Memorandum of understanding between the Bailiff and the Chief Minister (FOI)Memorandum of understanding between the Bailiff and the Chief Minister (FOI)
Produced by the Freedom of Information officeAuthored by Government of Jersey and published on
23 December 2024.Prepared internally, no external costs.
Request 666190510
In an article published in the Jersey and Guernsey Law Review, "The Bailiff’s Role As Guardian Of The Constitution", it was noted:
"Today the official channel is much reduced. This is the consequence of the increasing prevalence of direct ministerial communication between ministers of the governments of the United Kingdom and Jersey. Such ministerial correspondence was once the subject of a memorandum of understanding between the Bailiff and the Chief Minister. Pursuant to that MOU it was agreed that ministers should send a copy of all such correspondence to the Bailiff for his information so that he could exercise his duty of advising in any appropriate case. That may not happen as regularly as it did."
Article available at:
https://www.jerseylaw.je/publications/jglr/PDF%20Documents/JGLR2001_MacRae(Bailiff).pdf
The article was recently referred to a blogpost published online: A. Le Sueur, ‘Finally, separation of powers in Jersey?’, U.K. Const. L. Blog (28th November 2024) (available at https://ukconstitutionallaw.org/2024/11/28/andrew-le-sueur-finally-separation-of-powers-in-jersey/ )
Could you please provide:
1. A copy of the Memorandum of Understanding (MOU) referred to.
2. Information as to whether the MOU remains in force and operation.
Response
1.
The Government of Jersey does not hold the Memorandum of Understanding referred to in Question 1. Article 3 of the Freedom of Information (Jersey) Law 2011 applies.
2.
As in the response to Question 1, the Government of Jersey does not hold the Memorandum of Understanding referred to. Therefore, it is not possible to provide an answer to Question 2.
Article applied
Article 3 - Meaning of “information held by a public authority”
For the purposes of this Law, information is held by a public authority if –
(a) it is held by the authority, otherwise than on behalf of another person; or
(b) it is held by another person on behalf of the authority.
Internal Review Request
I am writing to request an internal review of the response to the above referenced freedom of information request.
The request sought a copy of a memorandum of understanding between the Chief Minister and the Bailiff (the MOU).
The response simply states that the Government of Jersey does not hold a copy of the requested MOU.
It seems there is little room for doubt that the MOU existed; as noted in the initial request, the MOU has been expressly referenced in an article by the current Deputy Bailiff.
This gives rise to the question why the Government of Jersey does not hold a copy of the MOU, given that it evidently existed and is an important constitutional document, of (at least) historical significance.
Regrettably, the response does not provide any reason for the conclusion that the MOU is not held by the Government of Jersey. Nor does the response provide any guidance as to whether any other public authority may hold a copy of the Memorandum of Understanding.
Accordingly, I am concerned that adequate and properly directed searches for the MOU may not have been carried out.
Whether or not required by law, one would have hoped that the Government of Jersey would have made enquiries with the Bailiff's Chambers to see whether a copy of the MOU is held and/or where it may located, given it is of clear interest to legal and historical scholars of Jersey, as well as having relevance to recent discussions about the role of the Bailiff.
Internal Review Response
This internal review has been conducted by an official of appropriate seniority who has not been involved in the original decision. As part of their review, they will be expected to understand the reasons behind the original response, impartially determine whether the response should be revised, and how so, considering the request and the information held, any relevant exemptions, or other relevant matters under the Law.
The Internal Review Panel was asked to review the original response 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 if above is a yes:
i. Was the right information searched for and reviewed? (supply audit if possible)
ii. Was the information supplied appropriately (supply evidence if possible)
iii. Was information appropriately withheld in accordance with the articles applied and were the public interest test/ prejudice test properly applied? (supply supporting documents re the test if possible)
Following discussion, it was agreed by the Panel that:
1. The panel sought additional searches and were satisfied that those searches were properly carried out.
2. The panel were satisfied that the information returned was appropriately reviewed for relevance.
3. The panel were satisfied that the Government of Jersey does not hold the Memorandum of Understanding referred to, and the FOI response is upheld.