Motor tax

At its States Meeting to be held this week, the States are to consider a proposal to proceed with investigation of a ‘distance charging mechanism’ for motor vehicles on Guernsey’s roads.

In our survey, which concluded on Monday, 2020 members voted overwhelmingly (41%) to develop a holistic approach to energy, transport and revenue (which was the suggestion of the 2020 Association) whereas only 13% wanted the P&R preferred choice to investigate a distance charging mechanism. Results were as follows:

After consideration of the policy letter entitled ‘Taxation of Motoring’ dated 23rd May, 2019 States Members are asked to decide: “To agree, in principle, that a distance charging mechanism should be introduced as soon as possible and direct the Policy & Resources Committee to report back to the States with detailed proposals to introduce a distance charging mechanism.” Our members say ‘NO’, overwhelmingly.

https://gov.gg/CHttpHandler.ashx?id=119371&p=0

Briefing Note 7

Given the foregoing, the obvious immediate & logical solution appears to be to retain the existing fuel duty arrangements (26% of votes), and probably adjust this to retain revenue level (21% votes).

 

Briefing note 6

The briefing note below is the latest in our series summarising prospective business at States Meetings, to enable 2020 Association Members to be informed. It is largely self explanatory. It is regretted that this States Meeting has come closer on the heels of the previous one, such that it has not been possible to send out this note in time for member comments, but it will nonetheless at least keep members informed, in particular about the matter which seems to us to be the most concerning.

Future States Business brief (6) – Meeting of 12 June 2019

Apart from routine matters such as elections of members to committee places, and the usual array of statutory instruments on such routine matters such as animal and plant health measures and formalities for import duties, there are only three items of substantive business which really merit note or comment. (We therefore mention only in passing measures to coordinate the timing of meetings of certain States Committees with budget dates, and to make minor amendments to anti-money-laundering legislation as a result of practical experience. )

The three items which deserve actual note are, first, the approval of a measure to formalise the constitutional position that Westminster cannot impose legislation into Guernsey’s domestic law without the specific approval of the States of Deliberation. This is obviously to be welcomed in the light of the well-known hostility to the Island on the part of certain grandstanding politicians in the UK.

The second such item is approval being sought to bring forward legislation to re-organise the provision of health care funding in Guernsey by bringing all aspects of this (including associated aspects such as medical benefits, medical travel funding, and suchlike) under the umbrella of the Committee for Health and Social Care,rather than with the current split between that Committee and the Committee for Employment and Social Security. This is an obviously sensible measure of efficient rationalisation, but apparently (if unsurprisingly) requires a good deal of legislation to provide for the mechanics of budgeting and of setting up and controlling the appropriate funds, including the destination of existing funds. It is not expected to make any very obvious difference to islanders in everyday practice. It is to be noted, though, that, within this legislation, the way appears to be being paved for the relaxation of, or the introduction of flexibility into, the present rules specifically limiting what medicines or drugs will be provided at States expense, and also that the proposals include the giving of authority to press ahead with a complete review and overhaul of the present system for levying social security contributions, in pursuance of a resolution passed at the time of the Personal Tax Pensions and Benefits Review of 2015. So watch this space.

This brings us to the third item, which is that of the most concern on this States Meeting Agenda which is the Policy and Resources Future Digital Services document, which can be found here. In essence it asks the States to decide:

 

  • To enter into a ten-year contract with Agilisys Guernsey Limited following P&R’s approval of the Full Business Case.
  • To transfer States staff to this new entity of which the States would have a ‘golden shareholding’, thereby providing the States with a degree of control
  • To approve or acknowledge various funding amounts of: £1.4m, £2.0m, £26.9m, £16.7m in the short term, with total costs over 10 year span of £200m+.

After careful analysis of the 63 page policy document we believe that the The Future Digital Services policy, in its current form, is too vague on the transformation it is seeking to achieve.

For the States to enter into a partnership with Agilysis for the purpose of achieving vague, aspirational goals has all the appearance of a commercial disaster waiting to happen. We feel that it is premature, highly risky and almost certainly doomed to failure. It is disturbing that the States are seeking to have their hands held without specifying accurately what they want or where they will be led.

Whilst a detailed analysis is beyond the scope of this briefing note, we suggest that further work to identify the need and a specific plan to address the States’ requirements is needed before entering into a 10 year contract, especially where £200m of tax payer’s money is at stake.

For example, there appear to be no specifications for each major area/project (for example: Revenue Services, HSSD, Education, Planning, Cadastre and general document storage inter alia) and there is no clear indication of how such new projects (if they are indeed created) will interoperate, what platforms they will use, and little detail of how they will be provided (except that they may be ‘cloud based’). Indeed we would expect such areas to have been the subject of detailed analysis before seeking any tender bids or entering into any partnership.

One might well ask how it is possible to make the jump from deciding to enter into this partnership and drafting contracts to ensure adequate performance? Where are the fully formed terms of reference? How will it be enforced? What happens if it goes wrong?

Some parts of the document appear to seek to have a ‘feel good’ factor instead of substance, and appear to be deviating into joint venture areas instead of concentrating on core States IT systems.

IT projects are infamous for going over budget and failing to deliver the benefits promised. This is in no small part due to their complexity and the lack of specific IT knowledge in decision makers. Consequently, we believe the appropriate response is a detailed scoping and planning exercise by experts that can help reduce the risk before committing to such a vast project. We welcome the work done thus far but feel there is still a further stage of planning before awarding such a large contract.

The perils of vague IT projects: https://www.theguardian.com/society/2013/sep/18/nhs-records-system-10bn

This article highlights the financial risks of lofty & vague IT projects. The Institute for Government also offers some sound advice on how best to approach them: https://amp.theguardian.com/technology/2014/aug/19/costly-trail-british-government-it-disasters-universal-credit
 

Tom Gash, the Director of Research at the Institute for Government: “There are some patterns here we’ve seen in a lot of other failed projects,” he says. “The one that stands out is doing a ‘big bang’, announcing it all at once.”

(Further information regarding future States Business can be found on www.gov.gg under “Search States Meetings Information.”)

Airport Runway (Part B) Tender information request

2020 Association demands to see PwC Part B Tender docs.

The 2020 Association has made a request under the States of Guernsey Code of Practice for Access to Public Information (2014) for information for tender documents and information relating to Part B (business case) of the PwC island’s air and sea transport links report, with a view to general disclosure to the public.


James Collings, the Chairman of the Association, said “Following our successful request to have the PwC Report into Air Links Infrastructure Report released, The 2020 Association now requests further information relating to the tendering and costing of Part B of this Report, which the States voted not to pay for on the 26/04/2019. These are documents that can be released to the public in a redacted form at least. They have been paid for from the public purse. The taxpayer has a right to see them, and P&R have an obvious obligation to produce them. The 2020 Association has therefore made a request for production under the States of Guernsey Code of Practice.”

The improvement of transport connectivity, and the implementation of a full Freedom of Information Law are among the foremost stated objectives of the 2020 Association.

A copy of our letter is here.

On the 24th May 2019, P&R declined to provide any further details on the airlinks tender.

Air links P&R Statement – Fact check

The 2020 Association considers air links to be a top priority for Guernsey’s economic development.

We were disappointed by the 12 December 2018 statement by the Vice-President of the Policy & Resources Committee renouncing further investigation into a runway extension.

As part of our assessment of the rationale behind P&R’s announcement, we demanded publication of the PwC Air Links report.

Following our success we have been able to review the PwC report and feel obliged to point out that the P&R statement is at odds with many of the detailed findings in the PwC report and its overall conclusion.

Whilst these are numerous, we have outlined three critical contradictions at the start of this article (labelled Claims A, B and C) which are with regard to fundamental matters in informing our ongoing support of producing a cost benefit analysis relating to a runway extension (i.e.  Part B of the exercise as recommended by PwC).

We then continue with a more detailed examination of the comparison of the contents of the PwC Report, other sources and the statements made to the States as recorded in Hansard and the account of these statements as they now appear on the government website (labelled Claims 1 – 7).

We welcome views from the public and media on the runway extension. Please contact us via Facebook, email or a direct comment at the bottom of this article.

We are having our first public meeting at Les Cotils on the 2nd May 2019 at 7pm in relation to this. Please click on the link to confirm your attendance.

The three critical contradictions:

Claim A
Policy and Resources Statement

“The Policy & Resources Committee has reached the conclusion that the option of extending the airport runway will not be a game changer in respect of our connectivity”.

PwC Report

“The 1,570m extension appears to be the best runway option if it is feasible from a commercial and operational perspective for more than one airline”.

“A 1,700 -1,800m extension should be taken forward as the primary alternative to the 1,570m option. There are clear additional benefits and it is lower risk in the longer term, although there may be a substantial cost difference”.

2020 Conclusion – FALSE

The P&R statement contradicts the commissioned PwC report.

Claim B

Policy and Resources Statement

“The truth of the matter is that if [sic] were to extend the runway to the length that PwC indicate it would be a game changer, we would need a huge and complex planning inquiry, probably to bulldoze part of St. Peter’s…”

PwC Report

“Because of the geographical characteristics of the airport, an extension of the runway that goes beyond the existing boundary is likely to require filling in a ‘valley’ to the east, which would have an associated cost”.

2020 Conclusion – FALSE

The P&R statement contradicts the commissioned PwC report.

We also note the P&R statement contradicts Island Development Plan Policy IP4 “Airport Related Development Proposals relating to the operation or safety of the airport will be supported”.

Claim C

Policy and Resources Statement

“…enormous investment on which there may never be a return”.

PwC Report

“ASM have estimated that the extension plans would bring additional value to the Guernsey economy.”

On the 1700m extension: “We recommend that this is taken forward as the other runway reference case and subjected to detailed cost-benefit analysis to determine if the greater cost of this option justifies the tangible benefits”.

2020 Conclusion – FALSE

The P&R statement contradicts a previously commissioned report from ASM and concludes on a cost benefit analysis that has not yet been completed and that the recently commissioned PwC report actually recommends. They call it ‘Part B’.

A more detailed examination:

The following is a more detailed examination of the P&R Statement.

Our work became more complicated than it at first appeared: the statement as issued on the gov.gg website is manifestly different to the official Hansard in critical areas. Gov.gg statement quotations in green, Hansard quotations in orange, black where they both agree.

Claim 1

Gov.gg Para 25: The Policy & Resources Committee has reached the conclusion that the option of extending the airport runway will not be a game changer in respect of our connectivity”

Hansard Line 871: “..the Policy & Resources Committee has reached the conclusion – and we are unanimous in everything I am telling you this morning – that the option of extending the airport runway will not be a game-changer in respect of our connectivity.”

Gov.gg Para 43: “Sir, the Policy & Resources committee does not believe a case has been made to extend the runway, so we do not propose undertaking further work.”

Hansard Line 917: “Sir, the Policy & Resources Committee does not believe a value for money case has been made to extend the runway, so we do not propose undertaking further work.”

PwC Report, Pg. 20: “A 1,700 -1,800m extension should be taken forward as the primary alternative to the 1,570m option. There are clear additional benefits and it is lower risk in the longer term, although there may be a substantial cost difference”

PwC Report, Pg 20: “The 1,570m extension appears to be the best runway option if it is feasible from a commercial and operational perspective for more than one airline.” (However there is a caveat on  page 14 relating to payload restrictions.)

2003 BAE SYSTEMS Infrastructure Solutions: Guernsey Airport Runway extension, JAC Report1/Issue3/27.01.03: Pg 15

“5.6 Conclusion

For the purpose of runway length, therefore, the new generation of regional jets have been selected as the design aircraft, as these are likely to form the majority of scheduled jet aircraft movements towards the end of the 25 year planning period.

This results in a required runway length not less than 1700m as being a minimum requirement to allow satisfactory payload range performance for these types of aircraft.”

2003 November 26 Billet, Para 6.4 (Pg 2391) ends: “..A runway length of 1,700 metres is the minimum to enable, “satisfactory payload range performance for these types of aircraft.” (page 15, BAE SYSTEMS Infrastructure Solutions’ Guernsey Airport – Runway Extension Report 1 – Runway and Taxiways, January 2003).”

2020 Conclusion – NO BASIS IN FACT

1700m was a solution 15 years ago to future proof us for the next 25 years.

Claim 2

Gov.gg Para 26: “The truth of the matter is that if [sic] were to extend the runway to the length that PwC indicate it would be a game changer, we would need a huge and complex planning inquiry, probably to bulldoze part of St. Peter’s, and enormous investment on which there may never be a return.”

Hansard Line 875: “What we do know is that if we were to extend the runway to the length that PwC indicate it would be a game-changer. We would need a huge and complex planning inquiry, probably to raze to the ground part of St Peter’s and enormous investment on which there may never be a return. The truth, Members of the States, that so far at least, there is no compelling or even marginal business case for an extension of that magnitude.”

We break this down:
Claim 2.1
Gov.gg and Hansard: “..we would need a huge and complex planning inquiry..”

Island Development Plan section 20.5, pg 21 states:

“Policy IP4: Airport Related Development
Proposals relating to the operation or safety of the airport will be supported where it would ensure the continued effective, efficient and safe operation of the airport.”

2020 Conclusion – FALSE

The 2016 IDP effectively reserves the land for airport use.

 Claim 2.2

Gov.gg: “..probably to bulldoze part of St. Peter’s..”

Hansard: “..probably to raze to the ground part of St Peter’s..”

2020 Conclusion – FALSE

St Peter’s in Guernsey lies to the west of the runway. Recommended 1700 – 1799m development examined in PwC report on page 20 lies to the east; there is nothing in the report that suggests that any work needs done beyond the existing western boundary.

A Code 3 (1200- 1799m) paved runway will remain within the current airport boundaries. However a RESA would have to be accommodated to the east of the existing boundary, presumably over the La Villaize Rd. or by infilling it.

 Claim 2.3

Gov.gg and Hansard: “..and enormous investment on which there may never be a return”

1700m extension costed at £23M in 2003, (at least) £23M in 2009,

option C2 in Billet XXIV 2009 volume2 p.1857 gives indicative cost.

The Chamber of Commerce and Institute of Directors made a joint submission which P&R received on or shortly after the 14/09/2018. In the section relating to economic impact due to the weakness in the island’s connectivity:

“the impact would approach £100m per annum in lost GDP to the island”

2020 Conclusion – SPIN

Recuperation period for Guernsey economy seems short.

Has the cost of not doing anything been calculated?

Air visitors are at their lowest since 1998. Economy suffering.

Claim 2.4

Gov.gg Para 25: “The Policy & Resources Committee has reached the conclusion that the option of extending the airport runway will not be a game changer in respect of our connectivity”

2020 Conclusion – SPIN

This seems in contradiction with Hansard Line 875:  What we do know is that if we were to extend the runway to the length that PwC indicate it would be a game-changer.

 Claim 2.5

Missing from Gov.gg version

Hansard Line 878: “The truth, Members of the States, that so far at least, there is no compelling or even marginal business case for an extension of that magnitude.”

2020 Conclusion – MISLEADING

PwC proposed a professional, fact-based cost/benefit evaluation (business case) of a runway extension as Part B of the process, but this has not yet been undertaken. P&R have established their position before the facts, and it appears that they do not want them to be evaluated.

Note: The 2018 PwC Report, 2003 BAE SYSTEMS Infrastructure Solutions JAC Report and the generally accepted development would be a 1700 – 1799m runway. The pavement could be contained within the current airport boundary. A RESA (runway end safety area) would need to be created to the east of the current airport boundary. 

The PwC Report does not recommend the 2000m option.

In order for the Aurigny jet to autoland in fog a minimum runway length of 1650 m is required as the landing distance is increased when a E195 is autolanding even if the radio aids and runway lighting was improved to CAT 3. The current Guernsey runway length is limiting even for the E195.

Claim 3

Gov.gg Para 27: “The Policy & Resources Committee does not believe that the community nor the political body has the appetite for that. Therefore spending hundreds of thousands of pounds of tax payers’ money on listing the pros and cons of a set of runway extensions that are unlikely to be built in our lifetime will not be a worthwhile exercise”

Hansard Line 880: same with qualifier “.. a set of runway extensions that in our view are unlikely to be built in our lifetime will not be a worthwhile exercise”

Gov.gg Para 31: “So if the States does not agree with P&R’s recommendation, if States Members believe that their parishioners want us to spend upwards of half a million pounds investigating the runways further, then they will have the opportunity to direct the Policy & Resources Committee otherwise.”

(Hansard Line 890 substituted ‘parishioners’ with ‘constituents’)

The PwC Report, Pg 20, states ..“A 1700 – 1800m runway extension should be taken forward as the primary alternative to the 1570m option. There are clear additional benefits and it is lower risk in the longer term” they go on to say that this “..would be likely to provide benefits in terms of opening up Guernsey to a wider range of fleet and airline options, including British Airways and European charter operations” and they continue “We recommend that this is taken forward as the other runway reference case and subjected to detailed cost – benefit analysis to determine if the greater cost of this option justifies the tangible benefits.”

2020 Conclusion – MISSING BASIS IN FACT

That analysis would form Part B of the Report (the business case) which must be completed for at least a 1700 – 1799m extension before an opinion such as P&R’s above can be reached. A proper decision making process is obligatory for all major investments; policy must not be formed on a whim. It must be made in an objective, evidence based manner.

Where does P&R’s ‘belief’ come from?

Claim 4

Gov.gg Para 39 – 43: “Let me be clear then, on the Policy & Resources Committee’s position as it concludes its review:

What islanders consistently tell us is that they want frequency; what a longer runway offers is potentially less frequency as larger aeroplanes rotate routes less frequently.

What Economic Development wants is choice; a longer runway does not guarantee choice – airlines could start flying in on the current runway if they see a business case.

What our island wants is an island airline with the right fleet and a commitment to the island – not a procession of so-called brand airlines cherry picking routes every summer.

Sir, the Policy & Resources committee does not believe a case has been made to extend the runway, so we do not propose undertaking further work.”

Hansard Line 913 substitutes “..What Economic
Development, completely understandably, wants is choice. ..”

and Line 917: “Policy & Resources Committee does not believe a value for money case has been made to extend the runway..”

PwC Report, Pg 34: “The importance of each indicator varies by passenger group. Reliability is a key issue for all passengers”

In the split between ‘Business’, Leisure’ and ‘Visiting Friends and Relatives’, affordability is in all groups, and top of two.

Frequency is not mentioned on this page.

The CofC/IOD’s press release states that competitive fares are most important (80% of respondents) and frequency is 5th (28%). We quote:

“The IoD and Chamber are concerned that the States are failing to address the concerns of the business community in respect of the evaluation of the islands air and sea links.

The statement made by Deputy Lyndon Trott on behalf of P&R issued to the States on 12th December suggests conclusions have already been drawn in the evaluation of the current status and assessment for the development of the air links and sea links infrastructure. Whilst we agree with the opening statements regarding the criticality of the impact of our transport links, we disagree with the recommendation to terminate the evaluation of air links without having completed the evaluation process.

With regards to the Policy and Resources Statement the IoD and Chamber would like to clarify the following specific points: 

(1)   The business groups undertook the survey and submission at the ‘specific request’ of the Economic Development/ Policy and Resources committees in support of the work undertaken by PWC. 

(2)   The joint member survey clearly identified “Competitive Fares” as the top priority for Guernsey’s connections with London, highlighted by 80% of respondents. The need for “6 flights per day to Gatwick though out the year” was 5th, highlighted by 28% respondents.  Given P&R’s statement it would be helpful to understand evidential basis on which they identified frequency as the leading consideration in the development of air links. 

(3)   It is apparent that Policy and Resources have focused on an extension to 2000m, which is inconsistent with our prior understanding that the PWC review was recommending investigations of two much more modest options, 1550m and 1750m. It would be helpful to understand why such an extreme position which would clearly cause a lot of distress in the local Parish has been proposed as the solution against which to judge viability. 

The survey clearly expressed the concern of the business community with the current situation, the lack of progress and the lack of a cohesive plan to evolve our air and sea links leading to a lack of confidence to make investment in the business environment.”

2020 Conclusion – NO BASIS IN FACT

The CofC/IOD drew their conclusions from material in circulation prior to this P&R statement and indeed that statement referred to those surveys. (Para 21)

Claim 5

Gov.gg Para 41: “What Economic Development wants is choice; a longer runway does not guarantee choice – airlines could start flying in on the current runway if they see a business case.”

Hansard line 910: What Economic Development, completely understandably, wants is choice. A longer runway does not guarantee choice – airlines could start flying in on the current runway if they see a business case.

2020 Conclusion – UNCLEAR OR MISLEADING

What was inferred by ‘choice’? Implication is choice of airlines.

If so, this is not true in sense they can only fly in restricted aircraft and or reduced payloads. No low cost Easyjet / Ryanair. So selective airlines only. Aurigny.

Claim 6
Both Paras 11 – 13: “Back in 2016, the-then new Committee for Economic Development told us it would be bold and brave. But there was little progress on air and sea links… (and ending) …That was why the President of the Policy and Resources Committee and I submitted an amendment to take forward a review of air and sea links infrastructure which was wholeheartedly supported and agreed by the Assembly.”

The sequence of events was as follows:

The States’ meeting of 27th June 2017 on the P&R Plan had the following submission from the CfED:

On p.147 second bullet point it stated “Examine the viability of extending the runway in order to facilitate additional connections with the UK and Europe by Q4 2017 and report the findings to the States.”

Deputies Roffey and Soulsby drafted an amendment to remove this work stream.

Following the brouhaha that followed P&R suggested the following amendment which was passed by the assembly. The Roffey/Soulsby amendment was withdrawn.

Amendment 29 was – “To insert at the end of the words in Proposition 6 b): “, but subject to deleting the “Guernsey Runway Extension (Pipeline) from table 27 and replacing it with “Strategic Air and Sea Links Infrastructure (Pipeline)”.”

The time frame for delivery therefore became the responsibility of P&R.

P&R were aware of this and the sequence of events is recorded in Hansard for the appropriate meeting & particularly so as P&R laid the amendment to do the work:

 
and the final amendment was:
 
 
2020 Conclusion – FALSE
 
The Committee for Economic Development work stream was stopped and taken over by P&R.
Claim 7

Gov.gg Para 30: “We should also remember that [sic]he States’ Trading Supervisory Board is looking at extending the RESA, as directed by the States, and is reporting back in the first quarter of 2019, and the requerants have said that this might be the solution needed.” 

Hansard Line 885: “We should also remember that the States’ Trading Supervisory Board is looking at extending the runway end safety areas (RESAs), as directed by the States, and is reporting back in the first quarter of 2019, and the requérants have said that this might be the solution needed.”

Both: Para 72 /  Line 970:  Repeated in summary: “Work on the extension of the RESA”

Deputy Kuttelwascher’s Requete on the length of Guernsey’s runway does not seek to extend the RESA, it suggests  reducing the RESA at the eastern end of the runway to 90m, and the potential use of EMAS and other measures, if required. It does not discuss the RESAs in the plural, and that is significant.

In spite of Deputy Kuttelwasher’s challenges to the P&R spokesman in the question time (Hansard line 1010), and a nonsensical response being offered (Hansard line 1019), no correction was made.

All members of P&R including the spokesman voted for the above requête on the 24th Oct 18.

Using existing runway.

2020 Conclusion – FALSE

The spokesman did not understand the subject.

Deputy Trott, Hansard, line 1043: “We have an obligation in Government to be open and transparent. We have an obligation to be honest with our community.”

The following is a comparison between part of the the published version of the statement on the gov.gg website, and the Hansard, where the Hansard version is the struck out text, and the underlined that on the gov.gg website.

© 2019 The 2020 Association

 

Copy of ‘Statement by the Vice-President of the Policy & Resources Committee’

The statement below has been copied here from the gov.gg website simply to add paragraph numbering for easy reference & we've provided blue links back to our analysis. There are material differences in critical areas between this and the Hansard which is a transcription of what was actually said, and these are covered in the analysis page, with a comparison at the end.

The review of air and sea links infrastructure

Wednesday 12 December 2018

  1. “The review of air and sea links infrastructure
  2. Sir, Guernsey’s air and sea links, and the infrastructure that provides them, are critical.
  3. They are critical to our community wellbeing.
  4. Critical to our visitor economy.
  5. Critical to our finance sector – the engine of our economy.
  6. Critical to everyone in the Assembly today – because our job is to protect the interests of those who elect us.
  7. It does not matter which Committee we sit on, what that mandate may be, or which parish we represent. Air and sea connectivity is a States-wide matter, recognised as such in the overall government business plans approved by the States in both 2016 and 2017.
  8. We have a States-owned airline which owns slots at Gatwick Airport, and which meets and exceeds the targets that its shareholder gives it.
  9. We have a commercial ferry operator, Condor, which is meeting end exceeding the targets in its service level agreements.
  10. What we have is good. But to remain competitive, and to remain connected, we know that our community wants better. That is why we, the States, made it a priority.
  11. Back in 2016, the-then new Committee for Economic Development told us it would be bold and brave. But there was little progress on air and sea links.
  12. By the summer of 2017, the Policy & Resources Committee was concerned that progress had been painfully slow. This was for a variety of reasons, but primarily the absence of a clear vision for what was needed.
  13. That was why the President of the Policy & Resources Committee and I submitted an amendment to take forward a review of air and sea links infrastructure, which was wholeheartedly supported and agreed by the Assembly.
  14. The objective was to provide some momentum and some structure to taking forward the work on air and sea connectivity and infrastructure.
  15. During late 2016 and into 2017 the Policy & Resources Committee had undertaken a strategic review of Aurigny. That review came up with a single set of recommendations, including focusing Aurigny towards economic enablement and reduced losses.
  16. Although there were two reports that were part of the review, they were almost identical, with one notable exception – some of the reviewers wanted to build a longer runway; others felt that was not part of the scope of the review.
  17. So it was clear that it was important to look at the pros and cons of extending the runway.
  18. But it was also important to recognise that the future strength of our community’s air and sea connectivity could not be reduced to how long our airport runway is. Such an assumption then, was as foolish as such an assumption would be today.
  19. With that in mind, in spring 2018 PwC was commissioned to carry out initial reports on two things: the factors that we need to consider in order to strengthen our air links infrastructure; and the contingency plan that should be considered given the impending sale of Condor Ferries Limited by its owner.
  20. Let us be clear: we asked independent experts to give us their views on the issues, the options for resolving those issues, and what – if the States was minded – it might do next.
  21. We did not ask them to do a survey of islanders’ or business’ views. The business bodies in Guernsey have undertaken surveys already, and we note their findings. Ultimately, of course, if you ask people if they want better air and sea links they will say yes. We asked PwC to look beyond that, which they have.
  22. Having had the reports back from PwC, in the autumn, we have now shared them with the Committee for Economic Development, the States Trading Supervisory Board and the Committee for the Environment & Infrastructure.
  23. In the first quarter of 2019 Policy & Resources Committee will submit a policy letter for debate and decision by the States meeting. It will set out the recommendations of the Policy & Resources Committee following the completion of the work undertaken by PwC.
  24. Included in the comments and recommendations that will be part of that policy letter will be the following, in relation to the runway.
  25. The Policy & Resources Committee has reached the conclusion that the option of extending the airport runway will not be a game changer in respect of our connectivity.
  26. The truth of the matter is that if were to extend the runway to the length that PwC indicate that it would be a game changer, we would need a huge and complex planning inquiry, probably to bulldoze part of St Peters, and enormous investment on which there may never be a return.
  27. The Policy & Resources Committee does not believe that the community nor the political body has the appetite for that. Therefore spending hundreds of thousands of pounds of tax payers’ money on listing the pros and cons of a set of runway extensions that are unlikely to be built in our lifetime will not be a worthwhile exercise
  28. Of course, this is a government decision, not just a Policy & Resources Committee decision. So in the first part of 2019 the States will be asked to agree the proposition to do no further
  29. work, and spend no further taxpayers’ money, on investigating the permanent extension of the runway.
  30. We should also remember that he States’ Trading Supervisory Board is looking at extending the RESA, as directed by the States, and is reporting back in the first quarter of 2019, and the requerants have said that this might be the solution needed.
  31. So if the States does not agree with P&R’s recommendation, if States Members believe that their parishioners want us to spend upwards of half a million pounds investigating the runways further, then they will have the opportunity to direct the Policy & Resources Committee otherwise.
  32. On such a matter as this, agreed by the States as one of its highest priorities, it is right to ask for and accept the decision of the States. The Policy & Resources Committee will publish the PwC report on air links infrastructure as an appendix to that policy letter, so that all States Members have the opportunity to see the evidence – and indeed, all in our community do too.
  33. As I said, the future of our air links cannot be reduced to a discussion of runway extensions.
  34. The States’ Trading Supervisory Board has supported in Aurigny in the purchase of a new fleet of ATRs. We will debate that policy letter at this meeting.
  35. It may be that combining these two work streams will give us greater resilience, and also provide the opportunity for new operators to come in. We will wait to hear more from Deputy Ferbrache in due course.
  36. The Committeefor Economic Development asked the States to approve a move to quasi-open skies in July, which was agreed despite some doubts, and we wait to see the benefits of that in terms of new routes.
  37. That may be assisted through the airport overhauling its landing charges structure for new routes, supporting the use of the Future Guernsey Economic Fund – established by the Policy & Resources Committee – which can support route development where there is an economic business case.
  38. So catalysed through the review process, steps are being taken that could lead to enhanced air connectivity according to those Committees who have taken those steps.
  39. Let me be clear then, on the Policy & Resources Committee’s position as it concludes its review:
  40. What islanders consistently tell us is that they want frequency; what a longer runway offers is potentially less frequency as larger aeroplanes rotate routes less frequently.
  41. What Economic Development wants is choice; a longer runway does not guarantee choice – airlines could start flying in on the current runway if they see a business case.
  42. · What our island wants is an island airline with the right fleet and a commitment to the island – not a procession of so-called brand airlines cherry picking routes every summer.
  43. Sir, the Policy & Resources committee does not believe a case has been made to extend the runway, so we do not propose undertaking further work.
  44. If the States believes that is wrong the decision, it will have the opportunity to reverse that decision in February and we will of course be bound by that decision in a few weeks’ time.
  45. Of paramount importance is the preservation of our sea links.
  46. We have a commercial operator that we rely on for our passenger, vehicle and freight services, but one over which we have no control.
  47. There is no operating agreement in place with this provider.
  48. This provider also serves an additional, bigger market in Jersey which – perfectly reasonably for commercial reasons – it chooses to give preference to its services.
  49. Reasonable for its own business reasons – but increasingly unacceptable to our community.
  50. Moreover it is up for sale.
  51. And it is suffering under the burden of an impaired reputation following the purchase of a flagship vessel which is not universally admired in our community.
  52. In short – we are vulnerable, exposed, at risk when it comes to our sea links.
  53. This is how we bring in our freight, how many of our teams travel to sports events, how many of our children go on educational and cultural trips, how we go to see our families and friends off-island.
  54. This truly is a lifeline service. But it is operated as a business by a business which cannot share all of our aspirations for this service because it needs to provide a return to its investors. It is not a charity.
  55. Compounded by Condor’s sales process, when it comes to our sea links we are vulnerable, we are exposed, we are at risk.
  56. It is right, of course, that the Committee for Economic Development continues to do what it can to engage with Jersey and the provider to see what service improvements can be secured – both with the business and, potentially, with a new owner, potentially in the first half of next year.
  57. But frankly, P&R strongly believe that our community will not accept that success is more of the same.
  58. In fact, it will, potentially see that as failure and as a missed opportunity.
  59. And, of course we cannot be sure of the plans of any new owner of the provider.
  60. So while it is the role of Economic Development to continue to engage with Condor, it is the role of the Policy & Resources Committee to contingency plan – to prepare for the worst, should a plan B be needed.
  61. The PwC work on sea links looked at four contingency options, and the view of the Policy & Resources Committee is that two of them merit further urgent detailed work.
  62. So in our Policy Letter in February, we will be recommending further independent expert work is undertaken during the first quarter of 2019 to look at the contingency option of a setting up a Guernsey-only, Guernsey-owned passenger, vehicle and freight service, should one be needed; and the contingency option of finding a new operator should the new owner of the current provider decide that they do not want to maintain and improve the services to Guernsey.
  63. We will be commissioning experts to provide further details on investment required, financial modelling, technical considerations and commercial considerations.
  64. These are contingency options. This is contingency planning. Just as we planned and are planning for Brexit, and planned for the referendum, and plan for many other things, so we are planning for our sea links. This is what government must do, and it is the role of the Policy & Resources Committee to provide this leadership. The policy letter will set out what we are going to do and how much it will cost.
  65. But, again, we will be asking the States to agree that work, as this is a decision of importance to the whole of the States and the whole of our community.
  66. In addition, we will work with the Committee for Economic Development to take forward the ramps legislation agreed by the States in 2015, following the approval of a States Report entitled “Strategic Roll on Roll off Ferry Services” which set out the need and justification for establishing a licensing regime for RoRo ferry services.
  67. Given the work that we will be doing, we need to be careful not to undermine any commercial position that we could need to adopt in the future. However, as a government we have a duty to be as open and transparent as possible. No one, regardless of their stake would or should expect anything less.
  68. This means we will provide information on the PwC findings in the policy letter. We will endeavour to provide Members of the Assembly with as much information as we are able to.
  69. Sir, to conclude, many positive steps have been taken on our and air and sea links:
  70. · The strategic review of Aurigny
  71. · A new agreement on supporting new commercial routes through the airport and Economic Development, with a move to quasi-open skies
  72. · Work on the extension of the RESA
  73. · The potential purchase of a new fleet of ATRs
  74. · Progress on contingency planning for sea links
  75. The Policy & Resources Committee has considered these, will now set out clear next steps on the air and sea links structure review.
  76. But it will ensure that the States Assembly – which chose to prioritise air and sea links in 2016 and 2017 – makes the critical decisions on next steps.”

PwC Airport & Condor Reports

2020 Association demands to see PwC reports on transport links

The 2020 Association has made a request under the States of Guernsey Code of Practice for Access to Public Information (2014) for the two Reports commissioned by the States on the island’s air and sea transport links to be produced to it, with a view to general disclosure to the public.


James Collings, the Chief Executive of the Association, said “In spring 2018, PwC was commissioned by the Policy and Resources Committee to produce two Reports: one into Air Links Infrastructure and the second into a Contingency Plan relating to the sale of Condor Ferries by its owner. These Reports were received back by P&R in autumn 2018. They have been shared with the Committee for Economic Development, the States Trading Supervisory Board and the Committee for the Environment & Infrastructure. However, they have been withheld from the public. These are public documents. They have been paid for from the public purse. The taxpayer has a right to see them, and P&R have an obvious obligation to produce them. The 2020 Association has therefore made a request for production under the States of Guernsey Code of Practice.”

The improvement of transport connectivity, and the implementation of a full Freedom of Information Law are among the foremost stated objectives of the 2020 Association.

A copy of our letter is here.


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