The Public Accounts Committee and Scrutiny Committee laid a joint policy letter to the States at the February States meeting. This was very important to me as I had wanted to increase the powers and resources of the scrutiny function before I was elected and everything I have witnessed since I was elected as Chair of the Public Accounts Committee demonstrated to me why this was necessary.
I am pleased that the policy letter was passed, with an amendment on funding that we did not oppose. This means that the new Scrutiny Management Committee will be better placed under the new machinery of government. Below is my speech.
This policy letter arises from an amendment placed by myself and the Chair of the Scrutiny Committee to ensure that the powers and resources of the new SMC were agreed before the end of this term. We could have decided to go with the original proposals in the SRC report, stating that this should be left to the new Committee to consider. However, we believed that it was important that it should be able to hit the ground running and get changes put in motion as soon into the new term as possible.
It is important to stress at the outset that this States has already agreed the structure of scrutiny that it wants for the future and that it should have more powers and resources. This policy letter is therefore following the direction of the States in setting out what it believes those powers and resources should be.
It is also important to make it absolutely clear that what we propose is not a pick and mix; our proposals set out the minimum requirement to give effect to the new scrutiny structure and reflects our 4 years of experience and more in some cases, of the current system.
We have concluded that specific areas require significant strengthening to ensure that effective scrutiny can be provided.
I am not going to go over all these now, they are clearly set out in the report, but I will focus on some key points.
Firstly, the power to compel, or to use the standard term, ‘the power to send for persons, papers and records’. A power that is standard in the UK and other Crown Dependencies.
The appropriate legal infrastructure will need to be in place to ensure the enforceability and legality of the proposed approach. Powers to send for papers and records are already vested in various statutory bodies today, such as the GFSC, Children’s Convenor and CICRA. In our view, therefore, the drafting of such legislation should be relatively straightforward.
Secondly, rights of privilege should be extended to any person giving evidence to scrutiny panels and hearings.
At the moment a person attending to give evidence, or producing any document to the Scrutiny Committee or the Public Accounts Committee is entitled to the same immunities and privileges as if they were a witness before the Royal Court, whereas a Deputy enjoys absolute privilege. This may have been an error in the drafting of the legislation as it was intended to be provided for in the original Billet.
This will allow witnesses to be able to speak freely to their elected representatives, a fundamental democratic right.
Thirdly, in terms of visible impartiality we recommend that a memorandum of understanding should be in place between the Principal Scrutiny Officer and the Chief Executive that guarantees the operational independence of the former whilst providing him or her with the appropriate management support.
To provide the necessary balance, the Principal Scrutiny Officer must ensure that, any review undertaken complies with the SMC mandate, provides value for money, and is in the public interest. Where a review does not meet these tests, in the opinion of the Principal Scrutiny Officer, the Principal Scrutiny Officer can be formally instructed to proceed by the Committee through a written direction.
Now, we turn to a recommendation in this report that is certainly very timely. That is the ability, in certain contexts, to be able to be review the internal legal advice provided to Departments and Committees.
This is a complex area. However, at Westminster, legal advice has been questioned by Select Committees in certain circumstances. To allow for this to happen, UK Ministers, in effect, waive their insistence on the confidentiality of the legal advice their departments receive. In the UK, the decision to disclose the Attorney General’s advice on the legality of military action in Iraq, has created a high level precedent which will make it difficult for governments to hide behind the claim that ‘we never make public the advice of our Law Officers’. To those who argue that this was an exceptional case, I would respond that the only thing that was exceptional about it was the level of political pressure which forced eventual disclosure.
Something to consider in light of recent events.
It is clear to both current Committees that the content and rationale of the advice provided to politicians and staff by the officials within St James’s Chambers, should be subject, when appropriate, to review by Parliament. And, standing here occupying the place he used to take I am reminded that this is something that the Late Alderney Representative Paul Arditti felt very strongly about it. I do think it is sad that he can’t be taking part in this debate.
Yes, the mechanisms need to be thought through carefully. However, a complete bar on the ability to scrutinise legal advice, is inconsistent with the principles of openness and transparency that lie at the heart of good government. The scrutiny arrangements and perhaps as importantly, the culture within government, must allow for parliamentary oversight of this type of material when it is appropriate.
Both Committees have also expressed a desire for additional clarity in situations where there is uncertainty as to whether advice is legal advice, or rather advice from a Law Officer on a non-legal matter. We believe that guidance on this matter should be clearly drawn to avoid a situation where appropriate parliamentary scrutiny is blocked by the refusal to release advice from a law officer on a non-legal matter.
Legal advice given to States Departments and Committees is primarily provided by the Law Officers of the Crown and lawyers working under their direction at the Law Officers Chambers. Where advice is given by a lawyer to a private or commercial client, that client could decide to “waive” privilege at their discretion and disclose the contents of the advice. However, different considerations arise in relation to advice given by, or on behalf of, a Law Officer to Departments, Committees and other public office holders.
However, as was demonstrated in the disclosure of Lord Goldsmith’s advice on the legality of the war in Iraq and of Jeremy Wright’s own recent advice on the legality of RAF drone strikes on British ISIL targets, there are “exceptional” circumstances when at least the fact of giving advice is disclosed. For the reasons set out above, it is suggested that the situation in Guernsey should mirror that described in England and Wales and, as that approach changes, so should ours.
The key point here is that in certain circumstances it should be possible to view the advice that led directly to decisions being made. This may be very rare but it is also essential. Advice is just that – advice; Boards take the decisions. And if political scrutiny is to mean anything, it has to be able to test the judgements which Boards have made based on the advice they have received.
So, last, but by no means least, we get onto the sticky matter of funding. It is very difficult for me, as Chair of Public Accounts Committee to come here and request extra money, but I knew that would inevitably be the case at the start. I would hazard a guess that all members would have expected that, more powers and resources would come at a cost. But, remember, it is not about cost, rather value for money. It will not mean more of the same, but the ability to undertake urgent hearings and respond faster than is possible at present. We are only going to get a stronger scrutiny function if we allocate more resources to it.
If this assembly wishes to have effective political, financial and legislative scrutiny then it will cost more money. If members believe that this level of additional expenditure is unjustifiable then so be it, but please do not then constantly reprimand the new SMC for not addressing the numerous areas of public concern that arrive throughout the next political term. This month and next we will be debating areas of huge strategic importance: the alphabet soup of SLAWS, CYPP, SCIP as well as Waste, perhaps CHP and dare I say education?
As things stand the current resources are woefully inadequate. From a financial scrutiny perspective alone, we have just 3 staff to scrutinise 1/2bn of States general and SSD annual expenditure. That’s when no one is ill or on holiday. Compare that with Jersey with spends nearly £800k on the Auditor-General’s office, £311k on Scrutiny, excluding staff costs which are probably a conservative £500k, plus a dedicated building and all that excludes the child abuse enquiry for which £20m has been set aside. Yes it has a ministerial system, but that doesn’t mean that scrutiny should be funded any the less. And in the next term, with a more powerful centre and fewer Deputies, a stronger scrutiny function will become even more important.
It’s not as if what we are asking for is unreasonable. It represents 3 more staff, one of which is for legislation, which currently has no resource and £150k for specialist advice which will be necessary as the SMC focuses on complex areas, where generalist knowledge will be inadequate.
And don’t forget the Deputy resources that will be lost from scrutiny as a result of the new machinery of government. In fact, we have calculated that the loss in terms of Deputy and Non-States members’ time comes to the equivalent of £191k.
Also, remember that in the last budget we agreed to pay an extra £900k for SCIP programme and £200k for additional Policy Council resources. Why is that OK, but not the resources to scrutinise it?
As William Gladstone famously pointed out – ‘Men are apt to mistake the strength of their feeling for the strength of their argument. The heated mind resents the chill touch and relentless scrutiny of logic.’
Gladstone correctly identified that many well-meaning politicians cannot see the weaknesses in their own arguments – this is why Scrutiny is so important
And, In the words of Arthur Conan Doyle’s famous fictional detective, Sherlock Holmes “It is a capital mistake to theorize before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts.”
This is where Scrutiny comes in – no individual member has, or will have, the time or supporting resources to fully investigate a significant portion of government policy.
Independent political scrutiny is essential and a properly-resourced scrutiny system empowers the individual Deputy as a member of a scrutiny panel.
The recommendations made to the States in this Policy Letter provide for a future scrutiny function with greater capacity, powers and resources to ensure Committees and their agents can be effectively held to account by the SMC.
I believe we have provided an appropriate balance in the context of the changing machinery of government and therefore ask that all members fully support increasing the powers and resources as set out in this policy letter.
I laid a successful amendment against the Commerce and Employment Department’s policy letter on trading standards. My speech is below.
Sir, This is quite a straightforward amendment
And deals with an omission from the policy letter. Whilst paragraph 7.10 discusses price indications and essentially the need for fair and transparent pricing of products it does not specifically consider sales, offers or price comparisons. I can only believe this was an oversight as these play an important part of any retailer’s operations.
I had originally thought it would be sufficient just to add to 1g, the line, including sales offers and price comparisons. However, advice from Crown Advocate and HM Comptroller was that as thing stand there are not enough policy instructions to refer to. Hence the amendment in this form.
Now, I’m not one to want add more burden to businesses, however I do believe there is a need for some form of protection to the consumer in this area and this is not something that should concern any retailer who acts in an ethical manner. Perhaps as someone with a retail business I see where others may be trying it on. For instance, those that seem to have year round sales, where the original price probably only existed for 1 week in February. Also, seeing a growing trend to display sale offers through comparisons with the UK. For example, stating that an item is now 25% the UK price. That is misaleading and irrelevant.
So, this amendment merely seeks that the department comes back with proposals to deal with a matter that I think should really have been included in this policy letter.
I made the following speech at the February 2016 States meeting
Sir, I really don’t understand why this policy letter hasn’t grabbed as much attention over the last few weeks as others. You’d have thought we had lots of other more important matters to consider.
This report has slipped under the radar. However, the truth is that it sets out some really important recommendations that go to the heart of public service reform, providing a joined up service to users. By doing that we can achieve greater value for money. These are the themes that will run through much of what we will be debating over the coming weeks with CYPP, SLAWS in particular.
It is this policy letter that sets the scene and by supporting it we will be able to give impetus to the change that is needed through enabling cross-departmental working and a more efficient service.
At the PAC public hearing a couple of weeks ago, on lessons learnt from the FTP, we questioned the Minister and States Treasurer on the meaning of enabler projects. These really were the projects that wouldn’t not necessarily save money directly but would enable transformational change. It was these rpojects that for various reasons did not really take off.
Now this is an enabler project, something that has the potential to enable transformation.
On p521 of Vol 2 of this Billet on SLAWS, it states;
‘Need for better data systems has long been recognised’.
As part ofhte 2001 States report of the LTC Insurance Fund it was proposed that social services establish a minimum data set system to monitor the need and provision of LTC. This system was never established.
‘Significant progress towards a more person-centred system could be achieved if these data protection issues were addressed in an appropriate way to allow for greater ease of patient data sharing between professionals in approporiate sessions.
I totally agree, which leads me to my real concern over this policy letter and that is the timescale. It states that the programme of work is likely to span approximately 5 years. I’m concerned that, given the history of the implementation of IT projects that this sounds too general and could lead to drift, particularly given the major data protection issues that will need to be resolved.
However, I am supportive in principle and believe that this register is going to be essential if any significant progress is to be made in public service reform.
I was a member of the Constitutional Investigation Committee, that looked into increasing Guernsey’s power in terms of the passing of laws and ratification of treaties. It was a fascinating committee to be on and I learned a lot about the history of Guernsey’s relationship with the Crown as well as the constitutions of other Crown Dependencies and Overseas Territories.
I believe we got the balance right. What we were trying to do was be evolutionary, not revolutionary. The approach was very much along the lines of ‘well it works very well now but we need to firm things up in case things go awry again’.
In simple terms, we said that the Lieutenant Governor should be able to sign off our laws, rather than them having to be considered by the Privy Council in the UK and that Guernsey should have the power to enter into treaties itself. This received unaminous approval of the States. The fun now starts as we begin our dialogue with the UK.
The policy letter from the Constitutional Investigation Committee may prove to be one of the most important in terms of the independence of the Island of Guernsey for many years and I am proud to have been a part of it.
At the January 2016 States meeting I laid an amendment against a policy letter which was supposed to be about land use classes and tidying up the use class ordinance. However, within that policy letter was a proposition to rescind a resolution of 2007 that restricted the use of planning covenants. There are real concerns over their use and it was inappropriate to have placed this proposition in that report. My amendment looked to avoid that and only to consider rescinding once the local housing market review was published. In the end the amendment was drawn 22:22, but members went on to throw out the proposition, which was just the result I wanted. By laying the amendment it highlighted the issue and served its purpose by ensuring the status quo was maintained until the States has decided the policy on planning covenants.
This is a very simple amendment and merely retains the current situation. Indeed the situation we have been in for the last 5 years. Having considered the implications, I consider the current proposition to rescind the resolution of 2007 to be dangerous and that could create unintended consequences.
I should make it clear that I support the rest of this policy letter . The bit that relates to the title: ‘A review of the Land Planning and Development (use classes) Ordinance 2007.’
Proposition 2 is nothing to do with amending that Ordinance. It relates to a resolution of the States in 2007 arising from a policy letter on Planning Covenants.
Given the significant concerns expressed at the planning enquiry over the use of planning covenants and the fact that it is yet to be decided by the States, why choose now to rescind a resolution? I have spoken to a senior planning officer in the Department and Deputy Luxon and myself have also been given extensive background information from the law officers before deciding to lay this amendment. I thank them for their time. But nothing we have heard answers why the present situation, which has existed for some time, needs to change now.
The argument in support of proposition 2 seems to be, well, since 2011 we have the SLUP which gives a strategic direction and everything is going to change with the new Island Development Plan, so let’s rescind the resolution of 2007 as it could cause confusion.
However, this is jumping the gun and will only create more confusion and I will explain why.
In 2007, the States debated a policy letter on planning covenants and in that letter it stated that, ‘It is important that any such system is introduced with caution in order to avoid any unintended consequences and the pitfalls experienced elsewhere and to ensure it is tailored to local circumstances. It went on to say ‘the wide application of planning covenants would place a heavy demand on staff resources to establish associated policy documents, guidance notes and appeal procedures and thereafter to operate and update complex systems of quotas and appraisals and to deal with appeals.
It was because of these concerns that the then States decided that planning covenants should be restricted to Housing Target Areas.
Now, 4 years later the SLUP comes along and it states that ‘Appropriate levels of provision of social and/or specialised housing on large general market site ‘may be required’ through the use of planning condition or covenant and established through a specified mechanism. Now we have the Land Planning and Development (Planning Convenants) Ordinance 2011, which states that planning covenants can be used for social and affordable housing, but there is nothing yet in place setting out any other mechanisms.
As it says in the SLUP ‘a mechanism for assessing the appropriate circumstances for
triggering the inclusion of social and/or specialised housing will be clearly set out
within the Development Plan.’ Yes, the draft IDP set out that planning covenant should apply to all developments of 5 units or above, but it is just that, draft.
We are awaiting the Planning Inspector’s report and the Plan to come to the States. Whilst SLUP may be supportive of not having HTAs, we await the final decision of the States and the new Island Development Plan before knowing what the new world is going to be.
So, the effect of proposition 2 could be to create just more confusion.
The SLUP also states that, rather than setting prescriptive target levels for social and/or specialised housing, it will instead be for the Housing Department in conjunction with the Environment Department to determine and inform the Development Plan through the analysis of existing relevant data sources. ‘
I don’t think I need to remind members that in September last year we had the Housing present a policy letter setting targets which it wished to place on such housing, in contravention of the SLUP. A proposal that was rejected in favour of the commissioning of an objective Housing Needs Survey that will inform the departments as to need and the States agreed at that same meeting to an independent broad-based review of the local housing market, which should also inform the benefits or otherwise of planning covenants.
We haven’t got those now and in their place we have a vacuum so if proposition 2 is passed planning covenants could be imposed unnecessarily. This won’t mean affordable homes won’t be built of course given the number of recent applications by the GHA and of course planning covenants are not needed for States owned land.
The SLUP is 5 years old and based on a 10 year old report whose assumptions have since been discredited by experiences elsewhere so how can it be assumed, which the proposition does, that the draft IDP will remain unchanged in respect of planning covenants?
So, why rescind the resolution, before the States has agreed how it wishes planning covenants to operate in the future or has had proper review into the effect of planning covenants in the current market?
The construction industry is in a fragile state at the moment. There are real concerns about how planning covenants may be extended in the future. Proposition 2 has already created unease, especially as it has been seen to be have slipped in under the radar without consultation. It is not essential that we support it now and it should not be supported now until we have the evidence to determine the extent to which planning covenants should be used in the future.
To avoid unintended consequences and to avoid confusion, I request members to support this amendment.
I was a signatory to the requete calling for the re-introduction of the reciprocal health agreement (RHA). It is clear many people believe it should be brought back and I was of the same opinion. Having done so, it resulted in work being undertaken to establish the possible cost and the likelihood of Guernsey being able to negotiate an RHA. It became obvious from soundings taken from the Ministry of Health in the UK that it was very unlikely that we would achieve one as the UK Government was looking to end the RHAs it had against a background of economic austerity. It has cut the number down from over 40 to 17 in recent years.
If we did manage to obtain some sort of RHA, the cover would not be very comprehensive and nothing like the one that existed before 2009. Indeed, from the research I have done it is clear that the RHAs for Jersey and the Isle of Man are of little value and it is quite possible that even these will be ended in the near future.
Of immediate concern is the fact that the UK has increased tariffs for overseas visitors by 50%, which affects Guernsey people directly and HSSD is beginning to be charged by some hospitals. We therefore need to focus our attention on reversing that, as well as following up on an amendment I supported in December 2015, looking at an insurance scheme for Guernsey people travelling to the UK, which would achieve the same purpose as an RHA for local people.
I am pleased I signed the requete, and it may be that a form of RHA may be brought in as a result of the work being undertaken, but ultimately, if the requete had been passed it would have raised expectations unreasonably and that is why I could not support it.
I was delighted that the application to develop on the field at Route des Blanches in St Martin was refused on 16 December 2015. This was nothing to do with not wanting to see new developments in the Parish, but the fact that this was the wrong place. This was a case of trying to get permission before the new Island Development Plan got approved as it would clearly have been refused, being outside the Local Centre of St Martin and a greenfield site.
The site in question comprises prime agricultural land. In fact, it is Grade I soil, the best quality on the entire island. The Housing Department are intent on building wherever they can to justify an outdated, flawed and failing policy. What we need is a new policy that takes account of the circumstances of today, not 12 years ago.
That is why I was so pleased that my amendment, instructing Housing and Treasury & Resources Departments to undertake an independent broad- based review of the local housing market was passed by the States earlier this year. You can read more about that in my earlier posts.
The open planning meeting demonstrated the inconsistencies in current planning policies and how a new plan is needed sooner rather than later.
Well done to all those who were part of the campaign against the development and who spoke at the open planning meeting.
I was delighted that the States voted for same-sex marriage in December 2015. My speech is below.
Sir, before I begin I think I should say that I believe it is important that we respect all sides on this debate. Those who wish things to remain as they are, those seeking a halfway house for same sex couples and those, like me, who believe we should seek equality. For me this has been one of the easiest decisions I’ve had to make over the last few years.
We must be tolerant of others’ views, even if we don’t agree with them. It is a long slippery slope to the bottom when we don’t. We only have to witness recent global events and see how intolerance has led to unimaginable acts of barbarity, fear and terror. That is what I have kept reminding myself when reading some of the emails I have received against the proposals in this policy letter. Because it has been very difficult for me to understand why some do not believe LGBT people should have equal rights as equal members of our society. They pay their taxes too after all.
But I can understand how much harder it may be for the older members of our society. Over the last 50 years, since I was born and Deputy Paint was married, my parent’s generation have experienced massive societal changes. For some it has been very difficult to move with them. Change can be frightening as we all know, fear of the unknown and where it places you in that new world. We have to respect those we disagree with, although I have to say I have struggled with the content of some of the emails I have received.
We hear how this goes beyond the original requete in 2006 that instructed Policy Council to look at civil partnerships. But that was 9 years ago, life has moved on and I suspect all those who signed the requete back then would support same-sex marriage today.
The overriding theme from those opposed to this policy letter is it will redefine marriage. In fact after a while it was possible to work out those pro and anti, just by the heading. Pro said gay, same-sex marriage, the antis – redefinition of marriage. It was all in the word.
Well, if you ask my husband he’d probably say marriage isn’t a word, it’s a sentence.
But those who do not want equality say that marriage has meant the same thing since the dawn of time. BUT this is completely wrong of course.
When the United States Supreme Court recognized a constitutional right to marriage in June this year, Justice Anthony Kennedy stated, “this view of marriage as timeless and unchanging was contradicted by an abundance of scholarly work. “The history of marriage is one of both continuity and change.”
For centuries most people didn’t get married at all and marriage was for the aristocracy bothered about passing on their property and riches and wanting an heir and a spare.
Today marriage in our society, is about love. Finding a life partner who will be with you, care for you and love you through good times and bad times. It’s not about property, it’s not about procreation. It’s about love. And finding a soul mate is not exclusive to heterosexual couples.
No one owns the copyright to the word marriage.
I have been lucky enough to have been happily married for 26 years. You’ll have to ask my husband whether he thinks the same. Anyhow, I believe everyone in an equally loving relationship, should have the same opportunity and have their relationship recognised in law in exactly the same way.
Finally I should just to comment about what has really heartened me throughout the lead up to this debate and that is the level of engagement from the younger members of our society and listening to their views. They have LGBT friends who are just that, friends. And why can’t they have the same rights as everyone else? We owe it to them.
In 1967, in a ruling which overturned bans on inter-racial marriage in the US, the judge Earl Warren stated
“The freedom to marry has long been recognised as one of the vital personal rights, essential to the orderly pursuit of happiness by free man.” I would add woman to that but otherwise, that is my belief too and anyone else who believes that should support this policy letter.
And in the end that’s why we need to support this policy letter today, for my children’s generation. To enable all of them to have the opportunity of happiness.