23 January 2012

Good Conflict. Bad Conflict

A man with many hats:
Attorney General, Tim Le Cocq
Minister for TTS, Deputy Kevin Lewis

You may have read in Friday's Jersey Evening Post that the 'Transport and Technical Services could (here is the operative word) face prosecution over beach polution.' Could, would, might, may... Indeed. 

Now when I read this headline, two questions immediately flashed up in my mind. One inquisitive and one rhetorical: (1) 'Who exactly is going to do the prosecuting?' and (2) What is the actual likelihood of them getting [sucessfully] prosecuted?

As I read on, I found the answer to my first question (I'll leave you make up your own minds re: the second one) 'Environmental protection officers have now submitted a file of evidence about breaches of the plant’s discharge permit to the Attorney General, who is considering whether to bring the matter to court.'

From what I know of the current Attorney General, he seems like a genuinely nice guy, polite, genial, but more important intelligent and a great asset to have in the Assembly when legal questions arise that most non-legally trained members easily struggle with. 

But in this post, I am not concerned with the person of the Attorney General, rather the rôle itself. Or rather, I should say 'rôles', for his jobs are multiple. 

JOB DESCRIPTION FOR HM ATTORNEY GENERAL

1) The Attorney General gives legal advice to Ministers and Scrutiny Panels. 
2)He is also the head of Jersey's prosecution service and, 
3) as 'Titular head' of the Honorary Police, carries out the duties that arise from that position. 
4)His department also assists overseas law enforcement agencies and carries out conveyancing work for the States. The Solicitor General deputises for the Attorney General.
It is the first two, primary rôles of the Attorney General which are of interest to us in this case.

(1) The Attorney General gives legal advice to Ministers (and their departments).
(2) The Attorney General Decides whether to prosecute (Ministers)

So, he gives legal advice to the Environment Department (who have submitted evidence to him regarding the alleged negligence of TTS). He gives legal advice to TTS, who may be facing charges from ... from the Attorney General. (Presumably, he gives legal advice to himself too).

A veritable one stop shop, is our Attorney General.

Now, for the conspiracy theorists amongst you, the alarm bells will be going off in your head. 'Surely this is a conflict of interest!' How can the AG possibly be considered impartial, when he has to balance so many potentially conflicts of interest!'. Shame on you. How dare you cast aspersions or Her Majesty's esteemed Attorney General to be able to balance the near impossible demands of each aspect of his job. The AG is a Crown Officer and therefore well experienced in dealing with conflicts of interests.

BAD CONFLICT
St Helier Deputy, Mike Higgins
When it comes to Elected States Members, however, or at least those outside the cosy inner circle, the rules are somewhat different. Last Year, Deputy Mike Higgins was prevented from carrying out a Scrutiny Review looking at the management of the Airport and Harbours and, in particular, its shadow board (one of the non-executive directors is former Chief Minister, Frank Walker). Deputy Higgins was probably the only States Member of carry out this review, but he was stopped because certain members saw his rôle as 'organiser of the Battle of Britain Air display as a conflict of interest.' Deputy Higgins gave assurances he would not be looking at areas that affected the Air Display, but this did not satisfy other members. The review never did happen and Deputy Higgins resigned from Scrutiny all together as a result

Deputy Trevor Pitman
A similar thing happened to another St Helier Deputy, Trevor Pitman, when he decided to chair a scrutiny into the handling of a review of Operation Rectangle, very much linked to Haut de la Garenne Abuse inquiry. The review was set to find out some damning revelations about how the review was handled and, in the end, succeeded in being carried out, but this was not without Deputy Pitman being dragged over the coals. Apparently, because he had 'asked questions' in the States on the issue and written a blog, he was 'conflicted' and therefore an inappropriate person to now lead a review. That is, considered inappropriate by The Home Affairs Minister, Senator Le Marquand (who was conflicted) and by Senator Ferguson (head of scrutiny at the time).

So you see, in Jersey, it is OK for Crown Officers to be able to be expected to balance their rôles, to over-ride their human nature and to always act in a clinical and impartial way, whether they are advising States Members, telling them when they can speak (some of which with whom they may get on very well, others not so well) or deciding whether to prosecute them. But for those outside the political establishment, even the most contrived suggestion of conflict can be sufficient to scupper valid democratic checks and balances from taking place.

Conclusion
Now, the matter of nitrates going into the sea is one thing. It is no doubt serious, but much more serious is the matter of Historic* Child Abuse (*for those still hoping for justice  in our island, there is nothing 'historic' about it). The potential conflict of interest, from the Attorney General (not necessarily Tim Le Cocq), who is one the one hand advising the Council of Ministers legally, and even politically, whilst also being the one deciding which child abuse cases to prosecute is immense

This is why I was so keen to make sure that long awaited Committee of Inquiry in Child Abuse also had the following as one of its terms of reference:

'Was a consistent and impartial approach taken when deciding on which cases to prosecute; and was the process free from political influence or interference on any level?'

This amendment was adopted as part of the Terms of Reference by the States Assembly, but it is already under threat, which figures like the former Chief Minister suggesting to me that it would be 'too costly' to include, and Senator Bailhache, who has said he thinks the CoI is a 'waste of money' altogether.

The minor battle this year will be fighting to secure an Independent Electoral Commission - which Senator Bailhache wants to derail. 

The major battle is fighting for the rights of abuse survivors and making sure that the same Senator and his authoritarian sympathisers are not allowed to derail Child Abuse Inquiry.





10 comments:

  1. Monty - 'that' Senator should not be allowed anywhere near decisions taken on the Child Abuse Inquiry. End of. He is far too conflicted.

    It is also vital that your amendment above was submitted to Ed Marsden by the JCLA as one that was imperative in forming part of the Terms of Reference.

    Nothing, but nothing less will suffice.

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  2. Anon, don't understand what you are trying to say. Can you try again, this time with full sentences?

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  3. Monty, as I have said many times before, the problem is the 'whole' court system and police force.

    The corrupt have been in their positions for so long that nothing will change until they are 'ALL' removed from their positions.

    Fresh foreign blood in the office of A.G and all the jersey judges removed from office, and replaced with circuit judges from the UK. Myself and Cyril are going to challenge the outright nonsense that a man cannot take out a private criminal prosecution in Jersey without the consent of the A.G....THIS IS JUST CRIMINAL and beyond the realms of comprehension and not in accordance with the law of the land, Common Law.

    Then the police force needs taking apart piece by piece as they don't even respond to complaints of criminality anymore. We need shot of the laughing stock that purports to be a police complaints authority, just a bunch of the same private club members watching each others backs.

    The whole disgusting mess needs wiping out and rebuilding, and without any of the present criminals having a say in matters.

    Just watch what happens with the child abuse Committee Of Inquiry!!!

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  4. Fellow supporters of what or whom? I do not see how this blog posting alienates any 'fellow suporters'. If anything it offers solidarity.

    However, asking tame questions about (what would else where be) self-evident anachronisms and lack of democratic safeguards IS likely to put most members' noses out of joint.

    Thankfully, I realise I was elected to act in the public interest and not score points with sycophancy which might get me invited to a few more cocktail parties.

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  5. Doesn't this have to do with the fact that Jersey does not have a proper Constitution?

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  6. Montfort.

    Open letter from Former DCO Lenny Harper to Home Affairs Minister Senator Le Marquand.

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  7. Slightly off topic but one thing that has disgusted me recently was the jailing of a young man with no previous convictions for 15 months for growing Cannabis for the sole medicinal use of himself and his partner.


    This at the same time as many countries are decriminalising cannabis for medicinal use. In the last few weeks two medicinal users in our close neighbours France have been acquitted in landmark cases, and the UK are currently drawing up legislation so that medicinal use can be used as a defence....but Jersey is still in the dark ages! The system certainly needs a good shake up..

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