ANATOMY OF A POLITICAL FARCE.
A Short Chronology
Of the Unintended Destruction
Of a Fundamental Freedom.
Regular readers of this blog will understand that my opinions of the Jersey media are not great – to put it “politely” (I have to practice “politeness” – it apparently counting for far more than the truth in the political environment of Jersey.) But praise where it is due, (which isn’t often, OK) the Jersey Evening Post of Saturday 14th June led with a story concerning an hitherto unnoticed piece of subordinate legislation which had been quietly slipped through as a ‘Ministerial Order’.
Many pieces of primary legislation contain within them the power to make subordinate legislation. In Jersey, subordinate legislation takes the form of Orders.
Primary legislation has to go through the island’s parliament for approval. But subordinate legislation can be made by the relevant Minister without further reference to the States assembly. It is the case that any Orders enacted by a Minister can be challenged in the assembly – but this happens rarely – as the purpose of the Ministerial power to make subordinate legislation is designed to enable very minor and non-contentious legal changes to be made without the delay, expense and bureaucracy of having to return to parliament every time.
So what was the Ministerial Order the JEP reported on yesterday? A change in parking fine rates, perhaps? Different procedures for obtaining a dog licence? Maybe a stipulation on the colour of traffic cones?
The effect of the Order was nothing less than the destruction of the near millennia old fundamental principle of Habeas Corpus.
‘Habeas Corpus’ is a Latin phrase which is roughly translated as ‘give up the body’. Which in plain English is taken to mean that no person (body) may be held in custody without necessary and lawful justification and authority – and against which there is a right of appeal. This right to not be held in custody without just cause is most famously expressed in the Magna Carta – or Great Charter – of 1215.
To say that this expression of such a fundamental freedom is powerfully defended in democratic societies would be an understatement. For example – in the United Kingdom, there has just been an immense political controversy over a law change which now enables the detention without trial of people for a maximum period of 42 days.
So controversial was this change that the Prime Minister, Gordon Brown, had to engage in a load of seedy deals with other minor political parties in order to narrowly get it through the House of Commons. So strongly do some people feel about such a dramatic restriction on a fundamental right that the Shadow Home Secretary has gone so far as to resign his parliamentary seat in order to fight the resultant by-election for the principle of civil liberties.
But in the strange parallel universe of Jersey, we learnt from the JEP on Saturday that Habeas Corpus had been dissolved – unnoticed – by the back-door – via subordinate legislation in the form of a Ministerial Order – with zero parliamentary discussion – let alone any public debate.
But don’t panic – instead of the stealthy dawning of some crypto-fascist new age – what we are faced with is the tedious predictability of yet another States of Jersey cock-up.
The error having been recognised – the contentious Order will be rescinded by the Home Affairs Minister tomorrow.
Had the Minister not expressed a willingness to rescind the order, I had given notice to the secretariat of the Jersey parliament – the States Greffe – that I would be tabling a motion tomorrow morning to have the Order rescinded.
Fortunately, that won’t now be necessary.
But what happened – why did it happen – when did it happen – and how did it happen?
And what was the true – yet unspoken – reason for introducing such a change?
I know the answer to this last question – and that answer speaks volumes about the state of public administration in Jersey.
I will tell you that answer at the end of this post.
But let us first examine the chronology of events during the last 36 hours.
The Jersey Evening Posts breaks the story in its Saturday morning edition.
I, in common with an awful lot of other people, read it and think ‘my God! Have the Council of Ministers finally taken leave of their collective senses?
I come to my computer to begin researching the matter and laying plans to challenge it politically.
I respond to the first e-mail I opened – amongst dozens of e-mails from concerned members of the public.
In this gentleman’s e-mail, sent at 12.44 p.m, he wrote:
“This news has left me absolutely speechless. The failure to publish a draft or to consult interested parties has, in my opinion, severely undermined the position of the Home Affairs Minister and has struck another blow to the States Assembly which is already in dire straits in the eyes of many of the populace.”
I reply to him and all other recipients of his e-mail at 13.20, in which I said:
“I too share your shock and alarm at this measure. We have seen the profound controversy caused in the United Kingdom concerning 42 day detention without charge. Yet here we see a measure introduced which is even more extreme – and introduced without any public discussion – let alone parliamentary scrutiny by the States.
This is one of the most profoundly misjudged political moves I have seen in years.
Senator Kinnard is a recipient of this e-mail. Let me ask her now whether she sees the error of this decision and will repeal it?
If she does not do so, I will take a proposition to the States seeking to rescind. That would be a debate that Senator Kinnard would have precisely zero chance of winning. So let us hope she sees sense and does not waste more of the assembly’s time.
There is certainly a debate to be had about society’s response to threats of terrorism – but the key point is just that: a debate.
Neither the public nor their elected representatives have had that debate. Yet we are expected to just accept the destruction of Habeas Corpus? It’s madness.”
At 13.22 I gave formal notice, via e-mail, to the States Greffe that on Monday morning I would be tabling a proposition to rescind unless Senator Kinnard, the Home Affairs Minister, agreed to voluntarily rescind the Order.
13.33: I forward to all States members the e-mail to the Greffe, and say:
“The e-mail correspondence I forward below is self-explanatory.
I have asked Senator Kinnard to voluntarily agree to withdraw her changes to legalisation which allows indefinite detention without charge.
I have given formal notice to the Greffe that unless I hear from Senator Kinnard by Sunday evening at the latest that she agrees to withdraw the change, I will lodge a proposition on Monday morning to seek to rescind.
I very much hope that this will not be necessary and that Senator Kinnard will see sense. The States are at such a low position now, we have to ask ourselves do we need yet more chaos heaped upon the island’s polity? I think not.
I would hope that members would add to my request to Senator Kinnard that she withdraw this appaling legislative instrument.”
At 17.31 the Chief Executive of the Home Affairs Department, Steven Austin-Vautier, e-mails all States members with an explanation of the change in which he cites the old and new version of the law – along with a singularly non-convincing attempt to suggest that the material change was insignificant. I reproduce in full his e-mail here as the two different versions he cites will enable you to gain an understanding of the legislative provision – and what the concern was:
“Dear States Members,
I am sending this advice to Members as the Minister for Home Affairs is out of the Island.
Members have been understandably concerned about the headline and article in the JEP today. The amendment made by R&O 69/2008 introduces no new powers for the Police. It makes a minor amendment to Code C of the Police Procedures and Criminal Evidence (Codes of Practice)(Jersey) Order 2004.
The version of Code C prior to the Order which amended it said:
” The detention of any person for a period in excess of 24 hours must be authorised by an officer of the rank of Chief Inspector or above, and the custody record will be endorsed to that effect. The officer conducting that review (my emphasis) will endorse the custody record and may authorise further detention up to a further 12 hours from the time of the review”
The amendment made by Order says:
” The detention of any person for a period in excess of 24 hours must be authorised by an officer of the rank of Chief Inspector or above, and the custody record will be endorsed to that effect by that officer. An officer of the rank of Chief Inspector (my emphasis) or above may authorise a further period of detention of up to 12 hours from the time of the review and may conduct further reviews and authorise further periods of such detention.”
The only material change that has taken place is that any chief inspector can carry out the detention review as opposed to the officer conducting the original review. This was a measure requested for practical reasons to give more flexibility to the review process.
The JEP article implies that Police powers have been extended without consultation and links the minor amendment to the law with the current controversy in the UK concerning detention for up to 42 days in connection with terrorism offences.
There are other procedural aspects to this Order which will be looked into once I have the opportunity to discuss this with staff during next week. I trust this clarifies the nature of the Order made by the Minister.
S W Austin-Vautier
Chief Officer Home Affairs”
I’m pretty sure my readers will have rapidly spotted the fatal flaw in both the explanation and the new legislation cited above. I replied to Mr. Austin-Vautier at 17.46. I reproduce my e-mail in full here:
I accept that the power to introduce such measures was included in PPACE – however, I feel your explanation here really dodges around a rather crucial point.
The original provision said: “up to a further 12 hours from the time of the review”.
The new provision says: “up to 12 hours from the time of the review and may conduct further reviews and authorise further periods of such detention.”
It seems to me – please explain if I’m missing something – that actually, this is the material change which is causing concern. That change being from ‘up to 12 hours’ to ‘further periods of such detention’.
If my interpretation is correct – the officer or officers in question could carry on authorising ‘further periods’ of detention indefinitely.
If this interpretation is incorrect, could you please explain why?
At 18.35 Mr Austin-Vautier replied to all States members in response to my e-mail above. Here is what he said:
“In reply to the points raised by Senator Syvret, I can see how one would arrive at that in interpretation; however, the operative phrase is “….from the time of the review” , which means the last review (I have checked this understanding with the Law Draftsman this afternoon). In effect, this means that, in theory, the Code allows more than one 12 hour extension. In practice, I am aware that the Police operate to the standards laid down in the UK which invariably means a maximum of 36 hours.”
In this e-mail the crucial point is conceded – namely that the 12 hour period of detention can be reviewed – and then renewed – indefinitely.
This could, indeed, mean that a person could be held without charge for five years, say – just so long as the relevant police officer reviewed and renewed the detention order every 12 hours.
At 18.44, Mr Austin-Vautier again e-mailed all States members to inform us that, fortunately, the Minster would rescind and re-consider. Here is what he wrote.
Notwithstanding the clarification provided this afternoon, the Minister for Home Affairs has discussed the position with the Deputy Chief Minister and it has been decided to withdraw the order to allow time for further consultation on the matter.”
The Order was made some days ago – but had gone unnoticed until Saturday. Then – in the course of one day we move from the destruction of Habeas Corpus being reported by the JEP – to securing agreement to rescind the Order in question at 6.45 on Saturday afternoon.
So what on Earth happened? Was this some neo-Stalinist plot to crush liberty?
No; – in many respects it would be quite a relief if the Jersey establishment were able to exhibit such intelligence.
The tedious mundanity of the situation is that a simple – yet profound – error was made in the drafting of the Order. The effect of allowing indefinite detention without charge – via the mechanism of 12-hour reviews – was unintentional.
Now – I said earlier I would explain the true reason behind this attempt to modify the law.
And it wasn’t the fault of the police – just to dispose of the inevitable Jersey establishment assault on the States Police because of the force’s investigations into the child abuse disaster.
So what was, then, the intended – real – purpose of the law change?
It was to burden the police with the responsibility for detaining people without charge over longer periods of time – such as long weekends. Why?
Because in Jersey – the magistrates and the lawyers have a rabid antipathy to working at weekends.
It is as simple as that.
This change, essentially, meant that the magistrates and the detained person’s lawyers could remain at their bridge club – or playing their round of golf – without the oh-so-very tiresome business of having to deal with a person’s basic rights and freedoms during a Saturday night or a Sunday afternoon.
Don’t you just love public administration in Jersey?