Thursday, 30 April 2009

A Fair Recommendation on Pay

The JEP has already reported on part of this story:

PUBLIC sector workers have been told that they will not be offered a pay increase this year.(1)

And now the Chief Minister has come out with both this - and a supplementary sentence which has information not mentioned at the time of the JEP report - on States members pay:

At our last meeting we decided there should be a pay freeze for public sector staff in 2009/2010.  We took the decision with the States Employment Board in attendance. The States will now be asked to withdraw the 2% which had been set aside in department budgets to fund this year's pay awards. Ministers also decided that they would recommend a pay freeze for States members.

I assume therefore that the Council of Ministers will support Connétable Colin Egre's proposition, and give full force to his recommendations:

THE STATES are asked to decide whether they are of opinion -
(a)        to agree that the £1,000 per annum interim increase in remuneration for States members for 2009 should be withdrawn with effect from 1st April 2009 and that no increase should then be paid for the remainder of 2009; and
(b)        to request the Privileges and Procedures Committee to notify the States' Members' Remuneration Review Body that it should cease work on formulating recommendations on the level of remuneration for elected members for future years until the last quarter of 2009.(3)


A Conflict of Appointments?

You may or may not have noticed this in the Jersey Evening Post:

A vacancy has arisen for a member of the Jersey Appointments Commission. Suitable remuneration, together with reimbursement of out of pocket expenses, will be provided.(1)

It is tricky to track down any remuneration details, but a comparison with the Employment Tribunal Members (from 24th October 2006) has a daily sitting rate as follows:

Chairman - to match the Commissioner's rate - £736 (2)

What happened this year (30 April 2009)? We see from the Chief Minister's Office that:

The Chief Minister approved the report and proposition recommending that Mr Julian Rogers be appointed as a member of the Appointments Commission for a term of 4 years.(3)

This went through the States "on the nod":

Proposition: Appointments Commission: appointment of member. (4)
POUR: 39    CONTRE: 0    ILL: 1    NOT PRESENT: 13

So the States have decided to appoint the admirable Mr Rogers, and ensure that he gets suitable remuneration for his services for the next four years.

And yet - the States Remuneration Panel, which decides on States Members pay - and which is to meet later this year, has:

Mr. Julian Rogers (Chairman);  (5)

So for services rendered - and suitable remuneration - the States have appointed Mr Rogers who is also to advice on suitable States remuneration!

While there is not an exact conflict of interests, it would certainly have seemed better had Mr Rogers been kept at "arms length" with regard to this appointment, and hence any new remuneration coming his way. I am sure he will deliver an independent review of States members' pay, and not be swayed in any way, but it might have been prudent to ensure that there could be no grounds for his results being in any way prejudiced - by himself benefiting from the largesse of the States in this way.


The Attorney-General and the Law

Economies with the Truth

In a Black Widowers detective story by Isaac Asimov, an individual is the chief suspect for stealing from a safe some cash and some bonds. He declares "I did not steal the cash or the bonds". And we are told he is pathologically honest - he never tells a lie. So how did he do it? The answer, as supplied by the clever Henry, is is discovered when Henry asks him: "Did you steal the cash AND the bonds?" and that is a question he cannot answer without admitting his guilt. That came to mind when reading recent reports about the Attorney-General, when he appears not to have any involvement with the police raid, but later admits that he did. Is he lying? Like the thief in the Asimov story, if you follow the wording closely, you will see that he is not.

The JEP reported the story as follows:

ATTORNEY General William Bailhache has denied that he instigated the arrest of Senator Stuart Syvret on suspicion of breaching data protection laws. The Senator was arrested outside his Grouville home on Monday morning and held at police headquarters for some seven hours, much of the time in a cell. But Mr Bailhache  says that the arrest has nothing to do with repeated criticism that the Senator has heaped upon him.

When reading this, the main impression one gets is that "it was nothing to do with me". But with a typical lawyer's acumen, the words are precise, and it is what they do not state that is as important as what they do. What he does not say here, and never said, was (a) whether he was aware of the raid; (b) whether he advised the police on the legal aspects of the raid in advance. Because people reading the news report came away with the superficial impression that he had not any involvement in the raid, they now think that he lied. But he clearly did not; it was rather that he did not reveal - at the time - the whole truth. But we now know the answer to (a) - that he was aware of the raid.

Now the recent news on the subject appears at first sight to contradict this impression. Again, from the BBC News and the JEP:

The attorney general has said a search of a senator's home, which was carried out without a warrant, was legal. William Bailhache told the States he was confident police followed the law when they searched Stuart Syvret's home after his arrest earlier this month...The attorney general, who said he knew about the search in advance, was responding to a question by Deputy Trevor Pitman.

During questions from Deputy Trevor Pitman, he also said that he had been aware in advance that the Senator was suspected of committing offences under the Data Protection Law and of the decision to search his home.

Are we then to believe that the police - as well as informing the Attorney-General of their intentions, did not ask for advice or were not given advice on what they could and could not do - including the search of premises without a search warrant - item (b) above? Again, nothing has in fact been said one way or the other by the Attorney-General on this matter, and should it emerge that there was considerable involvement in giving advice beforehand, this will not mean that he has lied, but simply been "economical with the truth".

Meanwhile, no apology seems to have been issued to Deputy Labey, who has suffered with her children, what appears to amount to a kind of legalised burglary, when the police raid included searching through her private possessions and those of her children.

Quis custodiet ipsos custodes?

DEPUTY Carolyn Labey has attacked the States police for raiding her home during the arrest of Senator Stuart Syvret. She says that it was unlawful and unnecessary. In a strongly worded statement, the Deputy said that she felt violated by the search and added that her elderly mother had found the raid more hostile than the Blitz.... Deputy Labey, who was on holiday abroad with her children at the time of the raid, condemned the police action as over the top. She said: 'I struggle to find words for the shock, upset and sense of violation felt by my family and myself at what has happened.'

Now under the law, a police officer may only exercise powers of entry and search if he has reasonable grounds for believing that the person sought is on the premises and he can only search them to the extent that is reasonably required for that purpose.

I would not have thought this was "reasonable exercise" of powers of search. I can see the need in cases of terrorism, but here, in these circumstances, it seems beyond belief that the police can just descend and - in effect - ransack a property - without the owners' knowledge or consent or a search warrant. The last time this kind of thing happened in Jersey occurred during the period 1940-1945, which is undoubtedly why Freddie Cohen voted for a debate on the subject, and against its postponement. The public needs to know that there are safeguards against the police acting like "Gene Hunt" in "Ashes to Ashes", and their human rights are not violated.

A Game of Top Trumps by the Attorney-General

The law on these matters is also inconsistent. Article 29 allows the police to search without a warrant, but the Data Protection Law specifies that investigations require a search warrant to be issued. It seems that when the laws contradict one another, the Attorney-General is free to pick and choose which one can "trump" the other one, and there is no consistent legal framework for saying when one law abrogates another.

In order to determine which law has priority in any particular case, judgment must be exercised, hence the need for judges. But the main principle, laid down in International Law, is

lex posterior derogat priori - more recent law prevails over (abrogrates, overrules, trumps) an inconsistent earlier law. One test that is applied in circumstances when (1) both customary and treaty sources of law exist and (2) these two sources cannot be construed consistently.

Aharon Barak, in his "Purposive Interpretation in Law" (2005), explains how this works. He writes:

What happens when two norms of equal normative status, embedded in different texts, contradict each other. The typical example is a contradiction between provisions in two statutes or two regulations, but it can also happen with two contracts between the same parties, or two wills of a single testator. Of course, judges should first exhaust every interpretative possibility of showing the contradiction to be "imaginary." But what happens if the contradiction is real. The generally accepted rule is that the later norm trumps the earlier norm: lex posterior derogat priori: a later statute trumps an earlier statute, a later contract trumps an earlier contract; a later will tramps an earlier will. This rule reflects the autonomy of the a creator of the norm. Just as he or she is authorized to create a norm, so is he or she authorized to create a contradictory norm that (implicitly or explicitly) nullifies the original norm.

Now the two laws in question are:

    Police Procedures and Criminal Evidence (Jersey) Law 2003
    Data Protection (Jersey) Law 2005

So clearly the Data Protection Law, with its requirement for violations to be investigated with a search warrant, should take priority? Under International Law, this would appear to be the case. Has the Attorney-General been using "Lex posterior derogat priori" as a guiding rule for his judgment? Or if not, what other grounds has he for prioritising an earlier law over a later? Is it his private game of Top Trumps, or can anyone join in?


Wednesday, 29 April 2009

An Eye on Terry Le Sueur

"Private Eye" has another go at Terry Le Sueur in this week's "In the City". It notes how depositors in Jersey banks are told they can rely on the Island's regulators and politicians for "competence and integrity".

Then they go in for the kill - looking at the "fiasco surrounding the £106 million" incinerator whose cost may rise by up to £10 million "because the euro-bill was not 'hedged' against a fall in sterling". As they rightly point out, this is not exactly a glowing example of "competence".

But what of integrity? They comment that "it seems that as much as £4 million may have been spent without the necessary approval." They note that the current Chief Minister Terry Le Sueur is being called before a scrutiny committee to explain this - as he was Treasury minister when the contract was signed. About all they haven't noted is that it was signed with great haste - some call it indecent haste - in the dying days of the last Council of Ministers, barely weeks before a new States was elected - which might account for the lack of oversight.

And integrity gets a further battering from officials whom they say "claim they knew nothing about 'hedging' so sought advice from Royal London Asset Management." It seems that Private Eye has contacted RLAM, and reports that "RLAM says that it was never asked to advise on currency risk." It look as if the officials are being "economical with the truth".

It is often said that Senator Syvret's blog and invective does the Island's reputation no good. In fact, it is probably largely ignored, apart from any focus on Haut de la Garenne. It seems that far more damage is being done by the actions of the States Treasury and the Treasury Minister - because this shows how the Island's administration can fail in competence and intregity - and Private Eye rightly asks if this occurs here, why not elsewhere, with the regulation of financial services. It should be noted that they do not actually cite any examples of that kind of failure - yet!

It is to be hoped that Senator Ben Shenton leaves no stone unturned in exposing the misjudgments and mismanagement that caused this fiasco, so that it may not happen again - including the hasty way in which the contract was signed.

The danger is that only one or two individuals will be singled out as scapegoats, whereas the truth is probably more like that revealed in J.B. Priestley's "An Inspector Calls", where there is a chain of events leading to a disaster, and each person is a link in the chain who must accept their responsibility for the mistakes they made, including the Treasury Minister of the day.

The Phantom Bride

"Oh, have you read 'The Phantom Bride'? It 's perfectly thrilling! There 's a regular rush for it at the library; but some prefer 'Breaking a Butterfly.' Which do you like best?" asked a pale girl of Polly, in one of the momentary lulls which occurred.  (An Old-Fashioned Girl, Lousia May Alcott)

Stories of phantom brides abound, both in Jersey and elsewhere. But this is a story about the  Kérions of Brittany. In "The Megalithic Monuments Of Carnac And Locmariaquer : Their Purpose And Age" by Z. Le Rouzic, he tells us of the dolmens at Carnac:

The traditions about the dolmens tell us that those piles of stones were the dwellings of the Kérions, a dwarf people who formerly inhabited the country. The Kérions were small but very strong, and a colloquial idiom is still often used, Strong as a Kérion.

Here is a spooky tale from the 1932 "Breton Tales" compiled by Lilias Eskine of a phantom bride:

In Auray there was a young man who did not like the Kerions, for he feared their power, and much to his sorrow he discovered that his future bride was visiting them in the evenings and taking part in their nocturnal gatherings

One evening he hid himself in his stable, where he could overlook the meadows, and when midnight came he saw the Circle dancing with his bride in their midst. As the last chimes of the church clock rang out, the Circle vanished and his bride fell among the daisies in a dead faint. Rushing to her side in great fear, he rubbed her temples with vinegar and held a cup of-water to her lips. But it was an hour before she recovered her senses, and she lay in his arms, murmuring : " You have hurt me very much : when you see me like this, you must leave me till I recover of my own accord. . . . I must never be touched when I have fallen into a trance from the Kerions' dance." . . .

She explained to him that she danced in the Circle every evening with some of her comrades and that he might come the next evening to see them. . . . " To-morrow night we shall be dancing in the meadows outside Auray," she said. ... " Come at midnight and you will see us. But on no account must you speak."

The next night the young man prepared to start out, but his courage failed him and he went to a friend and begged him to come too. . . .

So the pair of them went down to the water meadows, but as it was not quite twelve o'clock, they stood together and talked of the day's work and the threshing they had done. . . .

The frogs croaked and cicadas called; an owl booted in the spinney and a bat flew past, but not a sign was there of the Kerions or the future bride and her companions. . . .

When they returned to the village the young men found the bride at home. . . .

"Oh! foolish prattlers," laughed she. "We were dancing and singing so merrily, but you came to the meadows and talked, so we were obliged to disappear."

" We will come to-morrow night," said the young man, " and I promise that we will not speak a word."

" No ! no ! " said she. . . . " Do not come to-morrow, for we have a sad office to perform. . . . A young woman of Locmaria is to be placed in her shroud, and we could not allow you to see that ! " . . .

The next morning the young man met his bride in tears. . . . " Alas ! alas ! " she cried. . . . " The young woman whom we were to have put in her shroud has tricked us. At midnight, just as we were lifting her up, she came out of her trance . . . and now they say that one of us must die in her place." . . .

With that she faded from his sight. . . . But the young man -was so frightened that he ran from the spot, and the next year he was married to a girl who had never even heard of the Kerions!

Tuesday, 28 April 2009

Drunken Driving - why it is so dangerous

The ability to drive is a complex skill, but it is so familiar to most people that its complexity is often overlooked. Driving, and more specifically safe driving, involves subtle interaction of obvious things like coordination skills, reaction time, and perceptual ability and less obvious, but equally important factors like risk-taking behavior, emotional state, and personality type. Other variables like fatigue, physical and mental health, physiological factors related to hunger, and driver distraction levels are believed by many to be of great influence, but are difficult to define in functional terms. While many studies have been done on driving, it is not understood all that well, especially in terms of what particular skills or characteristics should be considered critical to driving ability. (BLOOD ALCOHOL CONTENT AND DRIVING ABILITY, James J. Fazzalaro)

THREE women who had just watched Miss St Saviour being crowned were seriously injured when a car mounted a pavement and knocked them down outside the Mayfair Hotel on Friday night. The injured women had just left the event in the hotel and were standing outside the Brooklyn Street exit when they were hit by a green Ford Fiesta driven by a young woman. The car had already allegedly demolished a section of wall in Ann Street and, it has been claimed, did not stop after hitting the three women before being involved in another collision in Don Road. The worst injuries were sustained by a woman aged 37 who fractured both her arms and her upper leg. A 43-year-old woman sustained serious abdominal injuries and a cut to the head. She was the one thrown back ten feet. The third victim was aged 47 and suffered multiple grazing, bruises and minor cuts. Paramedics at the scene said that all three women were lucky to be alive.

Back in the 1980s, I remember a friend of mine telling me about some people "that they could take their drink"; I seem to remember a certain popular Deputy Bailiff being cited as an example. This argument is certainly true in some respects - experimental data notes that the result of the same amount of alcohol significantly impairs light and infrequent drinkers, which actually is a caution that they should probably not drink at all. But if someone consumes more drink "because they can take it", they are likely to suffer just the same kind of impairment.

A report on the effects of alcohol notes that with regard to alcohol in the bloodstream:

...studies of alcohol's effect on simulated driving behavior have found "changes" in performance variables such as steering errors, gear changing, braking response time, tracking, vehicle position, lane tracking, speed maintenance, reaction time, distance judgments, and acceleration.

I remember the BBC in the 1980s had a popular science programme called Q.E.D. For one edition, they put people through a driving course having drunk an alcoholic beverage, and found that the most important factors were (1) judgment of distances, especially when avoiding objects and going through narrow spaces  (2) reaction times to breaking and loss of control (e.g. in a skid). What was most significant was that those people who said "they could take their drink" showed a deterioration in driving skills that they were completely unaware of, and a false sense of their abilities - they tried to go through places that were actually too narrow.

Basically the lesson is a simple one: don't drink and drive. The tragic outcome outside the Mayfair Hotel shows just how dangerous the combination can be. The next time there are police checks and delays while they check drivers for drunken driving, just think how this relatively short delay and inconvenience could save lives.


Monday, 27 April 2009

Yes Minister

"Yes Minister, Volume 1" by the Rt.Hon. James Hacker, M.P.
(edited by Jonathan Lynn and Antony Jay) : A Review

This book is a derivation from the television series of the same name. However, Messrs. Lynn and Jay have cleverly "edited" the book so that it is a mixture of diary (like Crossman), civil service memoranda and minutes. It is remarkably well-informed about political and civil service stratagems, while at the same time, retaining much of the humour of the television series.
Here is an extract from a memorandum by Sir Humprey Appleby, Permanent Secretary of the Department of Administrative Affairs:
"There has to be some way to measure success in the Civil Service. British Leyland can measure success by the size of its profits. However, the Civil Service does not make profits or losses. Ergo, we measure success by the size of our staff and our budget. By definition, a big department is more successful than a small one."
The Civil Service Code Language

As everyone is aware, the civil service often uses a cryptic and obscure variety of the English language. The following translation may help the layman understand this oblique language; it is taken from "Yes Minister, Volume 1", edited by Jonathan Lynn and Antony Jay, and represents comments made by civil servants to Government ministers:
"I think we have to be very careful." Translation: We are not going to do this.
"Have you thought through all the implications." Translation: You are not going to do this.
"It is a slightly puzzling decision." Translation: Idiotic!
"Not entirely straightforward." Translation: Criminal
"With the greatest possible respect, Minister..." Translation: Minister, that is the silliest idea I've ever heard.

Sunday, 26 April 2009

Mathematics as Patterning.

Mathematics as Patterning.
"A mathematician, like a painter or a poet" wrote G.H. Hardy, "is a maker of patterns"(1). Pondering from patterns in shapes to patterns in symbols gave rise to a series of reflections; following these, I decided to undertake the somewhat unusual and. eccentric task of proposing a sort of philosophical programme for understanding what Hardy once referred to as "mathematical reality"; in particular to provide a programme for a mathematical education.
I call my story "philosophical" to underline that it is tentative, speculative and incomplete. If something like it has been said before, I apologise for breaking an "intellectual copyright", but I plead, ignorance of other attempts like this. Perhaps my critics could put the record straight?
Mathematics has its roots in morphology - the study of shape. This begins with "imaginings" or "mind-pictures" (to use the phrase of Mary Boole(2)). Here we are asked to imagine shapes and- the motion of shapes - transformations. This gives us a sort of "mental film" upon which to work.
Further to this we may focus upon the patterns that are "traced" by the motion; for instance, a moving line of finite length, rotating about one end, will trace out a circle. But an alternative to this attention upon the trace is to focus upon two or more frames in the sequence of the film; for instance, the moving line at 12 o'clock and the moving line at 3, 6 and 9 o'clock.
In the former we are emphasising the process of transformation; in the latter we are emphasising the product of transformation, the event of change. Both are legitimate and necessary for mathematics as morphology, both have correlatives in quantitative mathematics.
Rene Thom, creator of Catastrophe Theory "believes that the provision of  some kind of picture, at least to the mind's  eye,  is  of primary importance"(3).  Certainly it would help mathematics education, for Margaret Donaldson in "Children's Minds" has called attention to a domination of the visual in "both children and adults (4); this would also provide what Imre Lakatos refers to as the "quasi-empirical" in mathematics (5). There would appear to be pretty good grounds for grounding mathematics in a study of shapes - in morphology.
Now morphology is merely Qualitative, i.e., it consists of patterns and shapes - of pictorial representation. But mathematics is more than this; the next step is to measure (quantity) those representations.
This initial step is morphology, where the concern is to create measures for our forms and transforms; later there can "be a shift of focus from the process of measurement to the measures themselves.
By this further focus of attention, the background morphology "fades out" until we are unaware of its presence although it still functions indirectly in guiding our manipulation of symbols. This manipulation of measures without direct reference to forms and transforms is algebra.
If we lose sight of the underlying morphology and morphometry (which together may be called "geometry"), then there may be a breakdown in communication because there exists no shared background geometry between teacher and pupils.
It is important to remember this, because the uncritical assumption of background geometry will often result in empty "arm waving".
I should like, at this point, to propose a strong similarity between symbols in mathematics and metaphors in English; for information on the latter, I shall be referring to C.S. Lewis's "Rehabilitations", with particular reference to an essay therein entitled "Bluspels and Flalanspheres" (6).
When we are use a metaphor, "we are often acutely aware of the discrepancy between our meaning and our image"(7) similarly, there is a "gap" between the use of a symbol and the geometric background from which it is derived.
When we are given a metaphor, "we are entirely at the mercy of the metaphor. If our instructor has chosen it badly, we shall be thinking nonsense. If we have not
got the imagery clear before us, we shall be thinking nonsense. If we have it before us without  knowing that it is metaphor.. then again we shall be thinking nonsense"'(8)
When we are given a symbol, or symbolic group (e.g. for the area of a circle), we are at its mercy. If it is given just as an algebraic formula, then we are likely to misunderstand it. If we have no clear conception of the geometry (e.g. enlargements), we shall be confused. And if we forget that the symbols do refer to a geometric background, we shall be as much at sea as Hillbert.
However, the metaphor can later lose its original meaning; this is "a temporary dress assumed by my thought for a special purpose, and ready to be laid aside at my pleasure; it did not penetrate the thinking itself, and its subsequent history is irrelevant."  Likewise, we need not continually be conscious of an underlying geometry; once this has given us adequate control of the symbols, it can be relegated to the recesses of memory.
What is important about this process is that the metaphor can be utilised irrespective of original imagery only if I continue using it in the context (subject) in which it first arose.  In other words,  I can dispense with the underlying imagery if I have gone on to acquire such new knowledge that enables me to dispense with it. However, if this is not the case, and. if I lose touch with the original imagery, then the metaphor becomes "only a noise" (10).
I think this is the same with symbols. If we explore the geometry further, we can dispense with geometry that underlies our starting symbols; but if we don't explore the geometry further, then if we lose touch with the initial geometry, our symbols become only alphabet soup.
Returning now to the main discussion, I would, like to consider the shifting of attention (which I refer to as focusing). This involves a stressing of some things and ignoring of others. But I am at a loss whether this should be done directly (by teacher) or indirectly (by pupil). Obviously, the teacher cannot depend, upon a necessary focusing by the pupil, although this may happen; on the other hand, it would seem that too swift a change of focus by the teacher might result in a loss of comprehension. The problem is certainly a complex one and has no easy answers.
On a practical level, morphology may be initially difficult, but it should not be neglected for this reason! For it is needed as a background (which can gradually fadeout later). It can be aided by visual helps such as models and films.
The morphometry should, "fit" the morphology, i.e., be appropriate and not indulge in ad hoc jumps (e.g. area of circle as enlargement or plausibility). Where possible, it might be aided, by free-ranging formation of equivalence classes (11), followed, by a focus directed within the equivalence class (as the human decision of the teacher).
The decision of the teacher about where to focus attention is understood as a valid, form of academic autonomy; other interests can be pursued in the pupils' spare time, although if they pursue other lines and these seem interesting for the whole class to look at, then. the teacher may allow their ideas to receive public recognition.
The principle of academic autonomy that I am following holds that the pupils have a right to criticise the teaching of mathematics and to have their criticisms heard, but do not have the right to control the teaching of mathematics; obviously this will be more valuable for sixth forms than first  forms (12)
This concludes a preliminary survey of mathematics as patterning.

1: "A Mathematician's Apology" (1976) p. 84
2: "A Boolean Anthology"(19   ) ed. D. Tahta p.
3: "Catastrophe Theory"(19?8) A. Woodcock p. 13
4:  Op. Cit. p,65 (1979)
5. "Mathematics,  science  &  epistemology", Lakatos (1978)  pp. 30-35
6: Op Cit. Lewis tends to confuse metaphor as referring to a word and to an imagery; I always use it in the former sense and have accordingly adapted, his points.
7:  Op. Cit. p.138  (1939)
8:  Op. Cit. p. 140
9:  Op. Cit. p. 143
10: Op. Cit. p. 146
11: That equivalence classes are fundamental to comprehension, see "The Development of Mathematical Activity in Children: The Place of the Problem in this 'Development" (1966;ATM) where D.G. Tahta &W.M. Brookes place it at the "genesis of mathematical activity" pp. 3-8
12: "Mathematics, science & epistemology"(Lakatos) pp. 247-253 for a discussion of issues involved.

Saturday, 25 April 2009

Weekend musings and Kasai Masai

Usual weather forecast nonsense - on Friday, we were promised showers on Saturday. On Saturday, "Today's Weather" had changed to sunny, and the showers had vanished. This is not just the JEP or the BBC web sites, they get their weather direct from Jersey Met, who so far show a 95% success rate with "Today's weather", and about a 50% rate of suspiciously altered forecasts like that mentioned. The science of Jersey weather forcasting seems little better for "Today's weather" than going outside, looking at the sky in the distance, and seeing which way the weathervane is blowing. Surely Mr Pallot and his chums can do better than that?  Or are they after the Michael Fish Award for dodgy forecasting?

Saw Kasai Masai at the Arts Centre on Friday. Brilliant! They are a five-piece band led by Nickens Nkoso, bringing the traditional sound of remote equatorial African villages to London with a contemporary twist. The band leader, Nickens Nkoso, told us "you don't have to pay to dance. dancing is free!", and after one very courageous young lady had come down to floor level to dance in front of the band, others followed. By the end, there was standing room only at the front!

I'd have been there but (1) I have absolutely no sense of rhythm - I clap in the same time that Corporal Jones marched to in Dad's Army - out of step (2) I have a broken toe (3) there is enough horror in the world already without the sight of me pretending to dance.

The JEP mentioned it on Saturday and got it wrong; they took Kasai Masai as plural in one sentence, and as the name of the band leader in the next. The sub editor must have had an off day - again!

The music was a mixture of African beat and - at times - Jazz overtones.  If you want to see a clip of the band, click here:

A bit of blurb on the band from Nichens:

Kasai is a region in Congo which lies in the heart of the rain forest where many tribes such as the Baka still maintain their traditional lifestyles. The Maasai, just like the Baka, are another dignified tribe whose lives still centre around a nomadic existence. Kasai Masai was born in 2003 after I realised that there was still a lot more to share with audiences other than only Rumba and Soukous. Congolese music is so rich!

Before moving to Britain, all Kasai Masai musicians evolved in Africa as part of high profile local bands who toured around the world. Kawele Mutimanwa, our lead guitarist, played in Tanzania with Super Matimila.. He also played with Orchestra Virunga during his stay in Kenya. Rama Wa Mapendo, our saxophonist, and Jean Claude Mukubwa, our drummer, also played with Orchestra Virunga. In addition, in Nairobi, Rama played with Seper Mazembe and Les Wanika, while Jean Claude played with Vundumuna. Whilst in Tanzania Rama played with Atomic Jazz and Jean Claude with Les Maquis du Zaire. During a short spell in Zambia, Jean Claude drummed for Fire Family. Claude Bula, our bass player, started his career in DR Congo where he played with Las Vegas, Mizoto and Wela Wela, and later joined Choc Star and Big Star.

Most of my songs are based on traditional rhythms from different villages along the Congo River. Once my heart has connected with a particular beat, my mind starts singing back to me heartening melodies. When the music is in place I then write my own lyrics taking inspiration from ancestral story-telling passed on from one generation to another through African oral culture. This is my way of keeping our civilisation alive.


Thursday, 23 April 2009

Bailiff's Role in the States

This article is by the late Sir Peter Crill, and it is of interest in connection with the forthcoming review of the Bailiff's role in the States. It gives a good background summary of the Bailiff's role, powers and history. One curious feature (of which I was completely ignorant) was as follows:


The Bailiff has the right, if he and the Deputy Bailiff are unable to preside over the States, to nominate a Member or Officer of the States to act for him. This does not happen very frequently because in a non-party Chamber most Members wish to speak in all but the most routine of debates, and the President of the House has only a casting vote which, by custom, he uses in order to enable the States to debate the matter again during another sitting


Philip Rondel tells me he remembers both Dick Shenton and Jean le Maistre have taken the Chair in the past - he has a better memory than me! Another correction - Ed Le Quesne tells me Jersey now relates to the UK through the Justice Department, not the Home Office, since Jack Straw split that off as a separate department.


The Ancient Role Of The Bailiffs Of Guernsey And Jersey As "Speakers"

By Peter Crill (1992)


The Presiding Officers of the States in the Channel islands came to the Chair by a completely different route from their Commonwealth counterparts. The office of Speaker  in Parliament is, of course, an ancient and honourable one which is well understood in the United Kingdom. It was exported, along with other parliamentary institutions, to the English colonies and took root in the local legislatures, sometimes strongly, sometimes tenuously, but it flourished and survived, and a recent Conference of Speakers and Presiding Officers of the Commonwealth testified to its strength today.


A different path to democracy.


The Channel Islands of Jersey and Guernsey, however, whilst within the British Isles but outside the United Kingdom, have never been colonies and their geographical position, and early poor communications between England and the Islands, meant that for many years parliamentary institutions and practices were hardly known to the insular Legislatures which, evolving over the centuries, are called the States, a name which they have borne for over four hundred years. It is not surprising that this was so because, originally, the Islands were part of the Duchy of Normandy and remained so until the Duchy became separated from England when King John lost his continental possession in 1204. Norman institutions survived in form because the origins of parliamentary democracy in the Islands were different. The name of the Speaker is not to be found in any statute of standing order of the States of Jersey or Guernsey.


The States evolved from the much more ancient Royal Court which had consisted only of the Bailiff and twelve elected Jurés-Justiciers (Jurats). In the course of time the Royal Court, in Jersey, enlisted the help of the twelve Rectors and Connétables first as advisers and eventually as members. This increased assembly became known as Les États (the States), the present legislative chamber. All permanent legislation (projets de loi) passed by the States still has to be registered in the Royal Court after sanction by the Crown in Council.


That symbol of parliamentary sovereignty, the Mace, given by the House of Commons to several early fledgling Parliaments in the Commonwealth, has been carried before the Bailiffs of Jersey since 1663, when it was given to the Bailiff of that time by Charles II, but with a difference, It is not the Speaker's Mace. It is the Bailiff's Mace, and it is carried before him, not only when he presides over the States, hut when he sits as Chief Justice in the Royal Court. Guernsey did not enjoy Royal favour after the Civil War of the seventeenth century because it took the parliamentary side; therefore it does not have a similar Royal Mace


Royal connections


It may be helpful, before examining the Bailiff's role as Presiding Officer of the States, briefly to outline some salient parts of the Channel Islands' constitutional history.


The Islands consist of two Bailiwicks, Guernsey and Jersey, and each has its own smaller dependencies. Jersey and Guernsey are not independent states, but dependencies of the Crown, which exercises its paramountcy through the appointments of its Lieutenant-Governors and the other Crown Officers: the Bailiffs, the Deputy Bailiffs, the Attornies-General, and the Solicitors-General. Yet, whilst the Crown is ultimately responsible for the good government of the Bailiwicks, both of them have a high degree of internal self-government, subject to the sanction of permanent Bills by the Crown in Privy Council.


Originally the Crown exercised its legislative powers in the Islands by means of prerogative Orders-in-Council. In 1970, the States of Jersey submitted to the Crowther, later Kilbrandon, Royal Commission, which was charged inter alia with the examination of the constitutional and economic relationships of the, Islands (and the Isle of Man) with the United Kingdom, that the prerogative Order-in-Council had fallen into disuse. That claim was resisted by the Home Office in its memorandum to the Royal Commission. It used to be the Sovereign's principal Secretary of State who advised the Crown on the  Islands and following the creation in 1804 of the Colonial Office the Islands remained under the aegis of the Home Office. It is the Home Secretary as a Privy Councillor who exercises, through his Department, the oversight of the Channel islands and who advises the Queen whether to assent to Bills sent up for sanction. There is a convention that, although the Crown in Parliament may legislate for the Islands, it does not do so in domestic matters, which include taxation,


On the statute books


An interesting résumé of the origins of the laws of Jersey in particular is to be found in an English case of a debtor (reported at 1980 2 All E.R. Chancery Division) as regards the Royal prerogative in the Channel Islands, At page 671, Goulding, J. says this:


Council for the debtor emphasised the reference to the Crown's sovereignty in right of Normandy, and said that therefore the Channel Islands are not possessions of the British Crown at all. It is, however, far too late today, whatever may have been the position during the lives of the Conqueror's soils, to think of England and Jersey as connected by a mere personal union of Crowns, like Great Britain and Hanover before the accession of Queen Victoria. The legislative authority of the Parliament at Westminster and the appellate jurisdiction of the Privy Council are testimony to the contrary, As long ago as the middle of the seventeenth century, Sir Matthew Hale concluded a discussion of the Royal prerogative as to the Channel Islands with the sentence: "And now by long usage these islands are annexed unto the Crown of England, and though not infra regnam dominium regnisui Angliae".


Officers in the States


After the loss of continental Normandy, the English Kings retained the Channel Islands as part of their possessions and they were finally annexed to the English Crown by Henry II. To govern the Islands, the Kings appointed a Warden, or Governor, who had both military and civil powers. Eventually Guernsey and Jersey each had a Governor and they in turn appointed Bailiffs to act under them to attend to civil affairs.


Since 1495, the Bailiffs have been appointed by the Crown. In the time of King John there came into being the office of Jurat - the nearest modern equivalent approximates to a Justice of the Peace, but the analogy must not be pressed too far. As was states in a recent judgement in the Jersey Court of Appeal: "The Jurats number on only twelve and they are chosen to administer justice in this island on the basis that they will bring knowledge, experience and independence to their important office". The Jurats declared, sometimes with the King's Justices in Eyre, what the common law was. The Jurats, with the Bailiff and eventually with the Rectors and Constables of the twelve ancient Parishes, and popularly elected Deputies from the middle of the nineteenth century, acted as legislators and administrators


The final change (is there ever any final change in political evolution?) came in 1948 when the Jurats and Rectors were removed from the States, partly by their own votes, and the States of Jersey now consists of twelve island-elected Senators, twelve Constables and twenty-nine Deputies, together with the Dean, the Attorney-General and the Solicitor-General, all three of whom have the right to speak but not to vote.


It is over this body that the Bailiff now presides as his predecessors did over earlier bodies for many years. Thus the office and its functions are well understood and accepted by the Islanders.


Differences in the Chamber


The Bailiff, therefore, as Presiding Officer over the States, is nominated and not elected, but he presides over the Assembly, acting partly under standing orders and partly, where they do not cover a particular situation, by his own judgement and intuition. Erskine May [Treatise on the Law, Privileges, Proceedings and Usage of Parliament] is available and consulted, but the vast body of rulings by the Speaker of the House of Commons is too large for all his or her rulings to be applicable to a small Chamber consisting of fifty-three independent Members. Although not elected it is now accepted that, in advising the Queen as to who should be Bailiff, the Home Office has to be satisfied, by informal soundings, that the candidate would be acceptable to the island.


Unlike the House of Commons, prayers in the States are said in public, and also the roll call is taken in public. Again in contrast with most Legislatures, the Bailiff remains seated throughout, except for prayers and when reading, for example, a Royal communication or rising to obtain order when exhortations have failed.


The Crown's executive powers are retained in the veto – over matters affecting the Crown's interests - of the Lieutenant-Governor who has a seat in the States but no vote and, traditionally, speaks only on his retirement. As a result of earlier squabbles over jurisdiction between Governor and Bailiff, the Bailiff's seat in the States Chamber and in the Royal Court is higher than that of the Lieutenant-Governor.


Role of the Bailiff


The Bailiff has a right of dissent under an Order-in-Council of 1786 but since given statutory recognition. It suspends the operation of measures which the Bailiff considers the States are not empowered to pass until the Crown in Council has considered and allowed them.


The Bailiff has the right, if he and the Deputy Bailiff are unable to preside over the States, to nominate a Member or Officer of the States to act for him. This does not happen very frequently because in a non-party Chamber most Members wish to speak in all but the most routine of debates, and the President of the House has only a casting vote which, by custom, he uses in order to enable the States to debate the matter again during another sitting


The Bailiff is available to any Member to assist in drawing up propositions, or advising on procedure. Sometimes he chairs a meeting of senior Members on general matters arising out of earlier debates, such as the Order Paper for the next sitting. He is the channel of communication between the insular authorities and the Lieutenant-Governor who, in turn, transmits the official views of the States to the Home Office. In addition to his duties as Presiding Officer, the Bailiff is called upon as civil head of the Island to represent it at a number of official functions in both the Island and the United Kingdom. On important  matters of policy, for example civil aviation, he is expected to lead delegations for discussions with the Home Office and other Ministries. To some extent, therefore, his duties in relation to his position as Presiding Officer are fuller than merely acting as a Speaker. Moreover, he is the President of the Court of Appeal and Chief Justice of the Royal Court, which roughly corresponds to the High Court.


His position in relation to his dual functions - judicial and legislative, but not administrative - was examined by two Royal Commissions, firstly in 1946, and then the one I have mentioned, the Crowther Commission, in 1969: no recommendations were made for any change, mainly because there had been no representations to that end by the States or people in the Island.


Thus the Bailiff, qua Speaker, has extensive powers, but he must be careful to exercise them constitutionally and in accordance with the well-established constraints of his office.



Wednesday, 22 April 2009

States Members Remuneration

An argument which was deployed recently in the debate on GST was about the changing economic circumstances of the world since GST was introduced. A common theme amongst people who voted against exemptions - but who had noted only back in November when running as Deputy that they would vote for exemptions - was that "the world had changed" with the credit crunch, and the economic recession. But that surely cuts both ways. If we have to tighten our belts, and cannot afford to remove GST because of falling States revenue - which is a fair enough argument - then surely the expenditure on States members remuneration cannot be taken for granted either. It cannot be assumed that by default the pay must rise because it always has.

Related to that is the notion of "fairness". I am sure that despite Philip Ozouf calling for a freeze in pay for public sector employees, this will somehow not apply to the proposed increase in remuneration for States members, which is really quite unjust. It is about time the States set by example, rather than by exception, and realised that the determination of their pay will certainly be scrutinised by public sector unions - and quite rightly. The notion of "fairness" is as C.S. Lewis noted in the 1940s, is very strongly rooted in people, and I think this is still so today.

Lastly, one of the other ideas is that Ministers should have more pay than ordinary States Members. They already have more perks - Ministers have their own free blackberry mobile phones while in office. But should they have more pay? To bring a proposition to the States, the Minister has the backing of his own department, a multitude of civil servants from Chief Officer downward to advise him. They take at least some of the care, effort and time away from him, and one is hoped, stop him making mistakes. A private member bringing a proposition has to spend all, his own time researching and preparing the proposition, and does not have the backing of a large department.

To take just two recent examples. Whatever the merits of his case about the incinerator, Daniel Wimberley had to investigate and research a multitude of matters on his own, or possibly with one or two helpers, and then put it together in a coherent form. The Minister, Michael Jackson, on the contrary, had a reply prepared for him by his own department. The same happened with the proposition by Ben Shenton on Reg's Skips. Planning, and the Law Officers department both prepared replies on behalf of Freddie Cohen and Ian Le Marquand, the Ministers involved in those areas.

The argument that a Minister spends his time "running his department" is a nonsense; that is what we have Chief Officers for. Does the Health department suddenly grind to a halt when Jim Perchard resigns? Of course not! The Minister supplies oversight, decides on policy, and is the accountable face of a department to the public. But when a Minister makes his own decisions regardless of his departments advice - Guy de Faye allowing utility companies to just dig through land without the landowner's permission - they invariable come adrift. So should Ministers have more pay? Do they have more or less time for their electorate as a result of having to take time to run a department? If less, as certainly has been the case - Alistair Layzell said he thought he had spent too little time looking after the electorate in St Aubin when he lost an election, and Mike Jackson has certainly found it has taken him away more from Parish matters, and Simon Crowcroft gave up his committee when he became Constable - then it is not a case of spending more time on their department in addition to helping the electorate, but often instead of doing so; backbenchers are supplying the democratic deficiency, and if they do it well, as they often do, they deserve equal pay for doing so.

Tuesday, 21 April 2009

Jersey in the News Again

Jersey has been making the news again. On Saturday, we had Lenny Harper airing his comments - taken from an affidavit he made:

The Haut de la Garenne inquiry developed when, as part of the worldwide Operation Ore, the commanding officer of the Jersey sea cadets was arrested in 2006 for downloading pornographic images of children. Paul Every was subsequently convicted of child pornography offences. Harper discovered that allegations against sea cadet volunteers went back years. 'Some of the victims were children from Haut de la Garenne, taken sailing for a treat. The victims described being taken into international waters, where guests were invited to abuse them.....After Harper's departure last summer, the course of the investigation was radically altered. The inquiry has now, Harper claims, effectively ground to a halt. Before leaving the island he succeeded in charging three suspects with serious sexual offences. But nearly a year later, none has been tried.

Perhaps as a response to that, the Sun now reports on a further development in the case of one of the suspects charged:

THE first man to be charged in connection with child abuse at a Jersey children's home will face a string of new charges. Gordon Wateridge will face eight additional indecent assault charges after police investigated allegations made by a sixth victim, the Jersey Royal Court in St Helier heard. The trial of Wateridge - a former house parent at Haut de la Garenne children's home in St Martin in the 1970s - expected to start today, was adjourned to August 10 to enable the new charges to be included. The 78-year-old, born in Croydon, South London, but living in the Jersey parish of St Clement, now faces a total of 19 counts of indecent assault and one count of incitement to indecent assault involving five victims between 1970 and 1974. He is also charged with one count of assault involving a sixth victim. None of the victims can be named for legal reasons.

In fact, this has not just made the Sun, but also the Scotsman, the Guardian, and ITV news. Despite Lenny Harper's misgivings, this is one trial at least which is still attracting attention from a sizable spectrum of the media.

The other Jersey story is a mention in The Telegraph about the canceling of the reciprocal health agreement. In the course of an article on travel insurance in general, the newspaper noted that:

The reciprocal arrangements between health authorities on the British mainland and those on Guernsey, Jersey, Alderney, Sark and Herm came to an end at the end of last month, meaning that all British visitors will have to pay for their treatment if they become ill while visiting the islands. This means that now, tourists must cover their own medical costs in all cases and the same applies to Channel Islands residents visiting the UK.

So at least Telegraph readers will be aware of the situation, should they come to Jersey. It is the first UK Newspaper to mention this in its travel section, which is alarming, to say the least. Perhaps there should be a vendor offering short stay travel insurance for people easily available at the airport, or by a phone call from hotels, where a representative would come round to take particulars, and give cover for a modest cost, not unlike hiring a car on arrival.


Monday, 20 April 2009

Weekday Blues

Felt a bit rough this morning, needing some energising, something to power me up. So on a surrealist tack:

What does the song say?

I got chills they're multiplying
And I'm losing control
Cause the power you're supplying
It's electrifying

What do you do when you feel so grey and washed out?

I like to plug into the mains.

Tony the Mad Prof
(on an off day)

Please note: unless you have bolts in your neck too, plugging directly into the mains is not to be recommended.

Sunday, 19 April 2009

Remarks on the Objectivity of Assessment

In far distant student days, I recall one day when I entered the main sitting room of the flat where I lived. The fire was full on and the room seemed intensely hot. I looked at the thermometer, and the temperature read twenty-three degrees Celsius.
Since I thought this excessively hot and wasteful of heating, I asked the two other people in the room to turn the heating down, if not off altogether. I was given the reply that they were quite cold - "freezing" said one - and even through I tried to explain the temperature reading to them, they remained adamant that it was cold.
Now "warmth" and "cold" are, by and large, subjective measurements of temperature - they depend upon your bodily sensations. A simple experiment will demonstrate the validity of this. If you are in a warm atmosphere then any reduction of heat, however slight, is felt of as being "cold"; but if you come in from a bitterly chilling winter day to a moderately heated room (say from ten degrees Celsius to fifteen), then the room will feel "warm". Yet the room is identical in both cases! As to whether the fire stays on (and burns up costly fuel) depends very much upon who has control of the situation - who has authority.
On the other hand, a thermometer can be used as an independent and impartial arbiter. Yet even this "objective measure" calls for a degree of co-operation. Both sides must agree that, no matter what their sensations tell them, twenty degrees (say) is quite hot enough.
Now it seems that in the sciences - in particular, physics, chemistry or mathematics - an independent arbiter can be agreed upon as a matter of  co-operation, rather than being imposed by authority. But even if the means of checking results is forced upon the children by the teacher, it is still true that the appeal is to this as arbiter, and not the teacher; the means of checking are objective, even if not a matter of choice. In such a situation, the teacher is not an "authority" but may even be found to be mistaken. It might even be discovered that, as rumoured, mathematics teachers are notoriously bad at addition. But when one moves into the realms of English, History and French, there are less well-defined objective standards.
French has an objective standard, but part of this rests upon "educational French" which rules colloquial French as inadmissible. For instance, even educated French people don't fuss about the different usages of "savoir" and "connaitre"; this is more an artifice of grammarians (who have not come to terms with the scientific investigations of Chomsky) than an "eternal truth".
And in the English language, as we approach such matters as the writing of essays, we move progressively away from any appeal to an independent and objective measure; instead, we enter the domain of "the authority". An assessment of an essay could use rigorous objectively laid down criteria - an example might be to mark according to the vocabulary range of the work. But the problem with any method like this is that it is too mechanical - a computer could quite easily be programmed to carry out the marking. The trouble is that it cannot accurately measure the diversity of approach - between, for instance, an argumentative essay and one that tells a tale. To be more precise, this calibrates only the form of the essay and not its content.
On the other hand, an assessment of content must be largely subjective and, therefore, dependent upon the goodwill and health of the teacher. For instance, if you were the teacher, you might mark an essay entitled "Remarks on the Objectivity of Assessment" by making various objective calibrations on the form - such as measuring spelling mistakes, typing errors and readability (although how to differentiate between the first two is problematic!). But instead of this approach, you might prefer to award marks for the imaginative and creative thought involved in the writing, of which there is probably little. Yet another approach might be to consider the logic and so assess the arguments and analogies used. Generally, I imagine that any examiner would mark it on a combination of these methods, with no clear single strategy.
What do I conclude from this? As I have argued, objective marking in a subject such as English will depend upon the form of the material (words used, grammatical construction, spelling etc. ) while subjective marking depends upon the opinion and perspective of the marker. In the latter case, it is the opinion of the examiner that counts, and while that may claim to be well-informed, it is hard to see how this approach can specify a mark with any degree of objective validity.
I do not think this is a particular bad state of affairs in so far as it is recognised. However, when it is ignored, we undermine confidence in all attempts, however feeble, to assess written material. We yield to the totalitarian domain of the "expert" who alone has sole authority to judge rightly. But when the subjectivity inherent in marking is recognised and the examiner is very much aware of self-limitations and fallibility, then, on this basis, I think that it can be justified.

Friday, 17 April 2009

Harcourt Breaking News - April 2009

The JEP reported on Harcourt that:

PREPARATION work on the £80 million Esplanade quarter traffic scheme has halted because developer Harcourt has not paid a States department's bills.... The proposed scheme includes a new tunnel and underground roundabout from Gloucester Street to the existing underpass. It is claimed that Harcourt owe TTS nearly £150,000 in consultants' fees. About £100,000 of the fees were first invoiced last summer.

It would be interesting to know precisely the terms of the terms of the "heads of agreements" that Mike Jackson said had been signed were - in other words, precisely how much are the States committed to the scheme despite the financial verification of Harcourt required by Philip Ozouf.

But this is not the only case where Harcourt are making news. Back in the USA, the Las Vegas case has not been going wholly in their favour:

LAS VEGAS-The local plaintiffs lost some ground last week in the lawsuit over Sullivan Square, a would-have-been $1-billion, 1,300-unit luxury residential-over-retail project at Durango Drive and Interstate 215. Eighth Judicial District Court Judge Mark Denton granted the defendants' motion to dismiss for lack of jurisdiction on behalf of the individual Irish defendants. In addition, Judge Denton dismissed several of the causes of action in the plaintiff's first amended complaint. On the other hand, Judge Denton did not grant the motion to dismiss for lack of jurisdiction on behalf of the Ireland-based company operated by the individual Irish defendants, and he upheld, at least for now, several of the causes of action in the amended complaint including breach of contract.

The players are locally based Glen, Smith & Glen Development and Dublin, Ireland-based Harcourt Developments, the individuals behind those companies and the LLC entities they created for the now defunct partnership and project. Generally speaking, GSG and Harcourt created a development partnership whereby GSG would manage the development and Harcourt would be responsible for providing all the equity needed to finance construction. The lawsuit was filed in April 2008 after Harcourt decided not to provide the necessary equity.

In December, Judge Denton threw out most of the original complaints in August on a technicality regarding which entities the plaintiff should actually be suing. The amended complaint revived key claims such as breach of contract and breach of fiduciary responsibility, and added new ones including fraud and negligence.

Judge Denton dismissed with prejudice the negligence and consumer fraud causes of action in the plaintiff's amended complaint, as well as the plaintiff's allegations of intentional interference and conspiracy. Several of the causes of action were not dismissed, including breach of contract, breach of fiduciary responsibility, breach of good faith and fair dealing, unjust enrichment and derivative claims.

"The court cannot say to a legal certainty.that the First Amended Complaint fails to state [these] claims," Judge Denton states in his decision. "Much of what the defendants have argued in this Motion is fact specific and would be better deal with by way of motion for summary judgment to the extent that resolution short of trial is appropriate."

The plaintiff contends that Harcourt Developments, the Ireland-based company that formed the local LLCs that were involved in the development, is liable for the actions of the LLCs-Harcourt Development LLC and Sullivan Square LLC. The plaintiff's argument is that because the Ireland company is the sole member of Harcourt Development LLC, and because it directed the actions of Harcourt Development LLC, a member of Sullivan Square LLC, in the transactions that are at issue in the case.

The defendant argues that the Ireland-based company is not liable for the actions of the local LLC in which it has an interest. "If people or entities were subject to 'in personam' jurisdiction simply by virtue of owning or controlling interests in entities that have been formed for the very reason of conducting the envisioned business, then formation of separate business entities would be a charade and waste of time."

"These things being so, Plaintiffs have alternatively contended that they should be allowed some discovery on the jurisdictional issues," Judge Denton determined. "Plaintiffs appear to maintain that Harcourt Developments is not only the owner and member of Harcourt Nevada LLC, but that Harcourt Developments, apart from such LLC ownership/membership, actively went beyond such role into actually involving itself in, inter alia, '.hiring and directing employees.' on the project."


Thursday, 16 April 2009

The Kerions' Feast

I mentioned the Kerions in connection with a poem I had written some years ago, and Nick Palmer was unable to find the term anywhere. When he looked it up, all he could find was "Ringworm infection of the hair follicles of the scalp and beard that is usually results in a pustule-covered swelling that oozes fluid." But you wont find a trace of it in this poem!

Midnight Folk

Outside, the rain is softly falling down
Cobwebs glitter, a fine spun gown
With pearly drops. The harvest moon
Comes out but briefly, the clouds will soon
Roll back across the darkening sky
And batwings flap as fast they fly
To catch their prey - a tiny vole
A-scurrying swiftly down its hole.
And softly tread the woodland folk,
Creep out beneath the ancient oak,
Unseen, to work away the night,
Always there, but out of sight
They rustle fallen leaves in play,
As if the wind had come to stay
Only to dawn; for at first light,
They go, these little folk of night
And when the cock begins to crow,
They are asleep, so deep below.

Kerion is in fact a Breton name for "little people". In Megaliths, Myths and Men (2000) by Peter Lancaster Brown, he notes that:

In Brittany Folklore, the "little people", more familiar to Irish landscape, are often cited, for tradition relates that the 'dolmens' were the dwellings of the Kerions - a dwarf people who supposedly inhabited the country in former times. Even today in some parts of Brittany one may still here the expression 'As strong as a Kerion".

This is why, after my poem, I wrote "I love the idea which one finds in folklore of Kerions, Leprechauns, fey-folk, and strange little folk that might live in the ground, unseen, only coming through in legends that imperfectly glimpse what they might be like."

Nick commented that commented that "Google doesn't actually know very much about Breton Kerions, does it? Perhaps they've digitally cloaked themselves"

The term is obscure, admittedly, but I think that has more to do with the fact that Breton Folktales, unlike the Irish or Welsh folk tales - or even Greek, Roman and Norse legends - are not so widely known. One book which has a number of these tales is the 1932 "Breton Stories" by Lilias Erskine, and from that, for those who have not heard of Kerions before (including Nick Palmer), here is a story all about them.

The Kerions Feast

You know the Kerions surely ?

Little sturdy people, who wear white robes. . . . They live among the dolmens and the menhirs, making their homes behind these giant boulders. . . .

In the evening time they hold nocturnal gatherings, and many weird things are said to happen if the Kerions make merry in your house. . . .

One evening a farmer was sleeping peacefully in his high wooden bed, when he was awakened by laughter and singing. . . . Peeping through the curtains of the bed he saw his whole room lit up : little candles in tiny lanterns hung from every beam ; jugs of cider stood on the tables and dishes of every kind were spread out on the oak chest by the window. . . .

Cakes and meats and all his best wines were laid before the company. . . . And what a strange company it was, too ! Such tiny men in queer white robes. . . . And they danced and sang so gleefully, that the farmer lay still and watched their revel with much amusement. . . .

Near to the bed stood a small table, also laden with food; stretching out his hand the farmer seized a joint of beef and concealed it under the bedclothes.

" Time to go! " cried the leader suddenly. . . .

And all the Kerions assembled and replaced the food and wine that they had taken. . . .

" Away with the ox ! " cried the leader. . . .

Instantly all the joints of meat jumped off the plates and grew together, till a complete ox had
been formed. . . .

" Drive it back to the stable," said the leader. . . .

" Alas ! we cannot," cried the Kerions, " for one hip-joint is missing."

" We will make him one of putty," they said.

So they quickly fashioned a new joint from some putty and drove the ox back into the stable. . . . Clapping their hands and laughing merrily, they took down their lanterns and danced away into the night. . . .

The next day the farmer gave his wife the joint of beef and they made stews and soup from it for many days. . . .

A. few weeks later the farmer was driving his plough. The ox moved so slowly, that at last he cried out impatiently : " Oh ! you slow stupid thing. Your legs are so stiff they might be made of putty." As he spoke, down fell the hip-joint of putty and the poor ox could walk no more. . . . The poor animal was in such pain that the farmer was obliged to kill it.

" Alas ! stupid man that I was," sighed he.

" If only I had kept the real joint, I could have healed my ox." . . .

But he remembered too late that he and his family had eaten it in a stew the day before.

Wednesday, 15 April 2009

Appointments from Outside Island

I see that we have yet another appointment from outside Jersey. It would be interesting to know how many local applicants were available for the post. I don't know what the salary is, but Ruth Davies' previous position came in the salary band of £70,000-£75,000 with a bonus of £10,000-£15,000  and a healthy pension scheme in addition under the Premium Civil Service Pension Scheme. (This is all available from the Dstl Annual Reports, and in the public domain, so no breach of Data Protection - see Links below for the cash equivalent value of her pension.) I would imagine she'll get a higher figure here.

The Chief Minister's department is pleased to announce the appointment of Ruth Davies as the new Director of Human Resources (HR) for the States of Jersey. Ruth is a highly experienced senior manager, with experience in both public and private sectors. She joins us from the Defence Science and Technology Laboratory (Dstl), an agency of the Ministry of Defence (MOD) that supplies scientific research and advice to the MOD and other government departments. For the past 5 years she has been Director of HR for this agency where she led major organisational change. Among her key achievements were the restructuring of the Human Resources and Health and Safety teams; the implementation of business performance measures and a stronger focus on customer delivery.

I notice that one of the annual reports reports notes that:

Outstanding leadership is undoubtedly a critical factor in achieving the very best from our people. This is especially important at a time of change as we prepare to relocate onto three core sites and adopt new working practices and tools. This year has seen the clarification of leadership roles and responsibilities, with an emphasis on leading and developing people to fill the full range of management roles. Our new leadership development programme will equip managers with the skills they need to support and engage their people, especially through this period of change.

Let us hope, therefore that her appointment is part of a move to train up local managers to the required proficiency so that in future, appointments can be made from within the Island, from the local pool of skills. We are forever hearing of the need to train and appoint locally, and it must surely be extremely depressing - as in the case of La Moye School - when perfectly suitable people are passed over in favour of someone from outside Jersey. I'm not saying that it is always the best policy to appoint from within Jersey, but the record number of outside appointments suggests a basic deficiency in the training methods. Specialist posts like doctors, nurses, teachers may need outside recruitment if there are not enough local skilled people, but administrative posts are more generalist - as can be seen by the way in which James Le Feuvre has cheerfully relocated from education to health and back again to education. But even with specialist posts, are courses being supplied at Highlands and elsewhere for future needs?

In the old days, there was a civil service exam over here which picked up on potential "high fliers" from the start, and perhaps it is time to review just how well this is being done. Do we have any numbers of potential candidates being trained from Chief Officer material, or picked as potential for the future? That would be an interesting question for the Council of Ministers to answer, especially as Mike Pollard's contract is coming to an end and we might be looking for a new Chief of Health.


Tuesday, 14 April 2009

International Business Avoidance Company

Jersey gets a brief mention in this week's Private Eye, but the bulk of the focus is on BVI and their schemes.

The BVI is home to a million mostly single-purpose companies that pay no tax, provide no accounts, need no auditors or shareholders' meetings, offer shares in anonymous bearer form, need only one nominee or corporate director and offer good-to-go formation within days - all for under £l,000.
Beneficial ownership is supposed to be disclosed to the local manager or agent, but not to the local financial services commission regulator who can, however, demand ownership information. That can be sidestepped by way of lawyers, banks or accountants in other secrecy havens claiming client privilege. A paradise indeed for those looking to hide assets or corrupt deals - or even the payment of informers, like the ' US authorities have been reported as doing!
The BVI was the creator of the IBC, or "international business company", which it pioneered in 1984, since copied by all the Caribbean havens. (Ironically BVI has recently renamed all its IBCs simply "business companies" - the name changed to protect the guilty.) The IBC is to companies what the numbered or anonymous bank account is to criminals, a Kevlar shield against prying law-enforcement investigators or civil-action lawyers' eyes.
In the words of a leading London offshore company-formation specialist, the IBC is "easy to set up, has low maintenance cost, is confidential, has no filing requirements, is exempt from any taxation". A rival adds: "BVI incorporation documents do not carry the name or identity of any shareholder or director. The names or identities of these persons do not appear in any public record... Shareholder(s) and director(s) nominee services are allowed to ensure confidentiality of beneficiaries... BVI companies records and accounts do not have to be held or filed with the authorities. If the shareholders, directors or officers decide to maintain such records or accounts, these may be held anywhere in the world."
A BVI website promotes these advantages: "minimal regulations", "no wealth, capital gains or estate taxes", "asset security", "protection of wealth benefits", "legislative exemptions" and an "enlightened Financial Services Department (which has) maintained minimalist yet tight regulation to safeguard the integrity of the jurisdiction".
Clearly every home should have one. Which is why the growth of BVI offshore companies has been phenomenal, from around 300,000 at the start of the decade to 535,000 in 2002 and 852,000 in 2007 - a year in which more than 77,000 companies were formed. The figure is now believed to have passed the 1m mark. The greatest fans are Russia and, more recently, China - countries where tax evasion, flight capital and corruption are rife. For the issue with the BVI is not just tax but, more importantly, secrecy.
Jersey copied BVI in January 1993 when Pierre Horsfall, then Finance Minister, brought in the International Business Company (created in BVI in 1984) to great fanfare.

The Independent noted that:

Jersey will introduce the international business company, a structure by which multinationals will be able to reduce the tax they pay on inter-company financing. IBCs will pay a maximum tax on profits of only 2 per cent, falling to 0.5 per cent on profits of more than pounds 10m.

Unlike BVI, however, there was a requirement of satisfactory disclosure of beneficial ownership to the Jersey Financial Services Commission. Even despite this, there were 184 international business companies in Jersey by March 1994.

However, although it is still holding on until 2011, the IBC can no longer be formed in Jersey, as noted by Trident Trust, because of the changes needed to avoid harmful tax competition (whereby external and internal taxation of companies differs significantly):

The preliminary phase of the implementation of Jersey's adherence to the European Union Tax Package in 2003, whereby Jersey agreed to make changes to its tax regime involving the introduction of a general rate of 0% and to phase out companies with tax exempt status was to first abolish International Business Companies.

The International Business Company was abolished with effect from 1st January, 2006. Existing beneficiaries of the International Business Company regime at that date continue to enjoy the benefits thereof, but subject to them being progressively phased out by the 31st December 2011.

What is always disconcerting is that such an abolition is a result of political pressure, rather than as a result of considering the ethical implications . There seems to be too little philosophical scrutiny about the deeper ethical consequences of this kind of action, as long as it follows accepted "codes of practice". When introduced, no one seems to have been concerned about the ethical implications of copying a kind of structure that was clearly designed to promote tax avoidance from the UK by way of purely technical balance sheet transactions to reduce tax (with no actual trading considerations). The Jersey IBC document mentions one of the advantages as "avoidance of CFC legislation", which the UK Government spelled out as follows:

The purpose of the CFC legislation is to prevent UK companies from avoiding UK tax by diverting income to subsidiaries in low tax countries. A CFC is a company which is not resident in the UK (but which is controlled by individuals or companies who are) and which is subject to a level of taxation less than three quarters of what it would have paid had it been resident in the UK.

Perhaps we need more philosophers in the States! And in the BVI, Private Eye notes tighter restrictions:

The BVI has also been imposing tighter restrictions on IBC/Business Companies. Bearer shares - the most effective way to hide ownership - will go next year. Evidence of ownership will need to be provided, but there are loopholes - such as accepting that the information is held elsewhere and will be provided....More information may be made available to the UK and US and others with a big stick. But just how much information on those companies and their bank accounts, usually in other havens like Switzerland, Jersey or Luxembourg, will be provided on the BVI's biggest customers - the Russians and Chinese - or those from developing countries in Africa, is likely to be a very different story.

For the other BVI vehicle for tax avoidance, the VISTA - a special Trust vehicle, and other named and shamed avoidance schemes  - including Barclays - I would thoroughly recommend buying this week's Private Eye.