Money paid by Government of Jersey to DFDS (FOI)

​​Request 667923326

Request is made with regard to monies paid by the Governemnt of Jersey to DFDS (or its affiliates) during the 2024 ferry tender process for berthing trials, and any other shipping costs. Now that the tender has been decided, and given that any payments will have been funded by the Jersey taxpayers, it is in the public interest to know how taxpayers money has been spent, and in what quantities. It is also requested to know on what basis these payments were made and justified given that Condor was not afforded the same treatment. In some part of the world these might be viewed as facilitation payments. Thank you.

Response

Having assessed there to be material and ongoing risk to continuity of lifeline sea connectivity, the Government of Jersey entered into contract with an independent ferry operator for contingency ferry services, including onward charter of vessels. The States of Guernsey also entered into that agreement and shared costs.  

Three vessels – Finlandia Seaways, Mistral, Seven Sisters - were trialled under this contingency arrangement with follow-on charters arranged for Finlandia Seaways and Mistral. None of those vessels had previously called at St Helier or St Peter Port and so the berthing trials established an operational window for their use should contingency be called. Two other vessels have formed part of the charter arrangements at various points over the last 12 months although berthing trials were not required in either instance due to previous calls to the islands. 

The berthing trials were not connected to a separate procurement process running during 2024 for long-term sea connectivity and nor were the vessels trialled to support the tender plans of any bidding party. 

Berthing trials conducted by Brittany Ferries of the Barfleur and Bretagne were at their request and therefore not paid for by the Government of Jersey. 

Condor was not invited to participate in the contingency arrangement as the material and ongoing risk identified was to services to be contractually provided by Condor under its Operating Agreement. 

The disclosure of the requested information regarding the total sum involved in the berthing trials would likely prejudice the commercial interests of the parties involved, including the Government of Jersey. It would further prejudice the economic or financial interests of the Government of Jersey. Therefore Articles 33 and 34 of the Freedom of Information Jersey (Law) 2011 has been applied.

Articles Applied

Article 33 - Commercial interests

Information is qualified exempt information if –

(a) it constitutes a trade secret; or

(b) its disclosure would, or would be likely to, prejudice the commercial interests of a person (including the scheduled public authority holding the information).

Public Interest Test

Article 33(b) of the Freedom of Information Law allows an authority to refuse a request for information where its disclosure would, or would be likely to, prejudice the commercial interests of a person (including the scheduled public authority holding the information). 

Whilst it is accepted that the public may have an interest in the requested correspondence, it is considered that releasing this information could affect the commercial interests of the suppliers and the Government of Jersey.

Article 34 - The Economy

Information is qualified exempt information if its disclosure would, or would be likely to, prejudice –

(a) the economic interests of Jersey; or

(b) the financial interests of the States of Jersey.

Public Interest Test

Article 34 is a qualified exemption which requires there to be a likelihood of prejudice against the economic interests of Jersey or the financial interests of the States of Jersey. Whilst this could include reputational concerns, the larger concern is whether the economic interests of the Government of Jersey could be prejudiced by the release of information that could undermine Jersey's reputation.

The following extract from the guidance of the UK Information Commissioner should also be noted:

The exemption concerns the effect on the economy rather than the government's ability to manage the economy. However, since it is an aim of governments to improve economic prosperity, weakening the government's control over the economy may also damage the economy itself.

Public interest would not be served by disclosing information which may have a detrimental impact on the economy.​

Internal Review request

You formally responded to my FOi request on 17th January 2024, it having taken you quite some time to deal (beyond 14 working days) with the matter. A matter I note had actually already been examined in previous FOi requests from other parties including the JEP. Having had time now to consider the response I find it helpful in places, but on the whole, I do not believe it to deal adequately with my concerns or to be in the spirit of the Law.

On that basis I am seeking further clarification and formal review on the matter, for the reasons set out below.

Your response suggests that the Government concluded there to be a risk to lifeline sea connectivity due to a "material and ongoing risk with Condor's services" - hence them not being invited to participate in any "paid for" trials.

In one sense then, as an Island Government, the decision to commission trials and testing in the manner described would seem to be a logical element of a contingency plan for any provider of key public services (not just ferries). Whilst it is probably out of scope of this particular request, I am not aware of any similar "contingency based" trials or testing for other key services into the Island being publicised over the last decade or so. And certainly not that seem to conveniently align to such a live public issue - i.e. the tender for the ferry contract. Coincidence perhaps - I suspect not.

But the point is that your response quite clearly confirms that GOJ thought this was a sensible, practical, operational step that should be taken by the Government. Such activities that one would argue are naturally incumbent on it to protect the Island and the interests of the Islanders and ultimately the taxpayer. No shame in that.

Similarly, DFDS, a huge company with 159 years of history, operating across the globe, and (as part of the rhetoric coming out of GOJ around the tender), a highly profitable and financially stable company, would be completely at ease with having to "trial" new routes and understand the practical benefits of doing such. This cannot be the first time they've ever undertaken a berthing trial in the world, notwithstanding they might not have done in it in the Channel Islands. I can understand they'd want costs to be covered, naturally, but it's hardly a clandestine activity, particularly as it was splashed all over the media.

Again, whilst probably tangential to this request it is somewhat embarrassing that these trials were perceived to be a complete failure and those ships literally sailed off into the distance probably never to be seen again - so I'm not sure it proved anything anyway.

So, to my point: -

The ferry contract has now been awarded. The berthing trials, failed as they were, were concluded and presumably given it's the award of a 20-year contract will not be

required to be re-done by DFDS ever. The undisclosed fee/cost for this process has been paid. It's in 2024's P&L and will undoubtedly be conveniently indistinguishable in the financials once finalised. It has no bearing on the future.

It is therefore unclear to me why this is therefore likely to prejudice the commercial interests of either GOJ or DFDS. Why should a perfectly reasonable, operational risk activity in the best interests of the Islands, and the provider, be prejudicial to either party going forward. What's the perceived harm?

For those in the shipping industry, I suspect they'll be able to fairly accurately assess the likely amounts that DFDS sought or charged in respect of this activity- indeed those people "in the know" locally have suggested estimates in the millions. It can hardly be described as a trade secret, albeit DFDS will probably not want a light shining on what they managed to fleece out of the Island - as well as winning the tender.

So, the conclusion has to be that either the sum is a complete embarrassment to the Government, i.e. they've royally been had over, or it remains sensitive given the significant amount of distrust and suspicion that has been aired in the public domain over the handling and probity of this tender. It is indeed unfortunate that the berthing trials were signed off by a Senior official, given the rather unfortunate subsequent revelations that were subsequently aired in the public domain with his name attached.

Either way this was taxpayers money that was spent. Whilst the Government may be a custodian thereof, they have significant legal obligations to the Jersey taxpayer to use

public money properly and be accountable for it. When the current Chief Minister was elected it was to a fanfare of accountability, transparency, fairness, and good financial husbandry. As such the simple request for the amount of money spent, on the taxpayers behalf, on something that would be considered operationally BAU should surely not vex a transparent, accountable, fair Government. All it actually does is continue to fuel suspicion, aired in the public domain, that this is just an inconvenient little secret in parallel to a calamitous ferry tender (despite the two things apparently being unrelated).

The imposition of Articles 33 and 34 of the FOi Jersey Law are in my view contrary to the overriding principle of being accountable to the Jersey taxpayer for the spending of what is likely to be a serious amount of money. With the difficulties being faced across all Sectors of the Island, and the ongoing hardships faced by Islanders, it is critical that all GOJ expenditure is proportionate and can be accounted for. Indeed, only recently the CEO of GOJ publicly stated that the Government had exhausted its contingency funds.

I cannot come up with one reasonable argument to underpin that this prejudices either DFDS or the Governments economic or financial interest by disclosing this amount. If there's nothing to hide, why not provide the information. DFDS has what it wanted, and as a non-recurring expenditure item, it can hardly be seen as something that will feature in the 2025 economic life of Jersey and beyond. How it can even be argued that a past cost could damage the economy or have a detrimental impact on the future economy is beyond me - given Jersey is budgeting £1.3bn+ of income, this payment would be comparatively insignificant.

If it is simply as I suggest that there is significant embarrassment associated with this and the politicians haven't got the spine to face the taxpayers and justify this use of public money, I'm afraid that is not a reasonable reason to use the FOi Law to refuse the request. The taxpayers interests are not being properly served.

I'll conclude with Deputy Binets recent moans about the burden that administering the FOi Law has become. I have every sympathy with the principle where it involves persistent, trivial and pedantic requests (important as they may seem to the requestor). The problem is that the general and increasing level of distrust and suspicion of the Ministers and the Government, aired in the public  domain, is in fact only going to fuel this further. If there is nothing to hide, there should be nothing to fear. The persistent hiding behind Articles 33 and 34 appear to be just a convenient way of fobbing people off. I reiterate that this request is entirely in the public interest, and as a taxpayer I have a right to know how that money has been spent.

Internal Review response 

The Internal Review Panel was asked to review the response provide and confirm the following:

Does the FOI request relate to a body to which the Law applies, or information held by a body covered by the Law? If the answer is no, all the other questions are not applicable. 

Further questions: 

1. Was the right information searched for and reviewed? 

2. Was the information supplied appropriately 

3. Was information appropriately withheld in accordance with the articles applied and were the public interest test/ prejudice test properly applied? 

Following discussion, it was agreed by the Panel that:

1. Yes

2. Yes

3. Yes

Conclusions of the review panel – it may be that the original decision is upheld, reversed or modified

The panel have reviewed the original response and have upheld the original decision of the Scheduled Public Authority and concluded that the articles applied were done so correctly.