Minutes relating the selection of the Overdale site (FOI)

Request

There was a Ministerial discussion at which at least three possible sites for a new hospital were reviewed. The public who will be funding the new hospital are entitled to know why Overdale was selected and why the other sites were rejected.

I would like to see the Minutes of the discussion resulting in the choice of Overdale for the proposed New Hospital.

Response

While we do hold minutes, we consider that this information falls under Article 35 (Formulation and development of policies) of the Freedom of Information (Jersey) Law 2011. While this is the general approach adopted, the balance of public interest in respect of this specific request, and in relation to the specific information held, has nevertheless been considered in relation to the hospital site selection; and as Article 35 is a qualified exemption, a Public Interest Test has been carried out.

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, noting in particular, the prominence of the decision as to where the new hospital should be sited and the underlying strength of public interest and the disputes that have surrounded site selection

• disclosure to the public fulfils an educative role about the early stages in procedural development and illustrates how the government 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. 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” (2018) 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 (and a similar position applies to the publication of agendas, when a “safe space” is crucial).

Accordingly, and having reviewed the individual minutes, the Scheduled Public Authority (SPA) is withholding the release of the information as it relates to the formulation and development of policy by the public authority.

Article 35 is a qualified exemption, which means that a public interest test is required to be undertaken by the SPA. On balance, and considering the above, it is our view that the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

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.

Noting all the above, and while the “chilling effect” arguments remain a strong basis for non-disclosure the “safe space” argument diminishes over time, especially as policy becomes finalised and public. As such, any decisions over the release of these minutes may vary in the future.

This response delivers a reasonable balance, under the Law, between the need for transparency and accountability, and good decision-making by public authorities. Considering these various factors, the SPA has decided to maintain this exemption.

Article applied

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.

Internal Review Request

I am requesting an internal review.

I requested to see the Minutes of the discussion resulting in the choice of Overdale for the proposed New Hospital. There was a Ministerial discussion at which at least three possible sites for a new hospital were reviewed. The public who will be funding the new hospital are entitled to know why Overdale was selected and why the other sites were rejected. The response I received advised minutes were available however release was denied under ‘Article 35, qualified exemption which means that a public interest test is required to be undertaken by the SPA. On balance, and considering the above, it is our view that the public interest in maintaining the exemption outweighs the public interest in disclosing the information.’ I am requesting an internal review to release the minutes for the following reasons which outweigh Article 35 in the circumstances:

a) the new hospital is the largest public project ever to be undertaken in Jersey (budget of £800 million) and Overdale did not score in the top five sites under the government’s own criteria in the 2020 Site Selection report; taxpayers’ right to know how the decision was made outweighs Article 35 in this instance given the project’s impact on every islander and the public budget for decades to come;

b) the policy to choose Overdale was published and the States Assembly have already voted for Overdale; therefore as noted in the response, there is no further ‘formulation phase to explore’ that would favour continued secrecy of the minutes;

c) the Council of Ministers have claimed repeatedly in public that the site selection process is ‘transparent’, therefore publication of the minutes would support their stated objective and assist to restore public trust in the COM’s decision making-process;

d) only public consultation into the site selection was a 17 person anonymous ‘citizens panel’ whose formal role and input into the final decision have remained hidden from the public for unknown reasons, therefore the public have even a stronger reason to understand how the Ministers came to this decision;

e) many of the arguments used by the Ministers publicly to dismiss other sites also apply to Overdale, therefore taxpayers have a right to understand if the Ministers discussed it, and how it was managed in the overall decision;

f) The States Assembly approved p.129/2020 on 17 November 2020 regarding compulsory purchase of extensive land from the Parish of St Helier and private owners, including three homes, to support the large road widening at the proposed Overdale site. However, in the Bridging Island Plan released in March 2021, nine additional homes were encompassed in the ‘Designated Hospital Zone’ at page 230 which were not included in any Proposition before the States Assembly. This represents a material change to the resident impact and character of the area without any form of Scrutiny, challenge or debate by the States Assembly. A prior alternative access route to Overdale involved destroying 14 homes (George V cottages at the Inner Road) was dismissed in part due to wiping out an entire community. That very act is now proposed for another community, all without debate, Scrutiny or properly before the States Assembly as part of a site selection decision. It is imperative the public understand what discussion, if any, occurred in the COM regarding the total required land space for Overdale as the preferred site.

g) the response stated: ‘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 not applicable to the hospital debate as at least one Minister (Senator Ian Gorst) has voiced their preference for other sites in both the media and in the States Assembly. Given (b) above in that the decision has been ‘published’, there is no longer any argument to conceal the minutes.

Article 35 may apply to most Ministerial decisions to avoid a ‘chilling’ effect on open dialogue and proper record-keeping, but it is not the case regarding the hospital project. Releasing minutes in this instance would not set a precedent due to the uniqueness of the project and circumstances. It is the largest and likely the longest construction project ever undertaken in Jersey that also affects every islander and future generations both personally in terms of health care and from a financial aspect as taxpayers. Unlike most Ministerial decisions, this project has been subject to many reports from the assessment of the original 82 sites, short list site evaluation report, alleged ‘public’ consultation through an anonymous Citizens Panel and informed by countless external consultants. Yet, the decision made did not objectively follow the findings in these reports and public distrust and opposition remains on the site selection. The COM want the public to support the project. Public confidence will not happen unless and until the Ministers demonstrate the transparency and openness they claim guides this project. That all starts with demonstrating how Overdale became the ‘preferred’ site.

I look forward to release of the minutes.

Internal Review Response

This review has been completed by two senior staff members of the Government of Jersey, independent of the original decision-making process.

The ultimate decision to approve Overdale as the preferred site for Our Hospital lay with the States Assembly. It can be seen from the Hansard record of the sitting on 17 November 2020 (published on the States Assembly website in the following link) that States Members comments focussed on the preferred access route rather than Overdale’s suitability to accommodate a hospital and that the vote was overwhelmingly in favour of Overdale with 33 votes pour and six contre. Therefore, had the original request been taken at face value, it would have been refused under Article 23, that the information was accessible by other means.

Official Report - 17 November 2020 (gov.je)

However, the request did not specify the body for which minutes were being requested and so clarification was sought. The clarification indicated that the request actually related to the reduction of the 5-site shortlist to the final preferred site of Overdale. This could have related to either the Our Hospital Political Oversight Group or the Council of Ministers as it was discussed by both bodies. As the clarification referred to a Ministerial discussion, it was deemed to be referring to the latter. The subsequent decision whether to publish the Council of Ministers minutes relating to this request was afforded deep consideration and not made lightly.

The decision making process for reducing the Our Hospital Site Selection shortlist to the final site was as follows:

• based on the information contained in the Site Selection Report (published on www.gov.je in the first link below and www.ourhospital.je in the second link below, and also appended to P.123/2020 Our Hospital Preferred Site in the third link below) the Our Hospital Political Oversight Group presented the shortlist of five sites to the Council of Ministers

Site Shortlisting Report V4.0 (gov.je)

Site Shortlisting Report V4.0

Our Hospital Site Selection: Overdale (gov.je)

• based on interim results of site evaluations the Our Hospital Political Oversight Group made a recommendation to discontinue site evaluations on three sites that were highly unlikely to be able to deliver a hospital by 2026. The Council of Ministers agreed.

• based on the Site Evaluation Report (published on www.ourhospital.je in the first link below and also appended to P.123/2020 Our Hospital Preferred Site in the second link below) the Our Hospital Political Oversight Group made a recommendation to select Overdale as the final preferred site for Our Hospital. The Council of Ministers agreed and lodged P.123/2020 to be debated by the States Assembly.

Site_Evaluation_Report_October_2020.pdf

Our Hospital Site Selection: Overdale (gov.je)

• 17 November 2020: The States Assembly considered P.123/2020 and voted overwhelmingly in favour of Overdale as the final preferred site.

Therefore, given that the information on which all decisions by the Our Hospital Political Oversight Group, the Council of Ministers and the States Assembly were based are all in the public domain, it is considered that the clarification statement ‘The public who will be funding the new hospital are entitled to know why Overdale was selected and why the other sites were rejected’ has already been fulfilled by the publication of the documents linked above.

The question is then whether the Council of Ministers’ Part B minutes, which are exempt under Article 35 (Formulation and development of policies) of the Freedom of Information (Jersey) Law 2011, should be published on this occasion. A public interest test was undertaken and on balance it was concluded that Article 35 applied.

In asking for an Internal Review, the Requester made a number of points to rebut the use of Article 35 in this instance and each of these points has been considered and the following conclusions drawn.

a) Overdale (Overdale + fields 1550 and 1551) was one of just five sites which passed, or passed with a mitigation, the first five criteria as demonstrated on p.34 of the Site Selection Report. All other sites failed at least one of these first five criteria. Overdale was therefore one of the five sites included in the site shortlist identified on p.10 of the Site Selection Report.

Our Hospital is Jersey’s largest capital project in a generation and as such careful consideration was given to site selection by both the Our Hospital Political Oversight Group and the Council of Ministers in order to identify a preferred site which could deliver a modern, fit for purpose and future-proofed hospital within the mandated timeframe and the affordability limit. Section 7 of P.123/2020: Our Hospital Preferred Site – Overdale (P.123/2020) sets out the factors that led to both groups’ recommendations that Overdale be the preferred site for Our Hospital. Both the Requester and the Public are therefore in possession of the reasoning behind the Council of Ministers decision to bring a Proposition in favour of Overdale before the States Assembly. Publication of the confidential Part B Council of Ministers’ meeting minutes would therefore not provide further enlightenment, but could potentially create the ‘chilling effect’ referred to in the original response.

b) Whilst it is true that the decision of Overdale to be the site for Our Hospital has already been made, the reasoning behind the application of Article 35 centred around the confidential nature of Council of Ministers’ meetings and the potential for publication of the minutes to undermine consensus-led decision-making and therefore the requesters’ argument in this section does not hold.

c) The decision to approve Overdale was made by the States Assembly, not the Council of Ministers, and the Hansard record of the debate is published on the States Assembly website. The Council of Ministers put forward P.123/2020 asking the States Assembly if they were minded to approve Overdale as the preferred site for Jersey’s new hospital and the evidence they provided to States Members was the Site Shortlisting Report which formed Appendix 2 to the Proposition and the Site Evaluation Report which formed Appendix three. As stated in response to part a), the Council of Ministers’ set out their reasoning for recommending Overdale to the States Assembly in section seven of P.123/2020 and the minutes would not provide anything additional in this instance. The argument that publication of the minutes is required for transparency does not hold as the process has been transparent.

d) Public engagement and participation was sought during the Our Hospital site selection process. Every Islander was afforded the opportunity to suggest sites in the public Call for Sites. Every single site suggested was included in the long list of 82 sites put through the site selection process. Following an Island-wide invitation for applicants, the Citizens’ Panel was formed with the role of generating a set of criteria to be applied in a sequential test which would narrow down the long list of sites to a short list. The role and responsibilities of the Citizens’ Panel were set out in the invitation for applicants on www.gov.je in the first link below. It is noted that it was never the role of the Citizens’ Panel to choose the site. The Citizens’ Panel’s Terms of Reference were published on www.gov.je in the second link below and minutes of their meetings in the third link below. Public consultation has informed the design process so far and will continue to do so up to the submission of the Planning Application. The argument that publication of the minutes is required due to lack of public consultation does not hold.

Our Hospital: Citizens’ Panel (gov.je)

20191111 Our Hospital Citizens' Panel TOR.pdf (gov.je)

Citizens' Panel Minutes 20201103.pdf (gov.je)

Personal information has been redacted, therefore Article 25 of the Freedom of Information (Jersey) Law 2011 has been applied.

e) It is clear from both the Site Selection report and the Site Evaluation Report that none of the 82 sites was without its challenges and that there was no ‘perfect’ site. Every site considered would require either improvements to the strategic highways network and/or the purchase of land and properties to assemble the site and/or disruption to residents and neighbouring property owners. Ministers discussed the evidence presented to them and outlined their reasoning for recommending Overdale in section seven of P.123/2020 Our Hospital Preferred Site – Overdale. The Site Evaluation Report contained the technical evidence regarding all five shortlisted sites but did not advocate a specific final site – that decision was for the State Assembly and with the technical facts presented to them, they chose to vote overwhelmingly in favour of Overdale.

f) The States Assembly approved proposition P.123/2020 and agreed that a hospital would be delivered within the boundaries illustrated on the plan in the Report. Following the approval of P.123/2020, the design of a new hospital for Jersey began in earnest. The States Assembly must be informed of land transactions on behalf of the Public of Jersey in advance of any acquisition. Proposition P.129/2020 ‘Our Hospital Project: Acquisition of Land at Overdale’ formally notified the Assembly of the intention to acquire the land and properties covered by the Proposition. The properties included in P.129/2020 at the time of lodging, on 6th October 2020, were those that were identified as being essential for the delivery of a new hospital at Overdale, as set out within the Site Evaluation Report. At that stage other properties were identified as potentially important to the project but this could not be confirmed until further design work had been completed. They were therefore only included within the boundaries set out in P.123/2020 and not P.129/2020. The Assembly approved P.123/2020 and P.129/2020 on 17 November 2020 in-principle agreement to the use of compulsory purchase powers, should it not prove possible to acquire the properties by negotiation and agreement of fair compensation. Design is an iterative process and as consultation with statutory and non-statutory stakeholders continued and technical studies were undertaken, the design evolved and it became clear that further properties – identified within the boundaries illustrated on the plan appended to P.123/2020 – would be required to deliver a new hospital at Overdale. Where properties did not feature on the plan included in P.129/2020, there was an outstanding requirement to notify the Assembly of the intention to acquire these properties, which has been achieved by way of the Standing Order 168 process, with Ministerial Decisions and R.47/2021 published on 29 March 2021. It is furthermore noted that all homes have been acquired through negotiated outcome and, whilst selling their homes may not have been in their plans prior to Overdale being approved as the preferred site, property owners have been willing sellers. Correct due process has been followed to inform the States Assembly in advance of acquisitions on behalf of the Public of Jersey in relation to Our Hospital and therefore this is not a valid argument for publishing the minutes of the Council of Ministers.

g) Individual Ministers are free to voice opinions in public as they see fit. However, the application of Article 35 in the original response to the Requester was based on:

• the nature of Council of Ministers’ meetings being confidential, in-line with longstanding and fundamental conventions in Jersey, and elsewhere (prominently in the United Kingdom’s constitution) around ministerial discussions. Non-publication of Part B minutes is not unusual

• the risk, if publication takes place, that discussion between Ministers (and officials) becomes stilted and constrained which is a threat to good decision-making

• that this would potentially lead to Council of Ministers’ meeting minutes becoming increasingly anodyne and uninformative, 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. This is both a threat to good governance and good decision-making

• Overdale has been approved by the States Assembly and as the decision is already in the public domain the public interest in withholding information relating to the journey to that decision has somewhat diminished. However, the wider consideration is that non-publication in this instance supports the expectation that Ministers can speak freely in meetings which in turn preserves sufficient freedom during the formulation phase of other policies to explore options without that process being hampered by some expectation of future publication.

The conclusion of the Internal Review Panel members is to uphold the original decision.

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.

Article 25 - Personal information

(1) Information is absolutely exempt information if it constitutes personal data of which the applicant is the data subject as defined in the Data Protection (Jersey) Law 2018.

(2) Information is absolutely exempt information if –

(a) it constitutes personal data of which the applicant is not the data subject as defined in the Data Protection (Jersey) Law 2018; and

(b) its supply to a member of the public would contravene any of the data protection principles, as defined in that Law.