State of Guernsey

..and how dishonesty flourishes in the dark...

Governance

Ethical Governance. Suggestions from 2015.

ByJames Collings

Jan 30, 2024 #Code of Conduct, #FoI, #Nolan Principles, #Ombudsperson, #Review

Nine years ago, I was asked by the then States CEO, Paul Whitfield, to make suggestions about transparency and ethical conduct in Guernsey’s public sector. My reply highlighted critical areas for reform, but it’s only now that some of these recommendations are being implemented. Many of the points raised were initially met with dismissive or excusatory replies, highlighting a resistance to change that has likely contributed to the slow progress in adopting these necessary reforms.

Key suggestions included implementing a full Freedom of Information law, establishing robust whistle-blower protections, enforcing a stringent Code of Conduct based on Nolan principles & Commissioner for Standards, and reforming civil service contracts to maintain high ethical standards. I also emphasized the need for transparent decision-making processes, independent review mechanisms, and ethical considerations in public sector projects and planning. The document underscores the significance of these reforms for fostering integrity and trust in Guernsey’s governance.

I have redacted some parts & will share the response later.

Ver. 3.0 JC 24/06/2015

I was asked by the States Senior Executive Officer, Adv. Dene, by email on 20/04/2015:

‘Further, I am pleased to confirm that as discussed when you met with Mr. Whitfield and confirmed by me during our two recent telephone conversations, Mr. Whitfield has invited you to submit a letter setting out the redress you are looking for from the States of Guernsey in respect of the land to the rear of Bonamy House owned by your family and in respect of any measures you believe the States should consider introducing to mitigate the risk of similar issues arising for another person in the future.’

I address the latter part in the following paragraphs. I have had substantial help improving this set of measures from people involved in public life whose sphere of competence covers law enforcement, fraud examination, political and administrative sciences, constitutional and administrative law, and of course help from Guernsey politicians. All are familiar with the Island.

I believe we all share the same hope of making Guernsey a better place in which to live and work, and I invite others to contact me to improve this set of measures.

James Collings

XXXXXXXXXXXXXX

Openness and transparency

  1. It is patently clear from my recent correspondence with XXXX XXXXXX XXXXXXXX of the Property Services sub-committee, relating to XXXXXXX XXXXXXXXX, former XXXXXXXX of Treasury and Resources Department of the States of Guernsey, and the PSSC’s evasion of answering some simple questions that the recent ‘presumption in favour of disclosure‘ rule is not adhered to. In Guernsey, the ranks close.
  2. The Code of Practice for Public Information (2014) has been demonstrated to be pointless if the information requested would cause discomfort.
  3. A full Freedom of Information law should be brought into force. It is a principle of British law that one does not time bar criminal acts. So if Guernsey is to have confidence in its government we need to open up the past. Maybe this should be accelerated by giving immunity to those retired politicians and States employees who confess to abuse of position. Such an approach cleared up a lot of problems in Italy. Another way of approaching this if resistance is great, or it is feared that an avalanche of requests would be made, it might be that the law does not have to be retrospective – unless the effects of an action continue. Jersey has adopted retrospective FoI.
  4. The absolute cost would be lower than its direct implementation cost because a Freedom of Information law would encourage better practices. We believe FoI will pay for itself because the likelihood of public disclosure would result in more careful decision-making, with savings to the public purse.
  5. Also openness should in time result in better policy development and the most ‘professional’ (for want of a better word) approach possible from both officers and elected members.
  6. An easy, effective route for accessing information must be developed, particularly for the aggrieved.
  7. Audit reports which make uncomfortable reading are no longer to be buried. Their recommendations are to be embraced.
  8. All meetings should be digitally recorded and a copy automatically given to all present as a matter of best practice. Meetings will go undercover unless there is a requirement for all officials to maintain a diary of contact with interested people outside official duties.
  9. Guernsey is a small community and so there will always be a problem with review committees/review boards/individuals not meeting the perception of impartiality test, at the least. Internal review in particular, is at best compromised by this.
  10. Flaws in the process of administrative review appear to be exploited.
  11. Independence of the gatekeeper(s) is vital, else the expected remedy becomes a placebo.
  12. The role of gatekeeper should not properly be held by either the States CEO or HM Greffier. I know that the CEO is, naturally, uncomfortable holding such a role.
  13. It could be dispensed with. Of the 19 cases brought to the gatekeepers last year, I understand that not one was referred to the tribunal. So either the gatekeeper, or the tribunal could be removed.
  14. The need for robust appeals processes which are short of JR is not fully appreciated within the States and the case needs to be made strongly.
  15. Judicial review, whilst of great merit, is a complex, intimidating and costly route for most people. England has had to place restrictions on it. But in Guernsey it may be less effective. We have such a small pool of lawyers and judges that the legal profession has its own challenges where questions of impartiality arise.
  16. The idea that cases which would ordinarily be heard under administrative review provisions be heard as judicial review cases creates a ‘vacuum of accountability’ which staff will exploit, as they are doing in my case.
  17. A case could be considered by a tribunal as an administrative review matter and ‘referred up’ (with costs borne by the State) as a fully fledged judicial review in exceptional matters. In this instance seeking of leave is obviated.
  18. This vacuum of accountability is reinforced when a judicial review request for explanation of egregious misconduct (re. 1.1 above) is declined by a local judge. Such behaviour appears to be an approbation of corruption. A sensible modern judge dealing with a lay applicant would have proposed a solution which would have given no succour to a possibly corrupt action.
  19. The gatekeeper role in both AR & JR needs to be fulfilled by truly independent, competent people, and for there to be the presumption in favour of granting leave. This step is a ‘sanity check’ & a method of controlling the volume of cases, not a pre-determination of the case. If leave is declined, properly developed & fact based reasoning for that needs to be given.
  1. Whistle blowing
    1. There is no legislation in Guernsey to protect the whistle blower.
    2. Such a person faces the likelihood of dismissal, and in a small community, is unlikely to find other employment, certainly in a similar sphere/salary level.
    3. A person, who feels morally obliged to stop an action, cannot therefore do so.
    4. No clear path for whistle blowers.
    5. To whom do they report? What happens to them after they have done so?
  2. Code of conduct
    1. I fully appreciate that there is a Code of Conduct, which is based on the Nolan principles of Public Life. In Guernsey it is static and appears to be largely ignored.
    2. A small, intimate community has especial needs.
    3. Potential breaches of the Code of Conduct should also be examined against the provisions of the Prevention of Corruption (Bailiwick of Guernsey) Law, 2003 and associated legislation.
    4. A declaration of beneficial ownership is not enough.
    5. Likewise: declarations of interest – eg. personal, family member, business.
    6. A rigid ‘association policy’ – they must be declared.
    7. There needs to be disclosure of any potential conflict of interest, and for this to be made in an ongoing manner.
    8. A declaration of friendships such as they impinge on Government business.
    9. Falsification. A common excuse is simply that the officer didn’t know that what they did was wrong.
    10. There should black and white examples of what this means.
    11. The inception of dishonest conduct needs to be addressed. (Pavlov/Milgram et al.?)
    12. It is worth considering the establishment of a Commissioner for Standards who could initiate investigations of possible breaches of the code. At present initiation has to come from a member of the public (which is not an easy step for many private citizens) or another deputy (which always looks like a personality clash).
  3. An ethical change – a decision maker should ask:
    1. ‘why am I doing this?‘
    2. ‘is it proper?‘
    3. ‘is it moral? Legal?‘
    4. ‘in the public interest?‘
    5. ‘can it be justified?‘
    6. In short: ‘could I truthfully explain the decision that I have taken if a FoI request were to be made?‘.
    7. Decisions must be able to withstand public scrutiny. Always.
    8. Best principles need to be implemented and understood at a ‘grass roots’ level, probably during induction into the civil service or political office.
  4. Civil service contracts
    1. These should stipulate and require a rigorous and continuing adherence to best standards and best practice.
    2. Good ethical and professional standards should be set at the top and practised from the most senior levels downwards so lower ranks are shown a good example.
    3. The appointee needs to sign (and have witnessed) that they understand agreed codes and standards.
    4. They need to repeat this every year so there should be a yearly written indication from each officer in a decision making role that they understand all of the foregoing, that they have made full declarations of interests etc.
    5. Contractual change to guarantee immediate dismissal for any intentional lie. Officers who refuse to accept that simple contractual change to be publicly listed.
    6. An absolute obligation, against dismissal, for any line manager to investigate, resolve and explain (in an evidence backed & timely manner) complaints against their staff in full. There can be no place to stand by and do nothing or pretend a matter has been investigated when it has not (or to twist terms of reference to pretend it has) – to do so assumes the position of becoming an accessory post-fact.
  5. Planning.
    1. The social control of land is made through the ambit of planning control, which dictates, as a general rule that no development of any land may be lawfully carried out without planning permission. But the confluence of this and relationships between parties who in a larger place would ordinarily be separate creates a special set of circumstances for a small island to solve.
    2. It must be recognised that real property tends to form the bulk of a person’s wealth. Arbitrary and capricious decisions must face scrutiny; only the expectation of this will stop such decisions.
    3. Control and decision making undertaken through the Environment Dept., under delegated powers or otherwise, must be properly considered, scrupulously honest, completely transparent. The Dept. should look to the quality and consideration given to such matters by the Planning Appeals Tribunal as an example – as something to aspire to.
    4. If it is argued that controls to ensure proper and fair dealing, impartial and properly considered decisions are too costly to implement (time/money), the Dept. should scale back their control efforts, or increase the cost of planning applications. If it is argued that the quality of their decisions is acceptable, I would refer them to the preceding paragraph.
    5. Members of the public should have ready access to their complete files, which are to be kept properly.
    6. Files need to be indexed.
    7. Digital recordings are to be made of ALL meetings and copies disseminated to parties present. Landowners are to have access to recordings of meetings relating to their land.
    8. Landowners must be informed of changes to development potential of their land that are due to planning decisions taken that are not publicly announced.
    9. I elaborate: The application of special policies introduced/applied subsequent to published zoning and applied in a private meeting with planning & SPS officers & a 3rd party when a scintilla temporis occurs to those present – that they could convert a residential planning consent into a commercial one and pay the land owner on the footing of the former must be relayed to all relevant parties and landowner/s at the time. Not belatedly and falsely, pretending the commercial possibilities do not exist, after trying to cover up.
    10. Such sparks of dishonesty should be recognised for what they are at the time. Attractive, but illegal – and summarily dismissed. The question should occur: ‘would I do that in private life?‘
    11. Article 30 of the Island Development (Guernsey) Law, 1966 exempted the States from requiring planning permission. This led to peculiar planning zoning/decisions on private sites that were deemed of interest to the States. The new Land Planning and Development (Guernsey) Law, 2005, which came into force in early 2009, reversed this and the States now require planning permission. New methods to sate that appetite for private land, but not pay the market price for it, seem to have developed.
    12. Planning appeals are adversarial litigation, not a game. Full discovery and production is to be made (against sanction of officers who decline to do so); there is to be no need for the appellant to seek leave for judicial review to gain access to material relating to his/her land.
    13. A planning officer caught intentionally lying to a planning tribunal is to be summarily dismissed; proceedings should always be under oath.
  6. XXX XXXXXXX.
    1. The XXX XXXXXXXX effectively have the States as a client.
    2. Who do they serve?
    3. How do they balance their perception of that with:
      1. What is in the public interest?
      2. Aiding dishonest officers/politicians?
      3. Helping officers/politicians evade accountability?
      4. The moral, ethical & professional constraints of doing the foregoing?
    4. If they are instructed to cover up a criminal act then they are of course accessories.
    5. They must refuse and they must not abuse judicial process by deliberately snarling things up through the Courts or Tribunals.
  7. Public sector projects.
    1. Transparent cost / benefit analysis of all public sector projects, proper determination of need and demonstration of best overall, longer term, value for money.
    2. The new Royal Court springs to mind where a building with a vast ‘Great Hall’, a vast criminal courtroom fit for a Nuremberg trial and not a lot else was constructed.
    3. This project created an alignment of residual land where that in the middle controlled most of the value. It appears that fear of having to pay a ‘Stokes v Cambridge’ price led to dishonesty.
    4. Another meticulously researched example related to the Alderney Breakwater project. XX XXXXXXX research on this, which was costed at over £250,000, plus Professor XXXXXXX collation of it all, is now used as a case study by several universities of how not to run public sector projects.
      1. Suspect project selection, ie ‘creation’ of contrived, spurious, major capital projects, potentially to suit or benefit:
        1. Its promoters
        2. ‘Favoured’ external consultants for design, tendering and construction supervision
        3. Engineering and construction contractors, and
        4. Major suppliers of construction materials, eg rock and propriety Accropode concrete armour units
        5. Intermediaries between prime contractors and suppliers and the States, whose ‘mark up’ can be used for illicit purposes for the benefit of all but the taxpayer
      2. Pre-solicitation bid-rigging, ie potentially to facilitate steering contracts towards ‘favoured’ bidders by means of:
        1. Rigged selection of ‘independent’ project consultant
        2. Secret lockout design criteria known only to ‘favoured’ tenderers
        3. Lockout materials specs. for proprietary products from ‘cooperative’ suppliers
        4. Short deadlines for tender submissions, to favour ‘cooperative’ tenderers with secret prior knowledge of closing dates, thus allowing them more time and confidence to prepare their tenders, and discourage or lock out tenders from others not ‘in the know’.
        5. Obscure advertising and suspect timing of tender notices when suitable tenderers are offshore, not local eg Guernsey Press and Official Journal of the European Union, and timing of ads is just prior to busy holiday periods.
    5. Tender proceedings need scrupulous adherence to best practice.
    6. In all public sector projects, adjacent landowners and their beneficial interests need to be considered.
    7. The questions ‘Why do we need this?‘ & ‘Who stands to gain?‘ need to be asked very incisively.
  8. Cost.
    1. Departments have unfettered access to the legal resources of the Law Officers, and as far as I know they do not track cost. There is therefore no efficiency basis upon which matters would ordinarily be resolved – a mechanism to tire out the aggrieved evolves, and the public pay.
    2. Cost is often held out, not unreasonably, as a reason to tread with great caution and no great speed in the area of disclosure, freedom of information etc. The XXX XXXXXXXXX affair indicates otherwise. The loss to both my family and the people of Guernsey has been great.
  9. Training & review of all
    1. This is not my field, but it needs addressing.

Ends.