Is Sir Philip's submission corroborated by the facts?

A former Jersey Bailiff and Attorney General has blamed "incompetence" for a 19 year delay in changes to the law which made prosecuting alleged child abusers easier. Until 2012, such cases of children making allegations needed corroboration of some sort. Sir Philip Bailhache today told the inquiry into historical abuse in the island's care system that he made recommendations to change that law in 1993 but it wasn't brought into effect until 2012. When asked if the delay was because of a lack of political will, he said: "No. The delay can be explained by incompetence probably."

He went on to tell the inquiry that during his time as Attorney General, the corroboration rule never got in the way of a prosecution.

If there were evidence that a crime had been committed one would be straining to bring a prosecution. I don't believe the requirement was a barrier that prevented us from prosecuting more cases of child abuse. I don't remember a case where I said to myself I wanted to prosecute this case but because of the requirements of corroboration I cannot do so. I do not recall any such case.

(Channel TV News)

What was the rule regarding corroboration? It meant the judge would give the jury suitable instructions along the following lines:

The standard direction on corroboration evidence in cases of sexual offences, with appropriate adaptations to suit the circumstances of each case, would be on the lines of: "Experience has shown that people who say that sexual offences have been committed against them sometimes, and for a variety of reasons, tell lies. Such false allegations are easy to make and frequently very difficult to challenge, even by an entirely innocent person. So it is dangerous to convict on the evidence of the complainant alone unless it is corroborated, that is independently confirmed, by other evidence . . ."

So how can we explain the delay? Is Sir Philip right to attribute it to incompetence rather than a lack of political will?

Well, let us start with the submission of Ben Shenton who was Minister for Health and Social Services in 2008. He states the following:

“Wendy Kinnard should not have had any involvement with the investigation as the Home Affairs Minister. Yet, whilst the investigation was ongoing and whilst she was still elected to the Council of Ministers, she made an application to amend the law with regard to the law of corroboration in Jersey. I do not know the exact details, but I believe according to the old corroboration rule, there could not be a successful conviction unless there were at least two independent sources of evidence to support a case. [redacted material] Discussion of the application took place in the Chamber on 16 and 21 October 2008, and the extracts of those minutes appear as my Exhibit 885.”

“As a member of the Council of Ministers I questioned the application to amend the corroboration rule. [redacted material] But I believe that eventually the application was successful in any event, and the corroboration rule was abolished; a Trial Judge no longer has to warn the Jury in cases of sexual offences of the need to look for corroboration of the evidence of the complainant.”

His reason for not supporting that proposition is that he didn’t think enough background paperwork had been provided for the application, and the Council of Ministers should take legal advice first.

If we look at the document he places as part of his evidence – the Minutes for the Council of Ministers for October 2008, it states this:

“The Council, with reference to its Minute No. B2 of 4th September 2008, received a report dated 20th August 2008, which had been prepared by the Assistant Minister for Home Affairs and considered advice from H.M. Attorney General in connexion with the issue of corroboration.”

“Senator W. Kinnard, having cited a conflict of interest, withdrew from the meeting for the duration of this item and was replaced by Deputy A.D. Lewis, Assistant Minister for Home Affairs, who remained present at the meeting for the duration of this item.”

“H.M. Attorney General observed as a matter of principle that the issue of corroboration might be significant in the context of individual cases. In this context he highlighted the current requirement in Jersey Law for a judge to give a corroboration warning to juries in cases where the evidence relied upon that of an accomplice, in sexual cases, and in cases where the complainant was a child. “

“He further observed that the position in Jersey replicated neither that of England and Wales nor that of Scotland. In England and Wales the position was that the rule of practice requiring a corroboration warning in sexual and accomplice cases had been abolished by Section 32 of the Criminal Justice and Public Order Act 1994. In contrast, the Scottish position was that there was a requirement for some corroborative evidence in all cases.”

“H.M. Attorney General, having given further detailed legal advice to the Council on the matter, invited the Council to consider whether to promote changes to existing legislation in order to ensure that judges could use discretion as to whether to give a corroboration warning, depending on the case, regarding the issues raised and the content and quality of evidence.”

“The Assistant Minister for Home Affairs submitted that it would be unethical not to promote changes to existing legislation which would allow a judge to use his discretion in the context of corroboration warnings notwithstanding the potential controversy that might result from the timing of any such change and which might be fuelled by a debate in the States Assembly. He further clarified that if the Council decided to support this small amendment to the legislation he would wish to consult the Education and Home Affairs Scrutiny Panel on the matter.”

“The Council concluded that there were advantages and disadvantages to the positions adopted in Scotland and in England and Wales. Ultimately the Council concluded that it was not able to determine a preferred course of action without further information. On that basis the Council recommended that the Chief Minister refer the issue to the Jersey Law Commission and invite the Commission to consider reporting on the matter expeditiously.”

“The Policy and Research Manager was authorized to take the necessary action.”

It is very important to notice that the Attorney-General – William Bailhache - stated that “that the issue of corroboration might be significant in the context of individual cases”, which does quite tally with Sir Philip’s statement that “the corroboration rule never got in the way of a prosecution”.

The outcome of this meeting - and the lack of action - was that Wendy Kinnard tendered her resignation citing it as a matter of conscience. The Minutes of the next meeting state this:

“The Committee with reference to its Minute No. A 1 of 21st October 2008, recalled that Senator W. Kinnard had made a statement in the States announcing her resignation as Minister for Home Affairs on the basis of an issue of moral conscience and principle, namely that at a recent meeting of the Council of Ministers, the Council had declined to accept a recommendation from her Department that an item of importance be taken forward immediately. “

“The Council reaffirmed the intention that the Chief Minister should make a statement to the States shortly and agreed an outline of the wording to be adopted, subject to finalisation by the Chief Minister.”

“H.M. Attorney General outlined the background to the desirability of promoting an amendment to existing Jersey legislation in order to ensure that judges could use discretion as to whether to give a corroboration warning to juries, depending on the case, regarding the issues raised and the content and quality of evidence. It was recognised that the referral of the issue to the Jersey Law Commission was unlikely to result in a speedy outcome, although the matter would undoubtedly be thoroughly examined and widely consulted upon.”

“Having considered the possible effect on forthcoming prosecutions of a change to Jersey legislation, the Council concluded that it would not be in the Island's interest to release details of any legal advice it might have received on the matter and decided, therefore, not to publish the relevant minutes of its meetings.”

So the end was result was delay – and that by a political decision which was not made clear at the time. There was a clear decision to delay and not make the reasons for delay public!

So who was party to this decision? All members were present, with the exception of Senator T.A. Le Sueur, Minister for Treasury and Resources, Senator P.F. Routier, Minister for Social Security and Senator F.E. Cohen, Minister for Planning and Environment, from whom apologies had been received.

Those present were Senator F.H. Walker, Chief Minister, Senator M.E. Vibert, Minister for Education, Sport and Culture, Senator P.F.C. Ozouf, Minister for Economic Development, Senator T.J. Le Main, Minister for Housing, Senator B.E. Shenton, Minister for Health and Social Services, Deputy G.W.J. de Faye, Minister for Transport and Technical Services

In attendance - Deputy A.D. Lewis, Assistant Minister for Home Affairs, Connétable K.P. Vibert of St. Ouen, Assistant to the Chief Minister, W.D. Ogley, Chief Executive, States of Jersey, W.J. Bailhache, Q.C., H.M. Attorney General

Ben Shenton, commenting to the inquiry why he thought it right to question the proposal by Wendy Kinnard stated this:

“We had no real sort of back-up as to why we were being asked this request, or why it was, you know, the right thing to do and I was quite vocal on it and actually led to it going off to the Law Commission, to look at and it and to come back with a properly researched paper as to why the law should be changed, and it was eventually changed.”

“But it all goes back to the point of view of how you act as a politician. Myself and none of the other Council of Ministers at that time had any legal background. We had a retired teacher, this, that and the other. We were at the height of the sort of furore about child protection issues and the problems that the department had been facing. And all of a sudden we get this request with no background. I think realistically, even if I was -- a request had come to me as chairman of a board anywhere, if you haven't got the back-up papers, and you are asking to do something, you want to question why you are doing it, and you want to make sure that you are doing the right thing.”

Of course, as the Minutes make clear, some of the background information as to why the request was important came from William Bailhache, who advised the Council on the law, explained how the rules worked, and told them how different practices applied in England and Scotland.

So it is not entirely correct to say there was no detail. Whether or not the reason was obvious was difficult to say, but obviously by that point it was clear there would be prosecutions from Operation Rectangle, even if Wendy Kinnard had not stated it so clearly. You do not need a lot of hindsight to see that!

How did the corroboration rule work in practice? Did it not make a jot of difference, as Sir Philip said, or did it raise the evidential bar for a successful prosecution?

Police woman Alison Fossey writing to Shaun Du Val, as noted in the inquiry transcript, stated:

"Laurence [ O'Donnell] was of the view, as am I, that a lot of cases were not proceeded with in the past due to working procedures between the Police and [the force legal advisor]. Many files were not even referred for legal advice and were written off by the [detective sergeant or detective inspector] at that time and also the corroboration rule prevented many cases being proceeded with. A major change in the law is required and we were successful in our law drafting bid for a new Sexual Offences Law this year."

[Laurence O'Donnell was a legal advisor from the States law officers department.]

There is also a memo from Mr Robert Bonney, who worked for the police between 1977 and 2005, to Advocate Whelan and it says the following about Leslie Hughes arrested in connection with multiple cases of sexual abuse of children at a Jersey group home:

"I seek your assistance and direction on the question of formulation of charges to be brought and against which girls. We have previously discussed the question of court appearances for such young victims and in light of that, I feel that no charges should be brought against Hughes, in respect of ...[redacted] ... not least because Hughes makes no clear admissions in respect of them, and on the whole they stand uncorroborated."

This was a case with the issue of the evidence being uncorroborated, and yet similar fact evidence existing – five individuals in a house over a span of time, all of whom individually say that they have been sexually assaulted by the same person, but no independent corroboration of each person's being singleley abused.

The inquiry asked: “Was corroboration such a significant hurdle?”

Mr Bonney replied: “Absolutely it was and it was brought to the Crown, not that it needed to be brought to the Crown because the Crown would have been living with it for many many years

“And your understanding at the time was that there was a mandatory warning that needed to be given to the jury that it would be dangerous to convict on the 0 uncorroborated evidence of the victim; is that how you understood it to be?”

“My understanding was not necessarily that it was required in law, but whether it was required in practice and certainly it was my understanding that without corroboration the case would likely not succeed, in the absence of any other evidence.”

“Perhaps I should qualify that and say from my discussions with Laurence O'Donnell I knew that this would be the way the Crown -- this would be the evidence that the Crown would look for: corroboration. If we didn't have the corroboration we likely were not getting home.”

“I think Laurence had come to believe that a case of this nature would likely not be taken forward by the Crown for the reasons of non-corroboration.”

The inquiry also cites John Edmonds who submitted that:

"I cannot help feeling that the legal advisors over a period of many years having effectively been applying a test of mandatory corroboration rather than properly evaluating whether an uncorroborated victim would nonetheless be regarded as a witness of truth."”

They ask Mr Bonney: “Does that fairly summarise your view in 2004 of 195's case?”

Mr Bonney: “My understanding is that they knew very clearly about whether it was mandatory or required in practice and our discussions regularly went to that area, ahead of the decision-making coming out of the AG's office.”

And Mr Edmonds says -  looking at mandatory corroboration, that it was the critical hurdle "rather than properly evaluating whether an uncorroborated victim would nonetheless be regarded as a witness of truth."”

Ms Leslie asked Mr Bonney: “The last thing I want to ask you about is just a point of clarification. You have very helpfully explained in relation to the issue of corroboration that obviously the position in law is that where a jury is properly instructed by a judge, they may convict without sort of corroboration, but you have also identified that, as you said, it was clear that in practice this would never happen in Jersey. Where did that practice come from?”

Mr Bonney: “I think over the course of the years -- it settled on me that corroboration was huge and it needed to be obtained, it needed to be looked for, it was a significant hurdle and in practice you weren't getting home without it, whatever that corroboration may be.”

“I acquired this morning the Jersey Law Commission "Corroboration of evidence in criminal trials" and it was -- it's a local document, it's a consultation paper written about corroboration of evidence in criminal trials and it is dated -- it is produced by the Jersey Law Commission as a consultation paper. You may have it, in which case this will be superfluous, but that was produced in 2008 and that set out what my understanding of corroboration was when I was serving in the Police Force and in 2009 the findings of that consultation were reported upon and that was to remove the stringent corroboration requirement that I understand has been done.”

The consultation paper was produced by the Law Officers Department in December 2008 advocating scrapping the corroboration rules. They were efficient and quick, unlike the suggestion in the Council of Ministers minutes (quoted above), which appears to blame them for any future delays!

But it had to wait until Ian Le Marquand was Home Affairs Minister for a change to come about in 2012!

The Jersey Law Commission had done its job by December, but clearly the political will did not exist until 4 years later! Incompetence? I can see no evidence of that in the documented history. I can see plenty of a lack of political will to take the issue and run with it. It is interesting to note that the change in the law only took place after all the trials relating to Operation Rectangle had finished.

The change in the law was voted on 17 January 2012, and became law in March 2012. It passed by 41 votes, with no abstentions, but rather a lot of absences from the sitting. Deputy Roy Le Hérissier asked if more convictions had come about as a result of the changed law in the UK and elsewhere, and Sir Philip Bailhache, acting as rapporteur for this order, replied that:

"I am not sure that I can give Deputy Le Hérissier any specific information about the number of cases which have led to convictions in other jurisdictions as a result of the changes in the corroboration rules, but logic would suggest that the absence of the requirement for corroboration has made it easier to bring guilty men to justice and I cannot, I am afraid, say more than that."

That rather contradicts what the Senator is telling the trial about it not making any difference!

References
https://jerseylawcommission.files.wordpress.com/2015/06/2008-corroboration-of-evidence-in-criminal-trials.pdf
http://tonymusings.blogspot.com/2012/12/criminal-justice-miscellaneous.html

Jersey Youth Parliament: A Kick in the Teeth?

In September 2015, Amy Vatcher met with Privileges and Procedures Committee to discuss holding the Jersey Youth Parliament meetings in the States Chamber. She argued that it would give an appropriate status to the organisation, which she hoped would become the representative body of the Island’s young people.

She advised that the Jersey Youth Parliament would like to hold approximately 4 plenary meetings a year, to take place preferably on Saturday mornings. The meetings would last around 4 hours.

She recognised that there would inevitably be some cost associated with opening the States Chamber on a Saturday morning, as the presence of at least one States usher would be necessary. She further acknowledged that it might also be necessary for an employee from the security company which controlled the Chamber’s public entrance to be present if a large number of visitors were expected.

Ms. Vatcher remarked that although the organisation was likely to secure sponsorship in the near future, some contribution to these costs from the States Assembly budget would be of great help. Whilst she was open to the possibility of arranging meetings of the Jersey Youth Parliament during normal working hours or school holidays to avert such outlays, she considered it important that the meeting dates be as convenient as possible for the young people involved.

Questions were put to her by members of the committee, and in response, it transpired that at least 40 young people would be elected as members of the parliament, some as independents, others as part of the parliament’s established parties. 

The Committee was informed that anyone aged between 16 and 21 could stand to be a member, with the first set of elections to be held in October 2015. The term of office would be one year. Members would be able to stand again at the end of that term should they so wish.

In terms of the conduct of debates, a non-partisan Speaker would be appointed from within the parliament to preside over the sitting and maintain order in the traditional way. In addition, the Jersey Youth Parliament was in the process of drafting its own set of Standing Order

The committee was impressed by the enthusiasm of the representatives and felt that they were aware of the issues that needed to be dealt with before they could be allowed to use the States Chamber. As a first step, the Committee agreed to consult the Bailiff, as President of the States, on the matter before taking a final decision.

However, after the meeting of 13 October, the Bailiff was called upon to give his decision, and the Committee acquiesced in his negative attitude.

The Bailiff advised the Committee that the States Chamber was occasionally called upon to function as a Court, often at short notice, when the Royal Court was already occupied, so this would preclude its use on weekdays. Moreover, he was of the opinion that the use of the States Chamber in this way by external parties could, potentially, diminish the standing of the Chamber.

Clearly the Bailiff had not bothered to read the minutes of the previous meeting, nor had been appraised by the Committee that the meetings of the Jersey Youth Parliament were intended to take place on Saturday mornings, which is not commonly a time when the Royal Court is occupied. The Committee could have corrected him on that, but that was not the case. They kept silent.

And precisely what he meant by “the use of the States Chamber in this way by external parties could, potentially, diminish the standing of the Chamber” is unclear. This is a meaningless piece of drivel, or as George Orwell put it, has a “lack of precision”; as Orwell said of this kind of verbiage, the speaker “either has a meaning and cannot express it, or he inadvertently says something else, or he is almost indifferent as to whether his words mean anything or not.” At the end of the day, they reveal probably more about the rather pompous and somewhat out of touch Bailiff.

For what is forgotten is this: the Schools already have Youth Assemblies which take place in the States Chamber. The Jersey Youth Assembly is held once a year and brings together year 12 and 13 students from the Island’s post-16 schools and colleges to spend an afternoon in the States Chamber. No one, as far as I am aware, has ever suggested that this use of the States Chamber by an external party diminishes the standing of the Chamber! If there is any cause for precedence, there it is!

It was good that Deputy Judy Martin considered that the Jersey Youth Parliament should be able to hold their meetings in the States Chamber and expressed concern that the Committee’s decision, in this regard, could extinguish their enthusiasm. She requested that her dissent from the Committee’s decision be recorded. It is a shame that Sam Mezec did not follow suit.

In fact, in so far as it might diminish the standing of the Chamber, the Jersey Youth Parliament would probably do so because the quality of debate would probably put the States members to shame.

The decision to elect their own non-partisan speaker from among their members would have also caused chagrin for William Bailhache, as it might provide an illustration of how the States might function without him. If anyone’s standing might be diminished, it would not be that of the Chamber, but him personally.

Amy Vatcher was part of the campaign to get the Jersey Youth Parliament off the ground, and also was a stalwart supporter and speaker in favour of the “Yes Campaign” to retain the Constables in the States. This request cannot be dismissed as an attempt to promote some kind of left wing Agenda.

To tell the Jersey Youth Parliament that they can meet in the Town Hall instead is to lose sight of their objectives, one of which is to encourage enthusiasm among young people for politics.

Back in the 1970s, the Executive Committee of the Société Jersiaise took a decision that their Curator was not to engage with schools and education, but his task was simply to preserve and look after the museum. It was a lack of foresight, which saw the purpose of the society as primarily concerned with looking inward.

Privileges and Procedures, following William Bailhache’s lead, have turned their back on engagement and encouragement of young people, however much they dress up their decision. Like the Société, they might be described as more concerned with looking after old fossils than educating and engaging the politicians of tomorrow.

Brothers in Faith

Reflecting on the conflict between Deputy Montfort Tadier, and the Bailiff, William Bailhache, it is worth reflecting on an earlier exchange in 2008:

Deputy G.P. Southern Here we are today debating that very thing. We are told there is no alternative. “Thank God there was an alternative last week” some people are saying. So we could safely…

The Bailiff: Deputy, I am not sure the expression “Thank God” in that context is an appropriate parliamentary expression.

Deputy G.P. Southern: Can I use the expression “Thank heaven,” Sir?

The Bailiff: You are invoking the deity.

Deputy G.P. Southern: May I use the expression “Thank heavens”?

The Bailiff: “Thank goodness.”

Deputy G.P. Southern: “Goodness,” all right. Thank goodness it was there a week ago

The Bailiff in question was Sir Philip Bailhache, brother of William. And we see here the same strange and almost puritanical religious belief which cannot even allow idioms such as “Thank God” to be used in a States Debate.

It is even more notable because the idiom was never taken as unacceptable when others were sitting in the chair, such as the Deputy Bailiff, Michael Birt, or the Greffier, Michael De La Haye:

In 2006, Senator Terry Le Main said: “When the Housing Committee met in the past it was nothing to sit all morning listening to hardship cases and every politician in this Assembly was involved in many of these cases. Thank God that has now past.”

The Deputy Bailiff did not call him up for inappropriate language.

Again in 2008, the Deputy Bailiff did not prevent Terry Le Main for saying: “Quite honestly, I have got my lovely house at home and most of you have got your lovely homes and thank God I can leave here at night and go in my home and close my door and live in decent comfort.”

In 2007, the Greffier did not bat an eyelid when Deputy Paul le Claire said: “Thank God, the Housing Minister does not close his doors at 5.30 p.m. because this was about 8.00 p.m. You will remember it well when I brought the lady down with me. She was crying her eyes out.”

And in 2009, the Greffier did not correct Deputy Southern for his language when he said: “Member of the States reason to think: “Well, could that happen to me, and if so, how would have I reacted?” or even to say: “Well, thank God it happened to him and not to me” in some cases.”

It is only Sir Philip Bailhache who reacted with extreme sensitivity to what is now just an expression of relief, which the dictionary will tell you is now as devoid of religious connotations as saying “Bless you” when someone sneezes, and has been for many years. Even when Shakespeare uses it in Much Ado About Nothing - "Yes I thank God, I am as honest as any man living, that is an old man, and no honester then I", it has little religious meaning.

The Deputy Bailiff of the time, Michael Birt, and the Greffier, Michael De La Haye did not take issue at all..

So perhaps it is not surprising that Sir Philip should not only take issue with “Thank God”, but on another occasion, reject the use of the word “Godforsaken”, again from Geoff Southern. Again, the word has become idiomatic, the the dictionary tells us that it was "Originally: (chiefly of a person) abandoned by God; consigned to evil ways, depraved, profligate. Subsequently: (esp. of a place) lacking any merit or attraction; desolate, dismal, dreary."

Sir Phillip's attitude, like that of his brother recently, seems curiously like that of the Puritans of the 17th century or, more locally, in Jersey, that of the severe Calvinists who took control after the Reformation; for they too had a very acute sensitivity to such phrases. Of course, back in the 17th century such idioms still had religious connotations which they have lost today.

Incidentally, such language as "Thank God" has become a commonplace in the House of Commons for many years, long predating even Sir Philip Bailhache.

Here are a few examples:

Examples of “Thank God”

HC Deb 14 May 1835 vol 27 cc1071-112

Dr. Lushington And I am speaking on that same subject. On this point, thank God, there can be no misunderstanding between us.

HC Deb 20 July 1914 vol 65 cc173-93

Mr. T. M. HEALY Thank God we have a House of Lords.

HC Deb 04 April 1913 vol 51 cc708-81

Mr. BURNS: The next point is the finance. The hon. Baronet opposite (Sir F. Banbury) is a financial expert and authority. Thank God, I am not.

HC Deb 10 February 1914 vol 58 cc53-152

Mr. LONG

The Angel of Death has, thank God, not been yet abroad in this dear land of ours.

HC Deb 13 April 1927 vol 205 cc385-517

Lieut.-Colonel MOORE-BRABAZON

We have still the Road Fund, thank God, intact, but he has gone very near doing away with it. Although the Chancellor of the Exchequer is capable of standing up, I think he is getting very wobbly on this particular point, urged on, no doubt, by the Treasury.

HC Deb 24 February 1927 vol 202 cc1965-2012

Mr. JAMES BROWN

People may scoff, the Sassenach may scoff, but it still, thank God itI remains true that the dearest thing to the heart of a Scotsman or a Scotswoman is independence. There is nothing they cherish more.

HC Deb 01 June 1927 vol 207 cc403-517

Sir ELLIS HUME-WILLIAMS: I often observe in this House that, when an hon. Member has forgotten what he is going to say, or cannot think of anything else, or wishes to rouse a little enthusiasm, he generally says, "Thank God, I am not a lawyer!" I have not heard the expression as yet during this Debate, but I confess there have been occasions when I have felt inclined to join in the thank-offering.

HC Deb 18 February 1927 vol 202 cc1275-361

Mr. BANKS

Mr. Cook, in a speech on 3rd June, said: "Thank God for Russia," and he added that there was a cheque for £270,000 received last week, that the Central Co-operative Societies in Russia had sent £40,000, that the Central Russian Union had sent £70,000, and so on.

HC Deb 17 March 1977 vol 928 cc635-766

Mr. Graham Page (Crosby)

I pay the hon. Gentleman the compliment of saying that I followed his argument right through. I thought he was very clear. I disagreed with every word of it.

Mr. Kinnock Thank God for that.

HC Deb 02 December 1975 vol 901 cc1609-45

Mr. Les Huckfield (Nuneaton)

I can only say that their policies have pretty well laid waste the whole of the industrial Midlands since they have been in Opposition. [HON. MEMBERS: "Oh."] Thank God they have not been in Government.

Mr. Spriggs Do not thank God. Thank the electors.

HC Deb 27 July 1977 vol 936 cc647-67

Mr. Norman Tebbit (Chingford)

However, time is a great healer and after a suitable interval for consideration the Liberals have got together somewhere in the Central Lobby, where I understand that there is adequate room for them to do so and, indeed, on neutral ground.

Mr. Stephen Ross (Isle of Wight) Thank God there are only two days left.

Examples: Godforsaken

THE EARL OF WEMYSS

HL Deb 16 July 1901 vol 97 cc551-69

I refer to the Admiralty because that is one of the most deplorable buildings ever seen in this country, and you have thrown away one of the best sites. You had, opposite, the Treasury building, that beautiful pedimented building; all you had to do was to put up a similar building on the other side. Instead of that you put this God-forsaken, nondescript thing, which is a disgrace to London.

HL Deb 26 June 1973 vol 343 cc1840-969

LORD THOMAS

I know that Maplin—or Foulness, to give it its more properly descriptive title—is a God-forsaken place as it stands; beautiful in its loneliness would grant, but not a good place for contractual development, and we shall find that the ten-year period needed before it is anywhere near completion will soon be exhausted.

HC Deb 28 March 1901 vol 92 cc95-163

MR. LABOUCHERE

If the French were to vanquish us, and if we were to be told, after being harried and having our houses all burned down, that we were to receive a little sum of money out of the French Treasury, and that we must thank God that we were going to have occasion to cease to be Englishmen to become Frenchmen, we would not consider the terms liberal.

In order to meet that, what does the Colonial Secretary propose to do? He sent out a Commission to discover whether South Africa was a fitting place for English colonists. Probably anybody on this side of the House could have told, him that a more God-forsaken place for English colonists did not exist

HC Deb 13 July 1978 vol 953 cc1895-906

Mr. Nicholas Fairbairn (Kinross and West Perthshire) There is one point that I want to make, Mr. Deputy Speaker upon the Bill. The national debt, as I understand it, was created in the year 1694. Two hundred and eighty years later, in 1974, after two and a half centuries of war and two world wars, it had reached £40,000 million. But it took only four years of this god-forsaken, dreadful Government to double it. It is now £80,000 million.

Mr. Fairbairn But I also happen to represent those who live in an area of 8,000 square miles, which is one and a half times the size of Northern Ireland. Before Labour Members make silly remarks let them reflect on that. But thank God that I represent those people. I represent one-thousandth of the people of this country.

HC Deb 05 May 1978 vol 949 cc715-24

Mr. Fairbairn

The Bill is saying that the Minister shall have, by arbitrary decision—or on advice, if he cares to put it that way, by some Godforsaken tribunal of his creation—the power to say that the conduct or behaviour of a person on one occasion is a 723 reason for him to declare that that person shall no longer be entitled to do his job

HC Deb 11 July 1978 vol 953 cc1445-67

Mr. Pardoe

Why have the Government suddenly changed their mind? We shall want some firm comment about that from the Chief Secretary, because he is supposed to be in charge of the Inland Revenue—though it is a God-forsaken job to have, I must say.

Plemont: Some Thoughts

Today's post is a reprint of a letter published in the JEP on Tuesday on the States helping buy Plemont for the National Trust. Unfortunately, they don't seem to publish letters online now, so I occasionally reprint them on my blog to make them available to a wider public.

I'm still undecided about Plemont, and I can see arguments on both sides.

Against are three main arguments

(a) that we can ill-afford this, and the money would be better off elsewhere where there are cuts. That might not just be an injection into health care, but could be spent on supporting jobs, boosting the economy, filling any looming black holes caused by zero-ten and falling revenue from GST. Would you like the States to fork out for Plemont, and then have a GST rise next year (or the one after) as a result of shortfalls in States income?

(b) it will not benefit most of the urban population of St Helier, who tend not to stray far from their Parish, but the richer rural inhabitancy - in other words, it is like a subsidy to the Royal Opera House, something that the comfortably well-off middle classes (and above) will enjoy, but not something the working class man or woman would really want if they had a say. This can be seen most readily in the recent vote at a meeting at St Brelade, where a vote was in favour of  purchase by 31 to 7, indicating a rural bias (and people who preferred Plemont to watching football on TV). Putting money into Plemont is, to some extent, a "Middle Class Rip-Off" to quote "Yes Minister".

(c) There is a third argument which I have heard - that we should not be handing over money to the National Trust of Jersey as they do not seem to be financially viable - the 2012 accounts showed an operating deficit of £269,000 which was £11,000 more than the deficit of 2011. The report says that "Our finances continue to be in a parlous state", and they sometimes have to decline first refusal on historic buildings through lack of funds. The 2013 accounts showed a small improvement - a deficit of £142,000, but identified a repair backlog of just over £3.2 million. Given the "parlous state" of the finances, is it financial prudent for the States to give them a substantial sum without sufficient guarantees.

In its favour, it can be said that:

(a)    The Town Park was also an example of culture trumping mere economics. It was felt that despite the cost, and the reduction in parking spaces, there would be a benefit to the people in St Helier to have an extra "green lung". The principle that economic considerations need not be the only ones has been established by a precedent like this.

(b)   It is on a bus route, and accessible (in principle) to anyone. It will benefit anyone who lives in Jersey, and be open to anyone to visit and enjoy, and also a boost to Tourism.

(c) This is a one-off opportunity which is unlikely to arise again. It has to be seen in the context of the purchase of Woodford (now the Winston Churchill Memorial Park) and Noirmont Headland, as an investment in the future, which future generations will regard as good value for money.

(d) Unlike the previous proposal by Sir Philip Bailhache, this is a fixed price, not a blank chequr, with a price agreed with the current owner of the Holiday Camp site.

The letter from "Save Our Shoreline" addresses some of these points, in particular the matter of funding. By taking money from the Jersey Development Company, and the presently aborted car park project, funding can be raised without pinching money from elsewhere.

The JDC is supposed to be self-financing, but would be looking to the States to fund an underground car park - so much for self-financing. When the charges it makes to the States are taken into account, and the paltry dividend it returns to the States is put into the equation, the States is actually effectively paying the JDC more than it receives in dividends. It is high time that it was forced to become self-financing, and all kinds of nice contingency transfers such as that for the car park, should cease.

If I was in the States, I would like to see some provision for funding - such as that proposed by SAS - as a firm part of the conditions for approval of States funding for Plemont, as well as suitable guarantees regarding ownership should the National Trust run into financial difficulties. If those obstacles could be resolved, I'd probably vote in favour. As it is, I think it the proposition needs more scrutiny.

Anyway, here's the full letter - so you can make your own mind up.

Save Our Shoreline Supports the Trust's Purchase of Plemont
from Michael du Pre, chairman, Save Our Shoreline.

There has been much correspondence in your pages as to whether or not the States should match the National Trust for Jersey's contribution and buy the Plemont headland from the developers.

It really boils down to two polarised views: on the one hand, the argument is that the money should be better spent for social purposes - perhaps, for example, on Health or housing; on the other, the argument is that this is a small price to pay to protect our coastal environment and gain a valuable headland for the benefit of generations to come.

Here is one example of a way that funding may be made available. We have recently seen large quantities of money simply disappear from the Treasury-owned Jersey Development Company on ill-advised projects such as its desperate push to create an International Finance Centre on the Esplanade Car Park.

At the last count, they had spent £4.5 million of taxpayers' money on consultants, architects' fees and directors' salaries and bonuses, for no foreseeable return and, as far as anyone knows, will continue to do so.

Furthermore, as the project unexpectedly expanded, the Treasury Minister managed without difficulty or any States' authorisation, to create an allocation from States' reserves of £13m plus to create a three-and-a-half storey underground car park which he now admits will be on indefinite hold.

We suggest that by putting a brake on further JDC spending, the States could free up some or all of the £3.5m, with any shortfall being provided from the £13m. Neither of these measures would have any effect on other States' budgets.

As regards health and social services, there are enormous structural problems that need to be sorted out, since ever-increasing public funding appears to result in little visible benefit.

These problems are not going to be solved by a one-off injection of £3.5m into the system. On the contrary, such an ad-hoc 'donation' would only serve to postpone action being taken on the underlying causes.

On the other hand, the long-term annual returns (in perpetuity) on a one-off investment of a capital sum on £3.5m on the Plemont headland would simply be incalculable in terms of sustaining future tourism and, through recreation, improving the general health of a relentlessly increasing population confined 
within a small area.

Save Our Shoreline Jersey very much support the efforts of the National Trust to purchase the land at Plemont. We hope that this States Assembly will vote in favour of the proposition supporting the National Trust's initiative and will go down in history as the protectors of one of the Island's unique; and most: precious assets.

Brighton Bailhache

The Liberal Democrats are stepping up a clamp down on tax avoidance, with the Channel Islands in their sights. At their party conference in Brighton today, Business Secretary Vince Cable will be announcing a crackdown on so-called tax havens.  He wants tougher measures on tax avoidance to become central government policy. The Lib Dems have dubbed the Channel Islands "Sunny places for shady people".  The UK taxman is increasingly looking to reveal the names of British people who stash their cash in offshore banks. This follows comedian Jimmy Carr controversially yet legally using a Jersey scheme to reduce his tax bill - the Lib Dems want to close the loophole. Jersey's Assistant Chief Minister, Senator Bailhache is at their conference, hoping to convince the UK the Channel Islands are not Tax Havens, but well regulated financial centres. (1)

The Liberal England blog takes a calculated swipe at Sir Philip:

Jersey assistant chief minister Senator Sir Philip Bailhache reveals that he is attending the Liberal Democrat Conference in Brighton. As well as engaging in "casual discussions" he wants to meet Tom McNally, the minister responsible for the Crown dependencies, and John Hemming, the Liberal Democrat MP who recently raised his concerns about the governance of Jersey in the House of Commons. In this interview he accuses John of abusing his position as an MP, so that should be an interesting meeting. Meanwhile, if you meet Sir Philip you may want to ask him how Jersey's status as a tax haven can be squared with the Liberal Democrats' belief in fair taxation. (2)

It will be interesting to see if different reports come back. Memory was thought to be like a tape recording, which could under certain circumstances, such as hypnosis, be replayed exactly as it was originally. Now we know that memory is much more malleable, and the computer model for memory certainly doesn't apply to human memory. Memories are constructions which fit our own perspectives on the world, and they may differ in subtle ways, especially when describing other peoples interactions with us, and how we perceive their motivation and manner. It's not necessarily that one is "right" except perhaps in what was said, but the tone of a conversation, and how it appears may differ from one narrator to another.

Senator Bailhache commented: "This will be the first party conference that I have attended and I look forward to using the opportunity to engage with prominent UK politicians on issues that affect both our governments. The UK is our most significant economic partner and it is therefore important that Jersey maintains an open dialogue with the coalition parties."(3)

That is, of course, suitable vague. Although Senator Bailhache is going to talk to John Hemming, so that will be interesting. But "open dialogue" really doesn't mean much, not like "and show that Jersey is a well regulated financial centre". There's a lot of very fuzzy communication out there, and the press release on the Jersey government website does not really go into any specifics. How much "engage with" means is unknown - chit chat over canapes and drinks, or a more formal conversation?

It would be a shame if he didn't get the chance to meet Vince Cable. Here is Mr Cable's take on tax havens:

Furthermore, we want the costs of our current crisis to be fairly shared. 'We are all in it together' is a good slogan. Forget the Tory messengers;  let's apply the message. Cracking down hard, not just on criminal tax evasion but on abusive tax avoidance. Working with our allies to close down tax havens. No one keeps their cash in tax havens for the quality of investment advice; these are sunny places for shady people (4)

That is, of course, a conference speech, so it is playing to the crowd. What is interesting is the way in which it is reported. In this case, it's not memory that changes things, but editors taking conscious decisions to redact the speech in different ways. Metro news reports that:

Tax havens such as Monaco and the Cayman Islands are simply 'sunny places for shady people' he will say in his speech at the Liberal Democrat party conference. (5)

Monaco is mentioned in the original speech, but only in the context of a "mansion tax"; the Cayman Islands do not feature at all. In fact, his section of the speech dealing with tax havens is remarkably devoid of specific localities, which may be why the editor of Metro decided to fill in the blanks. He was partly correct - Somerset Maugham once famously described Monaco as " "a sunny place for shady people", although that was not in the context of tax havens, although it is certainly that quote which Vince Cable is using here. But he is not reporting what Vince Cable said; he is adding specifics that are not in the original.

Interestingly, when down to specifics, Mr Cable is not so critical of the Channel Islands as might be thought:

He explained: "I'm not going out of my way to pick on the Channel Islands or the Isle of Man and actually I've met people from the Channel Islands, and I've been to the Isle of Man, I've talked to them about their particular situation, they weren't the countries that I was particularly singling out - there are others farther afield that are much worse. But every country in this business that is trying to undercut countries like ours by attracting individuals and companies through tax avoidance loopholes - we've got to have careful scrutiny of what they're doing."(6)

That's the problem. Not the general business of Jersey, which may well be, as Sir Philip says, "a well regulated financial centre", but the rogue elements like the K2 scheme invested in by Jimmy Carr. The question is - how widespread are those rogue elements? When Panorama came over in 2009 on an admittedly determined attack on Jersey as a tax haven, they didn't look at the glowing IMF reports, but attempted to bank millions of pounds instead:

A journalist from the BBC's current affairs programme, Panorama, went into Lloyds TSB Offshore in St Helier posing as a customer wanting to deposit millions of pounds. It is believed that the programme, to be screened tonight at 8.30 pm on BBC One, will show that their reporter, who said he did not want to pay UK tax, was told to invest the cash in such a way as to dodge the UK taxman. (8)

That's the main problem - any glowing reports are wiped out by a single burst of bad publicity. It's about time we put our house in order more proactively so that we can be able to hold our heads up as well-regulated. I don't wholly agree with those who say that Jersey's finance industry is engaged almost 100% (or so they imply) in tax avoidance, but neither do I believe the system is as well regulated as it should be. I suspect there are still some rogue elements, skeletons waiting to come out of the closet. We need a culture, an ethos, which makes any schemes like K2 seem unwelcome here.

Links
(1)
http://www.channelonline.tv/channelonline_guernseynews/DisplayArticle.asp?ID=501544
(2) http://liberalengland.blogspot.com/
(3) http://www.gov.je/News/2012/Pages/LibDemConference.aspx
(4)
http://vincentcable.org.uk/en/article/2012/614285/vince-cable-s-speech-to-liberal-democrat-autumn-conference
(5) http://www.metro.co.uk/news/912980-tax-taskforce-will-hunt-rich-targets-abroad#ixzz27PfWRhHb
(6) http://www.channelonline.tv/channelonline_jerseynews/DisplayArticle.asp?ID=501540
(7) http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/21_09_09_banking.pdf
(8) http://www.thisisjersey.com/latest/2009/09/21/jersey-bank-to-be-probed-by-uk-tax-authorities/

Rogue Politician

After the publishing of Sir Philip Bailhache's statement, the story went fairly widespread across the UK:

Jersey calls for 'independence' - ITV News
Jersey 'independence' call over tax - Belfast News
Jersey threatens to break with UK over tax backlash
Jersey 'independence' call over tax - Braintree and Witham Times
Jersey 'independence' call over tax (From York Press)
Jersey 'independence' call over tax (From Wiltshire Business Online)

This is what the Guardian said:

A barrage of regulatory clampdowns and political attacks on the Channel Islands' controversial financial industry has prompted one of Jersey's most senior politicians to call for preparations to be made to break the "thrall of Whitehall" and declare independence from the UK. Sir Philip Bailhache, the island's assistant chief minister, said: "I feel that we get a raw deal. I feel it's not fair . I think that the duty of Jersey politicians now is to try to explain what the island is doing and not to take things lying down. The island should be prepared to stand up for itself and should be ready to become independent if it were necessary in Jersey's interest to do so."

In a Guardian interview, he said strained relations with the UK over the past five years had made it "very plain" that Jersey's interests were not
always aligned with those of Britain. "I hope that the constitutional relationship with the UK will continue. But if it becomes plain that our
interests in fact lie in being independent it doesn't seem to be that we should bury our head in the sand and say we're not going to do that." (1)

This is the same Sir Philip Bailhache who just before the election last year said that: "I do not advocate, and have never in fact advocated independence. What I have suggested is that the Island should be prepared for independence if that were the best way of preserving our autonomy and way of life." That remark has been described by one of my correspondence is Clintonesque; it is so beset with qualifications that no one really knew what Sir Philip thought then - which clearly was a good strategy for election, as it might have lost him votes. Now that it doesn't matter, he has decided that enough is enough, and sounded off on the public stage. The time for slippery words is over.

Now I'm sure that Sir Philip's statement will be very popular among Jersey people, who often are ordinary people working far away from the convoluted tax schemes such as K2. But does this really go down well in the UK? If I was hearing this in England, having heard about Jimmy Carr, and Geoff Cook popping up with the well worn cliché - "well regulated finance industry" - the message I would be hearing is that if the UK tries to interfere with tax arrangements like K2, then we won't play that game. We'll take our ball and play elsewhere where K2 can continue. I know Sir Philip hasn't said that - but that is, I fear, how my UK friends will perceive his outburst. It's the voice of a small child trying to sound big, and throwing a tantrum because other people have been saying nasty things about him. As Business Insider puts it:

Sir Bailhache's anger seems to come from the recent furore in the UK about the role the isle played in a prominent British comedian's tax avoidance scheme that was later branded "morally wrong" by British Prime Minister David Cameron. (4)

I would also note the following statement before the last election:

When ministerial government was introduced a number of mistakes were made. The Chief Minister should be allowed to choose his ministers so that they can work together as a team.

And also from Sir Philip, this statement:

In 2005 we changed to a system of ministerial government, but when that was done I think that a number of mistakes were made. People were understandably anxious about putting too much power in the hands of individual ministers, but what we have done is to create a system where no one is really in charge.

So the message from this is that the statesman is or should be a team player, who doesn't go off and do his own thing without the courtesy of consulting other members of the team. The flaw in the first phase of Ministerial government was that - according to Sir Philip - Ministers could go their own way, do their own thing. I know that Sir Philip mentioned on BBC Radio Jersey that other members of the Council of Ministers agreed with his line, but that is not the same as a proper consultation before sounding off.

What this is most like is a form of attention seeking behaviour. Raymond Saner notes that this can be disruptive to teams:

Perhaps the most common manifestation in this category is attention-seeking behaviour. The individual is then no longer concerned with the process at hand, but with the need for personal appreciation. The energy this takes up is lost to the problem-solving activities of the team. (2)

and he notes how a team should work well together:

The longer the team works together, the less significant personal power needs become. The team maintains its productivity while consciously
cultivating its smooth functioning. The members' behaviour is oriented above all towards the task at hand, while any socio-emotional problems that may arise are not suppressed or brushed aside as without importance, but are consistently dealt with through group-orientated intervention.(2)

Kelly Blidook also notes this kind of aberrant behaviour where individuals pursue their own agenda without consultation with their team:

It feeds upon attention and attachment. Hence it always seeks attention and is a master in attention seeking behaviour. This can show up in a
million forms from flashy possession to drama-laden behaviour. It also attaches itself to ideas and systems of thought and totally abhors change and alternative viewpoints.

It can be spotted in: Self-centred behaviour, attention-seeking behaviour, the need to be right, showy behaviour, the need to be praised,
gossiping, etc. (3)

I have sympathy with Sir Philip Bailhache's annoyance at the reputation damage Jersey has suffered of late. Ian Gorst, in giving a strong message to the finance industry that they need to consider very carefully the importance of reputation when assessing schemes has made a strong start, and a break from his predecessors, who usually followed the Geoff Cook cliché - "well regulated financial centre", which is now becoming something of a joke, and should have a moratorium placed on it. I would like to see a circular to finance businesses, and a note on any new company forms noting this kind of message very strongly.

But what concerns me is that this intervention by Sir Philip, without consulting either with the Council of Ministers, or seeking advice from the States communications unit, may make matters worse. Jersey will be seen as the naughty kid who says he'll take his ball away when he gets told off - in other words, the tantrum of a spoilt child. That's how I fear it will appear on the world stage. The headline for business insider put it this way:

Jersey Is So Mad About David Cameron Calling Tax Avoidance 'Morally Wrong' That It Might Break Ties With The UK

There's also a matter of courtesy involved. Sir Philip seems to be completely forgetting that Ian Gorst is Chief Minister, and it might be proper to discuss the matter jointly first. It's the behaviour of someone who seems used to getting his own way, and ploughing his own furrow. For someone who said that what is needed is to "work together as a team", there seems to have been precious little formal communication with team members.

Then there is the external relations group set up with Guernsey to examine the whole question of the constitutional arrangements with the UK. The External Relations Group (ERG) was set up so that the Channel Islands can work together. Deputy Roger Perrot said: "It is of fundamental importance that Jersey and Guernsey speak with one voice." And that too means consultation as a matter of respect. There are more people who need to be involved. Sir Philip seems to sometimes forget that "no man is an Island".

Link
(1) http://www.guardian.co.uk/uk/2012/jun/26/jersey-threatens-independence-tax-backlash
(2) The Expert Negotiator: Strategy, Tactics, Motivation, Behaviour, Leadership. by Raymond Saner, 2005
(3) Symbol vs. Substance: Theatre, Political Career Paths, and Parliamentary Behaviour in Canada by Kelly Blidook
(4) http://www.businessinsider.com/jersey-tax-evasion-uk-2012-6#ixzz1z1TAB0bn

An Independent Muddle

Sir Philip Bailhache's Manifesto states:

As was recommended by the Clothier Panel, the number of members should be reduced to 42. How does one get there?

I do not support the removal of the Constables from the States. The Constables represent an important link with the parishes. It would diminish the office of Constable if they ceased to be in the States. With 12 Constables there would then be 30 other seats. There are ways of dividing up those seats which require discussion.

What a mixed message! I'm always amazed by people who hark back to Clothier like Sir Philip, and say the problem was with the cherry picking, and we should do what it recommended. It recommended removing the Constables, actually! Why pick part of it to suit (reducing numbers) and then ignore the rest? If we are going to say Clothier was wrong on Constables, who is to say he was right about recommendations about reducing numbers? Why should Clothier be quoted as "an authority", and justification for change, if he is then ignored where Sir Philip disagrees with him?

Sir Philip Bailhache's statements on this matter are quite incoherent. We expect better from a trained legal mind.

And then we have his statement on independence, also from the manifesto:

I do not advocate independence from the United Kingdom.

I am, however, a fervent supporter of Jersey's constitutional rights to self-government and judicial independence, which we have enjoyed for more than 800 years. We have no representation at Westminster nor in the European Parliament. Decisions affecting Jersey people should be made in Jersey by our elected representatives in the States of Jersey. If external forces threaten us, we should be willing to assert our rights and to protect our political and fiscal autonomy.

Does this mean he supports independence or not? Is it an option of last resort, a nuclear option should it prove necessary? He really doesn't make this at all clear; what we have instead is a complete fudge. No one reading that manifesto would believe it was the same man who only a short time ago came to a very different statement of views in 2010.

Does he change his mind so rapidly (and invisibly, as he hasn't retracted from his earlier position publically)? Or is he downplaying the issue for the election, and giving the electorate a fudged answer? Is that level of clarity the best we can expect from a trained legal mind? Here is the situation in 2010:

MINISTERS must prepare for independence from the UK as the constitutional relationship between the two jurisdictions worsens, according to former Bailiff Sir Philip Bailhache. In the latest edition of the Jersey and Guernsey Law Review, Sir Philip writes that Islanders are increasingly being treated as 'not quite British' and that ministers should start preparing for the worst so that they are not caught out if the relationship breaks down completely. And he criticises ministers for ignoring a two-year-old report recommending that research and preparation for independence be carried out.

And lest anyone think that it is JEP misreporting him, in 2009, he wrote - in his own words - that we were "One or two steps from sovereignty".  In the Jersey Law Review, he penned an article which said, inter alia:

It is often said by ministers in Jersey, and perhaps in Guernsey too, that the constitutional relationship between the Islands and the UK is strong and in good shape. One understands that it is prudent to be restrained, and that ministers cannot always speak their minds as openly as they might wish. But in the author's view [i.e., Sir Philip Bailhache], the constitutional relationship currently leaves much to be desired. Apart from a short period when Lord Falconer was Secretary of State with responsibility for the Crown Dependencies, and viewing matters in the round, the Ministry of Justice seems increasingly to be unable to prevent other parts of Whitehall from ignoring the interests of the Channel Islands.

Do these examples demonstrate "a respect for [the Islands'] autonomy in domestic affairs"? In the author's submission, the evidence of the last 12 years suggests that that respect has often been lacking. The view is that the Crown Dependencies should not be permitted to stand in the way of the UK's domestic interests, and compromises seem more difficult to achieve. In the context of the EU tax package there was probably no specific intent in 1998 to cause harm to the Islands. The principal object was to protect the UK against tax harmonisation in Europe which would have damaged the City of London. In the context of the Borders Bill there is no specific intent to damage the interests of Islanders. What has probably happened there is that the Crown Dependencies have been offered as sacrificial pawns in order not to damage relations between the UK and Ireland, just as the commitment of the Crown Dependencies to the tax package was given in order to placate Luxembourg and others in 1998. Is this all part of the evolving constitutional relationship? It is not how the relationship began. For centuries the Channel Islands offered loyalty to their distant Sovereign and in return were offered protection. The loyalty is still there, but the protection of Her Majesty's Government seems less enthusiastically given.

Does this mean the end of the current constitutional relationship of dependency? Not necessarily. It may be that we are just going through a bad patch, as has happened in the past. But it may also be that the relationship has had its day; that the UK's closer engagement with its European partners leaves no room for the quirky ambiguities for which the British are renowned; that historical affection is giving way to envy and suspicion of so-called "tax havens" stoked by a hostile press.

It is submitted that, at the very least, we should be ready for independence if we are placed in a position where that course was the only sensible option. Nothing is lost by adopting the recommendations of the CRG for further research and for preparations so that, if the crisis comes, we are not caught like the proverbial rabbit in the headlights. In the author's further submission, it would also be a responsible action to continue with the work begun by the CRG, and to commission an inquiry into the wider issues inherent in independence. What are the advantages and disadvantages?

Alan Binnington was of course right to urge caution; but caution does not mean that we should be inert. Whether the finance industry would be concerned about independence is open to doubt. All investors cherish stability, and sovereignty may be the best way to ensure that stability in the long term.

So let's look at a few statements:

The Manifesto:

I do not advocate independence from the United Kingdom.

The Jersey Law Review Article:

We should be ready for independence
Caution does not mean that we should be inert
Sovereignty may be the best way to ensure that stability in the long term.

Can the author of the Manifesto also be the author of the 2009 article? If you asked any member of the general public, in a randomised trial, without saying who the author of the manifesto, and the writer of the article were, I'm sure most people would think they had been written by two different people, with different opinions.

He may consider that he is covering himself by the words "we should be willing to assert our rights and to protect our political and fiscal autonomy" in the manifesto, but that is surely a slippery way with words that muddles matters and gives the electorate a quite different perception. Is it right to muddle matters? Surely a degree of clarity would be more honest to the electorate?

When he said that was it deliberately calculating to be misleading? Or this just kind of verbal sleight of hand something that just comes naturally? And do we want someone who presents his policies like that in the States?

Either way, he is clearly presenting a manifesto to the public in such a way that it would muddle and mislead.

References  
http://www.philipbailhache.je/my-manifesto/
http://www.thisisjersey.com/2010/01/21/ministers-must-prepare-for-jersey-independence/
http://www.jerseylaw.je/Publications/jerseylawreview/oct09/JLR0910_Bailhache.aspx

Philip Bailhache and the Roger Holland Affair

Former Constable Bob Le Brocq raised a question about the suitablility of a former senior Crown officer standing for election who had permitted a known pedophile to remain in the honorary police. The replies of the candidates, who were unanimous in condemning the actions of the Crown officer, are given in the link below.

http://tomgruchy.blogspot.com/2011/10/bob-le-brocqs-question-district-3-st.html

What is interesting is how neither Bob le Brocq, nor the candidates for election in St Helier No 3, mentioned any of the individuals by name, even though, of course, the whole affair is a matter of public record. Instead, they berated the former Crown Officer for poor judgement, and almost universally said they did  not think anyone with a record like that should be standing. Then Ted Vibert spoke, and of course, let the cat out of the bag - it was Sir Philip Bailhache who let Roger Holland stay as an honorary police, despite a known conviction, because it had resulted in a probation order and was therefore "clearly not very serious".

Despite numerous attempts by the Chief of Police to bring the seriousness of Roger Holland's position, it seemed he would not be budged. He also stated that it would have been "impractical to have undertaken" checks by the Crown officers department. Once the oath of office had been taken he took the view that " the swearing-in of an honorary police officer before the Royal Court process is a solemn affair, and to ask the Court to review shortly after the swearing in an honorary police officer's suitability for continuing in office would have been a very serious matter", so the matter was not referred to the Royal Court, as it should have been.

Sir Philip has stated that "in hindsight", he made a mistake. Perhaps if he had a greater ability to listen to others - because there were enough voices sounding warning notes - and less reliance on his own judgment being correct, there wouldn't have been a need for hindsight. As far as he was concerned, he had made his statement, and that was an end of the matter.

Has he learned his lesson? He made no apology for a liberation day speech which not only didn't focus on the liberation, but also placed Jersey's reputation above that of the "alleged victims". Now technically that term is correct in legal terms, but that he should be unaware of the ambiguity of language - and the upset that would cause those who had been abused (as subsequent Court cases demonstrated) - is indicative of a very narrow range of sensibilities, and a considerable lack of empathy.

It is also worth noting that the current Bailiff Michael Birt, as Attorney-General after Sir Philip, didn't substantially improve matters because while checking was introduced, it was only for new officers, not retrospectively.

For those who berate the States for commissioning reports, when matters go wrong, these inquiries are extremely useful at bringing the facts into the public domain, and ensuring that the same mistakes do not happen again. I suggest readers look at the whole report. Here are some highlights.

---

http://www.statesassembly.gov.je/documents/reports/7537-3643.htm

On 8th September 2000, Mr. Roger Holland was found guilty by the Royal Court on two counts of indecent assault committed prior to 1992 and was sentenced to a three year probation order, which included a requirement to attend for a minimum of 12 months at Wolvercote Centre, United Kingdom, where he would receive compulsory treatment. The Court indicated that, if he did not co-operate fully with the programme, he would be brought back before the Court and would be likely to receive a custodial sentence.
 
In the event, on 2nd March 2001, Mr. Holland was brought back to the Royal Court which concluded that Mr. Holland had breached the three year probation order, by failing to abide by requirements of the Wolvercote Centre and to co-operate with treatment. The Court discharged the probation order and instead sentenced him to two years' imprisonment on each count concurrent.
 
The conviction of Mr. Holland made the public aware that he had a prior conviction for indecent assault in 1986. His apparent ability in 1992 to enter and then remain in the St. Helier Honorary Police whilst having such a conviction raised serious questions as to the procedures that had been followed in the recruitment and monitoring of this officer. It was considered in some quarters to be essential that the procedures followed, or not followed as the case may be, should be investigated in depth so that secure safeguards could be put in place to prevent similar occurrences in the future.

In 1989, a child protection team was formed in Jersey and staffed by members of social services. It deals with all types of child abuse, including sexual abuse. In 1991, a total of 80 cases were reported to the team; of these there were 11 prosecutions for sexual abuse and four for physical abuse. The States of Jersey Police has a Family Protection Team which was established in 1990. There is also a Child Protection Committee which consists of representatives of the key agencies and includes a representative of the honorary police. In 1993, a report recommended the use of video recordings in court hearings dealing with child abuse. Work on sexual offenders' legislation is currently underway.

The. Attorney General also had the authority to suspend any member of the Honorary Police from office, if, following consultation with the Connétable, he was satisfied that the conduct of the member fell short of the highest standard required of the Honorary Police. He also had the power to suspend a member of the Honorary Police during the course of an investigation into a complaint against that member.
 
In 1986, Mr. Roger Holland, who was 21 years old, and was an active member of a division of the St. John Ambulance Brigade, was arrested and charged with indecent assault on a minor who was mentally retarded. The minor had accepted a lift from Mr. Holland whom she knew from that Brigade.
 
4.1.2        The investigating officer, Detective Constable B. Duffy, recorded in his report that Mr. Holland, during the course of questioning, admitted to another indecent assault on a minor. This admission was followed up by the States of Jersey Police. However, the parents of the victim did not wish to pursue the matter as they wished to protect her from any distress that might be caused by the investigation process. Consequently, to date, Mr. Holland has not been prosecuted for this admitted assault.
 
4.1.3        The investigating officer advised Mr. Holland that he should seek medical help and noted in his report that Mr. Holland had sought psychiatric help of his own volition and had an appointment with Mr. J. Hollywood, Consultant Clinical Psychologist, prior to his appearance in Court.

4.1.8        On 15th March 1992, Mr. Holland submitted an application as a prospective candidate for Constable's Officer for the Parish of St. Helier. On his application form he declared that he had one previous conviction.

4.1.10      On 18th March 1992, the Town Greffier wrote to the Chief Officer of the States of Jersey Police Force requesting a criminal record search. There does not appear to have been a reply to this letter. However, as noted above, previous requests by the same Town Greffier following the application of Mr. Holland to become a member of the Parish Civil Emergency Team had been replied to in full.
 
4.1.11      On 19th March 1992, the Town Greffier wrote to Mr. Holland telling him that the Connétable considered that he would be unable to accept him as a probationary officer in view of the unfortunate incident which took place in 1986.

4.1.12      However, the letter also stated that if Mr. Holland wished to put forward an application to become a member of the Honorary Police he could always get a proposer and seconder and put forward his nomination at a Parish Assembly. This letter was copied to Centenier Patton, and Vingtenier Couriard.
 
4.1.13      On 9th June 1992 the monthly meeting of the St. Helier Honorary Police discussed, among other matters, recruitment. The minute of that discussion reads: Vingtenier Mahé reported that there was one recruit that was almost ready to join. He added that two candidates that had been turned down might stand for election. Vingtenier Holmes felt that if these candidates wanted to stand they should be allowed to and let the Royal Court decide if they were desirable. It was felt that it could harm recruitment if official candidates were beaten an (sic) election. No officers present were opposed to the election of the two men and if they were prepared to face the possible rejection of the court they should be allowed to stand. From the evidence submitted, this Committee is satisfied that one of the two candidates referred to was Mr. Holland.

4.1.16      On 7th July 1992, Mr. Holland, having been duly proposed and seconded, was elected unopposed at an Assembly of Electors to be a Constable's Officer for the Canton de Bas de la Vingtaine de la Ville. No record has been traced of who proposed and seconded him, and no witness has been able to tell this Committee who those people were. In accordance with normal practice, Mr. Holland, together with four other successful candidates in different Cantons and Vingtaines, was warned to appear before the Royal Court on 10th July 1992 at 10.00 a.m. in order to take the oath of office as a Constable's Officer.
 
4.1.17      On 8th July 1992, the Town Greffier formally wrote to Mr. Holland on behalf of the Connétable congratulating him on his successful election and reminding him to appear before the Royal Court on Friday 10th July 1992 at 10.00 a.m. to take the oath of office as Constable's Officer. Also on 8th July 1992 the Connétable wrote to the Attorney General, Philip Bailhache, informing him of the names of persons elected as Constable's Officers at the Parish Assembly on 7th July 1992, and notifying him that they had been warned to appear before the Royal Court. This letter was in standard form and was not accompanied by police records for any of the elected officers. A similar letter was sent to the Judicial Greffier so that he might sign the new officers' warrant cards.

4.1.18      The oath of office for a member of the Honorary Police is administered by the Royal Court after it has heard any observations of the Attorney General as to whether or not the oath should be administered. It is for the purpose of these observations (known technically as "moving conclusions") that the Attorney General requires to know whether the officer concerned has any previous convictions.
 
4.1.19      There was a conflict of evidence regarding the requirement to inform the Attorney General of the criminal records, if any, of prospective honorary police officers. The then Attorney General [Philip Bailhache] insisted that this was a matter for the Connétable, and correspondence from his successor supports that understanding.

However, in written evidence to this Committee, the then Clerk to the Attorney General paints a different picture. She stated that: As a matter of routine, all prospective honorary police officers were automatically checked out with the Criminal Records Office, both by the Greffier on behalf of the Town Hall and by myself on behalf of our department. My requests to the Criminal Records Office were made by telephone and that office would fax the records through to us with no other paperwork being created. Criminal records are not usually kept on file as a safeguard against a Data Protection breach. She also stated: Should I or one of my colleagues have omitted to do this, it would have been picked by the Attorney General or Solicitor General before going to the Samedi Court for the swearing in process.

However, in written evidence, the Attorney General  [Philip Bailhache] has challenged that recollection. He stated that it would have been impractical to have undertaken such checks as a matter of course because of the short time between receipt of notification of the elections and the appearance of the officer before the Royal Court.

4.1.20      Whatever the procedure in place at the time, the then Attorney General  [Philip Bailhache], in oral evidence, stated that he was not aware of Mr. Holland's previous conviction before he was sworn in.
 
4.1.21      On 10th July 1992 at 10.00 a.m., Mr. Holland was sworn in before the Royal Court as a Constable's Officer, the Attorney General having moved that the oath be administered.
 
4.1.22      That same day, an anonymous letter, dated 8th July 1992, was received at the Law Officers' Department. The letter read: Reading today's JEP. I notice with horror that a Mr. Roger Arthur Holland has been elected as Constable's Officer for the Parish of St. Helier.

My reason for being concerned is that Mr. Holland was recently convicted of an Indecent assault on a retarded child whilst he held a position of trust as a St. Johns Ambulance Instructor; surely people of this calibre can not be allowed to hold office in the Jersey Parish Police".
 
4.1.23      Under procedures in place at the time in the Law Officers' Department for receiving and distributing incoming mail, it is almost certain that this letter was not seen by anyone in authority until after the Attorney General had returned from the Royal Court that morning. In due course, the letter was passed to the Attorney General  [Philip Bailhache], who initialled it and his Clerk sent a copy of the letter under cover of a compliments slip to the Town Greffier asking for comment.
 
4.1.24      The then Attorney General stated in oral evidence to this Committee that this was the first time he had become aware of Mr. Holland's conviction.

4.1.26      The then Attorney General told this Committee that he could not remember whether he had any conversations with the Connétable regarding Mr. Holland but he had accepted the advice recorded in the telephone message that in all the circumstances Mr. Holland's membership of the St. Helier Honorary Police should not be opposed.
 
4.1.27      The then Attorney General  [Philip Bailhache] told this Committee that, in his view, the Magistrate must have decided that the original offence was clearly not very serious because it had resulted merely in a probation order. It was also in Mr. Holland's favour that the probation order had been discharged early on the grounds of good progress. Furthermore, the conviction had been six years earlier and, so far as anyone was aware at the time, Mr. Holland had not re-offended. The then Attorney General told this Committee that, in the light of these facts, even if he had been aware of them before Mr. Holland had been sworn in, he would very likely have agreed that the matter was in the past and would have moved that the oath be administered. This statement was made, however, apparently without the knowledge that Mr. Holland had confessed to another indecent assault at the time of his first conviction.

4.1.28      The then Attorney General  [Philip Bailhache] made the point to this Committee that the swearing-in of an honorary police officer before the Royal Court process is a solemn affair, and to ask the Court to review shortly after the swearing in an honorary police officer's suitability for continuing in office would have been a very serious matter. Furthermore, the threshold for making that petition would have been higher than if the question were asked before he had been sworn in.
 
4.1.29      In the event, the Attorney General  [Philip Bailhache] decided not to refer the matter of Mr. Holland's previous conviction to the Royal Court.
 
4.1.30      The then Attorney General  [Philip Bailhache] agreed with the suggestion made by a member of this Committee that, once an officer with a previous conviction had been sworn in, and therefore accepted by the Royal Court, the previous conviction from his record would be of no further account in determining the officer's suitability to remain in office. Thus at this point Mr. Holland had been accepted formally as a member of the honorary police, in spite of his previous conviction, and for all future purposes, his conviction was effectively regarded as spent.

4.2.7        It is clear from the evidence that this Committee has received that, if an Attorney General were notified that a candidate for honorary police office had previous convictions, it would be his responsibility to decide whether details of the conviction should be brought to the attention of the Royal Court. Among the factors that he would take into account in making that decision are whether or not the existence of the conviction might affect adversely the reputation of the Honorary Police generally, or compromise the officer's ability to discharge his police duties.

5.1.6        On 11th September 1994 there was an incident outside the Pomme d'Or Hotel in St. Helier witnessed by a Centenier and by an ex-United Kingdom police officer during which Mr. Holland was alleged to have assaulted a visitor to the Island.
 
5.1.7        On 16th September 1994 the Town Greffier wrote a letter to the victim of the alleged assault to establish the facts of the incident. The Town Greffier also wrote to the United Kingdom resident who had witnessed the incident. At the time of the alleged assault, Mr. Holland was working as a taxi driver and was not on duty.
 
5.1.8        On 29th September 1994 Mr. Holland was caught turning right against a traffic light. He was later fined £20 for this offence.
 
5.1.9        On 17th October 1994, after the Town Greffier had received information from the victim of the alleged assault outside the Pomme d'Or Hotel and the witness, the Chef de Police wrote to Mr. Holland. He told him that he had been directed by the Connétable of St. Helier to inform him that a serious allegation had been lodged with the Connétable relative to Mr. Holland's conduct.
 
5.1.10      On 18th October 1994, Mr. Holland voluntarily surrendered his warrant card.
 
5.1.11      On 21st October 1994 the Chef de Police wrote to the [new] Attorney General, Michael Birt, on behalf of the Connétable, to advise him of the alleged assault by Mr. Holland and requested that the Attorney General issue such directives as were appropriate.
 
5.1.12      The Attorney General, in a letter dated 26th October 1994 replying to the Chef de Police, pointed out that, in the reported case 'In re Pearce' (1987-88 JLR p.109), the Royal Court had emphasised the importance of keeping separate the investigation of the criminal and disciplinary aspects of a particular incident. In this instance the Attorney General decided not to request the States of Jersey Police to carry out a criminal investigation but decided that the facts should be investigated by the Connétable as a disciplinary matter. For that purpose, he recommended that the Connétable obtained the assistance of the States of Jersey Police.


5.1.19      Under the Honorary Police (Jersey) Regulations 1977, the Attorney General had the power to suspend Mr. Holland from office or require him to resign. The then Attorney General stated in his written submission that he was undecided at the time whether to require Mr. Holland to resign or to suspend him a period. His file note of a meeting held on 4th August 1995 with the Connétable and the Town Greffier stated: The Constable requested that I consider suspension. He said that C.O. Holland is a very enthusiastic member of the Force and has been already punished quite substantially by the long period of suspension. He believes that Holland has learnt his lesson and is much chastened by the whole experience. The then Attorney General decided to suspend him for three months.

5.1.23      While this matter was being investigated, the States in January 1995 appointed an independent Review Body, chaired by Sir Cecil Clothier K.C.B. Q.C., to carry out a "full and thorough" review of the policing system in the Island. Among those making written submissions to the Review Body was the Chief Officer of the States of Jersey Police. He gave a copy of his submission, in which he expressed concern about the election of Honorary Police Officers with criminal convictions, to the Attorney General.
 
5.1.24      As a result of reading this submission, the Attorney General wrote on 29th June 1995, to the Chairman, Comité des Connétables, giving new directions for reporting previous convictions and stated: With immediate effect I require to see the criminal record (if any) of all new applicants. In order to avoid misunderstandings, he also required the Connétables to provide specific written confirmation if there were no criminal record. The letter also set out a procedure for dealing with late nominations which might leave insufficient time for a record check to be completed. The Attorney General told this Committee that the reason this direction only applied to new applicants and not to re-elected officers was because of the difficulties I envisaged in applying the new rule retrospectively to persons who joined the Honorary Police under the old system and who had perhaps served conscientiously and diligently for many years.

5.1.26      In July 1996 the Review Body published its report entitled "Report of the Independent Review Body on Police Services in Jersey". The report contained various recommendations and also expressed serious concern about the election and re-election of officers with previous criminal convictions.
 
5.1.27      On 5th December 1995 Mr. Holland was re-elected as a Constable's Officer for the Canton de Bas de la Vingtaine de la Ville in St. Helier having been proposed by Vingtenier Haynes and seconded by Mr. K. MacCarthy, the caretaker at the Town Hall. In evidence to this Committee, Vingtenier Haynes stated that he had proposed Mr. Holland because he thought he had done a good job, even though he knew of Mr. Holland's previous conviction. He had also become aware of an allegation that Mr. Holland had committed a further indecent assault prior to joining the Honorary Police (other than the one that Mr. Holland had admitted to in 1986) but for which he had not been prosecuted. Mr. MacCarthy explained in a written submission that he is often one of the few people present at meetings of the Parish Assembly when nominations of candidates for the honorary police are being made and therefore is asked to second candidate's applications for office, which he does to assist the process.

5.1.33      On 23rd September 1997 the Chief Officer of the States of Jersey Police wrote to the Attorney General to express concern over, inter alia, Mr. Holland's election to the post of Vingtenier. In his letter he stated: I acknowledge that his conviction was 11 years ago and whilst the details of the incident are not at the serious end of a scale, the victim was a 14 year old girl who attended a school of Special Education as she had a mental age of 10 years. Furthermore, he admitted to another incident for which he was not charged and admitted to having a "problem for younger girls". With his letter, the Chief Officer sent copies of the States of Jersey Police report, a related witness statement and Mr. Holland's statement after caution recorded by the Police.

The then Attorney General told this Committee that this was the first occasion upon which [he] had seen the papers setting out the evidence which underlay Holland's conviction in 1986. Partly as a result of this, he changed the directive concerning the reporting of previous convictions of elected honorary police officers and wrote on 3rd November 1997 to all Connétables directing that all convictions of such officers should be reported to him whether they had been elected for the first time or re-elected. In that letter he stated I appreciate that, in the case of an officer with previous convictions who has behaved impeccably as an Honorary Police officer for many years, my judgment may be exercised in a different manner to that which it would have been had the officer been elected for the first time. Nevertheless I think it is important in the public interest that, even in the case of re-elected officers, his previous record, if any, be known so that a decision can be made as to whether it precludes him from office.

5.2.1        Mr. Le Brocq became Connétable just under a month after Mr. Holland's swearing-in. There was no formal system in place in St. Helier for briefing an incoming Connétable on his responsibilities. No doubt on policing matters Mr. Le Brocq was expected to know the ropes because he had a total of twelve years' service in the St. Helier Honorary Police. He also had a long discussion with the retiring Connétable. Mr. Le Brocq told this Committee that, in that conversation, Mr. Clarke said: Nobody can actually tell you what responsibility a Constable has, you actually have to sit in the chair to find out what it's about. He also advised that, in policing matters, if there should be any enquiries or any complaints reference the Honorary Police, you give it to the Chef to deal with. In particular, this Committee was told by Mr. Le Brocq that no mention was made of Mr. Holland in the hand-over discussions.

5.2.12      The Attorney General [Michael Birt] responded to the letter of 23rd September 1997, from the Chief Officer, States of Jersey Police, by changing the procedures for advising him on convictions of officers to be re-elected. In his reply to the Chief Officer he stated: In the light of the way in which this has arisen, I do not propose to take any action at this stage in relation to the Honorary Police Officers to whom you refer. In his evidence to this Committee the then Attorney General stated that he could not at that stage take retrospective action in respect of those officers who had already been duly sworn in. This was effectively the same decision that his predecessor [Philip Bailhache] had taken in 1992 following his receipt of the anonymous letter.

However, the Attorney General in 1997 did not make the connection that one of the officers referred to in the Chief Officer's letter was Mr. Holland whom he had suspended from office two years previously and therefore could not be described as having "behaved impeccably as an Honorary Police Officer for many years".

6.1.19      Centenier Hilton, having discovered from her dealings with Mr. Burnett that Mr. Holland had a previous conviction, wrote to the Attorney General on 29th July 1999 expressing her concern that a person with such a conviction could be a member of the Honorary Police. This was after discussing the matter with the Chef de Police, who had decided that he could not disclose anything to her because of the investigation which was taking place at that time.

6.1.20      On 20th August 1999 the Solicitor General wrote to Connétable Mrs. I.M. Le Feuvre, in her capacity as Chairman of the Comité des Connétables, asking her to nominate representatives to a committee of Connétables and Centeniers to be appointed by the Attorney General to investigate the allegations made against Mr. Holland. This was the standard form of investigation provided by the Honorary Police (Jersey) Regulations 1977.
 
6.1.21      On 17th November 1999 Mr. Holland resigned from the Honorary Police admitting to conduct unbecoming of the office of Vingtenier prior to his election in 1992.

8.3           In 2001, the States adopted a Law which has now been enacted as the Public Elections (Jersey) Law 2002. This Law includes a range of provisions regarding the conduct of elections, including specific provisions in Article 22 regarding the election of Centeniers (but not Vingteniers or Constable's Officers). These are directed primarily to ensure that, if a candidate for election as Centenier has been convicted of an offence of a kind listed in Regulations made by the States, that information will be reported to the nomination meeting. It will be the duty of the Connétable to seek out this information and see that it is reported to the nomination meeting, as well as to the Attorney General.

In practice, he could have only two days to obtain that information. This part of the Law appears to this Committee to be impractical given the time required to obtain criminal records, particularly from other jurisdictions. Article 22 of the Law is not yet in force and consequently Regulations have not been made. It should be noted that offences of a kind not listed in the Regulations would not be reported to the nomination meeting.