LOOKING INTO THE MICROCOSM
Jersey’s Data Protection Law:
Just Who Is It “Protecting”?
Panic, Fear and Errors of Judgment
By a Regime Nearing The End.
Some people who read this blog just can’t help but feel I exaggerate in my description of the ruling power claque in Jersey as an ‘oligarchy’.
People in Jersey – and from around the world – sometimes e-mail me and write to the effect, ‘look, we know that political establishments tend to rot – and very much more so when they’ve been in power for such a long time – and especially, without opposition or scrutiny – as in Jersey. But can things really be as bad as you suggest? Can there really be no functioning checks and balances? Can your ruling oligarchy really be so corrupt that they will conceal major crimes – and use and abuse laws – and, basically, stop at nothing to retain power?’
The answer is, of course, ‘yes’.
But I can understand the sheer disbelief that decent people experience when contemplating the conduct of the Jersey oligarchy.
It has always embodied the arrogance and hubris that any establishment will develop after experiencing decades of omnipotence and invulnerability.
But during the last few years – other factors have fuelled and driven the Jersey gang; driven them on to even greater displays of madness.
Fear and panic. A growing realisation that the tide of history has caught up with them – and that, inevitably now – there is going to be a reckoning.
And they know that the final product of that reckoning – perhaps in five years time – may well mean a number of Jersey oligarchy politicians, members of the judiciary, certain police officers and senior civil servants – finding themselves behind bars at Jersey’s La Moye Prison.
Rampant corruption; too many examples of conspiracies to pervert the course of justice to be easily counted; misconduct in a public office as the standard practice; in certain cases, child abuse.
Suddenly – after over 800 years of an entrenched invulnerability – that not even the Nazis dented – The End is approaching.
And a terrifying and terrible end it will be for some of these oligarchs.
Multi-millionaire posturing clowns in fancy-dress – with all the trappings of the state – high social status and luxurious lives – spending their old-age in jail.
It is a destiny they will stop at nothing in an attempt to avoid.
And when such fear and panic grips people – their judgment deserts them.
They begin to make wholly irrational, disastrous and crazed errors.
Which is why we see so many examples of scarcely believable, extreme and lunatic conduct on the part of the Jersey oligarchy.
For example: –
Attempting such a major cover-up of the Jersey child abuse disaster – even though hundreds of people – survivors, witnesses, families, whistle-blowers – and two-thirds of the police force – know of the abusers – and the cases against them?
Senior civil servants being protected in perverting justice and criminally obstructing a Minister in carrying out his statutory duties?
Manipulating and forging e-mails – as part of a lying spin-campaign designed to manipulate the national media?
Being an organisation under serious criminal investigation for decades of concealed child abuse – and attempting to solve this ‘problem’ – through the lunatic action of simply suspending the Jersey Police Chief?
Using the Chief civil servant to participate in the suspension of the Police Chief – with the civil servant then destroying the contemporaneous notes – and proceeding to lie – a fact now proven – about the suspension procedure ever since?
Engaging in a conspiracy to pervert the course of justice to conceal a corporate manslaughter at Jersey’s hospital?
Using the police to mount unlawful, banana-republic type surveillance and raids on opposition members of the island’s parliament – locking them up – and turning over their home – without a search warrant?
Attempting to conceal the fact that the oligarchy failed to prosecute a mass-murderer in 1999 – because it would have been bad for the establishment’s image to have made public the crime of killing at least thirteen people in the hospital.
Prosecuting an opposition politician for having exposed this fact – and then – embarking upon the Kafkaesque action of having his entire defence case deemed “inadmissible” – at the 11th hour – just as soon as it’s realised the prosecution has no answer to it?
All recent examples of the conduct of the Jersey oligarchy.
Catastrophic errors of judgement – one and all.
When we contemplate such things – what we are witnessing is the last, desperate, irrational, terror-driven thrashings of an animal in its death-throes.
And those are only a few examples.
There are many others.
And the disastrous mistakes just keep coming.
Which brings me to the proposed amendment to Jersey’s data protection law.
There has been some discussion in the comments under my last posting of the proposed amendment.
When this amendment was issued some time ago, I briefly skimmed it, and recognised instantly just what a toxic, anti-democratic – and, frankly unlawful – piece of legislation it was.
But – I confess – had it not been for my recent experiences – I probably wouldn’t have recognised it.
When you’re a member of a legislature, dealing with hundreds of thousands of pages of reports, policies and legislation in the course of a year – it isn’t humanly possible for each member to microscopically examine every single page.
What tends to happen is that certain members take a certain specialised interest in specific areas of policy, and focus on those, knowing that other members will be working on the other subjects.
Whilst I try to take in a broad range of policy areas, and do try to specialise in certain subjects, such as the environment, taxation, economic policy – and child protection – I had not – until the last couple of years or so – taken a close interest in the data protection law.
Oh, certainly, I had read it, was aware of its purposes, and understood the generality of it. But I couldn’t have quoted specific passages of the actual legislation.
It wasn’t until around the spring and early summer of 2007 that I began to take a closer interest in the law.
I did so – because that was the time I was uncovering much of the child abuse disaster – and attendant child protection failures – and had begun writing some blunt e-mails to civil servants – demanding to know what the bloody hell they thought they were being paid for?
It was at this point that Emma Martins – Jersey’s data protection commissioner – began the campaign of harassment and intimidation against me on behalf of her fellow senior public sector employees.
Suddenly – every single e-mail I wrote to the senior staff in my department was examined microscopically for any potential inadvertent ‘breaches’ of the data protection law; I began to get threatening letters from her; she was determined to help them – and her very good friend Bill Bailhache – to conceal the historic child abuses – and in particular, certain current gross child protection failures.
For example, in one case, warning sign – after warning sign – that a child was suffering grotesque sexual abuse – had been missed – for month after month – before the abuse had finally been recognised and the abusers arrested.
I was so angry at this I demanded a special case review. The resultant report revealed a catalogue of systemic failure in the island’s child protection apparatus. I responded to the staff in question with an e-mail expressing my profound anger at the failure.
But of those staff – one of them, shouldn’t have received my reference to the case.
As far as Emma Martins, Bill Bailhache and most of the senior staff at Social Services were concerned – bingo!
This was all the ammunition they needed.
What would, in the UK, have been a scandal of national noteworthiness – months and months of failures on the part of various staff to see the warning signs of abuse under their noses – and would have been on the front of the newspapers – and would have ended careers – could now safely be buried – under the – obviously – far more important story. ‘Syvret breaks data protection law!’
Emma Martins ensured that her report into the supposed breach of the data protection law was in the hands of the Jersey Evening Post – and published – before I was even aware of its completion. That – you see – fitted in very well with the oligarchy spin-campaign.
The story duly appeared – across two pages of The Rag, as I recollect – in a story very carefully crafted to convey as little as possible – other than “the message” – Syvret breaks data protection law.
And what is fascinating about that episode is just how easy it is for those in power to manipulate public opinion. At the time, the average Jersey person had no understanding at all of what the supposed breach of the law was – just that it must have been something really really terrible and dreadful on my part – because The Rag made a huge story of it – and that nice Ms. Martins said so – and after all, she is the daughter of Bergerac actor John Nettles – so it must be true.
So what was this dreadful crime?
In e-mailing a number of staff – demanding answers in respect of their gross failures to protect the child from months of appalling abuse – I inadvertently included one staff recipient – who technically shouldn’t have been copied-in. One of the child’s teachers, as I recollect.
I have to say, it was a remarkably successful example of opinion management by Martins, the civil servants, The Rag, Bailhache and the rest of the oligarchy.
On the basis of the facts – what would the average member of the public be more concerned about?
The fact that I accidentally sent an e-mail to someone I shouldn’t have – in the course of doing my job?
Or – a number of very highly paid “professionals” – employed at vast public expense – for their supposed expertise in child protection – failing to spot many, many obvious signs of abuse – and thus causing the child to suffer months more of abuse that could have been avoided – had the “professionals” done their jobs, even vaguely competently?
I think we can safely conclude decent people would be far more angry about the latter – if only they knew the facts. No danger of that occurring – in Jersey.
So – at that point I began to take a closer interest in the data protection law. And I needed to – because the episode I describe above wasn’t the last of the matter.
Martins from that day to this – at the behest of her friend Barking Bill – has persisted in harassing me on supposed data protection grounds – in ways she has not done to any other States member.
For example, one of the charges I face is not being ‘notified’ under the data protection law?
There are 53 elected States members.
According to the most recent figures disclosed to me – I am only 1 – of 24 – elected States members to not be registered under the law.
So that’s 24 supposed criminals – out of the 53 elected members.
I’m not giving prizes for answering the next question, OK?
Of those 24 – how many of them have been subjected to continuous harassment by Emma Martins and Bill Bailhache?
How many have been arrested, charged and are being prosecuted?
It’s actually even better than that. So far – I’ve only referred to the elected members. What about those members of the assembly who aren’t elected – for example, the Bailiff, maybe?
You’ll like this; quite splendidly – amongst the miscreants is no less a figure than Mick Birt – who isn’t data protection notified.
I trust the ten-strong police raiding-squad will be around at chez Birt tomorrow morning.
So – readers will understand that I have taken a special interest in the data protection law.
Which is why, when I opened the envelope containing the latest propositions for debate – and saw an amendment to the data protection law – I seized upon it – frankly, knowing already that whatever it intended – it certainly wasn’t going to be good.
What I read in the ‘Draft Data Protection (Amendment no. 2) (Jersey) Law 200-‘ was so monstrous I was almost surprised.
I’ll quote the relevant parts of P.147 below this posting, but it’s worth taking a close look at some of the text.
This is how the relevant part of the amendment is described: –
“A provision to provide the Commissioner with powers to serve information notices on other relevant persons in addition to data controllers and processors.”
Let me just try and explain what that means in plain English.
It means that if Emma Martins decides to investigate if you possess any information that might be embarrassing, problematic or damaging to the government – or someone like Bill Bailhache asks her to – she can serve a notice on you – demanding you reveal any information that might be relevant to her ‘investigation’ – even if you are simply an ordinary member of the public – who has never had any kind of official involvement in handling data in your life.
And if you have such a notice served on you – and you don’t comply with it – then you could be subjected to the same treatment I received.
That being – you step outside of your front door one morning.
You are greeted by a squad of ten cops – who then arrest you under Article 29 of the Police Procedures & Criminal Evidence Law. (the Jersey equivalent of PACE.)
They then take you under arrest to the police station – and lock you into a tiny windowless police cell for the best part of seven and a half hours.
Having relied upon Article 29 of the PPCE Law – the police then search your entire property – from top to bottom throughout the day – including children’s bedrooms and their computers.
They take your computer and copy its hard-drive – and they take and copy every singly paper document you have in the house.
Hands up anyone who considers such power to be compatible with a free society and functioning democracy?
Here is the fuller official explanatory note from P.147: –
“Article 2 amends Article 43 of the principal Law by expanding the category of persons from whom the Data Protection Commissioner (“Commissioner”) can require information for an investigation whether data processing is being carried out in accordance with the data protection principles or otherwise in accordance with theprincipal Law. Currently Article 43 allows the Commissioner to serve notice requiring such information only on the “relevant data controller” (or data processor acting on behalf of the data controller). The amendment allows the Commissioner to serve notice on any person provided that the Commissioner regards the information sought as being relevant to the investigation and reasonably believes that the recipient of the notice has such information. The Commissioner is required to give reasons in the notice for thinking that the information sought is relevant.”
Just let me draw your attention to this passage: –
“The amendment allows the Commissioner to serve notice on any person…”
That’s you – you grandchild – your sister – your mother – your son – your frail and elderly aunt in the residential home (assuming Nurse M hasn’t got there first) – journalists – and, of course – your politicians.
Many States members – not just me – get leaked public interest information; information that we then use in the island’s parliament to ask awkward questions – and to keep departments and their Ministers on their toes.
Holding the executive to account in this way is fundamental to the job of a politician and to functioning democracy. And doing so is often profoundly embarrassing to the powers that be.
But some kind of catch-all, Stalinistic power to intimidate, harass and threaten ordinary people who my have come across some information which shows wrong-doing on the part of the government – would, of course, bring a halt to effective opposition.
Which – when we get down to brass tacks – is the purpose and motivation behind this amendment.
And don’t imagine – for one instant – that the caveats and exemptions in the law and the amendment would be effective safeguards.
As long as Ms Martins “reasonably believes” – perhaps because Bill Bailhache has told her so – that you possess some data – and that she or her paymasters want to “investigate” the matter – she can serve a disclosure notice on you, in which she will give some general, catch-all grounds for her belief that you possess the information she seeks.
You will then have to disclose any such information in your possession – or – face the consequences.
Those consequences are described in the main body of the law – but can, more easily, be understood by looking at my experience.
But, surely, there are safeguards in the law – exemptions which would prevent such Stalinistic conduct?
There are words – on the page – and they may as well be railway bridge graffiti for all the substance they possess.
For example – handling information for the purposes of journalism is supposed to be protected.
Not – apparently – in my case.
Likewise – there is a very clear and unambiguous exemption which protects the handling and releasing of information for the purposes of the prevention or detection of crime.
Has that protected me from covert surveillance, unlawful arrest – and prosecution – for exposing a serial killer?
Not even close.
In fact – so meaningless are the mere words with which laws are written – as far as the Jersey oligarchy is concerned – I can’t even run a public interest disclosure defence based on the detection and prevention of crime exemption.
I don’t mean the court might decide to reject such a defence – I mean – I can’t even use it – in the first place.
Because – you see – my public interest disclosure defence is watertight and overwhelming.
They have lost. I have won. Game-over. End of.
Or – at least it would be – if the “safeguards in the law” that are supposed to reassure you – meant anything at all.
And just to conclude with another stark illustration of just how much reliance you can place upon what the States of Jersey says in its legislation – consider this.
Each law has to come with a signed statement from the relevant Minister, to the effect that the legislation he or she is proposing is compliant with the European Convention on Human Rights, which is now incorporated into local law.
And – here is that statement – as found in P.147: –
“European Convention on Human Rights
In accordance with the provisions of Article 16 of the Human Rights (Jersey) Law 2000 the Minister for Treasury and Resources has made the following statement –
In the view of the Minister for Treasury and Resources the provisions of the Draft Data Protection (Amendment No. 2) (Jersey) Law 200- are compatible with the Convention Rights.
(Signed) Senator P.F.C. Ozouf”
So – according to Senator Ozouf – and those who have advised him – the provisions of P.147 are fully compliant with human rights requirements.
How close does P.147 get to meeting the requirements of the ECHR?
It’s not even in the same solar-system.
One of the fundamental, rock-solid principles of the European Convention on Human Rights – that runs through, and underpins the entire convention – is the concept of “proportionality”.
This principle indicates that it is accepted in the convention that governments have to pursue policies, introduce laws – and enforce those laws – in ways in which will, sometimes, conflict with a person’s rights.
The gold-standard test of whether a government or other public authority has gone too far – and has breached a person’s rights – is that test of proportionality.
It is not – even remotely – “proportional” for a government to seek to introduce a catch-all, Stalinistic power that equips the government to demand to know what knowledge or information ordinary, private citizens may possess.
It is true that there will be occasions when an authority will have a “legitimate purpose” in seeking to discover information in possession of individuals – for example, information relevant to criminal activities, perhaps.
But if so – there are already extant, focused laws that deal with such circumstances.
This attempted amendment to Jersey’s data protection law is so misguided – and, frankly unlawful – it can’t be viewed as anything other than yet another catastrophic error of judgment.
An extreme act of folly by a failed regime – desperate to intimidate people into not holding information which exposes the oligarchy’s wrongdoings.
The consequences of panic by the inadequates of the Jersey oligarchy – who are impotently raging against the dying of the light.
Excerpt from P.147 – amendment to Jersey’s data protection law.
DRAFT DATA PROTECTION (AMENDMENT No. 2) (JERSEY) LAW 200-
Lodged au Greffe on 16th September 2009 by the Minister for Treasury and Resources
Article 43 amended
In Article 43 of the principal Law –
(a) for paragraphs (1) and (2) there shall be substituted the following paragraphs –
“(1) If the Commissioner –
(a) has received a request under Article 42 in respect of any processing of personal data; or
(b) reasonably requires any information for the purpose of determining whether a data controller has complied, or is complying, with the data protection principles, the Commissioner may serve notice on any person requiring that person to furnish to the Commissioner, in a specified form (if any)and within a specified period, specified information relating to the request or to compliance with the principles.
(2) An information notice shall contain –
(a) in the case referred to in paragraph (1) (a), a statement –
(i) that the Commissioner has received a request under Article 42 in relation to the processing,
(ii) that the Commissioner regards the specified information as relevant for the purpose of determining whether any processing (whether or not carried out by the person on whom the notice is served) has been or is being carried out in compliance with the provisions of the Law and the Commissioner’s reasons for regarding the specified information as being so relevant, and
(iii) that the Commissioner reasonably believes that the recipient of the notice has the specified information;
(b) in the case referred to in paragraph (1) (b), a statement –
(i) that the Commissioner regards the specified information as relevant for the purpose of determining whether a data controller (whether or not the person on whom the notice is served) has complied or is complying with the data protection principles and the Commissioner’s reasons for regarding it as so relevant, and
(ii) that the Commissioner reasonably believes that the recipient of the notice has the specified information.”;
(b) for paragraph (11) there shall be substituted the following paragraph –
“(11) Nothing in paragraph (1) prevents the Commissioner from serving notices under that paragraph on more than one person, including on both a data controller and a data processor.”.