OPINION: Laws and order

IT IS noteworthy that after more than two years, this Assembly is still not being asked by its committees to make many substantive policy decisions.

It seems the narrative from day one of the term about resource limitations, compounded by the inevitable, slow-motion train wreck of the Tax Review, has induced a paralysis of inaction this term. As a result, the agenda for this week’s States’ meeting is thin once again, perhaps awaiting the next set piece debate in July on a further slimmed down Government Work Plan and capital programme.

The relatively recent requirement for committees to provide regular updates on their work, the questions on those statements, other questions to committees, appointments and legislation are pretty much assured to take up the Wednesday morning of each meeting. The update statements due this time are from Health & Social Care and Employment & Social Security.

Buried in this month’s legislation is an interesting but technical piece of legislation on criminal justice. It imposes a statutory requirement, in line with current practice, on the prosecution to supply the defence ahead of a trial with details of any unused evidence in case there is anything in there that might assist the defence. The flip side is a requirement on the defence to file a ‘defence case statement’. This will set out in summary the nature of the defence, disputed facts, points of law to be taken and a list of witnesses. The principle behind this is sound. It’s to ensure the better administration of justice by avoiding ‘surprise’ defences being sprung at the last minute, with all the attendant wasted time and costs of delayed or aborted trials.

However, the really interesting parts of the legislation are the consequences of non-compliance by the defence. These include that the court ‘may draw such inferences as appear proper in deciding whether the defendant is guilty of the offence concerned’.

The introduction of the legal concept of ‘adverse inference’ is significant, not least because, to date, it has been one of the objections to updating the police caution when someone is arrested or interviewed. This update would bring it into line with a change made in England 30 years ago.

A caution amended along these lines would advise the individual that they have the right to remain silent, but anything they fail to mention that they later rely on in their defence, might harm their defence. And it might harm their defence because an adverse inference could be drawn from their previous failure to mention whatever it is they are now relying on. Having a police caution expressed in those terms is entirely consistent with the requirement being introduced for the defence to file a defence case statement. In short, this legislation removes the blockage to an adverse inference caution and brings its introduction one step closer.

Deputy Lester Queripel and I will once again attempt to persuade the Assembly to debate Dr Rabey’s annual report to the States in his role as responsible officer. This regulatory role was introduced in 2015 as a result of legislation mirroring similar provisions introduced in the UK in 2010. The annual report, in its design and content, very much leaves the reader with the sense that there is ‘not much to see here’. But it’s actually the only regulatory window the States has into the health and care sector. And it’s a tiny window, as it is focused only on doctors, not other professionals. HSC is the largest spending committee in government.

Consider all the private expenditure on other parts of the health and care system, and the community is probably spending £300-400m. a year in total on health and care. Of course, that’s why the last States in 2019 recognised the need to develop a proportionate system of health and care regulation.

A debate on the annual report would be an opportunity to find out how the responsible officer role and system is knitting into the development of a wider regulatory system for health and care.

Having said that, from engagement with HSC, it seems quite likely that they will oppose a debate for no discernibly good reason. If they do, with the support of the rest of the States, the annual report and all the associated issues around regulation can slip quietly back into the filing cabinet unexamined for at least another year.

As government continues its journey of preparation for next year’s visit from the international financial regulatory body, Moneyval, there is a Home Affairs’ policy letter recommending further changes to criminal justice legislation.

Aside from this, there is only one other item of significance, a policy letter from Policy & Resources recommending changes to the way local legislation receives Royal Assent.

At the moment, all legislation is sent off via the Ministry of Justice for approval by His Majesty’s Privy Council, through its Committee for the Affairs of Jersey and Guernsey. The proposal is to introduce changes akin to the processes which have been in place for many years in the Isle of Man, which would allow the Lt-Governor to provide Royal Assent in relation to most legislation.

All of this arises out of States’ decisions made back in 2016, following two years’ work by the Constitutional Investigation Committee, the brainchild of the late former Deputy Roger Perrot. I will be attempting to amend this to add a direction to P&R, all in good time, to open discussions with the MoJ and other relevant parties with a view to us having our own Privy Counsellors at some point down the track. This is entirely consistent with the Government Work Plan’s priority to enhance our ‘constitutional resilience’ and the Constitutional Investigation Committee’s purpose of investigating achieving greater autonomy, so I hope that it will have P&R’s support.