Raking Over Napier's Bones

Mr Lewis has told the BBC what he said during a secret session in the States and to a subsequent inquiry into the suspension of Graham Power were the same. (BBC Report)

The leaking of the secret States Session in camera (on Rico Sorda'a blog) shows an apparent contradiction between what Brian Napier's report has Deputy Andrew Lewis telling him, and what comes out in the debate.  The particular section in Napier has that:

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.

The leaked transcript, however, suggests a very different story. Deputy Lewis noted that:

The outcome was a report that was presented to me that gave me absolutely no choice other than to suspend the Chief Officer of Police... 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 Bailiff:

Minister, do not go down this road please.

Senator S Syvret: Will the report be published when it is completed

The Deputy of St John: No, it will not because the report of the Metropolitan Police contains Crown evidence that will be used in the prosecutions that are currently underway and potential prosecutions that may come from this investigation...I am purely acting on information contained in a report that was about an investigation into an operation which is code-named Rectangle and that is what the report was about and that is where my concerns were. No other concerns have I currently got, other than those, of a serious nature.

Even if he hadn't seen the report, and was going by a précis of the substance, any unbiased listener to that debate would certainly have assumed that he had. There's no mention of a letter from Mr Warcup, just the report.

It seems a pretty clear contradiction, but the matter concerning the States, and which has been referred to Privileges and Procedures, is not whether or not Mr Lewis mislead the States in a secret session. Instead, they are concerned that the nature of the leak, that confidential information has been disclosed bound by privilege.

But what in effect has taken place could also be described as an act of "whistle blowing"  by an individual, especially as it disclosed a version of events that seems almost completely at odds with the officially published version in Napier. It raises the question - what procedures are there in place to ensure that misleading information, with no possibility of correction, is given to the States under privilege in an "in camera debate", and if such information should appear misleading, what procedures are there to correct the record?

An article examining "in camera" with respect to organisations notes that:

There has been very little critical assessment of the merits of in camera sessions. Indeed, some sources regard the idea as a "standard" board practice. Some go so far as to recommend that boards routinely put in camera sessions on their meeting agendas, if not every meeting then maybe four times a year, even if they do not need them, so that fewer suspicions will be raised than if they were suddenly added.

In camera sessions challenge boards to assess whether the motivation for a closed or private deliberation is tied to the need for confidentiality and/or secrecy. While confidentiality is important to good board governance, secrecy can - and will - undermine it. (1)

The article goes on to look at the differences between confidentiality and secrecy in terms of outcomes. It cites a report by the Certified General Accountants Association of Ontario which notes the following:

Confidentiality:

·   Prevents undue harm to the organization and its assets, including volunteers, board members and staff.
·   Is reconcilable with transparency; in effect, stakeholders are allowed to know enough.
·   Is reconcilable with accountability, wherein stakeholders can question the processes and the outcomes.
·   Requires, but does not strain, trust.

Secrecy:

·   Attempts to protect someone or something from scrutiny.
·   Cannot be reconciled with transparency.
·   Attempts to prevent accountability.
·   Demands, and then misuses, trust.

The report concludes that "where the board's discussion might involve accusations about inappropriate behaviour, poor judgment or performance, the secrecy tends to protect the "accuser" not the "accused," that is, secrecy protects the evidence offered from close scrutiny by all who have direct knowledge to bring to bear on the situation."

They add that "The discussion of human resource issues in general, and the evaluation of the CEO or executive director in particular, commonly trigger in camera discussions. Much more of this work should take place out in the open." This of course, is exactly where in camera sessions are triggered by the States of Jersey.

Simon Howard, writing in The Jersey Law review, in 2003, noted with regard to the Financial Services Commission that "debates on the fitness of potential Commissioners must take place in camera" in Jersey, but in Guernsey, by way of contrast, "  the members of the Guernsey Financial Services Commission ("GFSC") are appointed and can be removed by the States of Guernsey and there is no requirement for these States' decisions to be debated in camera.".

There is also a reason why transparency would be a good thing: "as States debates on the appointment of Commissioners are held in camera the public at large do not know which Commissioner represents which interest grouping or on what basis the States have arrived at the conclusion that the membership of the Commission achieves the proper balance which the statute requires."

He comments that: "The  consistency and openness of the Guernsey model seems preferable and there do not appear to be any material differences between Jersey and Guernsey to justify the need for the different approach in Jersey on this issue."

Now it can be argued that at the time of the debate on Graham Power's suspension that material would be mentioned which could prejudice trials to take place against individuals regarding child abuse, and also Graham Power's own disciplinary proceedings (which of course never transpired). But the reasons for that no longer apply, so there is no longer good reason to release the information apart from a statement of "privilege".

So perhaps "privilege" should be re-examined and not just taken for granted, and when the matter of a debate no longer requires secrecy, the onus should perhaps be on those who would deny publication. Certainly to use rules of procedure for "in camera" as a matter of course without subjecting it to critical scrutiny should not be an option - the leaked or whistle blown transcript demonstrates that an "in camera" debate can be less about people speaking freely, and more about people being able to speak freely - without fear of contradiction. It should not be there to protect States members from what appear to be very misleading statements, as happened here.

And from a historical point of view, there can be no reason at all for concealing an "in camera" debate for longer than 30 years, which has become a widely accepted benchmark for the release of most secret documents for historians to examine.

The lack of any guidelines regarding this highlight yet another deficiency in the way the "in camera" procedures have been structured, almost as if they have been thrown together in a hurry without any proper examination of their consequences. It seems extraordinary that there are no rules appertaining to a future release of the data.

What also should be examined is whether Brian Napier should have had access to reports of the "in camera" session. After all,  an examination of his report shows that as first conceived, there was no reason why he should not have access to confidential information. He says:

"I was asked, in compiling my report, to distinguish between issues which were suitable for general publication and those which required confidentiality in the light of the disciplinary proceedings which, at the time when the inquiry began, were a possibility."

The collapse of disciplinary proceedings meant that the final report no longer required such confidentiality, but he should have had access to all the records. He notes that "All the official documents I requested to see were made available to me.", but clearly he could not have seen and made no mention of what should have formed part of this - the Hansard transcript of the "in house" debate. Was he unaware of this, as it was at the time, a recording and not a transcribed debate, hence not a document as such?

But whatever the reasons for his ignorance of the "in camera" debate, there is an important principle to be settled, which might require a change in the rules applied to "in camera" debates. No proper inquiry can take place if part of the material is protected by privilege; it is like trying to swim through strong currents with one hand tied behind one's back. Any inquiry, such as that of Brian Napier, must in principle have access to all the available evidence, including untranscribed recordings of "in camera" debates.

So perhaps the question of a leak inquiry has been useful in opening up these issues, and exposing "in camera" debates to a more critical scrutiny of their function, merit and whether or not the information therein should be time limited (as in a 30 year rule) before being open to the public gaze.

Links
(1) http://www.nonprofitquarterly.org/policysocial-context/11656-in-cameraboard-sessions-securing-confidentiality-or-cultivating-a-culture-of-secrecy.html
(2) http://www.jerseylaw.je/Publications/jerseylawreview/feb03/JLR0302_Howard.aspx