EX GRATIA PAYMENT TO MR. TERRY MCDONALD (P.130/2013) – COMMENTS
Presented to the States on 15th November 2013 by the Ministers for Home Affairs,
Economic Development and Planning and Environment
COMMENTS
1) INTRODUCTION
Although the Deputy of St. Martin has indicated to the Minister for Home Affairs that he does not intend to allege that there was any fault on the part of the Ministers for Home Affairs, Economic Development or Planning and Environment in relation to this matter, there are a number of reasons why the issue of fault or lack of fault needs to be dealt with in these comments. These reasons include:-
a) The fact that the Deputy of St. Martin has referred in the report attached to his proposition to the very good material that was presented by the then Deputy of St. John (now Connetable of St. John) at the time of his proposition (P.21/2011). Unfortunately, by so doing he is effectively incorporating into his comment material which alleges fault on the part of the three Ministers.
b) The probability that even if the Deputy of St. Martin were to make no such allegations in his opening speech that other members of the Assembly may do so.
c) The need to ensure that all the members of the Assembly are properly briefed upon the facts and have access to the relevant documents in order to assist them in making their decision. That is particularly so because of the inaccurate information which has circulated in the Island in relation to this matter over a number of years. We are concerned, in particular, that members of the Assembly who have not read the very full and detailed report of the three Ministers entitled ‘ Importation of Fireworks in 2007 for a charity event: Investigation (P.21/2011) – Combined Report by the Ministers for Home Affairs, Planning and Environment and Economic Development and Economic Development’ (R.113/2011) then they may come into the debate with a wrong understanding of the underlying facts. For this reason, a copy of that report has been attached as a Schedule to this Comment. References in this Comment to Appendices are references to the documents contained in the various Appendices to R.113/2011.
2) THE ROLE OF THE PLANNING AND ENVIRONMENT MINISTER AND DEPARTMENT
The allegation of fault against the Planning and Environment Minister is effectively that members of his staff who were concerned with the issue of water pollution issues wrote to Mr. McDonald just before the fireworks display was due to occur in order to threaten him with prosecution under the Water Pollution (Jersey) Law, that this came as a surprise to Mr. McDonald and that, being a former police officer, Mr McDonald did not want to risk prosecution and, therefore, withdrew from the record rocket attempt.
This issue is dealt with in some detail in Section 2 of R.113/2011.
In fact, Mr McDonald wrote to the Head of Fisheries and Marine Resources on 3rd April 2007 detailing his plans for dealing with the remains of the rockets (Appendix 1) and, following a meeting with the relevant officer or officers he received a letter from the Environment Division of the Planning and Environment Department on 14th May 2007 which outlined his responsibilities under the Water Pollution Law. (Appendix 2).
On 22nd May, 2007, Mr McDonald produced a Risk Assessment document (Appendix 3) and the issue of ‘Pollution Threat to fish, birds/environment etc. is dealt with on page 54 of that document which is page 73 of R.113/2011. From this it is apparent that Mr McDonald was aware that a beach clearance team would be needed to pick up all 110,000 rocket sticks. The need for the rockets to be totally biodegradable is also acknowledged there.
On 27th July, 2007, the Environment Division produced a report in response to Mr McDonald’s proposals (Appendix 7) in which they make various recommendations which include a recommendation in relation to pollution levels in section 2.2 of that report. They also produced a report to assess the Pollution to controlled waters and Toxicity (Appendix 8).
The 2 reports of 24th and 27th July, 2007, did not recommend that the event should not take place, but sought to determine the risk and provide measures for Mr McDonald to follow so that environmental damage could be minimised. I invite the Members of the Assembly to read these in order to determine the facts for themselves.
Subsequently, as recommended, Mr McDonald undertook a daylight test-firing trial on 1st August 2007. Mr McDonald was informed on site that nothing observed at the test-firing trial altered the Department’s position that the attempt could go ahead without difficulty if the simple guidance given was observed. However, Mr McDonald gave media interviews later the same day as the test-firing to say that he was to call off the world-breaking event. The then Minister for Planning and Environment had publicly stated his support for the rocket launch a few days before the event was called off.
In conversation with the then Environment Director on site, Mr McDonald stated that he thought that cancelling the event was the right thing to do, that he had noted the concerns being raised by some sections of the public, and that he felt the public generally were less supportive of this type of event than they had been of his previous record-breaking attempt years earlier. He was told that this was a matter for him to decide, but that if the event did go ahead he should adhere to the guidance issued by the Department.
It follows from the above:-
a) that Mr McDonald was aware of the issue of potential pollution right from the start;
b) that he was given sensible and appropriate advice as to how to mitigate that risk by officers of the Planning and Environment Department who did not oppose the record attempt provided that their advice was followed;
c) that the Planning and Environment Minister of the time was supportive of the record-breaking attempt proceeding; and
d) that Mr McDonald nevertheless decided not to proceed.
3) THE ROLE OF THE MINISTER FOR HOME AFFAIRS AND THE HOME AFFAIRS DEPARTMENTS
Before I look at the possible issue of fault on the part of the Home Affairs Departments, I want to point out that the Home Affairs section of the Report of the 3 Ministers (Section 4) in its opening paragraphs, supports the view of the Planning and Environment Department that Mr McDonald was very well aware of environmental issues.
The second paragraph of that Section reads as follows:-
‘In April 2007, some 3 months before the rockets were imported, Mr McDonald met with the Explosives Licensing Officer (ELO) and the Explosives Ordnance Disposal (EOD) Officer at the request of Mr McDonald. Mr McDonald was asked if any of the fireworks were blue, as all fireworks contain different chemicals to produce the desires colour, and blue rockets often contain copper oxide which is a particularly toxic chemical for marine life. The ELO recalls that Mr McDonald responded that the colours were not a problem, as all the rockets would be biodegradable. Mr McDonald further added that the Environmental Health Officers had raised concerns about pollution. Both the ELO and the EOD Officer drew attention to the possible risk of pollution to the beach at West Park and the sea, which could be caused by the rocket sticks and spent casings. Mr McDonald told the ELO and the EOD Officer that there would be plenty of volunteers to clear the area after the display.’
The only allegation of fault of which we are aware in relation to Home Affairs Department relates to the permit which was granted to Mr McDonald by the States of Jersey Fire and Rescue Service to import the fireworks. The issue relates to the fact that the initial Licence to import fireworks dated 13th July 2007 (Appendix 15) stipulated that the imported fireworks could be stored at Vinchelez Farm, St. Ouen, whereas Mr McDonald was subsequently informed that they could not be stored there and a revised licence was issued on 8th October, 2007, (Appendix 16) for them to be stored at Ronez Quarry.
There is a lot of detail on this contained in Section 4 of R.113/2011 and we would refer Members of the Assembly to that Section without repeating the detail. A full assessment, including a site visit, had been made prior to the issuing of the licence to determine the suitability of Vinchelez Farm for storage purposes of the large quantity of fireworks and a Tactical Plan had been drawn up (Appendix 17). However, this had been based upon information provided by Mr McDonald that Vinchelez farm was empty. When upon making a further site visit on 17th July, 2007, it was discovered that Vinchelez Farm was still partly occupied, Mr McDonald was informed that Vinchelez Farm could not be used for storage purposes of the fireworks unless the staff accommodation was empty.
Subsequently, Mr McDonald made alternative arrangements for storage with Ronez Quarry and although the revised licence is dated much later it is clear that the Fire and Rescue Service had accepted the revised storage arrangements with Ronez Quarry as being acceptable.
It would have been completely unsafe and unacceptable for the Fire and Rescue Service to have allowed storage at Vinchelez Farm to continue whilst people were continuing to live in staff accommodation there.
Furthermore, even if there had been some basis of complaint against the Fire and Rescue Service, which has always been denied, there is no logical link between the place of storage and the decision to not proceed with the record-breaking attempt.
On the other hand, it is clear that the Home Affairs Departments were concerned, at an early stage after the decision not to proceed with the record attempt, in relation to public safety issues relating to the continuing presence in the Island of such a large quantity of fireworks in one place.
The last three paragraphs of the Planning and Environment Section of R.113/2011 (Section 3) refers to meetings which took place in late 2007 and early 2008 with a view to the disposal of the fireworks and it is clear from this that from a very early stage the Home Affairs Departments were willing, at their own cost, to dispose of the fireworks. However, that initiative was thwarted because of the difficulty in getting both Mr McDonald and the supplier of the fireworks to agree to this option. This is referred to in Mr McDonald’s letter dated 19th March 2008 to the Environment Division in which he indicates that he does not own the fireworks because he has never paid for them and explains that his current financial difficulties mean that he cannot borrow money in order to pay for the debts associated with the fireworks (Appendix 9).
The Home Affairs Department and the Minister and Assistant Minister renewed their efforts to resolve the stalemate in early 2009 and Appendices 18 to 27 contain correspondence on this. Eventually, by his letter dated 9th February, 2011, (Appendix 28) Mr McDonald agreed to the destruction of the fireworks. The Ministerial decision in relation to this is at Appendix 29. The cost to the Home Affairs Department in relation to the controlled destruction of approximately 5.75 tons of fireworks was £4,713.00. This was carried out for public safety reasons and because Mr McDonald did not then have the financial means at the time to pay for this.
4) THE ROLE OF THE MINISTER FOR ECONOMIC DEVELOPMENT
The allegations of fault against the Minister for Economic Development lie in two possible areas. The first relates to whether the Economic Development Department should have paid the sum of £20,000 towards the costs of the Record Attempt and the second relates to whether they should have made greater efforts to assist Mr McDonald once he had got into difficulties.
In relation to the first area, Mr McDonald first wrote to EDD Regulatory Services on 23rd March 2007 and he then sought permission and support to proceed with the Record Attempt (Appendix 10).
The response to this was a letter dated 3rd April 2007 which indicated that the Department had no objection to Mr McDonald’s endeavour. However, it also indicated that this was subject to other permissions involving other bodies. At some time in May 2007 Mr A. Lewis telephoned the Minister for Economic Development and the then Minister replied by e-mail (Appendix 11) to the effect that EDD could potentially get involved with it.
Subsequently, by e-mail dated 8th June 2007 the then Minister for Economic Development made a caveated (or conditional) offer in the following terms (Appendix 13):-
‘We have considered the Battle of Rockets proposal and will be happy to provide a grant of £20,000 based on the projected outputs of the event detailed in your email of 3rd June – this should cover the majority of the cost of the rockets and associated insurance. I would like to attach a caveat – namely that the world record attempt forms part of a larger pyrotechnic display linked to the finale of the Moonlight Parade. We believe that this is an absolute requirement to make the event capable of delivering additionality and for it to attract in kind marketing support through our various channels to market.‘
The position of the Minister for Economic Development is simply that the caveat or condition was never met. The world record attempt did not form part of the Moonlight Parade because Mr McDonald decided not to proceed with it.
In relation to the issue of subsequent assistance it is clear that the Economic Development Department played a part in the attempt in early 2008 to come up with a solution. That has already been referred to in the Home Affairs section of this Comment. However, a letter from EDD to Mr McDonald dated 6th February, 2008, (Appendix 14) confirms these discussions. Unfortunately, this initiative did not succeed, presumably for the reasons set out in Mr McDonald’s letter dated 20th March 2008 (Appendix 9).
In passing I would mention that according to the section of R.113/2011 produced by the Minister for Planning and Environment, the Minister for Economic Development in early 2008 was of the opinion that public funding of Mr McDonald’s debts was not an option.
In the report attached to the Deputy of St. Martin’s Proposition there is a timeline which includes an allegation that in August 2008 another local fireworks company offered to pay off (over time) all the associated debt if the States could provide an interest-free loan. It is also stated there that this was refused as unworkable. There was no reference to this offer in the Economic Development Minister’s section of P.113/2011. However, the Minister for Home Affairs has been able to obtain a copy of the letter of offer which is dated 1st April 2008 and was addressed to the then Minister for Economic Development. That offer would have required the Minister for Economic Development to pay not just for the fireworks but also all the associated costs with a gradual but not guaranteed repayment over an indefinite period of time. The offer also required the States to agree on other matters in terms which were unacceptable. The offer was considered but was eventually refused at some time in June 2008 as being unworkable and unacceptable.
5) FINAL THOUGHTS ON THE PROPOSITION
The letter of Mr McDonald dated 20th March, 2008, (Appendix 9) is significant in this regard because in it he does not allege any fault on the part of any of the three Ministers or their departments. In fact, in the letter he expresses his thanks to various departments. His letter includes this paragraph:-
‘I really do appreciate everything that you have done to try to help resolve my problems. There never was ‘a them and us’ situation and I will make that abundantly clear in my press releases, together with mention of the support from Senator Ozouf and others along the way.’
We find it sad that Mr McDonald was not able to maintain that position and that in later press briefings and the information attached to P. 21/2011 has sought to blame various departments. From the letter of 20th March, 2008, we believe that it is clear that Mr McDonald’s original position was that he hoped that the people of Jersey would lobby States members to help him out of his problems because of his past service to the Island and because he had been trying to do something for Jersey.
We hope that the Deputy of St. Martin and other members of the States will be able to maintain that position.
The decision for Members then will then come down to two options:-
- That members take the view that Mr McDonald, whilst very well meaning, got himself into a tangle which left him with debts but it is not the responsibility of the States of Jersey to get people, no matter how well meaning, out of financial tangles which are of their own making.
- That members take the view that although Mr McDonald got himself into a tangle which was of his own making which left him with debts, nevertheless because of his past record of service to the Island and desire on this occasion to do something for the Island that the States of Jersey should pay the sum of £50,000 as requested in the proposition.
We do not find that we can support the expenditure of public money in circumstances in which there has been no fault on the part of any of the departments involved.
Schedule:
R113/2011 – Importation of Fireworks in 2007 for a Charity Event: investigation (P.21/2011) – combined report of the Ministers for Home Affairs, Planning and Environment and Economic Development
Statement under Standing Order 37A [Presentation of comment relating to a proposition]
These comments have been presented after the noon deadline due to –
(a) the need to investigate a matter which was raised in the proposition and not covered by the previous report of the 3 Ministers;
(b) the difficulties in obtaining the agreement of all 3 Ministers when information
in relation to (a) was discovered late on.
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