Draft Repatriation of Prisoners (Jersey) Law 201- - Minister for Home Affairs - Transcript - 03 June 2011

Briefing with the Minister for Home Affairs on Draft Repatriation of Prisoners (Jersey) Law 201

MONDAY, 16th MAY 2011

Panel:

Deputy R.G. Le Hérissier of St. Saviour ( Deputy Chairman) Deputy J.M. Maçon of St. Saviour

Mr. M. Haden (Scrutiny Officer)

Witness:

Senator B.I. Le Marquand (The Minister for Home Affairs)

Deputy J.A. Hilton of St. Helier (Assistant Minister for Home Affairs) Mr. S. Austin-Vautier (Chief Officer, Home Affairs)

[9:30]

Deputy R.G. Le Hérissier of St. Saviour ( Deputy Chairman):

I would like to welcome you. Yes. We do assume our highly-esteemed colleagues are between here and St. John s or between here and St. Brelade s, but we are going to commence because at this time as we are quorate. So I would like to thank you for attending. You obviously know the rules and, basically, the panel was of the view that while it obviously was not in accordance with the scrutiny, it is a fairly fundamental law; to some people it is a very attractive law because people, I suppose like Kenneth Clarke in the U.K. (United Kingdom), could clean his prisons out very quickly, if applied with vigour and energy. But we do want to make sure that, well, the human rights side of it and the economic side of it because on the surface it is very attractive but, clearly, the panel would be interested to see whether it is indeed going to deliver what people think it will. So can we start by announcing ourselves? Roy Le Hérissier, Deputy Chairman.

Deputy J. M. Maçon of St. Saviour :

Deputy Jeremy Maçon representative for St. Saviour .

The Minister for Home Affairs:

Ian Le Marquand, Minister for Home Affairs.

The Assistant Minister for Home Affairs:

Deputy Jacquie Hilton, Assistant Minister for Home Affairs.

The Chief Officer, Home Affairs:

Steven Austin-Vautier, Chief Officer, Home Affairs.

Mr. M. Haden (Scrutiny Officer): I am Mike Haden, Scrutiny Officer.

Deputy R.G. Le Hérissier:

Okay. Thank you. I think we are ready. We are recording. We have identified certain key areas and then, if necessary, we have identified certain supplementaries which flow from those areas. But I wonder if, very briefly, Mr. Minister, you could tell us what the advantages and disadvantages are going to be of implementing this law?

The Minister for Home Affairs:

Yes. Well, thank you. I am very grateful for the opportunity to explain the law to you because the more people in the Assembly who have some understanding of it the better when the debate takes place. Broadly speaking, this law enables the Minister for Home Affairs, in certain circumstances, subject to certain constraints and limitations and human rights principles, to return prisoners to their home country in order to serve their sentence in accordance with the sentencing regime, or the serving regime (the parole regime, that is why I call it that) of that particular country. Now, there is in existence, and has been for some time, a European directive on this which, of course, is not binding on Jersey, but nevertheless indicates this is a principle accepted across the E.U. (European Union) countries that prisoners should be able to return in this way. So there are already in existence arrangements as between the U.K. and other countries and so Mr. Clarke is already able to do this in appropriate cases; in fact, the U.K. has arrangements which are wider than just with the E.U. Now, there are broadly speaking 2 advantages to this: firstly, there is an advantage to the prisoners themselves, particularly where they have virtually no ties with Jersey, and the nature of our prisoner

population (which includes quite a number of people who are drugs couriers who have virtually no ties with the Island) means that we will always have a grouping in this area. The advantage to the prisoner is that they are able to return to their home country; there, they have their ties with family, they can be visited, et cetera. That is the thinking behind it: it enables more effective rehabilitation into their home communities. The advantage from our point of view is that we anticipate, even at the first stage, a net gain in terms of reduction of numbers because we think that the number of foreign prisoners (particularly Portuguese and Poles, although there may be others as well) outgoing, will outweigh the numbers of Jersey people incoming. There will be some incoming people, I am aware of individuals who have been caught and sentenced in France for instance for drug-related offences, where they were in the process of importation into Jersey. If one considers for the moment the topical subject of Mr. Warr en(?) and his gang, if they had, in fact, been caught and tried in France, then those members of his group who had ties with Jersey could potentially then have come back in. There is also a potential secondary gain, which I am going to explain to you, and that potential secondary gain is larger in terms of numbers than the primary. The secondary gain would relate to if, as a result of this, we were to change our approach in relation to the terms upon which we send prisoners back to the U.K. but I am going off on a tangent, though; do you want me to carry on down that tangent?

Deputy R.G. Le Hérissier: Well, briefly. Yes.

The Minister for Home Affairs:

Yes. Okay. If I can explain: I already, I think, have explained this in brief, but it is best explained if I invent a supposed Mr. Le Marquand from St. Ouen s, a Mr. Smith from Liverpool and a Mr. Da Silva from Madeira, all 3 of whom are co-conspirators in some drugs matter, all of whom get the same sentence. If they all serve their sentence in Jersey then, clearly, they would be subject to the Jersey guidelines, although there might be some slight difference if Mr. Da Silva was subject to a deportation recommendation. But if we entered into an agreement with Portugal/Madeira, then you would have a situation in which Mr. Da Silva would be returning to Madeira to serve his sentence, subject to the Madeiran system, whatever it may be, and that might mean that he was eligible to be let out earlier. At the moment, there is not a differential between Mr. Le Marquand and Mr. Smith, even if Mr. Smith chooses to return to serve his sentence in Liverpool because the system was changed in Jersey some years ago so that we have what are called restrictive transfers. Restrictive transfers mean that they return, basically, to serve their sentence in accordance with our parole-type system, not theirs. But the moment you have a 3-way split, inevitably, Mr. Smith is going to say: "Why is Mr. Da Silva allowed to go back on the Portuguese/Madeiran terms and I am not?", there will be a differentiation. The only logical system that I can see for dealing with this there are already disparities which happen, even in the present system, because if you think: if Mr. Smith goes back, he might be sharing his cell with Mr. Jones who had been sentenced to the same length of period in Liverpool, Mr. Jones would be subject to the U.K. system and Mr. Smith to the Jersey; so we have a disparity within the U.K. at present. But the only logical system I can see is to adopt the universal principle of the directive which is that people serve in accordance with the parole regime of the place where they serve their sentence.

Deputy R.G. Le Hérissier:

But, thinking laterally, there is another solution, which I thought has been under discussion for years, that is to bring Jersey's parole conditions into alignment with those of the U.K. Where are we at at that?

The Minister for Home Affairs:

Well, I stopped work on those in order to work on these because this became the high priority, and the problem which I encountered was that I have not understood, and I am not sure how many Members of the States understood, what the Criminal Justice Policy was saying on that. I had been part of working parties on the Criminal Justice Policy which looked at parole and universally the view was that we should move towards a parole system which was potentially activated after half of sentence and where they would remain on parole until up to two-thirds of sentence. As I say, potentially activated, that is what we want to move to, that is what I thought the Criminal Justice Policy had said. In fact, on examining it when I came in as Minister, to my horror, I discovered that, in fact, the draft law that I had inherited was a system whereby people could potentially be granted parole at half, but would remain subject to parole until the end of their full sentence. Now, this could

create the most bizarre results: for instance, if a person served a 12-year sentence, hypothetically released after 6, breaching the parole 5 years later, could be recalled to serve the final 6, and this does not make sense. But I discovered that what had happened was that, in discussions, I think between a previous Minister and the courts, that that was the arrangement which had been arrived at. It was not an acceptable arrangement.

Deputy R.G. Le Hérissier:

So where is it at now, Minister?

The Minister for Home Affairs:

It is not going anywhere at the moment because this the other issue which is very interesting is the issue as to which system is preferable because I quite like, in terms of rehabilitation, the Jersey system. The Jersey system, as you know, allows prisoners to be released on a basis of going out to work up to 12 months before, depending upon the length of their sentence, and then after a period of up to 8 months where they are going out working but staying at night-time in a prison, which is acting as a sort of hostel for them. In the final 4 months they go out on curfew conditions. I have had recent discussions with the probation chief and we think this is quite an effective system compared to the system which just tips people out, as it were, straight away and does not give them the period of transition. So it will be up to the next Minister to decide where to go with that but there are not huge and obvious advantages to changing the system.

Deputy R.G. Le Hérissier:

Sorry, one last question and then I will move to Deputy Maçon, I know he is going to look more at the economics. Are you aware from your evidence, because the U.K. group is obviously quite a big group and the public will, because of all our talk of our semi-independence, assume you are exercising the same kind of system (although you are not, and it is going to be quite difficult to give them the nuanced view) but are you of the view from the feedback from the prison that U.K.-based prisoners, so defined, are dissuaded from moving to U.K. prisons in large numbers because of this anomaly around parole?

The Minister for Home Affairs:

Yes. That is right. That is the view that if there were the secondary change made, that there would then be a much larger group of U.K.-based prisoners who would want to return to serve their sentences under the U.K. system, that is, I expect

Deputy R.G. Le Hérissier:

You did not think that would be to your advantage and would help with what you might call the spirit of the Repatriation Law?

The Minister for Home Affairs:

Well, I have not wanted to make a commitment on that thus far because, in fact, the timing is so tight this year, we had to lodge this law and then enter into discussions with the court in relation to that. It is clear from our discussions that the court accept this is a political decision and they do not seem to have very strong views in relation to it, and so I think it is likely that, once this has come in, that we would then move and take the secondary step, slightly. But that is going to fall into the term of the Minister for Home Affairs in the next States, in reality.

Deputy R.G. Le Hérissier:

Yes. Whoever the lucky person

The Minister for Home Affairs: We do not know who that may be.

Deputy R.G. Le Hérissier:

No. If I can move to Deputy Maçon.

Deputy J. M. Maçon:

Yes. Just before we move on, you were talking about the positive points and the cons. You touched on your 2 main positive points and then we got slightly diverted. Is there anything else you would like to add to the positive points, and then if we can move on to the cons?

The Minister for Home Affairs:

No. I think that is it: the advantage to the prisoners and the potential advantage in terms of reduction in size of the resident population. I should have said, of course, that where prisoners do return to their home countries, the transfer is at the expense of the sending people but the actual housing of them is at the expense of the receiving, so this is why we anticipate potential large savings.

Deputy J. M. Maçon:

Are there any of the cons that should be counted?

Deputy R.G. Le Hérissier:

That word could be misinterpreted, but we will carry on. [Laughter]

Deputy J. M. Maçon: Disadvantages, then. Yes.

[9:45]

The Minister for Home Affairs:

Yes. We will take that as being the against as opposed to the prisoners themselves. What would the potential downsides be? Some people might see the secondary effect as well as the primary effect as watering down the effect of the length of sentence. But, at the end of the day, that is clearly a political decision, it is the role of the judiciary (which I accept) to set sentencing policy and to decide individual sentences, it is the role of politicians to decide what is the regime under which people serve their sentence. But some might view that as a potential downside for watering down of the actual length of sentence.

Deputy J. M. Maçon:

Then if we can move on to arrangements with other relevant jurisdictions. Can you tell us how negotiations have been going?

The Minister for Home Affairs:

Well, we have not started negotiations. I think the current position, as I understand it, is that we are still at this stage not 100 per cent sure as to which is the best route. It may well be that the best route will be the individual agreements with individual countries, and I suspect that is the way we are going to go initially, and I mentioned Portugal/Madeira and Poland. I should have mentioned in relation to Poland that the Poles have so many expatriates all over the place that they are currently indicating they may not be able to agree to operate the system for some years in case there is just too much of an inflow. I think that is somewhere in the notes.

The Chief Officer:

Well, they have a derogation under the Framework Agreement for 5 years, but from the end of this year.

The Minister for Home Affairs:

They have a 5-year it is the end of this year, is it not?

The Chief Officer:

Well, all member states have to comply by the end of the year, they have got a 5-year derogation after that, yes.

The Minister for Home Affairs:

Sorry, I have forgotten what the question was, I have side-tracked myself. Oh, yes, agreements under jurisdictions. We have also explored whether we could, in some way, come in on the fringes of the U.K. agreements so that we would become a party to something which would bring in a number of different countries at the same time, but I think that may prove rather complex, and Mr. Austin-Vautier understands that area better because he has attended many meetings on that.

The Chief Officer:

Yes. We have got as far as opening up a useful channel with the Ministry of Justice with the

National Offender Management Service, and there is a person there who specifically deals with the bilateral arrangements with other countries. What he has said so far is that, rather like the Isle of Man who has had already the arrangements extended to them, there is opportunity, obviously, for Jersey to benefit from that as well so that we do not have to enter into arrangements directly with other nations and that would merely mean the U.K. authorities requesting the E.U. to do that, or extend them to us on our behalf. Until the law is through, there is no real point in forging ahead with that, we have got plenty of time to look at the detail of that while the law is away at Privy Council, but that would be the mechanism.

Deputy R.G. Le Hérissier:

So, sorry, that is not a substitute for the law, you still have to bring the law in?

The Chief Officer: Yes.

Deputy R.G. Le Hérissier:

On the back of the law, you could do an E.U.-wide extension.

The Chief Officer:

Yes. At the moment there are no inquiries(?) in Jersey to transfer anybody other than to Britain; we need the law, just like the U.K. brought in its own Act in 1984 but, on top of that, yes, you do need to have specific agreements in place to effect the transfer.

Deputy R.G. Le Hérissier:

Okay. Yes. One of the issues, obviously, that is going to be brought up (and, of course, it has sometimes come up with the U.K. transfer system) is the question of consent. I wonder if you could explain to the panel what "consent" means and whether repatriation is possible, as appears to be the case, in a situation of no consent.

The Minister for Home Affairs:

Yes. I can do that. We have worded this law so that agreements could be entered into with other countries either on the basis of requiring consent or on the basis of not requiring consent of the individual prisoner. We did that, basically, so that we could fall in with whatever other countries might insist on either way in relation to that. But, having said that, the way the system works is that both the sending country and the receiving country have to agree that it is appropriate that the person be sent. So if the prisoner is saying: "I do not want to go back" then, obviously, he could be transmitting that not only to the sending country but also to the receiving country, who will both formulate a view in relation to that. The situation, of course, may to a degree be clarified by issues like if a person is subject to a recommendation for deportation because then that means the court has looked at it and done a balancing act and decided that it is not in the interests of the sending country that they stay in that country once sentence is concluded. In Jersey, although the court has made their recommendation, the Lieutenant Governor has to consider other issues, which he does towards the end of a sentence, in determining whether or not they will be deported or not. The other thing that I have to say which really will start to answer the final bullet point as well is that, of course, in exercising powers under this law, as with any law, the public authority must do so in a way which is compliant with human rights considerations. I have a letter of human rights advice which, of course, advises me as to what criteria should be considered and, clearly, if you had a situation where a prisoner was not subject to deportation recommendation and where the prisoner has substantial ties with the Island, all that would have to be considered because it might be a breach of his right to family life, et cetera. So, in considering the decision, rather in the same way as the Governor considers these things and the courts consider these things, the Minister will have to also consider these things. The other aspect is, of course, that the human rights principles will also apply in relation to not returning people to a country where they are likely to be tortured or subject to inhuman or degrading punishment or executed, or whatever. So exactly the same principles which we hear of regularly in the press in relation to illegal immigrants, as to whether or not they can be returned to particular countries, will apply here also, and that is a matter which will have to be considered.

Deputy R.G. Le Hérissier:

It is possible, and I say it in the light that there was, as you know, a notorious case last week where I

think a Sri Lankan national had been convicted but after a lot of appeals he was able to argue that having a girlfriend in Britain was grounds that amounted to the preservation of family life, and that is obviously going to arouse a lot of public controversy, that kind of case. Who will make the decision before it reaches the courts on what amounts to substantial roots on the Island?

The Minister for Home Affairs:

Finally, the Minister; obviously, on advice. The Minister may delegate decisions, of course, has a power to delegate decisions to the Prison Governor, but I would have thought in contentious cases it is going to come back to the Minister.

Deputy R.G. Le Hérissier:

But it would be quite possible to say: "Well, you may have some links to the Island, you may have something that could be construed, for example, as the right to family life but, on balance, we are repatriating you" is it possible for you to ?

The Minister for Home Affairs:

It would depend upon the nature of the links and the strengths of the links and so on. But, as I say, this is not a new area in as much as it is looked at in a slightly different context, of course, in relation to deportation orders, it is a factor which is taken into account. I think in practice with the largest grouping of cases that were envisaged, which is the couriers and so on, people have so little ties, as I think I have sometimes said, that the only people they know in Jersey are the people who arrested them, the people who transport them to and from the prison and the people in the prison, their fellow prisoners, and the judges. So I think in the vast majority of cases, it is going to be pretty clear-cut. I do not think that this should be used, if I can put it that way and it would be wrong in my opinion for this to be used as an alternative route to a deportation order. That is not its functionality and, of course, if it were, if hypothetically people were returned to serve their sentence but were not subject to a deportation order, they could still come back once they have served their sentence, so it should not be used as an alternative to a deportation order, that would be a wrong usage of it.

Deputy R.G. Le Hérissier:

We bear in mind, although I know you will be explaining this to the Assembly, the fact that the Sex Offenders' Register was temporarily halted in its tracks on human rights grounds. What issues have human rights

The Minister for Home Affairs:

I am not sure I understand what you mean by that.

Deputy R.G. Le Hérissier:

I thought there had been issues that had been raised as to whether or not it was I do not want to get into this, I use it as a comparison as to whether or not that particular law was fully human rights- compliant.

The Minister for Home Affairs:

No. That is the issue of the amendments. No. Judges tell me that the judicial decisions that have already been made have dealt with those points; I have not checked that. But, no, the issues which arose in general were issues which were capable of being dealt with by judicial decision, as I think I said in my statement to the Assembly. So there was

Deputy R.G. Le Hérissier:

So what I am asking is, in terms of this law, you have there a letter (and, as you know, as Members, we are not normally allowed to see the contents, it is this strange system we have) what do you anticipate, having considered the situation, will be some of the human rights issues that may arise as you seek to implement this law?

The Minister for Home Affairs:

I highlighted them very briefly. There is the issue that they must not be sent back to a country where they would be subject to torture or to inhuman or degrading treatment or punishment. But then I do not think we would want to enter into an agreement with such a country in the first place, although countries can change. There are some issues, interestingly, incoming where we would have to make sure, in order to be human rights-compliant, that they had been properly dealt with by an

independent criminal court.

Deputy R.G. Le Hérissier: You mean for sentencing?

The Minister for Home Affairs:

Yes. If we were going to receive them, we would have to be satisfied, so that is the other way around. There is the right to respect for private and family life, home and correspondence, and that is the issue which will require, particularly where it has been made without the prisoner's consent, a proper consideration. I am just seeing if I can that is a qualified right: "Contracting states have permission to interfere with it to the extent that there is a legitimate aim, interference is in accordance with the law and necessary in a democratic society, that is, proportionate."

Deputy R.G. Le Hérissier:

What about when the executive decision has been taken, Mr. Minister, as to whether or not to repatriate a person, the person will not be seen obviously by the decision-maker, it will be a paper- based decision, so to speak?

The Minister for Home Affairs:

I would have thought so. There must be a fair procedure, as with anything, and of course the decision would be subject to judicial review challenge. There is no express right of appeal built into the law, but it will be subject to judicial review challenge in the same way.

[10:00]

In fact, if you think about it, many of the cases which arise in the U.K. in relation to deportation issues are judicial review challenges as to whether or not it is a reasonable decision. My own personal view is I think you are going to find in the vast majority of cases the prisoner is going to be asking to go, but you are quite right to ask questions about potential for cases in which they do not want to go and where, nevertheless, technically they should. But, as I say, there is this secondary safeguard built in that the receiving country has also got to be happy to have them, because I believe the receiving country could say: "No, we disagree with your decision. You are just unloading the person on to us, they do have substantial ties. It is not in their best interests to be serving their sentence here." I am just trying to find the section 20 is on disproportionality. It is 20, is it? Of course, transfer without consent is not, in my view, disproportionate as: "There will be cases where national security and the economic wellbeing of Jersey, or public safety, could be at risk, thus necessitating the repatriation of a prisoner out of Jersey." That is saying that having a system which may not require consent is not, in itself, inappropriate. It then does go on to talk about judicial review. But it is going to have to be necessary and proportionate, as with any such

Deputy R.G. Le Hérissier:

When you say: "Necessarily proportionate"

The Minister for Home Affairs: "Necessary and proportionate."

Deputy R.G. Le Hérissier:

"Necessary and proportionate", you mean from your point of view as the sender?

The Minister for Home Affairs:

Yes. Or where a person does not want to go.

Deputy R.G. Le Hérissier:

Yes. Okay. What are you going to do about, because of the Jersey Prison and the facilities it has and does not have as the case may be, what about if a Jersey person is sentenced to life in one of the countries with whom we have an agreement, will you accept such a person back in the Jersey system?

The Minister for Home Affairs:

Yes, if their ties are with Jersey and they then would have to serve the sentence in accordance with

our rules, as it were, in relation to that. One of the safeguards that is in the law (it seems rather an obscure sort of area) is that the safeguard, which is basically saying that the agreement that is reached with foreign countries must mean that they are essentially going to serve the original sentence, as it were, but in accordance with what are called the parole rules of the receiving country. So you cannot have a situation where you send someone back to a country and they say: "We are just going to ignore the initial sentence, we are just going to let them out" that would be unsatisfactory, and the agreement must make that clear. But, of course, different countries may have different rules in terms of how they deal with life sentences. We have a situation (I think we mirror the U.K. now, do we not) where there are recommendations for minimum periods. They may not have, of course, in other countries; it is an interesting issue. But if we were sending somebody back serving a life sentence with a minimum recommendation, we would expect that to be followed by the receiving country.

Deputy J. M. Maçon:

Can I just ask, from your evidence, what evidence have you found about the willingness of other countries through other jurisdictions to accept prisoners back to the home jurisdictions?

The Minister for Home Affairs:

Well, one would expect them to because they are internally bound by the terms of the directive, they are already signed up to the principle of accepting this because of the nature of the E.U. directive. What we do not know and have given some thought to, which brings us back to what Jeremy was asking before in relation to the parole system, at the moment there is no harmonisation of parole systems throughout the U.K., the different countries have different systems. If there was a move towards a harmonisation then we might find ourselves in a situation where people are saying: "Well, we only are going to enter into agreements with you provided you harmonise your system with us." At the moment, we do not think that we would run into a situation where that would be required by individual countries because the systems are so different and because, in a sense, it is our people, if you understand what I am saying; they may have been sentenced elsewhere but if they are going to return to Jersey they must have substantial links with Jersey in the first place, and vice versa.

Deputy R.G. Le Hérissier:

But you would be prepared (we are looking forward) but we know, rather embarrassingly, there is a group for example of Britons in Thailand and who are in the Philippines who were there largely on paedophile-type convictions, and some of them under quite punitive sentences. Would you be prepared to enter into negotiations with countries like that to receive people on the terms on which they had been sentenced?

The Minister for Home Affairs:

I do not think we have thought thus far, indeed the new countries

The Chief Officer:

The thought has been within the E.U. and not beyond, that would be a different dimension, I think.

Deputy J. M. Maçon:

But, presumably, under this law, there would be scope for that.

The Chief Officer:

Yes. It is where international arrangements apply.

Deputy R.G. Le Hérissier:

Okay. I know Deputy Maçon is going to ask an economics question, but before we move into that, I wonder if I can wrap up this issue: we are now in a situation where the U.K. is not looking as strong as it used to, for example, there is talk of Scotch independence and so forth, and then of course there is the issue of the Irish Republic as well which is sometimes seen, like Jersey, as part of the U.K. in terms of arrangements (not in political terms, I hasten to add)

The Minister for Home Affairs: It is part of the common travel area.

Deputy R.G. Le Hérissier:

Yes. What are the arrangements between the different constitutional elements of the U.K., including our Crown dependency colleagues, Guernsey, Isle of Man, for example, and the constituent parts of the U.K. and the Irish Republic, how have the arrangements worked between all these different parts?

The Minister for Home Affairs:

Are you talking about arrangements for sending prisoners back?

Deputy R.G. Le Hérissier:

Yes, for repatriation in both directions.

The Minister for Home Affairs:

I do not know what they are doing in terms of restrictive transfers, it is really restrictive transfers which is the issue.

The Chief Officer:

I think there are 2 things to say there: firstly, the Crime Sentences Act 1997, which introduced unrestricted and restricted, that has separate sections on transfers between the various parts of the British Isles, so those things are laid out. The second thing is that I have been meeting in London (not too often, only 3 times) together with Guernsey, the Isle of Man, Scotland, Ireland and England, to talk about all of this. So we latched on to the fact very early that we all have the same issue and there is obviously a desire to try and harmonise as much as possible, but my impression is that the transfers between what is the U.K. are not difficult because the regimes appear to be very similar if not the same, it is really the Crown dependencies which are different. So it has been our issue rather than the United Kingdom issue.

Deputy R.G. Le Hérissier:

Out of the fog, so to speak, has any basis for agreement been achieved?

The Chief Officer:

It was out of that group that the opportunity and liaison over the bilateral agreements run. So what was initially looking like quite a daunting problem suddenly became a lot easier because the U.K. had already hacked that and we obviously set up the contact so that that is the point or really the rationale for meeting in groups like that.

Deputy R.G. Le Hérissier:

Are there any major problems arranging for repatriation between the Crown dependencies?

The Chief Officer:

Between the Crown dependencies?

The Minister for Home Affairs: Yes.

The Chief Officer:

I think the issue we will have is transferring to, say, the Isle of Man or Guernsey and we have not thought about that too deeply at the moment.

The Minister for Home Affairs:

Is that not covered under the existing arrangements? We are only

The Chief Officer:

We cannot transfer to Guernsey.

The Minister for Home Affairs: We cannot transfer to Guernsey?

The Chief Officer: No.

The Minister for Home Affairs:

I did not know that, or the Isle of Man.

The Chief Officer:

Yes. Separate jurisdictions.

Deputy R.G. Le Hérissier:

Isle of Man, could you transfer to?

The Chief Officer:

No, it is the same problem.

Deputy R.G. Le Hérissier:

What about the Irish Republic, what ?

The Chief Officer:

No. As far as I am aware, I think it is the same, a foreign country.

The Minister for Home Affairs:

They would contract to enter into agreements.

Deputy R.G. Le Hérissier:

I will move to Deputy Maçon.

Deputy J. M. Maçon:

Yes. Just getting back to the C.S.R. (Comprehensive Spending Review) and budgets, so to what level does the prisoner population have to fall in order to realise a major saving?

The Minister for Home Affairs:

I asked for this information overnight, I have not looked at the notes. Yes. It has really got to do

with closing a level in a wing; the smallest level in a wing has got 20 people in it, that is in K. Wing, L. Wing has got 40 people in it. To close a level in L. Wing would result in a saving of 3.5 officers, but 40 in the other one no, it is more complex than that. I think what that is saying is that a reduction of 40 would be approximately £250,000 to £300,000. Is that right?

The Chief Officer:

Yes. If you are not supporting(?) it would be that because you would also be able to reduce the management side too, but if you only lost 20 it would be about 3.5 posts.

The Minister for Home Affairs:

Yes. These are rough figures, it is approximately 20. But the reason I say these are rough figures is because there are other criteria that could come into play, it is not just straight numbers, it has got to do with the closing of floors or units and therefore numbers in other units, particularly those in the vulnerable-prisoner units, can have an effect on it. But what it is indicating is that to close a level in K. Wing, which is about 20, would create an approximate saving of £140,000 plus any training costs, to close L. Wing, which is roughly 40, would be £250,000 to £300,000. The savings are not proportionate to the size of the prison because you have got running costs, overheads in any eventuality. Our plans, our C.S.R. savings were about £240,000 but the reason I am hedging this also is for a secondary reason which has got to do with the degree of sharing of rooms. Obviously, in an ideal world, almost every prisoner would have their own individual cell but in reality they do not, some prefer to share. You can potentially squeeze, with lower levels of reduction, the numbers by doubling up further. But there is a natural ebbing and flowing of numbers anyway because the numbers of prisoners I am going from memory, but last year I think we went from the upper 170s at the lower end to the upper 190s. So we are used to having an ebbing and flowing of numbers in that. But, in practice, it is the same, you need about 20. But, as I say, you might be able to squeeze that.

The Chief Officer:

But you do need to reach a tipping point and a sustainable one.

The Minister for Home Affairs:

A sustainable tipping point, yes. Because if you do close down a floor, then you have got to be able to sustain that if you get an upswing.

Deputy J. M. Maçon:

From your estimates, how many prisoners would be eligible for this type of scheme?

The Minister for Home Affairs:

Under the primary system, I cannot remember.

The Chief Officer:

Do you mean for dual repatriation?

Deputy J. M. Maçon: Yes.

The Chief Officer:

Yes. That is in the background report. I do not know if you have the report, have you? If you look at paragraph 29, there is a little table there which gives you the breakdown.

The Minister for Home Affairs: Page 7, is that? I think it is on page 9.

[10:15]

The Chief Officer:

It is on page 7, yes. We have taken out

Deputy J. M. Maçon:

All right. Sorry, I beg your pardon.

Deputy R.G. Le Hérissier:

So it is 9 from Poland, 27 from Portugal

The Chief Officer:

It is probably on page 9 of the actual report and proposition. We highlighted Poland and Portugal because that is the highest population of foreign prisoners, and then by comparison with the U.K. ones.

Deputy R.G. Le Hérissier:

Which is 49. There is no doubt the U.K. is the ghost at the feast, so to speak, because it is such a massive number if you were able to offer comparable parole conditions obviously you would really move in that area, I would have thought.

The Minister for Home Affairs:

That is the area of major savings, yes. Poland and Portugal together might be getting towards the 20 tipping point, but with a bit of squeezing and doubling up but you are not going to get beyond that, if you are looking to be getting to the sort of 40 level, which is obviously what we are hoping to, then it does require a substantial increase in the U.K.

The Chief Officer:

Those figures mask the 32 U.K. prisoners we already have in the U.K. on restrictive terms, so it is a big part of the population.

Deputy R.G. Le Hérissier: Yes. Absolutely.

Deputy J. M. Maçon:

Then how many on this have you estimated would return to Jersey?

The Chief Officer:

We have tried to get a handle on that, there are feelers out, it is desperately difficult to find who is abroad, but we are still working on that. But we do not think it is probably more than half a dozen, frankly.

The Minister for Home Affairs:

Do you have any idea of numbers of prisoners who have returned to serve their sentence here from the U.K.? There are some, but again, it is not very many.

The Chief Officer:

Yes. Insignificant, I cannot even recall one. No.

The Assistant Minister for Home Affairs: I am not aware of one.

The Minister for Home Affairs:

It is the Island's drugs activity policy, particularly in relation to couriers more generally which does lead to people serving longer sentences and then there would be the equivalent the other way round.

Deputy R.G. Le Hérissier:

This was mentioned years ago in the whole Criminal Justice Paper, do you remember done by the Professor (whose name I forget) from Southampton.

The Chief Officer: Rutherford.

Deputy R.G. Le Hérissier:

Professor Rutherford. Of course, as you yourself, Mr. Minister, know this has been the subject of a lot of talk on the Island but, of course, in terms of judicial independence it never seems to have come to a clear result, other than the retention of the current policy.

The Minister for Home Affairs:

Well, it is a judicially-determined policy, constitutionally. If politicians were to come to the view that they thought that the sentencing policy was wrong, if hypothetically that were to happen, then ultimately the methodology available for politicians to seek to vary sentencing policy is by changing the maximum sentences, that is what then signals change. I am not expressing any view on that today other than it is a matter for the courts.

Deputy R.G. Le Hérissier:

But given that a lot of your population, obviously, is the result of that particular sentencing policy, you do not think it behoves you as the Minister to, sort of, look at the policy implications of that and make suitable recommendations to the Assembly?

The Minister for Home Affairs:

Such recommendations would be within the ambit of the Minister, in my case

Deputy R.G. Le Hérissier:

Yes. Is the Minister so minded to move on that?

The Minister for Home Affairs: No, he is not.

Deputy R.G. Le Hérissier:

While it is excellent, of course, you could bring relevant experience, do you think the fact that you have been a magistrate might inhibit you in that regard?

The Minister for Home Affairs:

No. I do not think that politically the people of Jersey would want to see our maximum sentences reduced, that is a political statement and, at the end of the day, I think that people would feel that that sent out a wrong message. We are not, of course, bound to follow public opinion in relation to our

decisions, but I think the public view would be quite clear.

Deputy R.G. Le Hérissier:

Yes. Okay. But there is no doubt that again is a major ghost at the feast, so to speak, because clearly it leads to your prison population and make up of that population.

The Minister for Home Affairs:

In terms of prison numbers yes, it is. It is. Although, of course, if both the primary legislation and the secondary knock-on effects were activated, that would have some effect; clearly, the current policy for courts is to retain a deterrent policy in relation to sentencing for serious drugs offences. I am not talking about possession, low-level stuff where it is accepted generally by the courts, possession of heroin or cocaine, but for first offences, that certainly the correct approach is rehabilitation and so on and so forth. Repeat offenders tend to get custodial sentences; that policy has not really changed and in many ways it is locked into a particular guideline case; even if the Royal Court wanted to change the sentencing policy they could not do so without it being referred back to the Court of Appeal to review. I cannot remember the name of the guidelines.

The Chief Officer:

Campbell Mackenzie and Malloy.

The Minister for Home Affairs:

Yes. Campbell, Mackenzie and Malloy, which was where an enhanced Court of Appeal sat that was 15, 16 years ago, was it not?

The Chief Officer: Yes. 1996.

The Minister for Home Affairs:

1996. Yes. It is a matter for the courts as to whether they would want to review that.

Deputy R.G. Le Hérissier:

Yes. But obviously, as you quite rightly say, that is a political issue.

The Minister for Home Affairs:

No. It is part of the constitutional framework that we have. I perhaps by nature am more likely to be a guardian of the constitutional arrangements. I find my colleagues in the Assembly very often wanting to trespass on those arrangements, if I may put it that way, delicately.

Deputy J. M. Maçon:

I am just moving on to a slightly different area, it is a bit apologies.

Deputy R.G. Le Hérissier: It is all right. Fair enough.

Deputy J. M. Maçon:

Okay. Yes. Just to move on to a slightly different area. The term "temporary return" is mentioned. I am not familiar with this term so if you could just talk to that and then when does a temporary return occur?

The Minister for Home Affairs:

That is a very good question. I do not think I know the answer to that and that is one of the things I am going to have to find out. Perhaps Mr. Austin-Vautier can tell me what is a temporary return?

The Chief Officer:

Yes. I think it was felt that there ought to be a provision for somebody to be able to be temporarily returned, for whatever reason. But I imagine there might be an occasion when somebody is to be brought back to the sentencing jurisdiction for some reason, in which case, if you repatriated somebody and there was no power in the law, you would be snookered. I think it is probably as simple as that.

The Minister for Home Affairs:

I see. If there were further appeals pending? Is it Article 5?

The Chief Officer:

Something like that. Yes. It is Article 10, temporary return.

The Assistant Minister for Home Affairs: No, it is Article 10.

The Minister for Home Affairs:

I wondered if it might be on compassionate grounds also.

The Chief Officer:

That could cover it, too. Yes. Well, temporary return

The Minister for Home Affairs:

Yes. That is send them back to the sentencing country, 1(a), and this is just to bring them back to Jersey. I suppose you could have a situation where they were required as a witness, or something like that.

Deputy R.G. Le Hérissier: As a witness, yes.

The Minister for Home Affairs:

There is no exhaustive list but I would imagine there would something like them being required as a witness in relation to a subsequent case. You have to have a mechanism by which you can

Deputy J. M. Maçon:

A holding provision. Right.

The Minister for Home Affairs:

Yes. This does not contain any exhaustive list of reasons so there would be a number. Certainly, if you wanted them to be a witness in let us say we had sent somebody, a Pole, back to Poland to serve their sentence and then they were required as a witness in a subsequent case, we have got to have a means of bringing them back so that they can give their evidence. I suppose if some civil case arose, a collateral matter arising again whereby their presence would be required I mean, things like confiscation orders or so would normally be dealt with at the same time, or appeals, matters of that nature. I think this is a bit vague and, in fact, I now realise why it was not clear, because it is not specified. I think it would be any reason by which the country which had initially sentenced them had sent them off to another country, wanted to have them back for a short period, that is what it is saying.

Deputy R.G. Le Hérissier:

The person would have to consent to return.

The Minister for Home Affairs: No.

Deputy R.G. Le Hérissier:

They would not. There would simply be a reverse repatriation arranged.

The Minister for Home Affairs:

I think that is right, a temporary reverse repatriation, yes. If they were required to give evidence or something you can see that you have got to have a means of compelling their return.

The Chief Officer:

I think it would probably be put in the warrant as well to cover that eventuality in a standard term.

The Minister for Home Affairs:

Yes. I think if you are going to make such a request, you are going to have to explain why.

Presumably both countries will have to agree with it, again.

The Chief Officer: Yes, at the outset.

The Minister for Home Affairs:

Yes. So I am sorry I cannot give you an exhaustive list.

Deputy R.G. Le Hérissier:

I think we will ask the wind-up questions at this point, Mr. Minister. On a technical question, if somebody is transferred overseas and they are released earlier than the Jersey sentence would appear to warrant, for example, and they then return to the Island, having been legally or lawfully released by the other jurisdiction and they return to the Island, what would you do about that?

The Minister for Home Affairs:

Well, if the other country has operated in accordance with the agreement, there is not a problem, they will have served their sentence.

Deputy R.G. Le Hérissier:

What about if the King of Luxembourg, for example (just for the sake of argument) institutes a prisoner amnesty and says: "I am going to institute an amnesty" and the person is released a lot earlier than the Jersey sentence indicates, what would you do about that?

The Minister for Home Affairs:

I would have thought that would be contrary to the agreement.

The Chief Officer:

Yes. It may be there is some provision in the Framework document.

The Minister for Home Affairs:

I would have thought the agreement would say this is where I come back to this subparagraph, which is hidden away, which says the agreement has got to be on terms which it is worded in a very complex way can you see where that line is? Line 3, was it? It has got to do with the agreements. As I say, the way I understand this is it is saying that there cannot be an arbitrary system. Essentially, the starting point for the length of time they will serve in the receiving country must be the sentence imposed. So a, sort of, arbitrary amnesty to release everybody would clearly breach that.

Deputy R.G. Le Hérissier:

Even if they were to say, admittedly under the guise of legal authority, as the U.K. Justice Secretary sometimes obviously reaches the conclusion: "I have to clear out the prisons, they have got too crowded" so these sorts of temporary release programmes are instituted.

The Minister for Home Affairs:

Well, I would have thought, frankly, that what is more likely to happen in that situation is apology, a derogation: "I am sorry, we cannot talk of our obligations any longer."

Deputy R.G. Le Hérissier:

But the existing prisoners who are there under repatriation terms would be expected to fulfil the terms of the Jersey sentence.

The Minister for Home Affairs:

Well, we certainly would, if that was the agreement, but obviously if countries start breaching the terms of the agreement we will not be very happy with them. But this is also going to put them in breach of the terms of their international obligation more widely in as much as that the whole system is loosely attached to the E.U. directive.

The Chief Officer:

They probably have not signed to the international agreement.

The Minister for Home Affairs:

I cannot see how a country could do that without, sort of, reneging upon the whole system, effectively.

[10:30]

Deputy R.G. Le Hérissier: Okay. Jeremy?

Deputy J. M. Maçon: No, nothing further.

Deputy R.G. Le Hérissier:

We have covered a whole lot of ground here and people will ask we will write up a little note, basically (because obviously this is not a scrutiny in the fully-fledged sense of the term) and while we will not necessarily give our imprimatur to the proposal, we will obviously say a few words about whether we think because I think we do, it is going in a right direction, but what are some of the issues. Clearly, one of the issues that has arisen today, which you yourself are well aware of, is this issue of the U.K. anomaly, that you have got this massive number, 49 according to your figures, who are U.K.-based people according to your figures, and that would obviously have a major impact on the prison and staffing and it might lead to this tipping point, and even things like the kitchen and the education provision could be shrunk proportionately, whereas now they remain as big overheads.

The Minister for Home Affairs:

I just realised there was one other point which I should have mentioned (which is remiss of me, because I was given the opportunity before) and that is, of course, that part of our system is that because people are potentially released up to the last 12 months to go out and work, they are more likely thereby, in such a system, to start to form ties to the Island and thereby are more likely to want to perhaps stay more permanently which, if they have criminal tendencies, is not something we want. So there is a further advantage, it is not just length of the sentence but also that there would

not be that forming of ties if they do not exist already.

Deputy R.G. Le Hérissier:

Okay. So are there any comments from the 3 of you? Jacquie?

The Assistant Minister for Home Affairs: No, thank you.

The Chief Officer: No. I do not think so.

Deputy R.G. Le Hérissier:

Somebody said the other day we all have this politicians' habit of saying we are about to wind up and then 20 minutes later the final, final, final question arises. But just to sum up from your end, do you see any major impediments in the implementation of this law or are you fairly confident, bar the shaking down and some contesting of what the right to family life, for example means (which will be an issue, no doubt) do you see it as being fairly bug-fee, so to speak?

The Minister for Home Affairs:

The biggest potential impediment would be if we were unable to enter into agreements with other countries, with other jurisdictions, that is the biggest potential issue. But then, because of their own obligations under the directive, we would have thought that that is not likely, but that is the biggest risk.

The Chief Officer:

I think from the point of view of the officer heading up the work, another risk is inertia because with the cuts that are taking place in the United Kingdom, we do not really figure very highly on their list of priorities and there is a constant battle to keep plugging away, getting the work done.

Deputy R.G. Le Hérissier:

Yes. Okay. Is there anything else?

Deputy J. M. Maçon:

No. There is nothing from me.

Deputy R.G. Le Hérissier:

Good. Well, thank you very much indeed. As I said, we will probably issue a little note, basically. It has been quite elucidating.

The Minister for Home Affairs:

It is a very helpful question. I am going away on holiday at the end of the week and will be preparing while away on holiday, so your questions certainly will help me in my explanatory speeches to cover areas that might not have been covered quite so well, to think it through.

Deputy R.G. Le Hérissier:

Yes. Okay. Thank you. Here endeth the formal session.

[10:34]

Education and Home Affairs Scrutiny Panel Review of Issues Surrounding the Review of the Final Financial Management of Operation Rectangle

TUESDAY, 16th AUGUST 2011

Panel:

Deputy T.M. Pitman of St. Helier (Chairman) Deputy D.J.A. Wimberley of St. Mary Deputy R.G. Le Hérissier of St. Saviour

Witness:

Mr. D. Warcup (via conference call) former Acting Chief Officer with the States of Jersey Police

Also Present: Scrutiny Officer

NOTE: The text has not been corrected by the witness

Deputy T.M. Pitman:

Okay. I will introduce everyone for the purpose of the transcript and the fact you cannot see us and we cannot see you and I do need to read the proceedings details, the oath so that you ... I am sure that you are fully aware of that but I believe it has not been sent to you so if I can just read that to you to make sure you are happy with that, is that okay?

Mr. D. Warcup: I understand, yes.

Deputy T.M. Pitman:

Okay, so it is: "The proceedings of the panel are covered by parliamentary privilege through Article 34 of the States of Jersey Law 2005 and the States of Jersey (Powers, Privileges and Immunities) (Scrutiny Panels, P.A.C. (Public Accounts Committee) and P.P.C. (Privileges and Procedures Committee) (Jersey) Regulations 2006 and witnesses are protected from being sued or prosecuted for anything said during the hearing unless they say something which they know to be untrue. This protection is given to witnesses to ensure that they can speak freely and openly to the panel when giving evidence without fear of legal action although the immunity should obviously not be abused by making unsubstantiated statements about third parties who have no right of reply. The panel would like you to bear this in mind when answering questions." Is that okay?

Mr. D. Warcup: Yes, I understand that.

Deputy T.M. Pitman:

Okay. As I say, thank you very much for agreeing to speak to us and for your written submission. We have got a lot of material and we have got an hour to get through it so we will jump straight in. Could you tell us first about the concerns that you felt regarding a range of matters concerning the conduct of the Operation Rectangle inquiry when you first go involved in all of this. What were those concerns, if you could briefly outline them?

Mr. D. Warcup:

Yes. This afternoon I am more than willing to assist the panel in relation to this review but I would like to say that just from some of the evidence I have seen previously you will excuse me, if I may comment, if you start looking at issues which I believe are outwith the terms of reference I will direct that back to you. So I am more than willing and I hope that I can help the panel this afternoon in relation to these specific issues. To go directly to your question the issues which were concerns related to the conduct of the inquiry which was known as Operation Rectangle. I was concerned that some of the management arrangements and some of the investigative issues were concerns as has been documented and of course were continuously raised with the former Chief Office, Mr. Power, and subsequently for very detailed legal reasons - reasons which again have been well documented - I brought my concerns to the attention of the Chief Executive.

Deputy T.M. Pitman:

Could you enlarge for us, what specific steps did you take to rectify the position that you had found and were so concerned about?

Mr. D. Warcup:

In which respect? With Mr. Power or ...?

Deputy T.M. Pitman:

Well that is a good place to start, yes.

Mr. D. Warcup:

I mean for some time prior to raising this with [former States Chief Executive] it again was a documented fact that I raised all my concerns and all of the concerns which have been subsequently highlighted in the Wiltshire report were previously raised with Mr. Power.

The Deputy of St. Mary :

When were they raised with Mr. Power?

Mr. D. Warcup:

On a number of occasions. I think what we could do here is we could spend a lot of time examining the issues prior to the media release which was made in November 2008. Those have been documented, reported in the Wiltshire report, and they have examined them in detail. It would take longer than the hour we have this afternoon to do that and I am [not] sure that it is part of today's terms of reference.

The Deputy of St. Mary :

I sort of agree with that but I was concerned when I heard you say that there were concerns about the conduct of the inquiry which eventually the suspension had been raised with Mr. Power. But I think you are right, we have to stick to what we are talking about today.

Mr. D. Warcup: Sorry, Mr. Wimberley?

The Deputy of St. Mary :

I think you are right, we have to stick more narrowly to the terms of reference. I think if we go back prior to the suspension ...

Mr. D. Warcup:

I am not trying to be obstructive in any way in relation to this but my concerns which were set out, and unfortunately I believe that the panel will not have access to those full written issues, which were submissions as part of the Wiltshire inquiry but they do explain in detail exactly what happened, the engagement with Mr. Power prior to myself raising those issues with [former States Chief Executive].

Deputy T.M. Pitman:

For the record, Mr. Warcup, do you feel that that would strongly help the panel if we could have access to the material that you are referring to? Do you think that is a big gap in what we have got to look at?

Mr. D. Warcup:

Yes, it is because I mean it is something that we will probably touch on later on. Many of the documents and many of the reports and things that I had to deal with through my time contained confidential information. But there is also some information which would be of assistance to the likes of yourselves. Perhaps I could give an example. I was going to say that when I was coming back to Mr. Wimberley there it was that I could not hear him very well, that was all. Yes, there are clearly many issues which are within some of the documents in my submission to the Wiltshire inquiry which I believe would be of help. The issue would then be redacting those for matters which were legally privileged or sensitive, but I think it would help explain some of the issues. By way of example, if I can clarify, the Deputy of St. Mary has previously -- the previous witness has raised an issue in respect of that, that the Metropolitan Police during their review did not speak to Mr. Power or Mr. Harper. That is not correct. They did speak to both of them as part of the review and it is the issues like that that would be clarified.

The Deputy of St. Mary :

Did they speak to both of them before the interim review reached your desk on 10th of ...

Mr. D. Warcup:

The only reason it was an interim review was because they had not had a chance to speak to Mr. Harper because of his availability. They therefore submitted an interim report. Once they had had the opportunity to interview Mr. Harper they then submitted their final report.

The Deputy of St. Mary :

Had they spoken to Mr. Power before the interim review came to your desk on 10th November 2008?

Mr. D. Warcup: Yes, they had.

The Deputy of St. Mary : They had spoken to him?

Mr. D. Warcup: Absolutely clearly they had.

The Deputy of St. Mary :

Can I just ask you this to get this clear in my head, Mr. Warcup, are you saying that, in your opinion

- and it would be your opinion - there is no need for these documents to be redacted, that they could help the panel and probably should be available to us? Is that what you are saying?

Mr. D. Warcup:

No, I am saying there are possibly parts of those documents ... if you take the documents as a whole some of it needs to be redacted because it does contain confidential information and sensitive information that was given in confidence and so on. But there are parts of that which would explain ... going back to your very first question, for example, I have detailed fully to Wiltshire in early 2009 my full involvement and discussions with Mr. Power. They were all documented, they were all written records and subject to appropriate legal advice, which I am sure the panel could take, I do not see why the panel should not have the opportunity to see those.

Deputy R.G. Le Hérissier:

Okay, thank you, Mr. Warcup. I wonder if we can jump to the fact that in your submission you mentioned 5 different reviews and obviously people have, in a sense, become a bit confused about this. But as you know we are looking very much at the BDO report. Could you tell us, as you allude to in your written submission, what the overlap was, if any, between the Wiltshire review and the BDO external review when both, it appears, were looking at aspects of financial management?

Mr. D. Warcup:

Yes, I think you have highlighted the difficulty. The fact is that they were not the same reviews, the BDO review was specifically an audit to look into the aspects of financial management. The other review, which was referred to and approved by the Gold Group on 8th December 2008 was it was a review of matters which were a broad range of issues. We had had a number of public complaints, we had had a number of issues of concerns raised by members of the public, by States Members, and through that process we felt that it was necessary to research those, document those, and to have that information available should it be required either to respond to the Minister, to States Members' questions or indeed to any future committee of inquiry. That was the purpose. It would have been wrong not to have collated that information at the time.

Deputy R.G. Le Hérissier:

Thank you, Mr. Warcup. I will just continue. Of course obviously there is the Wiltshire review which seems to be understood by the politicians and the public, there is then the States of Jersey Police internal review and then there is the BDO external review. Can you distinguish between the States of Jersey Police internal review and the BDO review?

Mr. D. Warcup:

Yes, absolutely. The BDO review was a review which was commissioned by the Minister, the terms of reference agreed by the Minister, and the involvement as far as I was concerned, when that was commissioned in December 2008, was to provide some resource to assist people from the auditors. I say the auditors at the time because BDO had not been appointed at that stage. It was to appoint somebody to assist the auditors to understand their way through the practice, procedures and policies of policing.

[15:15]

Not to carry out a review on their behalf, not to carry out an investigation and that was my clear understanding and instruction at that time.

The Deputy of St. Mary :

So the BDO terms of reference, how were they arrived at, because we need to be clear about these different reviews. So if we take BDO first. You said the terms of reference were agreed by the Minister and I am sure that is right that he would have signed them off but how were those terms of reference arrived at?

Mr. D. Warcup:

Those terms of reference, to my understanding, were prepared and completed within the Home Affairs Department. Procedurally I would imagine that the Chief Officer at Home Affairs had a key role in doing that. However, as you are aware, we had established an oversight board called the Gold Group for Operation Rectangle and on 8th December ... if you bear with me while I just refer to the relevant document. On 8th December that panel met and was advised by the Chief Officer of Home Affairs that they were to conduct this review which became known as the BDO Alto review. At that meeting papers were presented at which the details of the internal review as set out in my written submissions were presented to that group and agreed.

The Deputy of St. Mary :

So at the same time as the setting up of the BDO investigation was reported to Gold Group you also ... what I am not clear about is I can see the BDO you are now saying was internal to Home Affairs, they developed the terms of reference and that was then presented to the Gold Group and you did not have an input into that process?

Mr. D. Warcup:

It was not my role to have an input into that.

The Deputy of St. Mary : No, okay, fair enough.

Mr. D. Warcup:

I can possibly clarify as well from the minutes of the meeting, which I have had a chance to go through. I chaired that meeting and in the minutes of the meeting it is recorded that auditors had been engaged at the direction of the Accounting Officer. "The chair (myself) had proposed that a formal review should be carried out using resources available within the inquiry and a separate and firewall' strand of the inquiry to report on those matters relevant to the conduct of the inquiry providing necessary details to facilitate reports to Ministers and to States Members. Also to pull together information that will ensure that full and accurate disclosures were made to any future public inquiries."

The Deputy of St. Mary :

Okay, now this is the bit that I am less than clear about, did you propose that additional review to the Gold Group?

Mr. D. Warcup: I did, yes.

The Deputy of St. Mary :

Okay, and you say it would have been within ... you were proposing that it be within the formal review? Within which formal review is that?

Mr. D. Warcup:

Are they separate reviews? I was proposing something completely separate to the audit proposed by the Accounting Officer, what is now known as the BDO Alto review.

The Deputy of St. Mary :

Okay, so that is fine. Completely separate review to look at these other details so that Ministers and States Members and the public could be informed of the other matters. So how did that evolve then? What was the process of taking that forward?

Mr. D. Warcup:

It is from previous experience you have a slight difficulty whenever you try and run 2 reviews, inquiries or investigations in parallel. What you must determine is you must determine which has primacy and sometimes those that do not have primacy have to take a back seat until certain stages are reached within various inquiries. That is required for evidential purposes. In this particular case what we were doing was we were saying that we had had a number of issues which had been raised by ... concerns which had been raised, public complaints which had been raised under the Police Complaints (Jersey) Law that are required to be reported to the Jersey Police Complaints Authority. We had a number of internal issues which we needed to review including learning lessons of how we should do things in the future and the purpose of the review that I commissioned, and I believe I wrote the terms of reference myself for that, was to capture all of that learning and all of that information.

The Deputy of St. Mary :

Did that go back to the Gold Group for their ratification? Did you report back saying: "Here are the

terms of reference, I am going ahead with carrying out what I said on 8th December and ..."

Mr. D. Warcup:

That is right, yes. It was presented; the papers were presented and agreed by the group on 8th December.

The Deputy of St. Mary :

No, wait a minute, sorry, sorry, no that was when I understood that it was first mentioned by you that there would be a second review in parallel to the auditor's review, which that meeting was informed of for the first time and you said you were going to have a ...

Mr. D. Warcup:

I was not formally informed, I was made aware by the Accounting Officer, the Chief Officer of Home Affairs, that this process was embarked on and that is why I put together the separate review. I would have done it anyway, had the first one been commissioned or not I still would have put this review together.

The Deputy of St. Mary :

Okay, and so you are saying now that both the reviews came to 8th December meeting more or less as finished articles with terms of reference and so on?

Mr. D. Warcup: Yes.

The Deputy of St. Mary : Yes, okay.

Deputy R.G. Le Hérissier:

Mr. Warcup, you mentioned you wanted to bring together all sorts of issues that have been the subject of complaints to yourself, to the Complaints Authority, et cetera. Could you give us a summary of what those issues were that you wanted to be the subject of the internal review?

Mr. D. Warcup:

No, some of them related to complaints against serving informant(?) police officers, some them related to concerns which had been expressed about the conduct of the inquiry and some of them were concerns over matters which were appearing in the media or appearing on the internet. For example, documents that were appearing on the internet and other such things. So there was a very wide range of issues which were ... it was necessary for us to look at.

The Deputy of St. Mary :

So how did that then turn into ... you have got terms of reference now, you have got the agreement of Gold Group, how does that turn into a review? Where did the person come from who was ... how did you see the appointment of someone to do this?

Mr. D. Warcup:

It was agreed within these terms that the committee would be appointed to do this; in fact I believe originally it was felt that there should be ... there would be sufficient work for 2 people. My understanding was that having attempted to recruit the right people with the necessary skills and background we were only able to recruit one person. Part of the terms of the review were that this aspect of the review would be taken under the wing of the Senior Investigating Officer, [retired D/Superintendent], and he was left with responsibility to this review.

Deputy R.G. Le Hérissier:

Did you give [retired D/Superintendent] complete discretion? What kind of reporting relationship was there to you as he was going about this report?

Mr. D. Warcup:

I think when you say "complete discretion" the complete discretion was to carry it out within the instructions which I issued which were those formal terms of reference agreed on the 8th. That was my expectation and that was my understanding. Indeed I met with [retired D/Superintendent] almost on a daily basis and while the focus of our meetings was primarily aspects of the historical abuse investigation and the progress on that I was assured that matters were progressing, I became aware that the auditors had been appointed and subsequently became aware that assistance was being given. I think if we get right to the heart of the matter you would have noticed now that it was not for some considerable time that I realised that, or became aware, work had been indeed commissioned and was taking a different route other than that which I had previously prescribed should be done.

Deputy T.M. Pitman:

Could I just come in at that point? [police consultant] obviously was appointed to carry out this review in March 2009, however, as you have just alluded to, he claims that he was never given the terms of reference for the review and only discovered in July 2009, 4 months after starting work, that there was another review that he was expected to be working on. Can you try and clarify that because it is something the panel are really struggling to get their heads around, I must be quite honest? How could that situation come about?

Mr. D. Warcup:

I wish I could provide some clarity because I think in many respects probably [police consultant] and myself were in a similar position. We were both probably ... I am sure we were both working under the illusion that everybody was working to agreed terms of reference. However, subsequently to this conversation when I found that he was not - and I attach no criticism to him for that, as I said to him before - I spoke with [retired D/Superintendent] and found [retired D/Superintendent] had indeed given him some different direction in relation to the work that he should carry out.

Deputy T.M. Pitman:

If I can just come in before my colleague, Deputy Wimberley, it does seem very hard to grasp here. We have got people diligently working away apparently doing the job that they have been requested. You have said in answer to Deputy Le Hérissier that [retired D/Superintendent] was really the man who Kellett would have been reporting to. I think that is what I understood. What kind of liaison was there in those 4 months? What was happening in those 4 months before you sort of discovered this within conversation? Can you just try and make that clearer for us?

Mr. D. Warcup:

Yes, I think it is important to make clear the context in which the BDO Alto review was operating as well. This was an audit which was being carried out. It had not been commissioned by me, I had no oversight responsibility. To go back to your very first question today in relation to what where the concerns that I had, clearly I had raised concerns in relation to the management of the inquiry. It was therefore not appropriate for me to be in any way trying to influence or guide any reviews, whether that was the BDO Alto review, whether it was the Wiltshire review or anything else, my role at that time was the responsibility for the States of Jersey Police and to ensure that the historical abuse inquiry was carried out in a thorough, detailed and professional manner.

Deputy T.M. Pitman:

I am sorry to labour this point but a 4 month period, how was this being reported back? Surely you had to be kept in the loop given your seniority in the role?

Mr. D. Warcup:

Yes, during that time there were various things reported back. I do not have the details here but there were many matters which were reported back, all of which would have fallen under the terms of reference that I had agreed. However, when it came to ... it was probably ... you said it was 4 months

and you have assistance in that but when I first saw some written paperwork in relation to that, that is what is immediately drew my attention to the fact that obviously was not as had previously been agreed.

Deputy T.M. Pitman:

A final point, [retired D/Superintendent] has unfortunately refused to give us any evidence, which does limit us slightly. So really am I right in understanding what [police consultant] would have been reporting back would have gone to [retired D/Superintendent] and then, through no fault of your own, you would have been none the wiser? Is that how this was working or not working?

Mr. D. Warcup:

You are correct to say that I unfortunately was not aware and although I was receiving regular updates and regular briefings on many of the matters that I had asked to be done I was not aware that it was taking a slightly different direction, and that slightly different direction was clearly the fact that it had become what one might call a joint inquiry with BDO Alto with a single report.

The Deputy of St. Mary :

Can I go back to the 8th December meeting of the Gold Group because when you were talking about that you said that there was ... first of all the terms of reference were presented by the Home Affairs people at that meeting and there was an offer, now I am just saying and you can confirm whether I am right or not, from your side that someone would be provided to assist the auditors because they would not know their way around a major police investigation, is that what happened at the Gold Group?

Mr. D. Warcup:

Yes, that is right. It happened at the Gold Group and in discussions with the Chief Officer at Home Affairs. Having been involved previously in external audits into financial matters, into policing, it is not unusual to have somebody who is familiar with these procedures, police regulations and to its practice as well particularly to perhaps advise the external auditors as to a more efficient way of doing it as well.

The Deputy of St. Mary :

Right, and how was that discussed at the Gold Group? How was that envisaged, that helping the auditors?

[15:30]

Mr. D. Warcup:

I am not sure what you mean exactly in terms of the detail.

The Deputy of St. Mary :

Well, would it have been provided from States of Jersey Police existing resources or did you see that as someone who would need to be appointed to do that, or how did you see that fitting in?

Mr. D. Warcup:

Yes, absolutely. It was agreed ... I am just looking at the terms of reference, sorry the detail. It was agreed that the States of Jersey Police would provide those resources from the resources that were available. I am trying to find it but I cannot lay my hands on it at the moment, whether it would be paid for by as part of Operation Rectangle or part of the base budget.

The Deputy of St. Mary :

Yes, okay. So did the States of Jersey Police agreed to provide a resource that would provide someone who was au fait with police procedures to help BDO?

Yes.

The Deputy of St. Mary :

Now where did that agreement go to operationally? How did that pan out?

Mr. D. Warcup:

When we agreed at the Gold Group that the resources would be made available ... what happens with great regularly is the forecast in relation to expenditure are updated at each of the Gold Groups and the Accounting Officer is then fully apprised of the planned expenditure as part of the inquiry.

The Deputy of St. Mary :

Yes, sorry, but what I am saying is how did that decision or that offer to provide someone from within S.O.J.P. (States of Jersey Police) to help with the au fait ... the police side, to help the auditors, how was that decision carried through? Who was appointed, how did that happen, was it yourself who found somebody? This is where I am not clear.

Mr. D. Warcup:

Sorry, yes, absolutely. As I said before [retired D/Superintendent] was given direct responsibility for that. He was given full oversight of that and, in liaison with his colleagues, was finding the right person with the appropriate experience to be able to come in and assist. I did not have a role in that.

The Deputy of St. Mary :

Who drafted the terms of reference for that person?

Mr. D. Warcup:

The terms of reference were the terms of reference that were agreed at the group. It has now transpired that the terms of reference to which [police consultant] was working to were a different set of terms of reference. However, again in contrast it must be understood that - and I am sure you will appreciate - if the Gold Group, which is the strategic level group, determines what would happen in the direction of the review then that was really what was engaged with under the inquiry that was carried out. That is laying down the foundations and the expectations for what is happening. If there were any disagreements with that or changes which were necessary, those would be brought back to the Gold Group and the Gold Group would agree any changes.

Deputy R.G. Le Hérissier:

Thank you, Mr. Warcup. Moving slightly on, we have got your written submission and in your submission of course you say that you became concerned that the BDO Alto report might indeed seriously undermine the Wiltshire review. Can you explain to us why you were struck by this thought and when it occurred to you? How did you know that there was this danger and (b) what did you do about it once you had become aware of it?

Mr. D. Warcup:

Right from the very outset, when we go back to December and the terms of reference that we have been talking about, one of the things that somebody in my position must be alive to is that different inquiries do not conflict with each other and that any conflict does not tarnish or inhibit the investigation in any way. So my concern would be that - and was - having reached a stage where we fundamentally, through the powers(?) of [retired D/Superintendent], had begun the process of investigating the financial arrangements, the decisions which were made by Mr. Power and Mr. Harper. That was not the expectation that I had. That was already agreed as part of the terms of reference for Wiltshire and the Wiltshire inquiry had primacy in every respect.

Deputy R.G. Le Hérissier:

You said that was not the expectation you had. What was the expectation you had?

The expectation that I had ... sorry, could I just add another point in relation to that last matter. This is something that may appear to you as something that ... you know, I am perhaps going on experience or it is something that I have determined is the correct way forward. It goes a lot further than that. It is also the conclusion of meetings which were held between Mr. Moore , the investigating officer from Wiltshire, and the Attorney General at the outset of the investigation. A meeting was held with the Attorney General to determine the primacy and the structure of all aspects of investigation. So Mr. Moore was aware, as the acting head of the force I was aware and as the responsible law officer the Attorney General was aware of what the primacy was in relation to any review, investigation or misconduct complaints issue that was being carried out. That was clearly established right from the very outset. It went through a formal process as well.

Deputy R.G. Le Hérissier:

Okay, thank you. That point then, so presumably you received the draft of some sections of BDO Alto and said this is seriously in conflict with or may be seriously in conflict with what Wiltshire were after. Indeed it might impugn the integrity of people. I put words there but I think that is what you said in your submission.

Mr. D. Warcup:

If I can explain and clarify. The paper that I reviewed were not part of the BDO Alto report, they were papers of which my understanding was that [police consultant] had prepared for [retired D/Superintendent] - [retired D/Superintendent] showed me them - and they were to be submitted then to BDO Alto. Whether they would have been repeated verbatim, I do not know, but they were not ... it was not the BDO Alto report, this was an early draft of some written work which was going to be submitted to BDO Alto and that is the point at which I said, you know, that is not going to happen, my instructions are that these are 2 separate issues, they should not be conflated and that is where I refer in my submission as well to objectivity because [retired D/Superintendent] had made his position clear, even prior to September 2009. He had made his position clear in relation to some of his concerns and I was concerned that the objectivity of somebody who had been, shall we say, critical in overseeing permissions of that nature back to BDO Alto, and I was concerned that it would be less than objective.

The Deputy of St. Mary :

You said there were 2 separate issues. Could you clarify what those are?

Mr. D. Warcup:

Yes, the second issue was that I had become aware that the work being done for BDO Alto had gone further than my expectation - far, far exceeded that. I also, and being aware of the primacy issue, went and spoke to the Senior Investigating Officer from Wiltshire, Mr. Moore , and I sought his advice. But I also wanted to make sure that all of the work which had been carried was submitted to them so they could consider that as part of their financial review. First of all there was duplication but most importantly there were the issues of potential for possible misconduct to consider. We already had the Wiltshire inquiry going. It had already been established and in determination with the Attorney General that that had primacy, and on the advice that I received, the legal advice and the advice from Mr. Moore , that is why I instructed for them to take no further action at that time in relation to interviewing Mr. Harper.

Deputy T.M. Pitman:

Can I just come in there? Can I get this clear for the record, when you are talking about objectivity are you saying that there were concerns at the way this review, investigation, was being undertaken? Was in danger of being personalised where perhaps it focused on the individual, as it happens Mr. Harper, who was at the centre of much of the decision making, was that the primacy of your concern? Was it being personalised?

Mr. D. Warcup:

That was not the primacy of my concern but that was a concern, yes, and that was part of my concern

in relation to the objectivity aspect. The aspect of my decision not to let [police consultant] to interview Mr. Harper as part of the States of Jersey Police was not in relation to that. That was purely in relation to the advice that I had received and the primacy of the investigation. If you could envisage a situation where evidence was to be taken at a future hearing, how that may be interpreted in relation to what had gone on because Wiltshire had primacy in that investigation. It is perhaps just worth reflecting as well on the way that Wiltshire were conducting their inquiries, and that was by the use of expert witnesses. One of those expert witnesses in their discussions and what have you with Mr. Moore was a finance director with police experience. I was fully cognisant of the fact that they were looking into these issues and therefore I was not concerned that they were not going to be looked at. So the issue of objectivity and the aspect of [police consultant] interviewing Mr. Harper had not ... they are 2 separate issues anyway.

Deputy T.M. Pitman:

But how does this go back to the concern [police consultant] was appointed by [retired D/Superintendent] it seems and that relationship which has been criticised between [police consultant] and [retired D/Superintendent], was that a part of your concerns about the objectivity?

Mr. D. Warcup:

When that was brought to my attention later on, yes. I was aware that they knew each other as officers but that is not uncommon, particularly due to the fact that both of them were ... because they would work across ... Their work would transcend their normal areas of work and they would come into professional contact. Yes, later on it was a concern but I had no reason to impugn the professional integrity of either officer at that stage.

Deputy T.M. Pitman:

How did you deal with those concerns when you began to feel them? What options were open to you and what did you do?

Mr. D. Warcup:

I think [police consultant] - and I read his submission to the panel - described to you the fact that I was very relaxed about this. I think that is a fair comment because it was plainly clear that [police consultant] was working under the instructions that he had been given. It was not his fault that he was working under different instructions. I did not therefore need to challenge him, the challenge came when I spoke to [retired D/Superintendent], and I challenged [retired D/Superintendent] on that and issued further directions in relation to what I expected, which was to return to the original review and have that work done.

Deputy T.M. Pitman:

Is it fair to say, and I do not want to put the words into your mouth, that you would not have put 2 people who had that relationship into such a situation with foresight. If you had known you would not have seen that as an ideal situation?

Mr. D. Warcup:

I would have been and would still be comfortable with ... had they carried out the work which I had initially set to them, I would have been comfortable with that. I was not comfortable in relation to the focus which ... there had become a focus on ... I make no comment about the rights and wrongs, there was a predominant purpose to look at the activities of Mr. Harper at that particular point.

The Deputy of St. Mary :

Can I just come in, you mentioned the phrase "the work set to them" and that is [police consultant] really. I just want to put to you 2 things, one is from your submission to the panel where you say on page 4: "Subsequently Mr. Mike Kellett was appointed to fulfil this role" and that is the role of the internal review, the one that wraps up the complaints and questions from States Members and so on. In [police consultant]'s submission to us he says: "In March 2009 I was engaged by the Acting Chief Officer of the States of Jersey Police [that is yourself] to carry out a review of certain aspects of

Operation Rectangle, the full terms of reference read as follows" and then it is the support role that we talked about earlier. Helping BDO Alto to come to terms with how the police work and lots of very specific questions which he has been asked to answer. How can you square those 2? He seems to be being asked to do 2 things, one by yourself in relation to the BDO and one by someone unknown, it is not stated, about the ... within yours it was appointed, he was appointed to fulfil a completely different role, the internal review role?

[15:45]

Mr. D. Warcup:

Yes, my interpretation of that, I am not sure I can be of use but my interpretation is that he is talking about in a general sense of being appointed by me because I did not personally appoint him. That was a delegated function to [retired D/Superintendent] and [retired D/Superintendent] carried that out, he appointed him, he did not have to refer back to me in relation to the appointment. It had been agreed previously. Does that help?

The Deputy of St. Mary :

That helps a lot. So that is the helping BDO part of it. [retired D/Superintendent] appointed [police consultant] to do that role and what about the other, the internal review. "Subsequently [police consultant] was appointed to fulfil this role under the supervision of Detective Superintendent Gradwell." Was that also delegated to [retired D/Superintendent]?

Mr. D. Warcup:

Yes, that was delegated to [retired D/Superintendent] and [retired D/Superintendent] had the terms of reference which I had proposed on 8th December. That was what they should have been working to.

Deputy R.G. Le Hérissier:

Just carrying on with the issue of the Wiltshire report, [police consultant] disputes your statement in your submission that there was unhappiness with the contents of the draft sections of his report, unhappiness from Wiltshire when they saw his report. He says it simply boiled down to an issue to do with a member of the States of Jersey Police and a national tabloid newspaper and that it was easily resolved by him simply deleting this reference. Do you agree with his characterisation of this issue or do you think it was indeed a serious issue that they raised that they were really quite concerned about the content of the drafts?

Mr. D. Warcup:

I am certainly not aware who he is referring having spoken to within the Wiltshire team but I can be absolutely clear that I spoke to the Chief Constable Mr. Moore about this and was advised that those and other matters had been subject to legal advice and they were inappropriate to be included in the report. It did not take legal advice to believe that it was inappropriate that they should be included.

Deputy R.G. Le Hérissier:

Was this because, I do not know and I suppose I am speculating and I need confirmation from you, there were some allegations being made about individuals or an individual and that the appropriate evidence was not there to back up these allegations?

Mr. D. Warcup:

Yes, and I think that that was my feeling and I mentioned that some of the witnesses have not been disposed in writing so if we are making issues which are going to be substantially challenged then it would only be right to do so if you had the written evidence backing that up. Of course that written evidence may have been available to Wiltshire but it certainly was not available to anyone in Jersey, including [police consultant], because the aspects of the Wiltshire inquiry were entirely confidential.

Deputy T.M. Pitman:

Mr. Warcup, just taking you back a stage, you told us in your submission how it became overly focused on Mr. Harper and, as we said, lacked objectivity, but I am interested in where you said it had the potential to be unfair to Mr. Power. Could you just enlarge on that, what was your concern, how would that evolve and did it evolve? What was this unfairness?

Mr. D. Warcup:

I raised those concerns with Mr. Moore and what I mean by that is these 2 issues are directly connected. At the time, although I was speaking to Mr. Moore about matters which affected the States of Jersey Police we could not discuss matters of evidence in the same way as I could not discuss matters with the Minister in relation to that. So what we had to do is we had to make sure that there was no conflict between what Wiltshire were doing and what the States of Jersey Police were doing. I was very clear in that regard that if comments were made which were critical of Mr. Harper they could, by implication, have therefore been critical of Mr. Power because we did not know at that time where the Wiltshire inquiry was at, whether the Wiltshire inquiry would draw conclusions that Mr. Power was ultimately responsible or whether indeed individually they would be responsible for their own options. The focus on Mr. Harper may have been detrimental in that regard.

Deputy T.M. Pitman:

Did it cross your mind that - and this may be impossible to answer - there was an ulterior motive from anywhere that this was a deliberate focus on Mr. Harper? I ask that because when we had BDO in [the Managing Director] said: "Look, we praised Mr. Harper in 9 specific areas here." If you look back at the reporting that does not really come out, it all seems to be focused in one angle, the negativity as opposed to possibly thing that went well. Were there any concerns ...

Mr. D. Warcup:

Yes, I think in every situation you flag those things that were positive as well as if you are going to challenge and flag things that are negative. You have to balance it and be fair. I think that is a fair comment. I cannot comment, however, not having studied in detail the findings which were the ultimate outcomes. I could not comment on that.

The Deputy of St. Mary :

Can I ask a few questions again to the point of why Mr. Harper was not interviewed by the whole BDO process? First of all, do you agree that in retrospect it would have been a better base for the report if he had been interviewed?

Mr. D. Warcup:

Yes, it would have been a better base but I have some concern that maybe it is felt or conclusions were drawn that I in some way inhibited or prevented that. What I did was to advise on what we as the States of Jersey Police would do in our role as part of that. It was not for me to advise in relation to how the BDO Alto would conduct their audit and their review.

The Deputy of St. Mary :

Could BDO have approached Mr. Harper, from your point of view?

Mr. D. Warcup:

There is no ... there is a saying in law that there is no propriety in a witness. You do not own a witness. Nobody owns a witness so there is every freedom to approach people and speak to them.

The Deputy of St. Mary :

I am positive about this, on page 5 of your submission to us you say you had not approved a joint report by [police consultant] and BDO, you had to approve that there should be a joint report produced, nor was it in accordance with the agreed terms of reference but it is implicit completely in the terms of reference which went to [police consultant] and which he accepted when he took on the job or jobs.

Mr. D. Warcup:

That is right and I did not approve those.

The Deputy of St. Mary :

But they came from Gold Group. I am just putting that to you and asking for a clarification. The terms of reference that are on [police consultant]'s page 2, where he says he was engaged by yourself but you are saying that that was delegated to [retired D/Superintendent]: "To carry out a review of certain aspects of Operation Rectangle, the full terms of reference of which I was handed read as follows. Employment of Mr. Mike Kellett" and it goes through a page including all the details of all the different aspects of Operation Rectangle.

Mr. D. Warcup:

I am sorry, I do not have that document in front of me.

The Deputy of St. Mary :

[police consultant]'s first submission to us. What he said ...

Mr. D. Warcup:

In his written submissions?

The Deputy of St. Mary :

Yes, but if I can just read the first 2 paragraphs: "The Home Affairs Accounting Officer has employed accountants to conduct the above review. The accountants have no knowledge relating to the management or police operations, the review will benefit from the involvement of an experienced police manager" then [police consultant] is ideally placed, and then it says all the things he is going to look at on behalf of BDO. [police consultant] says: "While it was not explicitly stated it was my understanding from the outset that BDO Alto and I would prepare a joint report of our findings" and certainly that is the impression they gave in the hearings with us. They were working together from the beginning and that was their understanding.

Mr. D. Warcup:

All right, well that is different to the terms of reference which I am referring to and I referred to in my written submissions which were: "The purpose of the review is to carry out a formal internal review into matters which currently do not fall within the parameters of the current historic child abuse inquiry or other related investigations or reviews."

The Deputy of St. Mary :

This is the funny thing that [police consultant] - as my colleague Deputy Pitman pointed out - worked for 4 months on one terms of reference and you said he was working for another terms of reference.

Mr. D. Warcup:

That is right, that was the position.

The Deputy of St. Mary :

Can I just carry on, because you then say on page 6, because this is relating now to why Lenny Harper could not be interviewed, and this really perhaps in the nub: "In summary, my intervention that they could not interview Mr. Harper related to the States of Jersey Police internal review and not the BDO Alto report."

Mr. D. Warcup:

Yes, that is right. There were several things. One, I said that we were not going to be joint authors because I had issued terms of reference about what I required and the report was a sole report from BDO Alto and as part of that [police consultant]'s role had been, albeit he was working to different instructions, he was there to assist them in the compilation and to understand the policy, practice and procedure. It had gone beyond that and I was then reverting back to the original terms of reference which had been agreed. Under those terms of reference and following the advice I was given by Mr. Moore and based on legal advice that I received, that we the States of Jersey Police would not carry out an interview with Mr. Harper.

The Deputy of St. Mary :

Could you expand on what the issues and complaints were that led to your terms of reference, if I can call them yours? You know, the second of terms of reference that came out of the Gold Group, the issues and complaints raised. Are you able to give any details about what the ... because you have not said specifically what those issues and complaints were.

Mr. D. Warcup:

No, those issues are obviously confidential; they are reported through the process and overseen by the Police Complaints Authority in Jersey.

The Deputy of St. Mary :

You mentioned States Members complaining, you cannot give any details about those?

Mr. D. Warcup:

No, no, unfortunately. I am sure you will understand why I cannot. Not only States Members but other complaints which had been received as well and were being actioned.

Deputy T.M. Pitman:

Can I just ask, those complaints - and we probably accept that you cannot go into details - were they specific things and specific incidents or was it just that perhaps politicians were very unhappy at how things were being reported in the media because there was a huge global interest. Can you give us some indication of ...

Mr. D. Warcup:

I cannot. I do recall what they were and I recall the sources of those complaints that I am referring to, not all of them but I do recall. I need to be clear as well that it was not totally States Members who were raising issues and making complaints. There were complaints from members of the public as well.

The Deputy of St. Mary :

Did any actual report arise out of this review or did it simply not happen, although [police consultant] was supposed to be working on it?

Mr. D. Warcup:

That is the position that when [police consultant] left what we did was we did conclude each different aspect in a different way so all the complaints were subject to investigation and recorded for the Police Complaints Authority and they were finalised in accordance with the Police Complaints (Jersey) Law, the learning of lessons in relation to what we need to do and how we need to approach it were all developed and in many cases the practices and changes were implemented where they could be. For example, training of officers to ensure that they have got the right training in the right areas to be able to deal with serious investigations and the investigation of serious crimes. They were implemented as well.

The Deputy of St. Mary :

So it was all done on a kind of ad hoc basis?

Mr. D. Warcup:

Not ad hoc, no. It would be wrong to say it was ad hoc, some of them were subsequently reported on in the Wiltshire report that I think we had already identified. For example, training was an issue and we had put in place the arrangements to make sure that relevant people were trained, including investigating officers, and that they were able to comply with best practice and the procedures which were adopted following the investigation of serious crime.

Deputy R.G. Le Hérissier:

We are getting towards the end. It strikes me, listening to your evidence, that you obviously felt that when it came rightly to people like Mr. Power and Mr. Harper there had to be a high evidential bar. But there appeared to be these other investigations going on and there was evidence brought forward which did not meet that bar, so to speak. Do you think in retrospect or just as a general principle it was wrong to have these reviews going in parallel with each other, particularly when you have the primacy of Wiltshire.

[16:00]

Because what was happening was people were making allegations based not on verifiable evidence necessarily. Do you think that led to very unfortunate outcomes and that were you to do this again you would never go into a situation where reviews were running essentially parallel to each other and where they appeared to have on level of evidence and another review appeared to have another level of evidence acceptability?

Mr. D. Warcup:

I would agree with you. Can I just go back a step further in relation to what ... you said what you would do. I did not do it, of course, because it is fair to say I would not have initiated the BDO Alto review in the way it was done but it is appropriate to look certain things, to learn the lessons even while there are inquiries ongoing. What must be established, however, is what the parameters of those are and where you draw the line in relation to the extent of those inquiries. One the fact of it, if I was to go back and say: "Well, how should it have been done?" then I would say that it would have been perhaps better to deal with the issues of alleged misconduct and deal with those first and to completely separate out the other issues. If there are other issues that need dealing with that are likely to overlap, they should be included within the terms of reference for the primary review. It is not uncommon in a police discipline inquiry for the investigating officers to be asked not only to see whether there are any misconduct issues which flow from the circumstances, but also whether there are any organisational issues from which the organisation can learn and benefit in the future.

Deputy T.M. Pitman:

A question that was further down our list, although we are getting towards the end, talking about primacy. You stressed that quite a lot and I think I understand why, however could you clarify for the record how it could be then that BDO or [police consultant] got to see apparently Mr. Harper's statement from Wiltshire? How did that ... surely that would have affected primacy and possibly conflict in some way? Can you enlarge on that because we are having difficulty getting to the bottom of this and it is, I am sure you will accept, a key issue.

Mr. D. Warcup:

I would accept that until I saw the papers I was not really aware that they had seen that. My understanding was that the States of Jersey Police and those working for the States of Jersey Police would not see any of the evidence in relation to the Wiltshire inquiry, and I do think that ... I cannot say whether he did or he did not see that. I do not know, has [police consultant] said that he has seen that?

Deputy T.M. Pitman:

As I say, we are getting a really confused picture. My question to you, and obviously you cannot answer what another person has seen, is how could that come about where a person could see something which was meant to be confidential to another review which you said had primacy?

Mr. D. Warcup:

I would say there is not a matter of confidentiality in relation to that, what there is is a matter that goes back to that issue of primacy that you raised and it would raise an issue should there any misconduct procedure I would have thought it would have been a matter which would be subject to challenge within the misconduct process to say why did that happen and was it appropriate and what was the purpose. Such things always raise doubt in any such proceedings. That is why decisions are often made to engage outside bodies to carry out inquiries and it is a very unusual circumstance, yes.

Deputy T.M. Pitman:

But if something can be almost quoted from surely there is no smoke without fire. Had did that come about, that is what we need to find out.

Mr. D. Warcup:

You mean [police consultant] seeing the statement?

Deputy T.M. Pitman: Yes.

Mr. D. Warcup:

I have no idea because to put it another way, if [police consultant] or [retired D/Superintendent] had come to me and said: "Can we approach Wiltshire to see Mr. Harper's statement?" I would have said no.

Deputy R.G. Le Hérissier:

In a related issue, Mr. Warcup, the issue of how it appears a very similar replication ... sorry, a very similar version or replication of parts of Operation Rectangle can be published in a newspaper, a national newspaper, in October 2009. Were you able to get to the bottom of this?

Mr. D. Warcup:

No, unfortunately there were many issues right through from 2008 until 2010 where we did look to try and establish how information had been released to the media. It is a matter of some regret in many respects that it happened and I do not condone it at all but I am afraid I cannot shed any light on the source or how it happened.

Deputy R.G. Le Hérissier:

Did the police institute any investigations into whether there was a leak occurring from Police H.Q. (headquarters)?

Mr. D. Warcup:

I am sorry; I did not catch the first part of that.

Deputy R.G. Le Hérissier:

Sorry, did the police institute any investigations into how this information was indeed leaking, so to speak?

Mr. D. Warcup:

It would be wrong to say an investigation. On each occasion when information is put into the media we will look and see whether there is a source and whether there is a prima facie reason for information going into the media. Sometimes of course it is neither illegal nor is it a disciplinary matter that information is put into it, it maybe just be a question of judgment or professionalism.

Deputy T.M. Pitman:

Just to take on from that point, you said from 2008 right through to 2010, and of course that is well after the Mr. Harper/Mr. Power period, did it ever concern you that possibly those leaks were politically based? They were coming from politicians and probably they were not even internal from the States of Jersey Police. Was that a concern to you?

Mr. D. Warcup:

No, I would not focus my attention on that. If I was to say ... my concern was from a very early stage the media was being given a considerable amount of information and documents and they were being given this information either directly by people or indeed - people I do not know and I do not wish to get into a guessing game ... they were getting information and also information was appearing on the internet. I have to say that I think that the release of information in such circumstances is detrimental to the good conduct of the inquiry. In fact it is a fact that the release of some information in the earlier stages which appeared on the internet and in the media and was clearly information which had been given in court, could have had a detrimental impact on those cases which appeared before the Royal Court in Jersey and could have undermined those cases, and indeed there was a hearing in the Royal Court in which it was challenged by the defence solicitors that there could have been an abuse of process. I think that that matter needs to be seriously considered for the future and the release of information, however well intentioned, has to be carried out under proper regulated and approved systems and not to fulfil whatever agendas people are trying to pull through.

Deputy T.M. Pitman:

So just the last question I will ask you on this point. The leaking, however it came about, to the media, you would expect to see consistency in this because obviously there has been huge and very negative focus on leaks which allegedly came from during Mr. Harper/Mr. Power's time yet the Minister, for example, seems very unconcerned about leaks that have come subsequently. Is that not a concern that should be ongoing all the time? Should there be consistent policy? That seems to be what you are saying.

Mr. D. Warcup:

I cannot speak for what the Minister would say but I can speak from my conversations with the Minister during my time with the States of Jersey Police and my impression at that time of the Minister's point of view was he, like I, thought it was totally wrong, irresponsible and unprofessional. But I would agree entirely that there needs to be a consistent approach. Leaking of information to the media is something which can, as I say, seriously undermine criminal inquiries and the consequences could be quite serious. That is not serious to you or I or others, it is to the victims of crime who will not get justice through the courts.

Deputy T.M. Pitman:

One final point on that. We have heard within our review here allegations that a former Assistant Minister for Health leaked information to a U.K. (United Kingdom) journalist. To what extent were you aware of that? How did it come about that you were learnt of that?

Mr. D. Warcup:

I am not sure I am aware of that particular ...

Deputy T.M. Pitman:

A leak to Mr. Rose who is a quite well-known U.K. journalist. You are not aware of that? So there is no inquiry?

Mr. D. Warcup:

Was it a former Minister for Health?

Deputy T.M. Pitman:

Assistant Minister for Health. You are not aware of that at all?

Mr. D. Warcup:

No, I am sorry I am not clear about the particular case that you are talking about.

Deputy R.G. Le Hérissier:

Just a wrap up question, Mr. Warcup, it is maybe a bit too broad but in the light of what happened, in the light of all these reports, in the light of the different evidential standards that appeared and in the light of the concerns you expressed once you became aware of the way things were panning out, how would you have done things differently?

Mr. D. Warcup:

How I would have done things differently?

Deputy R.G. Le Hérissier: Yes.

Mr. D. Warcup:

There are many things which one learns in relation to things which happen but I have no regrets that what I did I did in the best interests for the States of Jersey Police and hopefully the people of Jersey and also the victims. Had I not made the disclosures in relation to that there was every possibility that the cases before the Royal Court would have been undermined and there would have been no prosecutions that would have followed. There are perhaps many other things that I would have tried to do differently in the weeks and months which followed but I am not sure, given some of the circumstances which prevailed, how much I would have been able to influence though.

Deputy R.G. Le Hérissier:

Can you give us one or 2 examples?

Mr. D. Warcup:

I think just the one. I think the issues of the control of information which was being put not into the media but into the public domain, whether it was through the States Chamber or whether it was through the media, however you refer to it, that uncontrolled information which was being put through there, perhaps with the best intentions, was quite often inaccurate and ill-informed. That unfortunately had a big influence on the way that the States of Jersey Police were able to operate, the way they were able to conduct their inquiries and also on my role and position as head of the force. As I say, I am not sure that I could have been in a position to change that. What I could do is to try and act with the utmost professionalism to try and do things properly and also to try and make sure that everything that is done in respect of the former Chief Officer, Mr. Power, was done fairly and appropriately. As a good example of that, at no time will you find me on record as getting into speculation and comment on the rights and wrongs of some of the things that have been speculated about.

The Deputy of St. Mary :

I would like to ask a final question, I would probably kick myself afterwards if I did not ask you and what you have been saying leads on to it about information should not be put into the public domain in an uncontrolled way, in an often inaccurate and ill-informed way and so on and trying to do things properly. I think that is nub of it, is it not, trying to do things properly. So if I just quote you from the Wiltshire report in a paragraph where they are writing about the Met review, which of course you referred to in your letter which led to the suspension or immediately led to the suspension.

[16:15]

"The purpose of the review [that is the Met review] and the report which followed was to provide advice, guidance and learning for the S.I.O. (Senior Investigating Officer) and the Operation Rectangle team. The review will typically highlight well run aspects of an investigation and comment on areas that require attention. In order to be effective and to encourage staff to speak openly the content of the final report of the review is intended to be provided and received in the spirit of learning, public disclosure of the report is resisted and it usually attracts public interest immunity, in other words the whole thing is private to allow people to speak openly. Accordingly it would not be disclosable for the purposes of a discipline hearing as to do so could undermine the public interest by inhibiting candour between interviewers and interviewees in the review process." As you know, you based your letter which led immediately to the suspension of the former Chief Officer, Graham Power, on that review even though the review specifically has to be open book, people encouraged to speak openly and not used for disciplinary purposes. Would you like to comment on that?

Mr. D. Warcup:

In those last couple of sentences where I would agree to depart from what was being said and the reason for that is that I did not base my letter solely on that review. The construct of my letter, which I believe you will have seen, was that I raised issues which were concerns and I also - which I was subsequently criticised for, which is rather strange - abided by that in terms of saying that the review remained confidential. It remains confidential for other reasons of course as well. But if we go back to earlier questions, I had raised concerns and they were documented concerns with a number of people, including the then Minister for Home Affairs, the Chief Office of Police, the Attorney General and others, including [former States Chief Executive], about certain aspects. That was in September, 2 months before the review ... in fact the Met did not even start the review until September and I had already raised, before they gave the written review, some concerns. Those concerns were documented and documented in September. Therefore I stand by the fact that the issues that I raised with [former States Chief Executive] were issues that I had been raising for about 2 months and were not as a consequence of the Met review.

The Deputy of St. Mary :

So you do not think that in that letter, which had been requested by [former States Chief Executive] and 2 days later Graham Power was suspended, you should have mentioned the fact that it was not a disciplinary investigation and could not be used as such, or in any way connected with the disciplinary process?

Mr. D. Warcup: Sorry?

The Deputy of St. Mary :

Should you not have mentioned in that letter, and I would have to say that the perception - and I am pretty sure I could find it in Napier if I had time - that one can show that your letter was largely - not exclusively - based on your reliance on the Met interim review. In fact people around were saying if we had not ... [former States Chief Executive] is on record as saying in the Napier review that if the letter had not been received about the Met interim report then it would have been much harder to suspend Graham Power. So it was a very important letter and it relied on the interim review but it did not mention that the Met interim review was not a disciplinary investigation and could not be used in any disciplinary process.

Mr. D. Warcup:

They were probably ... given the scale and complexity of things, there were probably a lot of other things that could have been put but I was not unfortunately aware of that at that exact time and I put in what I considered to be relevant information but I absolutely stand by the fact that the issues and concerns that I had raised had been raised for some 2 months prior to the Met review being produced.

The Deputy of St. Mary :

None of the other concerns were mentioned in the actual suspension documents. This is the problem, is it not? This is the problem with the whole basis of why we are here, why we are talking about BDO and so on is this kind of atmosphere around this whole process. But can I just ask you, you mentioned the letter which you will have seen. We would love to see the letter. Is it possible for you to let us have that letter?

Mr. D. Warcup:

Again, I would ask the panel if you can take legal advice as to whether it is appropriate for you to see that.

The Deputy of St. Mary : Yes, we will do that.

Mr. D. Warcup:

I think that, for example, there was comment which was attributed to the fact that no reference was made to the fact that it was an interim report. If you saw the letter you will see that one of the paragraphs is headed at the very end, in a very brief reference, refers to the Met review interim report.

The Deputy of St. Mary :

So it would be useful to us to see the letter, in fact it would clarify issues for a lot of people.

Mr. D. Warcup:

I think it would, not least for myself.

Deputy T.M. Pitman:

I am greedy so I have got 2 questions, both very different ones. Obviously we know it was down to you appointing the finance manager; however when you look back if there is one thing that has been learnt it is that Jersey's set up was less than perfect. But with reflection do you think it is unfair the way the focus has been on the police side of this and the finances, and that is why we are here, and very little has been said about the Home Affairs side and their control or lack of with the finance; what would your thoughts be on that, trying to move forward for the future?

Mr. D. Warcup:

Looking forward to the future I think there is now a general agreement, and I proposed this very early, that the Chief of Police should be the Accounting Officer and the budgets should be set but I also feel that there should be more formal oversight of the police in its entirety with some form of police committee or police authority. I am well aware that the U.K. are moving away from that but I think you will struggle to find a Chief Officer in the U.K. that will support that change because the current arrangements with oversight provide for clear lines of accountability and responsibility and a lot of these issues which are being discussed and where it was discussed in the public arena and in the States it could have been properly, professionally and formally discussed through an authority and a lot of the questions could have been answered and then reported back formally to the States.

Deputy T.M. Pitman:

Obviously we are in the process now we are going to have a police authority. Was it ever a concern to you at the time that it has been driven to focus too much on the police side and the police failings, which obviously failings need to be identified, but did you ever feel real concern at the Home Affairs side were almost perhaps shifting the blame not wanting to say: "Yes, there is fault on our side too." Is it easy to just have a scapegoat? I am not saying that is what you have done but you appreciate the question.

Mr. D. Warcup:

No, no, it is not concern I had. I did not feel necessarily the blame was shifted because I think the blame was systemic. It was organisational in as much as the procedures for managing finance and the arrangements were not in place. If they are put in place, if budgets are established and accountability procedures are put in place then I think that Jersey will be in a good position for managing finances for difficult context issues in the future.

Deputy T.M. Pitman:

I suppose it seems an obvious question but it must be hard to know if you are going over budget if you have not got a budget.

Mr. D. Warcup:

Regardless of whether you have a budget or not you have a responsibility to act responsibly and to ensure that monies which are spent in the public purse are spent responsibly. I was acting chief of the force for over 2 years and I would like to think that I applied the same rigour that I would have applied wherever I have been Accounting Officer.

Deputy T.M. Pitman:

One final question, and it takes us back to your big issue of objectivity. Would you agree that when you look back on this now the big tragedy of all this is perhaps the focus on things, the Bombay Brasserie, et cetera, have moved the focus away from what is really important and the victims in this horrible situation. That is not your fault but the way this report and various other reports that have been spun out, has that been the real tragedy of ... this would deter people perhaps from coming forward in the future, the way the focus has gone on to the money when people are more important than money, victims are even more important. That is what I am getting at.

Mr. D. Warcup:

Without a doubt the victims are the most important aspect of any of these inquiries. Sometimes that is very easy to say but it is sometimes very hard to deliver when we become distracted with other things. I think that is why if the arrangements are put in place that holds people properly accountable for what they do then I think the victims will get the better service from the police in the future. I know that colleagues within the States of Jersey police would be very comfortable working, certainly when I was there, within those arrangements and they are not afraid of being accountable.

Deputy T.M. Pitman:

Do you think perhaps politicians were afraid of being accountable? Did you ever get that sense? It is perhaps not a fair question but I will ask it anyway.

Mr. D. Warcup:

I do not think I ever quite got under the skin of that.

Deputy T.M. Pitman:

Did you not ever the pressure in the job that more important is Jersey's image because I think that is what a lot of the public felt? Did you ever feel a pressure on you in your work as it relates to this review?

Mr. D. Warcup:

No, I think there certainly were pressures as you will know and your colleagues on the panel will know, but those pressures came from many different directions. One of the major difficulties which took up a substantial amount of time and was a huge disruption from the investigation and from the successful day to day running of the force was the wild speculations and inaccurate information that quite often then substantial amounts of work had to be done to attempt to correct that. I have to say that that does seem to be a facet of policing in Jersey that you are fire-fighting issues and concerns that are raised which quite often turn out not to be correct.

The Deputy of St. Mary :

Would you say that greater openness and transparency would help in that because then, for instance, if people had had much, much earlier your letter which eventually led to the suspension, if we had that then we would know what was in it whereas without it all people can do is speculate.

Mr. D. Warcup:

If you compared it to a police authority situation, those people on the police who have responsibility for discipline matters concerning chief officers of police would all have had access to that sort of level of information and it is very unfortunate that that responsibility eventually was vested in the Minister and the decisions that he made when it is clearly a serious decision and that is why changes will undoubtedly benefit future decisions because it will provide a greater breadth of transparency. I am sure you will understand if I say that I would have welcomed that personally because I would like to think that would have led to an understanding of the position I found myself in, the action that I had to take, and the reasons why I did it.

Deputy T.M. Pitman:

To end, Mr. Warcup, is there anything that you would like to say to us that we have missed or that you feel needs to be said?

Mr. D. Warcup:

No, it is fine. I think in your final questions you have covered many of the issues which I am quite glad that I have had an opportunity to express a view on.

Deputy T.M. Pitman:

Good. Okay. I will end the panel hearing now. Thank you for that. I am aware that you were in Jersey in quite a difficult time. Would you say though, in closing, that is almost part of the job for a senior role as you were in? It was not a problem to you as such, you dealt with it. It is a small community, some of these issues were just par for the course, were they not?

Mr. D. Warcup:

You may say that and look it like that but I think it is a much broader issue and much more strategic issue. Having been in the position that I was, the power and position unfortunately as the head of service, you were not only challenged as an individual you were also challenged as being part of an organisation. People are not only forming impressions of you as an individual they are forming impressions of an organisation. If there is a determined effort to try and undermine people in that position then it can have a very negative effect on the organisation itself, and that is a position which is not really sustainable and healthy for an organisation such as the States of Jersey Police. There is a much wider issue.

[16:30]

Deputy T.M. Pitman:

All right, but hopefully a police authority will curtail some of those problems.

Mr. D. Warcup:

I really hope that it will and I hope that Members have some part in implementing such a commitment.

Deputy T.M. Pitman:

One question I promised I would ask, if any of the media wish to get in touch with you, or citizens media, is there an address that they can do so or not?

Mr. D. Warcup:

No, they can go through the press office of the States of Jersey Police.

Deputy T.M. Pitman:

Right, but you will field any questions that people put to you if you receive them?

Mr. D. Warcup:

If they go through the States of Jersey Police media office I will consider things but I will also say that I will be unlikely to give interviews for further speculation and debate. I hope that I have been able to give the panel today some clear answers in relation to issues and what I do not want to do is to step outside of the scrutiny panel and start another round of speculation, debates and challenges. That would only serve to undermine things further.

Deputy T.M. Pitman:

Okay. Thank you again, and I will end it there. Thank you.

Mr. D. Warcup:

Okay. Thank you very much.

Deputy T.M. Pitman:

Thank you, members of the public and media. [16:31]

Panel:

Deputy R.G. Le Hérissier of St. Saviour (Chairman) Deputy M. Tadier of St. Brelade

Deputy J.M. Maçon of St. Saviour

Witnesses:

Clerk for Jersey Quakers Assistant Clerk for Jersey Quakers

In attendance

Mr. M. Haden, Scrutiny Officer

[12:08]

Deputy R.G. Le Hérissier:

Well, thank you very much for attending. There is a notice, which is important you read about the truthfulness, which I am sure will be in abundance of your evidence. We welcome you to this meeting; it is very kind of you to come at relatively short notice. You have obviously picked up some of the discussion with the Dean. I wonder, just to set it off and then our lead member in a way is Deputy Tadier and he will move the points along, but I wonder if you could tell us succinctly what your approach is to this law, and why you as a group appear to have taken a different approach to the other religious groups in terms of "solemnising the civil partnership", if you could explain (a) the general approach and (b) your involvement in this particular matter.

Clerk for Jersey Quakers:

Well, Quakers have traditions to support a balance with equal rights with equal responsibilities. That is very much in our traditions, it goes back about 350 years, Quakers have always been very proactive in equality and truth. They began really looking at the equality of same sex relationships I think back about the 1960s when they moved from tolerance of same sex relationships into an acceptance and a welcomingness. We believe in the worth of a relationship, not necessarily the detail of whether it is heterosexual or homosexual. We believe that a loving and honest and supportive relationship is valuable, and therefore people who, because of the way they feel and they way they are, wish to have that relationship in a same sex situation, they should not be in any way disadvantaged, and that they should be supported by their friends in the Meeting. When I use this word "Meeting", it is an old Quaker word and we use it all the time. We hold meetings for everything so our worship is in a Meeting, when we have our business meetings that is a Meeting. We just use this word "Meeting" for everything that we do and we have different sorts of meetings. So if you hear me talking about Meeting for Commitments, it is a worshipful service that is one in which people can have commitment to each other. We do not have a priesthood, we do not offer blessings, and when we have a marriage ceremony, because we do not have priests, we believe that it is the couple who make the sacredness of the act, and nothing comes between them and God. So a marriage ceremony, if I can put in context of a marriage ceremony, which is held in silence, and at a time of their suiting the couple will stand up and make the vows to each other, and they are the vows that you know and understand in a church service. So that is how it works.

Deputy R.G. Le Hérissier:

For the purposes of the Jersey law, are you recognised as "a religion"?

Clerk for Jersey Quakers:

Yes. We are recognised as a church I think, are we not?

Assistant Clerk for Jersey Quakers: Yes.

Clerk for Jersey Quakers: They do recognise us as a church.

Deputy M. Tadier :

Are you currently able to carry out marriages in the same way that the Church of England or the Catholic Church does?

Clerk for Jersey Quakers:

We have a registry officer and you can be married in the Quaker Meeting House. It is not very often that we hold marriages but yes you can be. At the most recent one that we had in the Quaker Meeting House, the registrar also attended as well as our Quaker registrar and there was a small part of it, just very small, slightly on the side, that was conducted and that part was the registrar.

Deputy M. Tadier : So ultimately a ...

Assistant Clerk for Jersey Quakers:

We used to have ... we would be an accepted case like the Jewish community were but when you changed the law to have marriages everywhere, you know, castles and things like that, they withdrew our special case.

Deputy M. Tadier : Really?

Assistant Clerk for Jersey Quakers:

Yes, and we were able to marry in the Quaker Meeting House but when you changed the law we have to have this civil ...

Deputy M. Tadier :

Okay, but the point is as things stand with the drafted law you would not be able to do the same with a civil partnership in your premises with a registrar, for example?

Clerk for Jersey Quakers:

Not if the law was drafted to prevent civil partnerships being held in a worshipful setting. What we have been doing in actual fact, I think it was 9 years prior to the U.K. (United Kingdom) Civil Partnerships Act, is we would celebrate same sex relationships in our Meeting House, well at least they did in the U.K., I do not think we have ever done one in Jersey, through what is called a Meeting for Commitment, which would be a Meeting for Worship where the couple could at their own time stand up and commit to one another, but of course it has not got any legal status.

[12:15]

But what we would like to see is, if civil partnerships come in in Jersey, if the Act is passed, then rather than have to have the civil partnership and then a secondary Meeting for Commitment, we would like to be able to hold it in the Quaker Meeting House.

Deputy M. Tadier :

Okay, I mean that is a voice which has not come out really officially yet. We have seen representatives, obviously the Dean of Jersey was here a moment ago and we had the Chief Minister in but it is interesting to know that there are denominations, if I can call you that, in Jersey, which would welcome the opportunity to perform civil partnerships legally in their own premises.

Clerk for Jersey Quakers:

Well, I would also stress ... I do not know if you have this, I sent it on to Mike. I think you might have it in front of you but Quakers, we would not just marry or create a civil partnership for anybody. We take marriage and civil partnerships very seriously; to us it is not just a civil contract. As I have said it is a religious act, and as with marriage, with civil partnerships only members of the Meeting or those who were not in formal membership, in sympathy with it, could be joined in a Quaker Meeting. I know that the churches just will not marry people who, if you like, walk in of the street but if both of you are not a member of the Quaker Meeting - this has gone on for hundreds of years - if one is a member and one is not as very often is the case then we would send a member round to talk to the couple concerned to make sure that they were in sympathy with our Quaker Witness.

Deputy M. Tadier :

Okay. That is reasonable. I think that is consistent with what would happen with marriage in most denominations anyway.

Clerk for Jersey Quakers: Yes.

Assistant Clerk for Jersey Quakers:

In England at the time of the Meeting, at the yearly Meeting, you know, all Quakers were be invited to come to discuss this particular issue and there were over 2,000 Quakers and it was put forward very well because they had different couples giving their opinion. There were 2 heterosexual old age pensioners who were getting married who said, you know: "We cannot have children, to say that marriage is just for the procreation of children does not come into it in our case", you know, so you cannot make that a provision for marriage. Then there was a couple of homosexual men who had adopted children who spoke to the fact what a marvellous thing they were bringing up children. We had a couple of lesbians who were saying that when they got married they had really missed being able to have the same service as any other couple getting married. They missed having it in the Meeting. Then we had a normal run-of-the mill man who had children so we had every aspect covered, and the Meeting for Worship was 2,000 people in silence, except for one person getting up to speak at any one time. It was very moving, and they really did feel that we wanted to treat everyone equally. If they were committed to a partner regardless of sex that they should be able to have a religious service in the Quaker Meeting House and it was passed.

Deputy M. Tadier :

One option is that well there is a provision in the law, which unfortunately from your perspective and from some of our perspectives, would mean that you cannot carry out civil partnerships and have them registered on your premises.

Clerk for Jersey Quakers: Why is that?

Deputy M. Tadier :

Just that is what is in it, so currently there is an Article, which prohibits a religious service to be used while a civil partnership registrar is officiating. So similarly, you can go down to the registry office and have your part but he would not be allowed to come to your premises while you were having the religious ceremony. Now, one idea, which we may favour, is just to remove that Article and that does not provide you with any obligation to perform a civil partnership, nor does it provide an obligation for any denomination to do that but at least it would give you the choice if you wanted to apply to perform these kind of ceremonies in your own place, you could do that. Would that be something you were ...?

Clerk for Jersey Quakers:

Yes, this would be very much like incorporating the United Kingdom Amendment 211, which they are planning to bring in this year, I think. Is that what you are trying to incorporate into the Act?

Deputy M. Tadier :

I think that is what we are looking at. I think the current proposal is to get the law in as is currently the case in the U.K., and which we understand because it is essentially copy and paste to all intents and purposes.

Clerk for Jersey Quakers: Yes.

Deputy M. Tadier :

I think the concern of the Scrutiny Panel is that while there is consultation going on in the U.K. at the moment, things are in flux, and rather than having a law, which is introduced which may then later be changed with the relevant expense, it may well be the case that we should just take this Article out, which would allow the flexibility for your denomination to retain its autonomy while not obliging other denominations to perform a ceremony that they do not want to.

Clerk for Jersey Quakers:

May I ask are there any other denominations who are prepared to have civil partnerships within their churches?

Deputy M. Tadier :

The Dean informed us that, for example, the Unitarian Church would be likely to carry out, was that the name of it? Yes, the Unitarian.

Deputy R.G. Le Hérissier:

Yes, which does not have a church over here.

Deputy M. Tadier :

And the Liberal Jewish community may.

Deputy R.G. Le Hérissier: And the Methodist Church.

Deputy M. Tadier :

And the Methodist Church would.

Deputy R.G. Le Hérissier:

But you have not made any representation, Frances, to the progenitors of this law?

Clerk for Jersey Quakers:

No, we have not. This is the first time we have actually been to see you at all.

Deputy R.G. Le Hérissier: Yes.

Deputy M. Tadier :

We will certainly convey those but it is up to you to decide whether you may want to contact the Chief Minister's Department directly, and we can certainly give you the contact details to convey your views.

Clerk for Jersey Quakers:

I would be grateful for that, yes.

Deputy M. Tadier :

Are there any other aspects, which would be useful to ...

Assistant Clerk for Jersey Quakers:

I know in England that a Quaker couple of heterosexuals have wanted a civil partnership and wondered why they cannot have one, and I notice that you are prohibiting that.

Deputy M. Tadier :

Well, I think it would be useful to get your view. It has been necessary, we heard from the Chief Minister, probably politically and socially, to distinguish civil partnerships from marriage. Of course that did not have to be the case, there were several options put forward for consideration but that was considered, I think, the most current of options, which has been adopted elsewhere.

Deputy R.G. Le Hérissier:

I think the view was it has been put to us and interestingly enough it has been partly, not because they approve of course, I suspect they are taking a pragmatic view of the situation, it has been put to us by the representatives of the Community Relations Trust that this is a very, very important step on the way but it is not the attainment of the journey, it is not the culmination of the journey.

Clerk for Jersey Quakers:

Well, the Quaker intention or policy, if you like, is that same sex couples eventually could share in the sacrament of marriage like heterosexual couples but I think at the moment if we can even get this step it would be marvellous, and then we can go on.

Deputy R.G. Le Hérissier:

Yes, and I think the issue was raised by the Deputy Chief Minister - who I noticed has been promoted to Chief Minister by Deputy Tadier , who I know is one of his admirers - and was adamant on the point that the 2 things, they were linked but separate. I have to say that we were all struggling with that but he was adamant on that point but I think the broader explanation is that there is a pragmatic view out there, I am not commenting on it right or wrong, that Jersey society will only take so much of this reform and this is as much as can be pushed at the moment. That seemed to be the view of some other parties.

Deputy M. Tadier :

I think part of the problem, and you may be able to say whether this is the case I think, is we are in a situation where we do not have any Civil Partnership Law at all so legally these relationships are not recognised. There is probably a reluctance from those who would want the law to go further, to speak out, because there is a fear that what we do have already needs to be achieved before we go that one step further.

Clerk for Jersey Quakers: I think that is very fair?

Deputy M. Tadier :

I think that is why we are mindful as politicians; we can voice the concerns, which maybe have been neutered up until this point.

Clerk for Jersey Quakers:

I think eventually it will end up as marriage because if heterosexual couples push for civil partnerships then you will get kind of 2 types of marriage, which is not right so eventually I think it may move to marriage but you know there has to be ...

Assistant Clerk for Jersey Quakers: If there were ...

Clerk for Jersey Quakers:

We all want everything immediately but if you are prepared to give it loving consideration and time then eventually you may find that it just happens because there is no reason for it not to happen but I do not know if it terribly matters if it does not happen next week.

Assistant Clerk for Jersey Quakers:

I know the way we approached this certainly in the Meeting is to have every area Meeting throughout Britain discussing it and getting used to it.

Deputy R.G. Le Hérissier: Yes.

Assistant Clerk for Jersey Quakers:

Seeing where marriage was born from, because I mean people used to jump over the broom and that was quite legal, and it was only when the church wanted to make a bit of money out of it that it became solemn. You know, if you look back into your theological history of marriage it is all a bit vague. The Dean did say it was a bit muddled well it certainly was, people got married just by saying they were married and jumping over a broom.

Deputy M. Tadier : That is true, yes.

Deputy R.G. Le Hérissier:

Okay, but it would have been, from a law drafting point of view, immensely easier to have simply said that the 2 are synonymous in other words because there are enormous, we have dealt with other witnesses on this issue, there are unbelievable complex changes that have to be made to a whole raft of laws because by not being able to use the word "marriage" as synonymous we have to add the words "civil partnership." Plus look at the gender consequences of Social Security, which was as we have been rightly reminded, a gender based law for example. Tax is still in large part gender based, a tax law at its base so it would have been so much easier but anyway that is not really relevant, I suppose.

Deputy M. Tadier :

We would need to look about maternity leave as well.

Deputy R.G. Le Hérissier:

Yes, I would imagine there is actually, with adoption for example. So, Jeremy, have you got any final questions you wish to pose?

Deputy J.M. Maçon:

No, I have nothing further to ask, thank you very much for coming.

Deputy R.G. Le Hérissier: Have you any?

Deputy M. Tadier :

I think just to clarify, so you would prefer that Article to be removed?

Clerk for Jersey Quakers:

Yes.

Deputy M. Tadier :

So that you could at least have the choices as to which ...

Deputy J.M. Maçon:

That is left to your discretion.

Clerk for Jersey Quakers:

We would be very happy with that.

Deputy R.G. Le Hérissier:

But would you be prepared ... sorry do you want to say something?

Clerk for Jersey Quakers:

No, I have forgotten what I was going to say.

Assistant Clerk for Jersey Quakers:

So, could that be part of this law? Let us hope it is a move forward to equality.

Deputy R.G. Le Hérissier:

But would you be prepared as a compromise position, the point I put to the Dean was, while there might not necessarily be approval for a religious element within a civil ceremony, it could be followed by a religious ceremony. Would you be prepared ...?

Assistant Clerk for Jersey Quakers: That is how we have our ...

Deputy R.G. Le Hérissier:

That is how you do it at the moment?

Clerk for Jersey Quakers:

Well, we have been doing these Meetings for Commitment and in actual fact after the ... well we were doing it before the 2005 Act but after the 2005 Act in the United Kingdom they continued to do them. It is still ... it is not really equal in that you have got to sort of nip down the road get married and come up and do your own thing but we live in a democracy and it is what people will accept but I really do wonder, if you put in it about places of worship, if the sky would fall in, you know?

Deputy R.G. Le Hérissier:

Yes. Okay, are there any final points you wish to make or things you may feel we have left out or not understood properly or whatever?

Assistant Clerk for Jersey Quakers:

From how I understand it is you are not allowing heterosexual commitment.

Deputy R.G. Le Hérissier: In a civil partnership.

Assistant Clerk for Jersey Quakers: In a civil partnership.

Deputy R.G. Le Hérissier:

Well, no sorry it is not us, it is what the law will ...

Deputy M. Tadier :

You raise an interesting ... that has been brought up and I think as Roy said the contradictions of having 2 separate laws, I mean on the one hand we could face possible discrimination challenges, although we do not have a discrimination law yet, first of all from same sex couples who want to get married in the church or have religious content; secondly that there could be challenges for heterosexual couples who want the civil partnership for whatever reason.

Assistant Clerk for Jersey Quakers:

I think it is really important that couples whatever their sex be allowed to have a religious ceremony if that is what they want.

Deputy R.G. Le Hérissier:

Okay, so good. On those grounds I would like to say thank you very, very much for attending and we can formally end the session.

[12:29]

Panel:

Deputy R.G. Le Hérissier of St. Saviour (Chairman) Deputy J.M. Maçon of St. Saviour

Deputy M. Tadier of St. Brelade

Witness:

The Deputy Chief Minister ( Deputy Chief Minister) Acting Assistant Chief Executive

In attendance

Mr. M. Haden (Scrutiny Officer)

[10:48]

Deputy R.G. Le Hérissier:

Well, I would like to thank you very much for coming. I will just draw to your attention, of course, the witness advice which I am sure you are familiar with but I would like to thank you for coming. Basically, our panel felt this was a fairly complex piece of legislation and it was probably important to look at the details and, as we discovered with other laws, because we do not have legislative scrutiny, Members often feel when they get a highly detailed law presented we end up sort of looking at the detail and sometimes because we have not the whole thing structured, we go off in different ways, wrong ways. So it will help the House deal with this and we will produce a little report and possibly, and it will become evident as this scrutiny proceeds, there might be some amendments, nothing of a substantive nature, but there might be but I cannot anticipate what the panel will decide. By the way, I must apologise for Deputy Pitman who has been taken away on urgent family business. So I will kick off with some general questions and I imagine because you will not address the religious issues, which we have other witnesses to do later in the morning per se we will not spend a disproportionate time on that. But I will ask the Deputy Chief Minister, Senator Ozouf , could you tell us whether you are happy with the way the law is structured, what issues or difficulties you anticipate with it, assuming it is going to be accepted by the States?

The Deputy Chief Minister:

Sure. Well, first of all very happy to be here and very pleased and grateful that you are spending some time doing the legislative scrutiny which, as you have rightly said, Chairman, does not often happen. I should start by saying that the Chief Minister would be here but, obviously, he is on his overseas trip. He is ultimately responsible for it but I am standing in for him today but you will also know that I have a particular interest in this issue, have been at the sort of political lobbying end of same-sex relationship status issues for some time and, obviously, I am very pleased that we are in a position - the Chief Minister and the Council of Ministers - we now have a law. Let us be clear that this is not a law which is enacting into Jersey legislation same-sex marriage. It may come and it will as society moves on in terms of its acceptance of its respect for different lifestyle choices. I have no doubt that this will be a debate that will be live for a period of time. As we know, civil partnerships have been in existence in the United Kingdom now for some years. It is a shame that it has taken so long for the States to have a law. It is very complex. It is not just simply changing one or 2 words in

a piece of legislation. It is a very, very substantial piece of work to ensure that the law works in terms of a statutory basis for civil partnerships but also all the attendant consequential amendments to other laws in order to give effect to a relationship which is akin to marriage but is not marriage.

Deputy M. Tadier :

Can I just come in there. If it is so that it is not marriage, what are the substantive differences between civil partnerships in real terms and marriage if they are not the same?

The Deputy Chief Minister:

I have before me one draft law and one law and I suppose it is convenient that I was responsible for the new Marriage and Civil Status (Jersey) Law which was enacted in 2001, brought into force in 2002 and, effectively, this Marriage and Civil Status (Jersey) Law sets out an arrangement between 2 people of opposite sexes and it allows their relationship to be recognised in the eyes of the State but also makes provision for that relationship to be solemnised and, indeed, recognised in the eyes of the leading religious organisations; the established churches, in other words, and the established faith communities.

Deputy M. Tadier :

Those are the only 2 differences, essentially? Of course, one necessary difference is that the gender of 2 couples will be the same sex and not opposite sexes.

The Deputy Chief Minister:

If you were doing same-sex marriage, you would be amending the Marriage and Civil Status (Jersey) Law and that is what you would be doing. We are not. We are creating, as other countries have done - particularly the United Kingdom - a relationship which is equivalent to marriage but is not marriage.

Deputy M. Tadier :

What we are essentially doing, would you agree, that rather than amending the Marriage Law we are copying and pasting the Marriage Law to the Civil Partnership Law and changing the word "spouse" to the word "civil partner" wherever that occurs? So the only substantive difference between the Marriage Law and the Civil Partnership Law is that at the moment we are saying it cannot take place and be solemnised in a religious location. That is, essentially, the only difference.

The Deputy Chief Minister:

Well, "only" is a small word with a great meaning and it is at the heart of the debate about same-sex relationships as to whether or not you accept the fact that marriage can be a status in the eyes of the State and in the eyes of the faith communities which is available to same-sex couples. That word "only" is pretty significant, of which there are ...

Deputy M. Tadier :

Let us not ... technically, that is the ... there is only one difference, is what I am saying.

The Deputy Chief Minister:

Well, technically, you would, I think ...

Deputy M. Tadier :

That difference is the fact that ...

The Deputy Chief Minister:

Technically it would be to underplay the huge significance of it.

Deputy M. Tadier :

Let us not get pedantic. I am just saying there is only one difference and that one difference is the fact that in the Civil Partnership Law, civil partners may not have their ceremony solemnised by a

religious individual or in a religious place.

The Deputy Chief Minister: Civil partnership is not marriage.

Deputy M. Tadier :

The reason it is not marriage is because of that one, single issue, is that case?

The Deputy Chief Minister:

Well, it is an important issue but the fact is marriage is available to ...

Deputy M. Tadier :

It is a simple question. I just want a yes or no.

The Deputy Chief Minister:

Yes, but you cannot answer it in a simple yes or no. I restate that the fact that the States has asked the Council of Ministers to bring forward legislation which is a relationship which is equivalent to marriage but it is not marriage.

Deputy M. Tadier :

The reason it is not marriage is because there is no religious element to it.

The Deputy Chief Minister:

I could not possibly begin to do justice to those arguments.

Deputy M. Tadier :

It is a simple question, Senator. It is not a trap. It is a simple question. Is that the only reason it is different? Otherwise we could have simply amended the Marriage Law, as you have said.

The Deputy Chief Minister:

I have made my position clear on that. If you were going to have same-sex marriage, you would be amending this law, you would not be presenting another law.

Deputy M. Tadier :

Scrutiny is here just to establish facts and it is very difficult ... it is a simple question and I do not know if the other 2 Members want to jump in but we need to progress this in a meaningful way, we need to establish what the facts are.

The Deputy Chief Minister:

I have established the facts and it is a relationship which is equivalent to marriage. It is not marriage. I cannot be clearer than that. That is exactly what the heart of the debate is. There is a difference between civil partnerships and marriage.

Deputy M. Tadier :

Okay, and reiterate that difference for us, if you could.

The Deputy Chief Minister:

You know exactly what the relationship of marriage is. A marriage is a relationship between 2 human beings of opposite sexes. A civil partnership is a relationship between same-sex couples and one of the amendments ... if you do not want to accept the fact that same-sex couples should have a relationship which is equivalent to marriage, then you would amend the Civil Partnership Law to allow human beings of different sex to have civil partnerships. Civil partnerships are for same-sex couples. Marriage is for human beings of a different sex.

Deputy M. Tadier :

I think we need to move on from that.

Deputy R.G. Le Hérissier:

Yes, I think we should move along now.

The Deputy Chief Minister:

It is 2 parallel but equivalent statuses.

Deputy M. Tadier :

It is fair to say, I think, that certainly you as an individual and, hopefully, the Council of Ministers would have borne in mind equality when it comes to civil partnerships. Let us take a ... if I wanted to engage ...

The Deputy Chief Minister:

Can I just stop you here for a second because there is an important premise that we have presented this law on and that is there is a legislative process in the Island which, when dealing with massively important bits of legislation, you seek the permission of the States to approve the principle and then you move to the legislative stage. You are opening up the debate, if I may say, which is an absolutely legitimate debate and a debate that will run for some time, that was appropriate to be debated at the first stage of the States consideration of this issue and the proposition which Tom Gales has, no doubt, a copy of it at hand, the instruction and the decision of the States was to put forward a relationship which was equivalent to marriage but was not marriage.

Deputy M. Tadier :

I think that is understood but, obviously, we are dealing with concepts here. I understand it is not marriage and that we established the reason it is not marriage is because we do not allow those who want to engage in civil partnership to have a civil partnership performed by a priest in a church. Now, perhaps it would be useful at this point ...

The Deputy Chief Minister:

That is a separate issue. There is the multi-sex issue and there is the religious issue.

Deputy M. Tadier :

Exactly. That is the issue we are dealing with at the moment. Could you give some background ... for example, if I wanted to engage in a civil partnership and I also attend church regularly, for example, if I am a Quaker, and Quaker minister is ... I do not think they have ministers but the Quaker religious leader would say: "I am happy to perform this," why is it that Quaker would be able to perform a marriage but he would not be able to form a civil partnership in that property?

The Deputy Chief Minister:

We have moved on. We have moved on to deal with ... we are dealing, I think, in this session, which is very important, with 2 separate issues.

[11:00]

We are dealing with marriage and civil partnerships and the parallel relationship of those things. Now, if we have moved on from that issue we can then go on to talk about the religious aspects or otherwise of civil partnerships but it is a separate issue. The first thing that would be important to say is that the coalition in the U.K. (United Kingdom) are now consulting on the issue of whether or not to extend civil partnerships to religious premises and there is a consultation that is underway. I am sure the Panel has looked at it. It is interesting. I have spent a little bit of time looking at it and there is going to be ... we are presenting, as was originally envisaged, a Civil Partnership Law which does not permit and does not have the opt-in of having the ability to perform a civil partnership in a religious place of worship. Now, interestingly, you have raised the issue of Quakers because while we have not been able to definitively confirm this this morning, I am advised that in the United Kingdom the places of worship for Quakers are not approved premises for the purposes for civil marriages in the United Kingdom. So the same issue arises in relation to Quakers.

Deputy M. Tadier :

But that is being slightly pedantic. The point is, and let us take it back one step, I think. You have already highlighted the fact that we have deliberately put provision in our law which says that these civil partnerships cannot take place in a religious place. Now, the law could equally exist if that Article, which is 3(5) and there is a subsequent provision in Article 14, the law would still stand if that Article was not there. It would not oblige churches or religious individuals to perform civil partnerships in their churches. It would simply be permissive rather than proscriptive. What I would like to ask of the Chief Minister's Department is; what was the rationale for that provision to be put in there rather than for it to be omitted?

The Deputy Chief Minister:

Principally, as is set out in the drafting brief, the fundamental principles of the Civil Partnership Law was to provide a registration in the eyes of the State and that that is the purpose. It is a secular arrangement. It is a secular issue in the eyes of the State.

Deputy M. Tadier :

Okay, we will stop that there. But in the eyes of the State currently, a heterosexual is ... the equivalent institution that exists for heterosexuals - because, remember, they cannot have civil partnerships - is possibly capable of being taken by a religious entity and we are not affording that same possibility to civil partnerships.

The Deputy Chief Minister:

No, we are not and that is why would be ...

Deputy M. Tadier : So why is that?

The Deputy Chief Minister:

Because the proposal was to bring forward civil partnerships on the same basis as civil partnerships were brought in in the United Kingdom. I am not ...

Deputy M. Tadier : Well, that is the first flaw.

The Deputy Chief Minister:

It is not a flaw, Deputy . It is the basis on which it was brought forward. Now, you are perfectly entitled and, indeed, it is part of the political process for amendments to be considered and I suspect that you are going to lodge an amendment abolishing Article 34(5) and let us have that debate.

Deputy M. Tadier :

That will depend on the evidence of the panel. Clearly we are evidence based.

The Deputy Chief Minister: That is fine.

Deputy M. Tadier :

But I still do not see where ... what I and the panel, I think, are getting at; we do not see what the value is of having this Article in here. If anything, it causes problems. It means that we are telling churches what they can and cannot do. We are saying churches cannot perform a civil partnership in their premises if they so desire whereas when it comes to marriage which is the equivalent institution for heterosexuals, there is not that provision. In fact, it is the opposite because it used to be the case, did it not, Senator, that religious individuals could not be registrars for marriage but now it is a case

they can.

The Deputy Chief Minister:

There is a difference between the people that can perform the marriage and the place in which it is conducted in the Article ... the paragraph that you are referring to is the place in which it can be done. This is a serious issue on which there needs to be a serious debate and to reflect the magnitude of this issue. It is not a casual issue. It is not something that is a small issue. The proposal in the United Kingdom to remove, and it is just a proposal, it is a consultation to remove the Article that you have raised, is the subject of a detailed 92-page consultation. So it is not a minor issue. It is a fundamental issue.

Deputy M. Tadier :

But that is because they have this clause. Surely, if we did not have this clause in the first place we would not have to have a costly and length consultation period and then followed by costly law- drafting time, at a time when you are trying to save significant amounts of money for the taxpayer.

The Deputy Chief Minister:

I do not think that is fair. It would be wrong to almost slip in a Civil Partnerships Law without the provision and the separate distinction between what can be celebrated in terms of a civil partnership and where it can be celebrated. I may well agree with you that, ultimately, civil partnerships ought to be able to be performed on religious premises but I think it would be wrong not to go through a proper process of discussion with faith communities and with the Island about this issue and with the gay and lesbian groups. It is not a casual issue. It is a really important issue ...

Deputy M. Tadier : Can I just ask 2 more ...

Deputy R.G. Le Hérissier: Ask 2 and then we will jump in.

Deputy M. Tadier :

The first one is, I think, first of all why are you opposed to giving the same-sex couples the same choice that heterosexual couples have about having a religious aspect to their ceremony. The second question is; where is this opposition? Where is the opposition coming from? Who is saying we do not want our churches to be able to decide what we can and cannot do in our own premises?

The Deputy Chief Minister:

First of all, it is not an issue as I am advised for Quakers because Quakers, according to their own tradition and the rules within Quakers, they will be able to perform civil partnerships and, indeed, civil marriages in the way that they currently do. That is their choice.

Deputy M. Tadier :

They will not be able to perform civil partnerships.

The Deputy Chief Minister:

No. Sorry, they will be able to conduct the same service or whatever Quakers ... I am afraid I have not been to a Quaker celebration so I do not know but they will be treating marriage and civil partnerships on the same basis because they do not register their premises. Now, there is a debate to be had with the established churches as to whether or not they want to have the ability to opt in. This law is not attempting to enter into the debate about marriage in the eyes of the church. It is - as I repeated earlier and you will be sick of me repeating it - a relationship which is equivalent to marriage in the eyes of the State and that is what this law is about. If you are going to change it, if you are going to make a step, if you were going to move eventually to a situation where you would allow same-sex marriages, then removing that which is a discrimination, I accept that, you would remove that and you would eventually move to mirror and introduce the concept of same-sex couples being able to enter into a civil marriage. Those are the steps that you would evolve. I note with interest that while France has the equivalent of a civil partnership, the French Parliament voted down the Bill presented yesterday in the French Parliament to legalise ... to do the same-sex marriage issue. This is a live debate which is not going to go away and is going to evolve over time.

Deputy R.G. Le Hérissier:

I wonder if I can jump in, and just pursuing this; how extensively were you lobbied over this particular provision? Or the Chief Minister's Office or the legislative committee? How extensively were they lobbied?

The Deputy Chief Minister: On what particular issue?

Deputy R.G. Le Hérissier:

On the issue of sanctifying the relationship within a religious premises?

The Deputy Chief Minister:

Tom, I do not know if you could help?

Acting Assistant Chief Executive: One.

Deputy R.G. Le Hérissier: One?

Deputy M. Tadier :

So you had one protest, so the reason that we are keeping this ...

Deputy R.G. Le Hérissier: One church or one person?

Acting Assistant Chief Executive:

No, that was your ... we have had no representations.

Deputy M. Tadier :

So we put this provision in the law which takes away the autonomy of churches ...

The Deputy Chief Minister: No, Deputy . That is not right.

Deputy M. Tadier :

... and that there was no representation from them, is that what was being said?

The Deputy Chief Minister: No. No, that is not right.

Deputy M. Tadier : Okay.

The Deputy Chief Minister:

We have been very clear from the start that the legislation would be presented to the Assembly on the basis that it is purely a secular arrangement.

Deputy M. Tadier :

Exactly. On what was that position predicated?

The Deputy Chief Minister:

It was predicated on the consultation that was originally carried out and the States has made a decision and it would be against a States decision, it would be against the instruction I think the Council of Ministers has been under to present a law which is a Civil Partnership Law, which is not something which is moving and a step forward in terms of a move towards same-sex marriage as opposed to civil partnership being an equivalent of same-sex marriage.

Deputy M. Tadier :

Why do we always talk about moving civil partnerships towards marriage as if marriage is some kind of ultimate goal? It could well be that marriage moves down to civil partnership status.

The Deputy Chief Minister:

If you want to wreck the relationship which is akin to marriage then you would allow multi-sex civil partnerships. That is what ...

Deputy M. Tadier :

Wreck the relationship which is akin to marriage?

The Deputy Chief Minister:

You will know this better than I do; in the U.K., the attempts to undermine the status of the Civil Partnership Law were that you allow it to be available to multi-sex couples. That is what all of the gay and lesbian lobby groups were fearful of, and I understand their fear, is that you effectively create a civil partnership which is available to multi-sex couples because then you are genuinely saying that you have marriage, civil marriage here, and you have this other thing called civil partnerships which, by the way, heterosexual couples can opt whether or not they are going to go for the civil partnership route or the marriage route. You want to create the equivalent of civil partnerships on the equivalent of marriage, then you will preserve one for same-sex couples and one for heterosexual couples. It is an important issue.

Deputy M. Tadier :

I have been researching this perhaps as much as you have, although maybe not. But if I read a quote to you and I would like you to comment on it. It is from a Professor Robert Landel, who is at Harvard University and he gave lectures on new morality. He said that: "The debate over same-sex partnerships is fundamentally a debate about whether gay and lesbian unions are worthy of the same honour and recognition that in our society State-sanctioned marriage confers." Do you agree ultimately with that? The debate about same-sex unions is about whether or not we acknowledge that gay and lesbian relationships are worthy of the same honour that we bestow to heterosexual relationships.

The Deputy Chief Minister:

You quoted that individual in your remarks in the original States and from those remarks it is clear that you believe, and I understand and respect your view, that marriage should be available to same- sex couples and multi-sex couples.

Deputy M. Tadier :

No. No, the question is ... we are not here to look at my views. The question I asked of the Chief Minister's Department is; do you agree - and again it is a simple yes or no answer - that gay and lesbian unions are worthy of the same honour and recognition of heterosexual relationships, heterosexual unions?

The Deputy Chief Minister:

Yes, and that is why I am representing to you that the best way to achieve that is to afford same-sex couples a relationship which in the eyes of the State is identical to civil marriage. In the eyes of the State. That is what all of the consequential ... that is why this is, unfortunately ...

Deputy M. Tadier :

But it is not because we have afforded religious ... sorry, to interrupt but ...

The Deputy Chief Minister: I said in the eyes of the State.

Deputy M. Tadier :

In the eyes of the State but the State has then conferred the ability for a religious leader to perform marriage for the State so we have outsourced marriage to churches to be performed by the State but we will not afford that same privilege to civil partnerships.

The Deputy Chief Minister:

I would stop short of saying ... I am not here and I am not going to judge or make observations about religious recognition of same-sex relationships. I am here in a secular capacity, requested to make representations of a relationship in the eyes of the State. There is a debate internationally about the move on in terms of allowing same-sex marriages. That is going to continue.

[11:15]

This is in the eyes of the State, the equivalent recognition. You use the word "honour" et cetera and I understand those words. Same-sex couples will receive that recognition with the passing of a Civil Partnership Bill which is exclusively for same-sex couples.

Deputy M. Tadier :

I think that is understood.

Deputy R.G. Le Hérissier:

Okay. Yes. Not that we will draw a line under it but I think we will move on to other areas of questioning because clearly there is a difference of approach. Going from the broad issues to the more technical issues, there is a massive list of laws which are going to be amended as a result of this and we have had concerns raised about the Housing Law. We obviously know the never-ending saga of the Inheritance Law and the fact that for good and for bad there has not been revolutionary or radical change to Jersey Inheritance Law. So, essentially, you will inherit the legal system. Any issues that you can think about that have arisen that will continue to pose problems even if this law were to be implemented?

Acting Assistant Chief Executive:

There will always be issues with such a complex piece of legislation. It is the consequential amendments, as you say, that are the issue but I should explain that the law you have there is the primary legislation that needs to be changed. There will have to be subordinate legislation changes between now and when the law comes into place to bring everything into effect, one being housing regulations. That has been raised as an issue but we do not see it as an issue because the housing regulations will be changed. It is only subordinate legislation to give full effect to civil partnerships in the housing regulations.

Deputy R.G. Le Hérissier:

Can you just briefly tell us what is the issue that has been brought to you about housing?

Acting Assistant Chief Executive:

It is just the fact that some lawyers have noted that the housing regulations at the moment, there is no mention of housing in the existing Civil Partnership Law. It needs ... if you like, it was seen as an omission but it is not. It is in the back of our train for the law draftsmen to change. So, yes, the housing regulations will be changed before the law is implemented.

The Deputy Chief Minister:

That is obviously regulations as opposed to statute. So, obviously, the law needs to be passed and then the Privy Council approval?

Acting Assistant Chief Executive:

While these are away at Privy Council a lot more drafting needs to go on.

Deputy R.G. Le Hérissier:

What other areas pose, in your view, problems or issues or challenges?

Acting Assistant Chief Executive:

Difficult to say the issues. The issues are legalistic. I can say the actual volumes are small but there has been some disquiet, if you like, about the extent of the changes you would have to do for income tax, for instance. Income tax is quite a complicated piece of law. If I may say, it is gender specific so making civil partnership match that caused us a few problems. That was done but to give it full effect you have to change forms and procedures to give proper rights to people. Similarly with social security. So there are issues around the one-off costs of changing the forms and procedures.

Deputy R.G. Le Hérissier:

But on income tax, you made a very good point, Tom, that it is gender specific. What solution have you come up with to make it compatible with this law?

Acting Assistant Chief Executive:

Basically, to give civil partners a right to choose Partner A and Partner B because there are differences in allowances between male and female and they have the right to choose which one is which and that gives full effect to the same rights as a married couple. They have the choice to say which one becomes the premier earner, if you like, in the household.

The Deputy Chief Minister:

But that would not result in a same-sex couple being at any disadvantage to a heterosexual couple because, effectively, you can, you know, in a modern world you have an earning working mum and a house father and vice versa in the same way that you have that in relation to civil partnership. So the effect of it, while it is a bit tricky because the legislation did not originally envisage single sex, in fact, the end result is going to be that we will have achieved the equivalent. It has been a little difficult. As Minister for Treasury and Resources you would probably like to move to a single assessment but that is a ... because we can deal with a whole raft of other issues in relation to the interaction between social security and income tax but we are working on that as well.

Acting Assistant Chief Executive:

I think social security is slightly different. Back in 2001 the laws were changed to make it less gender-specific, if you like. It will be individual-based so the problems they have with Survivors' Benefit in the U.K., did not materialise as much although there is an amendment for the Survivors' Benefit in the air.

Deputy R.G. Le Hérissier:

What about an issue which has probably more resonance in terms of people who are not necessarily supporters, or natural supporters, should we say, of this law? What about the Adoption Law? How have you dealt with that? Any changes?

Acting Assistant Chief Executive:

There are changes in the Adoption Law to make it explicit, if you like, that you can adopt as a civil partnership. It happens now. That is purely because the Adoption Law does not explicitly exclude it. So it happens now. So basically the new changes to the Adoption Law are just to clarify that position.

Deputy J.M. Maçon:

Yes, just going back briefly, you talked about the different forms and procedures that will have to go forward and a lot of laws are going to have to be changed and subsequently a lot of advice is going to have to be given. What factoring has been made into the training of staff on the new procedures and advice and things, and information packs and things like that which will need to be produced?

Acting Assistant Chief Executive:

Fortunately, that will be left to the departments to do. The principal ones are Social Security and Tax and I know they have already those in hand. Other departments have to look at their literature, their advice, particularly at Health with the Adoption Law. It is not for me to guide them in any way but we are advising them if they want any help about what the interpretation of the law is and whatever, we can do that.

Deputy J.M. Maçon:

So that has been flagged up with the departments?

Deputy M. Tadier :

Is the department expecting any opposition to any of these amendments, for example, the Adoption Law?

Acting Assistant Chief Executive: Not heard of any.

The Deputy Chief Minister:

It has been discussed at the Council of Ministers and all Ministers have had to sign off their own legislation and while there is obviously a difference in view of one Minister who has made his position quite clear, I think that all Ministers have signed off their own legislation.

Deputy R.G. Le Hérissier:

Obviously, back to the list of legislation there was one overarching piece which despite the very brief reference made to it, we know is of enormous importance in this context, that is the Human Rights Convention. We know this game that is played in the States that we are not allowed to look at the detail of the advice you have received but quite clearly it must be very important in this context. So can you tell us what areas you have been looking at to make sure that this statement stands up to scrutiny?

Acting Assistant Chief Executive:

Obviously, we have been advised by the Law Officers but there are also various public documents including the consultation with the U.K., and going back to the concept of the difference between marriage, heterosexual and marriage for homosexual couples. That was clearly not a breach to have that marriage for heterosexual and civil partnership for same-sex partnership is not a breach of the Human Rights. That has been proved by a case in Austria.

The Deputy Chief Minister:

It is worth just probably repeating this lest there be any lack of confidence which I do not have in terms of our Law Officer advice, the Chief Minister has signed a declaration on the convention saying that it is human rights compliant and that seems to also ...

Acting Assistant Chief Executive: U.K. advice as well.

Deputy R.G. Le Hérissier:

Did that advice, Deputy Chief Minister, deal with the points ... I do not wish to open the former debate again. Did it deal with the points that Deputy Tadier raised of is a civil partnership a real marriage? Because to his mind, obviously, it ...

The Deputy Chief Minister:

It is worth saying that in the recent case of Schalk and Kopf v Austria, against the European Convention on Human Rights found that marriage only for opposite sex couples and civil partnerships only for same-sex couples did not breach Article 8, the right to private and family life; Article 12, the right to marry; and Article 14, the prohibition of discrimination in the rights granted by the E.C.H.R. (European Convention on Human Rights). It also found that it is for national law to determine whether or not to permit same-sex marriage. So that is a fairly definitive statement. That is the U.K.'s position. Obviously, as a jurisdiction that are signing up to the European Convention of Human Rights and that is, obviously, relating to the Austrian case.

Deputy R.G. Le Hérissier:

That was an incredible opt out that you identified at the end, it is up to each national state as to whether it wishes to proceed.

Deputy M. Tadier :

But they are obliged to provide civil partnerships, presumably.

The Deputy Chief Minister: Pardon?

Deputy M. Tadier :

But they are still obliged to provide civil partnerships, are they?

The Deputy Chief Minister:

Not all, I do not think every single European Union country is now enacted. But it is, clearly ...

Deputy M. Tadier :

But they would be under pressure to.

The Deputy Chief Minister:

Well, I mean, quite apart from the legal Human Rights compliance issue they are national ... interestingly, which I did not know, is that apparently in France a January poll published by Canal Plus found that 58 respondents in France believes that gays should be able to marry up from 45 per cent 5 years ago. Now, there is clearly an evolution of public opinion on this issue.

Deputy M. Tadier :

Taking it one step back because I appreciate now we have had ...

The Deputy Chief Minister:

So it is human rights compliant. We think there is a very ... a certificate has been signed on advice and that also then ... there is evidence from other jurisdictions.

Deputy R.G. Le Hérissier: You saw the advice, did you?

The Deputy Chief Minister:

The Chief Minister signed it. I did not.

Deputy R.G. Le Hérissier: He saw it? Yes.

Deputy M. Tadier :

Part of the problem, taking it one step back, it has been acknowledged the fact that certainly there is no obligation for any E.U. (European Union) country to provide marriage for same-sex couples, as soon as we say there is difference and that civil partnership is not marriage and vice versa, then it would presumably seem okay if we say: "Well, there are significant differences in entitlement between civil partnerships and marriages." Now, clearly, from a pragmatic point of view we try and make them as fair and as equal as possible. Would there be anything to stop, for example, the entitlement under one from being vastly different to the other?

The Deputy Chief Minister:

There is no point in dancing around this issue. You believe, it is clear from your observations which are absolutely clear from the original debate, that you believe in same-sex marriage and that is a fine, legitimate issue.

Deputy M. Tadier :

I am not bringing that ... that is not the point I am making. I am trying to take a step back and saying that given that the 2 are not the same, to what extent would it be possible to say: "Not only are we not going to allow civil partnerships to take place in churches but we are also going to say that civil partnerships are not entitled to other things which married couples are"?

The Deputy Chief Minister: But we are not saying that.

Deputy M. Tadier : But we could though.

The Deputy Chief Minister:

But we are not and we do not want to. We want to give the civil partnership the status, in the eyes of the State, in the eyes of the States of Jersey, the exact entitlement that the civil marriage has.

Deputy M. Tadier :

Is it fair to say that there has had to have been some very clever thinking with regard to tactics because we know that we have a diverse States membership? If I can give you an example, one of my neighbours would not have supported this law if they thought it was marriage. The Minister for Home Affairs did not support this law because he did think it was marriage. I had reservations about supporting this law because I did not think it goes far enough because I know it is not marriage. So we are having to balance all these issues. We know it is marriage, essentially, do we not? We know to all intents and purposes this is marriage but we cannot call it marriage because we live in a society where marriage is reserved for where it has religious connotations. Is that a ... you cannot voice that necessarily ...

The Deputy Chief Minister:

We could spend hours discussing this. The definition of marriage ...

Deputy R.G. Le Hérissier:

So your question is, does the Minister agree with your observations?

The Deputy Chief Minister: No.

Deputy M. Tadier :

Is that a valid ... was that considered ...

The Deputy Chief Minister:

No. I mean, I understand what the Deputy is saying and I will agree with him in relation to some of his views.

Deputy M. Tadier :

That could mean anything.

The Deputy Chief Minister:

Okay, some things. But let us be clear, the definition of marriage in the eyes of the States of Jersey is the stated relationship between husband of wife, the institution of marriage, the contract made by man and a woman to live as husband and wife. That is what marriage is.

Deputy M. Tadier : Okay.

Deputy R.G. Le Hérissier:

Okay. I wonder ... we are in the last few minutes and why I appreciate my colleague has brought up some very interesting philosophical issues, the rest of the panel is struggling with the more mundane practical issues, I am afraid.

Acting Assistant Chief Executive:

Sorry, can I just phase back to the human rights aspect? Obviously, human rights aspects change as time goes on so we have a watching brief, if you like, to watch what is going on in the European courts and in the U.K., particularly with things like ... I do not know if you know the case about the Burden sisters? They wanted to form a civil partnership to get around the Inheritance Act. So we look at things like that and that is a case that is ...

Deputy R.G. Le Hérissier:

Maybe you could very quickly ... you have laid yourself open to a question. Could you identify what the major H.R. (Human Rights) changes have been since the passage of the in principle to the point we are now at?

Acting Assistant Chief Executive:

I could tell you that the Burden case has been looked at. There is this Schalk and Kopf case was one that came up. There are still appeals outstanding on some of the cases.

Deputy R.G. Le Hérissier:

How was the Burden case seen as trying to evade obligations?

Acting Assistant Chief Executive:

Well, it is basically 2 sisters coming together who are looking at trying to pass assets on and that is one of the issues that came up with intergenerational relationships.

[11:30]

Deputy M. Tadier :

That could not happen in Jersey, could it? Because we have provision to stop relatives having civil partnerships, presumably.

The Deputy Chief Minister: Well, 2 sisters cannot get married.

Deputy M. Tadier :

No. But this is not marriage, Senator. This is civil partnership.

Deputy R.G. Le Hérissier:

No, I cannot go down there again.

Deputy M. Tadier :

Two sisters cannot get married.

Deputy R.G. Le Hérissier:

Is that your review of the H.R. issues?

Acting Assistant Chief Executive:

Yes. There are also questions around prescribed relationships, again with siblings and things like that. They were in ...

Deputy M. Tadier :

Two brothers cannot enter into a civil partnership.

Deputy R.G. Le Hérissier:

The new H.R. in this statement reflects these new developments?

Acting Assistant Chief Executive: Yes.

Deputy R.G. Le Hérissier:

Even though we are not permitted to ever look at these statements?

Acting Assistant Chief Executive: 2011.

Deputy R.G. Le Hérissier:

Okay. Very  quickly  we  have  to  wrap  up. I  am  going  to  ask   Deputy  Maçon,  who  has  been enormously patient.

Deputy J.M. Maçon:

Just very briefly, you highlighted that ongoing regulations have to be changed. Can you just indicate what else will have done? You indicated the housing regulations rules have to change but what else?

Acting Assistant Chief Executive:

Most of the laws have subordinate legislation that qualify the primary legislation. Social security, for instance, we will have to change some of their orders and claiming provision orders will have to change. I am just trying to think of other subordinate legislation. But as I said there are ... it will have to go to the States.

The Deputy Chief Minister:

We have a list of ... I do not know whether the panel has seen the Council of Ministers paper on all of them, the massive list of consequential legislation?

Acting Assistant Chief Executive:

That was in the original proposition. That is primary legislation.

The Deputy Chief Minister:

Okay, but the thing that the Council of Ministers saw in relation to all of the individual ministerial legislation, it is all in there.

Acting Assistant Chief Executive: That is primary.

The Deputy Chief Minister:

All right. Primary, so that is all subordinate ...

Acting Assistant Chief Executive:

We can try and liaise with the Law Draftsmen because he has, obviously, this in hand.

Deputy J.M. Maçon:

I think it would be good to give Members an idea of what else will happen.

Deputy R.G. Le Hérissier:

Yes, it would be good to see the complexity ...

Acting Assistant Chief Executive:

There is the issue that we have not covered but I think you have one of the Law Officers attending upon you to talk about inheritance.

Deputy R.G. Le Hérissier:

Yes, we have had that discussion.

Acting Assistant Chief Executive:

You have had that? We have had to do away with the concept of widow and widower in terms of the fiduciary right and ... it was completely wrong.

Deputy R.G. Le Hérissier: Okay. Anything else?

Deputy M. Tadier :

No, I think that is fine. Should I thank these individuals for coming in? Thanks for coming in. We appreciate it is a very complex law, as well.

Deputy R.G. Le Hérissier:

Have they any wrap-up comments?

The Deputy Chief Minister:

I welcome the fact that there are going to be some amendments on the details. It is healthy thing to have.

Deputy R.G. Le Hérissier: There may be.

The Deputy Chief Minister:

There may be. There may well be. I think they are expected. All the amendments to improve the legislation, to deal with any issues of making sure that it is equivalent to marriage are fine. No doubt there will be further considerations by the States about the issue of marriage and making that available at some point after an original in-principle proposition to allow that for same-sex couples. But what we should not do, and I know I have said it about 10 times, but I do not think we should be trying to legislate for same-sex marriage by the use of the Civil Partnership Law. I think that is quite an important principle that we would hold on to.

Deputy R.G. Le Hérissier:

Anything else? Okay. Thank you both very much indeed for coming.

[11:33]

Review of Issues Surrounding Review of Financial Management of Operation Rectangle

THURSDAY, 25th AUGUST 2011

Note: The witness has not corrected the transcript

Panel:

Deputy R.G. Le Hérissier of St. Saviour : Deputy T.M. Pitman of St. Helier (Chairman) Deputy D.J.A. Wimberley of St. Mary

Witnesses:

Chief Officer for Home Affairs

In attendance: Scrutiny Officer

[11:41]

Deputy T.M. Pitman:

When you look back now, Chief Officer, what do you think about the Finances (Jersey) Law 2005 and its impact on everything?

Chief Officer for Home Affairs:

Before I answer that, can I say something else?

Deputy T.M. Pitman: Of course you can.

Chief Officer for Home Affairs:

A lot of the questions which I think you might have and a lot of the ground that I want to cover today arise out of [retired Chief Officer of Police]'s last transcript. If it helps for good order it might help to turn the pages on that transcript at some point, but you are in charge. Because a lot of the documents I have produced, which are evidential, refer to the things that he has said, or he has raised. So, that would be a way of proceeding which I think would be an organised way. I will come back to your question.

Deputy T.M. Pitman:

I should say we got some of this information in very late, which is not our fault, or probably your fault.

Deputy R.G. Le Hérissier:

I have not read your memo about the evidence of [retired Chief Officer of Police].

Deputy T.M. Pitman:

That is fine. If we get back to the Jersey Finance Law and its impact on how we got where we are today.

Chief Officer for Home Affairs:

Well, in many ways I think it is a side issue because ever since 2005 we have had to run the departmental accounts in accordance with the Finance Law. It is something we do every day and in many ways the fact that there was a major investigation which spent £7.6 million should not have made a lot of difference because we run and manage the accounts in accordance with the law every day. All we are talking about here is the number of transactions and the quantum, from my point of view. The other issue, I think, which is why we are here is whether the resources were used properly and that is where I think I then depart from my job and I would expect to look to the head of whatever service it is to see that those resources are used properly.

The Deputy of St. Mary :

Can I come back on that? To repeat the question really, what do you think now about the Finances (Jersey) Law 2005 and how it impacts on Home Affairs and, say, to Jersey Police? What do you think now about that law? What is your view of it?

Chief Officer for Home Affairs:

Well, it is such a broad question. It is unspecific.

The Deputy of St. Mary :

All right. Do you think that that law should be changed so that the Chief Officer of Police is an accounting officer?

Chief Officer for Home Affairs: Well, that is a specific question.

Deputy T.M. Pitman:

I gave you lots of leeway. Be fair.

[11:45]

Chief Officer for Home Affairs:

Yes. I now think the Chief of Police should be an accounting officer. I did not. [retired Chief Officer of Police] is quite right in that part of his transcript of what he said, that when we were setting up the arrangements for the move to ministerial government we had a difference of opinion. I thought that we could run things as they are now. I will tell you why if you like before that. I think with the benefit of hindsight when you have a major inquiry like this whatever weaknesses there are, and Mr. Warcup described them as systemic, whatever weaknesses there are show through and where you have a service that is entirely its own master, except that it clearly reports at the moment to the Minister and does not report to me, then there will be a tension set up at times like this and it would be far better in hindsight if the Chief of Police was an accounting officer. Do you want to know why I thought otherwise?

Deputy T.M. Pitman: Yes.

Chief Officer for Home Affairs:

[retired Chief Officer of Police] arrived in November 2000. Coincidentally I was appointed director of the Home Affairs Department in November 2000 as well but I have been on secondment since that February to set up the department; it was a new department. One of the first things I did after we were both in post, and I remember it well, I went to see [retired Chief Officer of Police] because one thing I had to do setting up a department was to bring together those functions of it which were generic to the whole department; in other words they serve the prison, the fire service, into one place because it is just a sensible and efficient way of running things. The 2 entities that that referred to were Finance and Human Resources. At that time the police had a finance and administration manager and other finance staff, so I went to discuss with [retired Chief Officer of Police] whether

he would agree to those staff coming with me to the Central Home Affairs Department and running it from there. His actual words were: "I have no problem with that provided there is no degradation in service." That is what he said and we agreed. So, the point I am making is that for 5 years before ministerial government and for 3 years since we have run the Home Affairs financial management and accountability without any problem.

The Deputy of St. Mary :

Can I just clarify that? My recollection of [retired Chief Officer of Police]'s evidence, and I am not absolutely sure, I have it here but I will not read it all to check, but I am pretty sure he said that from the outset when he came to Jersey he felt that he had to have accounting authority as well as operational authority and that was on the table from the word go. So, I just wanted to clarify that your recollection and his recollection seem to be different.

Chief Officer for Home Affairs:

Well, I stand by what I have said. The fact is he had a very good service from the 3 accountants that make up the House Affairs Finance Department throughout the time that he was in Jersey and he acknowledges that in a lot of the papers. The fact that they are sitting with me and not down at Police Headquarters is immaterial. One of the finance managers goes to the force management board meetings, provides all the updates and this is why I say, in answer to the first question, in a sense it does not matter because we have had to abide by those regulations and the law for the last 3 or 4 years and we were operating successfully for 5 years before it.

Deputy T.M. Pitman:

If I could ask one related question and then I will let my colleagues step in. Something very surprising the Minister just said to us was that according to him the offer was made to [retired Chief Officer of Police] to effectively take on the role of accounting officer. Now, as I understand it, and I am not an expert, that could have had no legitimacy under the law, so surely that could not work because where would he stand if a problem came up, as of course it did, and disciplinary issues followed. How could that offer have really been made? How could that have worked? I do not understand.

The Deputy of St. Mary :

Can I rephrase that as well, was the offer made, or was the Minister's recollection wrong?

Chief Officer for Home Affairs:

Well, not by me it was not, but with the current Chief of Police we have already discussed it and we are planning to move to a system of 2 accounting officers from January.

Deputy T.M. Pitman:

But if the offer was not made by you, who could it have been made by?

Chief Officer for Home Affairs:

Well, the Treasurer has a role. Various people have opinions and can be influential. If the Treasurer, for example, thinks it is best practice, or if the Comptroller and Auditor General wanted to insist then they would make that point, but nobody has pushed it to the point where it has to happen.

Deputy T.M. Pitman:

But you would have known if that offer had been made, surely?

Chief Officer for Home Affairs:

Yes, I would. Yes. There has been another driver of course. We have been waiting to get police authority up and running, or established in law, and I would say for a long time the most logical time for the Chief of Police to become an accounting officer is when we move to a police authority system. I now think: "Well, let us not wait for that; we will do it in advance of that."

Deputy T.M. Pitman:

But for the record, you are completely unaware that offer was ever made, from what you said.

Chief Officer for Home Affairs:

An offer made to [retired Chief Officer of Police] to become a ...

Deputy T.M. Pitman: Yes.

Chief Officer for Home Affairs:

I think so, yes. Nothing stands out in my mind. I hesitate because it is difficult to remember.

Deputy T.M. Pitman:

It is quite a big issue though, you would think it would stand out if it had been put to you. What do you think? It impacts on your power so you would think you would recall it, would you not?

Chief Officer for Home Affairs:

It is probably true that it has been discussed but it has never been formally. I think that is the way to say it. Nothing has ever formally been put to me that somebody has written to me and said: "We want to make the Chief of Police an accounting officer, please can you submit your reaction to that" or whatever. No.

Deputy T.M. Pitman: Okay.

The Deputy of St. Mary :

Okay. Well, thank you for that and maybe we can pursue it through the office. I want to ask about this business of the relationship between Home Affairs and the police in terms of oversight of the inquiry, which is why we asked the first questions around what you thought about the Finance Law. I am referring to [retired Chief Officer of Police]'s evidence to us on his page 12. He says: "When it became clear that Rectangle was likely to have significant financial implications I asked the Chief Officer for Home Affairs [I think it was you] what arrangements he wanted in respect of financial management." Can you remember this communication from [retired Chief Officer of Police]?

Chief Officer for Home Affairs: No. Can you show me it?

The Deputy of St. Mary :

Sorry, it is page 12 of his evidence.

Chief Officer for Home Affairs: No, the communication.

The Deputy of St. Mary :

Well, no, we cannot because I think we have asked him for this exchange but he only spoke to us quite recently. But I am asking you whether that letter reached you.

Chief Officer for Home Affairs: I do not have a letter like that.

The Deputy of St. Mary :

It is in his evidence to you. He quoted it from his statement to the Wiltshire Inquiry and that has now been redacted and it has to go to him for release and then it comes to us. We have asked for it. So, we do not have the detail. We do not have the date or the actual detail but I am putting it to you and you cannot remember receiving that request?

Chief Officer for Home Affairs:

No, the only letters I have specifically with [retired Chief Officer of Police] are the ones in June 2008 that are in your bundle.

The Deputy of St. Mary :

Okay. Well, that leaves us in a bit of a quandary. He goes on: "I was conscious that it was his decision to take. He was the accounting officer and he had a legal responsibility for the budget" which is true under the Finance Law.

Chief Officer for Home Affairs: Yes.

The Deputy of St. Mary :

"He said that he would appoint the senior finance officer, who I know, to work directly with the Rectangle team."

Chief Officer for Home Affairs:

No, that was in connection with the F.O.B. (Financial Oversight Board).

The Deputy of St. Mary :

Okay, so you are saying that this must refer to the F.O.B. it cannot refer to something before the F.O.B.?

Chief Officer for Home Affairs:

No, and in any case I have just had a meeting at 8.30 a.m. this morning with the Gold Group finance sub-group on the current murder investigation and the person at the meeting from the police is the Police Finance and Administration Manager, set up under the major incident room admin procedures, which are the procedures that they did not set up under for the Rectangle Inquiry. The point I am making is that it would appear that the proper procedures are being followed for this one and if you have read the Wiltshire Police Report one of the things that they remark on is that that did not happen. So, here we are 10 or 11 days after a major incident and the police have already swung into action. So, despite the fact that they are heavily involved with interviewing the prime suspect they have already set up those procedures and I am already able to have a meeting with the person who, from their end, is organising all the financial issues to do with the murder.

The Deputy of St. Mary :

Well, that is clearly a good outcome, if you like, a lesson learned. I am just trying to chase down this exchange which either did not happen or you are saying that it relates to the Financial Oversight Board only, which was set up in July, and it does not relate to the arrangements previous when a lot of the money was being spent very quickly.

Chief Officer for Home Affairs:

I have never set myself up in opposition to [retired Chief Officer of Police].

The Deputy of St. Mary :

No, we are not saying you should.

Chief Officer for Home Affairs:

We enjoyed a working relationship for 8 years ...

The Deputy of St. Mary : So, then ...

Chief Officer for Home Affairs:

I was just going on to say, that was a preamble, that there is an email in there where he very correctly flags up in February 2008 shortly after the then Chief Minister made his now infamous statement about all necessary resources, where he was the first to flag up, where do we stand in terms of spending the police budget? If you want I will find it for you.

The Deputy of St. Mary : No, I can remember that.

Chief Officer for Home Affairs:

I am not saying that he never thought about finance.

The Deputy of St. Mary :

No, and the response was what ended up happening was he took it from his police budget and ran on air and hope until it was organised and then the money was ...

Chief Officer for Home Affairs:

Yes, and I think that is what the Wiltshire Police have concluded.

The Deputy of St. Mary :

I am concerned with what the oversight was on the inquiry and how it was set up or not. You are saying that with this most recent event the police have a financial manager set up by themselves. I will just carry on with the transcript: "There you go: There is the man with the big stick' I say. [retired Chief Officer of Police] says, Yes'. I say it never happened because it is not in the BDO report, this person from your department working directly with the Rectangle team and then [retired Chief Officer of Police] says: I think that person was appointed to work with the Rectangle team. I know it became a concern as to how effective that arrangement was.'" So, I am just saying that this is a different version. It is not about the F.O.B., the Financial Oversight Board, as I understand it, and this person was appointed to work with the Rectangle team and he had concerns about whether it worked and yet I do not see this in the BDO report. So, this is what I am putting it to you.

Chief Officer for Home Affairs:

Go back to where we started in terms of the way we normally operate. Right as far back as when we both were appointed in 2000 [retired Chief Officer of Police], and they still do, enjoy a finance manager sitting on their monthly ...

The Deputy of St. Mary :

Yes, S.M.T. (Senior Management Team).

Chief Officer for Home Affairs:

It happens to be the same person. Nothing has changed. Now, that person was also providing the financial management backup in terms of the analysis of costs during the time of Rectangle and then a finance director, who works directly to me, both of us were on the Financial Oversight Board and then the Gold Group which succeeded it, but at no point did the police appoint their own finance manager sitting inside the investigation team to manage all their costs and resource handling and that is a point criticised by Wiltshire. Not for me to do that, that is standard operating procedure for major enquiries. If [retired Chief Officer of Police] had asked me: "I cannot get anyone, I need to have one of your 3 people" we would have talked about it but that was never requested.

The Deputy of St. Mary :

The problem from my point of view is that [retired Chief Officer of Police] in his evidence, and I am just trying to clarify this because this is an absolutely critical issue, [retired Chief Officer of Police] in his evidence to us said that he did ask you what arrangements you wanted in respect of financial management and presumably he asked you that because you are the accounting officer for his department. This is the issue, is it not, what feels to me like 2 stories. You are saying: "They should have set up under M.I.R.S.A.P, they should have set up their own financial person" and [retired Chief Officer of Police] is saying that he wrote to you saying: "What financial arrangements? Can we talk about it? Can we sort this out because I have an unbudgeted huge expenditure coming up" and then there is the division between the 2 stories we are getting.

[12:00]

Chief Officer for Home Affairs:

Unless I am missing something or correspondence, but I suppose another thing I would say to you is, why would I on 27th May 2008 write to [retired Chief Officer of Police] seeking assurances about the way that he is handling the spend on the inquiry? Again, I think his transcript gives the impression that he was the instigator of those. No. I would go as far as to say that if I had not written to him in May about it I would never have had any contact with him about it because it was not uppermost in his mind.

Deputy R.G. Le Hérissier:

If I can jump in now, what were the precise circumstances, or immediate circumstances, that led you to write that letter?

Chief Officer for Home Affairs:

Well, I do not have the monopoly on wisdom so ...

Deputy R.G. Le Hérissier: Neither do we.

Chief Officer for Home Affairs:

As soon as the then Chief Minister made his fantastic statement I thought: "We are not going to have enough money" so at various points I sought advice. The first time was in March after 26th February to say to the Treasury, and the letters are in there with the Treasurer: "Excuse me, what am I supposed to do here? Who is going to give me some money? How do I account for it?" I did a similar thing at the point where it was becoming apparent to me that there was a lot of money going out and I was not really sure how it was being accounted for. I took advice from the Treasurer and when you look at them you will see there are emails in there from the Treasurer. When the Treasurer says to me: "Are you sure you have done everything you should be doing?" In fact he said: "If I were you really you ought to seek formal assurance from the Chief of Police about the spend." That was the trigger for these letters. I am not claiming that this was all my original thought. One takes advice. So, because of that I wrote to [retired Chief Officer of Police] saying: "You need to assure me. You are in charge of the Force, are you using your resources to the best effect?"

Deputy R.G. Le Hérissier:

But from your knowledge of your own role as an accounting officer, do you think a letter was sufficient?

Chief Officer for Home Affairs: Well, how else does one start?

Deputy R.G. Le Hérissier:

Well, presumably receipts were coming through to your department and people were making ... I know the argument has been put forward, and in fact you may have put it forward at the last hearing, that these were operational issues and we have to take them at face value as they are presented to us but of course there were issues that are states-wide like hotel bills, restaurant bills and so forth where there are standards that apply throughout the service. Were you alerted to any unusual patterns of expenditure that would have demanded strong and immediate intervention?

Chief Officer for Home Affairs:

Do you mind if we go to page 11 of his transcript?

Deputy R.G. Le Hérissier: Okay.

Chief Officer for Home Affairs:

What he said there is outrageous and it is more than that, it is dangerously outrageous. It is the bit that starts a quarter of the way down. He starts to say that the Deputy could not incur any expenses unless I had signed them off and then he says at the end: "The rules were bypassed and it could only be bypassed by the staff in the Home Affairs Department." Because you are talking about signing off bills, Deputy Le Hérissier?

Deputy R.G. Le Hérissier: Yes.

Chief Officer for Home Affairs:

That statement was put to me before 17th August when you heard [retired Chief Officer of Police] by the Scrutiny Officer and words to the effect: "What have you got to say about this allegation?" I put in a written rebuttal of that and from what I understand that was not put to [retired Chief Officer of Police] at the hearing. The result of that was that Channel Television in the 1 hour 40 minutes that you talked to him the only thing they reported on Channel was that all the bills had been signed off by the Home Affairs Department.

Deputy R.G. Le Hérissier: Yes.

Chief Officer for Home Affairs:

I was sick to the pit of my stomach when I heard that. It is just not true. We do not see any bills in the Home Affairs Department. The process is that the person who makes the order or incurs the bill signs it off. I have brought some with me. The vast majority of them were signed by Mr. Harper. The next signatory to that is the clerk who checks that it is completed correctly and has been signed. That clerk at that time did not work for Home Affairs, they were part of the Treasury shared services section. The first we know of expenditure is when it comes up now on the J.D. Edwards system and we are able to make our financial profiling in our reports. I never see any of this stuff and this either needs to be retracted or corrected because at worst it is a lie, but I would not accuse [retired Chief Officer of Police] of lying, it is just ignorant and he shows an ignorance of the process. He did not know how the bills in his own service are being processed.

The Deputy of St. Mary :

Can I say that from our point of view we are looking at a review by BDO Alto who are a professional accountants firm, about whether the expenditure was efficient and effective and in fact they added to their terms of reference about the oversight. This is one of the issues which we feel should have been looked at in some detail in their report. This is the kind of thing that their report should have covered as well as restaurant bills and the detail and yet here we have a big difference of opinion between yourself and [retired Chief Officer of Police].

Chief Officer for Home Affairs:

It is not a difference of opinion, it is fact.

The Deputy of St. Mary :

Well, that is right, I stand corrected. It is a difference of fact and yet BDO have not covered this. I do not recollect reading in BDO that there is an argument about who was signing off ...

Deputy R.G. Le Hérissier: You are right.

The Deputy of St. Mary :

This is a big part of what they should have been looking at.

Chief Officer for Home Affairs:

In the section on purchase cards there is and that is why there is a focus on entertainment because it happens to be that that is where most of the purchase card stuff is. But the nature of the audit was on how the resources were used and whether they were used in an efficient way. It was not particularly about the minutiae of signing off individual bills. There had been an audit prior to that, which again is in the bundle. There had been an audit in October done by KPMG which did look at a sample of bills and they valued over £1 million and they could not make any adverse observations about them because these are done correctly. It is not about whether they were signed correctly or whether they had been processed correctly. The BDO audit is about the effective use of resources. It is a higher level thing.

The Deputy of St. Mary :

But the issue of authorisation does come up and you and [retired Chief Officer of Police] are totally disagreeing on the facts of that and that disagreement is part of the wider issue of the relationship between the Home Affairs Department and the police and how what is going to be a huge expenditure can be effectively controlled financially. So, those sorts of issues we would expect to be in the review.

Chief Officer for Home Affairs:

Yes. Any senior public servant who handles money, it is common sense. I am legally accountable in the law, that is accepted, but anybody who is spending public money knows that it has to be legitimate and 90 per cent of the time that was Mr. Harper because he was approving most of the bills.

Deputy R.G. Le Hérissier: Can we come back to that?

Chief Officer for Home Affairs:

Can I just say I am not suggesting it was all illegitimate in that case because he had a lot on his mind at the time.

The Deputy of St. Mary :

Well, C.T.V. (Channel Television) certainly suggested that, so you and we have issues with the accuracy of some of the media.

Chief Officer for Home Affairs:

We all forget, do we not, what was going on at the time? What we thought we had on our plate.

The Deputy of St. Mary : The pace of it.

Chief Officer for Home Affairs:

The pace of it, what we thought we were dealing with and as I have just said to the Finance Manager this morning: "You do not want me picking my way through everything becoming a blinking nuisance when you have a major murder inquiry." But it is up to the person authorising bills to make sure that that is a legitimate charge to public funds.

Deputy R.G. Le Hérissier:

Can I ask you, and I know this is focusing a bit on your own role, but it is important and although you say BDO is about effectiveness, of course it is about effectiveness based on a proper structure of control. In other words, that there are proper paths of accountability. You as accounting officer, other than this general letter you sent to [retired Chief Officer of Police] in which you asked him to essentially sign as evidence that everything was honky dory, what did you as accounting officer think was sufficient evidence to prove that expenditure was being correctly and effectively handled within the police? What evidence did you seek?

Chief Officer for Home Affairs:

I think it is in his transcript. He refers to: "I express satisfaction" I think those are the words used. Bear in mind that I do not have any specialist knowledge on police functions and what they do. So, if the senior investigating officer says to me in writing in his email: "I have had A.C.P.O. (Association of Chief Police Officers) over here. They have been over, they have said that my inquiry is an example of best practice. I have had the National Policing Improvement Agency over here. They have not adversely commented on what I am doing. I have my inquiry policy file up and running and I am making entries in there and more than that, in writing, which I have, it is in there, he says that all the expenditure I am incurring is necessary to further the aims of the inquiry. Then I am hardly likely to say: "No, I am sorry, I do not care what you say, I need further evidence" and all that is in there. Those were the professional assurances that were being given at the time.

Deputy R.G. Le Hérissier:

You mentioned this was all going honky dory, this system, from your inception in Home Affairs, when did you realise, or come to the realisation that things were not going well financially?

Chief Officer for Home Affairs:

I hesitate there because it is like that film which has 2 scenarios running at the same time. God forbid, say that there were bodies at Haut de la Garenne, and say this was a multiple homicide, we could postulate whether we would be here today and whether there would be any query on the spend, but after 31st March 2008 when what had been described as a piece of juvenile cranium was later described as a bit of coconut and the thing started to take a different complexion, at that point I think it would be fair to say I probably started to think: "We have spent a lot of money on something which perhaps is not going to turn out on what we thought." So, you then get a concern. I think most people would. States Members staff have a concern. A lot of people started to have a concern about: "What exactly have you been spending all this money on?" At that point, and I think the correspondence bears it out, I sought advice from the Treasurer and I ended up writing to [retired Chief Officer of Police] about whether he could give me the assurance that what has been spent is an effective use of the money. That is about as fair an account as I can give you.

The Deputy of St. Mary :

Would you agree that there is a substantial body of opinion which would say that those issues of the juvenile skull turning into a bit of coconut and the charred corpses and so on, the various issues that do not seem to be resolved, the teeth, that there is a real doubt? You are saying: "Well, the thing turned on 31st March and it suddenly all became, Well, frankly why are we doing this?'" In fact, there are quite a lot of people who think: "No, the account given in BDO of those questions is partial and one-sided." So, there is still a debate about that. I am saying you cannot just rubbish it and say: "Well, all that expenditure in 2008, what a wild goose chase" or a lot of it. There have been prosecutions for a lot of it. I mean, there were 1,500 witness statements or something.

[12:15]

Deputy T.M. Pitman:

Before you speak, just because we will get pulled up on it, you said "charred corpses" it was charred bones, fresh and flesh, otherwise we will get accused ...

The Deputy of St. Mary : Sorry, yes. No, fair enough.

Chief Officer for Home Affairs:

I am not qualified to criticise the conduct of the inquiry myself. Anything that I have said about that is purely what I have read in here which is the thing that is on the internet which says what, in the opinion of the Wiltshire Police, was wrong with the inquiry.

The Deputy of St. Mary :

But Op Haven said, and the Minister has backed their version and not BDO's, they have said that the decision to excavate was legitimate, the expenses incurred up to a certain point were legitimate. There may have been no issues. What we are looking at is issues around how that expending was controlled, whether it was effective and efficient and so on. We are not looking at whether these police procedures were correct.

Chief Officer for Home Affairs: No, and that is not part of my ...

The Deputy of St. Mary :

Oh, I thought you were questioning them.

Chief Officer for Home Affairs:

Not at all. I am not qualified to do that.

The Deputy of St. Mary :

Can I take you to the file note, 4th June 2008, which is in the bundle that I think you and our scrutiny officer provided us with. Now, there it says June 2008 you are present, Lenny Harper is present, the Director of Finance is present, and you just go through this. It is looking at the meetings, looking at financial management controls that have been put in place by the S.I.O. (Senior Investigating Officer). That is in part 1.

Chief Officer for Home Affairs: Yes, I have it.

The Deputy of St. Mary :

At the commencement of the investigation he has followed A.C.P.O., accommodation was checked with States Procurement. A trip to Australia, taking all the factors into account, could be justified. Summary of key statistics was reviewed and expenditure we have put the extent of the investigation in proportion to the level of expenditure. In other words it was proportionate to the scale of what was going on and that gets a tick as well, but it just says: "Was reviewed." So, in June 2008 that meeting was an opportunity for challenge. I am just sort of trying to get hold of where the BDO review comes from with its extensive basically criticisms and that file note which says in June that ... well, what does it say?

Chief Officer for Home Affairs:

Well, what that was was me seeking assurances from the senior investigating officer about the money he was committing and Mr. Harper was able to do that at that time. I did not have a bad feeling after that meeting because I was basing it on those professionals who had come over and he relayed to me what they had said. But irrespective of this meeting on 4th June I still decided to seek verification of what I was being told from [retired Chief Officer of Police], expecting that he was supervising all of this, or supervising the S.I.O. and that was the purpose of the letters in June. I now know of course that perhaps that was not quite what the situation was at the time.

The Deputy of St. Mary :

Sorry, the letter in May? The letter that you wrote to [retired Chief Officer of Police] was 27th May.

Chief Officer for Home Affairs:

Well, the first one in May and June, yes, that is right.

The Deputy of St. Mary :

Your concerns were: "I will be meeting with Lenny to review some of the detailed expenditure."

Chief Officer for Home Affairs:

Yes, which one are you looking at? Oh, are you looking at the email, are you?

The Deputy of St. Mary :

No, 27th May letter in part 2 of the bundle. It is the first letter in the second ...

Chief Officer for Home Affairs:

First letter, yes. Yes, that is right. Well, that is referring to the 4th June meeting.

The Deputy of St. Mary :

It says: "As I am sure you are aware through my staff I have been monitoring expenditure on the historic child abuse Investigation and advising the Treasury through reports."

Chief Officer for Home Affairs: Yes.

The Deputy of St. Mary :

Then you ask for confirmation from [retired Chief Officer of Police] that ...

Chief Officer for Home Affairs:

I did and I did not get it the first time so I wrote again.

The Deputy of St. Mary :

And then he wrote back saying: "I accept my responsibility as Chief Officer in the matter but in doing so encountered the customary difficulty of having no appropriately qualified staff within my direct command."

Chief Officer for Home Affairs: That is true.

The Deputy of St. Mary :

Then after that between you you ended up setting up the F.O.B.

Chief Officer for Home Affairs:

It is true, but it is not true to say that he did not have access to qualified financial advice because he had it since 1st November 2000.

Deputy R.G. Le Hérissier:

On that, I think it is the same period again, we have what appears to be 2 divergent sets of evidence. One is that [retired Chief Officer of Police] was attending meetings presumably of the F.O.B. and the inference is from his evidence that he expected to be brought up at the F.O.B. if things were going wrong, expected concerns to be laid out. He says that there were no concerns raised with him, so he drew the inference that people were satisfied with his financial management, but yet apparently at the same time your finance and administration manager was expressing concern, which has been written about in the BDO report, that this person was getting very little information from Mr. Harper. So, (a) what was going on on the F.O.B? Was it all hunky dory? Was everybody sort of happy? And (b) did you hear from the finance and administration manager? Did that person come to you and say: "Look, I am not getting the information I require to make sensible assessments"?

Chief Officer for Home Affairs:

On the point of things not being flagged up; the whole point of these letters in May and June was because I was concerned and I do not think he is being totally up front. He is an intelligent man, he will know that the purpose of these letters was because I was not happy. He will know that. He has not said it, but he will know that. This was me saying to the Chief of Police: "I need your assurance that what is going on you are happy with." So, that is a written challenge. There is no other way of describing it. In terms of the finance manager, we are in the tearoom every day. He works downstairs. I suppose the best way I can portray it is if you look at tab 9; have you all got it?

Deputy R.G. Le Hérissier: Yes.

Chief Officer for Home Affairs:

About 4 pages in the finance manager emailed the police in February seeking information and if you want the mood of things, if you look at the top thing there is a reply from Mr. Harper to the finance manager on 22nd February. It says: "At the moment it is a historical abuse inquiry. Details are confidential and I have no idea at present when it will end." That was the reply to the request for financial information. Well, it was not easy, put it that way, but we did stay with it. From the records that are available electronically we were able to pull together financial reports which were provided to the police regularly and I think there is an example of one in there.

Deputy R.G. Le Hérissier:

Did you ever sit down with [retired Chief Officer of Police] and say: "Look, things do not seem to be going right here. Could we discuss how we can improve matters?"

Chief Officer for Home Affairs:

No, but we thought they were. I think that is the point I am trying to make. Up until it seemed that the inquiry was not going to do what it said it did, I think that is when the trigger was for my concern and at that point I decided to confront the Chief of Police with that.

The Deputy of St. Mary :

No, sorry, the matter of whether the inquiry was going to do what it said it would do on the tin; that is not the same as controlling the expenditure and you refer to this email from Lenny Harper on 22nd February: "I have no idea at present when it will end." He turned out to be absolutely right because 4 days later they took the decision to ... they found then JAR/6 and so on and then the whole thing went stratospheric in terms of expenditure. So, he was right not to answer. He had no idea. I think I want to repeat the question of Deputy Le Hérissier which I do not think you answered. Did you hear from your financial manager, your person on the S.M.T. at the police who was a regular member of the team and was updating and so on and doing the analysis? Did you ever hear formally, or informally if you like, but formally preferably from that person about any misgivings about specifically Rectangle? Because they are in the senior management team every fortnight, is my understanding.

Chief Officer for Home Affairs:

Only that we had discussions about the size of the expenditure but I cannot recall specifically any conversations about anything else because of course do not forget we are not seeing the bills, like I said before. We are not seeing what is being signed off. We got to know about it retrospectively several weeks later because the financial information appears on the system. So, it is only from a sense of how much is being spent from the discussions of the group.

The Deputy of St. Mary :

You see, this is problem, is it not? There is someone who has a place on the S.M.T., it is a standing item on the agenda, the finances of the police, including Operation Rectangle, and yet in terms of strategic: dog-handler, big item; overtime cordon, big item. These are big items and apparently nothing is getting back to you at all, even though there is somebody ... You can imagine, you can see how this confusion arises; [retired Chief Officer of Police] is saying to us: "Well, there was somebody in on it" maybe he was referring to this person who was on the S.M.T. and there every time and yet nothing is coming back to you about any disquiet. I am not talking about a bill for this and a bill for that; I am talking about the overall thing, big costs, £100,000 here, £500, 000 there and

yet nothing is coming back to you.

Chief Officer for Home Affairs:

No, that is wrong; I was aware of that, yes.

The Deputy of St. Mary :

What about the challenge then on these items because obviously you go for the big items, do you not?

Chief Officer for Home Affairs:

Well, that is right but you have got to get back to the point that this is a major inquiry and people who had been brought over to look at the way they were conducting it were apparently saying that this was okay, this was being conducted in the right fashion. I am not going to question that. Why would I challenge that? The Wiltshire report says ... I mean I am going to have to quote it to you.

The Deputy of St. Mary :

Sorry, the Wiltshire Financial Report?

Chief Officer for Home Affairs: Yes. Have you got a copy?

The Deputy of St. Mary : Yes, I have.

Chief Officer for Home Affairs:

If you look at paragraph 1.5 in the executive summary: "Whilst it could be argued that Steven Austin-Vautier could have challenged either D.C.O. ( Deputy Chief Officer) Harper or Chief Officer Power over the increasing costs of Operation Rectangle, the fact remains that he had no managerial or operational responsibility over them."

The Deputy of St. Mary : Yes.

Chief Officer for Home Affairs:

So, unlike the Prison, the Fire Service, the Customs and Immigration Service, the Superintendent Registrar and the Territorial Army, where I can say: "Stop doing that and do not do any more until I have said otherwise." I cannot do that with the police.

The Deputy of St. Mary :

Which is why I asked right at the beginning, why we asked right at the beginning the question about the Finance Law and whether you felt it was satisfactory and you said your views changed and you now know that it is not satisfactory or words ...

Chief Officer for Home Affairs: It has not stood the ultimate test.

The Deputy of St. Mary :

[retired Chief Officer of Police] said at the time: "It will not stand up to any of the stress."

Chief Officer for Home Affairs: He had a lot of foresight.

The Deputy of St. Mary : Yes.

Deputy T.M. Pitman:

I have sat very quietly because both my colleagues are on a roll here and that is fine, got my share last time. What I still find hard to get my head around is [retired Chief Officer of Police] is effectively saying that most of the concerns, the worries, the questions, only came to a head after he had been suspended almost. How could such a scenario be plausible? I know there are difficulties, we all know that now, between the lack of an adequate relationship between Home Affairs and the police but how could he come to that conclusion?

Chief Officer for Home Affairs:

Well, you are asking the wrong man, are you not?

Deputy T.M. Pitman:

Well, no, we have put questions to [retired Chief Officer of Police] but I think it is quite relevant to ask you because you are his friend.

Chief Officer for Home Affairs:

No. Well, look, [retired Chief Officer of Police] is a colleague, he is a colleague. You cannot ask me, as a colleague, why it is that people start to question [retired Chief Officer of Police], put some doubt on whether he should be in office, question whether he should be ...

Deputy T.M. Pitman:

Well, I can ask you if you respect why it sort of apparently took so long; July everything is great apparently, or that is the perception and then he is removed and suddenly December, a different ball game. That is what I find hard to understand. I am not casting any aspersions on yourself ...

Chief Officer for Home Affairs: No.

Deputy T.M. Pitman:

I am just trying to get my head around this.

Chief Officer for Home Affairs:

Are you saying what happened in that, say perhaps 6 months that we ended up where he was suspended; is that the question?

Deputy T.M. Pitman:

Well, I suppose that it is a degree, yes. That is; I mean he is suspended and then I just do not understand how he got there without it being much more in the ...

Chief Officer for Home Affairs:

Yes. Well, lots of people caused that but I am not one of them. I am busy getting on with my job in Home Affairs.

[12:30]

Neither me nor my staff are saying: "Why is Graham Power still the Police Chief?" Lots of your brethren were, lots of Members, lots of members of the public, other people but we have got no axe to grind. We have got a job to do and it is busy.

Deputy R.G. Le Hérissier:

I have got to press this issue again, if I may; this issue of your officer attending meetings and not getting sufficient information, it appears, from Mr. Harper and yet somehow this concern, which must have been a major concern, does not sort of find its way to you and start alarm bells ringing or find its way to the Financial Oversight Board, which is meant to be the repository for all these concerns.

Chief Officer for Home Affairs:

Well, I think that the only thing I can say is that ... and it is the mildest answer; I was prepared to accept, at the time, that the A.C.P.O. group had been over, the N.P.I.A. (National Policing Improvement Agency) group had been over, the assurances that Mr. Harper himself formally had given about the fact that everything he had spent he needed. When you piece that all together it was a plausible account as to why we needed to spend the money we were spending. As I have said, it was only when it was quite apparent that the inquiry, the operation, was not achieving what it was supposed to achieve or it was portrayed as, that there then became a worry over whether we needed to be spending as much as we did. But up until that point everything looked quite plausible at the time.

Deputy R.G. Le Hérissier:

See the interesting thing is that a lot of the subsequent press media coverage was ... some of it was questioning professional policing decisions, like was a dog needed? But there are others, as I intimated earlier; essentially they were about extravagance, that there was extravagance in expenditure. Things that strikes me; lay people could judge. They were either staying in over- luxurious hotels or they were not and of course that is where it all ended up; the publicity, that is where the adverse publicity ended up. That was not picked up as an issue, was it, because it subsequently became a major issue?

Chief Officer for Home Affairs:

Well, it was. Well, it was because we had new ... we spent a lot of our time answering numerous States Members' questions around it and I have got it all. So, we did have to, I had to ask the questions. A classic example were the trips to Australia, for example; I had to go into all of that. We had a meeting with the police; they provided, again, a plausible reason why they had spent the money they had on going to Australia or to do with the length of the travel they had to endure, the work they had to do while they were airborne and you cannot do that sitting in the 3 and 4 pennies when you are juggling your tray of food with muggins looking over your shoulder at what you are writing; all good reasons, all perfectly plausible. So, we were dealing with those things at the time; there were numerous questions about hotels. I know that they did go to length to try and get one of the bills in now; I brought examples with me in case you wanted to see them. But there is a receipt in it or a bill in there, quite a large one, for the Hotel de France; £70 a night bed and breakfast. Well, you cannot say fairer than that; that is a good rate for the Hotel de France. There was some trouble being taken over things like that; it was not all ... and I said that the last time I appeared. The impression has been given that the BDO report just rubbishes everything that the police did. It does not; there are 9 examples at least of where they are saying steps were taken to be careful.

The Deputy of St. Mary :

This is the problem, is it not, that the public perception is totally different from what you have just said?

Chief Officer for Home Affairs: Well, who is putting that about?

The Deputy of St. Mary : Ah, I know, it is the media.

Deputy T.M. Pitman:

We discussed this with the Minister.

The Deputy of St. Mary :

We have referred to the Channel T.V. (television) who have used the Australia example as an example of profit and expenditure only last week and you are saying and of course we all know that that expenditure was justified and it is on record in your documents that you have given us. So, there is a problem with the way the media goes about reporting this whole issue and I wonder if you have any comments on what could be done about that in terms of rectifying, getting them to put out the micro version corrections to the mistakes they are making?

Chief Officer for Home Affairs: We are on an impossible mission.

The Deputy of St. Mary : But you do share that concern.

Deputy T.M. Pitman:

But can I have some insights into how that came about?

Chief Officer for Home Affairs: Well, sorry, Deputy ...

The Deputy of St. Mary :

Well, sorry, there are 2 questions.

Chief Officer for Home Affairs:

I share the concern because of the mass indignation I felt last week. I mean I just found it extraordinary; one hour 40 you had him on the phone and the one thing they report is tosh, sorry, it is drivel. They are both in the dictionary actually.

Deputy T.M. Pitman:

We can agree on some things then.

The Deputy of St. Mary : Tosh is fine, so what do you ...?

Deputy R.G. Le Hérissier:

I wonder if I can jump to a new issue, although we do have a tendency to keep being drawn back; the lack of a finance manager. [retired Chief Officer of Police] of course, just as we are following this theme, he says of course he had asked for such a person to be appointed and so forth. Were you convinced that you moved as quickly on this one as you could have and were you convinced, once you had made the appointment, that you were getting the right information to start making some fairly informed judgments and assessments of what was going on?

Chief Officer for Home Affairs:

Well, there always was a finance manager; there has been for 8 years.

Deputy R.G. Le Hérissier: Within the operation team?

Chief Officer for Home Affairs:

Yes, but as I have said before, that was Mr. Harper's responsibility to appoint his own finance backup for his operation in accordance with police procedures. That is not me; I have got a department to run.

Deputy R.G. Le Hérissier:

Presumably though you would have been of the view ... say, for example, you follow the argument; Mr. Harper, as you have said earlier, was running a very fast-paced investigation. He may not have had very recent experience of running such investigations and certainly you ...

Chief Officer for Home Affairs:

They do.

Deputy R.G. Le Hérissier:

Yes, well quite; bureaucratic niceties were not going to be sort of top of his agenda as he tried to get things moving. You did not think that there was a role for your department to intervene and say: "Look, we have got to push this along and it will help me because it will ensure that I am getting right from the frontline the right kind of financial data and I do not have to rely on these sort of letters from [retired Chief Officer of Police] that everything is hunky-dory."

Chief Officer for Home Affairs:

Well, 2 things to say about that; the first is there has been a very sad incident in Jersey in the last 10 days but the senior investigating officer found time to, in the first week, sort out his admin and finance, point one. Point 2, this was all very new; we had not been here before. I am the first to admit we are all human beings and fallible.

Deputy R.G. Le Hérissier: Absolutely.

Chief Officer for Home Affairs:

I, despite my 18 years in the Air Force and things I have seen and done, this was new for me. Nobody knew how it was going to unfold. It is great in hindsight but I am sure Mr. Harper, [retired Chief Officer of Police] and me, we would all do things differently but at the time you just do not know exactly what is coming up. I did not know that 4 weeks later we would still have a dog roaming around and we would have all these policemen still on a cordon. It was all new, never been there before and we all learned from those sorts of experiences.

Deputy R.G. Le Hérissier:

In a way, we are not here to assess your performance but obviously we are there ...

Chief Officer for Home Affairs: I wondered.

Deputy R.G. Le Hérissier:

Because obviously one of the issues that has arisen is the balance of the findings of the BDO report and while we are not here to sort of engage in equal opportunity of allocating blame obviously there is a distinct trend in that report and it is to put the bulk of the blame upon police and certain named officers. So, we have to find out the workings of the Home Affairs Department. You gave a long list of the people Mr. Harper had sought advice from and that is a well known police thing; try and break down cultures and open up to new thinking. That did not apply to your side of the work. You could not pick up the phone to someone in the Home Office and say: "Look, we have got this massive operation in Jersey. I am in this position. What are the things I should be focusing on?" That did not come up?

Chief Officer for Home Affairs:

No. There is not that sort of thing. I mean we plugged for the Jersey public service. We do get on with it and sort things out. No, there is not the panoply of managerial oversight and advice that there is within the police force U.K. (United Kingdom)-wide. No, there is not and in any case, come back to what I said, at the outset why is it any different? We have managed £48 million every year or whatever it is; it happens to be that this year and this was just another operation at the beginning but it clearly unfolded into something much bigger.

Deputy T.M. Pitman:

If I can just take you back a bit; [retired Chief Officer of Police] stated at the early stages of the inquiry, when he was receiving responses, regular responses, that there were no concerns about the financial arrangements, he began to feel uneasy, to use his words, that: "There was not sufficient

rigour in the Home Affairs approach. I just came towards the end of May 2008, 22nd May" and he says he took the initiative to propose the Financial Oversight Board in an email he quotes, 9th June. He said that this was eventually accepted but not acted upon with sufficient speed and the first meeting is not held until 23rd July. What would have been the reason for that delay?

Chief Officer for Home Affairs:

Right. Well, the answer to the question, before I come back on from there, is I do not know because I have looked at that. I imagine it is something as simple as people not being available in July. It is right in the middle of the summer, other things going on. I honestly do not know of any other reason why there was a delay.

Deputy T.M. Pitman:

But something that would have seemed so important he has recognised as important.

Chief Officer for Home Affairs: Yes.

Deputy T.M. Pitman: Is that ...?

Chief Officer for Home Affairs:

No, it is a fair observation. I cannot honestly account for anything other what was said. I come back to; he says "insufficient rigour" and he suggested that ... I will submit that unless I had written to him in May and again in June that he would not even have thought of the Financial Oversight Board because he was not focused on the finance at all. That is an opinion; it is not backed up by anything I have given you.

Deputy T.M. Pitman: Yes.