Copy of Hanway Consultancy Report

​​​​​​Request ​841411145

Please provide a copy of the Hanway consultancy report commissioned by the Government of Jersey concerning Jersey’s medicinal cannabis industry, previously referenced under FOI Request 610860186. 

This request includes any final report, executive summary, recommendations, market analysis, economic assessment, or associated final consultancy outputs produced by Hanway Consultants in relation to Jersey’s medicinal cannabis sector. 

If the Government considers that parts of the report remain exempt under Article 35 of the Freedom of Information (Jersey) Law 2011, I request that partial disclosure be considered, including disclosure of factual, statistical, economic, or non-policy-development sections subject to any necessary redactions.

Response

The requested information is exempt under the following articles of the Freedom of Information (Jersey) Law 2011.

Article 33b

Article 34a

Article 35

Article 42

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) is a prejudice-based exemption. That means that to engage this exemption there must be a likelihood that disclosure would cause prejudice to the interest that the exemption protects. In addition, this is a qualified exemption, and consideration must be given to the public interest in maintaining the exemption.

The Scheduled Public Authority (SPA) considers that providing information could prejudice the commercial interests of the Government of Jersey and / or third parties. There may be public interest in the commercial information, however it was considered that this is outweighed by the potential for commercial and or financial damage.

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.

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

Article 35 is a qualified exemption

The following considerations were considered:

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 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 provide advice to Ministers, 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 development as iterations of documents are demonstrative of the policy development process.
• The need for this safe space is considered at its greatest during the live stages of a policy.
• 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.
• Premature disclosure of this information may limit the willingness of parties to provide their honest views and feedback. This would hamper and harm the policy–making process not only in relation to this subject area but in respect of future policy development across wider departmental business.

Considering all of the above, while transparency is important, the public interest in disclosure must be Therefore, the public interest in maintaining the exemption under Article 35 outweighs the public interest in disclosure. weighed against potential harm caused by distress or misinformation.

Article 42 - Law enforcement

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

(a) the prevention, detection or investigation of crime, whether in Jersey or elsewhere;

(b) the apprehension or prosecution of offenders, whether in respect of offences committed in Jersey or elsewhere;

(c) the administration of justice, whether in Jersey or elsewhere;

(d) the assessment or collection of a tax or duty or of an imposition of a similar nature;

(e) the operation of immigration controls, whether in Jersey or elsewhere;

(f) the maintenance of security and good order in prisons or in other institutions where persons are lawfully detained;

(g) the proper supervision or regulation of financial services; or

(h) the exercise, by the Jersey Financial Services Commission, of any function imposed on it by any enactment.

• ​In order to best develop policy and provide advice to Ministers, 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 development as iterations of documents are demonstrative of the policy development process.

• The need for this safe space is considered at its greatest during the live stages of a policy.

• 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.

• Premature disclosure of this information may limit the willingness of parties to provide their honest views and feedback. This would hamper and harm the policy–making process not only in relation to this subject area but in respect of future policy development across wider departmental business.

It is recognised that there is public interest in transparency. However, having considered the public interest, it has been concluded by the Scheduled Public Authority that the interest in disclosing this information is outweighed by the potential prejudice that would likely result.​

Internal Review Request

I write to request an internal review of the response provided to FOI request 841411145 concerning the Hanway consultancy report commissioned by the Government of Jersey regarding Jersey’s medicinal cannabis industry.

I am not satisfied that the continued application of Articles 33, 34, 35 and 42 of the Freedom of Information (Jersey) Law 2011 has been sufficiently justified, nor that adequate consideration has been given to partial disclosure.

My grounds for requesting an internal review are as follows.

1. Passage of time

The report was commissioned in 2024 and a significant period has now elapsed.

The original refusal under Article 35 acknowledged that, once policy is formulated and published, the public interest in withholding information relating to its formulation is diminished. I question whether the report still forms part of a live policy process requiring the degree of "safe space" envisaged by Article 35.

2. Subsequent developments and review

Since the report was commissioned, Jersey’s medicinal cannabis industry has continued to develop operationally and commercially.

Further independent professional analysis concerning aspects of Jersey’s cannabis regulatory framework has entered the public domain, increasing the public interest in understanding the evidential basis upon which policy decisions were made.

It also appears that subsequent review work has been undertaken which may have superseded aspects of the earlier Hanway consultancy work in informing current policy considerations. If so, I question whether the rationale for maintaining the Article 35 exemption remains as strong as originally asserted.

3. Change in Government

Jersey has recently undergone a general election and a new government is now being formed.

This further supports the argument that earlier policy formulation processes have substantially progressed and that there is a strong public interest in ensuring that Ministers, States Members and the public are able to understand the evidential basis upon which previous policy decisions and industry development were informed.

In these circumstances, I respectfully question whether the degree of "safe space" originally relied upon under Article 35 continues to apply to the same extent as when the report was commissioned in 2024.

4. Expansion of exemptions

The original refusal relied solely upon Article 35. The subsequent response relies upon Articles 33, 34, 35 and 42.

I request that the internal review considers whether each exemption has been individually justified and whether the relevant prejudice tests required under the Law have been properly applied.

5. Article 33 – Commercial Interests

The response refers generally to possible prejudice to the commercial interests of the Government of Jersey and/or third parties.

I respectfully request clarification as to whose commercial interests are considered to be engaged and the nature of the prejudice that would be likely to arise from disclosure.

6. Article 34 – Economic Interests

The response refers to possible prejudice to the economic interests of Jersey and potential damage to reputation.

I request that the internal review considers whether reputational concerns alone are sufficient to engage Article 34 and whether the claimed prejudice to Jersey’s economic interests or the financial interests of the States has been sufficiently demonstrated.

7. Article 42 – Law Enforcement

I am not satisfied that the response adequately explains how disclosure of the report would be likely to prejudice law enforcement or any of the matters protected by Article 42.

The reasoning provided appears substantially similar to that relied upon for Article 35. I therefore request that the application of Article 42 be specifically reconsidered and that the relevant provisions of Article 42 considered applicable to the report are identified together with the nature of the prejudice claimed.

8. Partial disclosure

My request expressly sought consideration of partial disclosure.

However, the response provides no explanation as to why factual, statistical, economic, market analysis, regulatory observations, executive summaries, conclusions or recommendations could not be disclosed with appropriate redactions.

I request that the internal review specifically considers whether partial disclosure is possible.

9. Public interest

Given the passage of time, the continued development of the industry, the emergence of subsequent professional analysis concerning Jersey’s cannabis regulatory framework, and the recent change in government, I believe that the public interest in transparency and accountability has increased materially since the original refusal.

Whilst I recognise the importance of protecting genuinely live policy development, I respectfully question whether a report commissioned in 2024 can continue to attract the same level of protection indefinitely, particularly where subsequent developments may have overtaken or superseded aspects of the policy considerations which originally justified the application of Article 35.

Accordingly, I respectfully request that the response be reconsidered and that the continued application of Articles 33, 34, 35 and 42, together with the possibility of partial disclosure, be reviewed by an official independent of the original decision-making process in accordance with the Internal Review Procedure.

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 the decision was upheld.

The Scheduled Public Authority has decided this FOI is still withheld under Article 35 as per the response given in FOI 610860186, the position remains unchanged.

Articles applied

This information is exempt under Article 35 of the Freedom of Information (Jersey) Law 2011. 

Article applied 

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 

Article 35 is a qualified exemption and, as such, the Scheduled Public Authority has conducted a prejudice test as required by law. 

The Scheduled Public Authority has made an assessment on whether in all of the circumstances the public interest in disclosing the information would be outweighed by the prejudice that would be likely if it were disclosed. 

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 continue to 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. 

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 work is being undertaken

• 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, law and provide advice to Ministers, 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 legal 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 development

• release of the information at this stage might generate misinformed debate. This would affect the ability of officials to consider and develop policy and law away from external pressures, and to advise Ministers appropriately

• premature disclosure of this information may limit the willingness of parties to provide their honest views and feedback. This would hamper and harm the policy–making process not only in relation to this subject area but in respect of future policy development across wider departmental business. 

Therefore, having considered the public interest, the Scheduled Public Authority has concluded that the public interest in disclosing this information is outweighed by the potential prejudice that would likely result.​