“If taxpayers are on the hook for costs, the Directive should apply”

Saturday 24 February 2024

A decision not to reveal specifics about legal costs is disappointing, according to a deputy who asked several questions about the use of private law firms by Bailiwick Law Enforcement.

Deputy Gavin St Pier has received the answers to several questions about private law firms and the cost to the taxpayer when advocates are appointed to offer legal advice to law enforcement.

He lodged questions because he wanted to understand the circumstances in which the States’ is choosing to instruct third party law firms, instead of using the States’ own legal resources.

He asked what the circumstances are, if there is a tender process, and if he could have a breakdown of costs over the past five years.

The President of Home Affairs said all costs are confidential, and could not be published, but did offer the following context for when private law firms are appointed:

“Generally, BLE would seek legal advice and representation from St James’ Chambers,” said Deputy Rob Prow.

“There are limited circumstances, however, in which external legal assistance may be engaged, such as where particular legal specialism is required, or where St James’ Chambers may not assist for professional reasons.

“This applied to recent legal proceedings brought against police officers directly. The judgement of Le Huray v States of Guernsey (2011) determined that police officers are not ‘employees’ but hold public office. Police officers may therefore face some civil legal claims directly.

“That being so, generally, andin accordance with the principle of freedom of choice in selecting legal services, police officers may independently engage such legal services as they wish. However, given that police officers may face some civil legal claims directly, but other staff groups do not, support may be offered by the States of Guernsey in respect of legal fees.”

Deputy Prow said these instances don’t involve a tender process, and that any legal service is funded through the BLE budget under Home Affairs.

Deputy Gavin St Pier also asked about Tomlin Orders and how often they are used. It came as a recent series of petty debt claims against the police were paused out of court via a Tomlin Order.

He was told that “the Committee understands that there has been one such case which concluded in 2024”.

Deputy St Pier welcomed the answer to the question about Tomlin Orders but has taken issue with the rest of Deputy Prow’s response. You can read Deputy St Pier’s response in full below:

“I’m pleased to learn that there has only been one case settled by a consent order in the last 5 years. I had feared there might be more so it’s good to have established that is not the case.

“However, these responses raise many questions which now need to be followed up.

“How many other public servants are deemed not to be employees but holding public office? Does the States of Guernsey support these groups or individuals if they face civil legal claims?

“The ‘principle of freedom of choice in selecting legal services’ is, oddly, expressed as if it’s a right. In my experience, this is not normal. For example, if a director who is an officer of a company, is sued in their own name and the company, or their employer or an insurer agrees to cover their legal fees, then that party calls the shots. They decide which firm is used. They decided how to manage the case. And they decide whether and when to settle.

“The response also says States’ support “may be offered” which means, presumably, it may not. We need to better understand the circumstances in which support is given.

“It is said, that the States’ Directive on Litigation “may be of less obvious application, perhaps, to the range of litigation that appears to be referenced in this question (civil litigation against individual officers or the BLE).” That is clearly correct in the way the Directive is currently drafted, but it’s unacceptable. If taxpayers are on the hook for costs, the Directive should apply. Period. I will be writing to P&R to request that they urgently review the Directive and make appropriate changes to remove this anomaly.

“If the Directive has not been applied in these cases, then we need to know where accountability lies for the management of these cases and, in particular, the management of legal costs. Is it solely with the Head of Bailiwick Law Enforcement? Or does the Committee for Home Affairs exercise oversight? Is the Policy & Resources Committee aware and kept informed of the litigation risks that taxpayers are underwriting?

“The refusal to disclose the question in relation to external legal costs incurred in the last five years is deeply disappointing, preventing the disclosure, as it does, of information that may be seen as embarrassing. I don’t believe that legal professional privilege is engaged when the question is generic and doesn’t identify individual cases. But, in any event, privilege can be waived – and, frankly, I would expect it to be waived in circumstances where taxpayers are writing the cheques.

“I will be pursuing these questions further with the Committee for Home Affairs, the Law Officers and the Policy & Resources Committee.”