Government Behind Closed Doors

I remember watching a superb TV series which starred Robert Vaughn and Jason Robards which was called "Washington Behind Closed Doors". It centred on all the backroom deals, and sometimes corrupt practices that were going on behind the scenes at Capitol Hill. Being very clearly based on the Nixon administration, there were a lot of dirty tricks, and the TV show gave an inside view of the participants.

There is, however, another kind of "behind close doors" form of government that is very popular in Jersey. It is the secret or "in camera" debate. The rationale behind it is as follows:

One of the fundamental principles of parliamentary privilege is that members are able to speak freely in the Assembly without inhibition. During an in camera debate members may wish to mention very serious confidential matters, and need the assurance when the Assembly is sitting in camera that their remarks will not subsequently be reported outside. If members believe that anything that they say in camera could subsequently be leaked by another member, they may feel constrained in their ability to speak freely and this is therefore the fundamental breach of privilege caused by the actions earlier this year. Members need a guarantee that their remarks made in camera will remain confidential and if it became common practice for the content of in camera debate to be disclosed by members, members could be prevented from exercising their privileges.

And yet while this seems to be necessary in Jersey, it is somehow not needed in other jurisdictions, such as Westminster, often referred to as "the mother of Parliaments". The PPC report into the breach of privacy in revealing the "in camera" proceedings noted most other jurisdictions simply didn't see the need for this:

It can be noted that other parliaments virtually never sit in camera and had therefore to seek parallels with other matters, the most common being the premature leak of committee reports or the disclosure of confidential committee proceedings.

Australia noted that "the Australian Senate has never met in private session", and the clerk replied to the Greffier that:

The basic premise of all our meetings is that the Parliament conducts its meetings, with the rarest exceptions, in public. There have been secret sessions, during war times, when Hansard reporters were excluded. However, the clerks and Members remained in the secret sessions.

Canada noted that : "Thank you for your email of February 13 in relation to a possible breach of privilege in the States. As you note, in modern practice, the Senate no longer meets in camera, although in theory it remains possible."

The United Kingdom, except in War Time, has never met "in camera".

Now select committees of these Parliaments have met "in camera", but that is an entirely different matter - it's like Scrutiny having private meetings, or Privileges and Procedures having private sessions. While it is perhaps the closest to the States meeting "in camera", there is one very clear difference - the select committee does not have a vote that is binding on Parliament; in other words, they may report, they may reprimand, but they cannot act by voting in such a way that their decisions are binding in any way on the government itself. That is a fundamental difference.

The States of Jersey meeting "in camera" can vote on matters and give them a binding force; a select committee cannot - it can make recommendations, which may be voted on, but in a public forum, with public debate. This is only right and proper. The ability to hide away proceedings becomes a continuous temptation, a packet of aspirins always at one's elbow to avoid the headache of being transparent, and perhaps upsetting anyone.

And of course, because no one can report on what occurs in a closed session, anything can be stated with impunity, whether true or false - no one can pick up on the false statement, because to do so would be to breach the privilege. It's rather like the confessional, where the priest has to keep something hidden, even if the confession involves a crime, because the seal of the confessional is considered inviolate.

In fact, in April this year, the Irish Independent reported that "Catholic priests will defy a new law that requires them to report sexual abuse disclosed to them in the confession box -- despite the threat of 10-year jail sentence". As Father William Saunders says: "the standard of secrecy protecting a confession outweighs any form of professional confidentiality or secrecy.". That is so that the individual can unburden themselves of their sins; if they believe that anything that they say in the confessional could subsequently be revealed by a priest, they may feel constrained in their ability to speak freely

So we are, after all, in the sleazy area of "Washington Behind Closed Doors", because the lack of transparency doesn't protect communication as privileged, it also protects people who may be "economical with the truth". Or as Sir Humphrey notes in "Yes Minister" about official secrets -  "The Official Secrets Act is not to protect secrets, it is to protect officials."

That brings us to the question whether, in an "in camera" session of the States, Deputy Lewis was being "economical with the truth". Certainly what he appears to have said contradicts what he later told Brian Napier. It relates to the "Interim Met. Report" which was in the possession of David Warcup:

The Napier Report states that:

As previously has been noted, neither Mr [Andrew] Lewis nor Mr Ogley saw the Interim Report. Neither did they seek to see it. The reason given was the nature of the information that was contained therein. It was, said Mr Ogley, a police document and it was inappropriate that he (or anyone else) should have access to it.

But the "in camera" minutes, as leaked, have him saying say this:

"As far as the accusation you raise about the Metropolitan Police, when I saw the preliminary report I was astounded. So much so that my actions, I believe, are fully justified. If the preliminary report is that damning, Lord knows what the main report will reveal. So my successor will have an interesting time. The report that I was shown gave me no doubt at all."

" Members will be aware that an investigation has been carried out by the Metropolitan Police and I was presented with a preliminary report on the basis of that investigation. So as far as I'm concerned that is the preliminary investigation. I acted on the information that was contained in that and in order to pursue a disciplinary investigation it was necessary to suspend the police officer."

Anyone can see that there is a clear contradiction between the import of those statements, which suggest he actually saw the report, rather than just being told about it. This is certainly the reason for Deputy Higgin's proposition, as it is here that Deputy Lewis gave what Higgins believes is a misleading statement relating to Power's suspension.

Back in 2009, when there was also a leak from PPC, and it appeared in the Jersey Evening Post, the Privileges and Procedures Committee noted that while members had clearly broken privilege, there was nothing to prevent a third party from publishing that information:

PPC has considered whether any action could be taken against the Jersey Evening Post for publishing the material it did. The Committee has concluded that realistically there is no action that can be taken by the Assembly against the media and would stress that the real "culprits" in this matter are the unnamed members who spoke to that newspaper.

While PPC set out its arguments in favour of "in camera" debates, it did not consider the arguments against "in camera"; it simply saw to justify existing practice, not debate it.

In "I'm Sorry, this Meeting is Closed to the Public", a paper produced by Tom Mitchinson, Assistant Commissioner, Office of the Information and Privacy Commissioner of Ontario, he notes that:

The principle of open government is a linchpin of democracy because it allows citizens to scrutinize the activities of elected officials and public servants to ensure that they are acting in the public interest. One pillar that supports open government is freedom of information legislation, which gives people the right to access government-held information. A second pillar is open meetings legislation, which ensures that public bodies conduct their meetings in public, not in secret.

Comprehensive open meetings laws are essential in a mature democracy. They facilitate citizen participation in the policy and decision-making process of government and enhance the ability of the public to evaluate the performance of the individuals whom it has elected to represent its interests. Such laws may also serve to build public confidence in government by assuring the public that elected and appointed officials are serious about keeping corruption and favouritism out of the decision-making process.

It also notes - significantly - that:

Although many U.S. states have had open meetings legislation in place for decades, such laws were significantly strengthened and enhanced after the Watergate scandal of the 1970s.

We are back with "Washington behind Closed Doors".

The alternative may allow free debate, but it may also allow injustice to flourish, as when Pierre Horsfall was ousted after a debate in 2006, held "in camera" because of concerns about potential embarrassment to the individuals concerned. There may have been justification for this, but because it was conducted in secret, no one knows whether the States decision was right, and Pierre Horsfall had no way of telling if what had been said about him was accurate or not.

"In Camera" debates, like the Confessional, may seem like a good idea, and have can supportive arguments. Yet the ethics of such debates involved are really not discussed at length; it is taken as pragmatic to so do. But I wonder if, at the end of the day, to quote Kady O'Malley, we end up with "Yes, Minister as re-imagined by the ghost of Franz Kafka." 

Links
http://www.ipc.on.ca/images/Resources/openneed_1.pdf