy Bob Hill, has something to hide and something to fear.

The Black text is the Chief Minister's comments, answered in red by Deputy Bob Hill.

P9 COMMITTEE OF INQUIRY:

SUSPENSION OF THE CHIEF OFFICER

OF THE STATES OF JERSEY POLICE


Comments from the Council of Ministers


The Proposition calls for a Committee of Inquiry to be established to review the manner in which the Chief Officer of the States of Jersey Police was suspended. Following the suspension of the Chief Officer, Wiltshire Police were commissioned to review the background to the way in which the investigation into the Historic Childcare Abuse Enquiry was managed by the States of Jersey Police and in particular, identify evidence of misconduct by the Chief Officer of the States of Jersey Police.

The Wiltshire Investigation is being undertaken in accordance with the Disciplinary Code of Conduct for the Chief Officer of Police which requires confidentiality to be maintained by all parties throughout the investigation. As a consequence, is not possible to discuss in open debate the background or context to this investigation, much of which might be required in a meeting the Inquiry’s overall objectives as set out in Part (a) of the Proposition.


Comment.

The Chief Minister is attempting to use the confidentiality requirement of the discipline code in an attempt to “close down” discussions about the suspension itself. This argument is flawed for a number of reasons. Firstly, it should be possible without too much difficulty to separate the two. The terms of reference for Wiltshire Police do not include any investigation of the actual suspension, only my proposition allows such an investigation to take place. Wiltshire has finished most of their enquiries and there should be no overlap. Secondly, the attempt to continue to enforce the confidentiality rule under the disciplinary code implies that some form of disciplinary proceedings are possible. The disciplinary process for the Chief Officer of Police envisages a long and detailed process which consists of an initial meeting, a subsequent hearing with witnesses, an independent appeal chaired by the Advisory, Conciliation and Arbitration Service and potentially a full debate in the States. Reliable estimates indicate that it could take up to a year to complete. At the time of writing the process has not even started. The Chief Officer is retiring from the service and is currently in his notice period. Allowing for leave he has a little over four month’s service remaining. He has effectively already been dismissed through a process which extended his suspension to a time when a return to work was impossible. If the Chief Minister really intends that there should be even more expenditure on a disciplinary process relating to someone who is leaving anyway, then he should explain how he would intend to progress this in the time available, and what justification he sees for the effort and expense this would involve, other than to provide a thin excuse for opposing the proposition. Finally, the States are fully entitled to have a view on which is the greater priority in these circumstances. Is it more important to pursue a pointless disciplinary process than to establish whether the States, the public, and others were wilfully misled by the statements and actions of those involved in the original suspension? Which would be the greater priority in the minds of the public and which choice would do most to restore confidence in the integrity of government?

Part (a) of the Proposition for a Committee of Inquiry can be split into four particular elements:-
The manner in which the Chief Officer of the States of Jersey Police was suspended from his duties on 12 November 2008.


The procedures and the documentation used in the suspension process.


The grounds relied on by the previous Home Affairs Minister in taking his decision.


The role of the Minister and of other parties who were involved in the suspension process.


The issues covered in i, ii and iv above could be investigated by a Committee of Inquiry. However, item iii requires the background information that led to the Home Affairs Minister to take the decision to instigate disciplinary procedures to be available to a Committee of Inquiry. Under the Confidentiality Agreement in place with the Chief Officer of Police and given that this line of enquiry is fully covered by the Wiltshire Investigation as part of the Disciplinary Procedure against the Chief Officer of Police, it is hard to see how a Committee of Inquiry can gain access to, and use this information in an open inquiry whilst the Disciplinary Procedure is running that requires confidentiality to be maintained throughout.




Comment


The Chief Minister appears to be relying on two arguments here, one of which is invalid and the other which is a repetition of an earlier point. What is apparently being argued is that the grounds on which the previous Minister took his decision cannot be within the remit of a Committee of Enquiry because it falls in some way within the remit of the Wiltshire investigation. At the risk of being repetitious, the suspension itself is outside of the Wiltshire remit. What evidence was or was not available in November 2008 is at best a footnote. Wiltshire have been tasked to begin at the beginning and to review the management of the HDLG enquiry from their own perspective and to gather evidence on their own authority. What any other authority did or thought in November 2008 is not totally irrelevant, but it is hardly fundamental to what is essentially a completely new look at the evidence. On the repeated point of any potential conflict with the disciplinary process, the Chief Minister has it within his capacity to remove this alleged difficulty from the table at a stroke. It could be argued that it simply requires a public statement of the obvious, namely that there is now no prospect of concluding any disciplinary process in relation to the Chief Officer and that the process is therefore effectively at an end. This would then “clear the decks” for a proper examination of the conduct of government in this issue which is what my proposition is about. If the Chief Minister will not agree to “clear the decks” for this to take place then States Members, and doubtlessly others, will be entitled to speculate as to his motives.



Consequently a Committee of Enquiry, as proposed, could not commence activities until the Disciplinary Procedure had been completed.




Comment


As stated above. Ministers could “complete” the disciplinary procedure now by admitting that it has nowhere to go, and that all that remains is to examine “how we got into this mess” and to learn lessons for the future. The longer this is put off the greater the speculation, and the harder it will be to repair the reputational damage which government actions have caused.



The Chief Minister has reviewed all correspondence over the past few weeks and recognises that some Members are concerned at the way in which the management of the suspension process was handled by his Department at that time. As a result, the Chief Minister has given an undertaking to commission a review and report on specific areas as outlined in the attached Terms of Reference. This Review will be undertaken by an independent external expert qualified in Employment Law and the Chief Minister has undertaken to make the findings of the Report public.




Comment


I submit that the reason why the Chief Minister has performed a “u turn” is because I have lodged my proposition. In letters to me dated 13th and 22nd January (see pages 24 & 26 of P9) he stated that he was satisfied with the current arrangements and saw no reason to lodge a proposition in the manner I sought.


The problem which my proposition is attempting to address is that of confidence in the integrity of government and the possibility that Ministers and others may have colluded in a way which misled the States and then sought to cover up the truth. These concerns are hardly likely to be addressed by an informal review established by the very people whose actions must be examined.



With the recent publication of the sworn Affidavit by the suspended Chief Officer of Police, it is essential that the Review of the Suspension Process be undertaken in the shortest possible time frame, to enable all relevant facts from all parties to be fully investigated to establish the true position. However, the Proposition as drafted would appear to prevent this course of action being taken as a Committee of Inquiry will not be able to gain access to all relevant information. The Chief Minister is of the view that if the Committee of Inquiry were to be approved, the terms of reference would have to be amended in such a manner that allows it to perform its function before the disciplinary process has been completed.



The alternative, which is proposed by the Chief Minister, is that an independent expert should be engaged in the shortest possible time frame to undertake this review and report. The Chief Minister has requested Deputy Hill to assist him in the appointments process and has also asked JACS to assist in the selection and appointment process for the Reviewer to ensure transparency. Subject to the successful appointment, the Chief Minister will bring a Report to the States advising Members of the individual selected with their background and curriculum vitae.




Comment


Again, this argument is flawed and to some extent self contradictory. There is still the reliance on the illusion that the disciplinary process can be “completed” when it plainly cannot. It then goes on to argue that a Committee of Enquiry is in some way unable to gain access to the relevant information but that a less formal enquiry would. Nobody familiar with the facts could sensibly dispute that this situation needs intrusive investigative powers. Not some friendly review which relies on the cooperation of the people involved. All should agree that there should be no unnecessary delay, but it is more important that Islanders are convinced that everything possible has been done to get to the bottom of the matter. What is more important is that we get to the bottom of this matter and put it to bed once and for all. Otherwise, it will continue to be an issue which demands our attention. The concern of the Chief Minister for the achievement of a result in “the shortest possible timeframe” is touching, but does not sit easily with the history of a disciplinary enquiry and suspension which have lasted for 16 months without a single disciplinary charge.



The Chief Minister on one hand is complaining that I have not gone through an advertising procedure, yet he is intending to do the same. It should be recalled that he never advertised for a Chairman to review the role of the Crown Officers. If we go down the Chief Minister’s route it will be several weeks before a review could begin. He is also implying that my proposed Committee lacks credibility because its selection process lacks transparency. Yet he is entrusting me and JACS to assist in the selection and appointments process. In my speech I will explain how I was able to find 5 highly respected individuals and that I was assisted by JACS.



The Chief Minister is of the opinion that conducting a review as outlined in his Terms of Reference will be a much quicker and simpler process to that required in the formation of a Committee of Inquiry, but still provides the level of assurance Members are looking for.




Not so, if my proposition is approved the Committee will be able to make an immediate start.


It is important to recall that last August I lodged P131 seeking States approval to request Verita to investigate the events surrounding the suspension of a Hospital Gynaecologist. As with this proposition the Chief Minister intervened, lodged 11th hour Comments proposing that my proposition be rejected in favour of his external “Expert” which would conduct a review within weeks but no mention was made re costs.


Unfortunately when my proposition was debated last September it resulted in a tied vote which allowed for the Chief Minister to appoint his expert without seeking States approval. Six months have elapsed, although Verita has published its report which exonerated the Gynaecologist, the Chief Minister’s “Expert” has not published a report and the latest confirmed cost is £40,000.




Members will note however, that the Terms of Reference proposed by the Chief Minister contain a specific clause that asks the Reviewer to establish whether there are grounds for a full Committee of Inquiry. Should this be confirmed, the Chief Minister commits to bringing back to the Assembly a Proposition for a Committee of Inquiry and for the appointment of a panel of members through a formal advertising and selection process in line with best practice.


This appointments process is seen to be open and transparent for all parties and in contrast to the appointments process outlined in this Proposition whereby members are pre-selected by the proposing Member.




Comment


The Chief Minister acknowledges that a full Committee of Enquiry may be required but hopes to put this off until a more informal enquiry has reported. The issues in this proposition are serious and current. Hoping that they can be fobbed-off or will just go away demonstrates lack of vision and leadership. This is a situation which needs to be grasped in a way which is firm, decisive, and reassuring to the public and the outside world. The more the problem is allowed to fester the worse it will get. A firm decision which is decisive and reassuring to all sides is what is called for. The Chief Minister’s position represents none of these things.



Part (b) of the Proposition is unacceptable and should be rejected. For complex investigations such as this where professional reputations of senior ranking officials are at stake, the recruitment and selection process for individuals to form a Committee of Inquiry must be managed in an open and transparent manner. If Members are minded to approve a Committee of Inquiry, it must be subject to the input of an independent body responsible for the recruitment process, the outcome of which will be presented to the Assembly for final approval.




Comment


Standing Order 146 requires names to be put forward for States Approval, It does not prescribe how they are chosen, however it is open for any Member to propose alternative names, no one to date has done so.


I have been attacked and my integrity question by both PPC and the Chief Minister about the selection of the Committee of Inquiry. If both are concerned that Standing Order 146 does not meet a transparent recruitment process why has the Order not been amended? As it is, I have complied with the Order’s requirement and until it is amended both PPC and the Chief Minister should accept that I have done nothing untoward.


My report and proposition has been prepared by a backbench States Member without any of the professional support and advice which Ministers take for granted. The surprise is not that it may not have reached the highest standards in terms of the selection process. The surprise is that it got to this stage at all. If Ministers want to do something POSITIVE as opposed to rubbishing the good work of others, they should support the proposition. Otherwise it appears that once again they are in denial of the real issues and clutching at technical straws rather then address the legitimate concerns which have arisen.




Financial and Manpower Implications


The costs shown in the Proposition for the Committee of Inquiry appear to cover administrative costs only and, given the timescale for previous Committees of Inquiry these costs appear to be on the low side.


The main cost that is not identified for a Committee of Inquiry will be that of meeting the costs of legal representation for individuals called to give evidence. Providing an accurate cost for this legal representation is not possible but assuming that the key witnesses will be past and current politicians and employees, most, if not all of whom will be seeking legal support, costs could be in the order of £20,000, in addition to those costs identified in the Deputy’s Proposition. If individuals called to give evidence no longer live locally, travel and accommodation will also have to be factored in.




Comment.


It is a bit rich for the Chief Minister to concern himself with the provision of legal funding for those who may be called to give evidence. This is another “U turn” because his proposal is a reversal of the policy so far followed in this matter under which the suspended Chief Officer has been denied any legal support and in consequence has represented himself in both the Royal Court and the Administrative Appeal Hearing. In the former he was opposed by the then Solicitor General in person, and in the latter by a member of the Law Officers Department. The Police Chief Officer was even denied access to his office not only to retrieve personal items but documents to assist in his pursuit for justice. Had he been a criminal he would have been granted rights and they way in which obstacles were placed before him could certainly not be considered to a “Neutral” Act. The Chief Minister’s new-found regard for fairness in the provision of legal advice and representation is to be applauded but it is very late in the day.


The Committee of Inquiry are giving freely of their time and expertise. I have allowed for £15,000 for covering admin and incidental costs. If the figure below is between £5 and £10,000 then there will be very little difference in the costs. However I don’t know what sort of “Expert” the Chief Minister will get for the money and presumably if he considers that witnesses called to the Committee of Inquiry might require legal assistance, so presumably they too may require legal assistance when being interviewed by the Chief Minister’s “Expert” but no funding has been allowed.


There is of course one other legal aspect which distinguishes the two proposals. A Committee of Enquiry would be able to grant immunity to witnesses in a similar manner to a scrutiny panel. This protection would enable staff to give evidence which may be damaging to others with less fear of reprisal. The Chief Ministers proposal seeks to withhold that immunity. Witnesses would be required to give an account without the protection of legal immunity, and what they say would be reported to the Chief Minister and his Civil Servants. This is bound to have the potential to create a reluctance to say things which are detrimental to those in senior positions.




Based on previous independent reviews of this nature, the Chief Minister believes that the cost for the review as proposed in the Terms of Reference would be in the order of £5-10.000


Recommendation


Members are urged to reject this Proposition on the basis that it will become a lengthy process and as presented, does not provide the required level of transparency in terms of the selection of a panel to form the Committee of inquiry.


Members should instead support the proposal from the Chief Minister to commission an independent review, with the safeguards as outlined in this report and if the findings are of such magnitude, the Chief Minister commits to bring a Report and Proposition to this Assembly calling for a full Committee of Inquiry.




Comment
Lest anyone forget, this proposal attributed to the Chief Minister comes from individuals who, with all of the strength, finance, time and resources they could muster, have at every stage and with every sinew, opposed, obstructed and sought to deflect, any enquiry or investigation whatsoever, into the actions of Ministers and their advisors in November 2008. The Chief Minister now offers this concession, not because he is persuaded that it is a good thing. He does so through clenched teeth because he is now cornered and can think of nothing else. Why should anyone trust the Chief Minister to deliver anything which is impartial and fair now? He has opposed fairness, justice, and transparency at every turn. I regret to say that he does not deserve to be trusted, and nobody should accept his assurances. His ineffective proposal should be rejected and a proper, independent and robust Committee of Enquiry be established in accordance with my proposition.

APPENDIX

A review of the management process that led to the suspension of the Chief Officer of Police.



1. Commissioner



The Chief Minister wishes to appoint a Commissioner to undertake a review of the manner in which the Chief Officer of the States of Jersey Police was suspended from his duties on 12 November 2008. Given the length of time that has elapsed since the Chief Officer of Police was suspended, and the concerns raised by States Members particularly following the publication of the Affidavit from the suspended Chief Officer of Police, the Chief Minister is proposing to commission an independent review to assure himself and States Members that the management of the process was conducted correctly.



2. Terms of Reference.




The purpose of the Review is to:-


a. Examine the procedure employed by the Chief Minister’s Department and the Home Affairs Minister in the period leading up to the suspension of the Chief Officer of Police on 12 November 2008.


b. Review the manner in which senior officers collated the information and presented it to the Home Affairs Minister that ultimately led to the suspension of the Chief Officer of Police.


c. Investigate whether the procedure for dealing with the original suspension was correctly followed at all times including:-


i. The reason for the immediate suspension of the Chief Officer of Police


ii. Whether there were any procedural errors in managing the suspension process.


d. Review all information relating to the original suspension procedure including relevant sections of the published Affidavit from the suspended Chief Officer of Police


e. The Report should highlight any areas where in the opinion of the Commissioner sufficient evidence exists that would support in the interests of open government a full Committee of Inquiry into the manner in which the Chief Officer of Police was suspended on 12 November 2008.



In the Chief Minister’s reply to me on 13th January (see page 24 of P9) He states “I am aware of comments made could be subject to challenge in terms of accuracy and these will be fully addressed by the Wiltshire Constabulary.” As Wilts Police is not investigating the reasons relied on by the previous Home Affairs Minister and the Chief Minister shares my view that there is some inaccuracy in the information disseminated, why does he need to go to the time and expense of employing some one to confirm a matter which we both agree on. Therefore it makes sense to support my Committee of Inquiry which will get to the heart of the matter in an effective and cost efficient manner.




3. Report


A Report should be prepared for the Chief Minister. The Commissioner must be aware that the entire disciplinary process for the Chief Officer of Police is conducted under his Terms and Conditions of Employment which include a Code of Conduct for Disciplinary Process. This Code requires confidentiality to be maintained by all parties throughout the disciplinary process. As such, the report should therefore be in two parts:-


i. Part I should consist of matters appropriate for immediate publication to States Members and the Public;


ii. Part II relating to those matters specific to the Chief Officer of Police which under his Code of Conduct have to remain confidential until the disciplinary process has been completed.




Comment


Apart from the general ineffectiveness of what is proposed there are two obvious flaws. The first is the fiction that there is some form of continuing disciplinary process which constricts the scope of any enquiry into the suspension. The second is that the report should be “prepared for the Chief Minister.” This requirement is made irrespective of the fact that it was the Chief Minister himself who, over a period of many months, sought to prevent access to the information relating to the creation of key documents, which is one of the key factors leading to my report and proposition. Any fair and independent enquiry must inevitably examine the actions and motives of the Chief Minister and his advisors in this matter. An enquiry commissioned by him and reporting to him will strengthen, rather than diffuse, the suspicions of a “cover-up” which have characterised this affair. The failure of the Council of Ministers to recognise this reality, even at this stage, is in itself a matter of concern and a further indication of their failure to grasp the nature of the situation to which they have brought themselves.