Sunday, July 14, 2013

P96/2006 PART 2 -PROTECTING THE JERSEY LAW OFFICE











P96/2006 - PROTECTING THE JERSEY LAW OFFICE - PART 2



DEPUTY HIGGINS RAISES THE ISSSUE WITH THE SOLICITOR GENERAL DURING QUESTION. TIME IN THE STATES OF JERSEY



YOU CAN READ THE ORIGINAL DEBATE FROM 2006 ON MY LAST POSTING.






Here are some key issues from my last posting. 


"Law Society president,Timothy Hanson, has today come out publicly about why allegations of professional misconduct by a lawyer employed by the States have been dropped. This is because the above legislation was passed in the States of Jersey. The Law Society, which is the governing body of lawyers who practise as Jersey advocates and solicitors, was unable to refer the complaint to a disciplinary committee because, under current legislation Law Officers are not required to join the society. Private practise lawyers can face disciplinary hearings and referral to the Royal Court."

Take a look how then Bailiff, Philip Bailhache, helps get this piece of legislation through the chamber from his unelected seat. He makes a mini speech. 



The Bailiff:


"I do not wish to join in the debate at all but I hope that Members will appreciate that the Attorney General and the Solicitor General are Crown Officers and are accountable strictly to the Crown. They are of course accountable in a practical sense, as the Solicitor General has said, to whom they provide advice - that is to say States’ Members and States’ departments - but they are also accountable to the Crown. When a complaint - and I say this without fear of being controversial at all - is made against a Crown Officer, if it is made to the Lieutenant Governor, as the Queen's personal representative over here, it is investigated as appropriate to the complaint which is made. There is no question that the Attorney General and Solicitor General are unaccountable. Does any other Member wish to speak?"

10.2 Senator S. Syvret:
I have some concerns about this and unless I receive a convincing explanation I will be forced to vote against it. It seems to me to exclude Jersey Advocates simply because they happen to be Crown Officers from the disciplinary structures and processes of the Law Society is wholly undesirable, given the absence of an alternative framework. Of course it is absolutely fair enough and it makes commonsense that they should not be required to pay themselves the annual subscription fees for the Jersey Law Society, nor indeed carry that kind of private sector professional indemnity insurance that is a requirement. Amending the Law to exclude them from those requirements, or perhaps for the State in some way to pay it for them, would be entirely acceptable but I am afraid removing the Law Officers, referred to by this Law, from the disciplinary structures and the general codes and so on that are required by the Jersey Law Society I regard as wholly unacceptable. I think the argument that they are Crown appointees is, I have to say, a very old fashioned argument and not really a particularly robust or convincing argument to put forward in the 21st century. I do believe that nobody should be above the Law and we regulate the practises of Advocates in Jersey through the Jersey Law Society Law and it seems to me that all Advocates practicing in Jersey, and that includes the Crown Officers, should also be subject to the same disciplinary and professional requirements laid down by the Society. Indeed the Society is empowered to have those requirements at Law. So, Sir, unless I receive a particularly convincing explanation I am going to vote against that particular provision and I urge other Members to do the same. In the 21st century we should not be exempting Crown Officers and Advocates working in the Crown Offices Department from the disciplinary structures required by the Jersey Law Society Law.


We now come to Deputy Higgins oral question in the States of Jersey on 2/7/2013.


3. Oral Questions
3.1 Deputy M.R. Higgins of St. Helier of the Attorney General regarding the professional standards and disciplinary procedures applied to the Law Officers and Jersey qualified lawyers within the Law Officers Department:
Will Her Majesty’s Attorney General - in this case the Solicitor General - explain whether the Law Officers and the Jersey qualified lawyers within his department are subject to the same professional standards and disciplinary procedures of the Law Society of Jersey, which are applied to Jersey advocates or solicitors in private practice, and if not, why not?
Mr. H. Sharp Q.C., H.M. Solicitor General (Rapporteur):
The Law Society of Jersey Law 2005 does not require any advocate or solicitor of the Royal Court to be a member of the Law Society of Jersey in order to practice as an advocate or solicitor during the course of his or her employment in the Law Officers’ Department.  Anyone who is not a member of the Law Society of Jersey is neither subject to that society’s Code of Conduct nor to its disciplinary procedures.
3.1.1 Deputy M.R. Higgins:
It is my understanding… in fact I think the current Chair as Attorney General was responsible for taking that provision out of the 2005 law or recommending it be taken out of the 2005 law.  In all other jurisdictions in the United Kingdom, the Law Officers are subject to the disciplinary panels of their respective law societies, so the Isle of Man, Guernsey and the United Kingdom; can the Solicitor General tell us why he believes that they should not be subject to the same disciplinary powers?  Who is accountable, if they are not accountable to them?
The Solicitor General:
The history of the Law Society Law 2005 is that there was a dialogue between the Law Society and the Law Officers in early 2006 and as a result of that dialogue the Law Society supported an amendment to the law, which removed Law Officers’ Department lawyers from the ambit of the Law Society’s disciplinary procedures.  That matter was debated by the States Assembly and the States Assembly agreed to amend the law with the support of the Law Society.  At the time of that debate, which took place on 19th September 2006, the Solicitor General, at that time, Stephanie Nicolle Q.C., advised States Members that the Law Officers’ Department, if they pass the amendment, would be taken outside the ambit of the Law Society.  So the first answer to the Deputy’s many questions is that this was a decision taken by States Members at the time with the support, at that time, of the Law Society.  As to what other systems might prevail elsewhere, I have not done an extensive review but, as I understand it, in the Isle of Man the Law Society does not discipline anyone.  There is an external body that looks at disciplinary matters.  I understand in Guernsey it is the Law Officers in the first instance who look at complaints about the lawyer in the Law Officers’ Department.  Finally, may I say this, when the Solicitor General, back in 2006, was advising the States Assembly as to the consequences of the amendment, she highlighted a number of points of public policy, which are there for all to see in Hansard, as to why the change was desired.  One point I wish to emphasise today is that there is concern that employees of the Law Officers’ Department are particularly vulnerable and susceptible to malicious complaints by, in particular, defendants who wish to use the complaint to gain some sort of advantage in criminal proceedings.  That concern remains today, and advocates remain at risk of malicious complaint.
3.1.2 Deputy R.G. Le Hérissier of St. Saviour:
Notwithstanding what the Solicitor General has said, could the Solicitor General tell us how the aims of the legislation is applied to non-Crown Officers in the legal profession, how those aims are dealt with within the Crown Officers’ Department?  In other words, how are the professional standards upheld?  How are complaints dealt with so that people feel internally justice has been done?
The Solicitor General:
The Law Officers’ Department have codes of conduct which apply to all lawyers within their department, whether or not they are Jersey-qualified.  So for example, if an English-qualified lawyer is in the department they are still subject to those codes.  There are 2 codes.  The first code is the Civil Service Code, which applies to all public sector employees.  The second code is a Code of Conduct of lawyers at the Law Officer’s Department.  That was a code that I started work on over a year ago, and is now in force and applies to all lawyers.  Thirdly, if one looks at the Law Society of Jersey Law, in respect of Law Society members, it is the Attorney General who decides in those cases whether or not to refer an advocate or solicitor to the Royal Court for disciplinary action in serious cases.  Of course the Attorney General retains that power in respect of his own employees.  Furthermore, the Law Officers’ Department has a procedure in place whereby if there is a complaint that is not vexatious and is sufficiently serious we will appoint an independent Q.C. to investigate the matter so as to bring an independent mind to bear on those things.
3.1.3 Deputy R.G. Le Hérissier:
Just for clarification: would the Solicitor General not acknowledge that the great innovation in dealing with non-Crown Officer lawyers was that there is now a lay element at an important part of the proceedings?  It is not lawyers judging lawyers.
The Solicitor General:
I believe the Deputy is referring to the fact that in the Law Society procedure a President of the Law Society can refer a complaint to a disciplinary committee of the Law Society, which consists, I entirely accept, of some lay members.  However, as I have said, in serious cases it is still the Attorney General who has the power to refer disciplinary matters to the Royal Court.  It is the Attorney General who can overrule the President of the Law Society if he chooses not to take any action.  So in terms of the serious cases, it is still the Attorney General in all cases that deals with these matters.
3.1.4 Deputy T.M. Pitman of St. Helier:
I have to say… and certainly a few of us still are under the impression that these officers are not under any external responsibility or accountable to anyone.  But my question is, the Solicitor General referred to a dialogue between the Law Society; is it not a fact that that was more of a confrontation and there was the threat of legal action if those amendments were not agreed?
The Solicitor General:
In 2006 there was a letter from the Attorney General to the President of the Law Society, I may have the date wrong, but it was something like 11th January, inviting a conversation about this proposed amendment in the law.  There was a meeting.  I have seen some record of the meeting between the Law Officers and the Law Society.  It was a perfectly amicable meeting, there was a perfectly amicable response from the Law Society, there were no threats of any kind by anyone to anyone.
3.1.5 Senator S.C. Ferguson:
Have there been any disciplinary procedures since you became Solicitor General?
The Solicitor General:
At the Law Officers’ Department or generally?
Senator S.C. Ferguson:
In the Law Officers’ Department.
The Solicitor General:
No.
3.1.6 Deputy M.R. Higgins:
I was interested to hear what the Solicitor General was saying about the amicable relationship with the Law Society, which is different to my understanding because I believe there is a current dispute between the Law Society and the Law Officers over the Law Society wanting to discipline or bring a case to the Royal Court regarding a Crown Advocate and the Attorney General has refused.  Would the Solicitor General care to elaborate on this dispute that is going on, which is obviously straining relations between the 2 bodies?
The Solicitor General:
I entirely accept that the employees of the Law Officers’ Department have to be held to high standards, and they accept that and they understand it.
[10:00]
However, they like everybody else are entitled to be treated with some fairness and they are and should not be subjected to any disciplinary procedure that is unlawful.  If the Law Society do not now, notwithstanding their support for it in 2006, accept the current state of the law then that is of course entirely within their right and they can have any discussions they wish.  But in my view it is not appropriate to commence any sort of disciplinary procedure, which just is not in the law.  That cannot be right.
3.1.7 Deputy M.R. Higgins:
Supplementary, Sir, because the Solicitor General has not fully answered the question.  There is currently a dispute between the Law Society and the Law Officers’ Department.  It is my understanding that the Law Society would like to bring an action against a Crown Advocate and that the Attorney General has refused and is contentious.  Will you confirm that there is a disagreement going on at the present time over whether one of your officers should be disciplined?
The Solicitor General:
No, that is simply not right.  The President of the Law Society or rather the Law Society Committee have reached the view that they have a power to discipline or start disciplinary proceeding in respect of an advocate of the Law Officers’ Department.  I do not share that view.  My view is they do not have any such power.  That is the dispute.  Nobody has stopped the Law Society from doing anything they wanted to, they have chosen not to take action.

10 comments:

Anonymous said...

It would be interesting to hear Sam Mezecs view on the law society members having the ability to opt out of this law.

Anonymous said...

Correction to my earlier post I should of stated law officers.

The Law Society of Jersey Law 2005 does not require any advocate or solicitor of the Royal Court to be a member of the Law Society of Jersey in order to practice as an advocate or solicitor during the course of his or her employment in the Law Officers’ Department. Anyone who is not a member of the Law Society of Jersey is neither subject to that society’s Code of Conduct nor to its disciplinary procedures.

Anonymous said...

Rico

Another top notch blog post.

Who will hold individuals of the Law Office to account for illegal or unethical actions? The answer remains outstanding. Did The Man Who Would Be King, only partly behind the scenes, design their immunity from prosecution for sinister reasons? Have we heard any reason to see it otherwise?

The circular reasoning used to defend the immunity of those employed by the Law Office is again, too arrogant to take seriously. Has anyone provided real justification to believe the Law officers in general, and/or the individual who was deemed immune, are subject to any meaningful scrutiny?

There is only a vague suggestion of another code of conduct, one not even being mentioned as applicable to the individual the law Society was concerned about. How, exactly does this code of conduct apply and who is responsible for applying it justly? Are there checks and balances or accountability for that lofty role? How does the code of conduct compare with that of the Law Society and of those comparable organizations elsewhere?

From the evidenced reporting on this blog and your previous posting, I would sum up the establishment thinking on this as, "It is illegal and improper to hold your betters to account and we tire of having to answer these ridiculous questions. We shall do as we please, and you are out of line to make our lives difficult with this accountability nonsense!"

Or, perhaps I have simply missed something important in the defense of the ruling to permit the Law Office to avoid serious oversight.

Elle

Anonymous said...



The Bailiff Phillip Bailhache said,

"I do not wish to join in the debate at all - but he did.

Actually Sir you are not allowed to, because you are not elected, you are not employed to be a proposition carrier, you are supposed to be the neutral speaker of the house favouring publicly no proposition.

Yet address the house and make a short speech in order to persuade the elected politicians is exactly what you did. It is on record.

This clearly, is completely out of order and shows that the two rolls, Crown officers ( who you were supporting on this occasion ) and speaker, need to be separated as a matter of urgency.

Thank you so much for giving the public and UK Government and UK media, such a clear example of conflict of interest in action, please never patronise the people or the Government by stating the two rolls are compatible.

Boatyboy.

Anonymous said...

They aren't trying hard to justify anything. They are barely giving lip service to the accountability issue.

voiceforchildren said...

Rico.

Deputies Trevor and Shona Pitman's PRESS RELEASE.

rico sorda said...

WRITTEN QUESTION TO THE MINISTER FOR TREASURY AND RESOURCES BY DEPUTY T.M. PITMAN OF ST. HELIER
ANSWER TO BE TABLED ON MONDAY 15th JULY 2013
Question

Will the Minister clarify what was the total amount of monies allocated or transferred to the office of the Data Protection Commissioner to fund the case against former Senator Stuart Syvret relating to 4 private individuals and breaches of the Data Protection (Jersey) Law 2005?

Answer

No funding has been allocated or transferred to the office of the Data Protection Commissioner to fund any case. The costs incurred associated with cases are met from the Court and Case Cost budget. In 2013, a total budget of £7.7 million has been allocated to fund court and case costs incurred by the Judicial Departments, Police and Customs. It is not possible to outline total monies to be allocated to any on-going case.

In answer to the question once proceedings are complete the Minister, and the Data Protection Commissioner, will need to have regard to:

• the Code of Practice on Access to Information held by the States, Committees of the States and Departments of the States;

• any stipulations of the Court concerning disclosure; and

• the principles of the Data Protection (Jersey) Law 2005 insofar as they relate to the rights
of data subjects when reaching a view on what information can legally be released.

rico sorda said...

WRITTEN QUESTION TO THE MINISTER FOR HOME AFFAIRS BY DEPUTY T.M. PITMAN OF ST. HELIER
ANSWER TO BE TABLED ON MONDAY 15th JULY 2013
Question

In the course of the abuse case brought against James Donnelly in 2008/9 how many suspects were investigated in addition to Donnelly; how many initial suspects were not even interviewed, how many, if any, in addition to Donnelly were arrested and how many cases were sent to H.M. Attorney General’s office for consideration to be given to the individuals being charged?

Answer

In respect of this case, there were three other individuals who were considered as suspects and they were arrested and interviewed. Prosecution case files were prepared and presented to the Law Officers’ Department by the States of Jersey Police for consideration of criminal proceedings. None of the other three individuals in this case were charged with any associated offences.

Anonymous said...

As sickening as the Jersey situation:

Eileen Fairweather
www.telegraph.co.uk/news/uknews/crime/10177681/The-truth-behind-the-child-abuse-cover-ups.html

How do they get away with it?
In Jersey we see how, in microcosm, and in a clarity which enables the more nebulous mainland situation to be better understood.

At least the posh boys at Vic college got taken sailing and drugged with alcohol with probably only minor use of threats - better than being beaten shitless, tied up, or half drowned which have been the preferred methods by some at places like HDLG and some mainland homes that have been infiltrated by paedophiles.

voiceforchildren said...

Rico.

Jersey's INJUSTICE SYSTEM