Reading between the lines

Depending upon your point of view, it is one of the best or one of the worst media releases.

Before explaining, it is worth reminding ourselves of the background to this whole saga.

Under the population law, employment permits can be either ‘in-policy’ or ‘out-of-policy’.

Only applications for out-of-policy employment permits have to provide information to explain ‘how many people not needing an employment permit applied, and why they were not employed by you’.

It is a criminal offence to provide misleading information when answering this.

During the summer a former States employee said that a reason for her resigning from the States was that she was asked to provide misleading information when making an out-of-policy permit application for the post of head of curriculum.

An employment permit was subsequently issued for the post, presumably an out-of-policy permit since the post of head of curriculum does not appear on the list of in-policy permits.

There followed lots of media interest and suggestions that the police should investigate whether or not a crime had been committed.

The States agreed to an internal investigation, which has just been completed, leading to the recent media release.

So, why do I dislike this media release?

To answer that question we need to carefully analyse what it says, but more importantly what it does not say.

It starts with an introduction:

‘The Administrator of Population Management instigated an investigation in August 2019 under the Population Management (Guernsey) Law, 2016 regarding an application made by the States of Guernsey for an Employment Permit for the role of Head of Curriculum and Standards.’

Very straightforward and sets the scene.

The next paragraph is the main body of the release, very short – four lines – so worth considering each sentence in turn.

The first, and longest sentence reads:

‘The investigation was undertaken by the Population Management Inspector, an experienced investigator who is appointed under the provisions of the Population Management Law to make appropriate inquiries in relation to compliance with the Law.’

All very factual. We are told who conducted the investigation and that he or she was their in-house investigator employed to investigate possible breaches of the population management law.

It gives us comfort that the investigation was carried out by a suitably experienced person who knows what they are doing. All very good, all very comforting.

The last sentence deals with two aspects so I will split it into two.

The first part reads:

‘This investigation has been concluded...’

Very straightforward – the investigation is finished.

The final part is the most interesting:

‘... and further legal advice sought which has confirmed that no action is necessary.’

On the face of it very straightforward and comforting, but the reference to legal advice is very interesting.

I suggest that to the casual reader the media release gives the impression that we should be happy – if the lawyers say there is no need for further action then all must be well, no wrongdoing, case closed.

But do the words actually say that? Let’s consider this from a slightly different angle.

This may seem a little strange but apart from some anti-money laundering regulations there is generally no legal requirement to report a crime.

If a business found a shoplifter, they do not have to report the incident to the police, it is a matter of their judgment.

Morally we should report crimes, but legally we do not have to. No action is necessary.

With that background, let’s consider a couple of possible scenarios which the investigation could have discovered.

Firstly, let’s assume the investigation found that a false statement had been made and the law had been broken. Perhaps the question to the lawyer could have been ‘do we have to report it to the police?’ That could result in legal advice along the lines of ‘from a legal viewpoint, no action is necessary’.

The second scenario could be where the law has not been broken, but undue pressure was put on staff to issue a permit. In this case, the legal advice could be along the lines of this being an internal staff disciplinary matter and it is for the management to decide what to do, so again, from a legal viewpoint, no action is necessary.

I cannot think of a relevant scenario where legal advice would say that there is a legal necessity to take action.

The media release gives the impression that all is well, but in reality, tells us very little.

. It does not tell us whether an in-policy or out-of-policy permit was issued.

. It does not tell us what the investigation found.

. It does not tell us if the law was broken or not.

. It does not tell us if there was any wrongdoing by anybody.

. It does not tell us that the political Committee for Home Affairs has been kept completely out of the process, despite population management being within their mandate.

It tells us virtually nothing, but does raise two questions:

. If all is well, and there was no wrongdoing, then why not tell us that?

. Why are they being less than transparent?

One final thought: the issue which led to the resignation of a former civil servant could have been avoided if an in-policy permit was issued, but if that did happen it would raise a whole lot of other questions.

I have placed a ‘freedom of information’ request to try to get to the bottom of this – time will tell what that will reveal.