Sunday, 3 March 2013
Is the CoI a bigger issue than you imagined?
It seems we are finally to have a debate in the States on setting up a Committee of Inquiry into child abuse in the Island. It is on the order paper for the sitting on 5th March, see http://www.statesassembly.gov.je/AssemblyOrderPapers/2013/2013.03.05%20Order%20Paper.pdf . For reference, the original move to request a Inquiry was in 2011 (see http://www.statesassembly.gov.je/AssemblyPropositions/2011/45258-28763-222011.pdf. For a detailed run down of why it has taken so long to come about you could take a look at Bob Hill's blog at http://bobhilljersey.blogspot.com/2013/03/jerseys-historical-abuse-inquiry-no.html
There are of course numerous stakeholders in this process. The victims and survivors, particularly those whose cases were not prosecuted, who deserve and indeed may need a chance to voice publically what happened to them. There are former staff. There are the agencies who should have realised something was amiss and either did not identify an issue, or identified it but ignored or possibly colluded with it. There are the past politicians and the senior civil servants in the States who could and should have identified and acted on problems. And of course there are the actual perpetrators of abuse and their colluders.
Missing from that list is the Law Officers. Yet I think they have a huge amount at stake in the CoI. In fact I would go as far as to say this CoI has the potential to be as constitutionally significant to us as the reforms of 1948. I think this explains is why certain statements and comments have been issued to try to shape the debate and the approach of the CoI even in advance of it being sanctioned by the States.
Perhaps the best place to start is what an inquiry is and is not. Canada makes a lot of use of Public Enquiries similar to our Committee of Inquiry. There is a good piece discussing a number of important topics such as whether judges should chair at
http://www.ontariocourts.ca/coa/en/ps/speeches/publicinquiries.htm. The item I would like to take up is the purpose of the inquiry ' Broadly speaking, there are two types of independent inquiries: those that have a mandate to find and report on facts, and those with a mandate to make recommendations for the development of public policy.' Our CoI has nothing to do with policy formation - it is about finding and reporting the facts.
Regulation 6 of the CoI regulations http://www.statesassembly.gov.je/AssemblyPropositions/2007/7471-48374-562007.pdf is clear. "Because a committee of inquiry can be seen as a quasi- judicial process witnesses can, if the committee wishes, be examined on oath. " The key phrase is 'can be seen as quasi-judicial'. Quasi means resembling or being akin to, but not actually being. Can be seen as means it is one possible view. To put it in other words it is NOT a judicial process. Indeed point 10 of the AGs comments says 'At the conclusion of its deliberations, a Committee of Inquiry reports back to the States Assembly. It does not, however, make any finding of guilt or innocence in a criminal sense nor does it determine a legal right.'
Last month Tony Musing blog made some important observations on the comments from the Attorney General at http://tonymusings.blogspot.com/2013/02/prejudging-issues.html. However I think it is worth re-reading the AG's comments (http://www.statesassembly.gov.je/AssemblyPropositions/2012/P.118-2012%20Com.pdf) bearing in mind the points above. This leads to some further questions. Why in item 14 does the AG refer to people accused by complainants? There can be no such thing in a fact finding non-judicial process. There are only witnesses and evidence.
In item 23 we read 'There is a fundamental principle that the prosecution process should be free from any political influence or interference in any way'. The quid pro quo of that is the prosecution service should not act politically or influence political process. A point missing from the AG's comment. Why? In fact the whole of section D section could be read so an attempt to head off questioning of prosecution decisions and processes. However as an independent CoI is neither a political body nor a judicial one, it is perfectly free to question and inquire into the prosecution process without breach of the fundamental principle outlined above.
If the AG succeeds in his presentation of this CoI as a judicial process with accusers and defendants and the use of lawyers to represent the opposing sides, then he wins a much larger point. He will in effect have established that the Law Officers are unchallengeable by any format or any body in the Island. Much as he might tout the fundamental principle of individual prosecutions and processes being free of politics, that situation would violate an even more important and precious principle that none, not even Law Officers, is above the law or public scrutiny. We have come perilously close to that state. It is that sort of thinking that got us in a position that a magistrate cannot be relieved of pay and office when found guilty of a crime.
It is imperative that all States members understand the hugely important and significant repercussions of the amendments and the comments of the AG when voting on this proposition and amendments. This is a turf war that the people , transparency, accountability and democracy cannot afford to lose.