Documents setting out the establishment of the ECCU from Ministerial Support Office

​​​​Request 736052397

Please can you provide copies of any documents setting out the legal basis for the establishment of the ECCU and for vesting in the ECCU legal jurisdiction for carrying out criminal investigations, which is otherwise the responsibility of the States of Jersey Police (SOJP).

It is thought likely that: (a) the Department for the Economy; (b) Justice and Home Affairs; and (c) the States of Jersey Police, should have relevant information.

There is a clear public interest in such information being released, not least because of the considerable amount of public funds spent on (and by) the ECCU.

Response

Searches deemed in line with the parameters of the request were conducted and the resulting documentation was reviewed. 

There were two documents considered by the SPA to be, partially, within the scope of the request: 

The relevant extracts of document one were withheld under Article 27 and Article 35 of the Freedom of Information (Jersey) Law 2011. 

The relevant extracts of document two were withheld under Article 35 of the Freedom of Information (Jersey) Law 2011. 

Articles applied 

Article 27 - National security

(1) Information which does not fall within Article 26A(1) is absolutely exempt information if exemption from the obligation to disclose it under this Law is required to safeguard national security. 

(2) Except as provided by paragraph (3), a certificate signed by the Chief Minister certifying that the exemption is required to safeguard national security is conclusive evidence of that fact.

(3) A person aggrieved by the decision of the Chief Minister to issue a certificate under paragraph (2) may appeal to the Royal Court on the grounds that the Chief Minister did not have reasonable grounds for issuing the certificate.

(4) The decision of the Royal Court on the appeal shall be final.

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 

In applying this article, 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 and testing have taken place. 

• Disclosure to the public fulfils an educative role about the early stages in policy 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 and be in a position to provide advice to Ministers, Ministers and officials need a safe space in which such free and frank discussions over potential policy can take place.

• Whilst the development of policy exemption is a class-based exemption, the need for this safe space is considered at its greatest during the live stages of a policy.

• It is considered that the release of this correspondence may impact the general public and lead to misinterpretation and misinformed debate. This would affect the ability of officials to consider and develop policy away from external pressures, and to advise Ministers appropriately.

Considering all relevant matters including but not limited to the above, while transparency is important, the public interest in disclosure of this policy development documentation must be weighed against potential harm caused by the detrimental impact on policy development processes and decision-making. These matters can be examined by established political processes, including formal Scrutiny and questioning in the States Assembly. 

It should also be noted that once a policy is formulated and published, the public interest in withholding information relating to its formulation is diminished, however, the use of the exemption can be supported if it preserves sufficient freedom during the policy formulation phase to explore options without that process being hampered by some expectation of future publication.

The SPA has concluded that, on balance, the public interest in maintaining the exemption outweighs the benefits disclosing the information.​​​

Internal Review Request

Thank you for providing the response (the "Response") of the Scheduled Public Authority ("SPA"), the Ministerial Support Office.

I am writing to request a full internal review of the Response.

Adequacy of searches

The Response states, "There were two documents considered by the SPA to be, partially, within the scope of the request".

I am concerned that adequate searches may not have been carried out and/or that documents have not properly been identified as falling within the scope of the request.

One may reasonably expect the Ministerial Support Office to hold more than two documents within the scope of the request, if there is a legal basis for the Economic Crime and Confiscation Unit (the "ECCU"), as the Chief Minister was a signatory to both the Memorandum of Understanding signed in 2017 and the "MoU: Financial Crime Investigation & Criminal Asset Recovery in Jersey" in force from 24 July 2023.

Accordingly, as part of the internal review, I request that particular attention is given to the adequacy (or otherwise) of the searches for the requested information. 

Amongst other things, it would be helpful if the internal review response could please clarify: (a) what search terms were used by the SPA; (b) that the searches by the SPA were not limited to Cryoserver but also included other digital records; and (c) whether manual searches were conducted by the SPA, including reviews of both physical files and digital folders.

Article 27 - National Security

The Response states relevant extracts of document one were withheld under Article 27 the Freedom of Information (Jersey) Law 2011, as well as Article 35.

The Response provides no information at all as why withholding of the relevant extracts of document is necessary to safeguard national security.​

There must be a real possibility of an adverse effect to national security.

Both the existence and the work of the ECCU has been very widely publicised and promoted by the GoJ, in Jersey and on the international stage. The Government of Jersey has previously released information about the ECCU to the public in response to Freedom of Information requests, including the ECCU’s detailed operating protocol and the MoUs referenced above, and the ECCU now even has its own webpage publicising its work:

https://www.gov.je/Government/NonexecLegal/LawOfficers/pages/economiccrimeconfiscationunit.aspx

It is not apparent why the SPA believes that releasing information relating to the legal basis for the ECCU would have an adverse effect on national security, when agencies such as Guernsey's Economic and Financial Crime Bureau, the UK's Serious Fraud Office, the UK’s National Crime Agency (the NCA), Government Communication Headquarters, the Security Service and the Secret Intelligence Service set out in detail on their websites information about their legal basis.

If the internal review determines to continue to withhold information on the basis of Article 27, it would be helpful if the SPA could explain why the position with the ECCU is different from the Guernsey and UK agencies mentioned above.

Without further explanation, the conclusion that may be drawn from the SPA's decision to withhold the information on the basis of Article 27 that there is in fact no proper legal basis for the establishment of the ECCU and/or for it carrying out criminal investigations; the perceived “threat” to national security being the revelation of this state of affairs.

If the SPA is relying on a certificate signed by the Chief Minister certifying that the exemption is required to safeguard national security as conclusive evidence of that fact, I would expect this to have been made clear in the Response. The Response does not state that there is reliance on any such certificate; if the SPA is relying on a certificate, the internal review should make this clear.

Article 35

The SPA has withheld information on the basis of Article 35 of the Freedom of Information (Jersey) Law 2011. As part of the internal review, it should be carefully considered whether all of the information withheld does in fact fall within the category of information relating to "the formulation or development of any proposed policy by a public authority".

The exemption at Article 35 does not cover information relating purely to the application or implementation of established policy. Given that the ECCU appears to have been operating since 2017, it may be questioned whether the information withheld actually relates to the formulation or development of a proposed policy, or is in fact relating to the application or implementation of existing policy.

If it is considered by the internal review that the information does relate to the formulation or development of a proposed policy by a public authority, it would be be helpful if the internal review could clarify which policy area and which public authority,

Even if the Article 35 exemption is properly engaged, there is a strong public interest favouring release of the information.

As is noted above, the ECCU has its own dedicated webpage on the Government of Jersey's website.

It is clear from this that the Government of Jersey itself believes that it is in the public interest for the Jersey public to be informed about the existence of the ECCU and aspects of its work. Notably, however, the dedicated webpage fails to provide any information about the legal basis for the establishment of the ECCU. It is this lacunae that the request is targeted at. 

The lack of publicly available information about the ECCU's legal basis contrasts markedly with the approach taken by the Guernsey's Economic & Financial Crime Bureau ("EFCB"), which (similarly to the ECCU in Jersey) investigates economic and financial crime in Guernsey. The EFCB has a dedicated website with links to relevant legislation and a clear and transparent explanation: "The Directors functions and powers are delegated to the EFCB's Officers and are drawn from The Economic and Financial Crime Bureau and Financial Intelligence Unit (Bailiwick of Guernsey) Law 2022." 

See:

https://efcb.gov.gg/node/20 

https://efcb.gov.gg/node/23 

https://efcb.gov.gg/node/16 

It is evident therefore that Guernsey's EFCB believe it is in the public interest for information about its legal basis to be made accessible to the public. It is not apparent reasonable why this should not also be the case in Jersey, in respect of information relating to the ECCU's legal basis.

This is particularly so given that the ECCU contains to undertake high profile investigations. It was recently publicly disclosed that the ECCU is investigating Glencore plc - see pages 23-24 of the Base Prospectus available at:

https://www.glencore.com/.rest/api/v1/documents/static/71d59a5b-0b96-4d0d-9d9b-748cf4933432/Glencore+EMTN+2025_Base+Prospectus+%28final%29.pdf 

The disclosure of this investigation being undertaken by the ECCU generated significant interest - see, for example, this article: https://fincrimecentral.com/glencore-bribery-money-laundering-probe-jersey/​

In a jurisdiction committed to the rule of law, one would expect the legal basis for investigative agencies carrying out criminal investigations - such as the Glencore investigation that has been publicly reported - to be clearly set out and accessible to members of the public. At present, it is simply not clear to the public what is the legal basis for the ECCU existing, let alone carrying out criminal investigations. It is inimical to the public interest for an “investigative agency” such as the ECCU to exist and carry out criminal investigations in Jersey, in place of the States of Jersey Police, whilst the legal basis for it doing so has not been explained to the public.

The ECCU has been operating for approaching 8 years now. There has therefore been more than sufficient time between the establishment of ECCU, and the present date, to mean that the public interest in disclosure outweighs any "safe space" concerns.

The internal review is therefore urged to overturn the SPA's reliance on Article 35 and require disclosure of the withheld information.

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?

ii. Was the information supplied appropriately?

iii. 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 that the original decision was upheld​.