‘The elephant in the room’

The first attempt to use the Code of Conduct appeals process has thrown up many questions, as Deputy Gavin St Pier explains.

It is normal for the work of the States of Deliberation to begin slowly each term and this term is, of course, no different.

Having said that, in my nine years in the States, I don’t recall a States meeting, such as this week’s, without any policy letters (formerly ‘States reports’) at all on the agenda to debate. Consequently, I would expect all the meeting’s business to be done and dusted by lunchtime on the first day, Wednesday.

There are a handful of Brexit-related regulations being ‘laid’ before the meeting. Regulations are a form of secondary legislation, made under delegated authority in primary legislation – such as a Projet de Loi or Ordinance. They are normally promulgated by one of the States committees. Either they take effect immediately or on a given date and are valid unless or until the States of Deliberation annuls them.

Regulations cannot be amended and are not normally debated unless a ‘motion to annul’ is lodged a week in advance by two members. No motions to annul have been lodged for this meeting, so once all the titles of the regulations have been read out by the States Greffier, they will have been formally ‘laid’ before the States and we will move onto this month’s primary legislation.

This comprises three ordinances dealing with amendments to various gambling, companies and terrorism laws respectively.

The policy decision to amend the companies law was taken by the previous States in September 2019, illustrating the length of the sausage-making machine and how one States continues to process the work of its predecessors. In contrast, the changes relating to terrorism were agreed by this States only in November last year, which illustrates a different point – how quickly the machinery of government can work to effect changes that are deemed to be important.

Each routine meeting of the States begins with statements, scheduled by rota, from two committees, updating the States on their work and providing an opportunity for deputies to ask the committee president any question touching on its mandate.

This meeting will hear from the Policy & Resources Committee and the Committee for Economic Development. Having given a wide-ranging ‘ad hoc’ statement only last month, responding to their own missed deadlines set out in their first routine statement last November, it is not obvious what will be the focus of P&R’s statement. Time will tell.

The elephant in the room this month will be one of our own – Deputy Chris Le Tissier. I won’t comment on his Code of Conduct case, not least because plenty of others have already done so. However, there are some observations to be made around his appeal from the Investigation Panel’s decision.

There doesn’t appear to be any clarity or timeline attached to the appeals process. Quite a lot of time has already elapsed and yet everyone is in the dark as to what happens next – and when. Indeed, I’ve been told that the appeal has not actually been lodged yet, although I hasten to add I’ve no idea whether that is accurate or not.

As someone quipped to me, maybe it will take four years to resolve the appeal.

In the meantime, Deputy Le Tissier remains entitled to attend, participate actively and vote at every States meeting while, simultaneously, his two main committees – Home Affairs and Development & Planning – must continue to discharge their mandates with one person down. This doesn’t seem satisfactory or fair on anyone involved, including Deputy Le Tissier.

Interestingly, paragraph 53 of the Code provides that the States may ‘in dealing with’ breaches of conduct suspend a member, with or without pay and rations.

Does ‘in dealing with’ include during the investigation and appeal period? It’s not clear or obvious, although presumably for the most serious allegations, the States would want to be able to suspend a member during investigation. Neither is it clear how it would go about that suspension process in any event.

The relevant part of the Code of Conduct is paragraph 41. It is refreshingly short and worth setting out in full:

‘The Member has a right of appeal from the Investigation Panel via the Presiding Officer based on the following grounds:

l that the Panel’s conclusions were based on significant factual inaccuracies which, had they been known, might have led to the Panel finding differently; and/or

l that there had been procedural irregularities that prejudiced the Member’s right to a fair hearing.

A new Investigation Panel will be convened of members not involved in the initial investigation to consider the appeal, review the findings and recommendations of the original Investigation Panel, in light of the information provided by the Member, and produce a final report on the matter.’

But maybe it’s too short as it seems to throw up as many questions as it answers. The member has a ‘right of appeal’ on two grounds – factual inaccuracy or procedural irregularity. In this case, the facts seem to have been admitted so we must presume the basis of the appeal will be seeking to demonstrate that a procedural irregularity has prejudiced a fair hearing.

The appeal is ‘from’ the Investigation Panel and it is to be made ‘via’ the Bailiff as presiding officer, but who is the appeal to be made to? Who decides whether one of the grounds for the appeal has been met and grants the appeal? The conscious use of ‘via’ in the paragraph seems to suggest the Bailiff plays no active role in deciding whether the grounds for appeal have been met and is no more than an intermediary or a post box to the States Members’ Conduct Panel, which under the Code ‘comprises a chairman, deputy chairman and eight ordinary members’. If it is indeed this group that decides whether to grant an appeal, presumably those of its members who comprised the Investigation Panel would not participate in that appeal decision?

It is worth noting that whoever and however an appeal is granted, a new Investigation Panel comprising members not on the first panel will then be convened. This second Investigation Panel implicitly does not rehear the case but should ‘review the findings and recommendations’ of the first panel, considering the information forming the basis of the appeal, before producing a ‘final report’. But having not re-heard the case from scratch, that final report presumably doesn’t supplant the first report but rather complements it by responding to the grounds of appeal. Presumably then both reports go forward to the States’ Assembly & Constitution Committee for them to remit on to the States of Deliberation in the normal manner.

On top of all of this, of course, a member dissatisfied by the whole Code of Conduct process could attempt to bring some kind of judicial review legal action but that would be very fact-specific, even more time-consuming, and potentially costly for both the member and the States.

The presence of the elephant in the room matters little this month because there is no substantive business to debate and the meeting will be dominated by question time, the scheduled committee statements and the supplementary questions they may throw up.

This first attempt to use the appeals process in the code has thrown up many questions that may highlight shortcomings in the code itself that will need to be addressed in due course. It has demonstrated well that handling Code of Conduct complaints is distracting, resource-hungry and energy- and confidence-sapping.

At the end of the day, while the machinations of the Code of Conduct and any individual investigations or appeals may be very interesting and are certainly vital to good governance, they are a sideshow and a distraction to the more important business of government and getting things done and are therefore best avoided by all members if at all possible.

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