The new party line concerning the unlawful suspension of the former Police Chief Graham Power QPM is
“it’s time this was put to bed”. Most of us agree with this statement, including Deputy Bob Hill, who has lodged a proposition P166/2010 in order to do this.
But there is a big difference between putting something to bed, and
brushing it under the carpet. P166/2010 sets out to differentiate the two.
What the Deputy of St Martin appears to be trying to achieve with this proposition, is accountability, openness and to give our States Members the opportunity to show the public that they are not willing just to brush this stuff under the carpet anymore. If people in high places have acted less than honorably then they should be held to account.
The proposition gives our elected "representatives" to prove to their electors, and the island as a whole, the chance to restore some much needed faith and confidence in them. Will they take this opportunity, or will they carry on the good old "Jersey way? If they choose the latter, then Chief Minister Terry Le Sueur and Home Affairs Minister Senator Ian Le Marquand had better brace themselves for plenty more "ground hog days". There are far too many unanswered questions which leads to immense distrust of those involved. Put it to bed? YES. Sweep it under the carpet? There's no room left under there it can't be an opition.
It's time for Terry Le Sueur to show some real "leadership" and it's time for our elected "representatives" to compel him to do it!
PROPOSITION
THE STATES are asked to decide whether they are of opinion -
(a) to request the Chief Minister to inform States members in a Report
presented to the Assembly, or in a Statement to the Assembly, of the
action he has already taken and the action he intends to take in respect
of the report dated 10th September 2010 into the suspension of the
former Chief Officer of the States of Jersey Police prepared for the
Chief Minister by Mr. Brian Napier QC (‘the Napier Report’) and, in
particular to provide information in respect of the following matters –
(i) what action, if any, the Chief Minister has taken in respect of
the destruction by the Chief Executive to the Council of
Ministers of the original notes he took during the suspension
meeting and what guidelines, if any, the Chief Minister has
issued regarding the records of suspension meetings in the
future;
(ii) whether he accepts the conclusion set out in paragraphs 45,
67, 72 and 107 of the Napier Report that action was taken on
a basis which was contrary to the advice of the Law Officers
and what action, if any, he has taken or proposes to take in
respect of that matter;
(iii) whether he accepts the conclusion set out in paragraphs 49–53, 55, 58–66, 107 and 108 of the Napier Report that the suspension process did not meet the requirements of the Disciplinary Code for the Chief Officer, issued under Article 9(1) of the Police Force (Jersey) Law 1974 as part of the Chief Officer’s terms and conditions, and what action, if any, he has taken regarding the apparent breach of the process specified in the Code;
(iv) why there has been no formal presentation of the report to members and no opportunity to discuss the findings with the author?
(v) what training, procedural and other corrective measures, if any, he has taken in order to ensure that personnel issues, and in particular disciplinary issues, are managed appropriately in the future;
(vi) whether any disciplinary proceedings have been taken as a result of the findings of the Napier Report and, if so, to update members on the outcome of those proceedings;
(b) to request the Chief Minister to issue a formal apology to the retired Chief Officer of the States of Jersey Police in relation to the failure of those involved, as identified in the Napier Report, to deal with the Chief Officer’s suspension in accordance with the procedures set out in the Disciplinary Code;
(c) to request the Chief Minister to present the Napier Report to the States in accordance with the provisions of Standing Order 37.
DEPUTY OF ST. MARTIN
REPORT
This report and proposition is not seeking a vote of no-confidence. Neither is it intended to invite Members to do anything exceptional or beyond the customary political process. It is intended to invite Members to formally require the Chief Minister to do what may be seen as an inherent part of his role. Namely, to account to Members for his actions as Jersey’s Chief Minister. Members are not being invited to condemn his actions. Members are simply being invited to compel him to do what is required of him within our political system. This request is brought as a formal proposition because, in spite of repeated requests, the Chief Minister has declined to discharge this responsibility on a less formal basis. It is hoped that the proposition may gain support from all sections of the House. Whatever divisions may exist from a political perspective, it is hoped that all members will see value in demonstrating their willingness to exercise this basic democratic function.
What is being requested is straightforward and simple. The Chief Minister is being asked to tell Members, and thereby the people of the Island, what action he has so far taken in response to the Napier report and what action he proposes to take in the future. In particular, the Chief Minister should state, in an unequivocal manner, what action he has taken, or now proposes to take, in respect of the actions of the Chief Executive to the Council of Ministers. The Chief Executive’s role is not comparable to other positions in the public sector. Members may, for example, be told that it is normal for disciplinary issues to be covered by confidentiality. That may be appropriate in respect of most public sector employees. Members may, however, be prepared to agree that the position of Chief Executive to the Council of Ministers cannot be regarded in the same way as other public employees. His position as the most senior public servant in the Island is pivotal to the good governance of Jersey. It is not sufficient for the post-holder to have the confidence of the Chief Minister and his senior colleagues. That confidence must be shared by the wider political community and to some extent the public at large. And yet the Chief Executive cannot be accountable to States Members or the whole community. He is accountable to the Council of Ministers, led by the Chief Minister, and the Chief Minister is himself accountable to the States for his oversight of the Chief Executive’s role. That is how our political system works. Normally this arrangement operates with co-operation and goodwill. On this occasion, neither has been demonstrated by the Chief Minister and it is therefore up to Members to determine whether it will use its powers to compel the Chief Minister to operate within the customary process. If we are not so willing, then so be it. But should that be the case, then it would appear that our system of political accountability has broken down.
Members will be familiar with the report by Brian Napier QC relating to the suspension from duty of the former Chief Officer of the States Police, and some of the significant criticisms made in that report in respect of the fairness of the process, the evidence relied upon, and the extent to which the key participants appear to have acted contrary to the advice of the Law Officers’ Department. Unusually for a report commissioned on behalf of the States, Mr. Napier was not asked to set out specific recommendations for the future. Nor, we are told, will he be attending the Island to present his report and answer questions. From enquiries I have made, I understand it to be the clear position of both the Chief Minister and Mr. Napier that no such attendance will take place and no questions addressed to Mr. Napier in relation to his report will be answered. It is therefore for the States to determine the obvious issue of what we do in the light of the report. If failings are identified, what is to be done to address these failings and who is responsible to the States for ensuring that the appropriate corrective action is taken?
In normal circumstances this task would be addressed by a simple act of good management and leadership. The sponsor of the Report would be tasked with producing an action plan, setting out responsibilities and timescales, and Members could from time to time enquire as to progress. There is nothing remarkable about such a procedure. It is normal competent management of the public sector. What is, however, distinctly abnormal about the present situation is the apparent refusal of the Chief Minister to undertake any such process. When challenged on the actions he intends to take in consequence of the report commissioned by the States, the Chief Minister has commonly expressed a wish to “move on”. Members may agree that it is difficult to see how “moving on” can be achieved when so many issues are left hanging in the air. In order to achieve closure, issues must be addressed and resolved. “Moving on” and “hoping for it to go away” are different things. The former may be achieved with leadership and skill. The latter will not achieve closure, and will serve only to bring further discredit upon the Island and the conduct of its affairs. It is for this, and related reasons, that the proposition is brought. This saga has now been running for over 2 years at considerable financial and political cost. It has also caused untold disruption and suffering to the former Chief Officer of the States of Jersey Police, and there is anecdotal evidence that it has undermined the confidence of the victims and survivors of abuse in the operational independence of the criminal justice process.
All sides hope to bring this long-running issue to an end. In this respect I have a plan set out in this proposition. The Chief Minister prefers to hope for it to go away. It should be recalled that this is the same Chief Minister who denied the former Police Chief details of when the suspension letters were drafted, until, after almost a year, he was compelled to reveal the truth following a Board of Administration Appeal Hearing. However, it is for the House to decide which approach they most prefer to be associated.
It is not necessary for Members to go through the Napier Report page by page and list the matters to be addressed, although they are many. That is an administrative task. What, however, Members need to decide, is whether such a task should be undertaken and the results brought forward for consideration by this House.
I now turn briefly to the specific role of the Chief Executive and how the report impacts upon his position. Before I do so, it might be appropriate for me to remind Members of my particular role in relation to the Napier Inquiry. Members may recall that in January this year, in view of public concerns, I asked the Chief Minister toconduct a review of the suspension process. He responded by claiming that the review
was unnecessary as it was being undertaken by the Wiltshire Constabulary. This was never the case; and in the absence of any positive action, on 2nd February I lodged a Report and Proposition – P.9/2010 – in which I requested support for a formal Committee of Inquiry into the conduct of the original suspension. I anticipated that the Inquiry would be completed within 3 months and would cost in the region of £15,000. When it became clear that my proposition may gain support, the Chief Minister offered an alternative in the form of a review by a Commissioner. This would, according to the Chief Minister, be a quicker and simpler process. Members will recall that, by 26 votes to 21, my proposal was rejected in favour of the Chief Minister’s proposal. Members may also recall that, at the suggestion of the Chief Minister, I was invited to be party to the selection process in respect of the appointment of a Commissioner; and the Chief Minister also agreed that in addition to having oversight of the selection process, in which Mr. Brian Napier QC was subsequently selected, I would also be involved with the Chief Minister in reviewing the ongoing work of the Commissioner, the reporting mechanism and the reports themselves, including the Final Report to be presented to the States in relation to the Commissioner’s work. This was intended to give me access and an insight into the Commissioner’s progress and methodology which was not commonly available. It also placed upon me, in my assessment, a duty to Members to eventually offer a view as to the manner in which the Chief Minister’s Department has managed both the review and its consequences. I had, of course, hoped that I would be able to give an assurance that I was satisfied with all of the action taken. I regret, however, that I am unable to do so because I was not consulted in the watering-down of the Terms of Reference, and I have been denied access to any of the preliminary documentation and progress reports. It was only on 17th September that I was given the Final Report in confidence. It is right, therefore, that my reservations should be shared with Members.
In relation to the specific role of the Chief Executive to the Council of Ministers, I do not believe that a detailed exploration of the relevant issues is necessary at this time. The following key points may, however, be of assistance to Members in coming to a view on how matters should now be addressed –
· The Affidavit of the former Chief Officer of Police is in the public domain and for Members’ convenience it is attached as Appendix 3. In part (d) the Terms of Reference as published in the Council of Ministers’ Comments (3) to my P.9/2010 it was intended that the Commissioner “would review all information relating to the original suspension procedure, including relevant sections of the published Affidavit from the suspended Chief Officer of Police.” However, part (d) was later withdrawn without any consultation with me or States Members. Members will note that in the sworn Affidavit the former Chief Officer describes a series of incidents which left him with a perception that the Chief Executive was seeking to politicise the role of the Chief Officer of Police. For the purposes of today it is of no consequence whether members accept that interpretation or otherwise. The point is that such a perception existed, that it was a source of tension, and that it may have carried into the consideration of the suspension process.
· It is now a matter of public record that the original record of the suspension meeting, at which the Chief Executive played a leading role, was destroyed by the Chief Executive. The former Chief Officer of Police has stated publicly that the audit-trail of correspondence appears to indicate that this destruction occurred after written notice had been given that an application was to be made to the Royal Court.
· Paragraph 45 of the Napier Report gives details of the advice of the Law Officers relating to the standard of evidence which would be required for a suspension, and in particular the warning given against the use of a report which was qualified in its conclusions. Paragraphs 69 onwards describe how this advice was not followed. In normal circumstances, an action by a senior public servant which is contrary to the advice of the Law Officers is regarded as a serious matter. Members may wish to consider whether there are reasons for taking a different view in this case.
· Paragraphs 55, 79, and elsewhere, give details of preparations for the suspension which involved the Chief Executive, and which were taking place around 2 months in advance of the suspension meeting. Mr. Napier says that there was “little objective basis” for such preparations (paragraph 80). He points out that the Disciplinary Code requires that concerns should be raised with the Chief Officer at an early stage and in the absence of any explanation from the relevant parties, Mr. Napier says “I do not know” why this was not done (paragraph 55.)
· Paragraph 70 describes how the Interim Report provided by the Metropolitan Police, which provided the justification for the suspension, was selectively used, and that key qualifications and reservations were omitted. Paragraph 93 describes how the key document, the letter from the then Deputy Chief Officer of Police was altered, apparently to strengthen its effect, and how nobody admits to making that alteration.
· Paragraph 107 describes how the Chief Executive failed to obtain a copy of the Metropolitan Police Report and how, in the view of Mr. Napier, he should have done so in order that the Minister could be properly advised.
· Overall, Mr. Napier concludes that the process was flawed, the requirements of the Disciplinary Code were not met, and that the principles of fairness were not observed. Mr. Napier is clear in his view that alternatives to suspension could and should have been considered (paragraph 108 and elsewhere). It is a matter of record that the flawed process set in chain a series of events which have resulted in substantial cost to the taxpayer. It is one of a series of highprofile, costly and seriously mismanaged disciplinary issues which have occupied the attention of Members over recent years. Members may wish to view the responsibilities of the Chief Executive in this context.
Against this background, members may consider it reasonable that the Chief Minister considers whether disciplinary action against the Chief Executive is appropriate. However, prior to this proposition, few Members will have been aware that such a measure has in fact already been considered. I became aware of this on a confidential basis on 27th September as part of my particular role, described earlier, relating to the Napier Inquiry. I agreed to maintain that confidentiality, and have continued to do so, in order that there was no undue prejudice to whatever may be determined.
Prior to the release of the Napier Report on 8th October, I had accepted that its release may be delayed due to the consideration of disciplinary issues. However, the delay caused understandable speculation, which led to a question on the matter being asked by Deputy T.M. Pitman of St. Helier at the States Sitting on 12th October (referred to below in Appendix 1). As can be seen, the Chief Minister gave a very guarded answer. Since the Report’s release, I have been concerned at the lack of information regarding the progress of the confidential disciplinary matter referred to above, and I therefore engaged in an exchange of e-mails with the Chief Minister, some of which are also attached at Appendix 1. It will also be noted that I have, on a number of occasions, sought to obtain assurances from the Chief Minister that the matter is progressing, but he has declined to provide information. On 9th October 2010, I asked that he make a statement in relation to the report and produce an action plan (e-mail attached at Appendix 2) but he has failed to respond. I am therefore left in a dilemma. Do I allow myself simply to be “fobbed off” in relation to this matter or do I bring the issue to the attention of Members? I have decided on the latter course of action.
Members are invited to take the view that matters of such gravity at such a senior level must be dealt with in a way which can be seen to be transparent and accountable. To do otherwise would invite speculation which would do little credit to our political processes. It may also further damage the confidence of victims, survivors and witnesses. In the absence of a clear statement, and plan of action, from the Chief Minister, there will inevitably be speculation, much of which will be unjustified. For example, a belief could develop that the Minister reached a proper decision in relation to disciplinary action but was then somehow persuaded to change his mind. The occasional speculation that there is a “Government within a Government” overriding the democratic process will be encouraged. Such adverse consequences can be prevented by clear leadership, decisive action and transparency. I regret that our Chief Minister has declined to act on a voluntary basis. I now ask that Members require him to do so.
Financial and manpower implications
I do not believe there will be any financial or manpower implications for the States
arising from this Proposition.
APPENDIX 1
From: Bob Hill
Sent: 19 October 2010 21:03
To: Terry Le Sueur
Subject: RE: Napier Discipline action
Dear Terry,
Thank you for reply. I can take it that you have investigated the matter and have decided to take no further action. If that is the case why can't you inform Members?
Regards
Deputy F. J. (Bob) Hill, BEM.
From: Terry Le Sueur
Sent: 19 October 2010 20:58
To: Bob Hill
Subject: RE: Napier Discipline action
Dear Bob,
I made my position clear last week regarding disciplinary action. Herewith a copy of the answer I gave to Deputy Pitman in response to his question:
As far as disciplinary action is concerned, it is a matter that I will be dealing with through normal procedures.
Any individuals must be treated fairly and with respect
and I will apply the same level of respect as would be
given any other States employee. This being the case, I do not intend making any further statement on the outcome of any such procedures.
I have investigated the disciplinary issues and I have nothing further to add.
Terry.
From: Bob Hill
Sent: 19 October 2010 19:44
To: Terry Le Sueur
Subject: FW: Napier Discipline action
Good Evening Terry,
With reference to your email below. Three weeks have now elapsed and I am no wiser as to your position re disciplinary action. I have as ever respected your wishes for confidentiality and to hope to be able to continue do so. However this is dependent on an arrangement of mutual trust between us. Therefore I would be grateful for an update as to the position in relation to disciplinary action.
Regards
Deputy F. J. (Bob) Hill, BEM.,
Deputy of St Martin.
APPENDIX 2
From: Bob Hill
Sent: 09 October 2010 14:31
To: Terry Le Sueur
Cc: All States Members (including ex officio members); 103 (103); 'Channel TV'; JEP
Editorial; News (News); Radio Jersey (Radio Jersey); Spotlight (Spotlight)
Subject: Napier-- Next Stage
Good Afternoon Terry,
Thank you for releasing the Napier Report. Unfortunately due to the timing we did not hold a joint press release or allow for anyone to question Mr Napier on his findings. Perhaps that can be arranged. I also believe you should make a statement in the States on Tuesday. You commissioned the Report, its findings clearly show that Mr Power was unfairly suspended and is therefore entitled to a public apology. I believe your statement should include the plan of action that you will be taking against those responsible for breaching the requirements of the Police Force (States) ( Jersey) Law 1974 and the Disciplinary Code made under that law. Perhaps you will also wish to consider whether the States were at any time misled in relation to the sequence of events and decision making process which was applied in this case.
Regards
Deputy F. J. (Bob) Hill, BEM.,
Deputy of St Martin.
APPENDIX 3
Appendix 3 is the sworn Affidavitt of the former Chief Police Officer Graham Power QPM which we (Team Voice) published
HERE
