Monthly Archives: April 2013

“LEGITIMATE EXPECTATION”, ADMINISTRATIVE POSTURING, AND SOCK-PUPPETS

“The 2010 “review” of the Crown Dependencies by the Justice Select Committee – and the consequent response by the Ministry of Justice – can be cited as a telling and striking example of just such a “waltz” through the predictable, yet ultimately vacuous tropes of idle administrative  posturing.”

As things seem fairly quite at the moment, I thought readers (the good guys at least) might find this section from the imminent London legal action entertaining.

Stuart Syvret  

(What follows is a Section from “Combined Legal Application – Stuart Syvret vs. Monarch, Crown, Privy Council, Secretary of State for Justice, & United Kingdom Attorney General”) 

The Crown Dependency of Jersey: Recent Scrutiny – and Recent Policy Statements – by the United Kingdom

“Legitimate Expectation”.


1.     This part of the application considers what are the most recent and up-to-date examples of scrutiny, and of policy statements by the United Kingdom authorities in respect of UK government, Crown and Privy Council responsibility for the Crown Dependencies.


2.     This part of the application introduces the “legitimate expectation” arising – and the general background “conduct”  of the respondent authorities  – towards the applicant and other members of the public, in light of the public, policy statements and commitments made by the relevant UK authorities.

Legal Relevancy:

3.     Judicial review case-law tends to the position that such tests as Wednesbury unreasonableness, procedural unfairness and substantial unfairnessare more weighty causes-of-action against a public authority than “legitimate expectation” on its own – nevertheless, such is the startling and repeated breach by the defendant authorities of their own, declared, published policies – that the arising breaches of legitimate expectation deserve a particular focus.

4.     This is not to say that procedural unfairness, substantive unfairness, Wednesbury unreasonableness – and other causes – are not founded in this case – they most certainly are, and are argued separately.  

5.     But such is the startling failure of the defendant public authorities to adhere to, and to carry-out their own declared, published policies, the court must examine the conduct in question.

6.     Firstly – let it be clear what the relevant, declared, published policy is.

7.     In addition to the established constitutional position – and various historic precedents for intervention by the United Kingdom to ensure good governance, the proper rule of law and good administration of justice in Jersey – none of which decisions and actions and powers have been nullified by subsequent changes in law or policy – the most recent, written policy is to be found in the  “Government Response to the Justice Select Committee’s Report: Crown Dependencies”, published in November 2010 (copy supplied), and – expressly – a Foreword to that document by the Secretary of State for Justice.

8.     Indeed, the Introduction to the said document unambiguously states, “The Government’s view of the current position is set out in the Ministerial foreword to this document.”

9.     Especially noteworthy and relevant from that Foreword are the following passages: –

a.     “Relationships with the Islands are the responsibility of the United Kingdom Government as a whole. The Ministry of Justice holds the policy responsibility for the constitutional relationship but all departments should be engaging routinely with the Crown Dependencies where appropriate to their policy responsibilities.”

And: –  

b.     “The United Kingdom Government has a responsibility to ensure that the Crown Dependencies have the advice and assistance necessary to function as socially and economically sound democracies.”

And: –

c.      “The United Kingdom respects each Crown Dependency’s laws and policies as the expression of the will of a democratic government with the power of self-determination. The UK government is responsible for the Crown Dependences’ international relations and ultimate good governance and has the commensurate power to ensure these obligations are met.”

10.                        Thus politically – and in the context of this application to court and the invoked legal principles in particular – there can be zero credible dispute to a core contention and position that the defendant public authorities do, in fact, have the responsibilities and powers in question. The defendant Secretary of State for Justice declares so in current, published policy.

11.                        Before going on to address, in the next section, what that policy requires – and how the relevant authorities have failed to honour it – it is useful to lay-out some observations concerning what might be termed the general structure, methods and habits by which the United Kingdom goes-through-the-motions of examining the conduct of the Crown Dependencies, and the UK’s arising obligations to the residents thereof. For such customary examinations as do take place – for example, that of the Justice Select Committee, and subsequent departmental responses – are invariably defective and woefully inadequate.

12.                        The findings of the Justice Select Committee are, of course, the work of a parliamentary body, working under parliamentary privilege, and it has no executive power or responsibility.  This application makes no challenge to the right and power of the Committee to find as it sees fit.

13.                        However – the application has a perfect right to state plainly when that Committee has clearly got it wrong – and come to erroneous conclusions which are simply not remotely compatible with the reality-on-the-ground in respect of the actual conduct of the insular authorities in the Crown Dependency of Jersey.

14.                        It goes without saying that this application is directed against those public authorities with executive power and responsibility for the matters at hand. Nevertheless, as those authorities will attempt to claim some form of justification for their failures because of the failure of the Select Committee to highlight the serious problems, that defective scrutiny process deserves some description.

15.                        When scrutinising the words of the United Kingdom authorities when it comes to issues of good governance and the proper rule of law in the Crown Dependencies, it is very difficult to escape the conclusion that some form of charade is being engaged in; that boxes-are-being-ticked – motions-gone-through – and words being spoken and written to fulfil certain “appearances” – without there ever being any serious intent by, say the Crown, Privy Council or the Ministry of Justice, that they would be held to the principles and policies they espouse, or that they would be expected to take action upon them.

16.                        In the case of Jersey, that impression has been solidly built-up on the basis of at least three decades of fine words that say one thing – contrasted with acts and omissions (which this claim argues are ultra vires) that do the other.

17.                        The 2010 “review” of the Crown Dependencies by the Justice Select Committee – and the consequent response by the Ministry of Justice can be cited as a telling and striking example of just such a “waltz” through the predictable, yet ultimately vacuous tropes of idle administrative  posturing.

18.                        Some parts of the 2010 Justice Select Committee report are so protective of the status quo and the power of the local potentates in Jersey – they could have been written by the Chairman of the Policy & Resources Committee of the City of London Corporation, and that syndicate’s “Remembrancer”. Indeed, perhaps they were? That is not a flippant speculation.

19.                        Yet another “review” – by the Justice Select Committee has been announced. This bears all the hall-marks of panic, given the increasingly undisguisable breakdown in the basic rule-of-law in Jersey – for example, the frank abandonment of even any pretence that the prosecution function – or judiciary – in Jersey are anything other than party-political protection-rackets. The review will go through yet another “polite” and “plausible” exercise – in order to produce yet another cloak of “respectability” behind which the rampant Crown corruption in Jersey can be hidden and the attendant ultra vires inactions and failures of the Ministry of Justice can be excused.

20.                        Consider, for example, the requirements imposed by the Select Committee on written submissions and accompanying evidence. According to the web site of the Justice Select Committee, submissions should “be about 3,000 words in length / run to no more than six sides of A4 paper”– and – “as far as possible comprise a single document attachment to the email”.  Those conditions exclude – just by way of one, single example – the submission of the 94 page interim statement of the former Jersey Police Chief Graham Power, Queens Police Medal – a man who was illegally suspended by a conspiracy involving the corrupt Jersey (but London-appointed) Attorney General, corrupt subordinate police officers, corrupt Jersey politicians and corrupt judges.

21.                        How the latest review by the Select Committee will go is entirely predictable. A few token “rebellious” submissions will be made – a few opponents of the corruption of the Jersey polity will be entertained at public hearings where they will give live evidence as witnesses – some token acknowledgment of such concerns will be expressed by the Committee – but the vast majority of written and witness submissions will be from professional “Men In Suits” – who will espouse just how fine the “ancient privileges of the Crown Dependencies” are – how “the current arrangement matches the interests of the United Kingdom” – and how “everything in the garden is rosy in terms of good governance and justice in a place like Jersey” – and “even if it wasn’t, why, then the Justice Secretary could intervene.”

22.                        And that will be that.

23.                        Another cosmetic exercise – will have succeeded in doing what such exercises always do – namely, manufacturing a “clean-bill-of-health” and a “justification” for non-intervention.

24.                        The modus operandi of the Justice Select Committee is not that of a body remotely seriously interested in genuinely inquiring into dramatic and evidenced matters concerning breakdowns in good governance and even the basic rule of law in the Crown Dependency of Jersey – and the attendant plain failure of the relevant UK authorities to prevent such criminality and decadence.

25.                        However – the legal reality of the United Kingdom’s constitutional responsibilities – and the startlingly disingenuous nature of how those responsibilities are dodged – is becoming increasingly obvious to observers around the world.

26.                        In the book, Treasure Islands, Tax Havens and the Men Who Stole the World, (ISBN 97818 4792 1109) Nicholas Shaxson writes (page 17, paragraph 3):

a.     “Britian’s understated but controlling role is the bedrock that reassures flighty global capital and underpins the overseas territories offshore sectors. The gesture towards local representation keeps Caymanians happy, and as with the Crown Dependencies, affords Britain the chance to say, “It’s not our business to interfere” when something unpleasant breaks the surface. Periodically, the charade is exposed. In August 2009 Britain imposed direct rule on the Turks & Caicos islands after corruption there spun out of control. Britain plays down these episodes as much as possible, to distract from its control.”

27.                        The corruption that is rampant in the Jersey polity is – evidencedly – worse – dramatically so – than the corruption in the Turks & Caicos islands. Indeed – this was – frankly the evidenced case by 2009 – when the Justice Select Committee decided to undertake its previous review.

28.                        Yet that review and the response of the government was the predicable “gentlemen’s club” confection. But – for all those defects – this application cites and uses the response of the Ministry of Justice – and does so because that response still embodies the traditional acknowledgment of ultimate responsibility for good governance in the Crown Dependencies such as Jersey – and this application is going to – finally – hold the UK to its words.

29.                        For this is an important point – even though the Select Committee plainly – and on the evidence – got things wrong in certain respects – those errors do not prevent the Committee – nor the Ministry of Justice – both coming to, and agreeing with, the ultimate conclusion that the United Kingdom is responsible for good governance, the rule of law and good administration of justice in the Crown Dependencies, and the overarching responsibility of the United Kingdom for adherence to international treaties; for example, the European Convention on Human Rights.

30.                        Remember these words from the Foreword by the Secretary of State for Justice:

a.     “The UK government is responsible for the Crown Dependences’ international relations and ultimate good governance and has the commensurate power to ensure these obligations are met.”

31.                        But, of course, whilst that ultimate constitutional and legal responsibility of the UK government is found – and agreed – by both the Select Committee – and the Secretary of State – another commonality of ground between both of those parties is that “no intervention is presently required, because – yes, whilst hypothetically possible that things could go very badly wrong in a Crown Dependency – they haven’t done so – so at the moment, everything in the garden is rosy.”

32.                        This application will, in due course, move on – from the general constitutional and legal position as arrived at by those UK agencies – with which the application agrees – to the particular– concerning the standards of governance, justice, law-enforcement and human rights in the Crown Dependency of Jersey, as claimed by those UK agencies – with which this application does not agree.

33.                        To illustrate the mutually-beneficial, tacit, “everything-in-the-garden-is-rosy” cosmetic consensus propounded by the Select Committee, Secretary of State and the Jersey oligarchy, it is useful to cite this paragraph from the Introduction to the government response – and note most carefully two fundamental – and telling  – omissions: –

a.     “The Government accepts the Committee’s advice that the Ministry of Justice should restrain itself from engaging in areas of work which do not directly concern its primary constitutional role. This is entirely in line with the way the Crown Dependencies should be viewed – as self-determining jurisdictions with sufficient autonomy and expertise to engage the UK Government as they feel appropriate. This report explicitly recognises this and sets out steps to facilitate the necessary transition in ways of working. The Ministry of Justice believes this change of policy will have the additional benefit of making best use of the resource available.”

34.                        A casual reader of that paragraph – which represents a cosy and ‘happy’ PR ‘front’ that each of the three parties – Secretary of State, Jersey and Committee – can sign-up to with mutually comfortable avoidance of controversy – would never know that the Secretary of State and Crown’s position is both ultra vires – and vastly more directly involved and responsible.

35.                        The quoted paragraph fails to recognise that: –

36.                        A public authority may not – in law – “abdicate” its powers – nor allow its authority and power to be “puppeteered” or “ventriloquised”;  

37.                        The key Offices in Jersey – the very powers that should be most relied upon to ensure good governance, rule of law and good administration of justice – but which are – on the evidence – at the heart of the collapse thereof and involved in rampant corruption and political oppression – are, in fact, not local, Jersey authorities – but are – actually – the expressly and directly appointed agents of the Crown, and of London itself.

38.                        The fact is the UK Justice Department (like the Home Office before it) and the Privy Council have allowed themselves to become “captured” by the Jersey establishment over the decades. Resources – such as funding, staff and secondments flow from the Jersey oligarchy – into the Justice Department and the “Crown Dependencies section” and other parts of Whitehall – and a variety of personal and professional entanglements and contaminations have been allowed to flourish which – structurally – render the relevant United Kingdom authorities – such as the Secretary of State, Privy Council and the Jersey-based Lieutenant Governor – not capable of discharging their powers as  “public authorities” on an objective, exclusive basis – because – “discretionary decisions” and “powers” that should be exercised exclusively by the lawfully empowered authorities in question, are being dramatically influenced and – de facto – made by external – conflicted – agencies.

39.                        Indeed – it is quite remarkable – startling even – in a way that raises the question whether, in fact, anyone involved at the Department of Justice, and Privy Council, actually understands even the rudiments of settled administrative law – that the government Response document freely admits – even boasts – of its ultra vires “abdication” of power and exclusive authority.

40.                        Consider the following passages taken from that document, which are hereby cited as evidence: –

a.     The Ministry of Justice agrees some clarification on the practical application of this relationship would be helpful. The Ministerial foreword to this response answers the Committee’s recommendation that we produce a simple account of the constitutional position. We intend it to provide a blueprint for UK engagement with the Crown Dependencies and to bolster the recognition of their separate identities. We agree that secondments by Crown Dependencies staff to central Government Departments could bring benefits in terms of increased mutual understanding and would be happy to help facilitate these.

And: –

b.     “However, it is to be hoped that increased opportunity for the Crown Dependencies to build relationships across Whitehall will raise the capacity of both Government Departments and the Crown Dependencies to engage effectively on issues like this.”

And: –

c.      The Ministry of Justice envisages a period of transition from the current way of working to the new which will involve both awareness raising in other Government Departments and supporting the Crown Dependencies in developing an engagement strategy. Lord McNally will be writing to all Government Departments to draw their attention to this response and remind them of their responsibilities regarding the Crown Dependencies. The Ministry of Justice will also be exploring a range of ways to disseminate this information at official level”.

And: –

d.    “The Ministry of Justice recognises its responsibility, on behalf of the Crown, to ensure good governance in all the Crown Dependencies. We will continue to keep a watching brief on all relevant matters and maintain our strong relationships with the Islands that will help enable us to resolve any problems which may arise in a collaborative way. We will provide advice and support to the government and Chief Pleas of Sark as the new democratic government matures.”

And: –  

e.      “We accept the Committee’s view that this can, on occasion, amount to a duplication of effort with both the Islands’ Law Officers and UK Officials undertaking a similar analysis. We consider that if the Islands’ Law Officers provided a detailed report of their analysis of a Law and how it might touch upon international or constitutional issues then the need for such questioning from the Ministry of Justice would be substantially reduced and could be restricted to specific triggers,for example any Laws concerned with the constitutional relationship, or which had significant international considerations – for example significant risks of challenge under the ECHR, EU law or other international obligations. It should be noted that this change, whilst generally more efficient for both the UK and the Islands, may require the Island’s Law Officers to commit more resource to this process, although we would expect that the analysis which would go to such a report is already carried out by the Islands’ Law Officers. We will work with the Crown Dependencies Law Officers to put an appropriate procedure in place.

f.      While the Ministry of Justice would expect to be in a position to submit for approval for Royal Assent any Law which received a satisfactory report from the Islands’ Law Officers, the Ministry of Justice wishes to make it clear that changes to this process would not affect the constitutional right of the UK to refuse to recommend for Royal Assent a Law which the UK considered should not be so approved.”

And: –

g.     “We are confident that the guidance currently being developed between the Crown Dependency Law Officers and the Ministry of Justice will clarify and improve arrangements for handling Crown Dependency legislation. We are grateful for the constructive engagement by the Attorneys General of the Crown Dependencies in the next drafting stage of a revised set of guidance for the scrutiny of insular legislation. The new guidance should, as the Committee suggests, set out with clarity the means by which the UK’s responsibilities for insular legislation may be discharged; the constitutional grounds on which insular legislation may be challenged; the responsibilities of ministers and officials at each stage of the scrutiny process; and appropriate time limits for processing legislation prior to Royal Assent.”

41.                        There is another – fundamentally important – factor, not mentioned in the government response – but which reflects precisely the same type of “capture” and of “clientism” we see expressed in the above policy-statements – and that is the position and role of the Crown’s Lieutenant Governor in Jersey.

42.                        Ostensibly, the Lieutenant Governor is the agent of the Crown – the monarch – empowered by her Majesty’s personal Letters Patent, to independently represent Crown interest and the general interest of her Majesty’s subjects in Jersey.

43.                        When considering the labyrinthine and obscure networks of contacts, relationships and communications between Jersey and the United Kingdom authorities – of all of the agencies that most needs to be independent of – and sceptical towards the Jersey potentates – and healthily at arm’s-length – it is the Lieutenant Governor and his Offices.

44.                        Instead – that Office has become wholly captured – indeed, even apparently corrupted – by the Jersey establishment – and has been perverted from the oversight role it should be exercising – and bent to the complete opposite role – namely a champion of, a defender of, a “fixer” for – the Jersey oligarchy.

45.                        This ultra vires “clientism” and “abdication” of power by the relevant UK authorities is to be seen in the fact that the Office of Lieutenant Governor – Office-holder and staff – are actually funded by Jersey. Further – and quite extraordinarily – the indigenous Jersey potentates have had ceded to them, by the Crown, the power to de facto choose who the Lieutenant Governors will be, and to veto any they find “unacceptable”.

46.                        That state of affairs – even taken on its own – is so, frankly, extraordinarily ultra vires – one couldn’t make it up.

47.                        Taken in-the-round, it is plain that the position of the Crown, Privy Council and Secretary of State is ultra vires on grounds of “abdication”, “fettering” – and of permitting their powers and responsibilities to be “ventriloquised”  and “puppeteered”.  

48.                        Thus – even if the relevant and various “discretionary decisions” by the defendant authorities were hypothetically “reasonable”  and otherwise “lawful” (which they are not)  – on these grounds alone – that of “abdication”, “fettering”, and being “puppeteered” – the decisions in question are unlawful – and must be set aside by the court.

49.                        The relevant “discretionary decisions” of the “public authorities” in question – must be their decisions – taking into account all relevant – and only relevant – factors. “Discretionary decisions” which are contaminated by third-party actors, and which take into account non-relevant factors – are not lawful decisions.

50.                        The administrative law case-law is decisive – simply crushing.

51.                        If we are to choose a single, short description – which accurately captures the nature of the relationship between Jersey’s entrenched and overtly stagnant oligarchy – and the United Kingdom authorities – the word “clientism” captures the situation most economically. “Clientism” is the tendency of resident in-country staff of an organisation to regard the officials and people of the host country as “clients”. This condition can be found in business or government. The term clientism is somewhat similar to the phrase “gone-native”.

52.                        The Crown, Privy Council and Secretary of State for Justice – and their agents, for example the Lieutenant Governors – have “gone-native” – and regard the Jersey establishment and their allies in the City as “clients” – rather than what they, in plain reality, are – a corrupt, self-protecting, overly-powerful and frankly dangerous set of backwoods and faintly crazed oligarchs who require – in the name of the public-good – the most rigorous scrutiny and challenge.

53.                        On a day-to-day basis – and in occasional official policy statements such as the 2010 government response to the Justice Select Committee – we are sold an image of a dialogue – a relationship – between two separate, independent, authorities – the Secretary of State for justice – and the insular authorities of Jersey.

54.                        That image is false.

55.                        It is deliberately cosmetic.

56.                        That being so – how might we, then, accurately perceive the true nature of what we see?

57.                        The Jersey oligarchs are wholly entrenched in the corridors of power in London – such is their degree of “capture” of the London authorities, such as the Lieutenant Governor and Crown Dependencies Section of the MoJ. Thus the image of the relevant UK authorities as meaningfully “independent” of Jersey mafia interests is legally fictitious.

58.                        But – the fiction flows in the other direction too.

59.                        London is swift enough to always describe the Jersey establishment as the “insular authorities” – and as an “independent”, “self-determining” entity – thus bolstering the view that any intervention would be some form of monstrous, colonial imposition.

60.                        But who are the real powers in Jersey – who have manifested the catalogue of misfeasances, negligences, malfeasances, political oppressions and undisguised corruptions? Those are Crown Office holders – Lieutenant Governor, Bailiff, Deputy Bailiff, Attorney General and Solicitor General – and all are creatures of – agents of – London. All are appointed – and dramatically and unassailably empowered – by her Majesty’s Letters Patent. Not one of the immensely powerful Office Holders in question is answerable to any entity in Jersey – at all.

61.                        So – in fact – the “insular authorities” – are, in reality – the London authorities.

62.                        Returning to the question – “what, then is the true nature of the “relationship” and “dialogue” we see between the Secretary of State and the Jersey potentates?”

63.                        It is this: – imagine a man with a sock-puppet on either hand – and pretending that each puppet is engaging the other in a conversation. In our analogue – the sock-puppet on one hand is the Secretary of State – and the sock-puppet on the other hand is the Jersey Law Officers.

64.                        The puppeteer conducting this charade – is the Privy Council.

 [Section from Combined Legal Application – Stuart Syvret vs. Monarch, Crown, Privy Council, Secretary of State for Justice, & United Kingdom Attorney General.]