Sunday, 29 August 2010

Le Main Law

Terry Le Main said...

I continue to see quite ridiculous payments of taxpayers monies to cases that quite honestly would make you quite ill..especially if you are a hard working ordinary Jersey resident...paying your taxes etc...its something that this awful " Data Protection legislation " precludes me from disclosing recent case I queried...the response from the Minister...I cannot speak to you because of Data Protection, nothing but an excuse ...years ago the likes of the then Senator Dick Shenton and I could discuss issues with family etc...not now..those commonsense days are gone...please let me give you a case when I was Housing Minister... a lady came home to see me ..she said I have come to thank you for the way and manner that you are helping and assisting my daughter and grandchild....I knew this lady and her daughter...I listened to this lady but after she had left I then realised the position with her daughter was that during that week I had signed a Ministerial decision to evict the daughter because she refused to comply with her tenancy agreement, did not pay her rent, yet received rental assistance...well what do you think this good lady thought of me when she found out about the eviction...she knew nothing about her daughters behaviour...the true position was that in the past prior to this " Data Protection Legislation " the Dick Shentons and Terry le Mains of this world would have been able to assist by going to the mother, telling her the issues with her daughter and all of us together assisting to resolve the daughters problems thus allowing her to remain housed...but although this legislation protects peoples personal and intimate information, it just goes too far when in this case we really could have assisted this poor fact because she had not given permission she was evicted...everybody was a is a joke that in an Island of 90k people we are spending £86M on benefits...yes far too many claimants are in fact playing the system and many local GP's have a lot to answer for in the way and manner that they give out " medical certificates" i have several very bad cases that I am unable to investigate etc...due to this legislation etc..(1)

There is a posting on another blog which I reproduce above which allegedly comes from Senator Terry Le Main. I say allegedly, because although it comes in his style, it is of course easy to impersonate another individual on a blog. However, stylistically, the " steam of consciousness" in which the thoughts flow freely without reference to punctuation apart from a characteristic repetition of three fullstops, are the same as those of the Senator, and the content certainly referred to a case in which Terry Le Main was in breach of the Data Protection Laws.

What becomes clear upon reading this entry and indeed his defiance of a previous breach of the law is that he simply cannot understand how the law works, how as Housing president and then as Housing Minister he was in a position of privilege, and why there are a very good reasons for Data Protection Law. The case referred to occurred in 2004, and was more serious because it was the second time in which the law had been broken. It was reported in the Jersey Evening Post as follows:

A STATES tenant whose rent arrears were disclosed by the Housing president will be eligible for compensation from the committee. If she does claim it, it will be the second time they have had to pay out for breaching the Data Protection Law. Data Protection Registrar Michael Smith is on the verge of issuing another enforcement order on the Housing Committee because the president had acted 'knowingly and recklessly' when Deputy Terry Le Main released the details. His decision comes despite the Attorney General's decision not to prosecute the committee for the infraction. Mr Smith has also decided to publish his report into the tenant's complaint on his website. The complaint was made almost 12 months ago after Deputy Le Main contacted the mother of a States tenant, claiming that she had abandoned her accommodation in a 'terrible' state and that he had concerns for the welfare of her grandchildren. Mr Smith told the JEP: "As an enforcement notice was issued in the previous case, this second breach could be deemed as being knowing and reckless under the law and therefore justified a further review by the Attorney General for a possible offence." He says that the committee's previous infraction means that "mitigation may be difficult to uphold in this case" (2)

The case in point was curious as far as evidence was concerned because while Deputy Le Main (as he was then) was handing out photographs displaying the appalling state that the property had been left in, Deputy Southern was producing photographs of the same property after the tenant had tidied up and redecorated. Moreover, Deputy Southern had a contrary report from the Children's Service which said that there was no evidence that the woman or her children had lived in it in the state depicted by Senator Le Main and which found his worst claims "unsubstantiated".

Before I go on to examine this in more detail, I would mention that the first case in which the Data Protection Law was breached by Terry Le Main, in his capacity as Housing president was when he released of the tenant in a letter to the JEP. In that instance, the committee were forced to pay her compensation. In this particular case, Mr Le Main was using the details of the rent as part of an argument against criticism that he had faced on rents in State Housing, and to prove his point, he had cited a singular example giving the rent details and the name of the tenant. As president of housing, he was in a privileged position of having confidential information. If a civil servant had disclosed that information to the public domain, they would certainly have been breaking their oath of office. As a politician, he was not bound by this, and that is where the Data Protection Law comes into play because it is designed to protect individual data from such cases as this. Without the law, any criticism of a Housing president could be met in this way, which can be seen as a form of political bullying -- if you dare to attack me, I will give out all sorts of details that I know about you to undermine your case regardless of the fact that this is privileged information.

With the second breach of the Data Protection Law, we have the cosy uncle Terry meeting the family and sorting out all their problems. This scenario, iddylic though it sounds, could still take place. All that Terry would have needed to do to comply with the law would have been to ask the daughter if he could put her mother in the picture and try to work out a resolution. The critical factor is asking the daughter. Without that, the cosy scenario might in fact have worked very differently.

We can see this in play very well in fiction, because that often draws upon the way things were done. In a number of episodes of "Upstairs Downstairs", for example, the erring daughter or the straying son would have matters sorted out by the father, Richard Bellamy, and the family lawyer, and also possibly the mother. They would take it upon themselves to decide what was best for the daughter or the son, and put pressure upon the said child to agree to this. On watching this, I am often struck by how often the values of the parents and professionals feed into their idea of "what was best", and how as a viewer coming from outside, and not sharing all the Edwardian values, the resolution often seems unjust, calculated to preserve appearances, and an exercise of power by those in positions of power to bully others into agreeing with their opinions. This is easy to see because the programme is a period drama, and the society and values which it depicts clearly differ in some marked respects (about preserving appearances and public decorum) from those of the late 20th century and 21st century.

In the case of the second breach of data protection, Mr Le Main presents himself as the champion of the girls best interests in disclosing privileged information to her mother. But as we have seen, the evidence upon which he set so much store was certainly at least disputable if not incorrect. By giving this information to the girl's mother, we can see the same kind of scenario about " what is best" being played out, which was why the girl's consent or so important. Of course, we have no idea of how good the relationship between the girl and her mother was, and neither did Mr Le Main. He was therefore revealing confidential information which might have led to a breakdown of that relationship, or if there was a damaged relationship, something that the mother could complain about to her daughter. In deciding to play the part of the benign and kindly politician, Terry Le Main could in effect be tossing a psychological hand grenade into the room.

In fact he also did more than this, he also named her in an e-mail to States members as "not a fit person to be looking after children". And yet it is clear from Deputy Southern's report from the children's service that this was that this was not the case or at the very least was questionable. Was she guilty of cruelty to children? Had she neglected then? Senator Le Main seems to have cited very little in the way of substantial evidence to support his case apart from the debatable condition of the house and yet he felt free, without getting any checks from the children's service - which would be the first place to support his assessment of the girl - to shred her reputation as a parent toward the States members. If the Data Protection Law does anything, it must be to prevent lone individuals, with no substantial evidence, making defamatory claims. It is ironic that Senator Le Main criticises Stuart Syvret for doing precisely this, and yet seems to feel that he is completely immune from the due process of the law himself.

The Attorney-General, giving a generous interpretation of his evidential rule decided that even if this was the second offence, there was not a substantial case to answer. One can only hope that Stuart Syvret will benefit from this lax approach when he is tried on similar breaches.

The fact is were these. Deputy Le Main had broken the Data Protection Law. The Deputy Registrar had written a report and recommended prosecution. The report showed that personal data of a data subject which was the privileged knowledge of the Deputy in his capacity as P
President of Housing had been disclosed to another party without consent. Had it been a matter regarding the electoral law and assisting people with the completion of applications to allow them to receive postal votes, such evidence would have produced a heavy fine, as indeed it did in the case of Deputies Southern and Pitman. In this case further, a further investigation was requested and the Attorney General decided, on the basis of this information, which was not placed in the public domain, that there was insufficient evidence for a prosecution. The Attorney General also declined to make clear his grounds for making this decision as it would involve "disclosing material parts of the evidence" and would lead to public controversy.

"Having considered the report, I referred it to the Chief Officer of the States police in order that a full investigation might be carried out and evidence gathered in a form which could be used, if a prosecution were to be brought. I received a full file of that investigation later last year and resolved that no prosecution would be brought, as there was insufficient evidence to justify doing so. Deputy Le Main claimed that the data protection registrar had not properly considered the evidence before reaching his conclusions. 'He wrongly listened to one side of the story'"

I can only assume that this report by the Jersey Evening Post is incomplete in some respects as it seems, in my opinion, to make no sense at all. Whether a decision to prosecute an individual would lead to public controversy seems a bizarre ground for not doing so. And one wonders what the other side of the story could have been. Either the girl in question had given her consent or otherwise placed information about her rent in the public domain, or Deputy Le Main was not himself responsible for breaching the law, or perhaps had done so accidentally. There is no evidence whatsoever that the first is correct, and the attitude of Deputy Le Main suggests that this was a deliberate act. The only one side of the story that is not clear is whether Deputy Le Main understood the Data Protection Law. The grounds would therefore seem to be that while ignorance of the law excuses no one, incomprehension of the law excuses politicians.

As one might expect, Terry came forward with his traditional defiance:

HOUSING president Deputy Terry Le Main has defiantly said he would 'do the same again' after he was told that he would not be prosecuted for breaking the Data Protection Law.(3)

Of course, Senator Le Main has recently come under fire for misguidedly sending a letter of support in defence of an individual being prosecuted for breach of housing regulations as something he happened to believe was wrong and should receive more lenient sentence. He said that he would have behaved the same way for any of his constituents that the individual in question was merely a business acquaintance and not a friend with whom he would have socialised. The fact that this business acquaintance had helped his political campaign costs for many years did not seem to suggest to him that perhaps it was not the wisest thing to pitch in to the defence of someone with whom he had a close political connection, and in respect of the law that the Minister was responsible for upholding. Senator Le Sueur took the view that it was a case of his heart getting the better of his head and that, while Senator Le Main resigned, provided he accepted that he had breached the State's code of conduct, he could become a Minister once more; all he needed was a little better "education" in the code. This was beautifully summed up by Ben Queree, in one of the best appreciations of how Teflon like Terry Le Main was with respect to the kind of behaviour that might have led to a political graveyard for any other politician.

SO that's sorted then. In case anyone was in any doubt, it's essentially fine for a minister to pester the Law Officers to drop a prosecution against someone who has donated to his campaign costs for decades, and then to plead with the Royal Court to go easy when it comes to sentencing. And if this campaign contributor - not 'friend', dear me no - happens to have been caught breaking the law that the politician is meant to enforce as a minister, that's not a big deal either. These things are good to know. And it's probably good to know too that 'essentially fine' means that the rules were broken, but that it doesn't really matter - that the whole thing can be dealt with by a little 'training and education'. Try that one out next time you get a parking fine. Exactly what kind of 'training and education' Chief Minister Terry Le Sueur has in mind for his erstwhile Housing Minister Terry Le Main was left tantalisingly hanging in the report, released last week, into the whole sordid mess. Pointing out that the code of conduct exists might be a start. Or perhaps a slide show of some kind, or maybe using glove puppets to represent the distinction between the executive and judicial branches of government. Or possibly just sitting down in a little room while someone reads the ministerial code of conduct out loud. Very . slowly.'(4)

Just as with the Data Protection Law, Senator Le Main's stance was to say that he had done nothing wrong and was entirely justified in his actions. One has to conclude therefore, that he has shown no contrition, no appreciation that he has behaved in any manner that is inappropriate for a States member under the State's code of conduct, and no recognition that Senator Le Sueur's dropping of the matter and not bringing any disciplinary measures was conditional upon him not doing it again. Instead, what we have is self-justification, complete confidence in his own rightness, and nostalgia for a fairytale past in which he could resolve matters by bypassing all the protections against defamation and political bullying, but which were never quite as rosy tinted as the portrait he paints.

I look with interest to his election campaign, should he decide to stand for election next year. It would be extremely interesting to see a pamphlet consisting of the un-punctuated "Thoughts of Chairman Terry", and what the public would make if that was unleashed upon them in an expurgated form. I wonder if it will still be printed by the same publisher that he went to great lengths to disassociate himself from, and who probably not just printed but also edited the final version of the manifesto into something resembling English far better. I personally believe that while laws must be unjust, politicians must have extremely good grounds of conscience for breaking them with such impunity and he should certainly be asked if he would still be prepared as he stated in 2004 to break the law again.

And finally, I would just like to comment, that despite my strictures against Senator Le Main regarding his infractions and contempt for laws, he has undoubtably helped a number of Islanders, particularly in his earlier days in the States, and without breaking any laws (or even breaking future laws that would have been broken had they been on the statute books). I know personally some of the people whom he helped as a States member, and it was disinterestly, in the best kind of public service. He was one of the members voting for a women's refuge, and certainly his past votes from the 1980s show a record for social concern (I simply have not examined the 1990s or later). It just seems a shame that he should now spoil his own record by a belligerent defiance of laws and codes of conduct, and behave in a manner which he sees fit to ignore these when it suits him, or not ask for advice from his colleagues when it would be prudent to do so.


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