The Neutral Zone

Time and again, suspension in Jersey is described as "a neutral act". To those individuals who are subjected to the media spotlight, and are unable to defend themselves, or bring any public action (as for unfair dismissal), it can surely seem anything but that.

In Star Trek, the "Neutral Zone", was in fact an area in which any attempt for the Enterprise to enter was met by armed Romulans, who seemed to patrol the zone at will, and despite its name, had almost complete control over it; far from being "neutral", the "Neutral Zone" was really the boundary marking Romulan hegemony. What the viewer was told, and what the viewer saw were significantly at odds with one another.

I couldn't help feeling a sense of déjà vue with the way that "neutral act" is used in connection with suspensions. On one side, the media can make all kinds of allegations, or publicise allegations - as in the case of Mr. John Day, and the court case in which he was not called as witness; on the other, he had to keep silent on the matter, and just accept all the accusations flung at him in court. The same is the case with Graham Power, although there at least, he is prepared to speak out when former Ministers, such as Andrew Lewis, cheerfully break their own silence.

So let's look at a few things Mr. Lewis says about "neutrality":

The act of suspension was fully in line with the disciplinary code and is designed as a neutral act in order to give the Chief Officer sufficient time to defend his position uncompromised by the constraints of office. The code has a clear process of appeal despite Mr. Power's allegations that such provision does not exist.

Graham Power notes that this is false on two grounds. First, that the Royal Court strongly criticises his actions, and secondly, and even more significantly, that there is no right of appeal.

This claim is made in spite of the strong criticism of his actions by the Royal Court. He does not address this criticism and appears to prefer to pretend that it does not exist. Contrary to his claim, the disciplinary code provides for no appeal against suspension. There is a right of appeal against the findings of a disciplinary hearing. No such hearing has yet occurred and none has been arranged.

I think that Mr. Power is absolutely right in this. If there were grounds for appeal, he would have been the first to take them. But as with Karen Huchet, or John Day (to note two other recent "neutral suspensions"), there is no recourse until a disciplinary hearing has occurred. For Andrew Lewis to come out with something so blatantly incorrect is amazing. How are we to make sense of this? Apart from deliberately trying the muddy the waters, which I am at present ruling out, I can only propose the following explanations:

- he has been misinformed - despite his statement that he was well briefed on the law
- he was well briefed, but misunderstood the briefing
- the passage of time has clouded his memory of exactly what he was briefed about

In any case, he should issue a retraction on this, and make it clear that he was making a false claim about appeal from a suspension.

Now we come to a complete contradiction:

Andrew Lewis: Mr. Power had also been regularly briefed on the progress of the review in even more detail than I. He was also informed that the Deputy Chief Of Police was planning to brief Ministers on the 11th November on the findings of the review that were expected to be shocking.

Graham Power: Mr. Lewis states that I was aware of the planned briefing to Ministers on 11th　November 2008. This is just plain untrue. Pure and simple. This was planned and executed without my knowledge. If he claims that I was aware it might be useful for him to state who told me, and when.

Graham Power is absolutely right to ask this. If he was informed about the briefing on 11 November, where is the record of this? If it was as significant a briefing as Mr. Lewis states, surely there must be documents (letters, emails) to Mr. Power informing him about it? In the absence of any corroborative evidence, the balance of probability surely favours Mr. Power's version of events. Again, how do we understand Andrew Lewis strange statement?

- he has been misinformed - despite his statement that he was well briefed by those concerned with the 11 November briefing
- the passage of time has clouded his memory of exactly what he was told about the 11 November briefing

We now come to the statement about Mr. Power's resignation:

During my final meeting with Mr. Power he was not asked to resign he never has been, it was an action that I did not wish to invoke because it was important that a thorough investigation of the allegations made in the Met review was undertaken before any further action was taken in respect of Mr. Power's position. Hence the suspension was an important neutral act.

Mr. Power says that:

Lewis states that I was not　"asked to resign." All parties agree on at least one thing. That is that at the start of the meeting I was asked to "consider my position." I leave it to others to decide what is commonly understood to be meant by this statement.

Andrew Lewis comments here remind me of the Isaac Asimov detective story in his "Black Widowers" series. In one story, a man whom we are told never tells any lies has been accused of stealing bonds and cash, but he persistently denies this. He says "I didn't steal the bonds or the cash". The Black Widowers are at a loss, because he is known to be almost pathological about not lying. It takes the clever Henry, their waiter, to spot the obvious, and he asks the question: "Did you steal the bonds AND the cash?" which of course he did.

By sticking to the exact form of words "asked to resign", and avoiding saying whether Mr. Power was ever asked "to consider your position", Mr. Lewis is using literal exactness to avoid giving a direct lie. But if Mr. Power's statement is true, and there is no reason to doubt it, Mr. Lewis is giving a very slippery reply, which if factually correct, is definitely misleading.

With regard to the form of words, these caused came up in 1994, and "made headline news and triggered an unprecedented debate in the House of Lords. It concerned correspondence between the Lord Chancellor, Lord Mackay, and the President of the Employment Appeals Tribunal, Mr. Justice Wood". In the course of the correspondence, Lord Mackay wrote:

I ask you again for your immediate assurance that Rule 3 is henceforth to be applied in full and that preliminary hearings are not to be used where no jurisdiction is shown on a notice of appeal. If you do not feel you can give that assurance, I must ask you to consider your position.

Diana Woodhouse notes that "the phrase 'consider your position' raised a matter of considerable constitutional concern. In the subsequent debate in the House of Lords Lord Lester considered that he 'would have interpreted it as an official and formal invitation... to consider whether [he]... could properly continue in that office'. (HL Debs., col. 257, 27 Apr. 1994.)"

So I don't really think Andrew Lewis can honestly state that Mr. Power was not asked to resign - in any form of words - if the House of Lords considers it as an "official and formal invitation" to resign.

Lastly, on suspension as a "neutral act", the following case should certainly be considered, which in my opinion, makes it clear that the legality of suspension as "neutral" is certainly open to challenge.

Suspension of employee is "not a neutral act" and may be restrained by injunction.

In Mezey v South West London and St George's Mental Health NHS Trust the Court of Appeal refused the Trust leave to appeal against a High Court injunction to restrain its suspension of Ms Mezey, a consultant psychiatrist. While Ms Mezey had given a voluntary undertaking to abstain from her clinical work pending an internal disciplinary hearing, she disputed the contractual lawfulness of her suspension. Pending trial of that issue, Ms Mezey obtained an interim injunction from the High Court.

The Trust argued that, although a court may restrain a dismissal, it was wrong in principle, at least pending trial, to restrain a suspension, since this was "a neutral act preserving the employment relationship" and was appropriate in view of the breakdown of trust and confidence in Ms Mezey's clinical judgment. Suspension was, in the Trust's view, qualitatively different from dismissal. The Court of Appeal rejected that argument, "at least in relation to the employment of a qualified professional in a function which is as much a vocation as a job. Suspension changes the status quo from work to no work, and it inevitably casts a shadow over the employee's competence. Of course this does not mean it cannot be done, but it is not a neutral act."

Links
Text of Andrew Lewis and Graham Power's responses; grateful thanks to:
http://voiceforchildren.blogspot.com/2010/02/andrew-lewis-or-cpo-graham-power-qpm.html

In Pursuit of Good Administration: Ministers, Civil Servants, and Judges. Diana Woodhouse, 1997, p118

http://ld.practicallaw.com/ldProfile/jsp/article.jsp?item=:30131927

Mezey v South West London and St George's Mental Health NHS Trust [2007] EWCA Civ 106.