Terrorist Assets: Procedure for designation and freezing

Information about the publication of Ministerial Decisions

A formal published “Ministerial Decision” is required as a record of the decision of a Minister (or an Assistant Minister where they have delegated authority) as they exercise their responsibilities and powers.

Ministers are elected by the States Assembly and have legal responsibilities and powers as “corporation sole” under the States of Jersey Law 2005 by virtue of their office and in their areas of responsibility, including entering into agreements, and under any legislation conferring on them powers.

An accurate record of “Ministerial Decisions” is vital to effective governance, including:

demonstrating that good governance, and clear lines of accountability and authority, are in place around decisions-making – including the reasons and basis on which a decision is made, and the action required to implement a decision
providing a record of decisions and actions that will be available for examination by States Members, and Panels and Committees of the States Assembly; the public, organisations, and the media; and as a historical record and point of reference for the conduct of public affairs

Ministers are individually accountable to the States Assembly, including for the actions of the departments and agencies which discharge their responsibilities.

The Freedom of Information Law (Jersey) Law 2011 is used as a guide when determining what information is be published. While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.

A decision made 12 December 2013:

Decision Reference: MD-C-2013-0153
Decision Summary Title :	Procedure For Designation and Freezing of Terrorist Assets 2013.12.12		Date of Decision Summary:	12th December 2013
Decision Summary Author:	External Relations		Decision Summary: Public or Exempt?	Public
Type of Report: Oral or Written?	Written procedure		Person Giving Oral Report:	N/A
Written Report Title :	Terrorist Asset-Freezing (Jersey) Law 2011 - Procedure for (i) the receipt and assessment of requests based on a foreign request to designate/freeze in order to comply with obligations under SCR 1373 (paragraphs 1 to 5) and (ii) the receipt and assessment of requests to grant, vary or revoke a licence (paragraph 6).		Date of Written Report:	5th December 2013
Written Report Author:	External Relations		Written Report : Public or Exempt?	Public
Subject: Procedure for the designation and freezing of terrorist assets
Decision(s): The Minister for External Relations, on the recommendation of the Jersey Financial Crimes Strategy Group and with the advice of HM Attorney General, approved the procedure as attached, in accordance with the Terrorist Asset-Freezing (Jersey) Law 2011, for (i) the receipt and assessment of requests based on a foreign request to designate/freeze in order to comply with obligations under SCR 1373 (paragraphs 1 to 5) and (ii) the receipt and assessment of requests to grant, vary or revoke a licence (paragraph 6).
Reason(s) for Decision: The United Nations Security Council Resolution 1373 (2001) requires, inter alia, that all states shall: “Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities;…” Following the IMF review in 2009 of the regulation of Jersey’s financial services industry, the reviewers recommended: “The authorities should put in place a formal procedure governing the receipt and assessment of requests based on a foreign request to designate/freeze in order to comply with obligations under SCR 1373.” The Terrorist Asset-Freezing (Jersey) Law 2011, amongst other matters, makes provision for the Minister for External Relations to designate a person who the Minister reasonably suspects is or has been involved in terrorist activity; or who is owned or controlled by such a person; or who is acting on behalf of such a person. The funds and economic resources of a designated person must be frozen, and funds or economic resources must not be made available directly or indirectly to a designated person. The Jersey Financial Crimes Strategy Group, with the advice of HM Attorney General, has approved the proposed procedure as attached, in accordance with the Terrorist Asset-Freezing (Jersey) Law 2011, for (i) the receipt and assessment of requests based on a foreign request to designate/freeze in order to comply with obligations under SCR 1373 (paragraphs 1 to 5) and (ii) the receipt and assessment of requests to grant, vary or revoke a licence (paragraph 6).
Resource Implications: There are no manpower or revenue implications arising.
Action required: The Chief Minister’s Department shall inform the States Greffe of this decision.
Signature:		Position: Minister for External Relations
Date Signed:		Date of Decision (If different from Date Signed):

Terrorist Assets: Procedure for designation and freezing

Terrorist Asset-Freezing (Jersey) Law 2011 - Procedure for (i) the receipt and assessment of requests based on a foreign request to designate/freeze in order to comply with obligations under SCR 1373 (paragraphs 1 to 5) and (ii) the receipt and assessment of requests to grant, vary or revoke a licence (paragraph 6).

Receipt of requests

Requests by the authorities of a foreign government to designate a person/freeze assets should be handled in accordance with the Terrorist Asset-Freezing (Jersey) Law 2011 (“the Law”). This procedure is supplemental to, and should be read together with, the Law. It is intended that this procedure should equally apply to any other requests to designate a person or freeze assets and should also apply, to the extent applicable to the circumstances, to situations where the Minister for External Relations’ consideration of whether or not to designate a person or freeze assets is not prompted by a request but rather by the receipt of information.

It is possible that requests for designation might initially be received through various routes, for example the Attorney General or the Joint Financial Crimes Unit. Whatever the initial route, the request and any accompanying information must be referred at the earliest opportunity to the Minister for External Relations for consideration.

The Minister for External Relations shall promptly acknowledge the request in writing and shall give consideration to the request as soon as is reasonably practicable.

If not previously informed, the Attorney General, the Minister for Home Affairs and the head of the Joint Financial Crimes Unit must be notified of the request at the earliest opportunity.

All requests and information must be treated in strict confidence between the relevant parties, save to the extent that the making of a designation may be publicized in accordance with the Law or to the extent that the Minister for External Relations considers information must be disclosed for the purpose of proper consultation with the requester or with the authorities of any other country.

Assessment of requests – interim designation

The Minister for External Relations may follow the below procedure for final designations, or any part of the below procedure for final designations, in respect of interim designations. Alternatively, if the Minister for External Relations considers that the urgency of the need to make a decision with regard to an interim designation renders it impracticable for him to follow all or part of the below procedure for final designations, he need not do so.

The Minister for External Relations must determine whether it is his/her reasonable belief that the person or entity to whom the request relates –

is or has been involved in terrorist activity;
is an entity owned or controlled directly or indirectly by a person who is or has been involved in terrorist activity;
is acting on behalf of or at the direction of a person who is or has been involved in terrorist activity.

If the Minister for External Relations reasonably believes one or more of these three criteria are satisfied, he may make an interim designation. If he does not so believe, he shall not make an interim designation.

In considering an interim designation, the Minister for External Relations may, but is not obliged to, consult with the requester or with the authorities of any other country if he thinks appropriate.

The Minister for External Relations must formally record his decision and his reasons in writing.

The Minister for External Relations must advise the requester in writing of the decision to make, or to not make, an interim designation at the earliest opportunity.

The Minister for External Relations must notify the Attorney General, the Minister for Home Affairs and the head of the Joint Financial Crimes Unit of his decision, to the extent any of them are not aware of it due to their involvement in the decision process, at the earliest opportunity and shall provide them with a copy of the relevant request.

Assessment of requests – final designation

Where the Minister for External Relations is considering making a final designation, he shall inform the Attorney General of that fact and the Attorney General shall, to the extent he has not already done so in connection with the interim designation of that person, as soon as is reasonably practicable, assess the relevant request and accompanying information to determine –

the prima facie legal validity of the request and possible grounds for making a designation;
the sensitivity of any information accompanying the request;
whether the human rights of a person to whom the request relates are appropriately taken into consideration;
whether further information is required and, if so, what further information,

and should advise the Minister for External Relations of his views.

Where the Attorney General has already advised in connection with the interim designation of that person he shall, as soon as reasonably practicable, advise the Minister for External Relations whether he has anything to add to his previous views on the making of an interim designation, in connection with the proposed making of a final designation.

The Minister for External Relations should assess the request and accompanying information, with the advice of the Attorney General and in consultation with the Minister for Home Affairs and the head of the Joint Financial Crimes Unit, and must determine, as soon as is reasonably practicable, whether it is his/her reasonable belief that the person or entity to whom the request relates –

is or has been involved in terrorist activity;
is an entity owned or controlled directly or indirectly by a person who is or has been involved in terrorist activity;
is acting on behalf of or at the direction of a person who is or has been involved in terrorist activity.

If the Minister for External Relations reasonably believes one or more of these three criteria are satisfied, he may make a final designation. If he does not so believe, he shall not make a final designation.

In considering a final designation, the Minister for External Relations may, but is not obliged to, consult with the requester or with the authorities of any other country if he thinks appropriate.

The Minister for External Relations must formally record his decision and his reasons in writing.

The Minister for External Relations must advise the requester in writing of the decision to make, or to not make, a final designation at the earliest opportunity.

Publicizing a designation

4.1 Interim designation

In the case only of an interim designation, if the Minister for External Relations considers that the urgency of the need to make a decision with regard to publicizing an interim designation renders it impracticable for him to take the advice of the Attorney General and to consult with the Minister for Home Affairs and the head of the Joint Financial Crimes Unit to any extent, he need not do so to that extent. To the extent the Minister for External Relations takes such a decision without taking the advice or consulting with any of the Attorney General, the Minister for Home Affairs or the head of the Joint Financial Crimes Unit he shall advise them of his decision at the earliest opportunity.

Otherwise, the procedure for publicizing a final designation shall be followed.

4.2 Final designation

In deciding whether a designation should be generally publicized or whether he should inform only such persons as he considers appropriate of such designation the Minister for External Relations shall consider whether –

the Minister for External Relations believes that the designated person is an individual under the age of 18;

the Minister for External Relations considers that disclosure of the designation should be restricted (i) in the interests of the security of Jersey or of any other country or territory; (ii) for reasons connected with the prevention or detection of serious crime; or (iii) in the interests of justice.

If one or more of these conditions is satisfied, the Minister for External Relations must inform only such persons of the designation as the Minister for External Relations considers appropriate. Otherwise, the Minister for External Relations must take steps to publicize the designation generally.

Before taking such a decision the Minister for External Relations shall take the advice of the Attorney General and consult with the Minister for Home Affairs and the head of the Joint Financial Crimes Unit.

In deciding whether a designation should be generally publicized, the Minister for External Relations may, but is not obliged to, consult with the requester or with the authorities of any other country if he thinks appropriate.

The Minister for External Relations must formally record his decision and his reasons in writing.

Variation or revocation of a designation

It is possible that requests for variation or revocation of a designation might initially be received through various routes, for example the Attorney General or the Joint Financial Crimes Unit. Whatever the initial route, the request and any accompanying information must be referred at the earliest opportunity to the Minister for External Relations for consideration.

The Minister for External Relations shall promptly acknowledge the request in writing and shall give consideration to the request as soon as is reasonably practicable.

In considering such a request the Minister for External Relations shall take advice of the Attorney General and consult with the Minister for Home Affairs and the head of the Joint Financial Crimes Unit.

In considering a request to vary or revoke a designation, the Minister for External Relations may, but is not obliged to, consult with the requester or with the authorities of any other country if he thinks appropriate.

The Minister for External Relations must formally record his decision and his reasons in writing.

The Minister for External Relations must advise the requester in writing of the decision to vary or revoke, or not to vary or revoke, the designation at the earliest opportunity.

Licensing

Requests to grant, vary or revoke a licence should be handled in accordance with the Law. This procedure is supplemental to, and should be read together with, the Law.

A request for a licence to authorise any prohibited act in respect of a designation, or to vary or revoke such a licence previously granted, should be addressed to the Minister for External Relations. If received through any other route, the request and any accompanying information must be referred at the earliest opportunity to the Minister for External Relations for consideration.

The Minister for External Relations shall promptly acknowledge the request in writing and shall give consideration to the request as soon as is reasonably practicable. In considering such a request the Minister for External Relations shall take the advice of the Attorney General on and shall consult with the Minister for Home Affairs and the head of the Joint Financial Crimes Unit on the following matters:

whether in principle a licence ought to be granted, varied or revoked;
the acts which might be authorised by the licence;
the persons or category of persons to whom the licence might be granted;
what conditions, if any, should apply to the licence;
whether the licence should have unlimited or limited duration;
whether the grant, variation or revocation of the licence should be notified to specific persons or published generally.

All requests and information must be treated in strict confidence between the relevant parties, save to the extent that the grant, variation or revocation of a licence may be publicized in accordance with the Law or to the extent that the Minister for External Relations considers information must be disclosed for the purpose of proper consultation with the requester or with the authorities of any country.

In considering a request to grant, vary or revoke a licence, the Minister for External Relations may, but is not obliged to, consult with the requester or with the authorities of any country if he thinks appropriate.

The Minister for External Relations must formally record his decision and his reasons in writing.

The Minister for External Relations must inform an applicant for a licence in writing of the decision taken in connection with an application for a licence, and provide the licensee with, or publish, a copy of any licence arising from such an application, at the earliest opportunity. The Minister for External Relations must inform the requester in writing of the decision taken in connection with a request to vary or revoke a licence and, where the requester is the licensee, shall provide the licensee with, or publish, a copy of any varied licence, arising from such a variation, at the earliest opportunity.

The Minister for External Relations must inform the licensee in writing if not also the requester in connection with a request for variation or revocation of a licence which results in a variation or revocation and shall provide the licensee with, or publish, a copy of any varied licence, arising from such a variation, at the earliest opportunity. In the case of a general licence, any decision to vary or revoke the licence must be publicized in the same manner in which the original licence was published.

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