First, choose your emergency…

PERHAPS uncharacteristically, I’m not troubled by the latest punch-up involving Policy & Resources – the imbroglio concerning the part purchase by the States of an elderly ship currently wallowing in the southern hemisphere. If Peter Ferbrache says it was an emergency, that’s good enough for me.

No, I’m not being sarcastic. The powers the Civil Contingency Authority has were carefully worked up following the near catastrophe of Guernsey Airport being closed by industrial action and the States collectively being exposed as ill-equipped to deal with that emergency.

What the subsequent inquiry established – along with a whole host of as yet unaddressed shortcomings – was that while it was possible for government to recognise developing circumstances might lead to a full emergency, there were no powers to deal with those circumstances at an early stage. In other words, the States couldn’t legally stop a train crash by switching the points. It could step in only after the crash.

As a result, the Civil Contingencies Law, 2012 specifically empowers the CCA to get ahead of the game and declare as an emergency ‘an event or situation which threatens serious damage to human welfare or the environment in the Bailiwick, or any part thereof’.

Human welfare is further defined as disruption of the supply and distribution of food, water, energy or fuel, or money – and disruption of facilities for transport or communication.

There are many others, but these seem to relate specifically to the ferry purchase based on the published explanation for the CCA getting involved in the first place.

So, the law is clear, widely drawn and those taking the actual decision were advised by the Bailiff, HM Procureur, the States treasurer and the island’s chief policy and strategy officer. In short, whatever we’re dealing with here amply fitted the legal description ‘emergency’.

Whether that crisis justified throwing nearly £30m. of taxpayer funds at Condor is a very different question, however. Stick with that for a moment if you would. It means that, yes, we have an emergency but do we have the right response to it? We have P&R’s and the CCA’s word for it that we do, but Mrs Le Page to Torteval doesn’t have enough information to know for sure. Which is why we have the current controversy.

Separately, senior marine sources, quoting ship brokers, tell me the vessel probably sold for around 35m. euros, regarded as a high figure for an old ship, while we’re none the wiser what its purchase has actually saved us from.

Now, whatever your views of politicians in general and P&R in particular, there’s one thing we can say with certainty. Those involved in this aren’t stupid. They also knew that their decision would trigger howls of rage and protest. They went ahead anyway because, in their view, it was the only option.

We can also take at face value the CCA saying it is frustrated that it cannot explain the specific details of the supply risk because of the sensitivity of the information, which includes sensitive commercial and non-commercial information.

What we do know is a number of States members are unhappy that taxpayer funds have been used in this way, that Jersey seems unfazed by what now appears to be a Guernsey-only supply crisis, and that the Guernsey Investment Fund wasn’t interested in taking a stake in the vessel.

Yes, I agree. It’s all very unsatisfactory. And you’d think that a public body spiffing 30 million big ones on an 18-year-old vessel would have a bit of clout in deciding what ‘sensitive’ information could and should be disclosed.

In P&R president Peter Ferbrache’s shoes, you and I would be pushing hard for full disclosure. After all, he and his committee are under a bit of pressure these days. So to go the full Monty and say, with a flourish, ‘look what we’ve saved you from’ had to be tempting, didn’t it?

So the fact they haven’t suggests to me that being upfront would be seriously damaging to other parties. And that’s a bit troubling too.

The other aspect to this is what States members can do if, after poking and prodding around, they’re still unhappy with what’s been done with public funds in their name. And, in short, it’s pretty little.

The way it works is the CCA is convened, decides there’s an emergency and directs the relevant committee (or committees) to get on and sort it. So the ‘how’ to resolve is the committee’s, based on the direction it receives from the CCA.

Unless the specified action – like, say, emergency legislation as in the pandemic – has an expiry date on it or needs to be ratified subsequently by the States, that’s it. Decision made, job done. Like it or lump it, move on.

You’ll see at a glance that these are sweeping powers. Get the right emergency and you can do pretty much what you choose. To be clear, I’m not suggesting that’s the case here but the States is delegating crisis (or perhaps more accurately, anti-crisis) power to a small group who have extensive rights to exercise it.

Fine, I suppose, if everyone agrees with what’s been done. But what, for instance, if this ship issue has been caused by Jersey negotiating a better service with Condor than Guernsey so our just-in-time food deliveries are threatened? A made-up example, perhaps, but other solutions would exist if so and might be more acceptable to the Assembly.

As it happens, the States Assembly sits at the top of our machinery of government. All committees, including the CCA, are accountable to the States. Within the law, the Assembly can direct its committees to do or not do whatever the States wants. If the law does not permit that, the States could, if it wished, change the law.

As a result, committees continue to exist, and their decisions to have legitimacy, solely through the support and confidence they can command in the Assembly as a whole. Although I’m not aware of this being tested in modern times, this delegated legitimacy extends to officials and the law officers too.

So if the States really doesn’t like an emergency decision taken in its name, it could overturn it – while simultaneously exposing itself and taxpayers to any financial, contractual, legal or ethical obligations that might have been established by the original action. Let alone any political fallout.

That’s a substantial barrier to challenge – especially when any detailed information on what led to the emergency being declared in the first place is rigidly controlled by the decision-makers.

But then, Policy & Resources knows all that.