Independent Jersey Care Inquiry (8) ---- A Licence to Bill?

Next Tuesday the States is due to debate a proposition lodged by Chief Minister Gorst seeking approval for additional funding to enable the Committee of Inquiry (COI) to complete its review which is just about to enter its second year. Trying to come up with a figure for any Inquiry is not just difficult but almost impossible because no one knows how many witnesses will come forward or what evidence will come to light. The Jersey Inquiry is proving to be no different.

It was anticipated that around £6 million would be suffice but 12 months on not only has that figure been spent but a further £13.7m is being asked for. Senator Gorst has repeatedly proclaimed his support for the COI and although his proposition (see below) is well meaning I believe it is flawed so it's pleasing to see that Deputy Tadier has lodged amendments seeking to delete 3 of Senator Gorst's proposals.

The Amendments can be read below but in summary they seek to delete the sub-paragraphs which will cap the £13m, impose a time limit and interfere with the way the COI is conducting its Inquiry. All 3 sub-paragraphs have a single theme and that is to save money. That is a theme I don't have a problem with but Senator Gorst and the Panel Chairman Frances Oldham should be keeping a close check on how the money is being spent and whether it is justified. From the payments made to date it is evident that there is little monitoring particularly of the legal fees incurred by States Departments which appear to be obscene.

Although the proposition and amendments have been lodged there is no certainty they will be supported as there is a school of thought that much of the extra funding will go into the pockets of the Island's Lawyers. There may be more than a whiff of truth in that claim as can be seen from the answers given to a set of questions asked by Deputy Mike Higgins at the last States Sitting.

The full set of questions and answers can be accessed below and readers will see how the money has been spent to date. As anticipated a fair chunk of the money has been spent on set up costs, accommodation, travel and other expenses some of which will not be recurring. However one will note that several millions have already been spent on legal fees with over £1.8million paid to lawyers representing States departments and individuals. Who approved the appointment of the lawyers, why were they appointed, who are the individuals, do they include former staff and/or State Members, why is the money coming out of the Inquiry fund and not from the departments and individuals concerned? Perhaps if it came from Department funds they might be more than circumspect about spending it.

If £1.8m has been spent during the stage when only the victims have given evidence, how many more millions will be spent when the COI starts looking into the Departments (in)actions and Operation Rectangle. In football parlance we have only had the pre match warm up, the match is only about to begin.

It is also worth noting that on top of the £7m a further £4.6million has been spent in relation to the Redress Scheme. Ex-gratia payments totalling £1.8million have been made to 116 victims. The victims would have been entitled to compensation much earlier had the climate which prevails today been open to them in the past but the legal fees need an explanation. The legal fees incurred by lawyers representing the Care Leavers (Compensation Scheme) amount to £408k. However the lawyers representing the States have been paid over £2 million. Why is there such a discrepancy in the fees, who has authorised the payment and were the fees justified?

Whilst I have expressed concerns over fees paid to local lawyers it would be remiss of me not to comment on the £2.7million paid to the Inquiry Lawyers. I understand that there is a fee structure similar to that paid to those representing the Care Leavers and victims. It should be recalled that legal teams have travelled far and wide taking statements from witnesses. They have also spent a great many hours at the Hearings. Can that be said of the lawyers engaged by States Departments?

I want the COI to continue and whilst I accept there will be occasions when lawyers will be required they should not be given a licence to bill for work that is not justified and at exorbitant rates. Sub paragraph (iii) of paragraph C of Senator Gorst's proposition will require the Inquiry and the States to jointly publish on their websites details of expenditure on a monthly basis.  This is much welcomed and I look forward to a much more detailed breakdown of the expenditure incurred by States Department along with reasons as to why legal assistance was required.

Deputy Higgin's Questions can be read HERE
Senator Gorst's Proposition can be read HERE
Deputy Tadier's Amendments can be read HERE

Independent Jersey Care Inquiry (2) ---- A Breath of Fresh Air?

The Independent Jersey Care Inquiry kicked off yesterday which is some 3 years and 4 months after the States grudgingly gave approval to establishing one. It was not established at the behest of the Council of Ministers but as a result of stubborn prodding by a handful of "dissident" backbenchers and bloggers.

Although some attention will be given to the manner in which the police handled the abuse investigation. (Operation Rectangle), hopefully enough victims and witnesses will come forward to explain what really happened to them,  why were so many young people abused, why did the abuse go unreported and who was responsible?

The Inquiry Team has started with a blank piece of paper and over the past months members has been taking statements from a diverse number of witnesses. As reported in a blog published on 10th June I have been interviewed and my statement eventually contained 38 pages along with 30 supporting exhibits. 

Like many other witnesses I don't know whether I will be called to give oral evidence and feel in limbo, that is a view shared by other witnesses. I would like to take this opportunity of offering the Inquiry Team some constructive criticism; not only must it keep witnesses updated but it must provide answers to valid questions asked by a number of interested parties. Also it must ensure that its  Website which is a vital conduit is constantly updated.

Yesterday I attended the first Hearing in which the COI Chairman Frances Oldham again called for witnesses to come forward and making it abundantly clear that witnesses will be given time to give their statements and be under no pressure as a priority for the Inquiry team is the well being of those who recount, possibly for the first time, their experiences in childhood. Very importantly she added that COI will conduct its work independently of the States of Jersey, the Police, any other organisation or individual in Jersey.

There followed a lengthy, well researched, informative and very professional presentation by the Council to the Inquiry Patrick Sadd and Harriet Jerram of Outer Temple Chambers in London who outlined the many issues that the COI will encounter and set out details of Phase 1 of the Inquiry.

 
Patrick Sadd compared the way in which the UK legislation had evolved and had to be updated at regular intervals to safe guard the interests of the child rather than those in authority. He reported that a constant theme in most Inquiries had shown that problems had arisen because of poor management, lack of training and poor staffing arrangements.

When Mr Sadd outlined the Jersey legislation it was evident that for a very long time there had been little statutory legislation and when new laws were drafted they were often out dated by the time they were approved.  I will be most surprised if the COI does not find evidence of poor management, lack of training and staffing problems in our Jersey Homes.

I was pleased to hear that the way in which the Honorary Police deal with juveniles at Parish Hall Inquiries will not be ignored. From my experience it is evident that there is little consistency and often young people have been prosecuted when pre-court action would have been preferable.

                                   

Ms Jerram in her excellent presentation included a definition of abuse which covered every conceivable aspect of abuse.She also took the opportunity to ask again for anyone who has evidence to come forward and tell their story- including senior managers, police officers, support staff, doctors, teachers and anyone who had contact with children or young people. I can only echo that view and remind those who are hesitant that there will not be another opportunity so take it. If in doubt contact the Inquiry Team who will advise you as to the value of your information. Its website can be accessed HERE

Speaking with passion and empathy Allan Collins, on behalf of the Jersey Care Leavers' Association said that he was encouraged from what he had heard so far. The range of breadth of the Terms of Reference is demanding; many children in Jersey over many years were sexually and physically abused. That fact has to be grasped and accepted. The COI will have to examine the culture, practices and ethics of those entrusted with the care system in Jersey.

He added that many children in Haut du la Garenne were made to feel like second class citizens by sections of the public and begs the question why?  

I felt what was being said yesterday was a breath of fresh air whereby intelligent people had quickly learnt of the inadequacies and shortcomings of those tasked with the welfare of young people and witnesses would be produced to substantiate that view. 

These are early days and the rest of this week will be devoted to opening addresses from those people representing the public bodies. However I came away from yesterday's Hearing with a feeling that the COI is business like and thorough and will not weaken at the knees when encountering those who for far too long have been oblivious to the welfare of the young and vulnerable in Jersey.

 

Jersey's Historical Abuse Inquiry--No Stone Left Unturned??

On 1st March 2011 the States approved P19/2011 as amended; which requested the Council of Ministers (COM) to establish a Committee of Inquiry (COI) into Jersey's Historical Child Abuse. It has taken the COM two years to draft a proposition seeking to provide a mechanism to appoint a COI along with its Terms of Reference (TOR).

The public is entitled to know why it has taken 2 years to lodge a proposition which is due to be debated next Tuesday 5th March. Very few people are aware of the reasons for the procrastination or the difficulties a small group of interested stake holders had to overcome to ensure that the proposals will do justice to the Island and the abuse survivors in particular.

Two years ago Senator Le Gresley lodged a proposition P19/2011 requesting the COM to reconsider its decision not to establish a COI into the Historical Child Abuse. I was of the view that the COM would be only too pleased to accept the proposition, would take months to reconsider and come back to the House saying that it was retaining its original decision.

It should be noted that soon after the outset of the police investigation into Jersey's historical abuse in late February 2008, the Chief Minister at the time Senator Walker lodged a Report R27/2008 which contained 6 relevant issues and said that if they were not addressed the COM would establish a COI. He also said there would be no cover up, no expense would be spared and no stone would be left unturned.

I lodged an amendment to Senator Le Gresley's proposition asking the States to consider whether the 6 issues had been addressed, and if not then the COM should establish a COI. I also made it clear that if it was agreed to establish a COI its TOR should include addressing any other issues that had arisen during and/or had emanated from the investigation.

Deputy Tadier lodged an amendment to my amendment in which he very importantly asked that the TOR should include a review of the role of the Crown Officers and "Was a consistent and impartial approach taken when deciding on which cases to prosecute; and was the process free from political influence or interference at any level?”

Following a 5 hour debate Deputy Tadier's along with several of my 6 issues received States support by 37 votes to 11  and the COM was charged to lodge a proposition to establish a COI along with its TOR. It should be noted that at the end of that debate a promise was made by the then Chief Minister, Senator Le Sueur that, I along with a member of the Jersey Care Leavers Association, Deputy Tadier and Senator Le Gresley would be involved in drafting the TOR.

We were of the opinion that there had to be transparency in the appointment of the COI and its TOR should ensure that all avenues were explored and in the words of the former Chief Minister Frank Walker that “no stone would be left unturned” It also wanted to work closely with the COM to ensure that both parties were satisfied with the TOR and that the COI could get underway without undue delay.

In June 2011 we were asked to comment on a proposal to appoint Verita to draft a set of proposals along with TOR. We unanimously supported the proposal. In November 2011 following wide ranging consultation Verita came forward with a set of proposals along with TOR which appeared to be sound and robust.

It was evident that they were too robust for the COM because last summer it appointed Andrew Williamson to comment on the Verita Report. Mr Williamson came up with a watered down set of proposals which clearly influenced the COM.

Following a further period of procrastination on 6th November 2012 the COM lodged its proposition P118/2012 seeking States approval to establish a COI along with its TOR.  The date for debate was set for 15th January.

Unfortunately although the COM was frequently reminded, it did not keep its promise to discuss the way forward with Deputy Tadier, the Care Leavers represented by Ms Carrie Modral and myself (the Group). Following the Proposition’s lodging the Group was enlarged to include a small number of States members and very importantly Daniel Wimberley the former Deputy of St Mary.

The Group noted that the TOR fell far short of Verita’s recommendations so on 5th December wrote and submitted a set of amendments to the COM asking to meet to discuss them. Unfortunately on 18th December without consultation the documents were submitted to Verita for comment. They replied on 7th January and were generally supportive of the Group’s amendments.

Unfortunately the COM again declined to meet the Group to discuss the amendments or Verita’s response and on 5^th February went ahead and lodged most but not all of the Group’s amendments.

Doing this without meeting the group has turned out to be premature. Since that date (February 5th), we have had to lodge amendments, there have been meetings with the COM, they have lodged amendments and we have lodged a final amendment. It is all very confusing and could (mostly) have been avoided. However, as the saying goes, we are where we are.

The Group was of the view that after the COM lodged its amendments on 5th February that some lacked clarity, excluded some important areas and the issue of the Crown Officers position fell short of  Deputy Tadier’s approved amendment to P19/201. As a consequence of the COM's failure to accept or even discuss all of the Group's amendments Deputy Tadier lodged amendments to the COM's amendments on 12th February 

As a result a meeting was quickly arranged for the next day and the Group finally met the Chief Minister Senator Gorst and Senator Le Gresley to discuss the amendments and what common ground could be agreed.

The Group has always been of the belief that it should be for the COM to lodge any amendments to the TOR as they were more likely to be approved than if lodged in Deputy Tadier's name. The meeting on 13th ironed out a number of wrinkles and the Group is appreciative of the support, although belatedly from Senator Gorst but as I have pointed out above, it all could have been so much easier if Ministers had met with us far earlier. In a spirit of compromise it was agreed that Deputy Tadier would withdraw his amendments and some would be incorporated in further amendments which would be lodged by the COM.

On 27th February the COM lodged a further amendment(3) which will widen the scope of the COI to consider alleged abuse in non-States run establishments providing for children. It has also amended a limb of TOR 13 which relates to the Crown Officers. The amendment is subtle and instead of the words "whether those responsible for deciding on which cases to prosecute took a consistent, professional and impartial approach?" the words consistent and impartial have been removed.

The COM's reason for the amendment is based on an assurance from Verita that the word "professional" is sufficient. Verita says that "A characteristic of professional behaviour is one of objectivity. Objectivity means thinking and action undistorted by emotion or personal bias. The word "professional" therefore implies the characteristics of both consistency and impartiality."

Whilst the Group was willing to compromise by supporting the above amendment, it was of the view that the COI should not be constrained when reviewing the Crown Officers' role particularly in view of the States approving Deputy Tadier's amendment 2 years ago. It believes that the COM is being too prescriptive and should not be setting out the exact and only mechanism by which it will allow the COI to examine prosecution files.

Much concern has been expressed about the perceived inconsistency whereby some people have been prosecuted whilst others particularly in more senior positions have not. To echo the words of the former Chief Minister Walker, "there will be no cover up." So how will the COI address that allegation if its hands are tied? On 26th February Deputy Tadier lodged a further amendment Amd (2) asking the States to approve his amendment whereby the prosecution files "may be examined in a manner to be determined by the Committee."

The Group is mindful that the COM is being advised by the AG who is conflicted and is concerned that in paragraph 11 in his Comments lodged on 31st January he states "Neither the States nor a Committee of Inquiry can give directions to the effect that criminal proceedings should be brought in any particular case or given any direction relating to the investigative or prosecution process."

If the States or the COI cannot give directions, then who can? With respect to the AG and other Crown Officers they are public employees and should be accountable in some way to the Taxpayer. It may be that neither the States nor the COI can give directions, but surely someone should be able to ask the Crown Officers' to account for their decisions. That is what Deputy Tadier is seeking in his amendment and believes that the COI should have discretion in the way it conducts its inquiry into the prosecution process and it should not be constrained by the States Prosecutor who is also the legal advisor to the COM.

It is most unfortunate that the Chief Minister did not adhere to the promise given by his predecessor and work with the Group whose only objective was for an independent COI armed with the tools to do its job. Had he done so, not only would the matter have proceeded more expeditiously but there would have been a clear set of coherent Terms of Reference at the outset which would have made much easier reading than at present.

However "we are where we are" as the saying goes and hopefully the COM will lead from a united front including those Ministers who 2 years ago voted against establishing a COI.

It is important to show not just Island residents but the watching world that if the proposition and ALL the comprehensive and robust amendments are approved, it should allow the Committee to conduct an effective and timely inquiry which "will leave no stone unturned.”

I have previously published 3 Blogs relating to the Historical Abuse issue which may be helpful to those wishing further information.

Previous Blogs 30th  October 2012      Savile skeletons in the cupboard
                           6th    November 2012   One small step
                           28th November 2012    Possible amendments




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