Open Planning Meetings – Why Bother?

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When I wrote my blog last Christmas about the Planners* I was very aware of the professionalism they showed and their need to follow their Code of Conduct**.  I was also aware that there was a lack of appreciation by some members of the public of the work they do and the way in which they do it.

However, the recent articles and Comment in the Guernsey Press last week was not an attack on their work but an attack on the way in which the political members of the Development & Planning Authority (D&PA) undertake their responsibilities. It is this I wish to address.  I should add that, whilst the process I  describe is factual, where I express any views these are mine and not that of the D&PA as a whole.

Applications for development are the responsibility of the political members of the D&PA but, at the beginning of this term in 2016, we agreed that the majority of decisions should be delegated to the Planning Service with certain exceptions. However, if an application fits the publicised criteria, then it goes instead to an Open Planning Meeting (OPM). The criteria is as follows:

  • A departure from the Authority’s established policies;
  • The proposal appears to raise particularly contentious or sensitive issues;
  • A Committee Member has requested formal consideration by the Authority;
  • Where the application is by a Committee member or Senior Officer advising the Committee;
  • An appeal to the Planning Tribunal, or other legal challenge, appears likely following determination of the application, service of the Notice or making of the Order.

It must be remembered that an OPM is not a means of appeal. The Planning Panel is the means of appeal; the D&PA is only the first line decision maker. When we decide to hold an OPM, we conduct it in accordance with guidance not regulations and these our President can and does vary from time to time.

The OPM is an even handed manner to give a chance to both applicants and respondents to give us their views on the application. It is the same for both representors and applicants – four minutes each, saying only what they had written in their  representations and with no repetition of what another has said.  Any party can engage architects and lawyers and, indeed, some respondents have done so.

It must also be remembered that the Planning Service is there to give impartial advice on the planning regime in accordance with their Code of Conduct. They will explain to anyone what the legislation says in any particular circumstance but cannot advise on whether a proposal for development will be successful or not.

If an application, when originally submitted, fits the criteria for an OPM but it is subsequently amended, re-publicised and receives fewer representations which raise concerns, we must consider if we feel an OPM is still appropriate.

So specifically with regard to the proposed development at the Rue De Cobo, we considered that the application, which had been revised and fully publicised, did not meet the OPM criteria. Not only that, far from abdicating our responsibility for the decision, we as a Committee reviewed the revised application and made a conscious decision to delegate authority to the professional planners to decide if the application complied with planning policies.

It seems to have also been forgotten that that process of calling for the views of neighbours, politicians and the parish Douzaine was successful in this case. Changes were made to the application and – OK it was not entirely to everyone’s  satisfaction – but it went some way towards it. We had 26 people object to the original application but only 7 objected to the revised plans, none of whom were Deputies.

Should the lack of people objecting to the revised plans be interpreted as acceptance or fatigue? But why shouldn’t the D&PA take it as acceptance? Are we mind readers? And why, when it is so simple to make a further representation, should we take it as fatigue? If you consider that, in this instance, specific letters were sent to all the 26 respondents notifying them of the revised application and all they needed to do, if they wished to make a further objection, was to e-mail planning@gov.gg providing their concerns*** and a request to speak at an OPM if one is to be held – how easy is that?

The D&PA must and does consider every application on its merits whether it is the first or the tenth iteration and any respondents should do so too. The D&PA cannot be expected to take silence as an indication of continued objections especially when we consider that those objections, which can be taken into account in the planning context, have been catered for in the changes to an application.

The Rue De Cobo revised plans fitted the requirements of the policies of household development. No Deputies objected. Only the Douzaine, who are fully aware of the way the planning regime works, and 6 other respondents raised objections to the new plans but it was felt that they did not raise any substantial objection in relation to the material considerations which might justify refusal of the application. Whilst the respondents did not have an opportunity to have their say in an open forum, they would not have been able to add anything further than what they said in their original letters. As there was nothing in their original letters which gave rise to a concern over the revised plans, the application just did not fit the OPM criteria.

Whilst some may say that ‘the proposal appears to raise particularly contentious or sensitive issues’, those issues must be planning related. The original proposal certainly did raise such issues but the second did not.  The proposal was altered because of the views of those 26 respondents resulting in an application which was acceptable in planning terms and approved.

The reason this recent decision by the political members of the D&PA has become news worthy is not because the approved application was contentious but because those who objected to the previous planning application were not conversant with the planning process. All respondents, whether or not Deputies, could and should read the information on gov.gg and/or talk to the Planning Service and understand how planning applications are decided. The applicants do, some respondents do and so should Deputies who wish to object to plans. With all these opportunities, it should provide answers to all the questions on the planning process applicants and respondents need to know. If it does not then please just e-mail us and tell us what else we can do.

All that said, I have often voiced the concern that we are raising false expectations by holding OPMs; giving the impression that there is something to be gained by having a planning application being heard by politicians. It must be remembered that the OPMs are not a means by which the public can air grievances believing they will make a difference to the outcome. Those grievances should not make a difference if they are nothing to do with the planning regime. Even though elected individuals are responsible at OPMs for making quasi-judicial decisions, the myth that their emotions are engaged should be dispelled. Because, if our emotions were engaged overriding planning law, we are in the wrong and should not be making planning decisions especially as, if the decision we make deviates from the legislation, it can be appealed in exactly the same way as can a decision from the Planners.

So, when a decision is borderline, an OPM being held may be beneficial so that politicians can apply a subjective view but, if it is a clear cut case of being either in accordance with the planning policies or not, why  take it to an OPM? If we did, it would raise a false expectation that we will make a decision that does not comply with those same policies.

These policies, which include the Island Development Plan, the Supplementary Guidance, the Development Frameworks and, together with pre-application advice, have resulted in fewer refusals and appeals. Indeed, it has also resulted in fewer cases which need to go before an OPM. We, the politicians on the D&PA, are responsible for the policies as well as providing the democratic accountability for the action of the professionals of the Planning Service and it is these policies which have already shown they are flexible and have saved money.

However, whilst I, personally, question whether politicians should be involved in even border line decisions at OPMs, I do believe that there is a need for appropriate training for any Deputy who has to make quasi-judicial decisions such as those at an OPM.

Last year, I attended a two day course offered to those members of the public who are on our Appeal Panels and Tribunals. It is not offered to Deputies as of right and I believe that it should. It is not cheap and, as usual, it cannot be made compulsory for Deputies to attend but it is a solid grounding to those making such difficult decisions affecting all of us.

So, whilst I prefer politicians to stick to what we were elected to do – making policy – if we are to continue to make quasi-judicial decisions then we should all have the appropriate training to go with it.

 

* Royal Town Planning Institute’s Code of Conduct                                                                     ** https://www.gov.gg/opm                                                                                                      ***Please also include your name and address

 

Sun, Sea and Fun During the 70th year of Alderney Week

DSCF1012.JPGMy summer holiday this year was spent, again, in our Northern Isle soaking up the sun and enjoying the wonderful atmosphere of the 70th anniversary of Alderney Week.  Having taken a 10 minute flight from Guernsey, the fun began with a walk with our suitcases from the airport through St Anne’s to our hotel.  It is so close and the weather was so lovely that it seemed silly to get a cab for a two minute trip down the hill.

That evening we wandered around the town and ended up on the Butes to listen to two excellent bands.  This was followed by a Sunday spent cycling around the Island using electric bikes, rather than the push bikes that we used last year, due to my whiplash injury.  When we were getting them from the shop, I was asked why the recent 25% price reduction was not available in Alderney – something I will follow up.

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The Cavalcade on Monday afternoon was a great occasion with many Myths and Legends celebrated including the lovely Mrs Gollop who was seated in the Connaught’s float.  My personal favourite was “How to Train Your Dragon” which had so much detail and clearly took a lot of hard work.  But then again that could be said about all of the entries both vehicular and on two and four legs!

As is my want, many a conversation was had during the four days – about the Island and its relationship with Guernsey.   As has been the case for several years, the main concern was the cost of the poor air links although praise was given to the new ferry service subsidised by the Alderney States.  With quasi-open skies and the ability to offer a Public Service Obligation for the Alderney – Guernsey route, there is hope there will be opportunities for Alderney.

We also enjoyed the hospitality of James Dent, the Chairman of the Policy and Finance Committee in Alderney, and his wife at their house where we had a long discussion over the relationship between the Islands and how to improve in the lines of communication.  Wednesday saw both James and Graham McKinley, one of the States of Alderney Representatives to the Guernsey States, joined me for a video conference at the Mignot hospital with my colleagues on the Health & Social Care Committee, who were in Guernsey, to talk about common issues.

Due to his recent major operation, I was advised that I should not visit the other States of Alderney Representative, Louis Jean, but I was able to pass on my regards and best wishes to him through his daughter and the many other friends of Louis that I met.

Tuesday evening was a blackDSCF1047 tie event with the wonderful Blowers accompanied by excellent singers at a James Bond themed Casino Night.  It was very different from the Rock the Rock event we attended last year and sitting down and enjoying the music was a great way to end the few days we were able to spend on the wonderful island of Alderney.  Roll on next year!

Assisted Dying – My Speech

After an emotional debate on whether Guernsey should set up a working party to look at the introduction of assisted dying, I thought I would publish the speech I made yesterday in the Assembly.  I do so mainly because we have had so many people e-mail and write to us to whom I haven’t responded, that I thought it only right to set out my position on this most difficult subject.  So for the benefit of those who weren’t able to listen yesterday or for those who did but want to read every word here it is:

“Sir, I have found it difficult to put into words why I did not support this Requete nor do I support Propositions 1 to 4.

I have found it difficult because the more I considered my position the more I believed my reasons for doing so differed from many although yesterday I realised I am certainly not alone.  It was also difficult to be satisfied that I had reached the right decision, at least for me, as we have read and listened to the heart wrenching stories of suffering: none of us would wish anyone to suffer.

For helping me with this decision, I also want to add my thanks to the very many people who have taken the time to e-mail or write to let me know of their views.

Sir, I cannot support the first four propositions for two reasons: firstly because I feel that we should not just have capacity legislation in force; we need to also ensure that it is effective.  A working party set up to consider the test for what is effective does not give me the comfort that the legislation would not be properly tested before bringing in assisted dying.

And secondly, the idea that I and obviously others have found difficult to reconcile.  If those essential safeguards are indeed in place and effective, why are the Requerants arguing that only a few people will be eligible to benefit?

Why delude ourselves that it is fair or reasonable that with the appropriate safeguards that assisted dying should not be available to those who truly want to have autonomy?

But that leads me to why I absolutely cannot agree to go down this path without those safeguards in place.  Why I cannot, yet, grant the people of Guernsey what has been described as this crucial aspect of personal autonomy.  However simple this concept appears, having been involved in ascertaining whether someone has the capacity to make a decision, has this autonomy, I was concerned that the complexities were being dismissed as one those clever draftspeople can overcome.  Whilst, we do have excellent professionals and an approach to legal drafting which provides for simpler Laws than the UK, we still need to understand that the Law will need to be interpreted.

This is a complex area and one I wanted to illustrate in my speech so think how pleased I was to note that late yesterday afternoon, I was sent the May edition of the Mental Capacity Report.  This report is sent to members of the Society for Trust and Estate Practitioners, produced by the barristers practising in England and Wales known as 39 Essex Chambers.  In it was a very interesting article entitled “The relationship between autonomy and adult mental capacity in the law of England and Wales”  How timely.

In it the author considers the underlying relationship between autonomy and mental capacity as discussed in various judgments dealing with this issue.  I have decided to go into the arguments raised to illustrate the complexities of what we are discussing.

The author, Paul Skowron, who is a Research Associate on the Wellcome Trust funded Mental Health and Justice project, working at the York Law School, divides the relationship between mental capacity and autonomy into three types identified by judges.  The first is the gatekeeper type where having mental capacity is treated an overriding reason not to interfere with their wishes, not to interfere with a person’s autonomy.  Another type is the insufficiency type where capacity is not enough to be autonomous. Freedom from coercion and undue influence is also needed.  For example in one case, ‘Mrs L’ had capacity and did not wish to bring proceedings for a non-molestation order against her son. Nevertheless, she was found to be “a vulnerable adult whose autonomy has been compromised by a reason other than mental incapacity” so a wide range of injunctions were made restraining him so Mrs L was found both to have capacity and to lack autonomy.

Lastly, the relationship between mental capacity and autonomy can be described as one of “survival”.  Mr Justice Baker said this was when “personal autonomy survives the onset of incapacity.”  But that is not the end of it and the author goes on in his article to say “it does not mean that everyone, regardless of capacity, is so autonomous that the state should not act against their wishes. It merely holds that some people without the relevant capacity might be so autonomous, and that the issue is decided as part of the best interests decision.”

For example, one factor is ‘the strength and consistency of the views being expressed’.  The author says “Fairly often, people without capacity know what they want, want it for intelligible reasons, or would be utterly distraught if what they wanted was disregarded. By softening the link between autonomy and capacity, the survival type allows these things to be taken into account.”

But Mr Skowron concludes “One of the original aims of the Mental Capacity Act introduced in 2005 in the UK was to simplify the law, but it does not appear to have done so.”  There are a wide range of factors that judges take into account when assessing a person’s autonomy and whilst capacity is relevant so, for example, is coercion.

For those who are interested the full article is available albeit for a fee – not to me I hasten to add.

Sir, I mention this as the debate has focused on freedom of choice, “my life my choice”, – if the decision before us were that straightforward I would find this debate a lot less challenging.  But it is not that simple because it is about competing demands – not just the legalities but practicalities too.

Giving due regard to those demands is the most important aspect of government as we must not allow them to be overshadowed by the emotions of the argument.  My feelings of empathy may pull me one way but my conscience says another.

As can be seen from the various Propositions before us, we are on a very long journey.  We have already agreed upon most of the stages of that journey as it will involve the introduction of an effective Capacity Law, non-discrimination and equality legislation for disabled islanders or preferably an Equality Law, the extension of international conventions and an even better palliative care service than we have now.

But what I find is unacceptable from a purely practical point of view is that we are being asked to combine these aims with that of enabling one person to assist another to die.  As I have said it is not the outcome that I have issue with but that these other most essential steps could be in anyway thwarted by association.

I believe there is a real risk of that happening because of the nature of the safeguards required because of the limited number of people to whom the right of assisted dying is being proposed to be given and so inevitably the greater number who will need protection from those safeguards.

It is also not about the person seeking to exercise the right that needs protecting.  It is not just about giving the right to an individual to die but it is also about protecting the ‘third person’ – the one who has the difficult task, even with well-written legislation, of assessing capacity, the one who has to write the prescription, the one who administers it and the family and friends who are left behind.

We are told by supporters that it is “a given” that we should have the very necessary protections for the vulnerable in place before we can move forward but do these four propositions really provide for that?  Do they adequately cover all of those people affected by such a decision?

The letter of comment from the Committee of Health and Social Care, a Committee on which I sit, sets out many such concerns.  As Deputy Soulsby, as President of HSC, will be commenting further I will say no more.

The question I need to answer is do I feel sufficiently reassured by those Propositions to believe these people will be protected by laws, processes and support networks BEFORE anyone is assisted to die.

As a glass full person, some may be surprised Sir by my scepticism – that I feel the need to ensure the safeguards are in place first.  But what has happened is that I have repeatedly, throughout my preparation for this debate, drawn on my own personal experiences both of my family and as a lawyer.  I too do not apologise for this as I believe these experiences are most relevant to this debate.

For 25 years, my primary task, as a solicitor who practised law in England and Wales, used to be discussing death – whether it was with an individual before their demise or afterwards with their family and friends.  For that reason, I am extremely pleased that the most difficult subject of death is being discussed openly with so many people.

During Dying Matters week, or as we call here it here on Guernsey “Going Out with the Tide”, we have an opportunity to break the taboo and stress the importance to talk about what needs to be done in the event of illness, incapacity and death so that our loved ones are aware of our wishes and have the tools to ensure those wishes are carried out.  It is also an opportunity to hear from professionals about what happens when people die, how the body functions in the last days.  Details difficult to hear but important to understand.

Getting people to talk about their ultimate and unavoidable demise, has always been difficult but usually occurs after someone has suffered a loss or an experience which they felt they did not want to go through themselves.  Whether that be someone dying without having made a Will or because, as we have heard over and over recently, their loved one had a painful death.  I have made Wills for people and then attended their funeral only the following week.  I have also helped people who had thought they were going to die a painful death, often because of an HIV diagnosis, only to receive joyful messages from them some 20 years later.

My role was to enable a discussion to, as we use to call it, put “ones affairs in order”.  In the UK, this would include a Will, plans for the funeral and an Enduring Power of Attorney which gave the power to someone to make decisions in respect of financial matters in the event of someone becoming mentally incapable. There was also the advance directive or Living Will which dealt with medical matters.

Together, this suite of documents could enable families to get on with their lives feeling confident they could deal with the eventualities of life.

However, life, or rather death, is not like that.

There have been occasions when I have been in despair over the way in which the law has operated.  I have watched as families fight over assets and debating whether someone had the legal capacity to take a certain action.  I have seen the despair when documents thought to be valid be declared invalid due to a technicality and I have seen well-constructed Wills be overturned because a family member who was excluded had managed to persuade a Court they needed the money.  Despite what the Deputy St Pier said in his speech, I have had to make it clear to clients that they do not have autonomy over their assets either before or after death – they can only give an indication of what they want as nothing can be set in stone.

In particular I have watched the issues around the introduction in the UK of the Lasting Power of Attorney which combines the financial powers of an Enduring Power of Attorney and a health and welfare section which is akin to the Living Will or advance directive.  That legislation has brought untold problems due to the way it has been administered.  One such example was a case where the person ticked two boxes on the form instead of one giving a contradictory instruction of what to do if the donor was in a vegetative state.  This resulted in the provision in the Lasting Power of Attorney being struck out and, if the donor had not been able to make another directive, their wishes would have been ignored.

This leads me on to my second concern.  To explain this I find it easier to refer to a conversation I had last week.  A parishioner asked me to vote for assisted dying advising me that if I did he would not need to go to Switzerland when he could no longer take care of himself.

Even if these propositions are successful, my parishioner would not live to see the legislation nor do I believe he would be eligible as he is a fit octogenarian!  I am concerned about this false expectation as people seem unaware of those who the Requerants intend should benefit from assisted dying.

During this time I have reflected on the life of my cousin who was diagnosed with multiple sclerosis when he was 21.  He was given 6 months to live and so could perhaps be someone who, under the proposed regime, could have been assisted to die.  Instead, knowing his life-expectancy, he successfully completed the 9 months left of his degree course and, whilst not being able to even feed himself, he continued to be the most inspiring person I have ever met for another 21 years of his life.  My Aunt, who cared for him every day, never once advocated assisted dying although later, when she found out how cannabis could have helped him, her anger was immense.

So, as the majority of people will not be able to take advantage of an assisted death, once this is acknowledged will there be the clamour for an extension before even the safeguards are in place?  Will the coming years in this Chamber be ones of twoing and froing from this stated position, raising expectation only to dash them later – and all this whilst essential work which benefits the whole Bailiwick is sidelined.

Or simply should we wait until we have the necessary safeguards – sorely needed – in place and effective – have the continued dialogue over what happens shortly before death, what we need to plan for, how palliative care can help and improve – and then agree and only then agree what if any assisted dying legislation we should have?  Some may say this is kicking the can down the road – something I would never wish to do unless it was right to do so – but this to me is the right time.

So, without safeguards that work, that are thorough and effective, I cannot agree to start a process that has so many uncertainties, with so many people who could be effected without their protection at the forefront.  Considering there are just so many things we need to do to benefit Islanders, I cannot agree to spend money on a fundamentally flawed and expensive process to give help to a few.

There are lessons that I hope we can all learn from this debate and which costs nothing and that is to do our utmost to ensure people do not feel a burden.  To help people to realise how much they are valued.

We also need to reiterate how all these aspects of life and death intertwine and that the horror stories we have heard are not what we or are families and friends are going to face – that we as a government are providing the care to make this very unlikely.  Let’s us explain in greater detail what is available and to remove that fear at least.

Saying that Sir I cannot sit down until I have complimented our Palliative Care on this Island.  All our healthcare staff have had the training to provide such care and we have an excellent Specialist Palliative Care team for the last weeks and days of life such care which can, of course, be improved.

And for me, personally, I put my faith in their care and that they will be there for me when I need it rather than having faith that there will be truly effective safeguards in place.

Before I conclude, I should add that, whilst I voted for this Amendment, it was because I wished a clear and straightforward debate not because I can vote for its effect. I should also add that Amendment 7, if it had been successful, made no difference and nor will any amendment which tries to water down the contents any further if it still associates any workstreams with assisted dying.

I cannot agree to a path which can in any way deter us from the so important aims we seek to achieve – they have been and continue to be hard enough to achieve without assisted dying be added in the mix of the goals we seek.”

 

 

18 Months and Counting ….. the Work Done by Principal Committees

It is now 18 months since I was elected and this is my third review of my time as a People’s Deputy.  But, instead of looking at what I’ve done in the light of my manifesto, I thought I’d review what the Six Principal Committees had brought to the Assembly.

I started by listing all the Policy Letters each had introduced and I was pleasantly surprised by the variety and work that we have debated.  For example the Committee for Home Affairs has covered trading standards, liquor licensing, data protection and most importantly those relating to the Population Management Law.

The Committee for Economic Development has brought subjects effecting the finance industry such as Image Rights, electronic cheque imaging, insolvency review and a joint Policy Letter with P&R on the introduction of the Beneficial Ownership Register for legal entities and an excellent Digital Strategy which was presented to the Assembly but not debated.  We are informed they will shortly be submitting the eagerly awaited “Green Paper” setting out their Economic Vision for Guernsey – let’s hope it is, indeed, worth the wait.

The Committee for Employment and Social Security has been fairly quiet if you consider that the usual annual Policy Letters for increasing Benefit and Contribution rates and the Minimum Wage is business as usual.  However Same-Sex Marriage legislation would be a major achievement for any Committee and one to be proud of.

The Committee for Education, Sport and Culture has had the most number of contentious items albeit not all brought by themselves to the Chamber. Having resurrected the 11+ debate and discussed the Grant Aided Colleges, they fought off a Motion of No Confidence.  The next stage will, however, be the most fraught for them with the debate between the “3 school, post-16 and training colleges” policy versus “the two schools and tertiary college” proposal.  Over spending aside and despite the fact I supported the Motion of No Confidence, I find it a shame the uncertainty continues not because of the proposals they are supporting but because I don’t believe they are concentrating on the main aim of improving educational outcomes.

However, the least active in the Assembly have been the Committee for the Environment and Infrastructure and Committee for Health and Social Care albeit they are focusing on major pieces of work namely the energy policy including hydrocarbons and the H&SC target operating model respectively.

I have had the privilege of being an observer on four of the Principal Committees so far and this has proven most helpful to understand each of their mandates and the work being undertaken: something which is not apparent from my analysis of just the Policy Letters.  I hope to follow up next year by attending meetings of the Committee for Education, Sport and Culture and the Committee for Economic Development and so gain a greater understanding of the obstacles they face.

However, I have to return to the two Committees I started with – Home Affairs and Economic Development.  Despite the importance of the legislation and the strategy we have seen from EconDev, it is still most disappointing that there has been nothing yet on the transport links which was the number one priority for most during the election.   Also, what is going on between these two Committees regarding their Policy Letters on Population Management?

As this is not a subject strictly speaking within EconDev’s mandate and considering the review Home Affairs are undertaking with Policy & Resources, it is a most strange turn of events.  Some may say EconDev’s Policy Letter is necessary because there is only a review and there is a need for urgent action.  But shortly afterwards Home Affairs issue their own Policy Letter which clearly has been in the making way before the issuance of EconDev’s version.

And today we have another small but important change in policy by Home Affairs. I think, after reading both Policy Letters, it is appears to me that this is an illustration of two Committees working in “silos” and an indication of poor communication within government.  It will, therefore, be interesting to hear what the Committees say about how this has been handled.

With the uncertainty of Brexit and the slow pace of growth in our economy, we need to all be optimistic whilst working collaboratively over the next six months and more.  So I hope that the silo mentality can finally be put aside and positivity abound as otherwise Guernsey will not be the place we all hope it will be if we don’t.

 

 

 

End of Term Report

At the end of a busy week in the Assembly, Deputies head for a two month break from attending States meetings – not, I hasten to add, a break from their homework.   As I am sure you all know, we continue to have Committee meetings and presentations, we deal with parishioners’ queries and there is always a lot to read.

As the holidays begin, I thought I’d just do a summing up of what I see as the important decisions and discussions since January.

We started the year with a bang and the Motion of No Confidence in the Committee for Education Sport & Culture which they survived.  We will find out this week if the confidence they were shown by the majority of my colleagues was well-founded when we see their plans for the three school model.

February saw a debate on whether or not to allow people to burn their dry garden waste at any time.  The debate masked the introduction of some excellent new measures to prohibit emissions of dark smoke, to set standards for local air quality and prohibit uncontrolled burning of non-garden waste.

The culmination of the long running Waste Strategy also came to a head when confirmation was given for the tender process to be completed just in time before Mont Cuet fills up.  Since then, the Douzaines have got together to see if they can agree on streamlining the collection of the different types of rubbish and how parishioners will receive their bills.

The Finance and Business Support sectors have been much in our thoughts with the introduction of various bits of legislation to keep us at the forefront of international regulation.  One such piece was the introduction of the  Beneficial Ownership Register for legal entities from the 1st July this year.  This is a mighty piece of work, completed quickly, and setting the standard for all offshore finance centres.  It creates a secure database containing information which will greatly help law enforcement in their work to prevent financial crime.

Two commencement Ordinances were passed with different reactions.  The Same Sex Marriages legislation was heralded with great joy whilst the clamour against the Population Management Law was audible amongst businesses across the Island.  As with most changes, the PML has taken a lot more time and resources than initially forecast but the cries continue for more lax treatment for foreign workers.  BREXIT will clearly dictate what we need to do but at least the PML is a better foundation to deal with these unknowns than the previous housing licence regime ever was.

The work to enable the introduction of the new data protection regulation from the EU and Document Duty ant-avoidance legislation were also agreed upon.  New rules for the statements by Presidents of all committees was also introduced.  Two of the projects given to us on the Development & Planning Authority by the Island Development Plan debate last November came to fruition.  One more step was taken in the Fontaine Vinery saga and also towards having that cup of tea at Stan Brouard.

Lastly, this month, we had debates on the States Accounts and the P&R Plan Phase Two.  Whilst the discussion on the facts and figures of what happened in 2016 was illuminating, my frustration in respect of the Plan was profound.  Having spent weeks trying to find out what aspects of the many projects, plans and resource requests we were being asked to approve – high level or full detail – I was told in the dying moments that there will be a 6 page summary document produced.  Once seen, I will find out what of the 200 page document remains and, hopefully, I can endorse the refined document without fear of unforeseen consequences.

So to the summer and the continuation of the heated argument over what to do about the anti-tank wall at L’Ancresse.  I hope that we can find a sensible compromise taking into account both the views of local people and the cost to the taxpayers of Guernsey.

Wishing you all happy holidays.

12 Months and Counting …..

Twelve months ago today, I was preparing to go to Beau Sejour to find out if the electorate of St Peter Port South thought I was a good enough candidate to become their People’s Deputy.  That evening was the most edifying event of my life – I was and remain honoured to be elected to this office.

As I did six months ago, I thought I’d take another look at my manifesto and compare what I said I’d do with what I’ve done.

There have been several occasions where I have followed my first promise – to push ahead with the best plans for Guernsey.  One such example was the Population Management Regime.  I listened to many and read a lot, I got involved with helping parishioners understand their rights – both employers and employees – and I spoke to many Deputies.  I decided I couldn’t procrastinate and delay its introduction because of one new form of discrimination when, to retain the Housing Control Law, would leave us with so many more examples of unjust treatment.

I believe in equality and diversity and I was pleased to play a small part in the introduction of same-sex marriages which can take place as soon as next week.  I am also trying to bring in a written policy for the States to use gender neutral terms as a matter of course.  It is voluntary at the moment and generally followed but I would like it to be a policy which is not just on the wish list but followed universally.  However, this is something which I am finding more difficult than I thought – not because there isn’t the will but apparently there isn’t the resources.   Personally I believe avoiding such discrimination is a state of mind not something you need to pay for!

The most work I have done, however, is on promoting Guernsey and our Democracy.  I have stood up, even when others wanted to go home, to speak about the positives of our finance sector and business services industries and the work being done by the States to support them.  I believe that by doing do so, we can increase revenue which enables us to maintain and, hopefully, improve the services to Islanders.  I have also spoken in support of the Island Wide Voting Referendum and the importance of getting on the Electoral Role so you can have a say.  Here’s the link if you haven’t registered yet   – https://www.gov.gg/elections.

One thing that I would like to do more of is spend time listening to our young people.  I enjoyed some really informative chats with a group of school pupils during the 11+ debate and also at the College of Further Education and Le Mare de Carteret.  I hope to follow this up in the next 12 months with an opportunity to hear views on all subjects as they effect the whole population.

 

International Standards – Giving Them Due Consideration

Web photo 2Yesterday, the States of Guernsey voted to bring in a private, central register of beneficial ownership of legal entities.  This was an important decision for us to make although it was tacked on to a long day talking about rubbish!  Before you start thinking I was being derogatory of my colleagues, I am referring to the debate on the Implementation of the Waste Strategy.

As I feel it is important that Guernsey is seen to give due consideration to other important matters especially those that affect our international reputation, I proceeded to give my speech despite the fact I stood up at 5.45pm.  For those of you who are interested below is the text of my speech.

“Sir, I will be supporting the proposition to establish a register containing beneficial ownership information for all forms of legal person.  We need this because it is essential that our law enforcement is provided with the tools to access this information as quickly as possible so that we can comply with international standards, fight crime and support our finance and business services industries.  I stand to give my support but also to give the subject the weight it deserves.  This is such an important move to take in the times we live in.

The proposal is for the Register to be open to those who need it and not publicly accessible.  This is, in my view, a sensible proposal.   Whilst there are calls for such registers to be open to the public, this is not based on a need to follow international standards but because of calls from pressure groups and the media.

From my involvement with industry, it is clear that they want us to follow international standards but not excessively which would put Guernsey at a competitive disadvantage.  I do not think the proposals do so.  In fact, I think they are a positive move supporting our commitment to law enforcement.

The widely accepted international standard on the recording of beneficial ownership is the one developed by the Financial Action Task Force or FATF which was first published in 2003 and further strengthened in 2012.  It does not require a publicly accessible register only that countries should ensure that there is adequate, accurate and timely information on the beneficial ownership and control of legal persons that can be obtained or accessed in a timely fashion by competent authorities.

This international standard has also been incorporated into the Global Forum on Transparency and Exchange of Information for Tax Purposes and is also followed in principle under the 4th Money Laundering Directive coming into force on the 26th June 2017.  I say in principle because, whilst the EU are seeking a central register, it requires a more extensive list of those who can access it than the FATF recommendation although, interestingly, it does not require the register to be public it merely suggests it as an option.

Whilst we are obviously not in the EU, not complying with the Directive may affect our ability to work with EU countries in the future.  This is not addressed in this Policy Letter and I would like reassurance that this aspect will be considered.

It is also important to remember that there are, already, extensive regulations in place which require all local trust and company service providers and other prescribed businesses and individuals to know the identity of the beneficial owners of Guernsey entities.  Those regulations also require the same information to be obtained for owners of entities incorporated in any jurisdiction in the world.

The recent 2015 MoneyVal report was most complimentary about the regulatory regime here but indicated they felt there were insufficient measures in place where no such provider was involved and the proposals in this Policy Letter are intended to improve these measures.

We also have, under Company Law, the role of Resident Agent whose responsibility, amongst other things, is to collect the information about beneficial owners albeit they do not need to establish the underlying natural person unlike under the Anti Money Laundering and Countering the Financing of Terrorism or AML/CFT requirements although both have a percentage ownership value below which identification is not required.   Propositions 7 and 9 will strengthen their role and accordingly I support these Propositions.

With all these ways of collating the information on beneficial ownership, why should we consider a public register?  Some say this is the way forward and point at the UK who have established a register last year.  But they’d be wrong.  The UK MPs calling for us to have such a public register of beneficial ownership probably don’t realise that the new UK legislation has not created such a register.

According to FATF, a beneficial ownership register should identify the natural persons who ultimately have a controlling ownership interest in a legal person but the UK register does not do that.  It does not even create a register of those who have ultimate control.  It merely creates an unverified register of those who have immediate control of a particular entity.  In my view this doesn’t even comply with the international standards so, as I have said before, why should we follow the UK down yet another path going in the wrong direction?

As well as not being required internationally, there are good reasons for keeping the details of beneficial ownership private.  These include a fear of kidnap or commercial sensitivity.  Some investment strategies made public could be impaired if this information was made public.  And who will prevent abuse of the information?

Most importantly, we all are entitled to a basic human right – the respect for private and family life – this is not secrecy but privacy: confidentiality.  As we said in the debate on the P&R Plan, regulation should be appropriate and proportional and this is an occasion when regulation should be no more and no less than what the international standard requires. The papers by the FATF and the OECD to the G20 Finance Ministers late last year made it clear that the focus is not on revising the standard but on implementation of the existing standard.  So I say let the ones who need to have the information, the Bailiwick’s law enforcement, have that information as speedily as possible.

However, that information must be kept securely; an important consideration for all of us in this age of cyber insecurity as highlighted by Deputy Lowe yesterday morning.  I am pleased with the choice of the Guernsey Registry as it will not only have the appropriate mechanisms in place to ensure the information is kept securely but, unlike the Guernsey Financial Services Commission, it will not be subject to a potential conflict of interest.

We do also need to ensure there are suitable legal gateways for the sharing of that information with domestic and foreign authorities for specified purposes.  Part II of the Disclosure Law which was brought into force on the 17th December 2007 and updated in 2014 sets out these various purposes and include criminal investigations and proceedings in the Bailiwick and elsewhere. Again I support this approach.

We then have Proposition 5 – to agree that P&R and Economic Development can appoint the Registrar.  As there is no mention in the Propositions that the appointment will be the Registrar of Companies as indicated in the Policy Letter, please can I have the reassurance that the Committees will not change their mind and, say, appoint the Commission instead?

The remaining Propositions are sensible recommendations especially in respect of the Resident Agents and bearer instruments.  The introduction of a statutory definition of beneficial owner will also be useful as is the alignment, after suitable consultation, with the anti-money laundering regime.   Similarly, the introduction of the right of directors to ask the Resident Agent to provide the beneficial ownership information on request but this could be enhanced if the Agent also has to provide the verification of such information.  I also note there is no provision to deal with the record keeping requirements when Resident Agents change – should the previous Agent keep the records to show they had fulfilled their role or should the documents belong to the company but accessible to the Agent?

Then there is the continuation of the ability for a statement being made that no beneficial owner has been identified.  This is necessary due to the complicated nature of ownership but I would ask for consideration that an explanation of why the owner cannot be identified to also be provided.

I am also concerned about the funding of the Registry.  Why does it have to come from the Bond?  We heard earlier that the implementation of the waste strategy would be better funded by the Bond as otherwise it would be paid for by the taxpayer and it would be more expensive if a commercial loan obtained but the Registry is a success story with more than £9 million transferred to General Revenue in 2015 so why can’t the costs be paid from their profits rather than the Bond with the inherent costs associated with such a loan?  In fact, why can’t the £214,000 loan outstanding at the end of 2015 be repaid too?  Whilst the Policy Letter seems to justify this I am not satisfied that this is commercially sound and an explanation would be appreciated.

However, I have also raised several times through the consultations, my concern as to why we are not being innovative in this field.  Why we are not being ahead of the curve for what is already a FATF standard and will also be a requirement in the future?  That is the register of trusts and other legal arrangements.

Pascal Saint-Amans, head of tax at the Organisation for Economic Cooperation and Development or the OECD, has said existing efforts to improve the sharing of information between countries – championed by David Cameron – needs to go further.  In particular, he said countries should look again at new registers of company ownership as these registers should also show similar information for trusts.

The FATF Recommendations state that the information available for legal entities should also be available in a similar way for legal arrangements – including trusts – with a view to achieving appropriate levels of transparency.

The 4th Money Laundering Directive states that “In order to ensure a level playing field among the different types of legal forms, trustees should also be required to obtain, hold and provide beneficial ownership information”.

Although David Cameron championed the public beneficial ownership register for legal entities, he acknowledged the important differences between companies and trusts indicating his reservations on such a register.  I am sure there are some in industry who may be fearful of my suggestion however, we need to be realistic and acknowledge that FATF, MoneyVal, and the OECD will get their way so let’s be proactive and design a register that is fit for our purposes and not wait to be told what we should do.  Be told by those who understand our finance and business services industries least.

I also note that two days ago New Zealand approved the recommendations of a report to introduce a private register of foreign trusts – trusts without a New Zealand resident settlor.  However, they are implementing it by using a manual spreadsheet database – we of course could be more sophisticated than that.

I should add that we do most of the work already under the AML/CFT regime so it would not be a stretch to start giving due consideration now to the question of whether to provide beneficial information on trusts to a private central register.  I believe that there are opportunities for our businesses if we lead the way so let’s grasp them.

So, Sir, despite recording my concern that that the Registrar is not stated in the Policy Letter to be the Registrar of Guernsey Companies and my disappointment that we are not being more progressive, I ask members to support these propositions. By doing so, we can fulfil the promises we have made to follow international standards and show our finance and business services industries that we support them by introducing regulation that is proportionate and appropriate.”