Wednesday, 6 January 2016

The Secret State

How many “in camera” debates the States have held each year since 2000, numbers broken down by year? These are secret debates from which public and media are excluded.

These are the figures provided by a Freedom of Information Request.

2000 - 4
2001 - 3
2002 -  3
2003 -  2
2004 -  1
2005 -  5
2006 -  6
2007 -  5
2008 -  4
2009 -  4
2010 -  9
2011 -  1
2012 -  4
2013 -  4
2014 -  2
2015 -  6

In 2003, the in camera debate on Fief de la Fosse: proposed agreements with Les Pas Holdings Limited was held over a number of days and has been counted as one in camera debate.

In 2005, there were two propositions adopted to hold in camera debates on two separate amendments to the debate on the Island Plan. These have been counted as two separate in camera debates.

Since November 2005, the articles of legislation which permit in camera debates are articles 81 and 82 of the standing orders of the States of Jersey (States of Jersey Law 2005).

Prior to this, the applicable article of legislation was article 46 of the Standing Orders of the States of Jersey (States of Jersey Law 1966).

A full copy of the legislation can be found on the Jersey Law website.

In addition, there are various other laws which stipulate that certain debates by the States Assembly should be held in camera.

These are:
  • Department of the Judiciary and the Legislature (Jersey) Law (Article 4)
  • Gambling Commission (Jersey) Law (Articles 2 and 5)
  • Financial Services Commission (Jersey) Law (Articles 3 and 4)
  • Food Safety (Jersey) Law (Article 2)
  • Comptroller and Auditor General (Jersey) Law (Articles 3 and 7)
  • Customs and Excise (Jersey) Law (Article 4)
  • States of Jersey Law (Article 41)
  • States of Jersey Police Force Law (Article 9)
  • Public Finances (Jersey) Law (Article 29)

My Comments

In Camera Appointments: Is this necessary?

When we look at the Jersey and Guernsey Financial Services Commission, some interesting differences emerge. As Simon Howard (advocate of the Royal Court of Jersey and a partner in Bedell Cristin) notes in the Jersey Law Review:

“The functions and authority of the Commission are vested in a board of Commissioners headed by a chairman. The States controls the composition of the board through its power to appoint Commissioners to office following an in camera debate.… Debates on the fitness of potential Commissioners must take place in camera.”

But in Guernsey, matters are different, as Howard explains again:

“In Guernsey, by 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. 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.”

There are other weaknesses exposed in the Jersey model. Simon Howard explains that there is a special proviso “which states that the composition of the Commission shall be such as to secure a "proper balance" between the interests of persons carrying on the business of financial services, the users of such services and the interests of the public at large.”

And he notes that: “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.”

Guernsey manages quite well with very few in camera debates (three since the war), and it is perhaps about time that Jersey addressed that issue. Guernsey does not need decision making on appointments to be made in secret, and it has to be asked why, except for inertia, does Jersey do the same? Why  not change our legislation so that "in camera" is no longer mandatory and appointments are open - like in Guernsey.

That it has always been done this way is simply not good enough. We need better transparency.

In Camera Reports: Can Politicians be held to Account?

The requirement of some debates to be held “in camera” led to one over the suspension of Graham Power to be held “in camera”. This meant that whatever was said could not be contradicted in any way, however, because a transcript of the debate was leaked.

In it, a currently elected Deputy Andrew Lewis stated 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."


I have read an alarming report from the Metropolitan Police which led me to this decision in the first place.”

The Napier report on the suspension, which took statements from Mr Lewis, but which was published before the leaked “in camera” debate, stated that:

"As previously has been noted, neither Mr Lewis nor Mr Ogley saw the Interim Report [from the Metropolitan police]. Neither did they seek to see it.

There is a contradiction between what was said in the leaked “in camera” debate, where it could influence States members, but not be seen by the public in Hansard, and that reported by Napier.

Whatever the rights and wrongs of the suspension, it is clear that “in camera” debates can have a pernicious effect in that politicians can make statements without fear of contradiction. They cannot be held to account.

What is even worse is that the departing Greffier managed to use lawyers acting for the States to remove the leaked transcript from being submitted to the Jersey Care Inquiry, not on the ground that it was false, but purely on the grounds that it was a breach of privilege!

This is like the seal of the confessional being used to conceal truths which it is in the public interest to know – but after that seal has already been breached.

In Camera Debates: Licence to Slander?

In 2006, Ministers turned on former Senator Pierre Horsfall in a closed-doors States session last night that has been described as 'a vitriolic character assassination'. Of course, Pierre Horsfall had been privy to “in camera” debates when in the States, but now was outside.

The House took the unusual step of debating the appointment of a new chairman of the Waterfront Enterprise Board behind closed doors for an hour and a half, barring both the public and media from the Chamber.

Can it be right that someone’s reputation can be shredded among politicians without knowing what was said, or having the right to reply to any accusations?

What Happens Worldwide: Nothing of the Sort

No other parliament behaves like Jersey. The Greffier wrote to many to find any parallels, and could only find Select Committees which can meet “in camera”. The UK Parliament last met "in camera" at the start of the Second World War! Canada doesn't. Australia doesn't. The Scottish Parliament doesn't.

Select Committees of other 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. It is a false argument that they are analogous to the States of Jersey.

While they are 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.

In 2006, Deputy Paul Le Claire lodged a proposition which would have meant that in future the Assembly will only go behind closed doors in exceptional circumstances, and not for discussions about appointments to States bodies. It failed.

We hear a lot about transparency, but it is “More honor'd in the breach than the observance”. Isn't it time for change?

Link to Officially Published Debate

1 comment:

Póló said...

The Inquiry faced a difficult problem when Trevor Pitman included the Hansard of the in camera debate in his evidence. It is not clear if this is why his statement was taken down from the Inquiry website, but that statement is now back up and contains the Hansard as reproduced on Rico Sorda's blog.

The hardcopy is not the most readable but the material is all there. While the Inquiry clearly feel the need to wait for States approval before allowing the official version to be published (in Deputy Higgins statement?) they have gone ahead and let Rico's version through in the restored Pitman statement. As it was they were making fools of themselves withholding something that was already in the public domain.