Terms of Reference
Russell Labey has put in a proposition for 10 July:
“to request the Minister for the Environment to redraft the Terms of Reference for the forthcoming Public Inquiry into the new application for the Jersey Future Hospital, as outlined in his letter of 17th May 2018 to the Independent Inspector, to provide the Inquiry with the freedom and latitude to consider alternative sites, if deemed necessary and appropriate.”
His argument is that the decision to consider whether the States should look elsewhere should not, as with the previous Inspector’s Terms of Reference, be constrained to rule out the possibility of alternative sites:
"An Inspector of the experience and qualification of the appointee here will be fully cognisant of his role, and that it does not extend to choosing the site for Jersey’s new Hospital. He may wish to rule out representations or testimony that stray into the territory of site selection, alternative locations and the “brief”, but that should be a decision for him to make without prescription from the Minister or anyone else.”
And the rationale for that is that where a plan breaches existing policies within the Island Plan, he should ensure that other sites might result in a lesser impact or be better suited for development:
“In a scenario where considering whether permission should be granted for this application on this particular site, the Inspector finds that the application would require exceptions to be made to policies of the Island Plan because of non-compliance he should – before reaching a recommendation that this application be approved – consider the available evidence from the applicant and objectors and form an opinion on whether suitable alternative sites for the development have been considered sufficiently to justify such exception to the Island Plan policies in the public interest.”
Deputy Labey makes it very clear that he does not require the Inspector to re-examine the entire site selection process or to look at alternative sites, but it leaves it open to the Inspector to judge whether they should look at the alternatives rather than having that ruled out by the terms of Reference.
Terms of reference are often a key matter when it comes to any kind of inquiry, and quite often the government tries to get away with as narrow terms as they can do so. Nowhere is this seen as plainly as in the chronology of the events leading up to the Independent Inquiry into Historical Child Abuse.
One of the first reviews on deficiencies in public child care was the Williamson report but his brief was very clearly laid out so that it did not materially include Operation Rectangle and the historical allegations of abuse concerned in Operation Rectangle. The argument was that his report was intended to look forwards, rather than backwards, and consider only current practice.
The Napier report into the handling of suspension of the Police Chief Graham Power was not only heavily restricted, and Brian Napier’s remit did not include access to “in camera” debates on the matter, but also managed to lose part (d) to “would review all information relating to the original suspension procedure, including relevant sections of the published Affidavit from the suspended Chief Officer of Police.”
According to Chief Minister Terry Le Sueur, this was a mistake and part of the document was lost in when the details were forwarded to the Greffe for printing and the subsequent publication. It appears this may not have affected the outcome of the review anyway, but it certainly was typical of the sloppy processes which took place under the Chief Minister’s oversight, and the publication of the report itself was delayed for three weeks until a threat of a private member’s proposition got it into the public domain.
The Care Inquiry itself was a massive undertaking, and having conferred with the parties involved, Veritas drew up terms of reference. For some reason, this did not seem acceptable to the Council of Ministers, and so Andrew Williamson was called upon to provide an alternative Terms of Reference, perhaps one that did not, as the final version following Veritas did, consider everything up to and including Operation Rectangle.:
“Review the actions of the agencies of the government, the justice system and politicians during the period under review, in particular when concerns came to light about child abuse and establish what, if any, lessons are to be learned.”
Instead, as Andrew Williamson was brought on board, the government statement said: “It has been important to develop clear terms of reference that will be effective and provide help with closure, but not subjecting witnesses to the potential of undue cross examination in a Committee of Inquiry which would result in all parties having to receive legal representation. This has required careful consideration of the original terms of reference before being submitted to the States for approval.”
The Verita report said the terms of reference should be wide:
“The period to be covered is primarily 1960 to 2005. However, we drafted the terms of reference with scope to consider the post-war period because abuse victims from that period are still alive. We suggest that the inquiry considers the organisation and supervision of services, how complaints of abuse were dealt with and what the government could learn from their handling of the matter following the events in 2008.”
Williamson’s review said:
“To convene an independent Committee of Inquiry to look at the decisions taken by both political and senior management of the Children’s Services in Jersey during the period 1960 to 1994 with particular reference to the standards of care provided to children in the care system.”
And while it did cover Operational Rectangle, it was very narrow it its remit:
“To commission a review of the decisions taken whether or not to prosecute individuals identified during the police enquiry concerning the various allegations that culminated in the enquiry into Haut la Garenne. This can be undertaken by a lawyer, not resident in Jersey, and should be a review of the legal evidence available at that time.”
The Williamson brief was scuppered however by the leak onto a blog of the complete terms of Verita calling into question why any items would be dropped. It is not clear behind the scenes who would have been pressing for the Verita terms to be dropped, in particular those relating to the handling of matters by the government following the events in 2008, but a reading of the inquiry final report and the names of those criticised severely probably gives a clue.
This brief summary shows by way of examples how terms and conditions can be used to derail proper investigation or evaluations by removing wider questions from the realm of possibility. Will this happen with the hospital planning inspector's remit? We will have to wait and see.
Russell Labey has put in a proposition for 10 July:
“to request the Minister for the Environment to redraft the Terms of Reference for the forthcoming Public Inquiry into the new application for the Jersey Future Hospital, as outlined in his letter of 17th May 2018 to the Independent Inspector, to provide the Inquiry with the freedom and latitude to consider alternative sites, if deemed necessary and appropriate.”
His argument is that the decision to consider whether the States should look elsewhere should not, as with the previous Inspector’s Terms of Reference, be constrained to rule out the possibility of alternative sites:
"An Inspector of the experience and qualification of the appointee here will be fully cognisant of his role, and that it does not extend to choosing the site for Jersey’s new Hospital. He may wish to rule out representations or testimony that stray into the territory of site selection, alternative locations and the “brief”, but that should be a decision for him to make without prescription from the Minister or anyone else.”
And the rationale for that is that where a plan breaches existing policies within the Island Plan, he should ensure that other sites might result in a lesser impact or be better suited for development:
“In a scenario where considering whether permission should be granted for this application on this particular site, the Inspector finds that the application would require exceptions to be made to policies of the Island Plan because of non-compliance he should – before reaching a recommendation that this application be approved – consider the available evidence from the applicant and objectors and form an opinion on whether suitable alternative sites for the development have been considered sufficiently to justify such exception to the Island Plan policies in the public interest.”
Deputy Labey makes it very clear that he does not require the Inspector to re-examine the entire site selection process or to look at alternative sites, but it leaves it open to the Inspector to judge whether they should look at the alternatives rather than having that ruled out by the terms of Reference.
Terms of reference are often a key matter when it comes to any kind of inquiry, and quite often the government tries to get away with as narrow terms as they can do so. Nowhere is this seen as plainly as in the chronology of the events leading up to the Independent Inquiry into Historical Child Abuse.
One of the first reviews on deficiencies in public child care was the Williamson report but his brief was very clearly laid out so that it did not materially include Operation Rectangle and the historical allegations of abuse concerned in Operation Rectangle. The argument was that his report was intended to look forwards, rather than backwards, and consider only current practice.
The Napier report into the handling of suspension of the Police Chief Graham Power was not only heavily restricted, and Brian Napier’s remit did not include access to “in camera” debates on the matter, but also managed to lose part (d) to “would review all information relating to the original suspension procedure, including relevant sections of the published Affidavit from the suspended Chief Officer of Police.”
According to Chief Minister Terry Le Sueur, this was a mistake and part of the document was lost in when the details were forwarded to the Greffe for printing and the subsequent publication. It appears this may not have affected the outcome of the review anyway, but it certainly was typical of the sloppy processes which took place under the Chief Minister’s oversight, and the publication of the report itself was delayed for three weeks until a threat of a private member’s proposition got it into the public domain.
The Care Inquiry itself was a massive undertaking, and having conferred with the parties involved, Veritas drew up terms of reference. For some reason, this did not seem acceptable to the Council of Ministers, and so Andrew Williamson was called upon to provide an alternative Terms of Reference, perhaps one that did not, as the final version following Veritas did, consider everything up to and including Operation Rectangle.:
“Review the actions of the agencies of the government, the justice system and politicians during the period under review, in particular when concerns came to light about child abuse and establish what, if any, lessons are to be learned.”
Instead, as Andrew Williamson was brought on board, the government statement said: “It has been important to develop clear terms of reference that will be effective and provide help with closure, but not subjecting witnesses to the potential of undue cross examination in a Committee of Inquiry which would result in all parties having to receive legal representation. This has required careful consideration of the original terms of reference before being submitted to the States for approval.”
The Verita report said the terms of reference should be wide:
“The period to be covered is primarily 1960 to 2005. However, we drafted the terms of reference with scope to consider the post-war period because abuse victims from that period are still alive. We suggest that the inquiry considers the organisation and supervision of services, how complaints of abuse were dealt with and what the government could learn from their handling of the matter following the events in 2008.”
Williamson’s review said:
“To convene an independent Committee of Inquiry to look at the decisions taken by both political and senior management of the Children’s Services in Jersey during the period 1960 to 1994 with particular reference to the standards of care provided to children in the care system.”
And while it did cover Operational Rectangle, it was very narrow it its remit:
“To commission a review of the decisions taken whether or not to prosecute individuals identified during the police enquiry concerning the various allegations that culminated in the enquiry into Haut la Garenne. This can be undertaken by a lawyer, not resident in Jersey, and should be a review of the legal evidence available at that time.”
The Williamson brief was scuppered however by the leak onto a blog of the complete terms of Verita calling into question why any items would be dropped. It is not clear behind the scenes who would have been pressing for the Verita terms to be dropped, in particular those relating to the handling of matters by the government following the events in 2008, but a reading of the inquiry final report and the names of those criticised severely probably gives a clue.
This brief summary shows by way of examples how terms and conditions can be used to derail proper investigation or evaluations by removing wider questions from the realm of possibility. Will this happen with the hospital planning inspector's remit? We will have to wait and see.
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