Friday, February 26, 2010


In the same States sitting that government debated – and rejected – proposals from JDA Deputies Trevor Pitman and Geoff Southern, that would have brought increases to the minimum wage of between either 16 or 8 pence respectively above the proposal from the Social Security Minister, we were interested to also note the answer to Trevor’s written question No. 17 on 1.1.K taxation as indicated below.

“Given that 1(1)(k) classified residents fall into two categories; namely those who were granted residence before current regulations were put in place, and those who have been granted residency since, will the Minister list the number of individuals by year for the period 2005 to 2008 inclusive, who paid tax within the following brackets –

(a) less than £20,000;
(b) between £20,000 and £50,000;
(c) between £50,000 and £70,000; and,
(d) between £70,000 and £99,000?

If any 1(1)(k) classified residents do fall into these categories, would the Minister advise how this fits into the framework outlined within the relevant income tax legislation?”

Trevor has promised to write an article relating specifically to this subject in the next week or two.

In the meantime we publish the figures below for people’s comments. Whether one supports the concept of 1.1.K residents or not, the actual figures below teased out by Trevor’s question to the Minister for Treasury & Resources make interesting reading. Not least being that somehow the Minister managed to overlook answering the crucial aspect of just how some of these surprising figures actually fitted into what is written into the legislation.

For reference
the current regulations to which Trevor’s question refers are that of Article 135A of the Income Tax (Jersey) Law, 1961. It should also be noted, of course, that this Article applies only from 1st January 2005 to any person who is given consent under 1(1)( k) housing rules to acquire and occupy property in the Island.

Under this Legislation, those individuals granted 1(1)(k) status are meant to be taxed at the following rates:

The first £1m of foreign income at 20%
The next £500,000 of foreign income at 10%
The balance of foreign income at 1%
All Jersey source income at 20%

Those individuals who were granted such ‘status’ prior to the above date are not subject to the provision; but rather were able to arrange a ‘negotiated’ tax contribution. This presents a number of questions in itself as it has been argued that it is debatable whether or not any such possibilities actually existed within Jersey’s law at the time. One further question we know Trevor will be pursuing is whether there is any truth in the rumours of a small number of ‘high value’ residents actually paying tax that actually falls beneath the figure of £10.000.

With regular re-assurances that all 1.1.K residents contribute at least £100.000 in tax, many people in so-called ‘middle Jersey’, not to mention those on a minimum wage justified from within the likes of the Hospitality Association as being ‘offset by cheap food and accommodation’ (quoted on Channel Television) will be interested to say the least. After all, as so many States Members were happy to suggest during the debate on the minimum wage: it really is all a question of achieving ‘balance’…

Sunday, February 21, 2010

Debbie's Questions for 23rd February

Deputy Debbie de Sousa has lodged this batch of related questions:


“Can the Minister inform members how many vehicles, if any, are hired annually from Motor Mall by the Treasury and Resources Department and the cost per annum?”


“Can the Minister inform members how many vehicles, if any, are hired annually from Motor Mall by the Economic Development Department and the cost per annum?”


“Can the Minister inform members how many vehicles, if any, are hired annually from Motor Mall by the Education, Sport and Culture Department and the cost per annum?”


“Can the Chief Minister inform members how many vehicles, if any, are hired annually from Motor Mall by his department and the cost per annum?”

Debbie has also lodged this one:


“Can the Minister state why, after over 10 years as President or Minister of Housing, and 4 years after Housing Trust Regulation appeared as an aim in the States Strategic Plan, the States are still waiting for action to be taken on this matter.

And she will be asking this one:


Deputy D.J. de Sousa of St. Helier will ask the following question of the Minister for Economic Development –

“What action, if any, has the Minister taken to combat ‘gazumping’ within the property market and will he be bringing proposals forward to regulate estate agents?”

Tuesday, February 16, 2010

A Different Angle On Minimum Wages

There is a consensus in modern Western civilisation, that there should be a minimum wage that anyone can reasonably be expected to work for. Moreover, there is generally a consistency of approach from place to place on how to calculate it. The benchmark is the national average wage. The fraction of that average that is taken as the minimum very much reflects the respective societies. In fairly egalitarian parts of the world, such as North-West Europe and Australasia it is around half, while nations more comfortable with extreme contrasts between rich and poor may set it at a third or a quarter.

Jersey takes a slightly lower fraction than the mainland UK as its chosen level. This is not unreasonable, as the average is not only skewed upwards by the relatively high proportion of well-paid professional jobs, but also inflated by the use of the mathematically inappropriate mean for the official average, instead of the usual median. However, there was a long-term strategy to progressively increase from 40% to 45%. The proposals from Deputies Pitman and Southern previously posted on this blog seek to insert suitable figures into the formula to continue, or at least defend the progress.

Personally, however, I am unconvinced that the methodology really approaches the issue from the right direction. There is a strand of left-wing thought that holds wealth distribution to be an end in itself, but it is too rooted in the primitive psychology of envy to lay credible claim to the moral high ground. Surely, the proper and decent basis of any scheme for minimum incomes is to apply our equally primitive, but far more decent human urge for looking after our weak and needy to the alleviation and preferable elimination of poverty.

The basic costs of an austerely sufficient lifestyle in our local economy are already calculated with some care for the purposes of Income Support and Old Age Pensions. Income Support then provides benefit to make earned income, if any, up to a minimum acceptable for the individual's general circumstances and responsibilities. A single adult will receive £92.12 to live on, for example, plus £106.75 for renting a bedsit. A total of £198.87 is therefore reckoned to be the bare minimum for independent existence without undue poverty, at current local cost of living.

Guaranteeing that minimum does bring the catch, that a £199pw full-time wage would attract no help, and yet bring in only 13p more for a whole week's work than sitting idle at home on benefits. Therefore it would not be worthwhile. The solution to this “poverty trap” is to give the minimum wage a significant premium to the benefit rate. I would suggest that working full-time needs to bring in at least a third as much again as total unemployment to be a viable choice. This would be 1/30 of the basic Income Support rate, assuming as usual a 40 hour working week. ( Obviously, benefit claimants with extra claims, such as dependent children, would still receive Income Support to cover their extra entitlements.)

1/30 of £198.87 comes to £6.63. This turns out to be a larger percentage of average wages than the direct calculation from them, a sign that the high local pay rates are more than offset by the even higher local cost of living.

There is a trade-off in all this: To be an economically viable job, the output must add more value than the pay rate. There is a ceiling to the market values of all goods, services and “solutions”, and if the pay rates of the providers rise too high, they simply price themselves out of work, whether the employer downsizes earlier or goes broke later. In hard times, the gap between the minimum legal wage and the maximum viable wage may become critically small, or even negative. However, to keep poor and demoralised workers from clogging and bleeding the benefit system, and more importantly, to maintain a just and prosperous society, the minimum wage must be upheld, even if it costs a few already marginal and insecure jobs.

David Rotherham

Monday, February 15, 2010


Trevor's written questions for next week's States sitting focus on a number of different areas. Question One arises directly from concerns already expressed within the JDA Blog, that really the Chief Minister should play no role in the debate around the proposition being brought to the Assembly by Deputy Bob Hill of St. Martin.

Question Two poses issues that have been troubling many political observers recently and which really should warrant clear answers in the public interest following on from the Verita Report.

Question Three, Trevor tells us, is an issue that a number of the 'progressives' in the States have been discussing due to the regular disappearance/non-appearance of a number of senior politicians during sittings - not just from the Chamber but from the States building. Having rejected Trevor's move to increase the quorum from 27 to 35 we would have to say that it is surely only fair and proper that all unexplained absences from sittings are highlighted for the public.

In many ways Question Four follows on natuarally from the first. Given that we are consistently told that suspensions such as that of Mr. Power and Mr. Day are simply necessary 'nuetral acts' whilst serious allegations are investigated the fact that the same approach has not been applied to the States CEO cannot but help to raise eyebrows. Everyone is innocent until proven guilty but the States simply must have consistency in their approach. Following on from the still unresolved questions around the responsibility for setting up Operation Blast, the release into the public domain of the sworn affidavit from Mr. Power by Deputy Hill really does make this a question that demands an answer.

Finally, Question Five to the Minister for Treasury & Resources poses a question that should be answered fully in the light of the prmised review of taxation in the island; not to mention the storied now doing the rounds that GST may have to be rasied to 12%. Our 1.1.K system is in need of a complete overhaul not least because of the two tier structure that has been allowed to develop with individuals being accepted as residents either side of the current legislation. Having heard from the Chief Minister last year that taxing 1.1.K's would be 'immoral' and the claim from Assistant Treasury Minister Deputy Eddie Noel that individual tax agreements could not be renogiated, clarification of the sort Trevor is seeking will be interesting to say the least.

To Chief Minister

“Given that he is a central figure within the suspension of the Chief Officer of the States of Jersey Police, does the Chief Minister consider that he is conflicted in the matter and should therefore declare an interest and withdraw from the debate of the Deputy of St. Martin’s proposition to set up an independent Committee of Inquiry into the suspension and the way that it has been handled (P.9/2010)?”

To Chief Minister(as responsible for staffing matters -

“Will the Chief Minister clarify whether the recently departed Chief Officer of Health and Social Services received any additional monies/severance bonus payments outside of his contractual entitlement, and, if any such payments were made, did this come from the public purse and what was the total amount?

Would the Chief Minister also clarify whether the former Chief Officer of Health and Social Services resigned, was invited to resign, was dismissed or left by ‘mutual agreement’ in the light of the Verita Report findings?”

To Chairman oF PPC

“Given the fact that the requirement for a Member to attend meetings of the States is set out within the Oath found in Schedule 2 to the States of Jersey Law 2005 and paragraph 2 of the Code of Conduct in Schedule 3 of Standing Orders, will the Chairman advise what disciplinary measures, if any, exist to ensure Members carry out their duties as required?

Would the Chairman advise whether Members leaving the Chamber and indeed the States Building entirely after roll call to pursue non-States matters and to conduct private business is in breach of the above legislation; further still, if none exist will the Committee consider developing disciplinary sanctions to put a stop to this practice?”

To Chief Minister

“In the light of the serious and detailed allegations against the Chief Executive to the Council of Ministers outlined in the sworn affidavit, signed by the suspended Chief Officer of the States of Jersey Police, recently released into the public domain by the Deputy of St. Martin, will the Chief Minister clarify why he has not, as a ‘neutral act’, suspended the Chief Executive until the allegations of engaging in political activity wholly outside of his remit can be fully investigated?”

To Minister for T&R

“Given that 1(1)(k) classified residents fall into two categories; namely those who were granted residence before current regulations were put in place, and those who have been granted residency since, will the Minister list the number of individuals by year for the period 2005 to 2008 inclusive, who paid tax within the following brackets –

(a) less than £20,000;

(b) between £20,000 and £50,000;

(c) between £50,000 and £70,000; and,

(d) between £70,000 and £99,000?

If any 1(1)(k) classified residents do fall into these categories, would the Minister advise how this fits into the framework outlined within the relevant income tax legislation?”

Thursday, February 11, 2010

Public Sector Pay Is Not The Problem

The headline 'Adapt or Die' over the article on Ben Shenton's views was sufficiently alarmist to cast doubt on the integrity of what he was reported to be saying, but I was even more concerned when I read the details.He appears to say that the solution to the Island's problems lies in public sector pay, which must be reduced. I fail to see why he targets the public sector employees in this way, as they are in no way responsible for the current recession nor even for the 40% spending rises. In the period from 2005 to 2009, inflation has risen by 16%, and average earnings in the public sector have risen by 22% - the same as the average earnings in the private sector.

If we go back to the beginning of this economic cycle in 2002, the cost of living has risen by 31%. In this period average earnings in the public sector have risen by 33% and in the private sector by 38%. In 2009, due to the pay freeze, average earnings in the public sector have again fallen behind the private sector. So bringing public sector pay into line with private sector pay would involve a pay rise for most public sector workers. For example there is at least one private school in Jersey that pays its teachers 5% more than those in States' schools.

The 40% rise in spending mentioned by Senator Shenton may be due such projects as the incinerator, and the mismanagement demonstrated by senior officers but pay levels are not the cause of overspends. It seems that in any economic difficulties the public sector is targeted. When the economy overheats these employees are asked to show restraint. In times of recession, when they could help to boost the economy if their spending power were to be maintained they suffer a pay freeze. Let us not forget that these employees are not just faceless bureaucrats, but groups such as teachers, nurses, firefighters and paramedics who provide vital services.

Senator Shenton refers to the pensions 'black hole' but employees have paid contributions over their working lives and the employer's contributions have been part of their terms and conditions. These conditions and the job security that he also wishes to remove are part of what attracts well educated people into the public sector when they could earn more elsewhere. But these benefits are currently being eroded. For example, new entrants to the teaching profession will have much reduced pensions, and not until they are 65 rather than 60. As this is worse than is on offer in the UK we are likely to see further recruitment problems. There is currently a severe shortage of nurses due to the fact that the pay in Jersey is not high enough to compensate for the high cost of living.

Senator Shenton must know that Jersey is, contrary to the current spin, a low tax, low spend economy. Progressive taxation - not an increase in GST - could continue to deliver the services we have enjoyed up to now. Perhaps his emotive 'adapt or die' has some truth in it after all. Jersey must adapt to paying the appropriate rate for its services, or a cancer sufferer who has to wait for treatment because of a shortage of health professionals may well die.

Anne Southern

Trevor's Alternative Minimum Wage Amendment




For the figure of ‘£6.28’ substitute the figure ‘£6.36’



As States Members will appreciate it is hardly surprising that I agree whole-heartedly with the contention outlined within the proposition of my JDA colleague, Deputy Geoff Southern that the 2010 increase to the Minimum Wage proposed by the Minister for Social Security does not go quite as far as it should. Where Deputy Southern and I disagree is simply upon the extent of that increase. The Deputy sets his proposal at a rate of £6.28; or 40.5% of weekly average earnings.

I am proposing that the rate should in fact be based on 41% of weekly average earnings i.e. a new Minimum Wage hourly rate of £6.36. This would take us precisely to the 2010 position targeted by the Employment Forum some two years ago within a framework of aiming for gradual incremental increases of .5%.

It should be noted here that both the original proposition from the Minister for Social Security and that of Deputy Southern already provide excellent background material; drawing at length on data provided by the work of the Employment Forum. In particular I would draw members’ attention to the graph contained in Deputy Southern’s proposition outlining percentages within individual business sectors. Given this material I obviously have no wish to duplicate any information - other than that which I deem to be absolutely essential for the purpose of understanding the justification for the proposition – so will keep my observations as brief as is practical.

The principle underlying a rate set at 41%

As Deputy Southern highlights within his proposition, in 2007, the Employment Forum, in making its recommendations for the minimum wage and in looking to the future advocated a figure of 40% of average weekly earnings following comparisons with minimum wage rates of a number of other countries. These are set out in the table below. Here I would draw Members’ particular attention to the average figure based on all of the countries utilised for comparison highlighted in yellow – 41.14%.

Minimum wages as a percentage of average wage in other jurisdictions

An amendment that simply brings us to the point where we should now be

Though the average percentage figure indicated in the comparison chart above is compelling in itself; in his proposition Deputy Southern reminds us how the Employment Forum emphasised the fact that if government wished to raise the bottom end of earnings the minimum wage must equate to more than 40% of the average wage in future. As already highlighted, the ideal being stated that the Employment Forum would strive to gradually increase the percentage of the average wage used in the formula towards 45% in the future.

Though I personally believe that in Jersey we should actually be aiming, long-term, to ultimately reach a figure of 50%; with regard to the proposed figure for 2010 we need to bear in mind that the Employment Forum unanimously agreed to show a commitment to very gradually increase the minimum wage above 40% of weekly average earnings (half a percent for 2009). Significantly:

The 2009 figure was set at 40.5% of average earnings

Viewed within this context it is my belief that 2010 should therefore have seen us naturally implement a rate of 41%. However, as Deputy Southern highlights, in targeting the minimum wage rate for 2010 the Employment Forum has taken both a backward step from its own established benchmark figure of 40.5%; and also abandoned its previously stated aim of incrementally raising over time the relative value of Jersey’s minimum wage.

The consequence – particularly viewed in the light of significant recent hikes in electricity and domestic fuel costs, the impact of GST etc – is that the position of those at the very bottom of the pay ladder have not been protected. Indeed, it will essentially have been worsened and at the very time such employees need governmental resolution the most!

Of course, though it must be acknowledged that the Forum does offer limited comment in attempting to justify this retreat, to the effect that they felt the need for caution given the economic downturn, the fact is that an equally compelling case can be made for adhering to the Forum’s earlier position.

After all, as we stand in spring 2010 pay awards for the year relating to a number of major pay groups are still being negotiated. Both private and public sectors will now be looking to the future based on fairness and sustainability. We can be quite certain that this proposed incremental increase to 41% with regard to the minimum wage will not be out of step when these awards are finalised. I would also draw Members attention to the fact that the Minister’s proposed rate of just £6.20 is, to the surprise of many I have spoken to, actually even set at below the RPI (X). Please see the table below.

We must ensure a ‘living wage’ is available to all

Considering all of the above I feel that I must conclude with an observation arising from a public seminar I attended late last year relating to the North Town Master Plan. The incident really emphasizes the need for us to keep our sight fixed firmly on reality. At the seminar, like a number of other people present, I was shocked to hear the owner of a St. Helier business complain bitterly about how the States really should be LOWERING the minimum wage if politicians wished to help businesses like his thrive.

Indeed, the gentleman went on to state quite specifically that if we (the States) would only allow him to pay people £3.00 an hour his business and many others would be so much more profitable. Why do I mention this now? Only because I feel – like so many of my constituents working in this bracket who find it necessary to approach me for help – that there are far too many people in Jersey who, perhaps because they have never had the misfortune to find themselves there, have no real conception at all of how difficult it is to make ends meet on Jersey’s present minimum wage.

As I believe most Members will be all too aware, a great many people at the lowest end of the earnings market work very hard indeed. There reward – a reward that we as the island’s government should ensure with vigour and courage given the reality of our highly expensive island – is a rate of minimum pay that is not an ‘existence’ wage but a ‘living’ wage. Setting that rate at £6.36 will do just that. Though an increase form the Minister’s proposed £6.20 per hour of 16 pence may seem, at first glance, a big difference let us keep this in perspective: set against an assumed working week of 40 hours this actually breaks down at an increased salary of just £6.40 per week.

Financial and manpower implications

I believe that there are no direct financial or manpower implications for the States.

Geoff's Minimum Wage Amendment

Deputy Geoff Southern will be proposing the following thoroughly reasoned amendment to the new Minimum Wage Order:-

‘to request the Minister for Social Security, having sought the views of the Employment Forum as required by Article 18(1) of the Employment (Jersey) Law 2003, to make an Order fixing the minimum wage at £6.28 per hour and, as this figure is different from the £6.20 rate recommended by the Forum, to report to the States as required by Article 18(4) of the Employment (Jersey) Law 2003'

The recommendations of the Employment Forum on the minimum wage rates for 2010 are summed up as follows:-

The States are asked if they are of the opinion –

In arriving at this figure for 2010, the Employment Forum examined a wide range of factors. The table below illustrates their impact on the minimum wage rate.

In 2007, the Employment Forum, in its recommendations for the minimum wage had the following to say, in establishing the principle of setting the minimum wage at 40% of average earnings:

“The Forum considers that it is logical to take the June figure of the preceding year and intends to use this formula each year to recommend rates for the following April, subject to consideration, only where necessary, of factors which have had a major impact on the economy, for example an exceptionally good or bad year in the finance industry.

Taking the assumed working week of 40 hours, 40% of the average earnings across all sectors of £540 per week, equates to £5.40 per hour.”

This figure of 40% of average earnings was adopted following comparison with other countries’ minimum wage rate given in the chart and table below.

Minimum wages as a percentage of average wage in other jurisdictions


The minimum wage rate
The Forum recommended in 2006 that the minimum wage for April 2008 should be set by reference to 40% of the overall average weekly earnings, as released in the June 2007 average earnings statistics. This was based on evidence that minimum wages in other jurisdictions are generally around 40% of the average wage of those jurisdictions.

In making its recommendation, the Forum had been influenced by the Economic Advisers advice regarding the States inflation policy and caution regarding the competitiveness of export driven industries. The Forum emphasized that if the States of Jersey wished to raise the bottom end of earnings, the minimum wage must equate to more than 40% of the average wage in future. Ideally, the Forum would aim to gradually increase the percentage of the average wage used in the formula towards 45% in the future. For example, 40.5% of the average wage would have given a minimum wage of £5.47 for April 2007. The Forum intends to take this into account in its 2007 internal review of the proposed uprating mechanism.

By 2008 the principle of raising the relative purchasing power of the minimum wage to over 40% of the average had been adopted.

“The Institute of Directors suggested that the minimum wage should be £6.08 per hour, based on a formula of 40.5% of the June 2008 average weekly earnings. Although a number of respondents said that the formula should not be increased beyond 40%, the Forum considers that this is based on an expectation that the 40% figure itself will be significantly above the average earnings figure.”
They concluded as follows:
“The Forum unanimously agreed to show a commitment to very gradually increasing the minimum wage above 40% of weekly average earnings (half a percent increase for 2009).
The Forum recommends a minimum wage of £6.08 to apply from 1st April 2009.”

The 2009 figure was set at 40.5% of average earnings. In establishing the level for 2010 the Employment Forum has retreated not only from its own 40.5% benchmark figure, but it has also abandoned its stated aim of gradually raising the relative value of the minimum wage. Worse still the Forum has reverted to the 40% mark and thereby failed to protect the position of the low paid.
The June 2009 figure for the rise in the Average Earnings Index (AEI) was 3% overall. The figure for the private sector was 3.3%. These overall figures however mask the trends in the low paid sectors. The sectoral figures are given here:

Individual Business Sectors

Figure 3 - Annual percentage change in average earnings by sector

The traditional low-paid areas of employment, agriculture, retail and hospitality, saw average earnings rise markedly. The award of only a 2% rise to those on the minimum wage to the hourly rate of £6.20 for 2010 actually reduces the protection offered to these lowest paid; it makes their relative position worse. This proposition simply restores the 40.5% benchmark set the previous year. It produces an extra 8 pence per hour and raises the minimum wage to £6.28.

In percentage terms, the rise in the minimum wage proposed in this report amounts to 3.3%, coincidentally identical with the AEI in the private sector. It also matches the RPI (Low Earnings) figure for December 2009.

What this proposal does is to restore those on the minimum wage to the position established in 2009. Any figure below this effectively reduces the protection offered by the States to our lowest earning workers. Especially in times of hardship I believe we must maintain this protection. We should not allow the lowest paid to bear the brunt of the recession.

Graham Power's Own Account Of His Suspension - In Full

Deputy Bob Hill has circulated to all States Members and media Graham Power's full affidavit regarding his disputed suspension, with a covering statement.. Most or all of both items are also available elsewhere, but we are happy to assist Bob in his pursuit of open justice by publishing them in full here, too. The affidavit runs to 20 pages of A4 in the original Word document, and even Bob's covering note is a whole page of small print so we are not expecting everybody to read it in its entirety. However, the definitive version of Mr Power's side of things is here for those who take an interest:-

From: Bob Hill
Sent: 10 February 2010 18:56
To: All States Members (including ex officio members)
Cc: voiceforchildren voiceforchildren; Channel 103; Channel TV; Channel TV; JEP Editorial; JEP Newsdesk; BBC Radio Jersey & Spotlight TV; Spotlight (Spotlight)
Subject: FW: P9/2010 Committee of Inquiry--Suspension of Chief Officer of Police. Additional Information
Dear Colleagues, 
On Tuesday 23rd February 2010 the States will be asked to decide by what means the suspension of the Chief Officer of Police should be reviewed. That such a review is called for is now no longer the subject of significant dispute. I believe that there should be a formal committee of enquiry and have lodged a proposition to that effect. The Chief Minister believes that a less formal review by a suitably qualified expert apparently selected and appointed by him, is the right way forward. It will be for you to decide which of these alternatives will be the most effective in restoring confidence in the integrity of our government and the ability of those in senior office to conduct them in an appropriate manner on our behalf. Whatever way forward is decided upon, the review will be examining an action which is unprecedented in the history of the island. The decision to suspend was taken by the then Minister for Home Affairs. It appears to be the only recorded decision he took during his  short period in office as a Minister. He took it within days of his appointment and a few days later he left office and left politics. This has inevitably raised questions as to why he appeared to act in such indecent haste, what were his motives, who was really making the decisions, why did the former and current Chief Ministers apparently conceal the truth from Mr Power and was there a conspiracy as outlined in my email to the Chief Minister which can be found on pages 22 and 23 of P9/2010?  
Although the former Minister is no longer a member of the States the consequences of his decision have had far reaching repercussions which have caused grave concern in our community, resulted in two public hearings before both the Royal Court and an Administrative Appeals tribunal, an investigation whose costs are now approaching one million pounds and has yet to produce a final report, and constant media attention both on and off island. Since the date of the suspension Ministers have repeatedly resisted requests for information with the consequence that new facts have effectively been "drip fed" into the public domain, either as a result of disclosure in consequence of legal action, or through the inevitable leaks and briefings. Meanwhile, the Chief Officer decided last month to give notice of his retirement. His stated reason is that he had concluded that the suspension had reached a length which made a return to work impossible. In this context the decision to suspend has effectively evolved into a dismissal, which adds to its gravity and significance. 
I believe that in considering the way forward Members should be as fully informed as possible regarding the circumstances of the suspension. I believe that you will be aware that as part of his Judicial Review proceedings, the Chief Officer swore an affidavit setting out his account of events. A copy was provided to the current Minister for Home Affairs in early 2009 and it is believed that other States members have subsequently seen a copy. I believe that it is in the interests of fair play and balance that the information in the affidavit should now be available to States Members in order that the debate and final decision on 23rd February can be as well informed as the circumstances allow. Equally, given the significant media and public interest, I have also decided that a more general release of the document is now appropriate. I had hoped to include the affidavit in my Proposition P9/2010 so as to enable Members sufficient time to read it in conjunction with my report before the debate on the 23rd February which will be held in camera, however I was informed that as the affidavit was not in the public domain it could not be included. Since then it has become clear that some members have seen the document in its entirety and that a significant part of what is said in the content has reached the public domain by other means. 
There is also speculation, some of it inaccurate, as to what it may contain. Against this background and with Mr Power's consent I have decided that it is in the best interests of all parties to end this speculation by making the document more widely available. The document consists of 20 pages and it would be unreasonable to give it to you on the morning of the debate, by circulating it now will enable you to approach the debate on 23rd February with a fuller picture of the background to these events.
PS. To make it possible to circulate the Affidavit it has been necessary to re-type it to "Word"  format.
 Deputy Bob Hill BEM., 
 Deputy of St Martin. 


(Samedi Division)
In the matter of the application of Mr. Graham Power, Q.P.M., Chief Officer of the States of Jersey Police (hereinafter called “the Applicant”) for leave to apply for judicial review of the decision of the Minister for Home Affairs to suspend the Applicant from office.
1. I, Graham Power, Q.P.M., (address) make oath and say that the contents of this my affidavit are true to the best of my knowledge information and belief.
I am the Chief Officer of the States of Jersey Police. I am currently suspended from duty and seek leave to apply to the court for a review of my suspension. My feelings of grievance in this matter are summarised as follows:

The suspension is an unjustified and unwarranted scar on the latter stages of a long and occasionally distinguished career. I would like to see that scar removed.

In my suspension a disturbing precedent has been set which I believe needs to be challenged in the public interest. If it remains unchallenged there are potentially serious consequences for the independence and integrity of law enforcement in the island and an additional risk that future police actions will be subject to inappropriate political pressure and intimidation.

2.My professional background is that I have 42 years police service and have served in the senior ranks of four police forces. Prior to my current appointment I was Deputy to H.M. Chief Inspector of Constabulary for Scotland. I have been decorated by the Queen for distinguished service. My contract as head of the islands police has been extended twice, the most recent extension being in 2007 following as assessment of my performance in post. Successive reports by H.M. Inspectorate of Constabulary have described the force under my leadership as a progressive and high performing organisation with a well motivated workforce. I have been vetted by the relevant U.K. authorities to “top secret” level and have access to security material of extreme sensitivity. In addition to my local duties, I sit on a U.K. committee which addresses sensitive policy issues relating to security matters and I am an assessor for the body which selects potential Chief Officers for U.K. police forces.

3.During my period in office, crime levels have repeatedly fallen and public satisfaction surveys show confidence ratings which are exceptionally high by any recognised standard. I am in possession of letters and reports from political leaders and others which praise me professionalism and commitment. I am physically fit and regularly perform front line operational duties in the island, including nightshifts at weekends. There is no history whatsoever of poor performance or public confidence issues relating to my command preceding the events described in this application. Indeed, all of the recorded evidence points to outstanding performance in the discharge of my duties. Independent evidence to confirm this picture can be produced should any of it be disputed. Since my suspension I have received many messages of encouragement. I am regularly stopped in the street by complete strangers who want to express their support for me and their condemnation of what has occurred. I am one of a handful of the most senior appointed public figures in Jersey. My suspension is seen by many as an event of major significance with far reaching implications. It cannot be described by any fair means as a neutral act. My suspension made world news. My daughter heard of it while listening to her car radio in Australia. The damage to my professional standing and reputation has been considerable. I will now attempt to explain briefly the legal and constitutional background to my position and how it may have affected events.

4.As Chief of Police I am directly accountable to the Minister for Home Affairs on a day to day basis. This was not always the case. Prior to the relatively recent introduction of Ministerial Government I was accountable to the Home Affairs Committee. While this arrangement was far from perfect, the inevitable differences of view and political perspective within the Committee, or even the requirement for the Committee to arrange meetings as a corporate body, created a loose system of checks and balances which presented a barrier to arbitrary action by the Committee President. This arrangement changed on the introduction of Ministerial Government. The Minister for Home Affairs now has sole initial decision making responsibility in respect of any disciplinary issues and can act without any obligation to consult with political colleagues or any other person. As illustrated in my case, this power also has some potential for retrospective use. In this instance a Minister has initiated suspension and disciplinary proceedings in respect of matters which occurred during the tenure of the previous Minister, and has done so apparently without consulting with the previous Minister and in the probable knowledge that the Minister in power when the alleged acts or omissions took place would have taken a different view. This has now been continued by a third Minister.

5. Police Officers of less senior ranks have the protection of the Police (Complaints and Discipline) (Jersey) Law 1999 and the Police (Complaints and Discipline Procedure) (Jersey) order 2000 both of which are held to be compliant with the islands human rights obligations. The interpretation section of the order specifies that it shall not apply to the Chief Officer, and unlike other jurisdictions, Ministers have not created a corresponding set of “Senior Officer Disciplinary Regulations” or similar legislation to provide comparable process and protections for more senior ranks. The document used to justify the suspension was the non-statutory Disciplinary Code for the Chief Officer of Police (appendix “A”.) This document was apparently produced within the hours preceding my suspension and is based on an earlier code approved by the former Home Affairs Committee some time in the years before my appointment in 2000. On the face of it the changes from the earlier code consist entirely of a translation into the language of Ministerial Government. However, a practical effect of these changes is that the decision-making responsibility moves from a corporate body to a single individual, namely the Minister, with no obligation to consult with any other party. In that respect this is a significant change. The original code was produced before the adoption of the Human Rights Law and has not been amended in consequence of that law. No claim is made by the Minister that the translation from the old code to the new code was accompanied by any form of consultation or human rights audit. The code contains no statutory protections, and no provisions for appeal or review in the event of suspension. As events have shown is it capable of creative interpretation by a minister who is so minded.

6.I am therefore now in a situation in which a Minister, on his own individual authority, is seeking disciplinary action against the Chief Officer in respect of matters which took place under the political oversight of the Minister before last, using a code written just hours before the event and based on a document produced in a previous political era with none of statutory provisions and protections afforded the more junior officers.

7.The Jersey legal system does not have a position equivalent to a Procurator Fiscal or an Investigating Judge or Magistrate. For all but a fraction of cases the police service, under the command of its Chief Officer, is the single point of entry for cases into the Criminal Justice System. A court may wish to consider whether, in those circumstances, such close individual political control of the leadership of the force provides for the independence of justice, and is consistent with the principles of Human Rights.

8.In 1996 a committee appointed by the States under the Chairmanship of Sir Cecil Clothier published a report which recommended the establishment of a Police Authority for Jersey. In the twelve years which have followed nothing of substance has been delivered by those in government. Other small jurisdictions have recognised the need to preserve the independence of policing and a number of measures have either been put in place or are under active consideration. For example in Gibraltar there is a Police Authority charged with maintaining the independence of policing and in Guernsey there are draft proposals for the establishment of an Independent Law Enforcement Commission. While these developments have been taking place elsewhere, the movement in Jersey has been in the opposite direction with the removal of the committee structure and a focus on a direct line of accountability to a single politician. It is my contention that this places the Chief Officer of Police at a structural disadvantage in any situation in which the proper requirements of law enforcement and the interests of political expediency collide and is contrary to the principles of Human Rights and Good Governance. This is particularly the case when a new Minister takes a different view from that taken by his or her predecessor.

9.In spite of this background I have attempted to ensure that at all times the force operates “without fear or favour” particularly when investigating matters affecting the interests of politicians, other senior figures, their families and associates. Such investigations are not rare. It is customary for at least one such enquiry to be live at any one time. I cannot remember the last time when the force did not have at least one enquiry of that nature. In an environment in which Ministers and others are accustomed to a more direct control over public services I have found it necessary to make the point that the police are not a department of government, and to assert the independence of the force from direct political control. Ideally these assertions should be founded on some established and widely accepted principles of law and good practice. In the current circumstances they have more often been founded on the determination and strength of personality of the Chief Officer and the former Deputy Chief Officer. No Chief Officer of Police should be required to operate under such arrangements.

10.The events which gave rise to this application did not begin with the suspension meeting on 12th November 2008. Their roots lay in a series of events associated with the historic abuse enquiry. This enquiry, known as “Operation Rectangle” began over a year before it became publicly known and long before the crime scene work at Haute De La Garenne. The investigation took place against a background of widespread rumor, speculation and political controversy. The establishments which the police were investigating were owned and run by the States of Jersey, and for which members of the Council of Ministers had political responsibility. In the early stages a significant number of people were named as “suspects”, either of abuse or of covering up abuse in a way which may have constituted a perversion of the course of justice. Although the suspect list was later refined as the evidential picture became clearer it was extensive in the early stages and, significantly, included a number of people who, currently or recently, held positions of seniority or influence in public services. This provided further grounds for tension and prevented the adoption of a partnership working model common elsewhere for enquiries of this nature. Maintaining the independence of police operations, difficult enough in ordinary times under the accountability arrangements described above, became a full time challenge as the enquiry unfolded.

11. Against this background there followed a series of events and confrontations in which the leadership of the force became isolated from an inner group of politicians and civil servants loyal to the then Chief Minister and hostile to the independent line taken by the police. By way of illustration I will give examples of three events which typify this developing state of affairs.

12. In July 2007 a case came to public notice following a Serious Case Review (S.C.R.) carried out by an independent person appointed by the States. The review concerned the completed criminal case of a (removed for anonymity) who had been subject of sexual abuse by two local men. The matter had been investigated by the police and the two men were convicted. Following the circulation of the review report the then Health Minister, Senator Stuart Syvret, was critical of the depth of the report and asked a number of questions of all of the agencies involved, including the police. I agreed with the Health Ministers assessment of the report. I thought that it avoided some of the more difficult questions and lacked challenge. I did not think that the Ministers criticism of the police was well founded but I arranged for him to be provided with a full reply in response to whatever he asked. I did not see this as a particularly unusual thing to do. In any healthy environment it is open to politicians to challenge the heads of public services and only right that they should get a full reply. As I see it that is how the system is supposed to work. I had assumed that others would see things the same way. On the afternoon of Wednesday 25th July 2007 I discovered that this was not the case. I attended a meeting of the Corporate Management Board (C.M.B.) this is a body which brings together the heads of the islands public services to discuss policy issues and provide collective advice to Ministers.

13.T he feeling in the room was tense and there was general talk about the questions asked by the Health Minister and the need for some sort of action in response. I had the feeling that “something was going on” to which I was not a party. After the meeting the Chief Executive, Bill Ogley, asked me to stay behind. Also remaining were the head of States H.R., Ian Crich, the Chief Officer of Health, Mike Pollard and the then Chief Officer of Education, (Tom McKeon who has since retired.) The Chief Executive said that it was anticipated that the Council of Ministers would tomorrow be asked by the then Chief Minister, Senator Frank Walker, to pass a vote of “no confidence” in the Health Minister and that this could result in his removal from office. I was then told of measures that had apparently been put in place to facilitate this. I was told that the islands Child Protection Committee (C.P.C.) was due to meet at the same time as we were meeting and that arrangements had been made for it to pass a vote of “no confidence” in the Minister. It was then suggested that as the heads of the relevant public services we should do something similar and that this would give support to the proposal that the Chief Minister would bring forward the next day.

14.I was shocked by this and initially did not know what to say. I eventually made two points. Firstly I said that the Minister was entitled to ask difficult questions. As I saw things that was his role and it was our role to provide a response, and secondly, even if that was not agreed, what was being proposed was civil servant and police engagement in political activity. I stated clearly that I did not see that as acceptable and that I would have nothing to do with it. At this point the Chief Executive asked me to leave the meeting which I did. I then made contact with a police colleague who had been at the C.PC. and discovered that this colleague had also had left their meeting for similar reasons. Shortly afterwards we both made brief notes in relation to what had happened. This was my first noteworthy experience of the formation of an “inner circle” of politicised senior civil servants loyal to the Chief Minister. The Chief Executive and the head of H.R. subsequently played a significant role in my suspension.

15.Further indications of an gulf between the Chief Minister and his associates, on one hand, and the force, supported by the then Home Affairs Minister, Senator Wendy Kinnard, on the other, emerged the day on which it was decided that Senator Kinnard was no longer able to maintain political oversight of the Historic Abuse Enquiry. This was because a few days previously she had made a witness statement which created a conflict of interest. At the time of writing I do not have access to my diary and notebooks and cannot be sure of the exact date. A meeting was arranged to discuss how this would be managed. The meeting was attended by me, Senator Kinnard, The Chief Executive and the then Chief Minister. The Chief Minister entered the room and immediately began a verbal attack on the historic abuse enquiry claiming that it was causing damaging publicity for the island. Senator Kinnard, who was the Minister to whom I was actually accountable, attempted to defend the enquiry but she was effectively shouted down.

16.I knew that the views being expressed by the Chief Minister were not the views of the Home Affairs Minister. She had been regularly briefed on the enquiry by members of the force and by senior advisors appointed by the Association of Chief Police Officers and had expressed her strong support for the conduct of the investigation. The Chief Minister said that he was “under pressure to suspend both the Chief and the Deputy Chief”. He did not say where the pressure was coming from but he said this in a way which gave the impression that he was not hostile to that pressure. The heat of the exchanges rose and the Chief Minister spoke to Senator Kinnard in a way which I found offensive and I saw that she was clearly becoming upset. She was the only woman present and I was her only friend in the room. I intervened forcefully and told the Chief Minister that from my management experience, I considered that he was behaving in a way which, in a workplace, could be classed as bullying and lead to a claim or constructive dismissal.

17.After a while things calmed down and the options for re-allocating Ministerial responsibility for the enquiry were discussed. I later learned that Deputy Andrew Lewis, who was the Assistant Home Affairs Minister, had been asked to take the Ministerial lead in respect of the enquiry. (On a later date, when Senator Kinnard resigned as Minister, Deputy Lewis was briefly appointed as Minister for a few weeks before he left politics.) I left the meeting in no doubt that the then Chief Minister was actively seeking a justification to use the power of suspension in a punitive way against either myself or the then Deputy Chief Officer or both. At no stage did he mention any substantive allegations which might justify suspension. He gave the impression of regarding suspension as a weapon in itself. The Chief Executive, who was present throughout, played a significant role in my suspension, and during the suspension meeting the Chief Minister was in the next room. The Chief Minister presided alongside the new Minister for Home Affairs (Deputy Lewis) at the press briefing at which my suspension was announced.

18.Since my suspension a member of the States who is otherwise unconnected to any of these events, has come forward and offered evidence. The States member speaks of overhearing a conversation in the corridors of the State building between the then Chief Minister and Deputy Lewis. This discussion appears to have occurred in the weeks following the meeting mentioned above. During that discussion the possibility of suspending or dismissing the Deputy Chief Officer was being actively discussed. It might be useful to add at this stage that if Minister had taken legal advice concerning their suspension powers in relation to police officers (which they presumably have at some stage) they would have been told that in an apparently unintended consequence of the way that the law is drafted, they have no powers whatsoever in relation to the Deputy Chief Officer. That authority rests entirely with the Chief Officer. If suspension is on their mind then the only target within their range is the Chief Officer. There is nobody else that they are able to suspend.

19.The third example I have chosen relates to a Strategic Planning Workshop held at the St Pauls Centre on Friday 24th October 2008. The Workshop was attended by a number of senior public servants including myself and the Chief Executive. At the commencement of the workshop the Chief Executive asked for silence and said that he had an announcement to make. He named a senior civil servant who was present. The person named is a suspect in the abuse investigation but has not been suspended. The Chief Executive said that the suspect had his total support and that “if anyone wants to get…….(the suspect)…….they would have to get me first”. This announcement was applauded by some but not all of the persons present. I took it as a further indication of the “in crowd” closing ranks against the “threat” of the abuse enquiry. The Chief Executive later played a significant role in my suspension.

20.I now turn to the events more directly related to my suspension on Wednesday 12th November 2008. There was no long “run up” to what occurred. It was all very quick and unexpected. On the evening on Tuesday 11th November 2008 I was on holiday having returned from the U.K. earlier that day. I was unexpectedly telephoned at home by the then Home Affairs Minister, Deputy Andrew Lewis. Given the nature of my professional responsibilities telephone calls during leave and other “off duty” periods are not uncommon, although it was unusual to be contacted by a Minister. The Minister sounded anxious. He told me that he wished to see me in the office of the Chief Executive at 11 a.m. the following day. He said that the meeting was to discuss the content of a presentation and meeting which had taken place that evening, attended by himself other Ministers and the new Deputy Chief Officer. He said that those present at the meeting had seen reports and documents relating to the Historic Abuse Enquiry. I was surprised by this. I did not know that such a meeting had been planned and if I had known I would have attended. In a telephone conversation with the Deputy Chief Officer a few days previously we had discussed forthcoming events and I had been told that there would be a press conference on the historic abuse enquiry on Wednesday 12th November but no mention had been made of any briefing to the Ministers on the evening of 11th.

21.I attended the following morning as requested and was asked to wait in the area outside of the Chief Executives office. I had been there for a few minutes when I sensed a movement and on looking up I saw the Chief Minister apparently leaving the Chief Executives office and return to his own office which was next door. I then saw the Head OF Human Resources, who seemed “flustered” enter the Chief Executives office carrying papers, and leave shortly afterwards. I noted at this stage the time was 11-10a.m. but I did not think to note any times thereafter. Shortly afterwards I was invited into the Chief Executives office. He and Deputy Lewis were seated together and I was invited to sit opposite. They were in possession of documents. It later emerged that these documents were as follows:

21.1.A copy of the disciplinary code for the Chief Officer of Police which I attach at Appendix “a”

21.2.A letter headed “Disciplinary Code” which was addressed to me. Appendix “b”

21.3.A letter headed “Suspension from Duty” which was also addressed to me. Appendix “C”

21.4.Also, two days later I received through the post a copy of a letter headed “Disciplinary Code” signed by the Minister and addressed to the Chief Executive. I attach this at Appendix “D”.

22.The Minister read out to me some of the content of the letter at “B” and showed it to me. This was the first indication that I had been given that the meeting was of a disciplinary nature. I had been given no notice, no time to prepare, and was not offered any representation. The Chief Executive said that in view of the content of the letter I would be allowed up to one hour to “consider my position.” With hindsight I recognise that the Chief Executive may have chosen his words carefully. However, at the time neither myself, nor I believe anyone else in the room, had any doubt that this was an invitation to resign. I treated it as such and said that I was rejecting the opportunity and denied any wrong-doing. I also protested at the unfairness of what was happening, the fact that I had not seen the documents to which the letter referred, and had been given no chance to offer representations or a respond to their content. These comments were noted but nothing was done.

23.It was at around this point that I became aware that the Chief Executive was taking handwritten notes. These appeared to be detailed and I saw him turn an A4 or similar sized page at least once. At one point I slowed down what I was saying in order that he could capture the words. The Minister then said that he had decided to suspend me with immediate effect and I was handed the letter “C.” This was the first indication I had been given that suspension was a possibility. Suspension had not been discussed until seconds before it was actually invoked. A short conversation followed during which I made representations on the manner of any enquiry and for “equality of arms” by means of legal representation. It was during these exchanges that further information emerged from the Minister, who made a number of unscripted comments which continued in spite of interruptions and other attempts by the Chief Executive to get him to be quiet. It was stated by the Minister that the press briefing to announce my suspension had already been arranged for that afternoon, and that Ministers had already agreed “lines to take” on such matters as confidentiality during any enquiry and that it would be claimed that the suspension was a “neutral act”.

24.The Minister then appeared to have an attack of guilt. He told me that he had always admired my commitment and professionalism and that he regarded me as an outstanding Chief Officer. He offered me his best wishes and sincere hopes that I would be successful in defending myself against these allegations. He did not seem to see any contradiction between what he was saying and his actions of a few minutes previously. It was on this surreal note that the meeting ended. According to my recollection it all happened very quickly although I did not think to note the time. It was subsequently said on behalf of the Minister that the meeting lasted less than 35 minutes but how much less was not stated. (The Ministers account of the meeting will be referred to again in this application and is set out in Appendix “h” to follow)

25.I have subsequently had an opportunity to study the documents provided to me in more detail. Based on the documents I have been given, and my long experience in operating similar procedures from a management perspective, I offer the following observations. The letter from the Minister to the Chief Executive (Appendix “D”) requires the Chief Executive to “conduct a preliminary investigation under paragraph 2 of the discipline code” Paragraph 2 of the code describes the process for a preliminary investigation. The Chief Executive is required to establish the “relevant facts” These will include “statements from the available witnesses and the Chief Officer.” Paragraph 2.3 of the code is headed “continued or serious breach of discipline/poor performance/capability.” It begins in paragraph 2.3.1. by stating “if the preliminary investigation indicates that a more serious breach of discipline … has occurred … the issue will be considered by the Home Affairs Minister.” Paragraph 2.3.2. describes how a hearing in consequence of paragraph 2.3.1. will be established. Paragraph 2.3.3. states “In more serious circumstances the Chief Officer may be suspended from duty…pending the outcome of this procedure.” I submit that there can be no reasonable doubt that the Discipline Code for the Chief Officer of Police creates a legitimate expectation that the suspension will be preceded by a period of preliminary investigation, assessment of evidence, a right of response, and an appropriate level of consideration and reflection. I submit that this is not only an expectation created by the code but a requirement of fair play and natural justice. No such entitlements were provided in my case.

26.As I understand it, the Minister may attempt to argue that he was entitled to conclude, without any preliminary investigation, that “more serious circumstances” had arisen and that he was thereby entitled to suspend without any preliminary process. It is agreed that the circumstances could conceivably arise in which the procedure may need to be condensed. For example the Chief Officer being arrested while committing a crime might be one such circumstance which could possibly justify a shortening of the expected process, although even in those circumstances some form of preliminary consideration and representation might be appropriate. In such an event it would be for the Minister to record and justify why such extreme action had been taken. “more serious circumstances” should not be used as a “get out clause” Which allows the Minister to by-pass the legitimate expectations of process created by the code, and act without warning, without offering representation and without providing a fair opportunity of response. In this paragraph, and some to follow, I have argued that the Minister has not complied with his obligations under the disciplinary code for the Chief Officer of Police. I would nevertheless ask that all of these comments be viewed in context of paragraphs 5 to 7 of this application which raise questions regarding the appropriateness and Human Rights compliance of the code itself.

27.I will now set out some of the reasons why I consider that it would have been fair and reasonable for the Minister to consider the issues before him at greater length and in accordance with the prescribed procedure, and hoe he has failed to take into account matters which it was his duty to consider. In some cases I have asked the Minister to provide further information relevant to this application. At the time of writing this has not been provided. I do however have copies of the original letters from the suspension meeting which form part of the appendices and I have since received the proposed terms of reference for the Investigating Officer. These are attached at Appendix “E”. The reasons which, in my submission, provide grounds for overturning the decision of the Minister in addition to those already stated include the following:

27.1.So far as is known, whatever is alleged (and over six weeks after the event I have still not been shown the documents containing the allegations which gave rise to my suspension) relates to management processes and structures in the early part of the investigation. I understand that nothing relates to the current management of the force and that there is support for the management structures which I have either put in place personally, or have been put in place by others acting on my instructions.

27.2.On the 12th November 2008 I was part way through a holiday, was not in command of the force, and did not intend to return to work for several days. There was ample time to apply proper process and to allow representations.

27.3.The Minister appears to have placed high emphasis on reports to the effect that the early part of the investigation was not conducted in accordance with the multi-agency model more common in such investigations. He has failed to take into account the strong impediments to partnership working set out in paragraph 10 of this application.

27.4.In seeking to determine my culpability the Minister appears to be relying on an assessment of compliance with policing guidelines which apply in much of (but not all of) the U.K. He has failed to address the question of whether he or his predecessors have ever approved the application of those guidelines to this jurisdiction.

27.5.The Minister places heavy reliance on a document which purports to set out the interim findings of a review by the “Metropolitan Police” into the early staged of the investigation. This review was carried out on my authority. He does not appear to have taken into account that the actual authors of the report are understood to be one police officer, who. In the context of these allegations, is of relatively junior rank, and one civilian assistant. It is believed that neither has ever exercised strategic oversight of a major crime enquiry from the rank of Chief Officer or equivalent. (At the time of writing more details relating to this have been requested and are awaited.)

27.6.The Minister has failed to take into account the reports and verbal briefings provided to him and others during the relevant stages of the enquiry by a team of senior expert advisors appointed by the Association of Chief Police Officers.

27.7.He has failed to take into account the prompt and full response of the force to all of the issues raised during the process described at 27.6 above and the fact that at no stage did he or any other political representative express any dissatisfaction in the consequence of the high level briefings given by the senior A.C.P.O. team.

27.8.He has failed to take into account the fact that the senior A.C.P.O. advisors referred to above were internationally recognised for their expertise and were led by a person with many years experience in the strategic oversight of major crime enquiries from a rank equivalent to that of Chief Officer.

27.9.So far as is known he failed to give due weight to the fact that none of the alleged events took places during his tenure as Minister and he failed to take reasonable steps to establish whether the person who was Minister at the time had any views on the matter.

27.10.The Minister failed to take into proper account the fact that prior to his retirement the former Deputy Chief Officer was awarded a certificate of commendation by the previous Minister for outstanding leadership and media management in the investigation. The Minister has failed to reconcile this award with the retrospective view of events which he has now chosen to take.

27.11.The Minister has failed to take into account the frequently expressed wishes of political leaders and others that the policing of the island should be developed along the principles of local solutions to local issues and that the creation of excessive bureaucracy, processes, and management structures should be avoided. In seeking to hold the Chief Officer to account for allegedly failing to comply with U.K. policing guidelines the impact of such a precedent on the wider agenda of protecting the independence of law enforcement in Jersey has not been given due weight.

27.12.The Minister has failed to take proper account of the 2008 report by H.M. Inspectorate of Constabulary which states “At the time of the Inspection the force was investigating a series of criminal allegations relating to a children’s home spanning a number of decades. In addition to committing substantial local resources, the force sought and was receiving specialist operational assistance from forces on the U.K. mainland to allow the force to effectively investigate these allegations whilst maintaining core business. The investigation was being led by the deputy chief officer and was of a very high profile.” The Inspectorate made no critical comment concerning this arrangement.

27.13.The Minister has failed to fully address the question of whether, against all of the background, and the known performance of the force under my leadership, the action taken was a necessary and proportionate measure.

27.14.The suspension occurred on 12th November 2008 and on 2nd December the Minister made a report to the States. In that statement, and in subsequent exchanges, he makes no claim to have sought any further information, or considered ant representations since the original suspension. He refused to provide members with a copy of the Disciplinary Code under which he had acted. By his actions the Minister prevented members from engaging in proper scrutiny of what had occurred and has sought to defeat the apparent intention of the law that, although initially accountable to the Minister, the Chief Officer is ultimately accountable to the States as a whole.

28.While guidelines approved by the U.K. H OME Office do not have a direct application to Jersey, they can sometimes provide background information as to what is seen as appropriate elsewhere. For this purpose I attach at Appendix “F” a copy of the current guidelines which are applicable in most of the U.K. It can be seen from the document that suspension is positioned as part of an incremental process, usually associated with a history of poor performance and public concerns. The procedure of addressing these issues typically involves a partnership between the Home Secretary, The Inspectorate, and the Police Authority. Suspension may be invoked when the relevant parties have concluded that a point has been reached in which a requirement to resign or dismissal is appropriate and there are significant public concerns. The guidelines state “suspension is a grave matter and the authority or the secretary of State will need to make a judgement about whether suspension would enhance or diminish public confidence. While it is accepted that these guidelines are of marginal relevance to my case, they nevertheless give some support to a legitimate expectation that the suspension of the head of a police service will be seen as a last-resort option, preceded by careful consideration and assessment involving a number of parties. It should also be noted that under U.K. guidelines any suspension needs to be subject to a monthly review.

29.I now turn to some associated issues which may be seen as undermining any argument by the Minister that some form of due process or proper consideration was applied in my case. The first concerns the text of the letter of suspension which is at Appendix “C”. This letter was handed to me at the conclusion of my discipline meeting. I had received no prior warning of this possibility. The final paragraph of page 1 states “At our meeting earlier today, I informed you that I was considering whether you should be suspended from duty. I now write to inform you that I have decided, in accordance with the terms of the Police Force (Jersey) Law, 1974, to suspend you from duty, on full pay, pending the outcome of the investigation and any subsequent hearings.” I do not believe that it is disputed that there was no meeting “earlier today.” I have challenged this and other aspects of the process and received a letter sent on behalf of the Minister dated 19th November 2008 which I attach at Appendix “G”. The letter refers to the discipline meeting on 12th November 2008 and makes the following claim. “the Minister, having outlined his concerns about the command and control structures in place as regards the Historic Abuse Enquiry and your role within that, informed you that he was minded to invoke the disciplinary code and suspend you. You were offered a period of time (up to an hour) to consider matters and you were offered unsigned copies of the letters it was intended to give you should the process be subsequently activated. The purpose of this was for you to have access to the matters that would be subject of possible investigation and to give you the opportunity to consider those and comment back to the Minister before any decision to commence the process was taken.

30.Taken as a whole this statement is almost entirely untrue. Firstly it seeks to explain the offer of up to an hour to “consider my position” as not an offer to resign but an opportunity to have “access to the matters that would be subject of investigation.” Given that both the discipline letter and the suspension letter make it clear that these “matters” are set out in documents which, over six weeks later, I have still not been shown, and relate to an enquiry which had been running for around two years, I suggested that this claim is transparently false, as is any suggestion that a period of up to one hour, with no notice and no representation, constituted anything approaching a fair opportunity for to make a reasonable submission. If this is doubted then I refer to the initial comments of the Chief Constable of Wiltshire who has been appointed Investigating Officer into the allegations made by the Minister. In seeking to agree the initial process for the enquiry he states in a letter dated 11th December 2008 that “Based on what I know now, I do envisage that relevant inquiries will probably take a number of months to complete.” Even if a period of “up to an hour” had been offered to comment upon the allegations (which it was not) then it could not be seen as fair in the circumstances.

31.Also relevant to the conduct of the Minister is his claim in the letter that the possibility of suspension was mentioned at the beginning of the meeting, and that he informed me that he was “minded.” To suspend me. On reading his letter, I saw this as an attempt on his part to handle the issue of the reference in the suspension letter to the meeting “earlier today.” I anticipated that this may be the beginning of an attempt to argue that the meeting in some way had two parts and that some form of consideration took place in the middle. This might be somewhat implausible in a meeting which, by the Ministers own account lasted less than 35 minutes and by my recollection was rushed and quickly concluded. However, this position changed a few days later when, on 29th November 2008 I received a typed document signed by the Minister. (Appendix “H”) This purported to be a record of the disciplinary meeting. This at least makes it clear that no mention of suspension was made until the Minister handed me the suspension letter thereby putting the process into effect. I wrote and challenged the typed record of the meeting on the basis that it claimed things which were not true and omitted things which were in my favour. In order to clarify matters I asked for a true copy of the handwritten record made by the Chief Executive during the meeting.

32.On 5th December 2008 I received a further letter on behalf of the Minister (Appendix “I”). This informed me that the original notes of the meeting had been destroyed. It is my belief that, in the sequence of events, this destruction took place at a time when the Minister and his civil servants were on clear notice that I was preparing a legal challenge to my suspension, and may have been done because the notes contained evidence which was in my favour. I have made a separate formal complaint in respect of this.

33.Taking all of the evidence into account I consider that I am entitled to believe that the decision to suspend me was in fact taken by the Chief Minister and the Home Affairs Minister, probably in collusion with others, on the evening of Tuesday 11th November 2008. Civil Servants were then tasked with producing paperwork and a procedure for use the following morning. This was done with the intention of creating an impression that some form of due process and consideration had taken place. This latter task was however performed in a rush with the consequence that mistakes in procedure and the attempted deceptions are evident.

34.On 3rd December 2008 I received a copy of the proposed terms of reference for the Investigating Officer in respect of the allegations against me (Appendix “E”). The Investigation has been given the title of “Operation Haven” and is headed by the Chief Constable of Wiltshire. The Investigating Officer has since made it clear that he does not regard matters relating to my suspension as falling within his remit and consequently he will make no enquiries in respect of what occurred. On my reading, the terms of reference invite an investigation into the extent of my compliance with guidelines applicable to police services in England and Wales. No evidence is offered as to why these guidelines should be deemed to be applicable to Jersey I have made separate representations to the Investigating Officer in respect of this and other aspects of the proposed terms of reference for “Operation Haven.”

35.In summary, I suggest that the following are some of, but not all of, the matters in respect of which the court may wish to take a view.

Whether the actions of the Minister, and the structures of accountability, legislation and process on which he founded those actions, are consistent with the general principles of fairness and compliance with Human Rights.
Whether the actions of the Minister were consistent with legitimate expectations of process, representation, proper notice, and the right of response created by the disciplinary code and the general expectations of proper procedure relating to the suspension from duty of the Chief Officer of Police.

Whether the Minister took into account all of the things which he had an obligation to consider before taking the serious step of suspension.

The public interest issues arising from the creation of a precedent and the possibility of the future abuse of that precedent by a Minister who is inconvenienced by the proper execution of police duties, and of the wider implications for public confidence in the independence and integrity of the police service and of the Criminal Justice System as a whole.

Signed…………………..Graham Power.

Monday, February 1, 2010


Trevor has just informed us that following discussions with Home Affairs Minister, Senator Ian Le Marquand he has agreed to put his proposition to establish a working group to develop a strategy for dealing with young offenders ‘on hold’ until April.

Trevor explains: ‘Having been one of the politicians who called for the urgent construction of an all-encompassing ‘Children’s Plan for Jersey’ (whilst Vice-Chairman of the Vulnerable Children’s Services Scrutiny Review), I’ve taken this decision to allow us to see if all that is needed can come out of the work recently commissioned with Andrew Williamson. Similarly, to establish if the claimed ‘reactivation’ of the Corporate Parent which failed so dismally in the past can now live up to its responsibilities. It’s no good just having a new name – it has to deliver.’

Nevertheless, Trevor is keen to stress that at this stage he is certainly not pulling or abandoning the proposition.

‘Like the Minister I obviously do not wish to see any work unnecessarily duplicated,’ he told us. ‘But one of the pleasing outcomes of my earlier proposition, P148, was that the debate around it in November 2009 has really contributed to focussing people’s minds on the urgent need to get to grips with the issue of young offenders.

Thus, given that things have finally begun to move somewhat I’m happy to put the proposition on hold for a couple of months to see what develops. But I will be watching the situation closely. This is not just about sorting out the Youth Justice system. Far from it!

We need a root and branch look at everything that underlies and contributes to young people ‘going off the rails’ and offending. If the work initiated by the Home Affairs Minister and his colleagues fails to deliver in terms of the necessary depth then come April I will bring the proposition back to the States for debate. This is just too important to risk not getting right.

Trevor also told us of his real frustration with the failure of Ministerial government to utilise the many different skills and work experiences of Members existent within the States.

‘I obviously have very real concerns about how the Chief Minister has consistently told us he is committed to ‘inclusive’ government - yet time-after-time has acted to implement the exact opposite. Setting up this style of strategy group would have been an example of precisely the way the States should be making use of individual Members professional experience and skills to get the best results for the community.

This is an area of work I am passionate about coming from the background that I do; and where I would like to play a part. Many other ‘backbenchers’ feel exactly the same about other areas. We appear to have taken a step in the right direction with the recent acceptance by the States of the Fort Regent working group advocated by Scrutiny. And if we are not to forever be a ‘them’ and ‘us’ government then this is surely the way forward that we must be willing to follow. Unfortunately, I admit I can’t help feeling that for many within the COM ‘inclusion’ is just a convenient sound-byte for the spin-doctors’.