Commissioner for Standards

"Treat other Members of the States, Officers and members of the public with respect and courtesy and without malice, notwithstanding the disagreements on issues and policies which are a normal part of the political process." (Code of Conduct of Members of the States of Jersey, paragraph 5)

Coming up in November will be an interesting proposition.
http://www.statesassembly.gov.je/AssemblyPropositions/2013/P.107-2013.pdf   

This is about the establishment of a "Commissioner for Standards", which will take some of the role away from Privileges and Procedures, and vest it in an independent third party:

to agree that a new position of Commissioner for Standards should be established in Jersey to investigate alleged breaches of the Code of Conduct for elected members and make recommendations to the Privileges and Procedures Committee following any such investigation;

to agree that the Commissioner for Standards should be made responsible for keeping the operation of the Code of Conduct and associated procedures under review and for making recommendations for change as necessary;

PPC have had a very poor record of dealing with complaints. Part of the problem is that it consists of politicians who sit alongside their peers in the Chamber, and therefore find it difficult to make judgements without accusations of partiality.

"It can, in practice, be difficult for PPC to deal with the different phases of an investigation separately. For example, in making an initial decision on whether there are grounds to accept a complaint and begin an investigation, it is almost impossible for the Committee not to stray into the actual investigation and adjudication stages, and this is clearly unsatisfactory. In addition, as indicated in the Consultation document, political considerations can interfere in the Committee's deliberations as it is clearly difficult, in practice, for any group of politicians to set aside all political allegiances and views when considering a complaint about a political colleague. There are often criticisms as a result that the process is unfair and not impartial."

What happens as a result is a "rap over the knuckles", a caution, which is fine as a first step, but invariably cannot go further if the member of the States declines to conform. In short, the ability of PPC to enforce standards for a member of the States is poor; they are like a toothless tiger.

An Example of Handling a Complaint

"The Committee has recently completed an investigation into a complaint that a States Member had allegedly misused the States of Jersey e-mail system by sending to a large number of public sector employees during the normal working day an e-mail, the purpose of which was deemed to be to lobby public service workers for political support. "

The complaint was upheld, and the member in question received "an advisory letter to the Member concerned" and it noted that if such an action was repeated by any member of the States, "it may lead to the withdrawal of States' e-mail facilities for the member responsible."

Note the word "may lead to" which hardly sends out a strong message to the individual concerned!

Another Example of a Compliant

When Deputy Trevor Pitman raised the matter of a potential breach of the code by Senator Bailhache in relation to answers given regarding two businessman regarding confidentiality issues on a flight from Gatwick, the Constable of St Helier, Simon Crowcroft, then Chairman of PPC, observed that PPC should automatically investigate:

"Standing Order 157 provides that where P.P.C. has information, whether or not received from a complainant, that suggests that an elected Member may have acted in breach of the Code of Conduct it shall, without undue delay, inform the Member and investigate the act. I would simply repeat that this matter has been raised in question time on a number of occasions"

But the Constable's reply was rather dismissive of any action to be taken - "However, P.P.C. is willing to pursue the matter in due course and I am sure if it is necessary P.P.C. will" The reasons for no action being taken were twofold (1) PPC had not been contacted directly with a formal complaint (2) questions were presently being asked in the house.

And yet on a previous Committee the point was made that "The Committee acknowledges that dealings with members of the public are not always straightforward, but maintains that members have an inherent duty to treat members of the public with respect, and if this is not possible to avoid situations of confrontation". This was something that Senator Bailhache had singularly failed to do.

In the event, Senator Bailhache eventually issued a statement which contained an apology for the language used to describe the businessmen in question, and as a result, the matter was not raised with PPC.

"In answering questions on 14th May I said that the content of the email from Deputy Pitman's constituent "taken in the round [gave] a fictitious and malicious account of my reading habits on aeroplanes". Having had time to reflect, I am sorry that I used language that was stronger than was necessary or appropriate. I withdraw the phrase "fictitious and malicious" and would like to make it clear that I do not impute dishonesty or malice to Deputy Pitman's constituent or, for the avoidance of any doubt, to the Deputy himself"

It is perhaps a pity that this PPC did not reiterate the comments made back in 2010 regarding comments by Senator Perchard on "Talkback" which would have been just as appropriate to reprimand Senator Bailhache:

"The Committee noted that ill-chosen remarks by one member can have a detrimental effect on the public perception of States members generally. The Committee resolved that there had been a breach of the Code of Conduct and that the Senator's words were both unpleasant and personal. The Committee considers that this falls below the standards expected of a States member and would view any repetition most seriously."

[It should be noted that Senator Perchard actually did attend a hearing, unlike other States members who just brushed the complaints about them to one side with impunity.]

The Impracticality of the present system

The practical outworking of the present system is best noted from a reply by the then Chairman of PPC, Juliette Gallichan, to Deputy Daniel Wimberley. The question was about whether all breaches were of the same importance, to which she replied in the negative:

"A Member may breach the code in a relatively minor way, for example by making a slightly ill-judged remark to a member of the public and thereby breaching the need to treat people with respect and courtesy, whereas another Member might commit a very serious breach such as, for example, taking a decision which resulted in a significant financial gain or another material benefit for themselves, their family or friends."

She notes that the relative actions to be taken would depend on the seriousness of the breach:

"Any proposed sanction under the code would quite rightly be very different in the 2 examples where the first might simply result in an admonishment, particularly if it was the first breach on this aspect of the code by the Member concerned, whereas the second could possibly merit a debate on suspension in the Assembly"

But admonishment is pretty well all that PPC have manage to do, with invariable comments that repetitions of the breach "would be viewed most seriously". It is "Yes Minister" territory where this exchange occurs:

"Yes, this is serious."
"Very serious."
"Serious repercussions..."
"Serious repercussions..."
"...of the utmost seriousness.
"Yes, that is serious.
"In fact, I would go so far as to say that it could hardly be more serious."
"Well, I think we're all agreed, then, this is serious."

And the PPC under Simon Crowcroft noted that:

"The PPC does not necessarily feel that the Code is defective but it is not entirely effective and that is surely due to the lack of sanctions and this Assembly can rest assured that when PPC brings its proposals . they will have been informed by the usual work that our officers do in investigating what happens in other jurisdictions, in other parliaments and they can rest assured that we hope to bring forward measured proposals; proposals which will reinforce the integrity which States Members must act with and not to challenge their democratic role."

This is why the present PPC, following in the steps of the previous PPC in seeing a deficiency in the system, want more independent oversight.

An Independent Commissioner

This is a role which works very well in many other jurisdictions. PPC explain how

"A Commissioner is able to undertake the initial investigation into a complaint in an entirely objective and impartial way. He or she can interview the various parties as required, can call for documents and other evidence, and can then make a recommendation on whether or not he or she considers that the Code has been breached. In some cases, an informal resolution of a complaint is possible if the Commissioner is able to agree with the member concerned that a complaint can be resolved by an apology or through some other action."

The Commissioner would not be able to take any actions, but would make recommendations to PPC which would recommend any sanction to the States. Nonetheless, as they point out:

"it is almost unheard of in other jurisdictions for the committees to do anything other than ratify the Commissioner's recommendations. Once the Commissioner has undertaken a thorough and objective investigation it would, in practice, be very difficult for a parliamentary committee to attempt to 'second-guess' the outcome of the Commissioner's work. As a result the system provides, in practice, a robust independent system of investigation into complaints against elected members without affecting the important principle of internal self-regulation by elected members."

So how would this work in practice? The proposition outlines the procedures which would occur if any complaint was made against a States Member:

"Complaints that an elected member had breached the Code of Conduct would initially be submitted to the Commissioner, who would consider whether there were grounds to investigate the complaint. If the Commissioner decided that there were grounds to investigate, he or she would undertake the investigation and, in doing so, could interview the complainant, the member concerned and any other person the Commissioner wished to see. The Commissioner would have statutory powers to call for all relevant documentation as part of the investigation. Once the Commissioner had completed the investigation, he or she would summarise his or her conclusions in a report to PPC. This report would then be provided to the member under investigation, who would be given the opportunity to address PPC before the committee made its final adjudication."

It should be noted that this would not be a full time post, but more like that of the Chairman of the Jersey Appointments Commission, so the total annual cost would hopefully not exceed £10,000 to £15,000. I think it would be money well spent.