Turning Over Napier's Bones

20 October - Wendy Kinnard resigns as Home Affairs Minister; Andrew Lewis takes over, with effect from 22 October.

11 November - David Warcup provides Bill Ogley with letter containing his report written at the request of Bill Ogley and referring to Interim Report received from the Metropolitan Police

Mr Lewis' statement made to Wiltshire Police as part of their inquiry, to the effect that he had no reason to believe before reading the letter sent by Mr David Warcup (the Deputy Chief Officer of Police) to Mr Ogley (the Chief Executive) that the police were not managing the investigation well was not wholly accurate.

Along with "economical with the truth", the phrase "not wholly accurate" should go down as one of the most weasel phrases of our times. Andrew Lewis made a statement, and either it was true, or it was false. Only in the weird logic of Edward De Bono, or Brian Napier, does a statement of fact have the odd attribute of being neither true nor false, rather like Schrödinger's cat. Actually, as it turns out, it is clear that David Warcup was briefing Andrew Lewis well before that letter came out. As Brian Napier's own report states:

The resignation of Senator Kinnard from her position of Minister for Home Affairs took place on 20 October 2008, and her replacement was Deputy Andrew Lewis. That was a significant development, as Senator Kinnard had been resolute in her defence not only of the police generally, but in particular in her endorsement of the actions of DCO Harper in conducting the investigation. Mr Lewis, who took over, was a man of different views. He was not inclined, in the absence of hard evidence to the contrary, to accept that there was a conspiracy against justice in high places within Jersey. Mr Lewis had moreover been in receipt of constant briefing from Mr Warcup during the latter's time on the island. As previously mentioned, these briefings had contained not only criticisms of how the inquiry had been managed when DCO Harper had been in operational charge of it, but also criticisms of Mr Power's failure to engage with the attempts that were being made (by Mr Warcup) to put right mistakes that had been made.

"In receipt of constant briefing" suggest not only that Andrew Lewis, was briefed that "the police were not managing the investigation well", but also - as it stems from the advent of Mr Warcup - these briefings clearly took place when he was still an assistant minister. It doesn't seem to me that Andrew Lewis's statement is "not wholly accurate"; from reading Napier's own report, it appears very much as if it was wholly inaccurate!

It certainly seems that Brian Napier is trying to give Andrew Lewis the benefit of the doubt, but the evidence of his own report does not stack up against that.

Turning now to the idea of a conspiracy, the notion that there was no evidence of any conspiracy is stated in his conclusion:

I have seen no evidence to support the claims (which, if substantiated, would certainly point to a need for further investigation) that these were part of some plot or conspiracy within the public service to frustrate police investigation in Jersey.

I have found no evidence of a "conspiracy" to oust Mr Power for some improper reason.

But look at the words carefully - "to frustrate police investigation in Jersey" and "some improper reason". What does Brian Napier understand by "conspiracy", in these phrases? He clearly means some kind of cover up of dark secrets, a kind of murky world not unlike that described in a recent play on Radio 4, "The Conspiracy of the Illuminati". There was some kind of devilish plot to get at Mr Power, and destroy the child abuse enquiry. I know some suggestions have been made of that.

But there are conspiracies of many sorts, and there is clear evidence that certain individuals were conferring together, behind Mr Power's back (and hence in secret) , and while this may have been from the highest motives, they were definitely intending to remove him from office, and were preparing the ground for this. This emerges again in the Napier report:

As early as 28 October there was in existence a document created by Mr Crich setting out a possible scenario for "Possible disciplinary proceedings against the Chief of Police". By this time Mr Lewis had taken over as Minister from Senator Kinnard. Yet no steps were taken Mr Lewis to try to resolve the differences that were seen as emerging, not only by him but by his senior advisers. My view is that an opportunity to attempt to resolve the issues relating to competence and capability that eventually lead to Mr Power's suspension on 12 November 2008 was missed when Deputy Lewis took over from Senator Kinnard.

The confrontation with Mr Power was seen coming by officials weeks in advance of 12 November, and I do not know why the opportunity to head it off (or at least attempt to do so) was not taken. I am inclined to think that the answer is that there was, at the highest level of the administration, a belief that the suspension and the taking of disciplinary action against the Chief Officer was not only what was likely to occur (by reason of the decision of the Minister, after the changeover from Senator Kinnard to Mr Lewis), but also what should happen. Efforts were accordingly concentrated on preparing for that scenario, to the exclusion of other possible mechanisms for resolving perceived failures in performance.

It would be interesting to know exactly what "the highest level of the administration" refers to in the report. It seems to be a fudge which avoids naming names. Bill Ogley? Frank Walker? One individual? Several? Note that the preparation for the scenario of suspension, because they thought that was what "should happen". Is that "planning" or "conspiracy"? There may have been no clear directives, but just because directives are not given directly doesn't mean to say that intentions were not clear, or else why else concentrate efforts on one objective.

Could this be described as engineering Mr Power's suspension? Obviously no one came together in a cabal, in secret, and put on a blackboard the words "get rid of him". Outside of fiction, no one really behaves much like that. But pre-planning one particular outcome - that of suspension - because it was believed that it "should happen", would certainly come close. One of the characteristic features of a short story is that if a shotgun is casually mentioned, hanging on a wall, the reader knows that the writer indents to make use of it later on in the tale - why else mention it? The pre-planning can be seen as akin to loading a shotgun, and why one earth would all that effort be given to something that was not intended?

Brian Napier exonerates Andrew Lewis from this pre-planning, assuming, of course, that Andrew Lewis' statement in this respect is more accurate than the one he gave the Wiltshire inquiry:

I do not say that Mr Lewis shared that view. He has confirmed to me that he was not at any stage planning with others to bring down the Chief Officer and I have no reason to doubt the accuracy of that statement.

But what was the motivation? I certainly think there were "legitimate and reasonable concerns about Mr Power's performance", and I accept Napier's point that was part of the motivation. But another part was clearly motivated by personal reasons. There was already a clash of personalities, as is clear from the description of the meeting on May 2008:

Mr Power also refers to a meeting he attended around May 2008, together with Senator Kinnard, the Chief Minister (Mr Frank Walker) and the Chief Executive (Mr Bill Ogley). He narrates how, at that meeting, there was a strong difference of views between the Chief Minister and Senator Kinnard with regard to the conduct of the ongoing Historic Abuse Enquiry. Mr Power's recollection of that meeting was that the then Chief Minister berated the enquiry and complained of the damage it was causing because of the bad publicity it was generating. Senator Kinnard defended the enquiry but was, according to Mr Power, subjected to verbal bullying by the Chief Minister who stated that he was "under pressure to suspend both the Chief and the Deputy Chief." In recounting this event in the course of being interviewed, Mr Power made no secret of his dislike of Mr Walker, nor what he saw as his bullying tendencies.

The recollections which both the Chief Minister and the Chief Executive have of these meetings are quite different, both with regard to the content of the meetings and how they were carried out. Neither accepts that there was any improper conduct on their part. I am not in a position, having heard the competing accounts, to decide which version of events is accurate, or even which versions are more accurate than others. I mention these matters simply to draw attention to the existence of differences between Mr Power and two senior colleagues within the political and administrative spheres public sector of the States of Jersey (Chief Minister Walker and Chief Executive Ogley).

I'm not sure why the "content of the meetings" is debatable; I'd assume that minutes were taken, and if they had been signed off by all those present, this would surely provide some objective record. Of course, minutes are a précis, and in any compaction of data, there is bound to be a selection process on what is of importance, and how to present a disagreement.

But if there was any addition reason to take just suspension as one of several options, it is likely that personal reasons, even if unconscious to the participants, would have played a part. If they were aware of their dislike, they should have been self-critical of any actions, especially ones they wanted to take, but according to Brian Napier, these fed into the events which followed:

Key decision makers and advisers were, long before the events of 12 November, inclined to be critical of Mr Power. Perhaps because of that, officials were too ready to accept relatively weak evidence as sufficient to warrant the Minister taking the drastic step of imposing suspension on 12 November 2008.

It is not at all surprising that there were serious concerns on the part of Mr Ogley (and others) about Mr Power's role in the management and oversight of the historic abuse enquiry in the light of information that was becoming available in the autumn of 2008. In my view, however, these legitimate and reasonable concerns about Mr Power's performance led to the making of decisions which were, from a procedural point of view, unfair to Mr Power.

What is also interesting is the curious omission from Napier. You might expect he would have interviewed Wendy Kinnard, or stated if he was unable to do so.

In the course of my investigation, I held recorded meetings with Mr Andrew Lewis, Mr Bill Ogley, Mr Ian Crich, Mr David Warcup, Mr Graham Power and Mr Frank Walker.

As one of the people present at the meeting mentioned above who would have certainly been able to state whether she felt herself subject to "verbal bullying", it is strange that Wendy Kinnard was not interviewed. The rapidity with which Mr Power became exposed after her resignation makes me wonder if she was "out of the loop", or getting the same behind the scenes briefings from David Warcup that Andrew Lewis was. Now there could be quite legitimate and personal reasons why she declined to be interviewed, but it seems strange that she doesn't even seem to have been asked. The balance between legitimate concerns and a personal dislike of Mr Power is surely germane to any inquiry, and she could have thrown valuable light on that.

And finally, just as a codicil, Brian Napier seems unaware of the landmark decision concerning suspensions. He writes:

While suspension is of itself a "neutral" act, in terms of not imputing guilt of any putative offence, it was appreciated by all concerned that, in the context of Mr Power and the office he held, it was a step of considerable significance.

In fact, Mezey v South West London and St George's Mental Health NHS Trust, in 2007 (before Graham Power's suspension) dismissed the Trust's argument that suspension was "a neutral act preserving the employment relationship". Their decision was as follows:

"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."

Pretty well all the sites on employment law and suspensions mention this; is it too much to ask that Jersey's personnel officers read up on it as part of their Continuing Professional Education?