Minutes of Competent Authority Minister meetings (FOI)

Request

Please can you share the meeting minutes for all Competent Authority Minister Meetings that have taken place during the period 1 November 2020 to 21 January 2021.

Response

While we do hold minutes for the Competent Authorities meetings, 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; 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

• 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, especially given the pervasive impact of the pandemic on the lives of Islanders.

Public interest considerations favouring withholding the information

The meeting of the Competent Authorities is by its nature 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, especially during a pandemic, 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.

Items discussed at the meetings included discussions on legislation and public health guidance, business and community support measures, travel and borders, testing and vaccination programme, operational readiness, including schools and health services, and a range of other issues, including wider strategic public health discussions, as part of the government’s response to the pandemic and in the context of available statistical information as part of the deliberations on the development of policy.

Consideration is currently being given to regular reviews to ascertain the ability to move items to the public `A’ agenda, however no firm decisions have been made and it is not considered reasonable to withhold this response until the outcome is known.

The above 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.