Company beneficial ownership registers (FOI)

Request

In December 2022, the governments of Jersey, Guernsey and the Isle of Man said in a joint statement that the Crown Dependencies would delay the implementation of legislation to implement full public access to registers of company beneficial ownership following the Court of Justice of the European Union's (CJEU’s) decision in cases C-37/20 and C-601/20.

Please provide the following information:

A

Any legal advice the Government of Jersey has received during the period covering 2 January 2023 to 31 July 2023 in relation to the CJEU court ruling and the Government of Jersey's possible courses of action relevant to beneficial ownership registers in light of that ruling. (Any legal advice, in this request, refers to all relevant issues related to providing access to obliged entities for the purpose of conducting customer due diligence.)

B

All communications and correspondence between the Jersey government and the UK government relevant to beneficial ownership registers between 22 November 2022 and 30 June 2023, the definition of “correspondence and communications” including (but not limited to) the following:

• emails (and their attachments)
• letters
  
• memos
• briefings
• notes taken during conversations over telephone or video link
• minutes taken during meetings and invitations
  

Response 

A

Information has been withheld under Article 31 of the Freedom of Information (Jersey) Law 2011.

B

Information has been withheld under Articles 35 and 41 of the Freedom of Information (Jersey) Law 2011.

Articles applied 

Article 31 - Advice by the Bailiff, Deputy Bailiff or a Law Officer

Information is qualified exempt information if it is or relates to the provision of advice by the Bailiff, Deputy Bailiff or the Attorney General or the Solicitor General.

Public Interest Test

The public interest in disclosing information when this article is being applied must weigh particularly heavily in favour of disclosure in order to outweigh the inherent right to privilege. It is not considered the public interest in disclosing the information is outweighed by that in maintaining the exemption, as it is designed to protect the constitutional Law Officer privilege.

Article 35 - Formulation and development of policies

Information is qualified exempt information if it relates to the formulation or development of any proposed policy by a public authority.

Public Interest Test

The Scheduled Public Authority (SPA) is withholding the release of certain parts of the information as it relates to the formulation and development of policy and procedure by the public authority.

The following considerations were taken into account:

Public interest considerations favouring disclosure:

• disclosure of the information would support transparency and promote accountability to the general public, providing confirmation that the necessary discussions have taken place
• disclosure to the public fulfils an educative role about the early stages in procedural development and illustrates how the department engages with parties for this purpose.

Public interest considerations favouring withholding the information:

• in order to best develop policy, officials need a safe space in which free and frank discussion can take place – discussion of how documentation is presented and provided is considered as integral to policy and procedural development as iterations of documents are demonstrative of the development process
• the need for this safe space is considered at its greatest during the live stages of a project
• release of the information at this stage might generate misinformed debate. This would affect the ability of officials to consider and develop policy away from external pressures, and to advise Ministers appropriately
• disclosure of this information may limit the willingness of parties to provide their honest views and feedback. This would hamper and harm the policy and procedure making process not only in relation to this subject area but in respect of future project development across wider Departmental business.

Taking into account these various factors, the decision has been made to maintain this exemption.

Article 41 - International relations

(1) Information is qualified exempt information if its disclosure would, or would be likely to, prejudice relations between Jersey and –

(a) the United Kingdom;

(b) a State other than Jersey;

(c) an international organization; or

(d) an international court.

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

(a) any Jersey interests abroad; or

(b) the promotion or protection by Jersey of any such interest.

(3) Information is also qualified exempt information if it is confidential information obtained from –

(a) a State other than Jersey;

(b) an international organization; or

(c) an international court.

(4) In this Article, information obtained from a State, organization or court is confidential while –

(a) the terms on which it was obtained require it to be held in confidence; or

(b) the circumstances in which it was obtained make it reasonable for the State, organization or court to expect that it will be so held.

(5) In this Article –

“international court” means an international court that is not an international organization and that was established –

(a) by a resolution of an international organization of which the United Kingdom is a member; or

(b) by an international agreement to which the United Kingdom was a party;

“international organization” means an international organization whose members include any two or more States, or any organ of such an organization;

“State” includes the government of a State and any organ of its government, and references to a State other than Jersey include references to a territory for whose external relations the United Kingdom is formally responsible.

Public Interest Test 

Article 41 applies to information that, if disclosed, would or would be likely to, prejudice relations between Jersey and the United Kingdom or inter alia a State other than Jersey.

Article 41 is a qualified exemption, which means that a public interest test is also required to be undertaken by the scheduled public authority. It is therefore necessary for the scheduled public authority to examine the circumstances of the case. 

The public interest in respect of Article 41 is weighted in favour of maintaining the exemption unless equally strong countervailing public interest arguments favour the disclosure of the information.

There is a public interest in transparency, and it is desirable for governments to be accountable, however, the Government of Jersey is entitled to seek advice from the United Kingdom government and ought to be free to either act on or disregard the advice received. In addition, to ensure that international relations between Jersey and the United Kingdom are not prejudiced, it is important that the United Kingdom government feel able to provide advice which will be treated confidentially and will not be made available in the public domain. For these reasons the public interest arguments in favour of disclosure at this time are not sufficient to overcome the public interest in maintaining the exemption to avoid any potential prejudice to the Island's relationship with the United Kingdom and other jurisdictions.