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Solicitor General responds to hospital highway ‘human rights’ argument

Solicitor General responds to hospital highway ‘human rights’ argument

Tuesday 16 February 2021

Solicitor General responds to hospital highway ‘human rights’ argument


The Government may be able to argue against claims that using compulsory purchase to secure land for the future hospital and its highway is a breach of human rights because doing so is “in the public interest”, the Solicitor General has indicated.

Matthew Jowitt’s comments came in response to questions from States Members last week after Advocate Olaf Blakeley wrote to the Government on behalf of Westmount residents to argue that they would be willing to pursue legal action over the plan to widen Westmount Road as a key access route to the new hospital at Overdale.

Express understands that the Royal Court could be asked to decide if the Government broke the law when it asked Members to give the Assembly power to buy land by compulsory purchase around the new hospital site last November.

It could also be asked to decide if owners’ human rights were breached in the compulsory purchase process.

States Members attempted to question the Attorney General, Mark Temple, on whether such legal action would put the entire hospital project under threat last week, but he declined to answer publicly because he was giving advice to the Government on the matter.

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Pictured: The Attorney General is advising the Government on the topic of future legal action by Westmount residents.

The Solicitor General was later called before States Members instead.

Describing legal action as an “occupational hazard” to major capital projects, he noted that there was no official challenge yet, but that one had only been outlined “in the broadest and frankly vaguest terms”, making it difficult for him to provide a “meaningful assessment of its merits and consequently the risk it might pose.”

He suggested that the former argument - which could involve residents petitioning Her Majesty not to grant Royal Assent to any law relating to compulsory purchase - would be an “avenue of last resort, which means that all domestic remedies should have been properly exhausted before that could be pursued.”

Emphasising how extraordinary the move would be, he added: “I myself have no experience of it and I don’t know any lawyer who has.”

The Solicitor General went on to explain that it could be argued that compulsory purchase could be challenged under the section of Human Rights Law relating to “the right to quiet possession or enjoyment of possessions”.

Asked by Senator Lyndon Farnham, the Minister leading the hospital project, in what circumstances property could be acquired without being in breach of this law, the Solicitor General confirmed that the right “is not absolute”.

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Pictured: Senator Lyndon Farnham, the Deputy Chief Minister, who has political responsibility for the hospital project.

“It provides that every natural legal person is entitled to peaceful enjoyment of his possessions - no one shall be deprived of his possessions, except in the public interest, subject to the conditions provided for by law and by the general principles of the national law.”

He continued: “It goes on to say the proceeding provisions shall not, however, in any way impair the right of the state to enforce such laws as it deems necessary to control the use of property in accordance with general interest. So, there are avenues under which a lawyer could argue that any particular proposal for the use of property fell within a lawful derogation.” 

He was later asked by Deputy Inna Gardiner what potential delay could be caused to the project if legal action is taken.

“Assuming any challenge were brought, then whatever the outcome at first instance - that is to say, in the Royal Court - there may be an appeal thereafter; it is not obvious necessarily how far an appeal process might go. And it’s not necessarily obvious in any case, never mind this case, how much or how long a timetable would be to reach an end of legal proceedings,” the Solicitor General replied. 

“All I can say, I suspect - and probably it’s not a matter for me - where a legal challenge engages a point of very important or rather a general public importance, then one would think that the Judicial Greffier would be keen to ensure that the legal process was expedited so that there was not undue delay in the giving effect to any public policy decision.”

During the exchange, which was initiated in response to an urgent question from Deputy Gardiner, the Solicitor General also warned States Members that the States Assembly itself could be a named party in a future legal battle.

“Any lawyer would be sensible to say that giving that advice in a public forum would be highly ill-advised and would not be recommended. That is a slight broad overview but I fear it’s the best I can do in the circumstances,” he explained. 

Whether Westmount residents will take the legal route threatened in Advocate Blakeley’s letter remains to be seen.

The group last week scored a victory during a landmark Parish Assembly meeting, which saw St. Helier parishioners vote decisively to block any construction work on the future hospital highway until Ministers provide more details about their plans.

St Helier town hall

Pictured: St. Helier parishioners voted decisively in favour of blocking further construction work on Westmount Road until more information is received.

They also supported the Parish taking legal action to resist the Government using compulsory purchase to seize land around Westmount Road before the Parish has considered the information provided.

In response, Constable Simon Crowcroft wrote to Senator Farnham last week to withdraw all existing permission from the Parish to undertake works of any nature connected with the future hospital on Parish land.

Senator Farnham commented in response: “We note the outcome of the St Helier Parish Assembly meeting and undertake to continue to work closely with the Parish.  Following the States Assembly approval of Westmount Road as the primary access route for our new hospital at Overdale, work has now begun to design the preferred access route, and the main hospital buildings.

"We remain committed to providing further detailed information, including drawings and schematics, as soon as they are available. We also remain committed to fully engaging with Overdale residents, along with all other interested parties, before the planning application is submitted.”

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