Constitutional Change

The long awaited report and recommendations from the Independent Jersey Care Inquiry have, at long last, appeared.

The Island owes a great debt to a number of people: Frances Oldham QC and her two panel members, Professor Sandy Cameron and Mrs Alyson Leslie, as well as all those brave people who assisted and supported the victims and continued to do so through adversity and discrimination.

Bravest of all were the victims themselves who came forward and told their stories. I was always deeply struck by the quiet humility and acceptance exhibited by those victims.

I am, I think, uniquely the only lawyer in the Island to have given my own time in order to assist, to the extent that I was able, the victims of whom I have met over 70. Two of those victims were homicide victims, ie. persons who saw a dead child or lost a child.

When giving thanks to those who assisted, I have, in particular at the forefront of my mind, former Senator Stuart Syvret, who has paid an appalling price, including discrimination and ostracisation, for drawing to the forefront of everybody’s attention, not only what happened to the victims, but the dysfunctionality within our society.

We should also say thank you to former Senator Le Gresley for having pushed through the legislation that enabled the Inquiry to happen which shows that, amidst the bleakness, the sunlight has shone within our legislative chamber.

Thanks should also go to our widely respected former Chief of Police, Graham Power, who was unilaterally removed from office and to the former Chief Investigating Officer on Operation Rectangle, Lenny Harper, who enjoyed the confidence of the victims and who came to fear arrest if he returned to the Island. There are many other people within the community who have supported the victims and the Inquiry in many unseen ways and I apologise for not mentioning all of them.

The experiences that I have had in relation to victims has been life altering for me. They have been even more life altering for the victims themselves.

The report, recommendations and acknowledgements are very very important and will, I am sure, do much to heal and help. However, absent anywhere from any part of our society is thought as to the ongoing needs those victims will have for the rest of their lives for compassion and assistance.

Perhaps we should be looking at Jersey becoming what it could become rather than what it was. Insular communities are by definition bedevilled by ineptitude and personalisation but they also have the capacity for informed familiar compassion.

Frances Oldham QC, in many of her recommendation, is, to my mind, bang on the money, particularly in relation to “The Jersey Way” and how that awful expression now has come to stand for the exact opposite of what it should. It now denotes what could best be termed a feudal, paternalistic and fundamentally inhumane society.

The need for constitutional change was very clear to me many years ago when I dealt with the case of Mayo v Cantrade, and one of Sir Philip Bailhache’s other famous speeches during the course of which he, whilst simultaneously sitting as Judge on the self-same case, brought by victims of a sophisticated financial fraud commented publicly on the adverse international publicity engendered by that case. If I remember correctly that speech was given to the Institute of Bankers.

Misguided politically motivated speeches by sitting members of the Judiciary lessen investor confidence and lowers the standing of the Island and its Judiciary both locally and abroad.

Life is moving on and constitutional change has come to the fore once again. I first advocated it in some detail in 2003.

Much has been written in other countries about the need for the separation of powers. In the Anglo-Saxon system the Judiciary fulfils at least three key functions:

1. The enforcement of the law at a criminal level, ie. breaches of the penal law should apply equally to all, be they ever so well connected and be they organs of State or otherwise.
2. Impartially upholding and adjudicating the rights of citizens as between each other, ie. tortious and contractual disputes.
3. Last but not least, the judiciary is there to regulate the position between citizen and State or, put another way, to ensure the government does not act oppressively towards its own citizens. In Jersey the Head of State is the Chief Judge.

Attached to this Blog is the paper that I submitted to the Carswell Inquiry and the recommendations made by Lord Carswell as set out in Chapter 8 of his review which the Jersey Care Inquiry has recommended (Recommendation 7) be given further consideration. In many ways I felt Lord Carswell’s recommendations, some of which I disagreed with, did not go far enough but they were a start. Much remains unimplemented and the most fundamental point of all, the separation of powers, remains unaddressed which the Jersey Care Inquiry has firmly recommended should be revisited.

The separation of powers would not cure all of the Island’s ills but it will have an astonishing effect upon investor confidence, confidence in the Courts and moving us to a more equal and caring community.

PCS

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