PPC Minutes 3rd February 2005

IC/KAK/53  16

PRIVILEGES AND PROCEDURES COMMITTEE (36th Meeting)

3rd February 2005

PART A

All members were present, with the exception of Deputy J-A. Bridge, from whom apologies had been received.

Deputy R.G. Le Hérissier Senator P.V.F. Le Claire Connétable D.F. Gray Deputy P.N. Troy Deputy C.J. Scott Warr en Deputy J.A. Bernstein

In attendance -

M.N. de la Haye, Greffier of the States

Mrs. A.H. Harris , Deputy Greffier of the States I. Clarkson, Committee Clerk

Note: The Minutes of this meeting comprise Part A only.

Minutes A1.  The Minutes of the meetings held on 5th January (Part A) and 13th January 2005 (Parts A and B) were taken as read and were confirmed.

Standing Orders: A2.  The Committee received correspondence, dated 14th February 2005, from Mr. Register of B. Querée on behalf of the Jersey Evening Post, requesting permission to publish the Members' Register of Members' Interests.

Interests:

publication. The Committee recalled that the rules governing the operation of the Register were 1240/4/2(1) contained in Standing Order No. 44A, which stipulated that, in order to view the

Register, a member of the public was required to attend the States Bookshop and to Clerk furnish the Greffier of the States with their correct name and address. Publication in a G.O.S. newspaper  was,  therefore,  effectively  prohibited  by  the  existing  rules. L.D. Notwithstanding the foregoing, the Committee discussed whether the existing rules

concerning the administration of the Register and the categories of registrable interest

recorded within it should be reviewed.

On the  matter of accessibility, some support  was expressed for the  principle of publishing the Register on the States Assembly Web site. Moreover, it noted that the respective registers for members of the United Kingdom House of Commons and the Scott ish Parliament were now freely available on the Internet.  Nevertheless, it was also acknowledged that the existing arrangements in Jersey were a relatively cost effective way of making the necessary information available to the vast majority of the electorate. In addition, some concern was expressed at the prospect of publication on a medium that was accessible worldwide. It was reported that several Members had previously expressed concerns to the Greffier of the States at the prospect of personal  information  being  made  more  easily  available  to  persons  involved  in criminal activities.

The  Committee  was  advised  that  a  discussion  paper  on  possible  reform  of  the existing  rules  on  declaration  and  registration  of  Members' interest  would  be presented to the Committee prior to the end of February 2005. Accordingly the Committee deferred further consideration of the matter pending receipt of the aforementioned discussion paper.

In  the  intervening  period,  the  Committee  agreed  to  write  to  all  Members advising that the issue of the accessibility of the Register of Members' Interests was being addressed by the Committee as part of its ongoing review of the Standing Orders of the States of Jersey.

The Committee Clerk was instructed to take the necessary action.

Scrutiny of States A3.  The Committee, with reference to its Act No. A2 of 25th November 2004, Business Plan recalled that it had agreed to consult the Policy and Resources and Finance and and Budget. Economics Committees on arrangements for scrutiny of the States Business Plan and 502/5/5(1) Budget during 2005.

Clerk The Committee received a revised report, prepared by the Deputy Greffier of the D.G.O.S. States, in connexion with scrutiny of the States Business Plan and Budget during P.R.C.C. 2005.

P.R.E.O.

T.O.S. The Committee welcomed a delegation consisting of Senator F.H. Walker , President C.I.Aud. of the Policy and Resources Committee, and Mr. J.M.E. Harris , Business Manager, F.E.C.C. Policy and Resources Department.

Scrutiny

The Committee welcomed a delegation from the Finance and Economics Committee consisting  of:  Senator  T.A.  Le  Sueur,  President;  Senator  P.F.C.   Ozouf ,  Vice President;  Mr.  I.  Black,  Treasurer  of  the  States;  Mr.  K.  Hemmings,  Head  of Performance  and  Review,  States  Treasury;  and,  Mrs.  M.  Washington,  Corporate Financial Strategy Consultant, States Treasury.

It was noted that the Business Plan and Budget needed to be treated separately as they were quite separate processes.

Business Plan

It was agreed that scrutiny of the Business Plan could be conducted in public. Scrutiny of the Business Plan would be a six month process. Senator Le Sueur recalled that the processes leading to the production of the Business Plan had already begun at departmental level and he acknowledged that the Resource Allocation Meeting of Committee Presidents on 7th February 2005, at which 3 year cash limits for individual Committees were due to be set, was a crucial date for the new system, and members of scrutiny would be present. The purpose of scrutiny of the Business Plan was to provide a critique, and to validate what had been done. It was not intended that this should generate amendments, but rather to carry out an assessment within the necessary timeframe and inform members. The meeting noted the need for impartiality, and this would be underlined by ensuring that comment was based on evidence.

Consideration was given to the matter of whether a Scrutiny Panel should be entitled to investigate whether the budget planning process within a particular department was flawed or ineffective. Generally, scrutiny should operate at a more strategic level, but business plans of individual departments could be released for scrutiny once the Business Plan had been completed. Senator Le Sueur agreed that it was, however, appropriate for scrutiny to assess the impact of proposals on stated strategic aims, e.g. impact of the Agri-environment Scheme on environmental aims.

Budget

Senator F.H. Walker and Senator T.A. Le Sueur confirmed that they were committed to defining the best way in which Scrutiny could assist with the budget process.

It was agreed that the purpose of Budget Scrutiny should be to look at the Budget  processes,  suggest  improvements  to  the  processes  and  to  evaluate whether the outcomes were a fair reflection of the processes. The reviews would concentrate on how the proposals were arrived at, and decide whether the proposals were consistent with strategy, and if not, then why not.

In  terms  of  process,  it  was  confirmed  that  in  accordance  with  the  new  Public Finances Law , individual members could lodge amendments to the Budget with a minimum of 2 weeks notice (rather than the previous practice of being able to present amendments with no notice at all), but it was not intended that Scrutiny Panels would bring amendments to the Budget.

All parties agreed that, in view of the economic and social sensitivity of Budget proposals, it was vital that confidentiality was maintained during the Budget Scrutiny process. To that end, it was agreed that, whilst the Scrutiny Panels would be entitled to shadow the Budget and Business Plan process, any Budget Scrutiny hearings would operate in closed session.

Senator F.H. Walker advised the Committee that he saw nothing inherently wrong with an examination by a Scrutiny Panel of the strategy underpinning the budgetary planning of a particular department, although he cautioned that Panels would need to exercise careful judgement in selecting such topics for review. The budgetary impact of the draft Regulation of Investigatory Powers (Jersey) Law (Projet No. P.196/2004 refers), which was due for debate on 15th March 2005,  was cited as one example of where such a review could have been of significant benefit to the States Assembly.

The delegates, having been thanked by the Committee for their attendance, withdrew from the meeting.

The Committee requested the Deputy Greffier of the States to circulate a revised report, incorporating the aforementioned decisions, to the Policy and Resources and Finance and Economics Committees for formal endorsement.

The Greffier of the States was requested to send a copy of this Act to the Policy and Resources and Finance and Economics Committees for information.

Public Finances A4.  The Committee, with reference to its Act No. A1 of 13th December 2004, (Jersey) Law recalled that the draft Public Finances (Jersey) Law 200- had been adopted by the 200-: expenditure States on 19th January 2005. However, the Assembly had given leave to the Finance and taxation and Economics Committee to withdraw Articles 14 and 19 of the said Law, which controls. concerned restrictions on amending or proposing expenditure controls and on lodging 447(1) taxation drafts. Both Articles were considered to have been unduly restrictive to

individual Members.

Clerk

G.O.S. The Committee received a report, dated 28th January 2005, prepared by Mrs. M. T.O.S. Washington, Corporate Financial Strategy Consultant, States Treasury, in connexion C.I.Aud. with the former Articles 14 and 19 of the Public Finances (Jersey) Law 200-. F.E.C.C.

The Committee received a delegation from the Finance and Economics Committee consisting  of:  Senator  T.A.  Le  Sueur,  President;  Senator  P.F.C.   Ozouf ,  Vice President; Mr. I. Black, Treasurer of the States; and, Mrs. M. Washington, Corporate Financial Strategy Consultant.

The Committee was advised that, having reconsidered the purpose and wording of the former Articles 14 and 19, the Finance and Economics Committee remained satisfied that the Articles were necessary to ensure good governance and that they represented  worldwide  best  practice.  It  was  explained  that  any  attempt  to  ease restrictions on amending or proposing expenditure controls and on lodging taxation drafts would inevitably increase the risk that control over public spending might be lost.

The Committee agreed that there were sound financial reasons for reinstating the former Articles 14 and 19 within the Public Finances (Jersey) Law 200- and it acknowledged that, in the forthcoming ministerial system, the States Assembly retained the ultimate power to approve or reject the budget proposals of the Council  of  Ministers.  Nevertheless,  the  Committee  considered  that  States Members would benefit from a clearer explanation of the purpose of, and the reasoning  behind,  the  two  Articles.  In  addition,  the  Committee  expressed  a degree  of  concern  that  the  wording  of  the  former  Article  14(2)  may  have inadvertently given Members a false impression of the extent of their powers to bring amendments to the expenditure plans of the States.

The Committee noted that the Finance and Economics Committee would re-consider the former Articles 14 and 19, either in an identical or a slightly modified format, at a subsequent meeting. A presentation to all States Members was then to be arranged, following which the Articles would be re-lodged au Greffe'.

The members of the delegation, having been thanked by the Committee for their attendance, withdrew from the meeting.

Scrutiny: A5.  The Committee received correspondence, dated 18th November 2004, from evidence given Senator F.H. Walker , President of the Policy and Resources Committee, concerning by Members. evidence given by Members to Scrutiny Panels.

502/1(32)

The Committee noted that Senator Walker had expressed concern that a Member P.R.C.C. could,  in  theory,  lie  under  Oath  to  a  Scrutiny  Panel  and  yet  avoid  criminal P.R.E.O. prosecution.

Clerk

G.O.S. The Committee acknowledged the point made by Senator Walker . It nevertheless

recalled  that  the  forthcoming  rules  governing  the  application  of  Parliamentary Privilege to Members appearing before Panels would mirror those that applied to Committees of Inquiry. Under those rules, a Member who deliberately perjured his or herself would not be protected.

The Greffier of the States was requested to write to the President of the Policy and Resources Committee in an attempt to allay his concerns.

The Greffier of the States was requested to send a copy of this Act to the Policy and Resources Committee for information.

Shadow Scrutiny: A6.  The Committee recalled that, on 10th January 2005, the Shadow Scrutiny Panel complaint against chaired by Senator E.P. Vibert had held a public hearing, and that Deputy M.F. Deputy M.F. Dubras had been called to give evidence at that hearing. It further recalled that Dubras. Deputy Dubras had declined to answer questions from Deputy R.C. Duhamel, a 502/1(39) member  of  the  aforementioned  Panel,  citing  a  potential  conflict  of  interest.

Accordingly Deputy P.J. Rondel, in his capacity as Review Chairman of the Shadow Clerk Scrutiny Review of the Waste Management Strategy, had written to the Committee to G.O.S. complain about the actions of Deputy Dubras.

Scrutiny

The  Committee  received  a  report,  dated  27th  January  2005,  prepared  by  the Committee Clerk, in connexion with the complaint made by the Shadow Scrutiny Panel chaired by Senator E.P. Vibert .

The Committee welcomed Deputy M.F. Dubras, together with a delegation from the Shadow  Scrutiny  Panels  consisting  of:   Deputy  R.C.  Duhamel,  Panel  Chairman; Deputy G.P. Southern , Panel Chairman; Deputy P.J. Rondel, Review Chairman; and, Mr. C. Ahier , Scrutiny Officer.

The President explained that the purpose of the meeting was for the Committee to consider  submissions  from  all  relevant  parties  on  an  informal  basis.  Once submissions had been received, the Committee intended to issue appropriate advice to the necessary parties and, if necessary, to the States.

It was clarified that the allegations made by the Shadow Scrutiny Panel were as follows –

1. t h at Deputy M.F.Dubras refused toansweranyquestionsput to him by Deputy R.C. Duhamel, a memberof the Panel, during the course of the public hearing on 10th January 2005;

3. t h at   Deputy  Dubras was incorrect in asserting  that  the  presence of Deputy Duhamelon the Panelhad created a genuine conflict of interest;
4. t h at   Deputy  Dubras was unreasonable in having  failed  to  give  the Shadow Scrutiny Panel adequate notice of his intention to refuse to answerquestionsputby Deputy Duhamel;and,
5. th a t Deputy Dubras' actions at the aforementionedpublic hearing were intended toactas a hindranceto the workof the Panel.

Deputy P.J. Rondel contended that Deputy M.F. Dubras' evidence was likely to be of particular importance to the success of the inquiry and that there was a need to resolve the matter in short order. He recalled with concern that he had seen Deputy Dubras immediately prior to the commencement of the hearing and that Deputy Dubras had given no indication of his intentions.

Deputy M.F. Dubras reminded the Committee that both he and Deputy R.C. Duhamel had served on the Environment and Public Services Committee between December 2002 and March 2004. He further recalled that he and Deputy Duhamel had been members  of  the  Waste  Strategy  Steering  Group,  which  had  effectively  been responsible  for  developing  the  strategy  being  reviewed  by  the  Panel.  This involvement, coupled with his position as a scrutineer of the said policy had, in the opinion of Deputy Dubras, caused Deputy Duhamel to suffer a conflict of roles, particularly in light of the fact that the review had effectively commenced within three months of Deputy Duhamel's change of rôle. Deputy Dubras also asserted that he had been unaware Deputy R.C. Duhamel would be the lead questioner at the public hearing. Having established that this was indeed the case, he explained that he had only then made the decision to refrain from answering questions. He contended that the inquiry might well have been better served had Deputy R.C. Duhamel been able to give evidence regarding the operation of the Waste Strategy Steering Group to the Panel as a witness. In addition, Deputy Dubras questioned whether Panels should call previous Committee Presidents (or in the future, Ministers) to answer questions regarding the development of an existing policy. Nevertheless, and with hindsight, Deputy Dubras considered that it might have been more appropriate merely to have responded to the Chair with his reservations regarding the process. Finally, Deputy Dubras clarified that he remained a supporter of the Scrutiny process.

Deputy R.C. Duhamel contended that Deputy Dubras failed to allow him the opportunity to ask his first question. He was therefore unclear as to how Deputy Dubras was in a position to know that his line of questioning would give rise to a conflict of interest. He asserted that his position on the said Panel was not compromised by his previous involvement with the Waste Strategy Steering Group interest and he stated that he was offended by Deputy Dubras' stance on the matter.

Deputy G.P. Southern expressed concern that Deputy M.F. Dubras' actions might set a dangerous precedent for other Members who might wish to frustrate the efforts of a Scrutiny Panel to investigate other serious matters in the future. He contended that the matters of which questions would be asked and by whom were solely for the relevant Panel to determine.

The delegates, having been thanked by the Committee for their attendance, withdrew from the meeting, although both Deputy R.C. Duhamel and Deputy G.P. Southern remained to observe proceedings.

The Committee considered that the transition from being a member of the executive' to being a scrutineer (and vice versa) was an inevitable feature of any parliamentary system as individual members moved in and out of executive office. Furthermore, it was of the view that once a member had left executive office in any particular field he or she should not be precluded from participating in a scrutiny review relating to that subject. If this was not the case then the Committee foresaw a situation whereby the number of Members able to take part in the Scrutiny system might be severely restricted following an election or vote of no confidence in the Council of Ministers. On the matter of whether it was appropriate for a person who no longer held a particular office to be called to give evidence, the Committee agreed that there would inevitably be occasions when Panels would need to look back and call witnesses who might wish to justify particular policy decisions.

The Committee therefore concluded that it was inappropriate for Deputy M.F. Dubras to have refused to answer questions put by Deputy R.C. Duhamel on 10th January 2005. Moreover, it concluded that Deputy Dubras was mistaken in believing that Deputy Duhamel had a relevant conflict of interest for the purposes of the review of the Waste Management Strategy.

It was agreed that the President would write to Deputy M.F. Dubras inviting him to accept the Committee's conclusions and to clarify whether he would agree to appear before and answer questions from all members of the Panel, including Deputy R.C. Duhamel, if requested to do so again.

The Greffier of the States was requested to take the necessary action.

Matters for A7. The Committee noted the following matters for information – information.

1. a listofCommittee actions andmatters arising from previous meetings;
2. t he revised legislation timetable in connexion with Machineryof GovernmentReform;
3. A ct No.B2of the Environmentand Public ServicesCommittee,dated 4th November2004, concerning States Members' parking;
4. Acts Nos. B5 and B16 of the Environment and Public Services Committee, d ated 18th November 2004, concerning States Members' parking; and,
5. Act No.B6,dated 16th December 2004, of the PolicyandResources Committee concerning a proposed amendmentto the States ofJersey Law 200-.