Correspondence between the UK and Crown dependencies (FOI)

​Request

Recently a UK Tribunal judgement was reached in respect of disclosure of disputed documents involving the Crown Dependencies.

The case record for this is EA/2017/0281 and the Home Office have requested leave to appeal against this judgement.

A letter signed by three Crown Dependencies’ Civil Servants dated 31st August 2018 is a key part of this appeal.

Could you please state who initiated the idea of this letter with relevant dates?

Was it an official from one of the UK government departments or was it a Guernsey, Jersey or Isle of Man Civil Servant or Crown Officer?

Who composed the bulk of this letter and who else, if anyone, contributed to the writing of this letter?

Did all those signing the letter play a part in writing it?

Did any local politician suggest the writing of the letter, and if so, who?

Who authorised the putting together and participation in the joint letter?

Who authorised the sending of the letter?

Which local politician(s), if any, saw and authorised the letter to be sent out?

Was the issue of sending out a letter ever discussed and approved by any senior local politicians?

Was there any political contact on the subject of this letter by the senior responsible politicians of the respective Crown Dependencies?

In respect of all of the above, please disclose all records of all forms of communications on the subject.

In respect of the letter itself, why was it signed by three Civil Servants rather than three politicians? This was this was an intensely political letter.

Why did it use such threatening language in respect of the relationship / communications with the UK?

This was a letter effectively representing the States of Jersey, and as such was an embarrassment.

Why did the letter state untruths such as being unaware of the Tribunal until its decisions were announced?

Why did the letter give the impression that the Crown Dependencies are foreign governments, when they are clearly not?

The Crown Dependencies do have a great deal of autonomy but they are definitely British and to insinuate otherwise is very misleading.

Do not those responsible for the letter accept that Crown Dependencies’ citizens are British citizens and that ultimately the UK Parliament can, and has, legislated on Crown Dependencies’ matters, or do they want to pretend otherwise?

The British Islands are a UK Parliamentary legal entity.

The Crown Dependencies are clearly not like local authorities constitutionally, but in terms of terms of powers very similar to those of the Scottish government.

Why did the letter use the smokescreen of constitutional issues to attempt to justify keeping secret documents which an independent Tribunal had unanimously decided should be made public?

This is not a constitutional issue, it is an openness and transparency one.

Why do those behind the writing of the letter want to keep documents hidden from the public?

The Tribunal has seen the documents. There are no security issues at stake.

Why do those behind the letter writing want to have secrecy for secrecy’s sake, and not for any reason other than to serve the interests of government behind closed doors?

Did those behind the letter not consider that acting to prevent disclosure would undermine confidence in having an open government system?

Did they also consider the reputational damage which could be caused to the Crown Dependencies, giving the impression that they are secretive governments?

With all the pressures for the Crown Dependencies to further improve the conduct of their financial services sectors, did they do see that their secretive attitude could cause reputational harm?

Will there be a swift decision to either withdraw from this letter and inform the other parties accordingly, or to put this letter to the politicians for authorisation?

Will there also be a decision for the UK government and the Tribunal to be informed, that notwithstanding the decision of the UK Tribunal for the disclosure of the documents, that there is no longer any objection to their disclosure and there is respect and consent for this decision?

Finally, did not those behind the letter consider that in this late objection to the disclosure, that they were not just preventing non-disclosure to their own citizens, but those in the other Crown Dependencies and the UK as well?

Have those behind the letter decided that their own self- interest is more important than the public interest? And remember that the Tribunal ruled that it was in the public interest for disclosure.

I thank you for considering the above and look forward to the response.

Response

Your request contains a number of questions and makes a number of statements. The statements in your request do not require a response under the Freedom of Information (Jersey) Law 2011 (the Law).

Under the Law the public are entitled to ask for information that is held in recorded form. This does not mean that the Scheduled Public Authority is obliged to provide answers to questions. No question from number 11 onwards is a request for information held in recorded form. The scheduled public authority does not therefore hold the information requested.

In respect of the first 10 questions, we confirm we hold information in that regard.

We are able to release correspondence from the Minister for External Relations (MER) to States Members explaining the background to the case, "Mr Webber vs UK Information Commissioner and Home Office". The correspondence confirms that the MER authorised the officer letter to the UK Government (see annex below).

However, this subject relates to live legal proceedings, involving other jurisdictions. We are therefore unable to release further information at this time as this is exempt further to Article 41 of the Freedom of Information (Jersey) Law 2011.

Article applied

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.

Justification for exemptions

Article 41 applies to information that, if disclosed, would or would be likely to, prejudice relations between Jersey and the United Kingdom or inter alia a State other than Jersey. The Scheduled Public Authority (SPA) considers the disclosure of the information would be likely to prejudice such relations.

Article 41 is a qualified exemption, which means that a public interest test is also required to be undertaken by the scheduled public authority. It is therefore necessary for the scheduled public authority to examine the circumstances of the case. Following assessment the SPA has to decide whether, on balance, the public interest in maintaining the exemption outweighs the public interest in disclosing the information. Whilst disclosure of the information would ensure openness and transparency, the SPA is cognisant this subject relates to live legal proceedings, involving other jurisdictions and therefore, on balance, it is considered it would not be in the public interest to disclose this information at this time.

Annex

“Please see below an email from the Minister for External Relations:

Dear colleagues

I am aware that some of you have received correspondence from Mr Anthony Webber, who is pursuing the release, under the UK Freedom of Information Act (FOIA), of correspondence between the UK Home Office and the Crown Dependencies in relation to the UK’s Syrian Vulnerable Persons’ Relocation Scheme.

I will be responding to Mr Webber shortly, confirming the position taken in the letter co- signed by Jersey, Guernsey and Isle of Man officers had my full support and that I had authorised it. The position taken was also reviewed and cleared by our Attorney General.

Should you have any further concerns in respect of this, please do not hesitate to contact me directly.

Background

The Jersey Government undertook discussions with the Home Office in 2015 in relation to the Island’s potential participation in the above referenced Syrian refugee scheme. However it became clear that it would not be possible for Jersey to take part, without significant risk to our social policy provisions and infrastructure. A public statement on the outcome of our considerations can be found at:

Syrian crisis: Jersey's relief efforts

In August 2016, an FOIA request was made to the UK Government for the release of correspondence between the UK and CD governments in relation to this scheme. The UK Immigration Minister of the time decided it was in the public interest to withhold this information, on the basis that release might inhibit the effective conduct of public affairs (section 36 of the FOIA). Following an appeal, the Information Commissioner confirmed she was satisfied that the information should be withheld. The requester subsequently appealed to the Information Rights Tribunal.

On 1 August, that Tribunal held that the public interest was in favour of disclosure, thereby overturning the decision of the Information Commissioner and the Immigration Minister.

Recent engagement with the UK Government

Home Office officials contacted my officers (and those of the other CDs) on 17 August, indicating they would shortly be bound to either release correspondence held between the Home Office and the CDs, or appeal the judgement. They requested the CDs’ views.

In conjunction with the Law Officers’ Department, my officers reviewed the Tribunal’s decision, and the information to be released. While much of the information is already in the public domain, we had significant concerns about the basis on which the Tribunal had reached its decision. Specifically, the Tribunal had applied the public interest test as if the information related purely to a domestic UK matter, and treated the exchanges as analogous to communications between UK Government and local authorities.

Our view is that this is not acceptable, and could lead to a dangerous precedent in future FOIA decisions. Communications between UK Government and the CDs are of a different nature and different considerations should apply when considering the public interest test. Clearly the CDs are not analogous to local authorities, as indeed the UK Information Commissioner’s own guidance makes clear. Specifically, due consideration should have been given to the public interest test in respect of section 27 of the FOIA, which provides an exemption from the release of information if it would be prejudicial to international relations ie relations with a territory outside of the UK.

We consider this of the utmost importance given the sensitivity of discussions between national governments, particularly in view of Brexit. A precedent whereby an incorrect exemption has been applied in respect of the CDs could be extremely damaging in other circumstances, and risk undermining our current approach to free and frank correspondence with the UK.

In conjunction with counterparts in Guernsey and the Isle of Man, Kate Nutt, Group Director External Relations, contacted Home Office officers setting out these concerns. I authorised this action, it had my full support, and was also reviewed and cleared by our Attorney General. The decision on whether to appeal the Tribunal’s decision of course sits solely with the UK Government, and we were informed last week that the UK Immigration Minister had decided to appeal.

We await further detail on the timing, and I will of course keep you informed.

I hope the above serves to provide sufficient information, but as above, please contact me if you have any further concerns.

With Kind Regards

Ian”