Wednesday, 11 May 2011

Registering an Interest

States members' business interests could hit web

Finding out about the business interests of States members in Jersey could soon become easier. At the moment they have to fill in a book listing any property they own, directorships and other financial interests. But, if you want to look at it you have to go to the States Greffe. Deputy Bob Hill now wants the 'book of interests' put on the web. It has been suggested before, but was rejected for 'security reasons'. Deputy Hill has called this ridiculous. He says if the public can inspect the book, surely the details can go on the internet.
Regarding the argument about security - this is a ridiculous straw man argument - as can be seen by the fact that anyone can look up David Cameron's business interests online in the UK (see below). If they have that in the UK, where there is a clear need for security, it is ridiculous to use the "security" argument in Jersey! Are we saying local politicians are more in need of keeping the register secret than the Prime Minister of England? It is about time someone grasped the nettle.
CAMERON, Rt Hon David (Witney)

The Register of Members' Interests is published soon after the beginning of a new Parliament, under the authority of the Committee on Standards and Privileges, and annually thereafter. Between publications the Register is regularly updated electronically and is available for public inspection in the Search Room of the Parliamentary Archives. Employment agreements deposited with the Registrar are available for personal inspection only. (2)
The register is not intended to be wholly comprehensive. Other interests can arise which might not be of a pecuniary nature which should also be addressed, and which may not be registrable:

Transparency is also promoted by the obligation on Members to declare in debates or proceedings of the House and dealings with other Members, Ministers or Crown servants, all interests, whether registrable or not and including indirect, past and future interests which are relevant to the business in hand. (2)

Also there is a limited obligation to declare spouse, partner or dependent children's interests:

While the obligation to register outside employment, sponsorship, property and shareholdings is absolute, in respect of other gifts and benefits the requirement is only to register those interests which in any way arise out of membership of the House. Consonant with this principle, the interests of spouses, partners and dependent children are registrable only if they arise out of their relative's position as a Member, or if they are held jointly with, or by, the Member. (2)

And lastly, the Register is checkable for any particular year compiled, so that, for example, Edward Heath, who died in 2005, still has his interests reported:
HEATH, Rt. Hon. Sir Edward (Old Bexley and Sidcup)
Jersey being a much smaller area, I think that spouses or partners should have the right to privacy. With regard to spouses/partner, I think one would have to look at the reasoning behind the declaration of wife's interests etc in the UK. As the UK is such a larger legislature over a larger geographical area, people need to know what a wife's interests are so that (for example) if contracts are offered to businesses, there is no insider knowledge being given so that bids can be tailored.
With a small community like Jersey, people probably know a fair about the spouse/partner anyway. Fiona Walker worked for BBC Radio Jersey. Geoff Southern's wife is a teachers union leader.  This has been mentioned in debates! There was a ridiculous debate recently (last year) where about half the members were declaring spouse or partner's interests, and asking whether or not they should not be sitting or excused. In this case, it is clear the interest may be declared, but if it is such a wide nature, members should still debate.

I don't really see any need to be heavy handed - really the only need for looking at making the situation stricter would be if there was a known abuse which could have been prevented by knowing the spouses' interest. And even then, I think it should be targeted specifically at the kind of abuse, rather than a more general declaration of interest for the spouse/partner.
It is useful to know members interests. As an example, I recall (vaguely) a debate or questions asked on new flats developments being bought up as investments (by UK people) for a rental income to locals, thus depleting the market for local buyers, and driving up prices. Now knowing that, for instance, one very senior States member had bought a flat at the West Park development (it was in his member's interests) meant that he would have had some degree of interest in permitting it. What if the flat had been in his spouse's name? But after the individual has left the States, do we really need to still know what his interests were in the past? Doesn't he now have a right to privacy in his retirement?
I can see that if the spouse/partner had an investment property holding, or perhaps a large shareholding in a company (e.g. Sandpiper, JEC, Jersey Water, Jersey Gas, a Motor company, Telecoms company, private courier service) that was not obviously visible that might cause a potential conflict of interest in a debate, but unless it is likely that the debate will hang on one vote - and that is very rare - I really can't see that even that will effect much change in the outcome.

But I do think that the current system where members interests are only in a folder, only accessible during the opening house of the Judicial Greffe, is simply unacceptable. What is currently there - under current guidelines - should be online in this day and age. We need that level of transparency. What is more, sometimes the writing is very difficult to read - you would guess from reading the scrawling and spidery text that quite a few States members must have wanted to be become Doctors at some time, so it would also help to standardise matters much more.

In the event, members themselves apply commonsense and propriety - for example, in 2003, for example, the Bailiff, Sir Philip Bailhache, withdrew from presiding over a debate because of indirect interests

So far as my own position is concerned, although my wife and I did have a small holding of shares in Le Riches Stores Limited which became shares in CI Traders, those shares have now been sold. Neither of us is a shareholder in the company. However, my father remains a shareholder, both directly and through an investment holding company, in CI Traders and I have a prospective beneficial interest in a family trust which holds some of those shares. For the reasons already given I have therefore disqualified myself from presiding over the forthcoming debates. As is well known, the Deputy Bailiff, while in private practice, was a legal adviser to Les Pas Holdings and has, for that reason, also disqualified himself. I have therefore asked the Greffier of the States to preside, in the forthcoming debate.(3)

Sir Philip also made some useful comments on the difference between the States position on pecuniary interest and that which occurs in the UK - in particular relating to the nature of the interest - 'direct' and 'immediate and personal' - and the requirement in Jersey to withdraw from any debate where that is the case, which in fact does not apply in the UK.

Standing Order 44(1) provides -
              'Where any member of the States has a direct pecuniary interest, being an interest which is immediate and personal and not merely of a general or remote character, in the subject matter of any proposition submitted to the Assembly, he shall, as soon as practicable, declare his interest and withdraw from the Chamber during the consideration of and voting on the proposition.'
       Before applying this to the present situation, it may be helpful to compare Standing Order 44 with the comparable Rule adopted by the House of Commons at Westminster to regulate its procedure with regard to the declaration of an interest. The House of Commons adopted, on 22nd May 1974, the following resolution -
              'In any debate or proceeding of the House or its Committees or transactions or communications which a Member may have with other Members or with Ministers or servants of the Crown, he shall disclose any relevant pecuniary interest or benefit of whatever nature, whether direct or indirect, that he may have had, may have or may be expecting to have.'
       Whereas the rule in the House of Commons requires the declaration of 'any relevant pecuniary interest or benefit of whatever nature, whether direct or indirect', Standing Order 44 is much narrower in its scope, requiring the pecuniary interest to be both 'direct' and 'immediate and personal and not merely of a general or remote character'. It is to be noted, however, that whereas Standing Order 44 requires a member to withdraw once a declaration has been made, a declaration of interest in a matter under debate in the House of Commons does not necessarily debar the member from taking part in subsequent debate.
       It is worth making this comparison because it helps to clarify the different approach of Standing Order 44 which is to be rigorous about the requirement for a member to withdraw from a matter under debate but only after it is established that the nature of that member's interest is both 'direct' and 'immediate and personal'.

The other debate which is pertinent is one which came up in March this year on Deputy Southern's proposition to make election day a public holiday, and which occasioned the position where a huge number of States members had a financial interest in the outcome; it is instructive, because it effectively makes an exception (by way of what a lawyer would probably call a "clarification"!) to the general rule of withdrawing, that if a debate affected a large class of people in society where the pecuniary interest is shared by States members, then they need not withdraw.

In other words, widespread interests, like being a pensioner, or an employer, or having a spouse or children who are employed, are shared with the general population, and are not the same kind of interest as, in the example given above, being a shareholder in Le Pas Holdings. The States, after all, are there as representatives of society, and it would be strange indeed if they had no financial interests in common.

The Greffier of the States:

The States are asked to decide whether they are of opinion: (a) to agree that Wednesday 19th October should be designated as an extra public and bank holiday for 2011; and (b) to request the Chief Minister to bring forward for approval the necessary Act under the Public Holidays and Bank Holidays (Jersey) Law 1951 to give effect to the decision.

Senator B.E. Shenton:

Before we start, can I just declare a direct financial interest in this proposition; I employ staff that will have to work on that date because the stock market is open and it will affect me financially if this goes through.  I therefore withdraw from the debate.

Senator J.L. Perchard:

Many of us will be in a similar position, and while I will declare an interest I do not think I should be withdrawing from the debate.

The Deputy Bailiff:

The Standing Order in question, I see Senator Shenton has gone already, but the Standing Order in question is Standing Order 106, which says this: "A Member of the States who has or whose spouse or cohabitee has an interest in the subject matter of the proposition must, if it is a direct financial interest, declare the interest and withdraw from the Chamber for the duration of the debate and any vote on the proposition.  If it is not a direct financial interest, but a financial interest, which is general, indirect, or shared with a large class of persons, declare the interest."  It seems to me to be appropriate that, if the consequence of adopting this proposition is that there will be increased wages paid by a Member as an employer that is a matter that is a financial interest, which ought to be declared, but it is clearly shared with a large class of persons; that is to say all employers, and therefore I do not take the view that it is essential for a Member to withdraw under Standing Order 106(1)(a).


Deputy M. Tadier:

Can I ask for clarification, does the "large class" refer to a large proportion of States Members or just a large class within society?

The Deputy Bailiff:

It refers to a large class within society, it is shared with a large class of persons, so it would be in society generally.

Senator T.A. Le Sueur:

I am probably being pedantic, but the States is a large employer of public sector workers who have a direct financial interest, so I am not sure whether I ought to declare that as an interest, maybe we should all withdraw.

The Deputy Bailiff:

Chief Minister, there is no question of Members having to withdraw because they are employers and I note that the States Employment Board employs numbers of people and that interest has been declared.

Connétable K.P. Vibert of St. Ouen:

It may well be that on behalf of the Comité des Connétables that the Connétables should declare a similar interest.

The Deputy Bailiff:

Unless we are going to have every Member standing up and saying that probably in one form or another there is an interest, I think we ought to get on with the proposition.  Deputy Southern.


1 comment:

Tom Gruchy said...

Are the Crown Officers and the Dean required to put their financial interests in the book?

In fact, the original law was intended to make the information available on-line and to be copied in the Greffe bookshop.
But it was that dear old fashioned liberal Deputy Le Herissier who brought the amendment to delete this requirement in favour of the current absurd situation. No doubt he will explain all in a loud clear voice during the debate of Bob's Proposition.