VIEWS OF A STATES MEMBER – Dec 18

It is the intention every month or so for me to write a short note on forthcoming issues coming before the States at its next sitting. I may at the same time, or in addition to that, add a few other comments on what I see as matters of the moment.

As this is the very first such note I will just recap on the first two years and eight months of this Assembly.

It is undoubtedly comprised of well-intentioned and decent people. Sadly though, in my view, the make up of the States is such that we as an Assembly have not addressed in any satisfactory way the real issues of the day, save for Education where I believe the States made a poor decision. I think of how my life changed because of my Education and I wanted, and still want, even better opportunities for young people going forward. Anyway, that is an issue for another time and is too important to be covered in one short note.

I say from experience that the 2020 Association, if we are to be meaningful, will need to have a significant number of credible candidates standing in 2020. Without that there will be no sensible changes. So, although I and others value all the background assistance, we will need people to stand up and risk being counted in 2020. A Politician’s lot in a small community is not an easy one but is necessary.

At the last States Meeting one of the main issues was the purchase by Aurigny in 2019 of three new ATR’s. I was convinced that that was the appropriate decision for a number of reasons but Jan Kuttelwascher made a good speech setting out the concerns. A major issue going forward is the extension of the Airport runway to 1750 metres or thereabouts. We will need to coalesce with the business and general community to put forward the best case we can. I regard it as vitally important for Guernsey both from a business and ‘can do’ perspective. Realism tells me that there is little chance of it being accepted by this States and I envisage it being an Election issue.

We also debated the Economic Development Policy Letter on Air & Sea Links. As a document it was fine but it lacked any detail as to how their aims will be achieved. Again that is something we need to detail as it is so important to our well being.

For the January States Meeting two of the key issues (and there is also a debate on the Poverty Issue) are (1) The HMIC report on the Guernsey Law Enforcement Services and (2) the refurbishment of the Alderney Airport Runway.

As to the HMIC Report, its debate was proposed by members of the Home Affairs Committee. I see lots of navel gazing and a bashing of the Committee for no good purpose.

As to the Alderney Airport Runway, STSB are going for the middle ground which will still have a bill of over £12 million. In my view that is vital for Alderney’s future. Alderney will never be able to justify that economically (just 55,000 passengers travelled to and from Alderney/Guernsey/Southampton in 2017) but it is part of the Bailiwick and we must do our best for it. P & R criticised STSB saying there was no proper business case for it (and in reality there never can be) and said STSB should have looked into a sea ferry type service (which in my opinion is a nonsense in that context).

Anyway, onwards we must go and I welcome any comments on the above, or indeed anything political.

On a final point, in these festive times when you are seeing lots of your friends/acquaintances, can you please persuade them to join the still embryonic 2020 Association? We need you!

I wish you all the best for 2019 and beyond.

Peter Ferbrache

© 2018 – The 2020 Association

BREAKFAST CHAT – Challenging States’ decisions

Certain recent controversial decisions of the States, (and in particular their bemusing decision to give the go-ahead to the ever loss-making States Airline to purchase three new ATR aircraft to replace its perfectly serviceable current fleet) have understandably provoked wider questions as to whether there is anything that can be done to challenge States decisions of questionable sense.

The general reactions of ordinary people seem to polarise between an incredulous and frustrated cry “Surely it must be possible to get this decision judicially reviewed?!?” and the equally frustrated but resigned comment that “There’s nothing to be done: the States is Parliament.”

The actual legal position is probably neither clear nor simple. This piece is therefore intended to provide some material for thought and discussion. There is an executive summary of its general tenor, followed, for those who are interested, by more detailed reasoning.

It should be noted that this article is, emphatically, not intended as legal advice, nor should the views expressed be in any way relied upon, or used other than as a subject for thought and discussion. The views expressed are not necessarily the views of the 2020 Association.

Executive summary

  • Where the States makes a decision of an executive or administrative nature, the Royal Court probably has jurisdiction to entertain a challenge by way of Judicial Review.
  • To challenge such a decision on its merits (ie apart from procedural errors) it would be necessary to show either that it was flawed for having been made on a false basis, ie without regard from some matter which should have been taken into account, or taking into account some matter which should not have been, or else that, objectively viewed, it was so unreasonable as to be outside the range of decisions which could rationally or reasonably have been made.
  • Where such a decision involved a disposition of States (ie taxpayers’) assets, even an ordinary person would have the status to bring such a challenge.
  • However, the exercise would be potentially expensive, and if the decision had been acted upon then even if the court pronounced the decision invalid, that would not necessarily undo its consequences.

Judicial review of States decisions?

For those interested in further analysis, first, a little background.

“Judicial review” is a relatively new concept in Guernsey law. Its availability was first recognised only in 1998 in the case of Bassington v H M Procureur. Its development has been slow, but has generally followed English practice.

In England the remedy was the product of judicial law-making which established such a jurisdiction during, in particular, the 25 years following World War II. The availability of some form of judicial review as a legal remedy for the citizen is regarded as a hallmark of a modern civilised and democratic state with an accountable system of government.

The scope of the concept of judicial review is, though, indicated by its full title, which is is “Judicial Review of Administrative Action” Therein lies the clue to its application, or lack of it, with regard to Parliament. Parliament is a legislature and, as such it is sovereign and not amenable to judicial review of its acts.

Judicial review operates in two distinct situations. The first is where a body acts outside the scope of its powers, as correctly interpreted. This simply involves the court deciding, authoritatively, what the legal scope of the particular power is, and whether the decision or action of the body in question is within that power, or outside it (ie ultra vires). This illustrates why the decisions of the UK Parliament enacting law are not subject to judicial review. As Parliament is sovereign, its lawmaking powers are not limited. However, where Parliament has delegated law-making powers to lesser bodies, entitling them to make subordinate legislation such as Statutory Instruments or bye-laws, then even the law-making decisions of those bodies can be challenged on the grounds of being outside the powers delegated to them.

The second situation in which judicial review operates is in relation to the administrative or executive decisions of an authority. There, in addition to the question whether the decision is within the scope of the powers conferred on that body, there is the additional point that, because the body can only use its powers for the purposes for which they are conferred, it is required to take executive or administrative decisions on a proper basis. This means: having regard to material considerations and only to material considerations, and making a decision which is not arbitrary, capricious or irrational, but is within the range of decisions which a reasonable and properly informed decision-maker could reasonably make in all the material circumstances. Offending against this lengthy rubric is referred to, in legal shorthand as being “Wednesbury unreasonable” (a reference to the case in which the principle was first stated). The principle embodies the law’s recognition of the fact that the decision in question has been lawfully confided to the judgement of the particular decision-making body and not to the court, but that, at the same time, there needs to be an ultimate oversight to set aside any flawed or extreme decision which is so capricious or unreasonable that it ought not to be allowed to stand, by any reasonably objective assessment.

How, then, does this all apply to decisions made by the States of Guernsey? Whilst the States is a legislature, it is not a legislature which operates in exactly the same way as the UK Parliament. In particular, it makes many decisions, particular those involving the disposition of States’ assets or funds, which are not the laying down of law, but are in the nature of executive or administrative decisions. In fact, the ATR decision, referred to at the outset, would seem to have been just such a decision.

On that basis, there is no need to think, or to assume, that the Royal Court would have no jurisdiction to entertain a challenge because States decisions were simply not amenable to judicial review at all. If any such decision is apparently taken on a flawed basis, or is so outrageous that it could be described as arbitrary, capricious or irrational, then there seems to be no ground for preventing it from being subject to remedy by judicial review. True, the Court might initially require some persuasion, as the notion of judicially reviewing the States appears rather bold, but it is the nature of the decision under scrutiny which decides, or ought to decide, whether there is any jurisdiction to subject it to judicial review.

As regards who could bring such an application, it is necessary to show a sufficient interest in the subject matter of the case, so as to prevent merely officious complaints. However, if a decision involved the disposition of States’ (ie taxpayers’) assets, then it would seem that any citizen of full age and capacity should be able to assert a sufficient such interest, especially if a taxpayer.

Any such application would naturally have to be made promptly; the courts look with disfavour on applications for judicial review which are made tardily, and this is likely to mean within weeks or, at the most, a very few months, of the decision being made. The exercise would, of course, be likely to be costly. (The costs of litigation generally are probably a whole new and separate subject).

And finally there would be the question whether the court would be prepared to exercise its discretion to grant the remedy and quash the decision under challenge. The court might not do so if it came to the conclusion that the material considered had been incomplete or inaccurate but that the decision would have been the same even without this flaw. More important, perhaps, would be the likely constraints of time. If the decision were to be acted on quickly, then it would be necessary to get the matter before the court urgently, before any consequences became a fait accompli. The court would likely be reluctant to set aside even a defective decision when major transactional consequences had already ensued in reliance upon it.

But the real point, for present purposes, is that there must surely be a mechanism by which the ordinary citizen can seek protection against States decisions involving outrageous and questionable expenditure, and effectively the waste, of taxpayers’ funds.

Let us imagine that our good friends, the Deputies, in a flush of goodwill or general virtue-signalling, decided by a small majority to spend £21Mn of this Island’s financial reserves (enough to buy another new ATR!) on sending overseas aid to Africa, with the justification being that this would enhance Guernsey’s reputation as a “good world citizen”. Can it really be the case that those who took the view that such a decision would be a gross breach of the government’s first duty, that of protecting and improving the lot of its own citizenry and of exercising responsibility akin to the duties of trustees in respect of States assets, and that charity begins at home, would have to sit by and accept, in effect, the giving away of Guernsey’s resources, on the grounds that this was a decision of the States, and was therefore immune from any effective form of review or challenge? Can it really be the case that the populace’s only sanction would be that of forlornly voting the offending Deputies out of office months or even years later, at the next election?

This extreme example surely illustrates that the Royal Court must have some power of review which can be invoked as, at least, a last ditch protection for Islanders against the dissipation or waste of their taxes. And come to think of it, the suggested example may not be as extreme as all that.

Bemused of Torteval.

© 2018 – The 2020 Association

BREAKFAST CHAT

By request, we are providing an irregular series of “talking point” pieces, under the heading of Breakfast Chat.

The intention is to provide talking points to provoke and stimulate discussion amongst our members and like-minded family, associates and friends, and, hopefully even produce a general “conversation”, and the airing of views. Suggestions and contributions are welcome.

Resources re. Guernsey Airport, Aurigny & ClearVision

There are several videos on YouTube relating to this topic.

This video https://m.youtube.com/watch?v=_wsF06FARpQ was emailed to all Deputies by Nigel Moll (Flight Operations Director at Aurigny Air Services) at the behest of Mark Darby. It was requested by Barry Brehaut. Of course, they wouldn’t have been allowed to attempt the landing in fog – as one pilot put it – “you can’t just have a go and see”.

There have been a number of trial flights undertaken by Aurigny and ATR in evaluation of the new Clearvision technology – these included some well publicised trials in June.

The Airport was advised these were occurring and were given an opportunity to review the output.

Comment on the above video from two professional pilots: “That is just low cloud – not fog on the surface….. in the flare it looks like more than CAT I+ – you can see quite clearly without the EVS down the runway. It has been done to fool people – probably a 150ft cloud base and 700m RVR.”

Here’s a video https://www.youtube.com/watch?v=Yv90kPhT3Z8 of a HGS CATIIIa manual approach at LDZA, RVR 200/175/175 meters, VV 50 feet.

EMAS. Passengers on Southwest plane saved by Hollywood Burbank Airport’s high-tech runway cushion: https://abc7.com/passengers-on-southwest-plane-saved-by-high-tech-runway-cushion/4856725/

A joint statement from the Guernsey Chamber of Commerce and the Guernsey branch of the Institute of Directors

Guernsey Press article 05/12/2018

Guernsey Press article 22/08/2018

Guernsey Press article 16/07/2018

Guernsey Press article 22/06/2018

Bailiwick Express article 22/06/2018

ATR Press Release Aurigny

ATR Press Release DRUIK Air

ATR Press Release DRUIK Air

ClearVision™ system video

Gov.gg: Aurigny Air Services – Aircraft Acquisitions

2013 – Aurigny hopes new jet will put airline into profit
That ‘profit’ doesn’t reflect the £15M we just gave them.


Guernsey Airport Low Visibility Landing Capability v EVS ATR72

Guernsey Airport is well known for its susceptibility to low visibility conditions, combined with a relatively poor instrument landing capability. The airport frequently suffers flight cancellations and delays which inconvenience Islanders, impact businesses and can deter visitors. For any island economy, an airport is a lifeline and flight disruptions can have severe social and economic consequences.

Capt Mervyn Dacey has very graciously shared his report which has been written to provide an up to date view of the options available to the States of Guernsey to improve the flight reliability when Guernsey is affected by fog.

It shows how Guernsey airport could be improved to enable operations in very low visibility (fog) using proven (CAT III) technology which has been used for more than half a century.

Modern EMAS technology (engineered materials arrestor system) at the end of the runway can minimize the land area required and keep all runway improvements within the current airfield boundary.

Improving the airport infrastructure represents far better value for money in delivering schedule regularity than purchasing new EVS ATR72 planes.

The current Aurigny ATR72, the Embraer Jet plus the Flybe Dash 8 aircraft could all already land in Guernsey in the same fog visibility as the New EVS ATR72 aircraft, but they need the airport improvement to do so.

The Aurigny jet could land in much lower visibilities of CAT III 200m, than the EVS ATR 72, but again only if the airport is improved.

Buying the EVS ATR72 Airplanes will still leave all the Gatwick, Southampton and Exeter passengers stranded in the fog.

The replacement of 9 year old ATR72 aircraft appears to be unjustified at this time. The life of these aircraft is in the order of 30 years which compares with large jet transport aircraft. In comparison British Airways and Virgin Airlines B747-400 aircraft are over 30 years old and remain in service. The ATR72 aircraft do not need replacement because of their age.

Mr. Dacey’s document was sent to all States Members on the 2nd December 2018.


Grammar School

We were recently asked: “Does the 2020 Association believe in ‘flip flop’ government and do you want to see selection and the Grammar School retained?”

In summary: “No: we do not believe in “flip flop” government, but we do believe in rectifying obvious mistakes. Yes: we do want to see the Grammar School retained.

We certainly do not believe in “flip flop” government as an arbitrary and self-indulgent exercise in reversing previous decisions on a whim and without good reason. However, we do believe that it ought to be possible to put right obvious mistakes, and get policy on the right track.

Guernsey, as a small island, needs a first class education system which will enable children of all levels of intelligence, and different abilities, to discover and make the most of their own particular talents. This, though, includes the most able of our children, as well as the less able. Every child should have the opportunity of an education which, through challenging them, will enable them to achieve their full potential.

For many years, Guernsey’s education system, with the combination of the Grammar School and other secondary schools, delivered just such a range of educational opportunity and it was admired for delivering this.  The Grammar School was a beacon of excellence in this context, and provided a route to success in later life for very many able children who might not otherwise have found it. The gratitude one so often hears amongst islanders for the opportunity which the Grammar School gave to them is a testament to this.

The decision to abolish the Grammar School was a mistake. It was a decision taken more in the interests of political correctness and a dogmatic mantra of supposed “equality”, than common sense as to the best system of education for both the benefit of the Island and of its young people.  

The mistake is illustrated just by observing what happened in the United Kingdom. The UK, similarly carried away on a tide of politically correct thinking, made the decision to abolish its grammar schools at the end of the 1960s. A gradual decline in excellence and educational standards followed. It has taken the UK fifty years to recognise and face up to the fact that abolishing selection was a mistake, however, much some might not wish to admit this, and the UK has just recently reversed that policy and is restoring grammar schools.

Guernsey, having had the advantage of avoiding this mistake, has now decided to throw this away, and to turn down the provenly misconceived rouge of abolishing its excellent Grammar School, at the same time as the UK is reversing that decision and trying to repair the damage it caused! This is the quality of inept decision-making which the present and recent States has descended into. The situation would be laughable if it were not so important, and therefore tragic.

It is quite apparent that a very great number of islanders (save possibly for a vocal handful who have a personal animosity to the system) were, and remain, in favour of retaining the Grammar School. They expressed these views, albeit hampered by the absence of a systematic way of making these felt. Their views, however, were simply brushed aside by the strident voices supposedly “expert” educationists, and those intent on enforcing political correctness regardless of the common sense of the situation. The result has been not only the abolition of a demonstrably excellent school structure, but complete chaos and indecision even about what ought to replace it.

Children need an education system tailored, as far as can be practically achieved, to their individualities. They they should not be consigned, in the interests of political dogma, to schools of a thousand or more pupils, where the headmaster does not even know the names of all the teachers, let alone his pupils. That is factory education, not excellent education.

It is not too late to do something. If something is wrong, you have to repair it.

You also have to try to ensure that a future States is populated by Deputies who make rational, common sense and businesslike decisions.

© 2018 – The 2020 Association

Using existing runway.

We support anything that will lead to the better connectivity of Guernsey with the mainland. We are hopeful that the Requête of Deputy Kuttelwascher (one of our members) will be one of the first steps in improving the situation.

Synopsis: Maximise existing airport facilities using existing runway to allow competing airlines to service Guernsey.

As of today (02/12/2018), has the ‘Scoping Document’ to the consultants been produced?

Deputy Kuttelwascher’s Requete on the length of Guernsey’s runway:

  1. To direct the States’ Trading Supervisory Board to consult with the Director of Civil Aviation to determine if:
  • a) A 90 metres “undershoot” RESA is acceptable for landings on runway 27
  • b) A 90 metres “overrun” RESA is acceptable on runway 09.

AND

  • c) To  identify any safety enhancements, including EMAS, which would be required  to enable the commissioning of 107 metres of the starter strip/paved RESA or to mitigate the reduction in the length of the RESA from 197 metres to 90 metres.
  1. Following that consultation, if there is evidence to suggest that the commissioning of the 107 metres is possible, to direct the States’ Trading Supervisory Board to return to the States by March 31st 2019 with a Policy Letter giving, inter alia, indicative estimates of the costs of all components of the commissioning requirements.

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Discussed: States Meeting on 24 October 2018 (Billet d’État XXIII)

Voted: 35 for, 3 absent, 2 against (Deputies Brehaut, Langlois)