Council of Ministers' meeting

​Request 693297869

Please provide all information, details and notes that are relevant to the Council of Ministers' meeting that took place on 25 February 2022 regarding the Government of Jersey's response to the conflict between Russia and Ukraine and subsequent statements made about Russia related individuals by the Government of Jersey thereafter.

Please ensure that such information is produced from the office of each Minister, the Office of Chief Executive, the Council of Ministers, the Cabinet Office, the Officer of External Relations and any other relevant government department or official for whom each and all of the Chief Minister and the other Ministers have legal responsibility.

Response

The following Articles have been applied to the redacted areas of the Council of Ministers meeting minutes from 25 February 2022 and any other relevant information, details and notes follow the meeting. These are shown alongside the redacted areas of the document (save Article 39 which is not being applied).

Attachment redacted.pdf​

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.

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.

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.

Article 40 - Defence

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

(a) the defence of the British Islands or any of them; or

(b) the capability, effectiveness or security of any relevant forces.

(2) In paragraph (1)(b) “relevant forces” means –

(a) the armed forces of the Crown; or

(b) a force that is co-operating with those forces or a part of those forces.

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.

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.

Public Interest Test

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

These are strong reasons to support public disclosures around the deliberations and decision-making of government.

Public interest considerations favouring withholding the information

The nature of these meetings is confidential, in line with longstanding and fundamental conventions in Jersey, and elsewhere (prominently in the United Kingdom’s constitution) around ministerial discussions. This includes the meeting records, minutes, notes, papers and details, save any items treated a “A” items for publication.

In particular, disclosing the workings and discussions of ministerial committees could reveal potential disagreements on details of policy and even policies themselves which, if made public, would undermine consensus driven decision-making as outlined in the “Code of Conduct and Practise for Ministers and Assistant Ministers” (2024) and hence undermine the working of Government.

Ministers must be at liberty to express their views frankly and candidly, without the fear of their views being automatically or even potentially reported in public, otherwise they might express their views less vigorously or more circumspectly, or even feel restrained from voicing them at all, for fear that they will be represented in the media, now or in the near- future, in a way that is damaging to either themselves, the government, or the Island. This is especially the case during the “live” development of policy, when a “safe space” within which discussions takes place helps with the formulation of good decisions.

It is the case that Ministers in discussions should feel free to raise and examine all options, even those that may feel on subsequent consideration wholly inappropriate, without concern that even raising a matter could open the Minister to censure or criticism.

The risk, if publication takes place, is that discussion between Ministers (and officials) become stilted and constrained, known as the “chilling effect”, by the knowledge that such discussions could be made public and decision-making would not have the benefit of the full range of freely expressed opinions to inform it. 

Minutes of meetings could also become increasingly anodyne and uninformative, if they are to be public, to the detriment of good record-keeping and future decision-making where that relies on previous records of decisions taken to inform them on specific policy matters. It is particularly beneficial for the long-term public record if minutes are to reflect for posterity a “blow-by-blow” account of discussions and exchange of views. Indeed, discussions might take place increasingly or wholly outside formal recorded meeting, undermining good governance and record-keeping, if minutes of formal meetings are published.

Beyond the question of policy formulation, the need for safe space applies, and the above considerations apply, to protecting the Public Authority and or the public of Jersey from harm or prejudice in relation to the other exemptions applied, compounding the necessity for safe space and the public interest in non-disclosure.

The above is especially the case for a major domestic or international event, when the potential harms to the Public Authority and or public of Jersey are accentuated with potential significant ramifications for our national security, economy, defence, international relations, and law enforcement.

Conclusions

Accordingly, and having reviewed the individual minutes, the Scheduled Public Authority (SPA) concludes that withholding the information outweighs the public interest in disclosing the information.

Once a policy is formulated and published, and the events have taken place and concluded, the public interest in withholding information is diminished. However, the use of exemptions 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, and where the harm and prejudice caused by release continue to be compelling. Indeed, subject remains recent, and events are ongoing. For these reasons, the public interest in withholding remains strong and persuasive.​