23rd February 2015
STATES OF JERSEY
COMMITTEE OF INQUIRY:
HISTORICAL CHILD ABUSE
ADDITIONAL FUNDING
Lodged au Greffe on
23rd February 2015
by the Chief Minister
STATES GREFFE
PROPOSITION
THE STATES are asked to decide whether they are of opinion −
(a) to agree that up to a further £14,000,000 should be made available in order to provide additional funding in relation to the Committee of Inquiry into Historical Child Abuse (now known as ‘the Independent Jersey Care Inquiry’) and to request the Minister for Treasury and Resources, if there are insufficient funds from existing sources that could be re-allocated by the Minister for this purpose, to bring forward for approval a proposition asking the States to agree to amend the policy for the use of the Strategic Reserve Fund and to make available up to £14,000,000 from the Strategic Reserve Fund to fund the inquiry;
(b) to request the Council of Ministers, if necessary, to bring forward for approval a proposition to amend the Medium Term Financial Plan 2013–2015 accordingly in order to provide additional funding in relation to the Independent Jersey Care Inquiry;
(c) to refer to their Act dated 6th March 2013 in which they approved the establishment of the Committee of Inquiry and approved its terms of reference, and whilst these terms of reference should remain unaltered, to agree that a separate procedural terms of reference should be appended in order that:
(i). the scope of the Inquiry as set out in the Terms of Reference is understood as covering the period 9th May 1945 to 3rd April 2014;
(ii). the Inquiry operates within the agreed revised budget of £13.7m;
(iii). the Inquiry and the States publish jointly on their websites details of their expenditure on a monthly basis;
(iv). the Chair presents the report of the Inquiry to the States Assembly not later than 31 December 2016; and
(v). the Inquiry makes full use of all available published and unpublished reports which it deems relevant to the Terms of Reference.
CHIEF MINISTER
REPORT
Committee of Inquiry: Additional Funding
1. Background
On the 6th December 2010, the former Chief Minister, Senator T.A. Le Sueur made the following apology –
“On behalf of the Island’s government, I acknowledge that the care system that operated historically in the Island of Jersey failed some children in the States’ residential care in a serious way. Such abuse has been confirmed by the criminal cases that have been before Jersey’s courts. To all those who suffered abuse, whether confirmed by criminal conviction or not, the Island’s government offers its unreserved apology.”
In making that apology, the States of Jersey acknowledged failings in the Island’s historical residential care system identified during the States of Jersey Police investigation, Operation Rectangle. Operation Rectangle identified a total of 533 alleged offences reported and recorded between September 2007 and December 2010. Of these 315 were reported as being committed at Haut de la Garenne children’s home. Eight people were prosecuted for 145 offences and seven convictions secured. Police identified 151 named offenders and 192 victims. As a consequence, on the 9th March 2012, the Council of Ministers agreed the details of a Historic Abuse Redress Scheme for those who were in the States of Jersey’s full-time residential care between 9th May 1945 and 31st December 1994. Detailed discussions with claimants’ lawyers concluded that individuals concerned would prefer to settle matters, if possible, outside of public and adversarial court proceedings. Under the Scheme, which began in April 2012, claimants provided the relevant details and the Scheme lawyers assessed each claim.
Since 2008 there have been a number of independent reports published which relate to Children’s Services. These have included –
• Williamson Report: An Inquiry into Child Protection in Jersey – June 2008[1]
• The Howard League for Penal Reform – Jersey Review: November 2008[2]
• Williamson Report: Implementation Plan – January 2009[3]
• Health, Social Security and Housing Scrutiny Sub-Panel Review: Co-ordination of Services for Vulnerable Children – July 2009[4]
• Report by the European Committee for the Prevention of Torture or Inhuman
Or Degrading Treatment or Punishment – July 2010[5]
• Youth Justice in Jersey: Options for Change – August 2010[6]
• Children and Young People: A Strategic Framework for Jersey 2011 (Consultation Document) – December 2010[7]
• Children and Young People: A Strategic Framework for Jersey – November 2011[8]
• Care Inspectorate - States of Jersey Inspection of services for looked after children – January 2012[9]
• Health, Social Security and Housing Scrutiny Panel Review: Respite Care for Children and Young Adults – April 2012[10]
• Action for Children – Review of Services for Children and Young People with Complex and Additional Needs – September 2012[11]
• Care Inspectorate – Report of a follow-up inspection of services for looked after children in the States of Jersey – September 2013[12]
• Health, Social Security and Housing Scrutiny Panel Review: Child and Adolescent Mental Health Services (CAMHS) – June 2014[13]
• Services for Children – Service Improvement Plan 2011 – 2013[14]
• Verita Report – Report to Council of Ministers[15]
The recommendations and actions contained in these reports were reported to the Children’s Policy Group[16] on a quarterly basis and are contained in the Health and Social Services Department’s Service Improvement Plan. Since the approval of this Plan by the Children’s Policy Group at the end of 2011, significant progress has been made in implementing many of the recommendations.
2. Financial costs to date
Operation Rectangle
In September 2007, Operation Rectangle began as an investigation into historical child sex abuse accusations. It was made public in November 2007. In response to a written question from the Deputy of St Martin on the 1st March 2011, the Minister for Treasury and Resources reported the expenditure to date by the various departments in relation to the Historic Child Abuse Investigation. The Minister reported that on the 8th September 2008, the States approved P.91/2008 as amended to permit the withdrawal under Article 11 (8) of the Public Finances Law of up to an additional £7.5 million from the Consolidated Fund as a contingency sum to meet anticipated expenditure by various departments. The Minister’s answer also included funding reimbursed from the £4.25 million approved by the States in P.83/2009. In total, departments had spent £11.3 million to date. This included £7.5 million for Home Affairs, £2.4 million for Law Officers, £810,070 for Health & Social Services, £210,000 for Economic Development, £135,000 for Education Sport and Culture, £122,193 for Property Holdings and £83,087 for the Chief Minister’s Department. £346,416 of the approved funding for this purpose was returned to the consolidated fund by public ministerial decision of the Minister for Treasury and Resources on 24th January 2011.
The Historic Abuse Redress Scheme
The Redress Scheme commenced in April 2012 and closed to applications at the end of September 2012. It has received 132 claims and by January 2015 had settled 116 claims. The cost of the scheme to date is £4.6 million. Of this, £1.9 million has been paid in compensation and therapy costs to claimants.
The Inquiry
The States Assembly at its meeting on 6th March 2013 adopted unanimously, as amended, the proposition in P.118/2012- Committee of Inquiry into Historical Child Abuse (the Inquiry) (see Appendix 1 and 2). This approved the establishment of the Inquiry and its Terms of Reference (see Appendix 3).
The States Assembly had previously asked the Council of Ministers in 2011 to propose terms of reference for a possible Committee of Inquiry. Ministers in turn asked Verita, an independent UK consultancy firm with recent experience of investigations in Jersey, to report on how such an inquiry might be framed. The subsequent Terms of Reference agreed by the Assembly are appended to this Report (3). In adopting P.118/2012, the Assembly recognised that the Inquiry would be complex and need administrative support as outlined in the Verita Report. The estimated known and quantifiable costs of the Inquiry were put at some £2.04 million and were considered in detail in section 2.12–2.15 and Appendix 3 of the Verita report.
Andrew Williamson, a UK social work consultant and author of the independent review of children’s services in Jersey in 2008, considered these to be a fair reflection of the costs involved. However, it was borne in mind that this estimate did not include the legal fees, which could be significant. These may be incurred under legal advice for the Panel, legal costs of interviewees and the legal costs for a review of the decisions on whether to prosecute. Verita had advised that the legal costs of similar Committees of Inquiry may account for some 70% of the total overall costs. The magnitude of legal costs depend on the size of the Inquiry and the number of witnesses and their requirement for legal representation, all of which made it difficult to quantify precisely the full costs at the outset. However, the best estimate of the total costs of a Committee of Inquiry, including legal costs, was considered likely to be in the region of some £6 million.
Costs would need to be met from year-end carry-forwards and the Contingency for Emerging Items. There were no permanent staffing implications for the States as a result of the Proposition, although a number of temporary staff were needed. The cost estimate did not include officer time in departments which have dealings with the Committee – for example, for liaising with the Inquiry team, recovering documents, working with the States’ lawyers around disclosure and supporting those who are witnesses. This meant that temporary staff were needed, either to assist in discharging the States’ obligations towards the Inquiry or to backfill staff who were assisting. It was identified that this, in turn, could have further cost implications.
Financial Position
The decision taken by the States Assembly to adopt P.118/2012 was on the understanding that the total cost allocated from the Central Contingency would not significantly exceed £6 million and that the Inquiry would complete its work within 12 months. This position was set out in the Minister for Treasury & Resources’ comments on the Proposition presented on 4th March 2012 (P.118 Com (2) re-issue) and confirmed in the directions by the same presented on the 20th November 2013 (R.145/2013). Copies of these comments and directions are appended (4).
In the early stages of the Inquiry, the Panel considered that the approved budget would be adequate for the Inquiry. The Greffier of the States wrote to the Panel on 4 April 2014, prior to the Inquiry’s launch, stressing that the States Assembly had set a maximum amount that the Inquiry would cost the public purse and that it was essential that the amount was not exceeded. The Panel undertook to make regular monthly reports to the Accounting Officer on expenditure.
Following a series of subsequent discussions and exchanges of letters, a meeting was held between the Inquiry and the then Treasurer of the States on 17th June 2014 regarding the adequacy of the budget. The Council of Ministers at its meeting of 30th July 2014, received a report from the then Treasurer, proposing additional funding over and above the original £6 million. The total amounts proposed were £6.3 million for the Inquiry and £2.65 million for States Departments’ internal costs (total £9 million). The Council of Ministers agreed with the Treasurer’s recommendation and instructed the Treasurer to inform the Inquiry accordingly. Ministerial Decisions have recently been signed to give effect to transfers of additional funding to States Departments[17] [18] [19] [20].
Costs to date
Total costs from the Inquiry launch to the end of December 2014 are as follows:
Inquiry (Inc. Panel, Counsel & Solicitors fees - see appendix 5) £5.2 million
States Departments (inc. SOJP, LOD, CMD, HSSD, ESC and legal fees) £1.8 million
Interim Funding for the Inquiry
In a letter to the Treasurer of the States dated 9th January 2015, the Greffier of the States, as Accounting Officer for the Inquiry’s finances made it clear that it would be unlawful for him to approve orders or pay invoices once the allocated budget had been spent. The Interim Treasurer was instructed by the Council of Ministers at their meeting of the 28th January 2015 to write to relevant Accounting Officers in order to authorise interim expenditure of up to £2 million until 30 April 2015. This interim expenditure would be met from contingencies if no alternative additional funding source was identified and would be prioritised over all other existing calls upon contingency funds. Unless additional interim funding had been agreed, it would have been necessary for the Inquiry to stop all work by the end of April until a decision on future funding could be taken by the States Assembly.
3. Forecasts of Future Expenditure
In October 2014, the Inquiry revised its own forecast of total cost to £7.8 million. At a further meeting with the Treasury in November 2014, the Inquiry again revised its forecast total costs to £8.8 million. The increase in cost was explained as being driven by the predicted extension to the duration of the Inquiry (then proposed to conclude in November 2015) and the Inquiry team’s anticipated increased legal costs to manage the very significant document redaction and review process. In December 2014, the Inquiry then informed the States Liaison Officer that their latest forecast was that the Inquiry should conclude in July 2016 and estimated that the Inquiry’s own costs would be circa £11.3 million. A further forecast, dated 9th February 2015, now puts the Inquiry’s own costs, including contingency and set-up costs, at £13.7 million with the Inquiry due to conclude by October 2016. This updated forecast is appended (6).
The Minister for Treasury & Resources wrote to the Panel Chair to request that the Inquiry provide a written report in order to obtain a better understanding of the expenditure to date and the basis for the future forecast expenditure, and so enable an informed decision (7). The Inquiry Chair’s response is appended (8).
In relation to departments, it is estimated that, based on current predictions and the Inquiry solicitors’ requirements for redaction and provision of significant numbers of historic documents, the extended duration of the inquiry may possibly increase the costs for departments in responding to the Inquiry from £2.64 million to £6.5 million.
The total costs for the Inquiry are, therefore, likely to be circa £20.2 million. Indications are that approximately £3.3 million of this sum (of which approximately £1.3 million is within States Departments) will fall beyond the end of 2015 and would therefore need to be addressed by an expenditure approval in the Medium Term Financial Plan 2016-2019.
4. Source of Additional Funding
All avenues of funding are being considered by officers, including:
• Consolidated Fund – significant measures have been required to maintain a positive unallocated balance. There remains a risk that some of the proposed measures will not be achieved, which could result in insufficient funds at the end of 2015, which would give rise to further measures being required;
• Central Contingencies – there is currently a balance of £800,000 forecast at the end of 2015 after all existing commitments have been funded. Further funding pressures exceeding the forecast remaining balance by £1.5 million have already been identified. Existing commitments and estimates are under review;
• Criminal Offences Confiscation Fund – the remaining balance is being used to fund the Police Relocation Project (subsequent transfer of £6.4 million to consolidated fund and £3 million to Contingencies for the Inquiry). £2 million will be left in the Fund to cover the risk of exceptional Court and Case costs;
• Other Funds – available funds have already been identified to transfer into the consolidated fund as part of the Budget 2015 Measures;
• Unspent capital allocations – a total of £8.8 million has been identified in the Budget 2015 ‘Proposed Measures’ to be returned to the consolidated fund from projects which do not require the funding in the current year. This will be reallocated for the same projects over future years to realign approvals with the latest proposed timescales for the projects.
Strategic Reserve Fund
Use of the Strategic Reserve Fund requires a proposition brought by the Minister for Treasury and Resources under Article 4 of the Public Finances Law. Such a proposition would need to seek approval to vary the policy on the use of the Strategic Reserve Fund, which was set in September 2014 as part of Budget 2015 (P.129/2014, as adopted as amended). The current policy is appended (9).
The investment return on the Reserve in 2014 exceeded the amount required for the General Hospital project by circa £14 million in 2014 – if the States Assembly were to be asked, and were to agree, then a sum up to this amount could be allocated whilst preserving the capital value of the Strategic Reserve as agreed by the States. The known additional expenditure required is currently £11.2 million (£20.2. million forecast, less £6 million approved by the States Assembly, less £3 million agreed by the Council of Ministers to be funded from Contingency/COCF). However, given the increases in costs to date, it may be prudent if there is no other alternative to request a transfer of the full potential sum of £14 million from the Strategic Reserve Fund, with drawdown of any amounts in excess of the current forecast requirement of £11.2 million to be agreed by the Minister for Treasury and Resources and the Greffier of the States and reported to the States Assembly. It should be noted that the current policy requires that the Capital Value of the Strategic Reserve Fund is maintained in real terms and so there may be implications for future financial decisions which arise from any use of the Fund which reduces the Capital Value.
5. A Procedural Terms of Reference for the Inquiry in order to control costs.
The Panel has reiterated in discussions with the Interim Treasurer and the Greffier of the States that it is keeping strictly to its extensive Terms of Reference and has resisted any attempts from external sources to go beyond them. The Inquiry Chair has stated that any variation to the Terms of Reference for the Inquiry would be a decision for the States Assembly.
In order to clarify a range of matters which have a direct bearing upon the costs of the Inquiry, it is proposed that a set of Procedural Terms of Reference are appended to the existing fifteen terms of reference for the Inquiry, which would remain unaltered.
The Terms of Reference cover the period 1945 to current day, meaning that relevant new information is constantly being created, which also causes issues with current live civil and criminal proceedings. It is, therefore, proposed that the Procedural Terms of Reference clarify that the scope of the Inquiry as set out in the main Terms of Reference will be understood as covering the period 9th May 1945 to 3rd April 2014 to coincide with the launch date of the Inquiry. This would enable the Panel to consider the present day services without requiring new information to be considered during the course of the inquiry itself.
A significant number of independent reviews and investigations have been conducted into the police investigation, decisions to prosecute as well as current children’s services. The original terms of reference included under 12 “The Inquiry should make full use of all work conducted since 2007.” It is proposed, therefore, that the Procedural Terms of Reference ask the Inquiry to make full use of all the various published and unpublished reviews, court cases, investigations etc. (“the reports”) which have so far concluded so that the Inquiry are not required to re-investigate issues that have already been independently and robustly reviewed.
The length of the Inquiry has a significant impact upon costs and, therefore, the Inquiry should operate within the revised budget limit and present their findings to the Assembly on a specified date. The original proposition (P.118/2012) asked the States Assembly:
(g) to agree that the Committee of Inquiry should be requested to complete its work within 12 months of commencing the Inquiry.
In order to provide some assurance to the Assembly, it is proposed that the Procedural Terms of Reference should include that the Inquiry operates within its agreed revised budget limit of £13.7 million and, as part of its commitment to full transparency of the work of the Inquiry, publish in parallel to departments, details of expenditure on its website on a monthly basis. The Inquiry would seek to ensure that its final report is presented to the Assembly by no later than the 31 December 2016 (note: the current financial forecast anticipates that the report should be presented by October 2016).
6. Implications
a) If further funding and Procedural Terms of Reference are agreed to help address cost issues
The Minister for Treasury and Resources may, under Standing Order 150, give directions as to the expenses that a committee of inquiry may incur as well as how such expenses are to be funded. Such directions were presented to the States Assembly on 20th November 2013 (R.145/2013) and referred back to earlier comments lodged by the Minister for Treasury and Resources (P.118/2012 Com2 re-issue). These directions would need to be updated if additional funds were provided in order to specify the new limit and to indicate the source of funding. An indication will also be given as to the period during which this funding will be made available (e.g. up to December 2016).
Whilst some of the Inquiry costs are relatively fixed and predictable, such as accommodation, some costs, such as those relating to witness hearings, depend upon decisions taken by the independent Inquiry in order to fulfil its Terms of Reference. Given the breadth of those Terms of Reference, the period of time that they cover and the emergence of new evidence, fresh lines of necessary investigation are almost inevitable as the Inquiry continues its work. There can, therefore, be no guarantee that the funding required might not increase again in the future.
The drawdown of any amounts in excess of the current forecast requirement of £11.2 million but within the limits set by the Assembly, would be agreed by the Minister for Treasury and Resources and the Greffier of the States and reported to the States Assembly. Should the overall forecast of funding required exceed the limits set by the Assembly, then any decision to provide further additional funding would need to return to the Assembly.
With regard to the Procedural Terms of Reference, the Chief Minister would consult with the Chair of the Panel on the publication of an updated Terms of Reference document to include the appended Procedural Terms of Reference as decided upon by the Assembly in order to assist in addressing cost issues.
b) Impact upon Inquiry if further funding is not agreed
Should the Assembly decide not to provide additional funding for the Inquiry, then the Greffier of the States as Accounting Officer will be unable to authorise any further expenditure by the Inquiry beyond the existing limit and the Inquiry may be required to cease work by the end of April 2015.
Further discussion would need to take place with the Inquiry Chair and Panel as to how to bring the Inquiry to an orderly conclusion. This, in itself, is likely to require further additional funding of circa £1.2 million to manage arrangements until such time as the Inquiry could be wound down and a “report to date” completed in order to capture the evidence presented thus far and any initial conclusions. In doing so, the Inquiry could present the evidence from Phase 1(a) (background evidence and evidence from former residents of children’s homes and foster care). As expressed during Senator F. du H Le Gresley’s opening remarks to P19/2011; this would: “allow those who had experienced abuse in the past to be heard, to know society supports them in speaking out and that their experiences are recognised.” It would not however, afford those who have had allegations made against them the opportunity to tell their side of the story or any consideration of the authority response to the historic investigation or decisions in relation to prosecution. In this regard, it would not enable the Inquiry to fulfil any of the terms of reference as adopted by the Assembly as appended to this report. Further consideration would need to be given as to how the evidence gathered to date could be used to assist the UK Goddard Inquiry into Child Sexual Abuse.
There is currently no identified source of funding for the estimated £1.2 million that would be necessary in order for the Inquiry to produce a “report to date” should the Inquiry Panel agree to undertake such a report. If the Assembly does not support this proposition’s request for additional funding, then such costs would need to displace other important earmarked calls upon contingency.
7. Conclusion
The Committee of Inquiry is a function of the Assembly. The Council of Ministers has a duty in relation to the Medium Term Financial Plan to bring before the Assembly any such requests for significant additional funding for the Committee of Inquiry in the context of competing demands for public funding. The Chief Minister is, therefore, seeking a decision from States Members in order that the Council can understand the will of the Assembly in relation to funding for the Inquiry.
8. Financial and manpower implications
The financial implications of this proposition are self-explanatory. Up to an additional £14 million would need to be made available to enable the Inquiry to conclude its work and these funds would either be found by:
- re-allocating funding from existing Departmental revenue and capital expenditure budgets, refusing carry forward requests, reallocating contingencies, or similar measures; or
- asking the States to amend the policy for the use of the Strategic Reserve Fund (often known as the ‘Rainy Day Fund’) so that funds can be used from that Fund for this purpose.
Part (b) of the proposition could only address that portion of the forecast additional expenditure (£7.9 million) that falls before the end of 2015. The remaining £3.3 million would need to be reflected in the Medium Term Financial Plan 2016-2019.
There are no new manpower implications.
ENDS
gov.je