Contents

Senator Farnham will also be aware that the Chief Minister has just come back into the Assembly. Would he be minded, if the Chief Minister were to indicate he was willing to instigate an investigation as outlined by Deputy Bryans, then there would be no need for the continuation of this debate at present? May that be the information that he would be looking for from the Chief Minister?

The Greffier of the States (in the Chair):

Are you able to assist the Assembly, Chief Minister?

The Connétable of St. John:

I have to say at this moment in time it is difficult for me to commit definitely to such a review, but I am consulting with interested parties and I would certainly do so with Senator Breckon. If Members were to make that proposition to move to the next item, I am sure that Senator Breckon and myself could sit down and find that way forward, although perhaps in the course of the next half an hour or so I might be able to give a more definitive comment. Of course, Members will be aware of the comments that I made in my speech with regard to the Jersey Financial Services Commission.

[10:30]

I have no doubt but to stand by those comments, but I also hear that a number of Members have concerns with regard to their role, which I personally think are unfounded but it might be that if an independent were to look at it Members might be more satisfied. But I am not quite in a position to be able to commit fully to that.

The Greffier of the States (in the Chair):

Do you wish to make any proposition, Senator Farnham?

Senator L.J. Farnham:

Well, I know the Chief Minister is trying to be helpful but I think it really needs more than half an hour. I think some serious conversations need to take place between Senator Breckon and the Chief Minister, so I am going to propose we move on to the next item.

The Greffier of the States (in the Chair):

Well, traditionally the proposition is allowed if a certain number of Members have spoken. We have not had a large number of Members but I do sense a mood that Members may wish to at least address this issue, so I am going to allow the proposition to be put because, as ever, it is a matter for Members to vote and not for the Chair to decide how the States of Jersey decides to proceed. So we will allow the vote on the proposition of Senator Farnham that the Assembly now moves to the next item, which is a matter that must be put without debate. Therefore, I assume you wish the appel, Senator Farnham?

Senator L.J. Farnham:

Appel, please.

The Greffier of the States (in the Chair):

If Members are in their designated seats, I will ask the Greffier to open the voting.

POUR: 19	CONTRE: 24	ABSTAIN: 0
Senator P.F. Routier	Senator A. Breckon
Senator S.C. Ferguson	Connétable of St. Clement
Senator A.J.H. Maclean	Connétable of St. Peter
Senator B.I. Le Marquand	Connétable of St. Mary
Senator F.du H. Le Gresley	Connétable of St. Martin
Senator I.J. Gorst	Deputy R.C. Duhamel (S)
Senator L.J. Farnham	Deputy R.G. Le Hérissier (S)
Senator P.M. Bailhache	Deputy J.A. Martin (H)
Connétable of St. Helier	Deputy G.P. Southern (H)
Connétable of St. Lawrence	Deputy of Grouville
Connétable of St. John	Deputy J.A. Hilton (H)
Connétable of St. Brelade	Deputy S.S.P.A. Power (B)
Deputy J.A.N. Le Fondré (L)	Deputy S. Pitman (H)
Deputy of Trinity	Deputy K.C. Lewis (S)
Deputy A.K.F. Green (H)	Deputy M. Tadier (B)
Deputy J.M. Maçon (S)	Deputy T.M. Pitman (H)
Deputy G.C.L. Baudains (C)	Deputy E.J. Noel (L)
Deputy S.J. Pinel (C)	Deputy T.A. Vallois (S)
Deputy R.G. Bryans (H)	Deputy of St. John
	Deputy J.H. Young (B)
	Deputy of St. Mary
	Deputy of St. Martin
	Deputy of St. Peter
	Deputy R.J. Rondel (H)

Senator I.J. Gorst:

I appreciate that it looks extremely strange because Members have just decided not to move to the next item, but I am now in a position to [Laughter] say that if the Assembly ...

The Greffier of the States (in the Chair):

Well, I think the decision has been taken, Chief Minister. We must carry on with the debate. Deputy Le Fondré.

Could we not hear what the Chief Minister had to say because it sounded quite important?

The Greffier of the States (in the Chair):

I could grant the Chief Minister leave, but he has already spoken and the Assembly has just decided to carry on with the debate but I will, in the interests of good order, briefly allow you, Chief Minister, just to say what you wish to say. I am not sure it is really going to help at all.

The Connétable of St. Lawrence:

I am quite happy not to speak if Members do not wish me to speak. I have spoken a lot, but what I wanted to say was that I would be content to go away and do such a review as Members have indicated. As I indicated, I believe that such a review [Approbation] will vindicate the position which I outlined yesterday and it would give Members confidence that an independent was able to do so.

1.1.7 Deputy J.A.N. Le Fondré:

We are not exactly covering ourselves in glory at the moment. We knew it was going to be a difficult debate today and I think the comments from Senator Le Gresley have been interesting. I shall pick up on a couple of those almost straight away. Comment 1. This proposition was lodged on 26th July. We are now at the end of September, and so for a member of the Council of Ministers to turn round and say various bits about information or perhaps we should have done a review or whatever - I cannot remember the exact expression - to me surely it should have been a debate held by the Council of Ministers some time ago after the sentencing came through to show leadership. Because the point here is that if at the end of the day we just reject this proposition on the basis of that we need more information and there is no mechanism to go away and seek that further information, we have completely failed. We are also getting down to the point where we are making a legalistic decision versus a political decision. I will come to that a bit later on and I am afraid it is a slightly longer speech than I was hoping because of where we have got to today. To start on the actual parts of the proposition, I am making an assumption that we are able to vote on the 3 separate sections, that it is a separate vote for (a), a separate vote for (b) and a separate vote for (c).

The Greffier of the States (in the Chair):

Well, I do not think you should make that assumption. It is a matter for the Senator. I understand he has not yet made that decision.

Deputy J.A.N. Le Fondré:

Thank you. I will lay my position on an assumption of that approach. If members of the public listening have not appreciated this, States Members were given the opportunity for a briefing from members of the J.F.S.C. (Jersey Financial Services Commission) and from the Chief Minister on Monday. I have to say I obviously have the highest regard for the individuals that gave us that briefing, no question about it. To analyse the 3 parts of the proposition backwards, I am going to accept the advice about the investment compensation scheme or the potential one and the fact it would potentially at this stage put us in a competitive disadvantage to have it if other jurisdictions do not have it. If I am given the opportunity I would not vote for part (c). There is a caveat to that, as ever. In relation to part (b), in terms of taking the money from the J.F.S.C., I would support the J.F.S.C. on the principles of it if it would damage the independence of the J.F.S.C. then I accept that argument. Then that means I am going to focus on part (a) and in this aspect, at this point I am fully in support of Senator Breckon. Now, the decision I would have to make if it is an all vote, in other words (a), (b) and (c), is whether my support for part (a) outweighs my lack of support for (b) and (c). I think probably yes, but I have yet to make that decision. I was working on the assumption of 3 separate votes. In terms of precedent, the doors for compensation as a principle were opened by the Minister for Economic Development in 2009, I would argue, because up to that point that was when compensation first came in with the Alternate scheme. It may not have opened the door very much but it did open the door. To remind Members, the Minister stated it was always intended to deal with exceptional cases as and when they arose on a case-by-case basis. To me, this is definitely an exceptional case. Now, there will always be a risk of setting a precedent, but again there are extraordinary circumstances that attach to this matter, not least of which is the involvement of a judge in perpetrating a fraud. If the Council of Ministers is worried about the larger case at some point in the future, that will surely be dealt with on the circumstances of that case at that time. If that entity - the hypothetical one that might cause problems in the future which we talked about on Monday - were regulated, for example, then potentially with the basis of Alternate already in the background we already have a problem. I would really hope we will never see - let us call it - another one of our own involved in fraudulently promoting an investment scheme. We certainly heard that Sunstone Holdings Limited was not regulated, but Goldridge Stone was. I assume on that basis that what I will refer to as the principals, of Goldridge Stone were also regulated. To quote again the Minister for Economic Development, who is quoting the court about Alternate: “This recommendation is made because it is not acceptable that unsophisticated small investors in Jersey can be so badly advised. The advice given was dishonest.” You might say in the context of today it was almost fraudulent: “It was misleading.” While I could accept that the vehicle being used, Sunstone Holdings Limited, was not a regulated entity, it is clear that the principal persons of that vehicle were regulated under the auspices of Goldridge Stone and indeed, as we have heard, were under enhanced supervision when this all took place. I have no issues with regard to the regulator, but it is on the grounds I have just mentioned that, in my view, we start moving into a political decision rather than a strict legalistic decision. One last quote for Members to consider, again from the court, is in the reports. On page 13 of the proposition that we are debating: “One of the reasons these offences are so serious is because it is vital that those who invest with professionals [and this is the crucial bit] whether they are regulated or unregulated in their business must have confidence that they are being given accurate and honest advice.” I repeat: “Whether regulated or unregulated.” To me there, and that is speaking as a layman, the court is breaking down the very fine distinction between the regulated and unregulated entities here. Just to pick up on the words of Senator Le Gresley, if Members turn over the page on that quote, from the bottom of page 13 and going over to page 14: “These victims, these investors who lost their money, were ordinary people whose lives have been altered for the worst. These were not people who could afford to lose the money that they lost.” One of the problems we do have in debates is that sometimes we pick on the extremes, the person investing half a million, to justify the totality of the argument. We are talking an extreme example there. Those words I have just quoted are from the court. One of my perceptions is that investors will have been persuaded by previously good experiences with Goldridge Stone. It seems very likely, from what we have heard, that the principal persons of Goldridge Stone were using their positions and their knowledge obtained at that entity to influence investors to invest in the scheme. Goldridge Stone were, as I understand it, independent financial advisers. So I think the investors would probably be justified to say: “Well, we did take independent advice” because that was the role of Goldridge Stone if they were acting properly. The problem is it was not Goldridge Stone they were dealing with and at what point were they aware of that? I have covered, therefore, the point that we should not be assisting someone who recklessly invested £500,000. I think in a scheme without the proper advice that is an extreme argument and I think I have quoted the court sufficiently on that. But also if you stand back, since when is justice ... it is interesting, it was a lawyer who put this argument to me relatively recently. When is justice determined upon the wealth or lack of wealth of an individual? They either deserve justice or they do not. Certainly, Senator Breckon is not seeking compensation of £500,000 for that individual. He is seeking approximately £48,000 for that individual, so that individual has still lost a considerable amount of money. Let us go back to the remark made by the Chief Minister yesterday. Taxpayers should not be used to provide what he inferred - and I think we have repeated it today - was effectively an insurance policy that would lead investors to be less careful in the investment advice they sought. Now, I am sure that that person who apparently lost £500,000 will be so overwhelmed by getting less than 10 per cent of their money back from a fraudulent scheme that by having lost over 90 per cent of their funds they will be rushing out to find a risky scheme to invest in and to go through the whole tortuous process again. I somehow do not think so. People do not willingly throw their money away. To be clear, if this was just a risky investment that had gone down the tubes due to changes in the market, I would have no problem in rejecting the whole proposition. But to me there are at least 2 factors here. It was fraud and it was fraud perpetuated by individuals who in a different guise were regulated. They had been labelled as being fit and proper people and there was also the involvement ... and I have to say Mr. Christmas. I do not know if I can use that term, but it is in the public domain.

The Greffier of the States (in the Chair):

Former magistrate I think you are referring to.

Senator B.I. Le Marquand:

Could I point out he was never “the magistrate” and the term “the former magistrate” ... [Laughter] He was the former assistant magistrate.

Deputy J.A.N. Le Fondré:

A former assistant magistrate then. Thank you for the clarification from a former magistrate. We laugh, but it is a pretty serious comment. That gentleman, for want of a better expression, was an agent of the state in a wide sense. He was meant to be a person of the highest standing and he abused that position. We heard on Monday, because I asked the question, that he prodigiously broke the judicial code. His position, and I will use the word, as a judge - I am sure Senator Le Marquand will correct me but as a layman he is a form of a judge - was used to promote a fraud. Such was the setting of that person’s moral compass that it has been reported he continued to claim his judge’s salary certainly from the date of arrest, possibly even to the first few days of when he was in prison. According to the BBC website when I Googled it to refresh my memory, this was to the tune of £500,000 over 4 years after he was arrested. There is a message in there which is not very palatable, I have to say. There is the issue about innocent until proven guilty, but there is another message in there you can apply. I am certainly curious as to the potential rumour - I do not know if it is fact - that that individual will still be entitled to claim his pension and whether or not it can be seized.

[10:45]

The issue therefore is, if the first point is true, the second point should definitely be true, but who does the seizure? I would think that a number of the investors would be very leery about taking any private action to the courts again principally because of a report in the media of an individual I understand to be a lady, who brought a civil action against Mr. Christmas. I believe it was after he had been found guilty. She withdrew the civil process and I believe was sued by Mr. Christmas for his legal costs. For the purposes of this debate, it does not really matter if my last couple of comments are 100 per cent accurate. If they are, to me it just moves that behaviour beyond absolute abhorrence. In other words, the message will be it is okay to defraud people, including the terminally ill. You will go to jail for a period of time. You can continue to claim your salary. You can potentially have your pension when you come out and ultimately, if that is the case, that pension will have been paid by the taxpayer, i.e. you could argue that the taxpayer will be compensating the fraudster. If that is the case, i.e. that the taxpayer is happy to pay the fraudster but not to compensate his victims, then surely that cannot stack-up. We have asked the issue of whether they form part of the assets. It depends. Let us get back to the thrust of that point. This was a judge involved in conning local people and that is what to me makes this case most unusual and is why that tips me into the point of supporting part (a) of the proposition. I will declare, and when I say I declare an interest, I declare an experience. I had occasion to interview one of the fraudsters in a completely different capacity and when I look back at my notes, because it was in 2004, I could have had him as a tenant. In that capacity of a conversation, the conversation went along the lines at the end: “We are doing very interesting things in America with property and it is looking very good.” Now, the point was I had had successful dealings with Goldridge Stone previously, so even though I would certainly never have had the cash that it would appear was required, my experience at that point was I had a good experience of Goldridge Stone. I did not remember the gentleman concerned and there was a little hook in the conversation at the end. We have heard conversations about how the fraudsters had got hold of their victims ultimately and I think that might have been a classic example. There is the issue there and that is why I say we have a legalistic position of Sunstone Holdings Limited not being regulated to what is a political decision which takes in a variety of factors. As to where the money should come from, is that not where our contingencies kick in? A couple of weeks ago we were given a brief rundown of how some of those monies have been spent. It ranged from £20,000 for uniforms for the Band of the Island of Jersey. We spent something like £30,000 in giving funds to the Iron Duke. I know we have been told that one department at some point has spent £50,000 or £60,000 on an additional P.R. (public relations) adviser - I do not know if that was out of contingency - over and above the advice they received from the Communications Department. So we spend money in all sorts of ways and I am pretty sure that the investors who were conned and defrauded would argue that their cause is somewhat more deserving than the need for extra spin-masters. I do not like that language but that is the way some people will look at it. I was reminded of a quote and we have included it in the Machinery of Government Report. It is about ethics and it comes from the Institute of Chartered Accountants for England and Wales. What it says is: “Ethics is about principles, values and beliefs [you can look it up on their website if you wish] which influence judgment and behaviour. It goes beyond obeying laws, rules and regulations. It is about doing the right thing in the circumstances.” This is a continuation of the quote: “Sometimes it is easy to assume that compliance with legislation, regulations and policies and procedures equates to doing the right thing, but unfortunately that would not always be the case. By its nature, a compliance approach to decision-making cannot cover all types of situations and eventualities. Even when a specific circumstance is addressed by a rule, compliance is often with the letter of the rule, not its spirit.” That comes back to the point about legalistic decision versus a political decision. It comes back to the point that Sunstone Holdings Limited was not regulated and, therefore, in the view of the Council of Ministers, there should not be compensation, yet the principal persons of Sunstone Holdings Limited were approved persons in a different guise. So legally they were not regulated; that is the letter of the rule. I am afraid I am looking at the spirit. If we are meant to be here to directly help people, is this not firmly an example of when we should be helping people? People who are likely to have paid their taxes, not demanded anything from the States of Jersey probably, who will probably have contributed in all sorts of ways to this Island community. Are they not as equally deserving of our support, not just the mouthed words or the expressed words of sympathy, but our tangible support at the end of what would be an extremely damaging and stressful part of their lives. The point is what happens if this proposition is rejected? Do they just walk away in disgust where there is no other port of call? That is a political decision, not a legalistic decision. Approximately 3 years ago I voted against the increase of G.S.T. (Goods and Services Tax) from 3 per cent to 5 per cent. My rationale at the time was: How could I justify to my electorate, to the taxpayer, about taking more money from them when the promised savings were not, in my view, being delivered? In other words, we are not operating as efficiently as we should have been in terms of administration of services and all that stuff. I look at this today and say: How can I look at the people who have been defrauded as a result of this and look them in the eye and say: “I cannot help you today. Yes, you have nowhere else to go. Yes, you were influenced by persons who in another guise were regulated and who were regulated independent financial advisers [as I understand it; I might be wrong there] and/or you were influenced by the good name of a judge, a person who was held in the highest regard in this Island, who is employed in the broadest sense by the state, and yet I cannot help you.”? I am afraid on that basis I cannot do that, so I will be supporting part (a) of the proposition. I would prefer not to support (b) and (c) and I would ask if Senator Breckon would consider taking it in 3 parts. If not, I may well end up supporting the whole proposition.

The Connétable of St. John:

Given the Chief Minister’s comments a few moments ago, can I propose that we move on to the next item?

The Greffier of the States (in the Chair):

There is nothing that prevents anyone other than the proposer moving again the same proposition. I think circumstances may have changed to allow the proposition to be put in the sense the Chief Minister has spoken, so I will allow the proposition to be put.

Senator L.J. Farnham:

If the proposer could briefly say something it might be helpful.

The Greffier of the States (in the Chair):

No, no debate is allowed on this proposition under Standing Orders, so I will invite Members who may be in the ante-rooms not expecting the move to the next item to return to the Chamber. The vote is whether or not to move to the next item of business. I assume you wish for the appel, Constable?

The Connétable of St. John:

Yes.

The Greffier of the States (in the Chair):

If Members are in their seats, I will ask the Greffier to open the voting.

POUR: 30	CONTRE: 11	ABSTAIN: 1
Senator P.F. Routier	Deputy R.C. Duhamel (S)	Senator A. Breckon
Senator S.C. Ferguson	Deputy R.G. Le Hérissier (S)
Senator A.J.H. Maclean	Deputy J.A. Martin (H)
Senator B.I. Le Marquand	Deputy G.P. Southern (H)
Senator F.du H. Le Gresley	Deputy S. Pitman (H)
Senator I.J. Gorst	Deputy T.M. Pitman (H)
Senator L.J. Farnham	Deputy E.J. Noel (L)
Senator P.M. Bailhache	Deputy of St. John
Connétable of St. Helier	Deputy J.H. Young (B)
Connétable of St. Clement	Deputy of St. Mary
Connétable of St. Peter	Deputy of St. Martin
Connétable of St. Lawrence
Connétable of St. Mary
Connétable of St. John
Connétable of St. Brelade
Connétable of St. Martin
Deputy of Grouville
Deputy J.A. Hilton (H)
Deputy J.A.N. Le Fondré (L)
Deputy of Trinity
Deputy S.S.P.A. Power (B)
Deputy K.C. Lewis (S)
Deputy T.A. Vallois (S)
Deputy A.K.F. Green (H)
Deputy J.M. Maçon (S)
Deputy G.C.L. Baudains (C)
Deputy S.J. Pinel (C)
Deputy R.G. Bryans (H)
Deputy of St. Peter
Deputy R.J. Rondel (H)

Connétable D.W. Mezbourian of St. Lawrence:

Before we move on, I believe that Deputy Le Fondré may have inadvertently misled the House when he spoke because I believe I heard him say that the former assistant magistrate was employed by the States of Jersey. I believe that is incorrect.

Deputy J.A.N. Le Fondré:

Sorry, I had said in the widest sense of the state.

That is not what I heard, but he was not employed by the States of Jersey.

Senator B.I. Le Marquand:

May I clarify that because I held ...

Deputy T.M. Pitman:

He is still a crook.

Senator B.I. Le Marquand:

... a similar office. He is a public office-holder.

The Greffier of the States (in the Chair):

Public office-holder, very well.

Senator B.I. Le Marquand:

Public office holder is the correct term.

2. Justice Policy and Resources: Responsibility (P.92/2013)

The Greffier of the States (in the Chair):

The Assembly having agreed to move to the next item, we come, therefore, to that item, which is Justice Policy and Resources: Responsibility, and I ask the Greffier to read the proposition.

The Assistant Greffier of the States:

The States are asked to decide whether they are of opinion that, within the Executive branch of Government, the Chief Minister is responsible for justice policy and resources, as clarified in the accompanying report.

2.1 Senator I.J. Gorst (The Chief Minister):

Senator Farnham lodged a proposition last November which asked Members to decide whether they wished me to investigate the possibility of establishing appropriate Ministerial oversight of the justice system. That proposal was considered in February and Members decided unanimously in favour, asking that I report to the Assembly with a recommendation by the end of July. The proposition in front of Members today recommends that within the Executive branch of Government the office of Chief Minister should be confirmed as being responsible for justice policy and resources. I would remind Members that it is not me as an individual but it is the office. Looking back to 2005, it seems that during the discussions which preceded the change to Ministerial government there was an assumption that the Chief Minister would act as a link between Executive Government and the legal services departments. However, this was not fully implemented and these responsibilities were, therefore, absent from the first report to the Assembly regarding Ministerial responsibilities as presented in March 2006. Today, therefore, presents a new opportunity to ensure that these responsibilities are clarified. The Council of Ministers considered this matter, as I said, in early July and decided that it should be proposed that the Chief Minister be responsible for justice policy and resources as detailed in the report accompanying the proposition. It was felt that this proposal would have the advantage of placing justice policy at the heart of government while also delivering the most economical solution. It was also felt that it was desirable at present to propose an appropriate separation between the enforcement responsibilities of the Home Affairs Department and the wider oversight of the justice portfolio. Therefore, this proposal does not change the responsibility of the Minister for Home Affairs or his department. This proposal is also not intended to affect the existing framework within which relevant officers and arm’s-length bodies perform their statutory functions. In addition, the proposal recognises the importance of upholding and defending the continued independence of the Judiciary, prosecutors and data protection authority. I hope that Members will decide in favour of this proposition and, if they do, there will need to be provided sufficient support to the Chief Minister and Council of Ministers to ensure that the public interest in the advancement of justice is not compromised. However, given the relatively modest level of resources required and the need to operate within the limits set within the Medium-Term Financial Plan, the Chief Minister’s Department will seek to put in place the required resources from within existing limits. Therefore, I hope that Members will support this simple economic but important proposal as an appropriate means of clarifying Ministerial responsibility for justice matters.

The Greffier of the States (in the Chair):

Is the proposition seconded? [Seconded] Does any Member wish to speak on the proposition? Deputy Young.

2.1.1 Deputy J.H. Young:

I would like to raise one matter in respect of this proposition. That is paragraph 3(vi) of the report, which talks about the positions of accounting officers in the various legal departments. I have raised this before. The various legal functions in this Island cost around £30 million a year. At the moment, accountability for these matters, they are treated as a non-Ministerial department, which I think in all practice means that it is difficult to get clear answers on the use of those funds. I think £30 million is a substantial amount and I would be much more comfortable if the Chief Minister’s proposition was saying, while he is going to have accounting officers as officers, there is going to be this clear link to ensure that the resources our legal functions use - which is, after all, the way in which the Chief Minister is going to discharge this function - will be, managed and accountable through his department. I think the report on page 3 suggests to me that it will not, although there is a certain ambiguity about it, but I would like the Chief Minister to clear that up that he will be taking responsibility for those resources.

[11:00]

2.1.2 Deputy S. Pitman of St. Helier:

I strongly believe that the Machinery of Government Review with proposals to seize the dual role of the Bailiff should have been agreed upon before this proposal was brought to the Assembly for one reason alone. There is, unfortunately, much deference among politicians to those who hold the office of the Bailiff and the Deputy Bailiff within this Chamber. It is frighteningly so, with the consequence of the Judiciary not being held to account to any effect. This makes the Judiciary untouchable and very powerful. That deference is very evident in the Chief Minister, in my view. As I recall a few months ago, having met with him and his Assistant Minister regarding some failings with the Judiciary and the legal system, 3 weeks later I asked him for a written response as he had promised. His reply was that he could not go against the word of the Bailiff. I cannot see this deference being free from consecutive Chief Ministers and Assemblies because of States Members’ traditional perception of how we should respect the Bailiff. I now have some questions for the Chief Minister. In his report he quotes: “The Council of Ministers considered this matter and decided that a clarification should be proposed to the States Assembly that within the Executive branch of government the Chief Minister is responsible for justice policy and resources.” Firstly, I would like to know what expert advice was given to the Council of Ministers for them to reach this decision. The second question is, and I quote from the report again: “In the current fiscal and economic cycle, it was not felt to be an appropriate time to consider establishing a new department with the consequent resource implications.” Given the seriousness of the issue of the delivery of justice and the public perception of it, and that an effective and fair Judiciary should go hand-in-hand with a healthy democracy, there is absolutely no justification for that reason, for financial reasons that a government department should not be created for this post. If this is not possible, there is no way again that this proposition should have been brought to this Assembly. It really does not demonstrate that the creation of this post has been given deep consideration of its implications. I would, therefore, like to know what expert advice was given to the Council of Ministers for them to reach this decision. The last question I have is: Once the Minister for Justice post is in place we will inevitably see questions and propositions put to the Minister for Justice and the Assembly. I would like to know how it will be human rights-compliant that the chief judge will be deciding on their validity.

2.1.3 Deputy J.M. Maçon of St. Saviour:

A question from me. I am generally supportive, but what I would like to ask the Chief Minister is, in assuming this role I think there needs to be a change in that there needs to be better clarity or dissemination of information when judgments are given within the Island and various statements are made. For example, in our previous debate we were talking about a judgment that recommended a compensation scheme being set up in Jersey. When those types of judgments are made, I think when this is passed over to the Chief Minister can he explain whether he would be in agreement that there needs to be a better way of informing States Members about these judgments? You can turn around and say: “Well, States Members should just sit down and read them” but we know we all have a lot of other pressures and a lot of other reading that we have to do. Is there not a way in that we could have a better mechanism when these judgments come forward, when the practitioners - which are the judges - come up with problems within the law, where they clash? We often hear that they tend to go into a vacuum when they are not dealt with. Ideally, yes, this is what this new role should be dealing with, but again how can that mechanism perhaps be brought into other States Members so that we do not have this type of vacuum when these judgments are made? I think there does need to be a better relationship between what happens at the end of a court judgment and how this Assembly reacts to that. I would just be interested to know whether the Chief Minister supports that and would be looking to facilitate something like that.

2.1.4 Deputy R.G. Le Hérissier:

I suspect this has not arisen because of talk of fine principles about the administration of justice but because the Chief Minister, faced with the Troy Rule, faced with the establishment - which we saw the culmination of yesterday - of a Minister for External Relations, has been faced with juggling positions within a very limited number of positions. Therefore, he has had to engage in an odd situation where he has had to continue to concentrate power within his office. We saw this happen recently when he took over responsibility for financial industry matters. Showing the remarkable superman that he is, by a sheer little motion he is now seeking to add justice policy. He is travelling the world, although he may minimise that now given he has a Minister for External Relations. He is travelling the world on our behalf, opening all sorts of shows and thinking big thoughts. I think all this is done in a way for the wrong reason in that it has had to be done, as I said, to deal with the Troy Rule and the fact that he may get a backlash there. What it does is not only concentrates power and gives him a remarkably broad portfolio, but it also concentrates power in the justice policy side because it could be argued that it is important that there be a Minister for Home Affairs. Although he has been labelled here as the implementation Minister, it could be argued he should serve as the foil in some respects. He may not serve as the foil, but he should. I know Senator Le Marquand has taken a deep interest in justice and criminal justice matters, for example. I just think it is wrong. I think we need people who can provide checks and balances within the Council of Ministers, who can lead the discussion, because as Deputy S. Pitman has mentioned, there is incomplete work. There is no doubt that the work started by the Royal Commissions on aspects of Jersey law in the 19th century, that work ... and I was listening with interest to the Falkland Islands speaker on Radio Jersey this morning talking about his possible dual role in a legislature of fewer people than ours. That work has yet to be completed and it is the work of separating the powers, as Deputy S. Pitman mentioned. I am afraid, much as we have a great love of the Bailiff and the way he performs his role, it has to be completed. It is the elephant in the room as far as I am concerned of this proposal that we will not face up to that and we will not bring it to completion. I am afraid this is, in my view, a proposition that has arisen from the most practical of reasons but one which has enormous implications that have not been worked out within the proposition. For that reason, I do not think, as it stands, it should go forward.

2.1.5 Deputy M. Tadier:

I think Deputy Le Hérissier has hit part of the nail on the head. Looking back on what we agreed with Senator Farnham’s proposition that was lodged at the end of last year, Senator Farnham asked for essentially the establishment of a new Ministerial office, the Minister for Justice in Jersey. He did not ask for the Chief Minister to take on extra powers to administer justice in Jersey, which presumably in some unspoken way he already does. This seems to be a formalising of that power, consolidating of the powers. I am just not sure if it is what was originally envisaged by the Senator who lodged the proposition, albeit that he did ask for the Chief Minister to investigate the possibility, but that is what one has to do as a Back-Bencher. You can never ask for something to be established, otherwise it will not be won necessarily. I am just questioning. This is not what was asked for. We want a Minister for Justice specifically with a specific remit which would come out from the other competing pressures that the Chief Minister’s Department has to deal with. Of course, this is going to mean extra resources for the Chief Minister’s Department, an ever-growing area which is already a significant department. That is my first concern. The other reason for this is clearly, like myself, the Chief Minister wants to and has given a pledge to address the difficulties that ordinary people in Jersey have in facing access to justice at an affordable price, whether that be on legal aid, which we know is not necessarily affordable anyway because legal aid is not normally free it is contributory, and even if one is paying a quarter of the fees, that can still be exorbitant for the ordinary person. If the Chief Minister wants to tackle this, clearly, he needs to have a mandate to do that and so I suspect that is part of the other reason that the Chief Minister wants to be given the nod from the Assembly to say: “This is your area, you can now go off” because he is going to be dealing with significantly entrenched positions when it comes to taking on the legal community; very complex issues that he is going to have to deal with. On that, this is slightly off on a tangent, but I would like the Chief Minister to give a commitment that whatever we decide here today, if he is seriously setting up a Jersey Access to Justice group, as I believe he is, he needs to be bringing this back to the Assembly, because we cannot simply have him setting terms of reference, setting the membership of this group that is going to look at affordable access and other issues relating to legal access, without bringing it back to the Assembly. It cannot be a closed-shop - as I have in front of me - of simply the Chief Minister, the Law Officers, the Judicial Greffe, the Law Society, the Bâtonnier, with the addition of a Citizens Advice Bureau. We need at the very first instance to make sure that when addressing the very urgent issues of access to justice that we have stakeholders, interest groups and not simply a closed-shop who will be coming at it from a certain vested interest. So I will ask the Chief Minister, he must bring this back to the Assembly and, if not, I will ask that he does that in the form of a proposition. Deputy Pitman, as uncomfortable as her words may be for some of us - and I raised this the last time in Senator Farnham’s speech - there clearly is an issue here with the dual role of the Bailiff. Now, I do not get too hung up on this, I think the writing is on the wall, I think that those in the Chief Minister’s Department know in their heart of hearts, within the next 5 years something has to give. It is simply not sustainable when one is trying to present oneself as a modern jurisdiction trying to do business with the international community, that you have this very archaic, and at the very least bizarre, role especially when you are bringing justice more into political control or, rather, giving it official Ministerial control. But that does make me question whether that is the reason why we are not setting up a full office for the Ministry for Justice. Is that because it would create an obvious tension there? How can you have a Minister for Justice standing up being presided over by a judge and the judge is telling the Minister for Justice when he can and cannot speak, which propositions the Minister for Justice may bring that relate to justice administration in the Island? It could possibly work. It makes it very uncomfortable, and perhaps this is why we are easing this in with the Chief Minister’s responsibility, just to set the principle that the Chief Minister’s Department is the one that should have responsibility and, at some future date, will be creating a separate role for the Minister for Justice. It seems that is what we should be doing. If we are going to do it at all, why do we not just go straight to the position of creating a Minister for Justice? If the Troy Rule is the issue, as Deputy Le Hérissier here has suggested, why was there no consultation with the Chief Minister on the specifics when the Machinery of Government review was going on?

[11:15]

We were aware that the limitations of the Troy Rule would have an impact on the Council of Ministers numbers, we know that if you reduce down to 42 or 44, the limitation - especially if you are keeping Assistant Ministers in their current format - puts pressure on, especially when we have already decided to have a Minister for External Relations in its own right. I notice that was updated very quickly on the website yesterday. I could not find the vote quite so quickly, but I certainly found the updated position, which is a credit to our Greffier staff.

The Greffier of the States (in the Chair):

It is there now, Deputy.

Deputy M. Tadier:

Thank you, Sir. I have got to find that one individual who was not there to vote for me, Sir, and give them some stick; it would have made all the difference. So the question that I think then has to be asked: what is the logic behind this? Are we wanting a full Minister for Justice? On the Machinery of Government review side of it, why were there no steps? Why were we not told: “This is the plan, we want a Ministry for Justice, we want to create a Ministry for External Relations, we want this ...”. We could have sat round the table and said: “What you need to do ... how many Ministers do you need? Tell us what you need. Do you need your Minister for Children? Do you need your Minister for Disability? Do you need your Minister for Discrimination?” After that, let us decide how many posts we need. You may need to get rid of some of your Assistant Ministers, elect all of these posts directly and then you can have as many Ministers within the Troy Rule as we want. The trouble is we do not know where we are going with this. It means that if we are shoe-horning new Ministerial positions in and putting them in the Chief Minister’s Department when they should be in a completely different department, it does not sound like we are doing it quite the right way. It sounds like a fudge to me. I have concerns, but I do not have concerns with the principle of it. We need to bring the justice remit, where it is quite relevant, into the political field and therefore I will certainly give support to the principle of that. I am just concerned that this proposition is not the right way to do it.

2.1.6 Deputy G.P. Southern:

I am incredibly relaxed about this actual measure because in my time in the States of Jersey I was, for my sins, on the Home Affairs Committee as it was, and the uncertainty and the absence of clear responsibility and communication lines was obvious in that particular Committee from day one. A move to clarify that situation and have responsibility clearly identified and routes for communication clearly identified in one particular place must surely be an improvement. I briefly join in with the comments of others that we should at the same time be examining the dual role of the Bailiff as a matter of some urgency. The previous speaker said within 5 years; I think it could be done and should be done more quickly than that.

2.1.7 Deputy G.C.L. Baudains of St. Clement:

I have not made up my mind about this one at the moment. I thought the Assembly’s wish was that we would have a dedicated Minister to do this job but, on the other hand, it would have been more efficient to go along the lines of this proposition. I am not sure. One question I have for the Chief Minister is: “Now that he has elevated one of his Assistant Ministers, will he be appointing another one perhaps with responsibility for this area? Following on from the comments made by Deputy Le Hérissier, will the course of action proposed here require enlargement of the Chief Minister’s Department because, if it does, then it is another example of moving work from politicians to civil servants and that is a consequence of moving away from the committee-form of government.

2.1.8 Senator L.J. Farnham:

I follow on from Deputy Tadier. My original proposition was suggesting the establishment of a Minister for Justice and an appropriate department, but it was amended to include the words: “A means of appropriate Ministerial oversight” and that is because I think the Chief Minister and his department were in a bit of a “damned if you do, damned if you don’t” situation. I certainly spoke to a number of Members and there was clearly no appetite for taking on another Ministerial role while we are in the middle of the reform process, although I am slightly disappointed that the Chief Minister is not proposing we find a Ministerial role for this position because I think it warrants one. It is indeed a very good start. We have to introduce some political accountability for the justice system but I would say - and I would ask the Chief Minister to give some words of support to this if he can exercise some foresight - that the position does need to evolve. A number of Members have alluded to the fact that this important area of policy requires Ministerial oversight and I would very much hope that, in the fullness of time, it will indeed turn to that. I would like to thank the Chief Minister and his department for the enormous amount of help they gave me when I was putting the proposition together, and I would urge Members to support this very important proposition to introduce at last some political accountability for justice.

2.1.9 Deputy C.F. Labey of Grouville:

Unlike other speakers, I have never understood the problem with the Bailiff’s dual role, other than it has been repeated like a mantra that it is wrong and not like elsewhere so therefore we have to change. Going back to this proposition, I am intrigued with the reference to: “Within the Executive branch of Government.” I would like a clear explanation of what or who this body is. If it is the Council of Ministers, then why does it not say so and if, however, it is made up of other Members, then who are this group, how are they chosen and how are they elected?

2.1.10 Deputy T.A. Vallois of St. Saviour:

I am supporting this proposition, and that is purely because finally we will have political accountability in the States of Jersey in the form of a responsible Minister for Justice, Policy and Resources, but I would challenge the Chief Minister and ask for a list of what that justice policy and resources are. During my 5 years of Scrutiny and P.A.C. (Public Accounts Committee) I have come across many times the difficulties of identifying the exact policy, the exact legislation in which a department has to fulfil their public service required by this Assembly, and I would like to have it absolutely clear from the Chief Minister what his responsibilities for justice policy and resources are so that in order to hold him to account they are identifiable. My only concern with regards to this is under the financial and manpower implications on page 5. I would also challenge the Chief Minister as to whether he is being realistic to seek to put in place the required resources from within the existing limits and explain exactly how those resources are going to be applied, because too many times I have seen this explanation given under financial and manpower implications and you find a few years down the line that there was never really any capacity in that department to fulfil the obligations which we were placing upon them. Therefore, what we were expecting to happen never was fulfilled and we end up in a bit of a dilemma. So I just want some reassurance from the Chief Minister or some explanation as to how that is going to happen and what it is that he expects those people to do.

2.1.11 Deputy T.M. Pitman:

It is ironic, after allowing a lot of people to be betrayed yet again, as we did earlier, here we are talking about justice and yet it is all going to be done and dusted in about 10 minutes. The fact is, in my opinion and in a growing number of the victims of the Jersey justice system, there is zero accountability to those at the top of the justice system in Jersey. It is a very scary, frightening fact. I do not know if the Chief Minister kids himself, but he is not in control here. The political power in this Island lies with the law office; it is an absolute fact, certainly as far as enforcement of its will. As has been said, and I never used to believe this, but it is all too often a tool of oppression. It is a great example here today of how we could be saving money and how we do not need the Bailiff; the Greffier and his Assistant are proving that admirably. We do not need any individual in a red cloak. I will be quite honest, the reason I did not come to the special sitting last week, I find it highly offensive to see a judge, any judge - and this is not a personal thing - as our first citizen in the 21st century. It is absolutely ludicrous. I supported Senator Farnham’s idea for a Minister for Justice, but this is one of those watered-down fudges, and I think he is putting a brave face on and trying to be nice about perhaps convincing himself, wishing to convince himself that this is all going to move in a positive direction. I think he is mistaken in that. Senator Gorst, well, I told him yesterday I was not going to support this because I voted for him, as he knows, and I have been appalled that I did vote for him. He is, in my view - I have to say that or I will get into trouble - utterly too weak to ensure justice in this Island. If Members ask themselves when do you hear the Chief Minister talk about justice, speak out about it and upholding it? Practically never. You cannot go against the rule of the Bailiff. It is one of the most striking things when you come into this Assembly: the ridiculous and quite offensive deference that is given to someone just because he is a judge. Let us put it quite clearly: the Bailiff deserves no such deference, any Bailiff. He is just a judge, and yet he can interfere, he can block what elected representatives to this Assembly say and ask. As we saw yesterday in a quite embarrassing display, the justice system in this Island is so appalling that when the Bailiff fails appallingly, you can only go and take those failings to the Bailiff. It is a bit like déjà vu when I remember back years ago when Senator Syvret was forced out of the States for 6 months, in 1996 I think it was. Who could he ultimately appeal to about that? Probably the same man who many would say was instrumental in him being removed from that Assembly. This cannot be trusted to the Chief Minister’s Department because the Chief Minister just does not appear to have the will, the determination and the courage to do the job. He is too weak. That might upset some people, but I have to speak the truth, that is what we are meant to do here, are we not? Where is the judicial accountability now? There is none whatsoever. We have a U.K. Minister for Justice who is meant to intervene when he should but he does nothing, and you cannot go through an appeal system. We heard a really brilliant example of how the Jersey justice system is dysfunctional when we had to hear the desperation ... if you do not get what you think you should have, you can go to the Privy Council or then to Strasbourg, like those poor victims up there today. It is a bit late by then because you cannot challenge failings properly. People have had their lives ruined by then. Is the Chief Minister going to put that right? No, because he is one of those who I believe strongly is absolutely frightened to death of the aura of the Bailiff and all that it suggests. The Bailiff has only got that deference from people because of the dual role. We talk about in this report from the Chief Minister that you have got to have that independence between Judiciary and politics.

[11:30]

Does he not ever look at the individual and what that represents sitting in that chair every session, the hypocrisy and absolute comical farce of what he is saying? I cannot remember who said it, it might have been Deputy Tadier, it might have been Deputy S. Pitman, but you would have a Minister still being controlled on issues of justice by an unelected judge. There is no place for this in the 21st century. I am sorry the Deputy of Grouville cannot see the problem with it; just about any other right-thinking person can see the problem with it: it is a person wearing 2 hats at one time, it is an unelected judge being involved where he has absolutely no right. It might have been okay in the 17th century when we were all meant to tug our forelock to our betters, but it is not okay now. Well, I could not tug my forelock, but there we go; I may doff my cap. I cannot afford a cap, but there we go. It makes me so frustrated to say we will happily sit here and discuss ourselves for weeks on end, we will discuss dog mess for hours or days, and justice ... hardly anyone speaks. Let us spell out the facts again: there are only about 5 of us in here who ever stand up for justice, and we are made out to be some kind of radicals, we are out to destroy known civilisation. No, for those of us who talk about justice, it is because we care about our Island. The rest, and I am sorry, that is 95 per cent of the States Assembly, fall into 2 categories: people who just keep their head down, they are too scared; to protect the status quo they will say nothing. Or, it has to be said, people who perhaps do not care about justice at all, which is even worse. Some of those people who we were debating earlier said to me yesterday: “For too many people, it is only when an injustice happens to them that they realise what is going on in this Island.” That is because in the mainstream media they do not report on the true facts. Again, they have got a huge responsibility, they have more power than we have but they do not talk about the real issues: “Let us just keep attacking the 4 or 5 loony lefties who keep going on about child abuse and the dual role.” If I am to support this, Chief Minister, what are you going to do about all that? What are you going to do about all these issues? As we heard, the Chief Minister cannot go against the word of the Bailiff, so how is this being under his sway, how is his control going to differ? I was at that meeting the Deputy referred to; he acknowledged there were huge areas that needed to be changed, but would he do them? We have Jurats elected by lawyers; that is crazy, it does not even happen in Guernsey, and some people are always mocking Guernsey for what they do. How can you have lawyers choosing people they are then going to be pitching to win their case to later? It is absolutely bonkers. The Jurat Law; what stops you being a Jurat? If you have received assistance from the 1948 Poor Law, it does not matter if you are Jimmy Savile, you are in, you are a pillar of society. That is what it comes down to, in essence: no convictions against Mr. Savile so he probably would have been welcomed as a pillar of the community. Sorry if some of this is uncomfortable, but it is true. I have got so many cases now on justice, I admit - and I will use this to apologise to some people I have not even been able to get back to, because I am being overwhelmed and I know Deputy Higgins has got a huge number - they are diverse and they are shocking. What is being done about it? What have successive Chief Ministers done about the injustice in this Island? Nothing, absolutely nothing. Justice in Jersey is made up as we go ... a phenomenon which some people may not be aware of: judge-made law. It is a great example of what happens in Jersey: rulings, decisions given by judges that have absolutely no visible link to the laws that were passed by Assemblies such as ours. Who challenges it? Is the Chief Minister going to challenge it? No, because he is not strong enough, and I put my trust in him, and this is not a personal thing either. I put my trust in him when he was making his pitch to be Chief Minister and on the key issues, justice, like for the abuse victims, he has really done nothing. He expressed his satisfaction, his contentment with the case against former Senator Syvret. I do not agree with a lot of what Mr. Syvret has done, but I will stand with him on justice issues. Regularly, there is a gentleman who sits up there who can show you his many consistent statements made to the police about, as a child, being pinned down and having blood trickling down his legs after he had been abused. The person who he alleges, and more than a dozen others allege is an abuser, is still employed by the States of Jersey, has still got access to children. How is the Chief Minister and his legal team, who are meant to be doing redress, treating that man? Well, he is accused of never being at Haut de la Garenne. It is only other people who were at Haut de la Garenne who would remember him there. Has he had sympathy? Has he had compassion? No. I will tell you what has happened to him: he has been threatened by the legal team that if he did not drop his allegations, he would be prosecuted and could end up in prison. Justice in Jersey? Utter farce. Yet we are satisfied for the secret court case against Mr. Syvret. Of course, one of those people given such huge financial assistance is the very man that so many people have accused. That same case -if we are talking justice, Chief Minister - why is it that there is a letter in existence pitching for individuals to come in and put the case together and decide how they would get Mr. Syvret? Five people invited; one of them refused. Proxies; are those what they were? I happened to believe that some of them, certainly a couple, have got cases for what has been done to them. They may have cases to answer on the accusations against them. The best way to have done that would be before a court. As I have said before, then Mr. Syvret could have been taken to account if what he said was completely wrong and those people could have earned justice. But no, what do we do? Justice in Jersey, Chief Minister, we have secret court cases. I do hope he is going to do the decent thing and resign when we get the true figures about how much this has all cost, because the question is already in for next session. He wants to control justice. Why is it that data protection and this access ... and it is all very well for him to chuckle over there, perhaps it is how he usually takes justice. Why is it that data protection ... this assistance is not available to all? One of the individuals who was given money - Members might not know - is the scourge of innocent people in this Island. He has been intercepted by the police threatening ex-partners; does not get charged. He sends out posters to decent, ordinary people about threats to women; does not get charged. He puts hate sites up on the internet which emails stolen from one of our own Members end up on. Does not get charged. When I went and made a complaint about him, the senior police officer went and looked and he was shocked at the amount of complaints against this individual, so he could see it was just not me. Put the case to the Attorney General’s office; no case to answer. Perhaps that explains, for all his faults, why Mr. Syvret went down the route he did, because it all comes back down to this image, hardly anyone wants to risk challenging Jersey’s fluffy image as a shining beacon of democracy, as I think former Senator Perchard said. The way you improve your image is by confronting the things that are wrong, and that is what me, and those few other Members who stand up and talk about justice, do. Of course, we get pilloried by the Jersey Evening Post, pilloried by other Members, former judges. There is a wonderful little clip if Members get bored: go and look at YouTube and they will see a wonderful little clip of a former chief judge in Jersey and he is giving a talk to, I assume, the Law Society or a collection of lawyers, and he laughs and he gets a huge, great ripple of applause: “When I was a judge and the law was silent, I did what everyone did, I made it up because that is what everyone else did”; is that justice? People laugh. A chief judge, or a former chief judge ... I must not get into trouble, I must go down the magistrate route of today, confusing individuals. It is funny, just on the news today the former assistant magistrate is out of prison already, laughing all the way to the bank, while those people we have sent away with their tails between their legs are going home. One of them is on to income support as a result, she was telling me. This makes me furious, these tick-box propositions that come back pretending to do something when the proof of the pudding is that this Chief Minister never stands up for justice ever, even when it is wrong. He is controlled by the law office, in my view. He does not have the courage to challenge things that are wrong. Why am I not going to support this? It is not because I do not support Senator Farnham’s original idea, I do, though I ask the question, how many in this Assembly could do that job, 4 or 5, because most - and I mean that as no offence to any particular Member - have not got the courage and the conviction to stand up, as I do, so often. But this is just a fob, it is a fudge. It is another one of the Chief Minister’s cop-outs. Why did we have a Minister for External Relations when we have not even got a Minister for Children? Far more important. Why have we not got a Minister for Justice? Far more important than giving someone a title to do a job that, let us be honest, Senator Ozouf has been doing a pretty good job before we even had this Assistant External Affairs Minister. I say to Members, do not support this, force the Chief Minister to come back with something that is fit for the 21st century. Make him come back with something which will provide justice for all. I think it was Deputy Le Fondré who today said when would justice purely relate to how much money people have got? Well, that happens all the time in Jersey. Many of us in St. Helier see constituents. If they cannot afford to pay for lawyers and they get legal aid, they really may as well give up, because you will get a lawyer who is generally completely not interested or they are so young and inexperienced, it will probably do more harm to your case. If you are in the middle, you are even worse. Some people would say the Jersey system is bent. I do not say it is bent, because if you imply that, then you think it could be put back into shape. The Jersey justice system needs a full Turks and Caicos style intervention by the U.K. We need the U.K. Minister for Justice to fulfil his mandate. We need the Lieutenant Governor to fulfil the powers that he has got - and I like this Lieutenant Governor, I have had some lengthy conversations with him - but if he does not step in when he should, then what are we paying a great deal of money for? We need a Minister for Justice, but I think it should be appointed from the U.K. because it is entrenched here, it is so entwined, political power with judicial power, that it cannot be done safely otherwise. Now I think I will sit down and let our former Chief Judge attack me, as he does so often.

Deputy R.G. Le Hérissier:

I wonder if I can raise a point. Maybe it does not fit in with the broad sweep of the Deputy’s comments, but I thought he implied earlier, Sir ...

The Greffier of the States (in the Chair):

What are you raising, Deputy? Do you want clarification?

Deputy R.G. Le Hérissier:

Could he clarify, is he suggesting that the Chief Minister should intervene in individual court cases? I thought I picked that up in an early point of his speech.

Deputy T.M. Pitman:

Not at all. I am happy to answer Deputy Le Hérissier, but what you expect someone of who is meant to be the leader of this Government is to have the courage, the conviction and the ability to stand up and say when something is wrong, but that is severely lacking in this Chief Minister. I am not suggesting for a minute that he should be playing judge, but when there are clearly things wrong in this Island and with the amount of cases I have got, it is a growing number of people ...

The Greffier of the States (in the Chair):

I think you have answered.

Deputy T.M. Pitman:

... there should be somewhere to go and there is not.

The Greffier of the States (in the Chair):

You have answered the point, Deputy. Does any Member wish to speak on the proposition? If not, I will call on the Chief Minister to reply.

2.1.12 Senator I.J. Gorst:

I would like to thank everyone who has spoken this morning on what I think is an important proposition.

[11:45]

If I pick up first on Senator Farnham, I think he is possibly right. I think over time this role may evolve. I think I have said what I wanted to say about the main proposition and therefore I will pick up on a few points that Members have made. Deputy Young started by asking whether the accounting officers within the particular non-Ministerial departments would remain in place and yes, they will, because that is absolutely right. Someone should be held accountable for the spend within this departments, but now there will of course be a link to the Chief Minister’s Department and Members will be able to question the Chief Minister in that regard, so hopefully that will give clarity to this Assembly. A number of Members spoke about the dual role of the Bailiff and felt that that should be addressed by this proposition. That was not what was asked of the Chief Minister in doing his review in regard to this proposition. Interestingly, Members were not perfectly in agreement with regard to the dual role of the Bailiff, and as I understand it, that is something which is being considered by the P.P.C. (Privileges and Procedures Committee). I note the last Chairman set up a Sub-Committee to consider that issue, but it is an issue which has been considered in the past, most recently by Carswell, and of course with the advent of time, it is appropriate that we do consider those types of issues from time to time. We should not simply change because others change, but equally we should make sure that our structures ...

The Greffier of the States (in the Chair):

I think Members are struggling to hear you. I do not know if you could speak up a bit, Chief Minister. You need to raise your voice slightly, Chief Minister.

Senator I.J. Gorst:

Perhaps the volume could be turned up, Sir. [Laughter]

Senator L.J. Farnham:

Can I just ask that the Deputy listens for once, Sir? That was aimed at the Deputy, not my good friend, the Deputy of Grouville, who is very attentive.

The Greffier of the States (in the Chair):

Let us try to hear the Chief Minister.

Perhaps the Deputy would like to come and read my notes that I have been making, and then I am sure everyone will be able to hear. [Laughter] Where was I? Yes, the dual role of the Bailiff. We should not simply change because others change, nor should we simply say that because we have done it for hundreds of years we should carry on doing it. It is appropriate from time to time to review these issues to make sure they remain fit for purpose and we have a model that we can be satisfied with. Therefore I do not think it is connected with this proposition. A number of Members have suggested that politicians, Chief Ministers, Presidents of Policy and Resources Committees are too deferential to Bailiffs. Perhaps I should say of course we are respectful in public, but I am not sure that if the current Bailiff and previous Bailiffs were here in the Assembly, they would automatically agree with that assumption, because robust conversations take place around where responsibilities rightly lie and that is something which I think is appropriate. Therefore, while in public it is right that Members of this Assembly are respectful for the civic head of our community, in private, issues should be discussed in a robust manner, and I think that the previous Bailiff would agree that that is the way that other Chief Ministers have acted with regard to conversations with himself as well. Other Members have asked what expert advice did the Council of Ministers receive in coming to the conclusions that we have. We are fortunate - or I am fortunate - in my department to have extremely competent staff who are able to provide what I consider very useful and important advice and they consulted other jurisdictions, they looked at processes and structures that were in place in other parts of the world, and it was agreed that what is before us today is the most appropriate at this point in time for Jersey. I have no hesitation in recommending this change. Someone else ...

A point of clarification, sorry.

The Greffier of the States (in the Chair):

Is the Chief Minister giving way?

Deputy S. Pitman:

Could the Chief Minister just clarify if that expert advice came from people who have experience in the justice system, or was that merely officers doing a bit of research?

Those officers obviously spoke to people in justice departments elsewhere. Another Member mentioned whether our process was human rights-compliant, that the Chief Minister could be responsible in the Executive for justice policy and budget and the Bailiff could then sit as President of this Assembly. That really ties in the dual role of the Bailiff, and eminent judges, more eminent than myself, have said that there is no issue with regard to human rights compliance in that regard. Deputy Maçon I think got to the heart of one of the issues which has concerned me for a while and that is, while legislators should remain completely separate from the Judiciary, I think over the last number of years, perhaps with a lack of lawyers being elected to this Assembly, there has been perhaps not the knowledge of the processes of the Judiciary, of judgments in our court system by this Assembly. I think that that has led to some of the confusions and frustrations that a number of speakers have spoken of this morning, and therefore I think that Deputy Maçon’s proposal around briefing sessions, around understanding how J.L.I.B. (Jersey Legal Information Board) works and access to that, around what action is taken when judgments are made and perhaps the suggestion there is a need for clarification in legislation, then I think that is a very important piece of work which will be undertaken. Other Members quite clearly do not think that this role should sit with the Chief Minister, but there should be a separate Minister. That is not what I am proposing and I expect those Members will vote against this proposition. Perhaps if I could then speak to Deputy Tadier’s comments. He spoke what will in actual fact, if Members accept this proposition today, be the first piece of work that my department will undertake, and it is more or less formed in its structure now, and that is an access to justice review. I know he has asked to meet with me about the terms of reference and the individuals on such a review. But there are other interested parties which I intend to invite to be on that review. He also asked me to consider whether I will bring it to this Assembly for approval. That is not, as he knows, my intention at this moment in time, but I will consider what he has said this morning and when we meet again in due course. I am going back to the dual role of the Bailiff because some have tried to indicate that they felt that the Chair interfered with the democratic processes of this Assembly. I do not feel that that is the case. The running of this Assembly is governed by Standing Orders and Members of this Assembly can come forward with amendments to Standing Orders. Yourself, Sir, in the role of the Greffe, and ultimately the President or Deputy President of the Assembly approve questions, approve propositions and they are approved when they are in line with Standing Orders and disallowed when they are not. If Members are dissatisfied with what they receive in that regard, then it is up to them to speak to P.P.C. and ask for amendments to Standing Orders to be brought forward. Deputy Vallois asked for a list of responsibilities and policies and I concur with her that that would be a very useful piece of work to do at the start of this process so that Members can be clear. However, as I have already said, my first piece of work will be setting up the access to justice review and everything it will entail, and that will indeed be a very important, if somewhat lengthy, piece of work. Perhaps I should respond, although it is quite difficult to respond, to Deputy Pitman’s concerns. I think Deputy Le Hérissier was right to ask him to clarify whether he was expecting ... although he obviously did not feel, as I took it, perhaps I was reading between the lines, that I was quite the right person to do the job, but he did seem to me to be saying that whoever took this job on - and therefore he did not think I was suitable for it - should be involving themselves in individual decisions of the court. That is absolutely what should not take place. This proposition today should clarify the role of the legislators and the role of the Judiciary and there must be appropriate independence. Ministers should not be, in this Assembly, being asked questions about individual cases that are coming and are in consideration of the courts. That is absolutely wrong and if we were to be doing so, then we could rightly be accused of political interference, and that is wrong. It cannot be, it should not be and I will defend that separation and I will do so whether Members accept this proposition today or not. However, I do think, as I said earlier, that some of the frustrations that Members have aired this morning is around understanding what our role as legislators is and what it can be when perhaps we are dissatisfied with what is happening in another place, and therefore I think there is a need for an education programme for Members to help to understand where our appropriate involvement is and where it most firmly and definitely should not be. Having said all that, I hope that Members do support this proposition. It is an important move, it is important that there is Executive oversight with regard to justice policy and budget and this proposition will do just that, but be in no doubt there is work to do along the lines that I have outlined, and as I have said in my opening remarks, that can be met from within existing budgets because we are within the envelope of the M.T.F.P. (Medium-Term Financial Plan). I maintain the proposition.

The Chief Minister has not answered a couple of my questions and I just want to clarify, the meeting that myself and Deputy Pitman had with the Chief Minister, yes, we talked about our case, but we asked him to get a review on the Judiciary and also the legal system and their costs. So there is no way that Deputy Pitman was asking for the Chief Minister to intervene in our case and I believe that that is what was implied and it has misled the House.

[12:00]

The Greffier of the States (in the Chair):

You said you had some questions that had not been answered.

Deputy S. Pitman:

I do, Sir. I asked the Chief Minister what expert advice was given to the Council of Ministers for them to reach the decision that the ... sorry, it was with regard to there was a comment made on resources, fiscal, in the report. It says: “In the current fiscal cycle, it was not felt to be an appropriate time to consider establishing a new department with the consequent resource implications.” I did ask what expert advice was given to the Council of Ministers for them to reach that decision, and by expert, I mean again somebody with a judicial background. Also, he has not explained to us, he has given us no evidence as to the question that I asked, and that was once the Minister for Justice post is in place, we will be inevitably asking questions and presenting propositions ...

The Greffier of the States (in the Chair):

I do not think there will be a Minister for Justice, Deputy. That is the whole point, I think.

Deputy S. Pitman:

Sorry, I mean the position within the department, and once questions and propositions will be coming to that and being asked of that person, the Bailiff will have to approve them. Now, I would like some evidence as to why that is human rights-compliant.

The Greffier of the States (in the Chair):

Are you able to answer those 2 points raised by the Deputy in her speech? Are you able to add anything further, Chief Minister?

Sorry, I thought I had answered them. With regard to the more detailed human rights issue, I will defer to the learned Attorney General, if he wishes to comment, but I think I have answered it previously anyway.

The Greffier of the States (in the Chair):

The expert advice on the fiscal and economic ...

Senator I.J. Gorst:

I quite clearly said that was advice which had come from officers and ultimately it is a political decision whether this Assembly wishes to spend more money on the creation of a department and a Minister or go with what is being proposed.

Deputy G.C.L. Baudains:

I did ask the Chief Minister and I did pose a couple of questions which he has not answered, but I notice he was multitasking during the debate, so perhaps he missed what I said. I did ask if he was going to appoint a new Assistant Minister, possibly with responsibility for this area, and I asked whether he intended expanding his department to accommodate this proposition.

Yes, thank you. With regard to the Assistant Minister, I will have to consider what happens. Under the States of Jersey law, I think as we sit here, until I make the changes, Senator Bailhache would remain as Assistant Minister, but I need to give some thought to that, and it is very likely that I will be proposing changes over the coming weeks with regard to that. Of course Members will be aware that I am also now responsible for financial services, so I would need to consider how I deal with that particular issue as well. Could the Deputy just remind of the second?

Deputy G.C.L. Baudains:

Whether there would be any expansion of his department as a consequence of this proposition.

Senator I.J. Gorst:

I thought I had answered that when I answered Deputy Vallois’ question with regard to the current M.T.F.P. and fitting within those resources. There may be a need to enhance those in due course, but if that were the case, it would be a bid would be made in the normal way with the next M.T.F.P.

Deputy S. Pitman:

Sorry, Sir, but I did not get the opportunity to ask the Attorney General on the human rights issue.

The Greffier of the States (in the Chair):

Are you able to add anything, Attorney General?

The Attorney General:

As I understand it, the question is: Are there any human rights issues attendant upon the fact that any proposition must be approved by the Bailiff when propositions are brought in connection with the justice portfolio. Am I right in thinking that is the question that is being asked?

The Greffier of the States (in the Chair):

Requesting a proposition.

The Attorney General:

The human rights issues that arise in any circumstances could only be those under Article 6, which is relating to the determination of civil rights by an independent tribunal. It seems to me that this is a parliamentary Assembly functioning within its Standing Orders. The Bailiff makes a decision in accordance with Standing Orders as to whether it is within or without. There is no individual civil right, the determination of it involved. It is a matter to be resolved entirely politically and human rights have no bearing on the matter at all.

Sorry, but it is absolutely ludicrous, this. We ...

The Greffier of the States (in the Chair):

You cannot make a speech, Deputy. Do you have a question for the Attorney or not?

I have a question relating to the answer.

We have a Bailiff who recuses himself from justice issues when we are debating them, but then he is going to be allowed to decide on propositions and questions. It really is a ludicrous position.

The Greffier of the States (in the Chair):

As the Chief Minister has said, Deputy, the Bailiff sits in the Assembly not by right, as referred to by Deputy Trevor Pitman, but by leave of Members, who are free to change the law, change the rules, change Standing Orders and he is obliged to comply with it. Deputy Tadier, do you have a question?

Yes, it just follows on from Deputy Pitman’s question. It is clear that it would not come under the remit of a States Member asking the question or lodging a proposition, but from the perspective of a member of the public, if you were specifically asking a question on behalf of a member of the public or taking up a case and then it turned out that that question or proposition was ruled out of order by the Bailiff, then of course the appeal mechanism would also be to the Bailiff to get recourse. It would be the individual member of the public who would be feeling aggrieved rather than the States Member necessarily, and could that member of the public then ...

The Greffier of the States (in the Chair):

No member of the public can ask questions in the Assembly, Deputy. I do not quite understand your question.

Deputy M. Tadier:

No, clearly, but a member of the public could bring a case on human rights grounds that their recourse to their parliamentarian was not being met on that basis.

The Greffier of the States (in the Chair):

Is there anything you wish to add?

The Attorney General:

The only thing I would wish to add is that I do not understand that States Members ask questions on behalf of members of the public. They ask questions that they need the answers to within the course of the discharge of their political duties and in no other circumstances. It seems to me that that is entirely a matter for the parliamentary Assembly, and as I have said, human rights do not arise.