States Meeting Transcript - 12/03/2008

STATES OF JERSEY

OFFICIAL REPORT

WEDNESDAY, 12th MARCH 2008

PUBLIC BUSINESS – resumption ...............................................................5

1. Code of Practice for Scrutiny Panels and the Public Accounts Committee (P.198/2007) ............................................................................................5

1. Senator M.E. Vibert (The Minister for Education, Sport and Culture - rapporteur):......5

1. Deputy S.C. Ferguson of St. Brelade : ....................................................5
2. Deputy R.G. Le Hérissier of St. Saviour:................................................6
3. Deputy G.W.J. de Faye of St. Helier:....................................................6

4. Deputy G.P. Southern of St. Helier:......................................................7
5. Senator T.A. Le Sueur:..................................................................7
6. Deputy J.A. Martin of St. Helier:........................................................8
7. Mr. W.J. Bailhache Q.C., H.M. Attorney General:.......................................8 Deputy S.C. Ferguson:.........................................................................9 The Attorney General:.........................................................................9 Deputy G.P. Southern :........................................................................10 The Attorney General:........................................................................11 Deputy G.C.L. Baudains of St. Clement:......................................................11 The Attorney General:........................................................................11 Deputy R.G. Le Hérissier:....................................................................11 The AttorneyGeneral:........................................................................12 Senator P.F.C. Ozouf :........................................................................12
8. Senator P.F. Routier: ...................................................................12
9. Deputy C.J. Scott Warr en of St. Saviour:...............................................12 The Attorney General:........................................................................13

Deputy R.G. Le Hérissier:....................................................................13 The Attorney General:........................................................................13

10. Deputy F.J. Hill of St. Martin:.......................................................13
11. Deputy J.G. Reed of St. Ouen : ......................................................13 Deputy G.P. Southern :........................................................................14 The Attorney General:........................................................................14
12. Senator P.F.C. Ozouf : ...............................................................14
13. Deputy P.V.F. Le Claire of St. Helier:...............................................14
14. Deputy R.C. Duhamel of St. Saviour:................................................15
15. Senator M.E. Vibert :................................................................15

2. Senator M.E. Vibert :....................................................................16

1. Deputy G.C.L. Baudains:...............................................................17
2. Deputy S.C. Ferguson:..................................................................17
3. Senator T.A. Le Sueur:.................................................................18
4. Deputy P.J.D. Ryan of St. Helier : ......................................................18
5. Senator P.F.C. Ozouf :..................................................................19
6. Deputy C.J. Scott Warr en: ..............................................................20

7. Deputy J.A. Martin:....................................................................20
8. Deputy R.G. Le Hérissier: ..............................................................22
9. Deputy G.P. Southern :..................................................................23
10. Connétable M.K. Jackson of St. Brelade : ............................................24
11. The Deputy of St. Martin : ...........................................................24
12. Deputy G.W.J. de Faye: .............................................................25
13. Deputy P.V.F. Le Claire:............................................................26
14. Deputy A.D. Lewis of St. John:......................................................27
15. Deputy I.J. Gorst of St. Clement:....................................................28
16. Senator M.E. Vibert :................................................................28 The Deputy Bailiff :...........................................................................30

3. Deputy S.C. Ferguson:..................................................................32 The Deputy Bailiff :...........................................................................32

2. Draft Taxation (Land Transactions) (Jersey) Law 200- (P.185/2007)..................33

2.1 Senator T.A. Le Sueur (The Minister for Treasury and Resources): ....................33

1. The Deputy of St. Martin:..............................................................34
2. Deputy P.J.D. Ryan:....................................................................35
3. Deputy G.P. Southern :..................................................................35
4. Connétable D.J. Murphy of Grouville :..................................................35
5. Deputy P.V.F. Le Claire: ...............................................................36
6. The Deputy of St. Ouen:................................................................36
7. Deputy S.C. Ferguson:..................................................................37
8. Deputy C.J. Scott Warr en: ..............................................................37
9. Senator T.A. Le Sueur:.................................................................37

Miss. S.C. Nicolle Q.C., H.M. Solicitor General:.............................................38 The Deputy Bailiff :...........................................................................39 The Solicitor General:........................................................................40 Deputy P.J.D Ryan (Chairman, Corporate Services Scrutiny Panel):..........................40

3. Draft Goods and Services Tax (Amendment) (Jersey) Law 200- (P.17/2008)..........41

1. Senator T.A. Le Sueur (The Minister for Treasury and Resources): ....................41

LUNCHEON ADJOURNMENT PROPOSED..................................................42 The Deputy Bailiff :...........................................................................43

LUNCHEON ADJOURNMENT................................................................43 The Deputy Greffier of the States (in the Chair):..............................................43

1. Deputy G.P. Southern :..................................................................43
2. Deputy P.J.DRyan:....................................................................44
3. Deputy G.C.L. Baudains:...............................................................44
4. Deputy J.B. Fox of St. Helier:..........................................................45
5. Senator T.A. Le Sueur:.................................................................45 The Bailiff :...................................................................................47 Deputy P.J.D Ryan (Chairman, Corporate Affairs Scrutiny Panel):...........................47

2. Senator T.A. Le Sueur:.................................................................48 The Bailiff :...................................................................................48

4. Draft Goods and Services Tax (International Services Entities) (Jersey) Regulations 200- (P.10/2008)..........................................................................48

1. Senator T.A. Le Sueur (The Minister for Treasury and Resources): ....................48 The Bailiff :...................................................................................49 Deputy P.J.D Ryan (Chairman, Corporate Affairs Scrutiny Panel):...........................49

2. Senator T.A. Le Sueur:.................................................................49 The Bailiff :...................................................................................49
3. Senator T.A. Le Sueur:.................................................................49 The Bailiff :...................................................................................49
4. Senator T.A. Le Sueur:.................................................................50 The Bailiff :...................................................................................50

5. Draft Public Elections (Amendment No. 2) (Jersey) Law 200- (Appointed Day) Act 200- (P.12/2008)..........................................................................51

5.1 Connétable D.F. Gray of St. Clement (Chairman, Privileges and Procedures Committee): .........................................................................................51 The Bailiff :...................................................................................51

6. Draft Public Elections (Amendment No. 2) (Jersey) Regulations 200- (P.13/2008)....51

6.1. The Connétable of St. Clement (Chairman, Privileges and Procedures Committee):....51

6.1.1 Deputy G.P. Southern ..................................................................51 The Bailiff :...................................................................................51

7. Draft Price Indicators (Jersey) Regulations 200- (P.14/2008) ..........................52

1. Senator P.F.C. Ozouf (The Minister for Economic Development):......................52

1. Deputy J.B. Fox:........................................................................53
2. Deputy J.A. Martin:....................................................................53
3. Deputy C.J. Scott Warr en: ..............................................................54
4. The Deputy of St. Ouen:................................................................54
5. Deputy G.C.L. Baudains:...............................................................54
6. Deputy G.P. Southern :..................................................................54
7. Senator L. Norman: ....................................................................55
8. Senator T.A. Le Sueur:.................................................................55
9. Senator P.F.C. Ozouf :..................................................................56 The Bailiff :...................................................................................58

2. Senator P.F.C. Ozouf :..................................................................59 The Bailiff :...................................................................................59
3. Senator P.F.C. Ozouf :..................................................................59 Deputy G.P. Southern (Chairman, Economic Affairs Scrutiny Panel): ........................60 The Bailiff :...................................................................................60
4. Senator P.F.C. Ozouf :..................................................................60
5. Senator L. Norman: ....................................................................60 Deputy G.W.J. de Faye:......................................................................62 The Solicitor General:........................................................................62 Deputy C.J. Scott Warr en: ....................................................................62 The Solicitor General:........................................................................62 The Solicitor General:........................................................................63

1. Deputy J.B. Fox:........................................................................63
2. Senator P.F.C. Ozouf :..................................................................64
3. Deputy C.J. Scott Warr en: ..............................................................66
4. The Deputy of St. Ouen:................................................................66
5. Deputy J.A. Martin:....................................................................66
6. Deputy G.W.J. de Faye:................................................................67
7. Deputy G.P. Southern :..................................................................68
8. Deputy S. Power of St. Brelade : ........................................................69
9. Senator T.A. Le Sueur:.................................................................70

10. Senator F.H. Walker :................................................................70
11. Senator L. Norman:..................................................................71 The Bailiff :...................................................................................72

6. Senator P.F.C. Ozouf :..................................................................73 The Bailiff :...................................................................................73
7. Senator P.F.C. Ozouf :..................................................................73

The Bailiff :...................................................................................74

8. Draft Boats and Surf-Riding (Control) (Amendment No. 27) (Jersey) Regulations 200- (P.16/2008)...............................................................................74

1. Deputy A.J.H. Maclean of St. Helier (Assistant Minister for Economic Development - rapporteur):.............................................................................74

1. Deputy S.C. Ferguson:..................................................................75
2. Deputy R.G. Le Hérissier: ..............................................................75
3. Deputy A.J.H. Maclean: ................................................................75 The Bailiff :...................................................................................75 Connétable M.K. Jackson of St. Brelade:.....................................................76

2. Deputy A.J.H. Maclean: ................................................................76

1. Deputy S.C. Ferguson:..................................................................76
2. Deputy A.J.H. Maclean: ................................................................76 The Bailiff :...................................................................................77

9. Draft Civil Aviation (Jersey) Law 200- (P.18/2008)....................................77

9.1 The Deputy of St. John (Assistant Minister for Home Affairs - rapporteur):............77

1. Deputy S.Power:.......................................................................80
2. Deputy S.C. Ferguson:..................................................................80
3. The Deputy of St. Martin:..............................................................80
4. Deputy G.C.L. Baudains:...............................................................81
5. Deputy R.C. Duhamel: .................................................................81
6. Deputy J. Gallichan of St. Mary:........................................................82
7. Deputy D.W. Mezbourian of St. Lawrence : ............................................82
8. Deputy P.J.D. Ryan:....................................................................82
9. Deputy P.V.F. Le Claire: ...............................................................83
10. Deputy J.B. Fox:....................................................................83 Deputy R.G. Le Hérissier:....................................................................83 The Bailiff :...................................................................................83

ADJOURNMENT................................................................................83

The Roll was called and the Dean led the Assembly in Prayer.

PUBLIC BUSINESS – resumption

1. Code of Practice for Scrutiny Panels and the Public Accounts Committee (P.198/2007) The Bailiff :

We return to the amendments of the Council of Ministers to the Code of Practice for Scrutiny Panels and Public Accounts Committee and I will ask the Greffier to read the amendment.

The Greffier of the States:

In the paragraph numbered 3.5, after the words "will review the matter and", insert the words "subject to the preservation of legal professional privilege and the privilege against self- incrimination".

1. Senator M.E. Vibert (The Minister for Education, Sport and Culture - rapporteur):

I hope we may deal with these  more  minor amendments much more quickly than the major amendments we dealt with yesterday. I thank all Members who spoke in that debate again. I had hoped, Sir, in the spirit of working together, this amendment and the following one might have been accepted and I still hope they might decide to do so. This amendment, amendment (a), relates to section 3, Powers of the P.A.C. (Public Accounts Committee) and Panels, and in particular paragraph 3.5. Section 3 sets out the proposed powers of the Public Accounts Committee and the Scrutiny Panels. As part of this, it sets out the proposed arrangements under which Ministers and other Members of the States will be expected to co-operate with the Panels. Paragraph 3.5 as it currently stands says that where there is a dispute between the Scrutiny Panel and the Member or Minister as to whether evidence  should  be given or  documents  produced,  the Privileges  and Procedures Committee will review the matter and direct whether or not the Minister or Member concerned should comply with the request. If a Member fails to comply when directed by P.P.C. (Privileges and Procedures Committee) to do so, he or she will be regarded as being in breach of the Code of Conduct and the appropriate disciplinary process will be initiated. Although the Chairmen's Committee say at paragraph 3.2 that, and I quote: "Panels will nevertheless use the procedure set out below that mirror those set out in the 2006 regulations when taking evidence from Ministers, Assistant Ministers and other Members", that is not, in fact, so. There is nothing which replicates the protection of Regulations 8 and 17 of the regulations which say that, and again I quote, Sir: "A person asked or required to give evidence or produce documents before a Scrutiny Panel or the P.A.C. shall be entitled in respect of such evidence and documents to legal professional privilege and privilege against self-incrimination." The Council of Ministers, Sir, considers this is an important principle and that the entitlement to those privileges for all States Members, including Ministers, should be maintained and therefore seeks to include it in paragraph 3.5 so that it does indeed mirror the regulations which the Chairmen's Committee says it should do. Sir, I hope this can be accepted and I propose the amendment.

The Bailiff :

Is the amendment seconded? [Seconded] Does any Member wish to speak?

1. Deputy S.C. Ferguson of St. Brelade :

No, I can unfortunately disappoint the rapporteur. We do not accept this. This does not apply to comments on legal advice. Please bear that in mind. This applies to any part of a Minister's testimony in a hearing. Now, the regulations to which the rapporteur is referring are these regulations: the States of Jersey (Powers, Privileges and Immunities) (Scrutiny Panels, P.A.C. and P.P.C.) (Jersey) Regulations 2006. I would refer the rapporteur to paragraph 2 which says: "Application to Members of the States. These Regulations shall not (a) confer any power to issue a summons requiring the appearance of or the production of documents by a Member of the States or (b) confer any privileges or immunity on a Member of the States." That is useful. Then, if you look at schedule 3 of Standing Orders, the effect of schedule 3 of Standing Orders in fact is to not confer any legal privileges or the privilege against self-incrimination for States Members. So I think that is fairly clear. I think States Ministers are States Members, or perhaps I am missing something. The question is should there be a different standard for a Minister or a States Member when being held to account? Are not higher standards expected of them? We have already discussed the fact that this Assembly is effectively the uppercase Government, powers being delegated to the Executive to manage the running of the lowercase government. It seems fair enough. The Ministers are accountable to this House. Therefore, anything which can mask their accountability is prejudicial to the Government. This amendment merely gives a Minister who has made a questionable decision the opportunity behind the privilege against self-incrimination. I am sorry; this is not good government. I will concede that in the Minister's amendment on legal opinion, there is a provision in there for the Ministers to claim legal privilege with regard to legal opinion. I do not think we should have the Ministers claiming privilege against self-incrimination on all their testimony to a Scrutiny Panel. This is not good government and I ask Members to reject this amendment.

2. Deputy R.G. Le Hérissier of St. Saviour :

Just to confirm, unlike the Archbishop of Canterbury who was having problems with "unclarity" - a word unknown so far - I think the Chairman has given an exceptionally clear presentation and, Sir, the bigger issue which needs to be emphasised again is this considerable reluctance to concede and to move away from this culture of secrecy. We know what a vitiating problem it is in the system. We know where it can lead us, and I am so sad, Sir, to see that there could not be from the Council a gracious response to this issue. They are still living in a culture which, quite frankly, should be swept away. What they are seeking instead, Sir, is this broad exemption. We have seen with the Rehabilitation of Offenders Law how, as an organisation, we eat away at the spirit of an issue to such an extent that it totally undermines it. I would suggest, Sir, as the Chairman has said, this is precisely what is happening. I do ask the rapporteur, Sir, to take the gracious way out, to concede this is ultimately petty. This is all a remnant of the culture of secrecy which has been far too prevalent and, as with the Chief Minister yesterday, to experience, Sir, even at this late point a conversion on the road to Damascus. Thank you, Sir.

3. Deputy G.W.J. de Faye of St. Helier :

I had not intended to speak so early, but I really find myself in serious disagreement with Deputy Le Hérissier about this purported culture of secrecy. In my 2 years of experience as a Minister, certainly my department, and I believe most other departments, have been wholly co-operative, both with Scrutiny Panels and Members in terms of disseminating information. I can think of only one occasion in my 2 and a half years as a Minister where I blocked information being given out, and that was when I was being asked to provide detailed week-by-week accounts of maintenance programmes for the failing incinerator and it was my judgment that that would take up far too much civil service time and, frankly, it did not stack up to our general understanding of getting value for money out of our government on behalf of the public. I do want to remind Members that, in general, things within the States of Jersey do run very smoothly, very openly and satisfactorily, quite frankly. The purpose, in fact, of having codes of practice is to have a number of rules and procedures in place so basically when things go wrong everybody knows where they stand. We can all come up with lots of petty examples about why the Council of Ministers' amendment is so unreasonable and indeed, by the same token, the rapporteur on behalf of the Council of Ministers has indicated in his opening remarks that he thinks it is quite reasonable for the other side to concede. I have to say I agree. Why is that? It is because there is an element in what is being proposed of directing a Minister. That places Ministers in a very difficult position. The Assembly has effectively delegated executive powers to Ministers. I reject the personality cult that would appear that we are all running our own shows as portrayed by the local media. What is happening is that Ministers are executing the policies as laid down by the States Assembly and as ultimately decided  by  the  States, but  we do operate  under this system  whereby we are all  individually responsible in law personally for the department. I think Members need not consider what the general practice of events is but need to consider what could happen in more extreme circumstances. Let us suppose, for example, that we have a more significant political party presence within the Chamber and that we saw more of an opposition. It would suddenly become a potential political party tool to use this element in the Code of Practice to effectively keep Ministers under the cosh; constant demand for reports, for background details, and knowing that you have the power, with very few get-out clauses for the executive side, of being able to direct Ministers to perform. It is all very well if that is done in the spirit of good government. It is an entirely unsatisfactory business if at some time in the near or medium-term future we found, in effect, 2 sides of a House locked in combat, using the Code of Practice as a tool. That is why we have to be very, very careful about the wording of the Code of Practice and most particularly how we intend to use that Code of Practice. I do not think that asking for, as it were, a level of relatively minor concession here in terms of the ability for Scrutiny to direct results from the Ministerial side is being, in fact, unreasonable. It should be seen in the context of what proportions you need to have in hand when things start going badly wrong. The fact of the matter is that things are working, and I do not agree with Deputy Le Hérissier's view. Things are working pretty well at the moment and we want to ensure that things continue to work pretty well. That means that we do have to have the odd standby contained within the Code of Practice being laid out before us. So I want Members to consider as the debate pans out not the situations that they are used to, that they have seen and have experience of, but what Members do need to do is to consider what is the effect of what I have written before me when things are starting to go badly wrong, when the situation in the Chamber is not as it is now. That is not necessarily an inconceivable position.

4. Deputy G.P. Southern of St. Helier :

Following on from the speech of Deputy de Faye, I believe I smell fish. I think it is a red herring. Again wonderful, fluid speech, but nothing to do with the argument in front of us. The fact is that yesterday this House probably hamstrung - handicapped - the actions of Scrutiny, improperly holding Ministers to account in one way. This amendment takes that further and provides what Deputy de Faye referred to as a standby provision. For "standby provision" read "bolthole". It is very clear. Scrutiny is here to hold Ministers to account for their actions and their policies. Ministers are under instruction to co-operate with Scrutiny in that endeavour. This amendment puts a little bolthole for Ministers to hide in while appearing to co-operate with Scrutiny to the fullest extent, to go and hide from time to time when things get a bit sticky. That is what this amendment does. It is absolutely clear. This House must make sure that Scrutiny can properly hold Ministers to account. In doing so, it must reject this amendment.

5. Senator T.A. Le Sueur :

I think, to me, this Code of Practice is rather like a partnership agreement in a commercial professional practice. It is something which I signed when I first became a professional partner, stuck in a drawer and never looked at again. I would hope that by and large this Code of Practice is something else that we could stick in a drawer and not need to refer to because I would like to think that there was generally the same spirit of harmony between Ministers and Scrutiny as there is within a professional partnership. I think just as there needs to be harmony in that respect, there also needs to be harmony and consistency within that Code of Practice. Pursuing the point just made by Deputy Southern , yesterday we agreed an amendment in respect of legal privilege and I think all that this amendment seeks to do is to ensure the consistency between that decision we made yesterday afternoon and the current Code of Practice. So I see no skeletons in the cupboard, no red herrings here at all, but merely an aim to be consistent. Now, it may be that I am not interpreting this correctly, and I am not going to try to hide behind my legal ignorance, but when we have an opportune moment, perhaps the Attorney General would like to confirm to me that discretion of legal privilege and the position we passed yesterday is underpinning the need for this matching amendment which we now have.

Does any other Member wish to speak?

6. Deputy J.A. Martin of St. Helier : Is the Attorney General going to speak?

The Bailiff :

He probably would like to gather his breath, Deputy , if you would like to

Deputy J.A. Martin:

Okay, I just want to make a few comments and I will be interested in what the Attorney has to say and obviously he will give his legal opinion. Listening on from what Senator Le Sueur has just said, I cannot see where the 2 are connected. We lost the amendment. Ministers' privilege and legal advice is protected. We have not yet had to use anything to subpoena a Minister or a Member of the States through a Scrutiny Panel and it has been working well. As the Senator said, may this continue, but I do not like the words of legal professional privilege in the amendment, Sir. I think we have already established that we do not need that in this because it is talking about a totally different Panel calling Members in to be witnesses on a subject. It may be a policy that has already happened and we already know what the legal position is. The next part says: "privilege [this is a Minister possibly] against self-incrimination." Well, I think it is what Senator Syvret said yesterday. We are supposed to be doing the job. The States of Jersey Law was set up to give the job to Scrutiny. They did not know who was going to be in Scrutiny then and we do not know who is going to be in Scrutiny in 5 years. We do not even know who is going to be the Chief Minister in 10 months, 9 months. I am not entrenched in this, but I am trying to now look at the system to say that on either bench of the House that I am sitting, it should be fair and I should be able to be held to account if I am a Minister and I should be able to call in a Minister without them having the privilege against self-incrimination. I look forward to the interpretation for the Attorney General because it is a legal opinion on what is the privilege of coming in or not coming in to a Scrutiny Panel to protect against self-incrimination. That is all I say. I think we watered down the Code completely yesterday. This amendment again is being, to me, picky. Again it is already going to P.P.C. It will be rued by the Greffier and if a person really feels that they cannot come in to be scrutinised or into a meeting of review, a hearing with a Scrutiny Panel, there must be a very good reason. What that reason would be at this moment I do not know. As I said, we have already covered the legal arguments and if a Minister cannot or any States Member cannot, after it has been asked, come into our Panel, I really cannot understand why they want to put this in. So I will wait for the Attorney General but I cannot see that he is going to persuade me, after the legal advice is already privileged, why there should be a privilege against self-incrimination. It is holding to

account. Thank you, Sir.

7. Mr. W.J. Bailhache Q.C., H.M. Attorney General:

I think the Council of Ministers' amendment is indeed consistent with the amendments that were put forward and agreed by the Assembly yesterday. I would just like to take them in 2 pieces. The first of them is the claim to legal privilege. If one looks at the Chairmen's Committee's draft Code of Practice, at paragraph 3 it deals with the powers of P.A.C. and Panels and then at 3.4 there is provision in this way: "In common with members of the public who are able to challenge a summons, Members of the States will be able to write to the Greffier asking for a review of the request to provide evidence if they consider " and then paragraph (c): " that the evidence is or documents are legally privileged." Then at paragraph 3.5: "The Greffier will immediately refer the matter to P.P.C. which will review the matter and direct whether or not the Minister or Member concerned should comply with the request. If a Member fails to comply when directed by P.P.C. to do so, he or she will be regarded as being in breach of the Code of Conduct and the appropriate disciplinary process will be initiated." Now, the amendment that was adopted by the States

yesterday says this, and this is at paragraph 4 of subparagraph (e): "Scrutiny Panel members recognise and accept that Ministers and their officials will maintain their claim to legal advice privilege except in exceptional circumstances if questioned by a Panel and will not seek to interfere with that privilege." So it is very odd that on the one hand the Assembly has adopted an amendment which recognises the claim to legal advice privilege and, on the other hand, apparently intends to confer on the Privileges and Procedures Committee the power to override legal advice privilege. It is, in my view, quite inconsistent. The whole purpose of the debate yesterday was to establish that legal advice privilege needed to be protected and maintained and, to my mind, it has not been protected and maintained if the Privileges and Procedures Committee at any time can effectively direct a Minister to breach the privilege or else commit a disciplinary offence. So that is why I say that in relation to legal advice privilege, I advise Members that this amendment is entirely consistent with what was agreed by the Assembly yesterday. As to the privilege against self-incrimination, it is quite clear that there is no political privilege against self-incrimination. There is a matter of the privilege of self-incrimination that applies when a person is not obliged to admit to committing any criminal offence. The idea that a Minister should be committing a disciplinary offence by not admitting a criminal offence seems to me to be quite odd. The privilege against self-incrimination is respected in relation to members of the public and, as I say, it seems to me to be an odd idea that, for some reason, Ministers and Members should not have the same ability to say: "I rely on the privilege against self-incrimination." Of course the political consequences of doing that might be quite severe. It would be quite odd also if a Minister said: "I am relying on the privilege against self-incrimination" because the obvious political question that arises from that is: "I wonder why the Minister or the Member might be doing that" and one would expect that politically the Minister or Member would soon get his or her comeuppance at the hands of the Assembly. So, in my view, the amendment is an appropriate protection for the legal advice privilege and also protection for Ministers and Members in not having to admit matters which

might be used in criminal proceedings or give rise to criminal investigations.

Deputy S.C. Ferguson:

I wonder if I can ask the Attorney General if this is the case, why did the Law Officers Department not put this particular provision into the Standing Orders? The context in which the Council of Ministers have brought it seems to imply that it applies to the whole of the Ministers' replies to questioning, not just questioning about any legal opinions and so on. I wonder if the Attorney General could explain those 2 things.

The Attorney General:

As to the first question, it was not the Law Officers' job to draft the Standing Orders. I do not recall being asked to comment on this particular Standing Order at the time, but I certainly was aware that the other provisions of Standing Orders required that a Code of Practice be brought forward. So I was anticipating that there would be detailed provisions about questions to Members from Panels at a later stage. Indeed I do recall that when the regulations were adopted, there was a speech from Senator Ozouf which recognised the importance of the privileges against self- incrimination and legal advice privilege, but I believe I am right in saying that that question was put to me about States Members at that time. So I do understand, looking at schedule 3 to Standing Orders, that it does give the impression that an elected Member shall co-operate. I think that statement stands. I think elected Members are expected to co-operate with Scrutiny Panels and committees, but that is not to say that the protections against self-incrimination and the protections of legal privilege should not apply. I am sorry; I have forgotten the second question.

Deputy S.C. Ferguson:

You have already in the legal opinion amendment as passed, made provision for Ministers to claim legal privilege and privilege against self-incrimination, but the way this has been worked into the amendments implies that Ministers will be able to refuse to answer any questions and claim

privilege. It seems to apply to the whole of the Ministers' testimony, not just the testimony about anything relating to any legal opinions.

The Attorney General:

I think that there is a function for the Privileges and Procedures Committee. Let us suppose a question was put to a Minister about where he was on a particular day and he says: "No, I am not going to answer that question because it is subject to legal advice privilege." On the face of it, unless there are exceptional circumstances, legal advice privilege could not possibly extend to that sort of question, and one would expect the Privileges and Procedures Committee to explore that matter with the Minister in accordance with paragraph 3.5 of the Code, to identify exactly why it was that the legal advice privilege was being claimed. So I think the distinction is between deciding whether or not there is a legal advice privilege, in which case one does not inquire beyond it, or not, as the case may be. In other words, the function of the Privileges and Procedures Committee is to identify that there is a legal advice privilege which is properly claimed. If it is properly claimed, then it is properly claimed and you stop there, but there is a function for P.P.C. in that respect.

Deputy S.C. Ferguson:

But, Sir, if we do not know the legal advice, how do we know that they are claiming it correctly? It is one of these sort of awful Möbius strip sort of things because there are a number of

The Deputy Bailiff : Deputy , sorry, can I

Deputy S.C. Ferguson:

Good heavens; you have changed, Sir.

The Deputy Bailiff :

Yes. [Laughter] I understand you have already spoken.

Deputy S.C. Ferguson:

I am having a sort of legal discussion with my lawyer and I am claiming legal privilege. [Approbation]

The Deputy Bailiff :

On this occasion, privilege is going to be refused, I think, Deputy , because a discussion is not possible. Clearly, questions were, and I heard the last question but you are now expressing your views and I do not think that is open to you.

Deputy S.C. Ferguson:

Well, no, it was really a question and unfortunately, Sir, you have interrupted my train of thought and I cannot remember what it is. [Laughter]

Deputy G.P. Southern :

If I may ask a direct question? When the Attorney General referred to 3.4, in particular (c), is he not suggesting there that legal privilege is already covered in our Code of Practice? Secondly, is it not the case where somebody is claiming against self-incrimination that it will not be proven that there is a case that he has incriminated himself but that there may be a challenge? Although, in considering that he was acting legally as the Minister, that may be open to challenge without the possibility that this self-incrimination will be pulled in, on very little evidence whatsoever, on the possibility that the Minister was acting illegally although in best faith, thinking that the practice, for example, with rent rebates (which is just a scheme and has no place in law) or hardship cases where discretion exists - traditionally we have done it that way - may prove to be illegal.

The Attorney General:

I am sorry, Sir, what is the question? [Laughter]

Deputy G.P. Southern :

The question was, first of all, is legal privilege not already covered in 3.4(c), and is it not the case that immunity from self-incrimination would not be black and white; that would be very much a grey area? "I have been behaving under what I thought were my powers. There is a question raised. It may be illegal, I may be acting illegally, and therefore I do not want to incriminate myself."

The Attorney General:

It is not covered by 3.4(c). That allows the Minister or the Member to raise the issue of legal privilege in relation to evidence or documents, but paragraph 3.5 purportedly allows the Privileges and Procedures Committee to overrule that claim. So it is not sufficiently or adequately covered by 3.4(c). As far as the second point is concerned, it seems to me to be very unlikely, as a matter of fact, that a Minister or a Member is going to claim the privilege against self-incrimination which relates to criminal matters, unless there is a reason in a criminal sense for him or her to do so. I am not quite sure how to answer it and expand upon the answer I have given to the Members already. It seems to be quite plain that you would not wish to remove the ordinary privilege against self- incrimination, which everybody has, just because the person concerned is a Member of the States.

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

May I seek clarification from the Attorney General, Sir, because I was somewhat confused by comments he made earlier where he gave an example that somebody might refuse to explain where they were on a particular day and claim legal privilege which would seem to be unlikely and that the Privileges and Procedures Committee could then look into it. What I do not understand, Sir, is how the Privileges and Procedures Committee could look into it as they would not be allowed to know what that legal advice was. In fact, they would not be, as far as I know, allowed to know even that legal advice had been given.

The Attorney General:

Well, there will be a threshold, depending upon what the question is that is being asked where the Member or the Minister is claiming legal privilege. In nearly every case it is going to be perfectly obvious whether the matter is legally privileged or not. I only gave the example I did to illustrate, I thought in a reasonably obvious case where it would not be claimed, that the Privileges and Procedures Committee would then say: "This is not a proper claim to legal advice privilege." That must be something which the P.P.C. could do, not to inquire into what the advice is but just to establish whether or not the advice is privileged, whether or not it is a proper claim to privilege in relation to the question which is being asked.

Deputy R.G. Le Hérissier:

To what extent is this amendment needed, given part 5, Powers, Privileges and Immunities of the States of Jersey Law 34: "No civil or criminal proceedings may be instituted against any Member of the States (a) for any words spoken before or written in report to the States"

The Deputy Bailiff :

I am sorry, Deputy , are you asking a question?

Deputy R.G. Le Hérissier: Yes, Sir.

The Deputy Bailiff :

Because it is my understanding that you have already spoken.

Deputy R.G. Le Hérissier:

Yes, a question. To what extent is that amendment needed, given 5.34 of the States of Jersey Law?

The Attorney General:

It may well be the case that the responses which the Member or Minister gives to the questions will not themselves form evidence which is capable of being produced in a court, but that is not to say that it will not give rise to a train of inquiry which will establish the evidence somewhere else.

Senator P.F.C. Ozouf :

One of the central issues that we considered yesterday was that no other parliament in the world had provisions in place to share legal advice. That was one of the central issues. Can I ask the Attorney General whether or not he has researched, whether he is aware that this provision for immunity exists in other jurisdictions that have this problem of Ministers needing to be held to account but that at the same time these legal provisions are, I am sure, to some Members without legal training (including myself), if I may say, somewhat over our heads.

The Attorney General:

I am afraid I have not researched that.

8. Senator P.F. Routier:

It appears to me that what the Attorney General has quite clearly advised us is that to reject this amendment would be inconsistent with what we decided yesterday. It was quite clear, the decision that was made yesterday, with regard to privilege, and to make a different decision today would be totally inconsistent. So I urge Members to support this amendment and to move on.

9. Deputy C.J. Scott Warr en of St. Saviour :

I was going to ask a question but otherwise I can put it in a speech, but I am concerned, Sir, that without legal privilege Ministers cannot, and nor would Members, feel able to fully provide information to Scrutiny Panels. Sir, I had a recent experience of this when I had to withdraw my working party to look into the operation of third-party appeals because I was informed by someone with legal knowledge that people risk being sued or they would not give full information to the working party which is why it is now coming back as a Committee of Inquiry. If you do not have legal privilege, Sir, it would appear to me that whatever you are going to hear is going to be not necessarily the full story, to put it bluntly, and I would appreciate whether I am correct in that, Sir. Thank you.

The Deputy Bailiff :

I am not sure that is a legal question, really, is it? I think that is a matter of

Deputy C.J. Scott Warr en:

What I am really saying is information is provided without legal privilege. It could be, to use the term of a former U.K. adviser, people, Members and Ministers particularly might be economical with the truth. Is that correct, Sir?

The Deputy Bailiff :

Well, I think that is a matter of opinion. I am not sure that is a matter of law for the Attorney General to advise you on.

Deputy C.J. Scott Warr en:

Maybe I have not been clear. My reason for saying that is that the risk of being sued could make any Member of the States without privilege, and this applies to members of the public who appear, I believe, that any information given without legal privilege surely may not be the best information, if I can put it that way. Thank you, Sir.

The Deputy Bailiff :

Well, Mr. Attorney General, do you want to answer that question?

The Attorney General:

Deputy Le Hérissier was right to refer to Article 34 of the States of Jersey Law in this respect because that does create immunities against legal proceedings for what is said to a committee or Panel established under Standing Orders. So Members need not fear that they are going to be sued for information which they give to a Panel. That is not the same thing as the privilege against self- incrimination, which I have just said in answer to the response to Deputy Le Hérissier, might lead to a train of inquiry in criminal proceedings being taken in respect of other matters. So not what is said being used in evidence, but it may spark other inquiries.  I am not sure I can really add much to that.

Deputy R.G. Le Hérissier:

Can I ask for further clarification on 5.34? Is the Attorney General suggesting, Sir, if, for example, a Minister - take the current situation - is brought before a Scrutiny Panel to examine childcare policy, could that Minister say: "Even though I may not be directly responsible for certain actions [which in itself is an issue], there is the possibility I might be held criminally liable for some aspect of childcare, therefore I cannot say anything to the Panel looking into the whole area of childcare services"?

The Attorney General:

My experience is that Members can say almost anything, but that apart, if a Minister had no responsibility for the particular time, it does not appear to me that he would ever dream of raising the privilege against self-incrimination. There would be no reason to do so. As I said earlier, it seems to me that a Minister who raises a privilege against self-incrimination is likely to be facing a very short-term political career in the future.

10. Deputy F.J. Hill of St. Martin :

Yesterday when I spoke, I warned Members that if they agreed to the principle of the right to legal aid or deny legal aid to Scrutiny Panels that there would be a knock-on. I made it quite clear yesterday. Now this morning my words have come into fruition because we are being told: "You agreed to it yesterday, therefore you must agree to it today." I also said that Scrutiny needed the tools to do the job. I stopped being a member of Scrutiny some months ago. I have no intention to remain involved with Scrutiny because I do believe that Scrutiny has been ham-fisted and is going to be continually ham-fisted if we agree to this amendment.

11. Deputy J.G. Reed of St. Ouen :

I would just like to make a couple of points following on from certain comments that the Attorney General and others have made. It would be this: that presently the States as a whole have not sought to cover the privilege of self-incrimination either in the States of Jersey Law or Standing Orders. We are equally aware, as has already been pointed out, that immunity from legal proceedings is protected. Secondly, 2 and a half years on and through practising Scrutiny and obviously the interaction between Ministers, it had been clearly pointed out that there has not been an issue. So why make it one now? Thirdly, we have included in the Code of Practice, and I would like to point out that if there is an issue and a need to cover the issue of privileges for self- incrimination, this is not the document to use. As I said before, we do have the States of Jersey Law and we do have outstanding orders. If we need to deal with these issues, let us deal with them in the proper format. This Code of Practice is just to deal with how practical things happen and expectations, but equally I would like to point out that we have included, quite rightly, the checks and balances, and the checks and balances ultimately rest with the Privileges and Procedures Committee, a committee that the States has set up for a whole range of responsibilities but ultimately a responsibility for States Member conduct and actions and everything else. Are we now

suggesting that that responsibility and remit of that committee is pointless? Are we going to remove any ability for them to determine properly and objectively what is and is not a responsible action or activities? I would say not. Therefore I would ask Members to properly consider the proposed amendment and what it means. I would ask them to vote against the amendment.

Deputy G.P. Southern :

Could I pursue the inquiries with the A.G. (Attorney General) further? The question is, can the A.G. confirm what I think he said to us is that a Minister might come to a Scrutiny Panel and say: "I am aware that I am immune from prosecution for the words I use at this inquiry but it may well be that some time in the future somebody else will further persue my words as a starting point and hold me criminally responsible for a particular act. Therefore I am saying nothing." Is that the case?

The Attorney General:

In relation to self-incrimination, yes.

12. Senator P.F.C. Ozouf :

Very briefly. I have heard the contributions of a number of Members, including the Deputy of St. Ouen where I am afraid to say, sitting where I am, I am interpreting his remarks as basically saying that he knows best in terms of what these provisions mean. I have to say to the Deputy of St. Ouen that we have a [Interruption] I am not giving way. We have a responsibility for the people that we serve as elected representatives to take advice. We have heard advice from - and there is no other Member of this Assembly who has legal training and we have to make decisions based upon legal advice - from the Attorney General and backed up eloquently yesterday by the Solicitor General and, frankly, I think it is an unacceptable position that Members do not take the proper advice from the proper officers that we have serving this Assembly. On that basis I cannot believe that any Member, any thoughtful Member, any Member that takes his or her responsibility seriously, would vote in any other way apart from act upon the advice that we have received. This is not about hiding behind legal privilege. That is not the situation. Those Members who wish to undermine the position of Ministers in some way and make it difficult for us to do our jobs, they may want to vote in favour of these amendments. But most Members, I think, act upon advice and upon proper advice.

13. Deputy P.V.F. Le Claire of St. Helier :

This is an interesting point, Sir. But I think it is rather twisted what is the case and that is that most Members have a high regard, or the highest regard, for the advice of the Law Officers of Jersey and it is our desire to seek to understand and witness that advice that is where we are coming from, from a Scrutiny perspective. Members of Scrutiny do not want to go out and seek advice from outside of the States of Jersey, they want to know what the Attorney General believes and when, on many occasions, we have been in camera Members vote accordingly. In this instance and in yesterday's instance, we are being told that unless we vote to not see the advice then we are ignoring the advice. It really is a very clever trick of the hand to suggest that we are not interested in the Attorney General's advice, or the Solicitor General's advice. The reality is as said yesterday by the Solicitor General, we can ask advice from the Attorney General. The reality is that if that advice relates to the advice that he has given to a Minister we are not able to see it unless the Minister gives it to us and the Minister at that time can say: "Sorry, I cannot give it to you unless

the Attorney General tells me I can and because it is privileged, I cannot." So we are at a dead end as far as Scrutiny is concerned. We are now going to have to go outside to seek other advice and it is regrettable. It is regrettable because we all value the advice and we respect the Attorney General and the Solicitor General and the Officers in the Law Department, and unfortunately this leaves us no option but to go outside. As a demonstration of sincerity in what I am saying, on this occasion I will support this advice to demonstrate that this is the type of advice that we have been trying to access in bringing these amendments. Unfortunately, in the future, when the Attorney General is not  in  the  Assembly,  as  has  been  the  case  in  the  past,  when  perhaps  his  advice  has  been misrepresented as it was in the past by existing members on a committee as part of this Council of Ministers,  we  will  be  in  a  position  of  not  knowing  whether or  not  that  advice  has  been misrepresented or not.

14. Deputy R.C. Duhamel of St. Saviour :

Briefly, Sir. It would appear that as in many card games there are some cards that can be played as wild cards or jokers and I think that this amendment is being played in this particular fashion. I have not been convinced by the advice that we have had from the Attorney General and I think it will provide more than a bolt hole for our Ministers to hide behind, it will effectively render the whole process of accountability, or bringing accountability into Ministerial actions, ineffective.

The Deputy Bailiff :

Does any Member wish to speak? Very well, I call upon Senator Vibert to reply.

15. Senator M.E. Vibert :

I will be very brief. Members have heard what other Members have to say, including the advice from the Attorney General. It appeared to me that a number of people speaking against this amendment appeared to be trying to re-run yesterday's debate and were not happy with the States decision. Well, the States have made their decision and to be consistent this is a follow on to be supported and I propose the amendment, Sir.

Deputy R.C. Duhamel: Can we have the appel?

The Deputy Bailiff :

Yes, the appel is asked for in relation to the amendment to paragraph (a) of the proposition and I invite Members to return to their seats and the Greffier will open the voting.

The Deputy Bailiff :

Then we come to the final set of amendments, amendments paragraph (f) and (g). Greffier, have you been reading them all so far? No. A short version.

The Greffier of the States:

(f), in paragraph 11.7: (1) after words "all witnesses" delete the words "who are not States Members"; (2) after the words "factual or descriptive passages" insert the words "where possible this will also include the Panel's findings and recommendations. This will help to ensure that the Panel has correctly interpreted the evidence and provides an early opportunity for clarification." (g), in paragraph 11.8: (1) after the words "circulate draft reports" insert the words "including findings and recommendations to the relevant Minister; (2) after the words "in confidence and" delete the words "when possible"; (3) after the words "and allow" insert the words "at least"; and (4) after the words "for comments" delete the words "on matters of a technical or factual nature only".

2. Senator M.E. Vibert :

I was hopeful that the last amendment would be adopted and would not take too long, perhaps I can hope that this might be the same. I say that particularly as I notice some comments from Scrutiny Panel members yesterday, Deputy Mezbourian talked about being open, transparent and accountable and so all we are asking in this is that Scrutiny are open, transparent and accountable. I hope they accept that and will react accordingly because these amendments, (f) and (g), are about how Scrutiny produce their reports, how they validate the evidence that has been received - either through documents from witnesses or expert advice - and how they publish their findings. Amendment (f) relates to paragraph 11.7 of the Code of Practice. A Code of Practice says that relevant draft sections of the report will be circulated to all witnesses who are not States Members and that they are allowed 5 working days to comment before the report is finalised. The Council of Ministers cannot see why this courtesy should not be extended to witnesses who are also States Members. We believe that States Members should be treated in exactly the same way as any other witness and have the same 5-day courtesy extended to them. Amendment (g) proposes a number of changes to paragraph 11.8 which the Council believes would ensure fairness and not at all compromise Scrutiny's ability to publish its final findings and recommendations. As it stands the Code of Practice says that finalised draft reports will allow, when possible, 5 working days for comments of a technical and factual nature only. Scrutiny has produced a number of valuable reports which have contributed to policy making. Policy is all the better for it. The Council wants to support this process and believes that there should be a short opportunity before final publication for comments to be given to Scrutiny on all parts of their report. Scrutiny will be entirely free to decide whether those comments are valid and should either be accepted or rejected. This amendment would ensure that opportunity is given in every case and they should only serve to improve the quality of reports still further. Without sight of the report, including the Panel's findings and recommendations in good time before publication, it is impossible for witnesses and the appropriate Minister to assess whether they believe the Panel has interpreted their evidence correctly. The amendments to paragraph 11.8 makes it clear that the final draft reports should be circulated in confidence to the relevant Minister for comment at least 5 working days before publication and should include the Panel's recommendations and conclusions. This would enable Ministers to assess how the Panel had interpreted evidence and give them time to make comments or make points of clarification to the Panel prior to publication. There have been occasions, Sir, when final Scrutiny reports have been sent to Ministers so close to publication that the Minister has not had time to consider the Panel's findings and recommendations and formulate any sort of considered response or comment. Sir, if the full report is provided in confidence 5 days beforehand the Council of Ministers believe it should not be a problem. Deputy Martin in the debate yesterday said in confidence should not be a problem. I agree. The Panel providing their full reports to Ministers in confidence should not be a problem. It should make for better government. Deputy Ferguson yesterday referred to trust between Scrutiny and the Executive. Again, if we have that trust obviously there should be no problem in providing in confidence a full report to Ministers before it is published. The Deputy of St. Martin said: "Give us the tools to do the job." The Ministers need the tools as well and they need the 5 days and the full report to do their job. So in summary, Sir, the Council of Ministers believes it is unreasonably to expect a Minister to review what are often substantial documents on complex issues and then prepare an informed comment on what is often a very short timescale between receiving a copy of the report and publication. Council believes it is important that the appropriate witnesses and in particular the appropriate Minister should have an opportunity to review the draft reports findings and recommendations prior to publication. Of course it would be up to the individual Panel whether it accepted any comments or not. The Council of Ministers believe this amendment would ensure fairness and not at all compromise Scrutiny's ability to publish its final findings. It would also improve the quality and fairness of Scrutiny Reports and would also led to a much more workmanlike relationship between the Executive and Scrutiny from which we would all benefit. Sir, I propose the amendments.

The Deputy Bailiff :

Is the amendment seconded? [Seconded] Does any Member wish to speak on the amendments? Deputy Baudains.

1. Deputy G.C.L. Baudains:

It does appear to me, Sir, that the Council speaks with forked tongue. They have on frequent occasions told this Assembly how important Scrutiny is, what a vital function it performs and our Ministerial government frankly could not operate without it. Then, Sir, they do their best to ensure that Scrutiny is as hamstrung as possible so it is unable to be effective as possible. Frankly, Sir, what this particular amendment seeks is outrageous; disguised as it is, an attempt to edit out of Scrutiny Reports that which the Ministers do not like. I believe that if this particular amendment is successful then it would probably be better if Scrutiny Panels disbanded and they effort that they and the officers put in, not to mention the consideration financial resources required because those resources would then become a waste of time, a waste of taxpayers' money. This is nothing more than a blatant attempt by the Council of Ministers to control Scrutiny.

2. Deputy S.C. Ferguson:

I would remind Members that some year or 18 months ago we had in fact set up a Code of Practice for Ministers to remind them how they should react to a Scrutiny Report. If we look at amendment one, in the original discussions these paragraphs were worded this way because the Council of Ministers were demanding the full report as well as the parts where they had given evidence. It would have been inappropriate for all witnesses to have received the full report rather than the sections before completion. It certainly would be fairer if all witnesses received the section of report relating to their evidence. It does seem that we have made a slight mistake in excluding any States Members which must be against their human rights. I do wonder sometimes whether States Members are human, but that is probably non-parliamentary language. This is a slip up on the part of Scrutiny and if this Council of Ministers amendment is rejected we will amend it as soon as possible and, in fact, the Greffier will be possession of the required amendment by the close of play today. However, both paragraphs mention inclusion of findings and recommendations. Paragraph 11.7 makes it optional and paragraph 11.8 makes it mandatory. This really does not make sense. Until the draft is checked by the ministry to make sure that there are no inaccuracies or misquotes or errors in facts, the final recommendations cannot be made. If there has been a fundamental misunderstanding of a process or of facts, it might cause a complete reversal of crucial findings and recommendations because it will totally change the evidence. Once everything is correct then the completed report is circulated in advance of publication to the relevant Minister. The comment in the report to the amendments is: "Where possible this will also include the Panel's findings and recommendations. This will help to ensure that the Panel has correctly interpreted the evidence and

provides an early opportunity for clarification. If recommendations are provided this is done to provide the context of the report." Correctly interpreted the evidence? How patronising. It is not for Ministers to rewrite Scrutiny Reports. This tone is continued in 11.8. "Circulate draft reports and findings and recommendations." This really is control freakery at its best. The Minister will receive his chance to comment on the recommendations and findings through the formal States system as set out in the Code of Practice, paragraphs 11.15 to 11.17. Amendment 2 talks about 5 days. Panels cannot be held to 5 days. The pressure is put on them to produce reports due to the late supply of information by the Executive. There is considerable pressure to issue reports before major debates. The income support report and the G.S.T. (Goods and Services Tax) S.R.7 are good examples of this. I would point out that the Minister has already been able to review the entire report. Surely with the plethora of resources at his disposal, or her disposal, they can review 2 pages in 5 days? I mean they can probably review 2 pages in a morning. Come on. Similar arguments apply to amendment 3 as to the other amendments. This final amendment by the Council of Ministers is to change the phrase: "On matter of a technical or factual nature" to "for comments." We do not want to hear there is a spelling mistake on page 159, paragraph 300. We want confirmation that we have noted down the facts correctly and that we have not misquoted you. It is in the Ministers interests to make sure that the facts and the evidence are correct. Again, if we have made a factual mistake then this will almost inevitably change the finding. This particular amendment would set up a veritable merry-go-round. This is not efficient. Most importantly we must remember that Scrutiny must be independent, particularly of the Executive. Okay, recommendations may be uncomfortable for the Executive, nobody is perfect. Except me. That is only occasionally. It is much better that we sort matters out at the beginning of a policy rather than find out late in day when it all goes pear-shaped. This is only common sense. This amendment would undermine the independence of Scrutiny. Transparent government, I think not. I ask

Members to reject this amendment.

3. Senator T.A. Le Sueur :

Far from undermining Scrutiny I think this amendment strengthens the quality of the final product. [Laughter] I say that because it is surely in all our interests to make sure that Scrutiny Reports are, as far as we can ascertain, factually correct and accurate and do not misrepresent, perhaps quite innocently, evidence that has been given. I think the fact that we now seem to be acknowledging that States Members giving evidence to Scrutiny should also be entitled to review that is an indication from the Chairmen's Committee that they do want to provide accurate Scrutiny Reports, and reports which are of most benefit to all of us, not just the Ministers or to that Panel, but to the process of arriving at proper policy. On that basis I think the amendments which the Council of Ministers are putting forward are not there to try to hamstring Scrutiny Panel reports or indeed to influence their comments. They are there to advise Scrutiny Panels in case that Panel has inadvertently made the wrong comment. In other words, it is there to strengthen the output of that Panel. Deputy Southern may disbelieve that but if we are going to work together to try to get good outcomes to Scrutiny Reports it surely behoves us all to make sure that we do that in a consistent and a constructive way. What the President of the Chairmen's Committee was just then saying was suggesting that we were trying to undermine that. Certainly speaking for myself I am not, I am trying to make sure that we have a report it has all the facts and the all the opinions presented in the right way and what conclusion that Panel comes to is entirely a matter for that Panel. But if they do not want to accept the comments of Ministers so be it, but at least let the Ministers have the opportunity to give them those comments.

4. Deputy P.J.D. Ryan of St. Helier :

I think with all due respect, and to try to be as fair as possible to the Council of Ministers, the choice of words that they have used in their accompanying report to this particular amendment is most unfortunate and has led to, as one can imagine when I read them out, a certain reaction from members of Scrutiny. I will read the particular bit: "Without sight of the findings and

recommendations it is impossible to assess [and here is the relevant bit] whether the Panel has interpreted the information correctly." The whole point about Scrutiny, Sir,  is that there are usually in fact I would say pretty much all the time there is more than one way of interpreting evidence and information. In fact that is the whole point of Scrutiny. Interpreting the evidence. That is why Scrutiny members are fundamentally opposed to having the Council of Ministers or anyone else tell them how to interpret evidence. That is why we are against it, Sir, that is why we will unfortunately be voting against it, although I do appreciate that it is certainly helpful, it is certainly advisable and, wherever possible, certainly my Scrutiny Panel has given that 5-day notice to the relevant Minister. But we cannot be held to that because there are occasions when it simply is not possible. Time constraints get in the way. So I would ask the Council of Ministers to accept that. This question of interpreting evidence is just fundamentally wrong. Thank you.

5. Senator P.F.C. Ozouf :

I have to say that I think as far as Deputy Ryan is concerned he does genuinely hold the Executive to account in a very fair and balanced way and the work that I have seen that his Corporate Affairs Panel does is really looking as far as I am concerned, he is not afraid of commenting and being very critical where he thinks that evidence has not been taken and I think work that his Panel has done has been extremely helpful. I think the system of government because of the way he and his Panel conduct these affairs is better for it. The Minister for Treasury and Resources and other departments are stronger. I am not saying that to butter him up. I think he is genuinely walking the talk as far as Scrutiny is concerned. I have to say that is not my experience from other Panels.

Deputy G.P. Southern :

Would the Minister like to name them?

Senator P.F.C. Ozouf :

If he wants to, absolutely. The Economic Affairs Scrutiny Panel which I think all Members will know has been questionable in some of the assessments that they have made and some of the use of Scrutiny in terms of politicking. But I am not giving way, I am entitled to that view. Certainly the Minister who is subjected to some of this politicking is entitled to his say on some issues. I am sure Members can recall issues where the Economic Affairs Scrutiny Panel has engaged in some politicking on some particular issues. Sir, I understand what it is like to a scrutineer. In a previous life I was an internal auditor and it is in the experience of being an internal auditor that I have drawn considerable views about the way that Scrutiny can operate. One of the things that I used to have to do as an internal auditor which was effectively scrutinising; it was not an internal auditor just on financial issues. I was sent into companies having to deal with some ferocious management people and asking what exactly they have been doing and whether or not to try and make an assessment of whether or not they had been making decisions. At the end of every single review that I had to do I used to have to produce a report. That report used to have to be shared with the management of the auditee organisation with recommendations. That was a change. We used to have to produce a report with recommendations and prior to the report being issued it also used to have to have a comment from management about whether or not the recommendation was agreed or not. That is almost 2 steps ahead of what the Council of Ministers is asking. It would be a good state of affairs in my view if we arrived eventually at a position where we had a report with recommendations and the acceptance of corrective action of the Minister at the point of the issue of the report. Because if you did that you would do away with a lot of the politicking. What we are asking for - and all we are asking for - is to have sight of the draft recommendations prior to the issuing of the report. It is, and I am sure Members on both sides of this argument will understand, virtually impossible for the Executive, for Ministers to be able to make an assessment as to whether or not we would have a comment to make on the report without seeing the recommendations. I have to say, as far as the Economic Affairs Scrutiny Panel is concerned, it is virtually impossible in many cases to link the actual report with the conclusions. Some of the recommendations that have been made by the Economic Affairs Scrutiny Panel I think need to be scrutinised in terms of the connection between the report and the evidence given and the conclusions. Of course I do my research about how Economic Affairs conducts its business and I have to say they are, in my view, too political and I wish that I would have an Economic Affairs Scrutiny Panel which would genuinely hold me to account on realistic issues and improve the quality of decision making. But

that clearly is not, and the contempt that he shows me just by his remarks and his gesticulations in the Assembly indicates to me that I do not believe that personally, Sir, that Deputy Southern is interested in raising the game, rather using his Scrutiny Panel for politicking purposes. I do not agree, I have to say, with other Members of his Panel which I have the greatest of respect for. [Laughter] Sir, I would have thought that Scrutiny Panels want to know whether or not the Executive is in agreement with some of those recommendations. I would have thought that it would be helpful to them to have a comment on their recommendations prior and this is the key issue, the key issue is that we are being asked to have a draft of the recommendations. It is up to the Scrutiny Panel in the final analysis to issue their own report. They can, notwithstanding the comments of the Executive on the draft recommendations, issue whatever report they want. If Scrutiny are serious in listening to facts, listening to the opinions of Ministers on an important report I would have thought that they would have thought that, as Senator Le Sueur said, it strengthens their situation and strengthens the power of their report. I am afraid to say that all suggestions that this is a way of undermining Scrutiny, the strong representations given by Deputy Ferguson that it somehow ties the hand, that it does not mean that Scrutiny is independent, that is nonsense if I may say. Because ultimately all we are asking is to see the recommendations, to be able to comment on those recommendations and ultimately it is up to Scrutiny to decide what recommendations are made. If we did see those recommendations it might also speed up the whole process by which we could agree on some of those recommendations and either say: "Yes that is an improvement. Yes, hands up that we could have done that better. We should have made it a different thing, alternatively opposing it." I think it strengthens it just as it strengthens the reporting process between when I was a young graduate, as an internal auditor in raising the performance of the organisation. It improves it, it does not compromise the independence. It is a reasonable, and I

would have thought, transparent way of operating between the Executive and Scrutiny.

6. Deputy C.J. Scott Warr en:

Firstly, Sir, I am pleased that the Chairman has agreed to amend (f)(i) because I have recently received draft pages of a Scrutiny Report before it was published which I had been giving evidence on. States Members, as everybody else, should receive that information in advance. However, I cannot support the rest of these amendments. I would like to clarify that the Scrutiny Panels want comments of technical and factual nature. They want those comments but I agree with the Chairman, if there was a major fact or facts wrong and the Panel was informed their report had got something wrong, then it is possible that the findings and recommendations could change. So, Sir, I feel that the rest of these amendments are tying Scrutiny's hands. I would agree that it is in Scrutiny's interest to try to get the draft reports to Council of Ministers as soon as possible, it is in their interests to do that but it may not always be possible. So, Sir, I cannot support these other amendments. As I say the first one is sensible. I believe, Sir, that these amendments are tying Scrutiny's hands. I believe a good Scrutiny Panel will try, as I believe Scrutiny is good, to get the draft reports out as soon as possible but I do not believe that they I believe these amendments are overly restrictive. Thank you, Sir.

7. Deputy J.A. Martin:

I would just like to make the first comment on paragraph (f)(i) which I agree that we have already agreed to amend - it probably was an oversight - on all witnesses. But I think on the oversight if they really truly want any information that is going to help them, 11.7 says: "The Panel will circulate relevant [and it is relevant] draft sections." But the amendment wants, with those relevant draft sections, which may be just a transcript of what the Minister for Economic Development has