Landside Boundary Review Terms of Reference (FOI)

Request

Could Jersey Property Holdings confirm if it has issued Terms of Reference for its "Landside Boundary Review" which is currently taking place and if so what the Terms of Reference are?

Response

Please be advised Jersey Property Holdings (JPH) finalised the Terms of Reference (“ToR”), subject to recommendations by Scrutiny Panel, on 22 October 2019.

The ToR are in fact instructions to the Law Officers’ Department (‘LOD’) for the conveyancing research relating to this project. This means that the ToR are no different from any other instruction given by a client to its legal team. Therefore, the information you have requested is exempt under Article 31 (Legal Advice) of the Freedom of Information (Jersey) Law 2011.

Article 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

If the ToR are disclosed, either in full or in part, members of the public will have the opportunity of scrutinising what advice JPH has specifically sought. This goes to the heart of privileged communications and the reason why such communications ought to remain confidential; it is not for the public to question what advice has been sought.

Article 31 of the FOI Law recognises the longstanding constitutional Convention that government does not reveal whether Law Officers have or have not advised on a particular issue, or the content of any such advice. The underlying purpose of this confidentiality is to protect fully informed decision making by allowing government to seek legal advice in private, without fear of any adverse inferences being drawn from either the content of the request for advice, the advice or the fact that it was sought. It ensures that government is neither discouraged from seeking advice in appropriate cases, nor pressured to seek advice in inappropriate cases.

Whilst it is recognised that the strong public interest in protecting Law Officers’ advice may still be overridden in some cases if there are particularly strong factors in favour of disclosure, conversely, disclosing what advice is being sought could inhibit the Law Officers from:

(1) giving frank advice

(2) inhibit government bodies in taking advice for fear of its publication; and

(3) inhibit the full disclosure to the Law Officers of all material relevant to the advice being sought and therefore real weight ought to be afforded to this aspect of the Law Officers’ Convention.

Disclosing what specific advice was sought does not carry sufficient consideration of public interest to require disclosure of the ToR. It does not outweigh the three principles set out above which require the long-standing Law Officer Convention to be maintained. Therefore the balance is in favour of maintaining the exemption and it is not considered the public interest in disclosure outweighs the preservation of the Convention on this occasion.