Wednesday, 4 September 2013

The Jersey Police Authority: Room for improvement?

The note on the States website says: "The Minister for Home Affairs has appointed Advocate Jonathan White as the first chair of the Jersey Police Authority (JPA), the independent body responsible for ensuring the States of Jersey Police is an efficient and effective police force."
Personally I think it is a shame that the Chair of the Jersey Police Authority should not be Guernsey; easy commuting distance, and a degree of independence. One of the matters which comes up often is the difficulty in a small Island of finding people who do not have contacts which are potentially sources of bias.
It is much harder to avoid that kind of situation, and just as quite a few judges in the Court of Appeal have been from outside the Island, it would be good to ensure some independence. Likewise, it has become possible for Jurats from Guernsey to sit in the Jersey courts. Of course, there are those who will point to all kinds of connections between any lawyers, but  the six degrees of separation theorem shows that many connections can be drawn between people whether lawyers or not.
I don't myself hold to conspiracy theories which tar all lawyers from the same brush, not do I believe that Advocate Jonathan White cannot be independent, but it may prove more difficult for him to avoid potential bias, whether conscious or unconscious, because he is local, and knows other members of the local judiciary, probably including the Home Affairs Minister.
There is no mention in the objectives of one of the key reasons why it was needed - to provide a "buffer" between politics and police. The Graham Power affair showed how a single change of Home Affairs Minister could mean a complete change of policy, when Wendy Kinnard stepped down, and Deputy Andrew Lewis took over and made a unilateral decision to suspend Graham Power as Chief of Police (although I've always harboured suspicions that he may have been nudged to do so).
It is notable that the objectives of a Police Authority in the UK are very similar
1 Responsible for maintaining an effective and efficient force
2 Determines local policing priorities. Produces a three-year strategy consistent with National Policing Plan
3 Determines arrangements for public consultation
4 Established as precepting body responsible for budgeting and resource allocation
5 Responsible for appointment and dismissal of the chief constable (subject to ratification by the Secretary of State). Can require suspension or early dismissal on public interest grounds
However, there seems to be nothing specific in the Jersey Police Authority (under the States of Jersey Police Force Law 2012) relating to item (5), which is one of the principle reasons why one would be a good idea - to prevent unilateral decisions by the Minister who would have to liaise with the authority before making such decisions.
In fact, it is unclear on reading the law whether there is any kind of provision of this sort. As it stands, it appears that the Minister could still - in principle - decide to suspend a CPO without consulting or needing ratification by the Jersey Police Authority.
And yet this was one of the reasons set out for a police authority:
"The Police Authority will be able to act as a 'buffer' between the Minister for Home Affairs and the States of Jersey Police; it will be in a position to receive information, delve into detail and make decisions without accusations of interference, whilst allowing the Minister to retain a clear political role."
What has been observed as a matter of fact is this: the change to Ministerial government means that a change of Minister can potentially destabilise the States of Jersey Police, as the new incumbent may have a very different agenda from the previous one; this is certainly the case with Graham Power, and one of the reasons why he wanted a Jersey Police Authority in place. But it is not wholly clear how the "buffer" arrangement works with regard to suspensions; the law is vague on this.
It is also important that the JPA is sufficiently independent politically to prevent that kind of occurrence as occurred with the change of Home Affairs Minister (Kinnard to Lewis), and hence ensure stability regardless of Home Affairs Minister.
I'm not wholly sure that will be the case, although it should be remembered that there will be other Committee members (including 2 from the States), so it will function more as an old-style Committee than a one-man band anyway - that's a good check and balance, provided the membership is diverse enough.
"matters arising are to be decided by a majority of the members voting but if there is an equality of votes the member presiding has a casting vote"
I was talking to a former States member earlier this week, and she said that one of the strengths of the Committee system was that it provided more consensus, and less likelihood of rogue decision making. While it is possible that a Committee Chair can act unilaterally (as happened on at least one occasion during Juliette Gallichan's tenure at PPC), it is less likely to happen, and they are more likely to be pulled into line to justify their position by their colleagues. Ministerial government has lost this kind of sounding board, and while Scrutiny provides a measure of that, it is as outside the Government, whereas the Committee system soundings were internal.
"There will be a Chairperson, who may not be an elected member of the States, who will be appointed by the Minister for Home Affairs; up to 4 members, who are not elected members of the States, who have been appointed by the Minister and the Chairperson and up to 2 members, who are elected members of the States, appointed by the States by secret ballot.  "
I think it strange that having decided that Chief Ministers and Ministers should be elected by open ballots, this one is a secret ballot! It is I think important that there should be transparency, so we can see who was favoured by whom. The days of backroom deals, and horse-trading behind the scenes, should be gone.
Excluded are "the Minister for Home Affairs and the Assistant Minister for Home Affairs; Connétables; States employees and people who are police officers or honorary police officers, or have been so during the previous 5 years".
None of the following may be appointed as a member of the Police Authority -
(a) a police officer;
(b) a person who is a member of the Honorary Police;
(c) an office holder of a Crown appointment;
(d) the Minister or his or her Assistant Minister;
(e) a Connétable;
(f) a States' employee;
(g) a person who is bankrupt, whether under the law of Jersey or under the law of a country or territory outside Jersey;
(h) a person who has been a police officer at any time during the previous 5 years; or
(i) a person who has been a member of the Honorary Police at any time during the previous 5 years
This is clearly to avoid potential conflicts of interest. But in this respect, it seems strange that past judges, like Sir Philip Bailhache, are not excluded - or presumably could only be excluded if his time as Crown Appointment (as Bailiff) was less than 5 years ago.
Crown officers are excluded in the law - but not former Crown officers. Surely those, including those whom (within five years) have acted on behalf of the Crown in prosecutions or as Judges, should also be excluded by the very same principles which give rise to those exclusions elsewhere?
Equally, if it can be argued that they could excuse themselves from the decision making of the JPA if there was a potential conflict of interest, the same applies to former honorary police, police offices etc. So I would venture to suggest that the list of exclusions is too narrow, and should also include former Crown appointments (including Bailiff and Attorney-General) and those who have been in the past five years involved in acting on behalf of the Crown.
While I would not go so far as to say the appointment of a local Advocate is "incestuous"  as one commentator did, I would argue that there is a clear blind spot with regard to former Crown Officers, where the restrictions which apply to former police officers or members of the honorary police do not apply. This could lead to a bias in appointments, and potential conflict of interests, precisely what the 5 year rule is supposed to prevent. I fail to see the logic in this inconsistency.
And on a final note, Steve Smith, writing to the JEP on this matter in March 2010, asked:
"If it is still felt we need a police authority, then we should certainly seek to understand whether Guernsey and the Isle of Man have plans to set up police authorities and consider whether a combined approach would save costs and perhaps also benefit us by introducing a broader range of policy ideas."
It is perhaps worth crystal gazing and asking whether a joint Authority with Guernsey would not only allow better use of financial resources, but also provide just that extra touch of independence from conflicts of interest and localised bias. This certainly seems to be the way other States bodies are moving, and I would certainly think such a move would strengthen the role of the Police Authority, and also prevent it from being too insular in outlook.

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