Internal review into second term of Scrutiny in Ministerial Government: December 2008 to August 2011.

STATES OF JERSEY

INTERNAL REVIEW INTO SECOND TERM OF SCRUTINY

IN MINISTERIAL GOVERNMENT: DECEMBER 2008 TO AUGUST 2011

Presented to the States on 7th October 2011 by the Chairmen's Committee

STATES GREFFE

2011   Price code: C  R.118

REPORT

President's foreword

Following increasing dissatisfaction by some scrutiny members over a period of time and the announcement of the resignation of the Education and Home Affairs Scrutiny Panel,  I  decided  in  my  capacity  as  President  of  the  Chairmen's  Committee  to undertake an internal review during the summer recess of 2011 to try to identify the reasons behind the disillusionment. The review focussed on the last session from December 2008 to August 2011.

Without detracting from the outcomes and recommendations of the review detailed below, one point was very clear: there is an almost universal support for Scrutiny in a robust form and an acknowledgment that Scrutiny is credible in the main and has been successful in a number of areas. There was, however, support for the concept that Scrutiny should follow up reports more decisively to ensure Ministers are held to account.

On the other hand Scrutiny has not, perhaps, fully matured and there are issues which need to be addressed. Ministers should take the recommendations seriously, rather than dismissing them out of hand. Alternatively Scrutiny must avoid slipping into a quasi opposition role.

There is also the problem that Scrutiny is perceived to be "second-best" and is inferior to the Ministerial role. Added to which some Ministers who have never been on Scrutiny appear not to understand clearly what the function of Scrutiny is intended to be. It is also not always appreciated that Scrutiny has the right to have access to all relevant information for background information incase a review may be warranted or as part of a review with Panel-agreed terms of reference. With more consensual working practices this should be easily achievable.

There is a general view that Scrutiny could be usefully involved in the development of policy. This would improve the sense of inclusivity and would provide Ministers with an objective sounding board.

I hope that this review will encourage existing members of the Assembly, as well as new members, to think how they can contribute to the improvement and development of Scrutiny as well as improving their understanding of its importance to our system of government.

I would also like to take the opportunity of thanking all those Members and officials who gave up their time to discuss the issues with me. It has proved an interesting exercise and although this paper provides a basis initially for discussion amongst the Scrutiny Chairmen in preparation of a Chairmen's Committee legacy report I hope it will be of interest to you.

Senator Sarah Ferguson President, Chairmen's Committee

Introduction

In conducting this review there was no intention of undertaking a study of Ministerial Government and government structure overall. The purpose was purely to examine the role of Scrutiny within the existing structure of government and, as stated in the foreword above, to analyse why there is so much disillusionment amongst Scrutiny Members leading to the claim that Scrutiny isn't working. Also it was intended to consider ways of enabling Scrutiny to be more effective and encouraging Members in the  new  States  to  see  Scrutiny  as  worthwhile  and  valuable  within  the  existing structure. Perhaps inevitably, views have been put forward about the overall structure of Ministerial Government, as during the review it became clear that Scrutiny is not seen as the "illness but as a symptom of the illness". Also as the report focuses on the Scrutiny function, it does not comment on non-Executive Members who opt out of Scrutiny.

Working methods

It was considered essential to acquire a representational view across all Members in various sectors of the legislature as to how Scrutiny had, or had not, impacted on them.

The format was to hold discussions with individual Members in an environment where Members could express views and opinions freely. Notes of all meetings were taken and forwarded to contributors. Participating Members and Officers have been advised that information provided in this paper will not be attributed in any way. Quotes in each of the key findings come from across the board from the Members interviewed below.

Initially all Scrutiny Chairmen were offered the opportunity of individual meetings, followed by a number of Members with a range of responsibilities as noted below –

Scrutiny Member and no other role;

Scrutiny Sub-Panel Member and no other role;

Assistant Minister formerly on Scrutiny;

Assistant Minister and no other role;

Minister formerly on Scrutiny;

Ministers and no Scrutiny/non-Executive role.

Unfortunately none of the non-Executive Members who do not sit or who have never sat on Scrutiny volunteered to share their views.

A meeting was held separately with the Education and Home Affairs Scrutiny Panel (including Deputy M. Tadier of St. Brelade who had recently resigned) because of the earlier announcements in the States of the future resignation of the Chairman and Panel Members. All States Members were invited to individually discuss their views. Meetings have been held with Senators, Deputies and Connétable s.

A  meeting  was  also  held  with  Scrutiny  Officers.  Some  departmental  officials accompanied Ministers.

Meetings were held with 19 States Members in total. Whilst it is recognised that this is less than 50%, the meetings have given rise to some common outcomes, which it is believed are sufficiently important to follow up.

Background

As a starting point it is worth considering the original intended purpose of scrutiny, what it was set up to do and the requirements needed in order for it to be effective.

Original purpose of scrutiny

It is beneficial at this point to refer back to P.122/2001 (7.1) –

"scrutiny should be regarded as embracing three main activities, namely participation in the development of policy, the review of legislation and the performance of government."

The first responsibility of Scrutiny Committees (as they were termed in P.122/2001) was –

• "To seek to influence the formulations and development of policy by considering and commenting on proposals that have been received from individual Ministers and the Council of Ministers."

It is apparent that there was an original intention for scrutiny to be involved in policy development, yet some Panels have felt excluded whilst others believe being involved early is doing the work of the Executive.

Original pre-requisites for effective scrutiny

P.79/2003 (27) dealt with the conditions for effective scrutiny. The full section is included as an appendix to this report but it is worth including a couple of excerpts here as follows:-

"Member Leadership and Engagement – Scrutiny can only work in the longer term if scrutiny members drive the process and provide genuine  leadership.  This  is  not  just  a  task  for  the  Chairmen  and Deputy Chairmen but a wider number of members must be actively engaged and enthusiastic about scrutiny. These members also have to demonstrate the appropriate skills to undertake this work and to have the trust of fellow members; and

Responsive Executive – A responsive Executive which is willing to listen to and be influenced by scrutiny is a pre-requisite for effective scrutiny"

Over the last 3 years enthusiasm to be part of scrutiny has declined. The reasons for this are discussed in detail below, however, one of the main reasons appears to be that Scrutiny Members do not feel that Ministers are willing to listen and willing to be influenced by Scrutiny. Indeed it was stated (and not by non-Executive Members) that some Ministers are arrogant and have a total disrespect for Scrutiny in any form. This in turn has helped to lead to a lack of active engagement and enthusiasm to be part of the Scrutiny function.

It seems to be vital to re-establish an understanding of what Scrutiny was originally set up to do, for Ministers to accept that Scrutiny can and should be involved in policy formation and also to demonstrate that they are willing to be influenced by Scrutiny (actually show that they have acted on Scrutiny recommendations rather than just accept/reject  them).  This  in  turn  would  hopefully  encourage  more  non-Executive Members to be actively engaged and enthusiastic about Scrutiny.

Key Findings

Although the findings were very broad, this report focuses on the main ones relating to scrutiny within the current system of government. The main key findings were –

• There is minimal support for reverting to the Committee system;
• There is a strong common view that Scrutiny in some form should continue;
• There is a strong wish for more inclusivity i.e: being involved in the development of policy;
• There is general support for Scrutiny being involved at an early stage of policy formation and also in it assessing whether existing policy is fit for purpose; examples of successful reviews have been given as: Sale of former JCG, Importation of Bovine Semen, Rural Economy Strategy, Mobile Phone Masts, Fort Regent, Speed Limits and Long Term Care of the Elderly.
• There is an agreed view that Scrutiny should not be used for personal political agendas; Members have opportunities in Jersey to pursue personal politics outside Scrutiny.
• Scrutiny  is  not,  nor  should  be,  a  vehicle  for  opposition  politics (although there was a view held by some that there should be an opposition and that there is currently no mechanism for this).
• Very few Members, Scrutiny or Executive have read and are familiar with the Code of Practice for Scrutiny Panels and the PAC.

Summary analysis of views

1. Inclusion versus exclusion

This was the main common theme –

Members stand for election because they want to make a difference based  on  personal  and  political  viewpoints.  Consequently,  once elected, Members want to be in a position of pursuing those political aims and being involved in order to try to achieve what they set out to do.

Members being placed in a position where they think they cannot make  a  difference  results  in  a  feeling  of  failure,  they  become frustrated which can lead to animosity and in turn, divisiveness and this creates a dysfunctional structure.

There appears to be a four-tier society in the Jersey legislature with differing degrees of responsibility and power, the divisions of which seem to have caused it to become adversarial.

2. Politicisation of scrutiny

One general outcome was an agreement that Scrutiny should not be political; there are opportunities in Jersey to pursue personal politics outside Scrutiny.

It was commonly felt that the original intention of Scrutiny approaching subjects on an impartial, objective and balanced basis had generally been lost. The reasons could be partly because of A above and/or because there is no vehicle for opposition politics, so Scrutiny has naturally filled that vacuum, although the Scrutiny Office maintains its impartiality and objectivity in advice given. The inclusion of personal politics in Scrutiny had, it was felt by many, led to a lack of trust.

Some quotes:

• Certain  Members  use  Scrutiny  for  their  own  ends  and  to  gain information for their own cases and political interests and as a result Scrutiny is undermined;
• Some Members play political games and abuse the Scrutiny system;
• Scrutiny being used as voicing political views;
• Some Members use Scrutiny to expound opposition politics;
• More attention should be given to political issues rather than topics that are in the public interest.

3. Scrutiny

When should scrutiny be involved?

The general agreement of those spoken to, with a few exceptions, was that Scrutiny should be involved in policy formation. It was felt that this could work without damaging the integrity of either the Minister and Department or the Scrutiny process. A  means  of  achieving  this  may  be  by  Panels  nominating  one  Panel  Member  as rapporteur in a specific area (with Scrutiny Officer support) who could then be more involved in the Minister/Department's work on the policy under development (e.g. attending meetings). At an appropriate time the rapporteur would report back to the Panel and terms of reference would be drawn up for a review. It should be recognised however that Scrutiny members will  maintain the independence to challenge and criticise during a formal review.

In order to do this, there are two essential elements:-

Ministers must be prepared to be open with rapporteurs/Panels;

Panels  must  be  prepared  to  accept  private  meetings/briefings  and respect confidentiality;

All Members, Scrutiny Officers and departmental officials need to recognise and accept that Scrutiny can be involved at a number of stages: from the conceptual phase of policy to reviewing whether a policy is fit for purpose.

Some quotes:

• Scrutiny Members are very much part of the decision-making process;
• Generally scrutiny should review completed policy;
• Scrutiny should be involved asap working alongside Ministers when considering new policy but working independently from Ministers on reviews into those policies;
• Scrutiny should be involved at the earliest possible opportunity – at the conceptual stage;
• Scrutiny should be involved at the consultation phase;

How can scrutiny improve in the current system?

Outside the concerns of inclusion/exclusion above, and in consideration of what can be done to improve within the existing structure, the following prerequisites were mentioned:

strong Chairmen with leadership skills were needed;

the ability to work as a team was essential;

improved selection of topics;

a focus on specific reviews and not "dabble" in everything;

be prepared to work closely with the Executive but keep a distance when review is underway;

become  more  robust  and  challenging  –  bring  forward  more propositions for debate on the back of review evidence.

Some quotes:

• The quality of Scrutiny depends on effective leadership;
• The conspiracy theory idea (which has no foundation) needs to be dropped;
• Develop team working on Panels;
• Standardise approaches i.e: abide by the various documents pertaining to Scrutiny as mandated by the States so that there is less confusion for the public;
• Use  the  opportunity  to  form  Sub-Panels  more  to  include  wider Membership across topic areas.

4. Ministers: approach to scrutiny

Whilst, perhaps inevitably, most Ministers believe that they have tried to be open with their respective Panels, some Panels do feel that the Ministers have "stone-walled" them. If more co-operative working practices could be developed as discussed above, communication should improve and information be shared more readily.

Some quotes:

• Some Ministers do not take Scrutiny reviews, nor quarterly hearings seriously;
• Executive can be seen as arrogant when it comes to Scrutiny;
• On  occasions  Panels  have  been  misinformed  about  the  existence and/or availability of information;
• The Executive want to lead and control Scrutiny;
• Some  Ministers  could  often  do  more  to  interact  with  Panels  and involve them in policy development whilst accepting that the time will come when the Panels will work independently on a review;
• Ministers have become defensive. When someone expects criticism, it is a normal reaction to go on the defensive.

5. Role of Assistant Ministers

Other than the fact that the role is not widely understood, there were mixed opinions about whether Assistant Ministers should be permitted to sit on Scrutiny Panels. Of concern was the fact that many Assistant Ministers attend the Council of Ministers meetings from time to time and are conversant with matters outside their own remit. There was the view that this may create difficulties if Assistant Ministers were to be objective when working on a Scrutiny Panel.

Some quotes:

• Scrutiny Members can have more access to information than Assistant Ministers;

• Assistant Ministers are not elected by the States and have no mandate;

6. " Troy Rule"

There was a very split view in respect of whether the " Troy rule" should be abolished. Many thought it would be unhealthy if the Executive had a majority. Furthermore, it was stated that for Assistant Ministers to sit on Scrutiny did not mean the abolition of the Troy rule. However, it was also stated that if the Troy rule were to be abolished, Assistant Ministers should be elected by the States.

Some quotes:

• " Troy rule" should be maintained;
• It would be unhealthy if the Executive had a majority, although it would be useful to spread the work around;
• More Assistant Ministers aren't necessarily required and it could have some detrimental effects;
• Abolish. The Troy rule is only appropriate for a party system;
• It doesn't serve an effective function;
• There is no problem with the " Troy Rule" as it ensures an appropriate balance between Executive and non-Executive Members.

7. Conduct of Members

There  was  a  general  view  and  a  great  deal  of  disappointment  that  conduct  had deteriorated considerably, not just in Scrutiny but in the States Assembly. It was felt that  Ministers  had  become  more  defensive;  a  possible  result  of  being  constantly criticised and being subjected to aggressive and sometimes offensive behaviour. It was felt that if there are Codes of Practice then there should be sanctions for any breaches although there were no clear suggestions what sanctions could be imposed nor who would implement them.

Some quotes:

• No professionalism in the States as a whole nor in Scrutiny: poor punctuality,  poor  behaviour  during  meetings,  breaking  Codes  of Practice and protocols etc;
• Some  Members  have  told  officers  to  "break  the  rules"  to  get information;
• Members too willing to blame the Executive for Scrutiny's lack of activity when in reality it's usually due to the inactivity of the Panels;
• Some Scrutiny Members' conduct brings Scrutiny into disrepute;
• A stronger PPC is needed to ensure appropriate behaviour overall

Recommendations

These recommendations are for discussion purposes and initial consideration by the Chairmen's Committee as part of its legacy report.

Recommendation 1: Improve Communication

There must be a will on the part of all States Members to understand what all the various rôles entail and a willingness to share information and co-operate with one another. Whilst this would necessitate a move from the current mood of Members it could be achieved as follows –

Initial  induction  (immediately  after  October  half-term)  for  newly- elected States Members on the work of the Scrutiny Office;

Meeting of all States Members early January to consider the outcome of  this  review,  more  inclusive  working  practices  and  to  receive information  on  the  Standing  Orders  and  Codes  of  Practice  which apply to Scrutiny and the PAC;

Ministers and Assistant Ministers hold departmental open-days early in  2012  for  all  Members  (not  just  Scrutiny  but  for  all  Members whatever their role) to meet officers and receive briefings on the work of departments (in private);

Ministers  and  Assistant  Ministers  hold  departmental  briefings  in departments with respective Panels and relevant officials to give more in-depth  briefing  on  work  of  the  department(s)  and  the  role  that individual  Assistant  Ministers  will  have  and  forthcoming  work programmes.  This  will  give  an  opportunity  for  the  Ministers  to explain areas which may be particularly sensitive and confidential;

A hearing in public, the purpose of which would be for the Minister and Assistant Minister(s) to explain work programmes;

Scrutiny  Officers  and  DSLO's  (maybe  Chief  Officers)  to  hold an away-morning  to  consider  potential  improvements  of  working relationships and greater understanding of each other's role and the outcomes  of  the  political  discussions  on  the  "Senator  Ferguson Review";

Continue  dialogue  through  closer  working  arrangements  between individual  Panel  Members  and  Departments  on  specific  issues.  It should be recognised however that Scrutiny members will maintain the independence to challenge and criticise during a formal review.

(There has been a proposal that new scrutiny members should be allowed to shadow Ministers for a period of time)

Recommendation 2: Reach an agreement that in order to bring about a more inclusive system within the existing structure, Scrutiny should be involved in policy development as per the original intention.

There should be a will on the part of all Members to overcome the divisiveness which now exists and to want to adapt the existing system within the current framework to create more inclusive work opportunities. There needs to be an overall change of

attitude towards the system and towards each other with "give-and-take" on both sides to succeed in working in partnership.

How can this be achieved?

All  Members  and  officials  (Departmental  and  Scrutiny)  need  to embrace the original purpose of Scrutiny as set out on page 3 of this document;

Scrutiny Members need to approach the new session by being actively engaged  and  bringing  a  determination  to  build  more  trusting relationships whilst being more robust (hopefully induction will help to achieve this but Members' determination is the most important);

Chairmen with strong and proven leadership skills need to be elected;

Ministers must be more inclusive, inviting Panels into Departments to meet officials and to discuss forthcoming business (in private);

Scrutiny Members have stated they want more inclusion and more information. To achieve this, they must accept that private meetings are at times essential, that confidentiality must be respected and this helps build better relationships;

Ministers have power but must be less arrogant, less dismissive of Scrutiny, less on the defensive and much less controlling;

Ministers must factor into their planning sufficient time for Scrutiny to undertake thorough reviews and advise the Panels of these timings in good notice;

Ministers must attend on Scrutiny Panels as requested if reasonable notification is given (7 working days) or if the matter is urgent in less than 7 working days;

Ministers  must  recognise  that  there  is  a  presumption  that  Panels conduct their review business in public (in accordance with Standing Orders and with certain exceptions) and must not try to influence this;

One  Panel  Member  could  have  responsibility  for  an  area  as  a rapporteur and attend Ministerial/Departmental meetings (but not to do work on behalf of the Minister) and when the time is ready for Scrutiny,  the  full  Panel  or  a  Sub-Panel  becomes  involved  and  a distance re-established;

It  must  be  recognised  that  Scrutiny  resources  are  for  Scrutiny purposes and Scrutiny Officers should not be requested to do research on work other than Scrutiny matters.

Recommendation 3: Scrutiny must be more selective in its review topics, re- organise and standardise its working practices and be more robust

Panel Chairmen need to be strong leaders, understand the Scrutiny system and be prepared to work within Standing Orders and Codes of Practice etc.;

Panel  Chairmen  must  be  prepared  to  develop  strong  working relationships with their Panel Members and Scrutiny Officers and be willing to heed procedural advice;

Panels must recognise that the Scrutiny role is to undertake reviews of policy,  (in  development  or  other),  legislation  and  government performance;

To acknowledge the demand for more topic-based reviews, Scrutiny should  mainly  work  through  the  Sub-Panel  framework  so opportunities are provided for Scrutiny Members to do work outside the remit of the main Panel;

Members should have a genuine will to review a topic rather than feeling they "have" to;

Scoping documents and Terms of Reference need much more serious consideration  about  what  the  review  wants  to  achieve  –  deeper consideration  about  potential  outcomes  should  be  given  at  topic selection;

Where appropriate, closer working arrangements with the Executive at the time of drawing up Terms of Reference have proved beneficial but Panels must always reserve the right to have control over the final ToR;

Panels  should  follow-up  recommendations  with  more  propositions and amendments. This is the only way in the current system that matters can be brought to the States for debate and a Panel to feel it has influenced government policy.

Recommendation  4: All  Members  and  Officials  must  ensure  adherence  to Standing Orders, Code of Practice, Protocols and Guidelines

Given that the diversity of approach and working practices across Panels is so wide, it is essential that some standardisation occurs to make Scrutiny more professional and less confusing for members of the public.

All Members (Scrutiny and Executive) need to recognise that they are mandated by the States to abide by the Standing Orders and Code of Practice for Scrutiny Panels and the PAC, whilst recognising that these do give room for flexibility in working arrangements;

Ministers need to honour Schedule 3(9) of Standing Orders and not delay/defer  meetings/hearings  with  Panels,  unless  exceptional circumstances arise;

Panels can achieve results without aggression but Ministers should expect challenge;

Panel  Chairmen  and  Members  must  accept  that  Scrutiny  Officers cannot breach the Code of Practice as they are mandated by the States to abide by it, until changes are made at a political level.

Recommendation  5: Member  behaviour  needs  to  be  modified  to  raise  the professionalism of scrutiny in the public eye

If  the  presumption  for  holding  review  meetings  and  hearings  in  public  is  to  be continued, then the public can rightly expect professional, business-like conduct from Panels.

Elect Chairmen with good and proven leadership qualities;

Chairmen should encourage Panels to work as a team;

Chairmen should encourage Members to lead Sub-Panels or work as rapporteur  in  an  area  which  is  of  interest  to  them  dependent  on resources;

All  Panel  Members  and  witnesses  must  be  punctual  for meetings/hearings, unless unforeseen matters arise at short notice;

It must be clear when meetings are to be in public;

Meetings  should  not  be  cancelled  at  the  last  minute  (unless unavoidable);

Preparation  meetings  should  be  held  prior  to  hearings  to  ensure questions are well formulated and the process is agreed.

Recommendation  6: There  should  be  a  comprehensive  training  programme planned for the next term of office.

Members should be willing to take part in training sessions to improve their skills which are pertinent to the role they play. Improvement is always possible and even Members who have held a political position for some time can gain something from refresher training. The following (in no specific order) is proposed –

Induction session on Scrutiny for newly elected Members;

Initial overview training for Scrutiny Members on Scrutiny;

Seminar for all Members (new and re-elected) on Scrutiny and the Code of Practice;

Visits to Westminster Select Committees (based on Panel visits with officers – special programmes can be made for Members and there may be the possibility of meeting Select Committee Chairmen and Members);

Questioning training – repeated with refresher;

Seminar on "evidence" and related analysis;

Training on Chairing Skills – for all Scrutiny Members.

Other

1. Assistant Ministers on Scrutiny: Out of the 19 Members interviewed a large majority believed that Assistant Ministers should be able to sit on Scrutiny Panels. There was an alternative view  that they should be able to sit on individual reviews but not on main Panels;
2. Abolition of the " Troy rule": Out of the 19 Members interviewed a narrow majority thought the Troy rule should not be abolished;
3. Compulsory  to  work  in  Scrutiny  for  a  year  before  moving  to  the Executive: There were split views about this but a fair number of Members believed that it would be beneficial for all newly elected Members to serve on Scrutiny;
4. Assistant Ministers to be elected by the States of Jersey: There was a split view on this with some Members being of the view that Ministers needed to

be able to work well with their Assistant Minister(s) and so should be able to select them. Others felt that it was equally important for Scrutiny Chairmen to be able to work with their Members and it was wrong for Panel Members to be appointed by the States. It should be the same rule for both.

APPENDICES

APPENDIX 1

Summary of comments

The comments which have been most repeated have been included in this section.

Main concerns

• The problems with scrutiny are just aspects of a much bigger problem with the system of government where power is concentrated in too few hands;
• Unless this is tackled, everything else will be tinkering at the edges;
• The  current  system  is  designed  for  party  politics  yet  there  is  no appetite in Jersey for party politics;
• Jersey  lacks  a  "proper"  government  with  a  "proper"  opposition  – scrutiny should not be the vehicle for opposition;
• There is a general deterioration in government in Jersey, that is in the States;
• Scrutiny  and  the  Executive  –  poor  punctuality,  behaviour,  break protocols etc.;
• Some of the personalities within the States at present are more of a problem than the system itself;
• Because some Panel Members have certain strong political views, Departments adopt a defensive approach and are reluctant to share information which could end up in the media or a public domain;
• Some of the Executive Members are arrogant and view Scrutiny as an irritant;
• Some people use scrutiny to make their voice heard resulting in a confrontational approach and this undermines scrutiny;
• Too many personal agendas in scrutiny instead of team spirit – at times  Members  have  asked  officers  to  "bend  the  rules"  to  get information to meet their own ends;
• Topics often chosen only when an individual has an "axe to grind";
• Some Panels have a political foundation: scrutiny is not the vehicle for this;
• Important matters which should be scrutinised have not been whilst scrutiny has focussed on matters of limited importance;
• Reviewing legislation is currently very limited;
• Preconceived idea by some that scrutiny won't work and they've tried to bring it down whilst others have kept it going;
• Deterioration in openness between scrutiny and the executive; down to increasing lack of respect and trust;
• Ministers portfolios are too vast, so more authority given to Civil Servants;

• The executive want to control scrutiny;
• In an executive role you feel you are doing something. In scrutiny you play a part which goes nowhere;
• Scrutiny was set up to challenge. As soon as you challenge, those challenged  go  on  the  defensive.  Leads  to  exclusion  of  those challenging;
• Many Ministers and Departments don't take scrutiny seriously. They ignore scrutiny reports;
• Some  Panel  Members  make  personal  attacks  on  departmental officials;
• Some Panel Members refuse to sign confidentiality agreements so don't  get  the  information  but  then  criticise  the  department  for obstructing their work;
• Some former Ministers or Assistant Ministers refuse to participate in scrutiny as they see it as a form of demotion;
• Some  Members  expressed  dissatisfaction  during  the  election- campaign  and  came  in  with  ideas  that  it  wasn't  working,  with conspiracy theories, little motivation and wanting to be an opposition;
• Scrutiny is a "toothless lion" with ministers ignoring what scrutiny says and/or putting barriers in way of reviews;
• Departments not always willing to hand over information which has been requested;
• Departments don't factor in time for scrutiny (2/3/4 months) when planning their schedules;
• Some  Members  refuse  to  take  procedural  advise  from  Scrutiny Officers;
• The current disillusion will not be a good basis for new members coming in after the election;
• Panels are not effective at lodging propositions on the basis of reports to enable debate and decision nor are they good at following up on recommendations;
• Panels end up "monitoring " departments because they want o be included but everything can't be monitored;
• Departmental officers see scrutiny as a burden, slowing things down and getting in their way;
• Some policies are "rammed" through as quickly as possible to avoid scrutiny;
• Ambiguous definition of evidence. If scrutiny doesn't check evidence from Departments it could discredit scrutiny;
• Being  a  "back-bencher"  bringing  own  propositions  can  be  more effective than being involved in scrutiny;
• Panels  have  announced  in  the  States  that  they  haven't  received information when in fact they have;
• There are times when Accept/Reject in Ministerial response template is inappropriate – recommendations might already being progressed;

• The  issue  of  unregulated  individuals  filming  or  recording  during public hearings needs to be addressed;
• No  additional  resources  were  put  into  Departments  to  deal  with scrutiny  enquiries;  it  was  added  to  an  already  full  job  and  with reducing numbers in departments it has become even more difficult to provide information in a timely manner;
• Also  Departmental  officials  need  to  check  the  information  before sending to ensure accuracy and this takes time; when officials don't have time to check documents they are sent out under confidentiality cover;
• Members don't like rules so they object to the CoP;
• Scrutiny Members keen to complain about workload and being busy but total commitment to reviews is minimal;
• Members too willing to blame the Executive for scrutiny's lack of activity when in reality it's rarely the fault of the Executive;

What needs to be done

• A definition of scrutiny needs to be agreed;
• Need meaningful dialogue between Panel and Minister/Department;
• Scrutiny  Chairmen  and  respective  Ministers  should  aim  to  have constructive,  good  working  relationships  whilst  respecting  that scrutiny will undertake its work at a distance;
• Sanctions are needed for Chamber/CoM/Scrutiny and need to be used although sanctions could block reviews;
• There should be one Code for all States Members: separate ones make it divisive from the outset;
• General  presumption  that  hearings  should  be  in  public  as  should meetings where possible, but there are times when confidentiality is required, but Members must abide by the protocols for Members of the public;
• There  have  been  some  good  scrutiny  reports  but  they've  been published too late to have major impact;
• Scrutiny Officers with Departmental officers could play a larger role in getting information for Panels;
• Scrutiny needs to be more assertive;
• Panels could do more to promote their work through the media;
• Panels should aim to bring about definitive changes where appropriate through  debates  in  the  Assembly  and  bring  forward  more propositions. This should bring greater satisfaction to Members in that they are making a difference;
• Panels should make use of fact-finding visits to departments;
• Panels  need  to  influence  policy  through  statements,  comments, questions and amendments based on facts not political views;

• Chairmen should be aware of their responsibility to engender team work amongst members. Panels are only as good as the Chairmen they have;
• Consideration of non-political people sitting on Panels, interviewed by a senior body (PPC/SEB) and agreed by the Assembly;
• More topic-based scrutiny and less emphasis on shadowing or looking at all propositions/MDs etc.;
• Scrutiny  Chairmen  should  be  able  to  appoint  Scrutiny  Members without States involvement much as Assistant Ministers are;
• It is healthier to have Members working alongside Ministers so there are more people looking at policies;
• Every States Members should be obliges to carry out an "official" function and it should not be permitted for people to opt out;
• Newly elected Members on Scrutiny should be given the option of shadowing Ministers;
• It would be useful for all Members to understand what Green and White Papers are and when scrutiny should become involved;
• Scrutiny should be involved in the planning process;
• There should be an evaluation of scrutiny reviews which include the CC and the CoM to help strengthen the role of scrutiny;
• Ministers could be asked to respond to S.R.s in the Assembly and justify why they have rejected recommendations, equally be asked to give updates on work on agreed recommendations;
• Need to become more review-focussed. When dabbling in everything else it is time-wasting and not scrutiny.

APPENDIX 2

Excerpt from P.79/2003

27.  Conditions for effective scrutiny

27.1  A recent report from the Office of the Deputy prime Minister looked at many examples  of  innovative  good  practice  in  the  United  Kingdom  in  the development of the potential of scrutiny. In its final chapter, it explored the key issue of how to identify effective scrutiny and points towards a number of conditions for successful scrutiny. Similar conditions are likely to apply in the Jersey context –

• Member Leadership and Engagement – Scrutiny can only work in the longer term if scrutiny members drive the process and provide genuine  leadership.  This  is  not  just  a  task  for  the  Chairmen  and Deputy Chairmen but a wider number of members must be actively engaged and enthusiastic about scrutiny. These members also have to demonstrate the appropriate skills to undertake this work and to have the trust of fellow members.
• Responsive Executive – A responsive Executive, which is willing to listen to and be influenced by scrutiny is a pre-requisite for effective scrutiny. However, where the Executive "stone-walls" scrutiny it will still be possible for Panels to work to combat this through influencing the States, engaging and influencing partners and public.
• Effective Support and management of Scrutiny Processes – Whilst members must "lead" and "own" the scrutiny process, officer support is required to mange a range of scrutiny processes, including work programmes, meetings, agenda, identifying and contacting witnesses, preparing briefing notes, minutes and so on. The findings from  a number of studies clearly identify a link between investment in officer support and effectiveness of scrutiny arrangements. Those U.K. local authorities that have invested more in terms of officer support (and other resources, including training and payment of expert witnesses) have reaped the rewards.
• Senior Officers – A culture where senior officers working for the Executive support and encourage scrutiny is just as important as a responsive  Executive.  In  certain  circumstances  decision-making members and senior officers can work to blunt the effectiveness of over  view  and  scrutiny.  It  is  an  important  condition  for  effective working that senior officers welcome the challenge and added value that scrutiny can bring. In particular, senior officer support is vital in terms of ensuring general responsiveness of officers in departments to the requests and demands from scrutiny.
• High  Level  of  Awareness  and  Understanding  of  the  Work  of Scrutiny – A pre-condition for effective scrutiny is that internal and external individuals and organisations are aware of, and understand, the  work  of  this  function.  Educating  officers  and  non-scrutiny members about the role and potential of scrutiny is an important task, as  is  raising  the  awareness  of  the  work  of  Scrutiny  Panels  with partners, the public and the local media.

APPENDIX 3

CODE OF CONDUCT FOR ELECTED MEMBERS 1  Purpose of the code

The  purpose  of  the  code  of  conduct  is  to  assist  elected  members  in  the discharge of their obligations to the States, their constituents and the public of Jersey. All elected members are required, in accordance with standing orders, to comply with this code.

2  Public duty

The primary duty of elected members is to act in the interests of the people of Jersey and of the States. In doing so, members have a duty to uphold the law in  accordance  with  their  oath  of  office  and  to  act  on  all  occasions  in accordance with the public trust placed in them.

Elected members have a general duty to act in what they believe to be the best interests of Jersey as a whole, and a special duty to be accessible to the people of the constituency for which they have been elected to serve and to represent their interests conscientiously.

Elected members must give due priority to attendance at meetings of the States in accordance with the terms of their oath of office and should be present in the Chamber when the States are meeting unless they have very compelling reasons not to do so.

3  Personal conduct

Elected members should observe the following general principles of conduct for holders of public office –

Selflessness

Holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family and friends, their business colleagues or any voluntary or charitable organization they are involved with.

Integrity

Holders of public office should not place themselves under any financial or other obligation to outside individuals or organizations that might influence them in the performance of their official duties.

Objectivity

In  carrying  out  public  business,  including  making  public  appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.

Accountability

Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.

Openness

Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest, or rules on freedom of information, data protection or confidentiality clearly demand.

Honesty

Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.

Leadership

Holders  of  public  office  should  promote  and  support  these  principles  by leadership  and  example  to  maintain  and  strengthen  the  public's  trust  and confidence in the integrity of the States and its members in conducting public business.

The principles in practice 4  Conflict between public and private interest

Elected members should base their conduct on a consideration of the public interest, avoid conflict between personal interest and the public interest and resolve any conflict between the two, at once, and in favour of the public interest.

5  Maintaining the integrity of the States

Elected members should at all times conduct themselves in a manner which will tend to maintain and strengthen the public's trust and confidence in the integrity of the States of Jersey and shall endeavour, in the course of their public and private conduct, not to act in a manner which would bring the States, or its Members generally, into disrepute.

Elected  members  should  at  all  times  treat  other  members  of  the  States, officers, and members of the public with respect and courtesy and without malice, notwithstanding the disagreements on issues and policy which are a normal part of the political process.

6  Public comments etc. regarding a States' employee or officer

Elected members who have a complaint about the conduct, or concerns about the capability, of a States' employee or officer should raise the matter, without undue delay, with the employee's or officer's line manager (or, if he or she has none, the person who has the power to suspend the employee or officer), in  order  that  the  disciplinary  or  capability  procedures  applicable  to  the employee or officer are commenced, rather than raising the matter in public.

Elected members should observe the confidentiality of any disciplinary or capability procedure regarding a States' employee or officer and its outcome. If an elected member is nevertheless of the opinion that it is in the wider public interest that he or she makes a public disclosure of or comment upon the outcome of any such procedure, he or she should inform the parties to the procedure before so doing and, when so doing, refer to the individual by the title of his or her employment or office rather than by his or her name.

In this paragraph, "States' employee or officer" means a States' employee within the meaning of the Employment of States of Jersey Employees (Jersey) Law 2005, a member of the States of Jersey Police Force and any officer mentioned in the Schedule to that Law who is not a member of the States.

7  Gifts and hospitality

Elected members should not accept gifts, hospitality or services that might appear to place the recipient under any form of obligation to the giver. In receiving any gift or hospitality, members should consider whether they would be prepared to justify acceptance to the public.

8  Access to confidential information

Elected members must bear in mind that confidential information which they receive in the course of their duties should only be used in connection with those duties, and that such information must never be used for the purpose of financial gain nor should it be used in their own personal interest or that of their families or friends. In addition, members should not disclose publicly, or to any third party, personal information about named individuals which they receive in the course of their duties unless it is clearly in the wider public interest to do so. Elected members must at all times have regard to all relevant data  protection,  human  rights  and  privacy  legislation  when  dealing  with confidential  information  and  be  aware  of  the  consequences  of  breaching confidentiality.

Elected members must not disclose publicly, or to any third party, things said, or  information  produced,  in  a  meeting  of  the  States  that  is  conducted  in camera, unless the States have permitted such disclosure.

9  Co-operation with committees and panels

Elected members shall co-operate when requested to appear and give evidence before or produce documents to –

1. a scrutiny panel, for the purpose of the review, consideration or scrutinyof a matter by the panel pursuant to its terms of reference and the topicsassigned to it, or to a sub-panel or any person appointed by the scrutinypanel  to  review,  consider,  scrutinize  or  liaise  upon  any  particularmatter;
2. the  PAC,  for  the  purpose  of  the  preparation  of  a  report  upon  orassessment of any matter pursuant to the PAC's terms of reference;
3. a  committee  of  inquiry,  for  the  purpose  of  the  inquiry  which  thecommittee is appointed to conduct; and
4. the PPC, for the purpose of an investigation of a suspected breach ofthis  code,  or  to  any  person  appointed  by  the  PPC  to  investigate  asuspected breach.