PPC Minutes 9th February 2010

A-CH/SC/064  170

PRIVILEGES AND PROCEDURES COMMITTEE (50th Meeting)

9th February 2010

PART A

All members were present.

Connétable J. Gallichan of St. Mary, Chairman

Senator B.I. Le Marquand (not present for parts of item A1. Not present for items A2-A7 and B1-B4 inclusive)

Deputy J.B. Fox

Deputy J.A. Martin

Deputy C.H. Egré (not present for item B1)

Deputy M. Tadier (not present for the conclusion of item A1; not present for items A3-A7 inclusive)

Deputy M.R. Higgins (not present for the conclusion of item A2; not present for items A3-A7 and B1-B4 inclusive)

In attendance -

M.N. de la Haye, Greffier of the States

Mrs. A.H. Harris , Deputy Greffier of the States

Miss A Heuston, Clerk to the Privileges and Procedures Committee

Note: The Minutes of this meeting comprise Part A and Part B.

Draft Freedom of A1.  The Committee, with reference to its Minute No. A4 of 26th February 2010, Information gave further consideration to the Draft Freedom of Information (Jersey) Law 201-. (Jersey) Law

201-. The  Committee  welcomed  Mr.  C.  Borrowman,  Assistant  Law  Draftsman,  and 670/1(14) considered the following areas:

DGOS a)  R esponse time (R.114/2009 – Articles 11 and 12)

It was noted that the States might, by Regulations, prescribe different periods for the provision of information for different public authorities or any part of a public  authority,  such  as  schools  or  certain  functions  of  the  police.  It  was therefore agreed that no amendment was required in respect of the comments of Education,  Sport  and  Culture,  the  States  of  Jersey  Police  and  the  Jersey Financial Services Commission in this regard.

2. Cost thresholds

It was noted that cost thresholds were to be provided for in Regulations. In addition,  Article  47(1)(a)  would  empower  the  Information  Commissioner  to consider an appeal relating to fees payable for the provision of information.

3. Supply of information held for a long time (R.114/2009 – Article 19)

It was noted that there may be occasions when certain information should not be released even after a long period, and it was agreed that some flexibility should be incorporated into this area through the addition of the following paragraph:

(3)  Regulations  may  exempt  any  information  from  the  provisions  of paragraph (1) or (2)

4. Court information (R.114/2009 – Article 23)

It was agreed that the exemption to allow courts and tribunals to decide what information should or should not be released in respect of proceedings before it should not be amended. The Committee felt that the fact that a matter may be death related was not, of itself, relevant.

5. Personal information (R.114/2009 – Article 24) The Committeenoted the concernsoftheData Protection Commissioner and agreed that the Article should be expanded to allow for appropriateinteraction with theData Protection (Jersey)Law 2005.
6. Legal professional privilege (R.114/2009 – Article 30)

The  Committee  reconsidered  whether  this  should  be  restricted  information. Notwithstanding  advice  received  from  the  United  Kingdom  (U.K.)   Deputy Information Commissioner that in practice, although qualified in the U.K., this information tended not to be released, the Committee agreed to retain this as qualified exempt.

7. Advice from the Bailiff or a Law Officer (R.114/2009 – Article 37) The  Committee reconsidered whether this  should  be restricted information. Notwithstanding  advice received  from  the United Kingdom (U.K.)  Deputy Information Commissioner that in practice, although qualified in the U.K., this information tendednot to be released, the Committee agreedto retain this as qualified exempt.
8. Information intended for future publication

The Committee agreed a provision, as follows –

Information intended for future publication

1. I nformation is qualified information if at the time when the request for the information is madethe information is being held by a scheduled public authority with a view to its beingpublished within the next12 weeks.
2. A scheduled public authority that refuses an application for information on this groundmustmake reasonable efforts toinform the applicant –

1. o f the date when the information will bepublished;
2. o f the manner in which it will bepublished,and
3. b y whom it will be published.

3. I n this Article, "published" means published –

1. b y a public authority; or
2. b y anyother person.

9. Free and frank provision of advice by officers

The Committee rejected the insertion of a provision, having noted that, in certain cases,  this  would  be  covered  by  other  provisions,  such  as  formulation  and

development of policies.

10. Reputational damage

The Committee noted the comment of Jersey Finance which considered there to be a lack of provision to provide protection against reputational damage for the Island, but rejected the insertion of a provision.

11. Audit Functions (R.114/2009 – Article 34)

The Committee noted that certain of the key functions of the Comptroller and Auditor General were not covered by the exemption as drafted, and accordingly agreed as follows –

Audit functions

1. I nformationisqualified information –

1. i f itis held by a scheduled public authority mentioned in paragraph (2); and
2. i f its disclosure would,or would be likely to, prejudice the exercise of any of the authority's functions in relation to a mattermentioned in paragraph (2)(a) or (b).

2. A scheduled public authority referred to in paragraph (1) is a scheduled public authority that hasfunctionsin relation to –

1. t heauditof the accounts ofanotherpublic authority; or
2. the examination of the economy, efficiency and effectiveness with which another public authority uses its resources in discharging its functions.

3. Information is also qualified information –

1. i f itis held bytheComptroller and Auditor General; and
2. i f its disclosure would,or would be likely to, prejudice the exercise of any of his orher functions.

12. Investigations and proceedings conducted by a public authority

The Committee noted that Section 30 of the U.K. Freedom of Information Act included a qualified exemption for investigations and proceedings conducted by Public Authorities. It was noted that this was covered by Article 42 of the legislation, as drafted in R.114/2009, and therefore no further action was required.

13. "State" (R.114/2009 – Article 39)

Having noted the comments of the Deputy Bailiff and the Jersey Financial Services Commission regarding the definition of "state", it was agreed that this should be revised, to read as follows –

"'State' includes the government of a State and any organ of its government, and references to a States other than Jersey include references to a territory for whose external relations the United Kingdom is formally responsible."

14. Parallel with the Jersey Competition Regulatory Authority (J.C.R.A.) It was agreed that the parallel drawnwith the J.C.R.A. in R.114/2009 regarding the role ofthe Information Commissionerwasnot a matter for the Committee and should be dealt with separately.
15. Concern regarding level of detail required for an appeal (R.114/2009 – Article

42)

The Committee noted the concerns raised in submissions in respect of the level of detail required for an appeal, and it was agreed that the Article should be amended.

16. Liability for prosecution (R.114/2009 – Article 45)

The Committee discussed the concerns raised in submissions in respect of this Article,  and  noted  that  it  would  be  a  crime  to  destroy  information.  It  was accordingly agreed that no amendment was required.

17. Regulations Article 49

The Committee noted a comment that this Article was widely drafted, however, it was accepted that this was a normal provision and no change was required.

The  Committee requested  the  Assistant  Law  Draftsman  to  update  the  draft Freedom  of  Information  (Jersey)  Law  201-, for  further  consideration  at  the Committee's next scheduled meeting. It was agreed that the Committee would also give further consideration to the draft Regulations at a future meeting.

Having been thanked by the Chairman for his attendance, the Assistant Law Draftsman withdrew from the meeting.

The Committee authorised the Deputy Greffier of the States to write to those who had made submissions to advise them of the Committee's decisions in the relevant areas.

Information A2.  The Committee, with reference to its Minute No. A8 of 26th January 2010, technology considered whether to forward details of the corporate BlackBerry contract to all provision for States members, as well as the ruling of the Bailiff regarding the use of laptop States members. computers and BlackBerries in the States Chamber.

1240/9/1(137)

1240/26(9) The Committee discussed whether Scrutiny should consider providing BlackBerries

for its members, however, it was noted that this would preclude members who were not part of Scrutiny or the Executive from having the device provided for them. One member expressed the view that the decision on the provision of BlackBerries should rest  with  the  States  Members' Remuneration  Review  Body.  It  was agreed  that research should be carried out to establish how the use of BlackBerries was regulated by the Executive.

The Committee also discussed the use of electronic equipment in the States Chamber, with regard to the ruling of the Bailiff on 20th January 2010. Deputy C.H. Egré agreed  to  research  the  possible  use  of  Apple  iPads  and  to  report  back  to  the Committee in early course.

Rôle of un- A3.  The Committee, with reference to its Minute No A10 of 9th October 2009, elected members received  correspondence,  dated  29th  January  2010,  from  Lord  R.  Carswell, of the States. Chairman, Review of the Rôles of the Crown Officers.

1240/6(56)

The Committee recalled that a review had been established by the States to consider the rôles of the Bailiff , Deputy Bailiff , Attorney General and Solicitor General, and noted that the Panel had requested a submission from the Privileges and Procedures Committee.

The  Committee  discussed  the  areas  which  it  might  be  able  to  comment  upon collectively,  and  agreed  that  this  would  be  limited  to  procedural  matters.  For instance, should a member of the Assembly be appointed to Chair meetings of the States, this would result in that member being unable to vote. It was considered that matters such as this were self-evident and it was not felt appropriate to formulate a Committee view in respect of more in-depth consideration of the rôles of Crown Officers.

It was accordingly agreed that the Committee did not wish to make a collective submission,  as  this  was  a  matter  for  individual  members.  The  Chairman  was requested to write to Lord Carswell to advise him accordingly.

The Committee Clerk was directed to take the necessary action.

Committee of A4.  The Committee considered the proposition: Committee of inquiry: suspension inquiry: of  the  Chief  Officer  of  the  States  of  Jersey  Police,  lodged au  Greffe' on  2nd suspension of the February 2010 by the Deputy of St. Martin (P.9/2010 refers).

Chief Officer of

the States of The Committee noted that paragraph (b) of the proposition asked the States to decide Jersey Police. whether they were of opinion to appoint persons detailed therein as members of the P.9/2010 proposed Committee of Inquiry. The Committee had regard to the provisions of the 1075/4/1(235) Jersey Appointments Commission code of practice for appointments to autonomous

and quasi-autonomous public bodies and tribunals, and agreed that the principles set out in the code should be applied.

The Committee noted that the report accompanying the proposition did not detail the appointments process followed by the Deputy of St. Martin to identify the individuals specified. The Committee therefore agreed to present a Comment to the States in respect of the proposition, requesting the Deputy of St. Martin to provide information detailing the appointments procedure followed and asking that the proposition be amended, if necessary, to ensure that the correct process could be pursued should the States be minded to adopt paragraph (a) of the proposition.

The Committee Clerk was directed to take the necessary action.

Correspon-dence. A5.  The  Committee  noted  the  following  correspondence,  sent  following  the

meeting of 26th January 2010:

499/3(22)

499/3(26) (a)  t o Mr. B.R. Cooper dated 27th January 2010 (Minute No. A9 of 26th 465/1(136) January 2010 refers);

2. t o Deputy T.M.Pitmandated 29th January 2010 (MinuteNo.B2 of 26th January 2010 refers);
3. t o all States Members from Deputy C.H.Egrédated 29th January 2010 (Minute No.A5of 26th January 2010refers).

Work A6.  The Committee noted its on-going work programme, as follows: programme.

1. t o continue to develop the draft Freedom of Information (Jersey)Law 201-;
2. t o discuss the single election dayand free mailing for election candidates with Senator P.F.C. Ozouf at the Committee'smeetingon 16th March 2010;
3. t o receive updates from the Public Elections WorkingParty, the Media

Working Party and the States Business Organisation Sub-Group.

4. to await further information from Property Holdings in respect of Standing Order168 "Land Transactions";
5. t o considerresponses to its Report: States Members' Pension Scheme, presented to the States on 30th November2009(R.132/2009refers).

Matters arising. A7. The Committee noted the following matters arising:

F.A.M. (i) c oncern was expressed in respect of the position of the kettle in the

members' room with regard to health and safety standards;

2. it wasagreed that Property Holdings should be contacted to confirm that the 2-wayradiosintheStatesBuilding, to be used in the eventof a fire, met the required standards;
3. it was agreed that all non-executive members should receive a presentation in respect oftheComprehensive Spending Review.