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Open questions

Peter Gillson | Published:

IT WOULD be ungracious of me not to congratulate Education on getting their report through the States and I hope they can deliver what has been promised.

(Picture by ESB Professional/Shutterstock)

Also, what great news about the waste system. I hold my hands up and admit that I was sceptical about night time glass collections, but the system’s been in place for a year and seems to be working well. Credit to the Waste Disposal Authority.

Today I am going to consider what openness and transparency are, or should be.

If a government is open and transparent, it is not just a matter of making information public, or just giving answers. It is giving information in a way that is meaningful to the public and reflects the reality of any situation.

There are three tests or principles from the business world which I think deputies should apply to all communications.

The first test is one from the legal world: what would the man on the Clapham omnibus think?

In the Assembly, Deputy Trott is fond of referring to ‘Mrs Le Page from Torteval’. Either way, it’s a test of what the ordinary person, not an expert in the subject, would understand and think of the situation, providing a yardstick of what the average person on the street would think.

To consider this in the political world, an example from Education – the savings from the two-school model (sorry to use Education, but it is a good example and fresh in people’s minds).

Although Education’s report included the College of Further Education as well as secondary education, all of the controversy and public debate seemed to be around the change to a two-school model.

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Given the background of most discussion related to the two-school model, which approach provides greater clarity: the Education committee saying their changes will save £2m. per year, without explicitly saying that most of the savings come from the College of FE, or my explicitly saying the two-school model will save only £750,000 per year?

Which would the man on the Clapham omnibus find more informative to the two-school debate?

The next is an auditing concept of ‘substance over form’. This is a little more technical and is where the auditors would look beyond the written documentation to understand what the real nature of a transaction would be.

For instance, assume I lend you some money, but without any repayment date. The lack of any repayment date means it is more of a gift than a loan, and so the auditors may ‘look past’ what the documents say to the real nature of the transaction.

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The third test to consider is from company law and is the concept of the ‘shadow director’.

Under the law, directors run companies and in doing so have a number of obligations and liabilities. However, if a person who is not a director uses their influence over the directors in such a way that they are in effect making the decisions, they might be classed under the law as ‘shadow’ directors, and have the same obligations and liabilities as if they were directors.

Both of these tests look past what the documentation says to what is actually happening and who is effectively making the decisions.

In order to look at these in the world of our local politics I will use as an example the recruitment of the Director of Education (sorry, but it is a good example). Here, Deputy Fallaize is correct when he wrote in his letter to the Guernsey Press that the Education Law empowers the Policy & Resources Committee to appoint the Director of Education. That is the formal documentation.

What seems to have happened in practice is that a recommendation was made by the Education committee to P&R and P&R made the appointment based on that recommendation. So where was the decision made?

Technically by P&R, but since it is very, very unlikely that they, who were not at the interview, would go against the Education committee’s recommendation, it is fair to say that in reality the decision was made by the Education committee.

I think that both the ‘substance over form’ and ‘shadow director’ tests would support this view.

Interestingly, the Appointments of Established Staff, 2004 Law states that all civil servants, apart from the Deputy Greffier, are appointed by the P&R Committee – do P&R really make the decision to appoint every civil servant? Technically they may issue the employment contracts, but in reality the ‘real’ decisions are clearly at committee level.

All of this discussion has reminded me of a situation when I worked at IPES. Our relationship with clients was defined in administration agreements and I remember a discussion with a very new client. He was surprised when I agreed to all of his changes to our standard agreement. I explained that we were at the start of a 10-year relationship which would have to be based on mutual trust and respect. If we ever go to the stage of having to refer to the specific wording of this agreement, then our relationship of trust will have broken down and it would be better for him to find another administrator.

I mention this because I think there is a similarity in politics – if deputies use specific wording or the formal structure to deflect responsibility rather than accepting the reality of the situation, there will be a breakdown of trust between them and us. I believe this is a factor in why some sections of our government are held in such low esteem.

A final thought: let’s assume you ask a builder to build you a house and he tells you that he could, but he didn’t have the tools and so would probably not do a good job, so he recommended bringing in an expert to build it. Would you get the expert in, or would you ask your builder to give it a go anyway?

When the States rejected Scrutiny’s request for a tribunal, they chose the second, give-it-a-go option.

I wonder what the motivation was?

Helen Hubert

By Helen Hubert
Features editor

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