Ministerial Response - Processes within External Relations - 12 March 2021

Findings

Comments

1

There  are  a  number  of  groups  and bodies which advise, guide and direct the External Relations Department. Not all meetings are minuted and none are made  public.  The  Department  has advised that it will share minutes where they are available with the Panel on a confidential basis

It  is  correct  that  a  number  of  groups  advise, oversee, guide and direct the work of External Relations.

The  Minister  for  External  Relations,  in conjunction  with  the  Chief  Minister,  provides regular updates on external relations activity to the Council  of  Ministers,  ensuring  all  Ministerial colleagues  are  sighted  and  can  inform  the approach taken to relevant areas of international engagement.

Other key Ministerial groups providing direction and guidance to external relations activity include the International Advisory Group (IAG) and the Brexit Ministerial Group (BMG). As the Panel's report  confirms,  minutes  are  taken  of  these Ministerial meetings and are now being shared with the Panel on a confidential basis.

Where  there  are  officer  level  working  groups, these feed up into the work of Ministerial groups. Officer groups report into Ministerial meetings and the issues discussed are therefore also covered by the relevant Ministerial meetings and recorded in those minutes accordingly.

2

External Relations is governed by the Common Policy which does not require States Assembly approval. It was agreed by the Council of Ministers in 2012 and endorsed in 2015. The policy has not been published since 2015, despite there being a new Council of Ministers in 2018

Article 18(2)(c) of the States of Jersey Law 2005 states that a function of the Council of Ministers is  to  discuss  and  agree  their  common  policy regarding external relations.

The Common Policy was most recently published in  2015  and  remains  published  on  the  States Assembly  website  as  Government  policy.  The current Council of Ministers  continue to work

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towards the aims and principles of the Common Policy.

It is, however, agreed that each new Council of Ministers should discuss and publish its Common Policy, even if this is unamended from that of the previous  Government.  This  will  be  actioned following  the  formation  of  the  new Administration in 2022.

3

Within External Relations, there are a number of decision-making processes which require formal approval by the States Assembly. There are also less formal ways in which decisions can be made, for example memoranda of understanding, international conventions, arrangements and agreements.

Agreed.  It  should  also  be  noted  that  this  is  a position which is replicated across Government and across all jurisdictions globally. It reflects the fact that different instruments have different status in international and domestic law. For example, a non-binding MoU on non-mandatory cooperation between jurisdictions is quite different to a Tax Information Exchange Agreement which imposes obligations  on  the  sharing  of  confidential information between jurisdictions. A "one size fits all" approach is inappropriate for dealing with the broad range of instruments that External Relations is  involved  in  negotiating  on  behalf  of  the Government of Jersey.

4

Since the Panel announced its review, the Minister for External Relations has stated that he is planning to introduce a new process whereby decisions relating to free trade agreements are laid before the States Assembly. This would provide States Members with an opportunity to call-in the decision for formal States approval. The Panel believes that this will provide more checks and balances around decisions which have the potential to place long- lasting obligations on Jersey.

Agreed  and  confirmed.  The  proposed parliamentary  process  (achieved  through  an amendment to Standing Orders) would relate to all international agreements. The Assembly would be formally notified of agreements which a Minister intends to enter into on Jersey's behalf (which isn't the case at present) and, within 21 days of notification, a Member would be able to lodge a proposition  requesting  that  the  States  debate whether  the  Minister  should  take  the  intended action.  It  should  be  clarified  that  amendments couldn't be made to the text of an agreement – the process would be similar to that which is available to Members for the annulling of an Order.

The option would be available to a Minister to call a States debate themselves in lieu of following the 21-day  notice  period.  Where  a  Minister  finds themselves in a situation where they are unable to either follow the 21-day notice period or call a States debate, there would be requirements for a report to be presented to the States and a statement

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made by the Minister at the next sitting to explain the reasons why.

A  similar  notification  procedure  will  also  be included  for  scenarios  where  a  Minister  is intending  to  withdraw  Jersey  from  an international agreement.

Advance  notice  to  scrutiny  prior  to  the States being notified in either respect (entering into or withdrawing from an agreement) is built into the Standing Order process.

5

There are a number of international instruments that have been extended to Jersey, but which may not be subject to formal compliance procedures, including the five-yearly update process which appears to lack formality. As a result, some agreements and extensions may be made without governance procedures in place to ensure the terms of those agreements are adhered to or monitored

It is correct to say that at present, a number of departments do not monitor their compliance with treaties relevant to their policy area, especially if they were signed up to over 5 years ago.

It's  not  the  case  though  that  we  would  miss obligations to report. The UK is the state party and therefore responsible for any reporting obligations to  the  depository.  Therefore,  when  there  are reporting  requirements  the  UK  makes  contact with  officials  in  Jersey,  including  through  the Head of International Compliance if they do not have a relevant departmental contact.

6

The Minister for External Relations (and any Minister) makes decisions under affirmative and negative procedures. For example, legislation laid under the affirmative procedure must be actively approved by the States Assembly (laws and amendments). Any legislation laid under the negative procedure becomes law on the day the Minister signs it (Ministerial Orders) and automatically remains law unless a motion to reject it is agreed by the Assembly.

This is correct and, it should be noted, applies to all Ministers across the Government.

7

The functions of the Chief Minister include the conduct of external relations in accordance with the Common Policy agreed by the Council of Ministers. In that regard, the Chief Minister and the Minister for External

Agreed and correct.

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Relations hold concurrent responsibilities for the conduct of external relations. Whether external relations matters are conducted by the Chief Minister or the Minister for External Relations, they are conducted in accordance with the Common Policy.

8

In terms of autonomy, the Minister for External Relations is able to act independently when meeting representatives of foreign Governments. The issues discussed, however, will often be raised on behalf of other Ministers or the Council of Ministers

The Minister for External Relations cannot act independently when meeting representatives  of foreign Governments.

The Minister must always act in accordance with the legislative and policy functions of the office, and in accordance with the Common Policy for External Relations when representing Jersey in meetings  with  representatives  of  foreign Governments. It should be kept in mind that all Ministers are corporations sole, and a Minister therefore  cannot  in  practice  act  independently outside  of  the  remit  of  their  office  or  agreed Government policy.

The Minister for External Relations will indeed raise issues on behalf of other Ministers, or the Council of Ministers, and in doing so will act in accordance with the agreed Government position in respect of the issue at hand.

9

Although Scrutiny is briefed and informed of some external affairs matters, some decisions are made without any processes in place to inform Scrutiny. Since the Panel raised this with the Minister, he has committed to sharing future MoUs and agreements with Scrutiny.

External Relations have made, and continue to make, extensive efforts to ensure Scrutiny, and indeed all States Members, are proactively kept regularly  informed  of  its  work,  including  on policy, legislation, and topical matters. This has included through States Assembly reports, public scrutiny  hearings,  private  scrutiny  briefings, sessions  with  all  States  Members  and  regular written Brexit updates.

More recently, the Minister has agreed to provide the minutes of the Brexit Ministerial Group and International  Advisory  Group  meetings  to  the Panel in confidence.

As part of enhancing this work, the Minister has agreed to ensure the Panel are given prior notice of any arrangements or agreements which it is

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intended for Jersey to enter into and with which External Relations are the lead department. This will accordingly be covered by, and built into, the proposed parliamentary notification procedure.

In  instances  where  other  departments  are  the signatories  to  international  arrangements  or agreements,  External  Relations  will  use  best endeavours to ensure prior notice is given to the Panel.

10

There is a dedicated area on External Relations on the gov.je website. Although information is provided on the site, there is no consistency as to what is published, and some areas are out of date. This could lead to a misconception from the public about the levels of activity within the Department. It can also lead to disengagement from the public by the Department.

The External Relations part of the gov.je website is currently being reviewed and updated. It is recognised this should be undertaken on a more regular basis.

11

A previous Scrutiny report recommended that an annual report on external relations matters be published by the Minister. This was accepted at the time, but only one annual report has been published since the ministerial role was created.

As the Panel have recorded, a Ministerial report covering  the  work  of  the  External  Relations Minister from September 2013 to January 2015 was published as R.15/2015.

The need for more regular updates on External Relations activity was recognised following the UK's  vote  to  leave  the  EU  in  2016,  and subsequently Brexit Information reports/updates have been presented to the Assembly at 6-monthly intervals, the first in June 2016. These reports have also covered other areas of work and activity from the external relations portfolio, including the Global Markets Programme.

It should also be noted that the Global Markets strategy was published 2017 and updated in 2019.

In  addition,  External  Relations  has  undertaken extensive work to ensure the public and business are  sighted  and  informed  of  cross-government activity in relation to Brexit impacts, including ongoing two island-wide campaigns – Let's Talk Brexit (launched in 2016) and Let's Talk Trade (launched in 2019).

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Following the conclusion of the Brexit process, the Minister will return to the arrangement of presenting  an  annual  report  to  the  States Assembly,  as  set  out  in  the  response  to recommendation 7.

Recommendations

To

Accept/ Reject

Comments

Target date of action/ completion

1

The Common Policy should be reviewed when a new Council of Ministers is established. Once endorsed, the Common Policy should be debated and approved by the States Assembly. This would ensure that Jersey's external affairs are conducted in accordance with a Common Policy which has been agreed by the Assembly as a whole, and not just by the Council of Ministers.

ER Min

Partially Accept and Partially Reject

As referenced above, it is agreed that that  each  new  Council  of  Ministers should discuss and publish its Common Policy, even if this is unamended from that of the previous Government.

Jersey  is  a  self-governing  democratic jurisdiction, but the Bailiwick is not a sovereign  state  and  therefore  cannot generally  bind  itself  internationally without  the  consent  of  Her  Majesty's Government.  The  conduct  of  foreign affairs is ultimately a prerogative of the Sovereign, exercised on the Sovereign's behalf by HM Government.

Furthermore,  the  conduct  of  external relations by Jersey, and specifically the building  of  relationships  between  the Government  of  Jersey  and  partner governments, is evidently a day-to-day duty of the executive.

Whilst  the  current  arrangements  for agreeing  and  implementing  Jersey's external  relations  policy  are  therefore seen as constitutionally appropriate, the Minister  recognises  that  some  States Members  who  are  not  part  of  the executive  may  wish  to  have  greater discussion  on  the  development  of  the external  relations  common  policy.

An in- committe

e debate on the Common Policy to take place following the formatio n of a new Council of

Ministers after the 2022 General Election.

Recommendations

To

Accept/ Reject

Comments

Target date of action/ completion

Accordingly, the Minister would support a proposal for an in-committee debate prior to each new Council of Ministers agreeing  and  publishing  its  common policy,  ,  so  that  the  views  of  States Members  can  be  properly  taken  into account before the policy is confirmed and implemented by the executive.

2

The Minister for External Relations should ensure that the new process whereby decisions relating to free trade agreements are laid before the States Assembly is introduced before the end of 2020.

ER Min

Accept

Regrettably, due to the pressures around the  negotiation  and  agreement  of  the UK-EU  Trade  and  Co-operation Agreement,  and  the  subsequent confirmatory  period,  it  has  not  been possible to meet the requested deadline of the end of 2020.

A  new  process  to  provide  for  the Parliamentary  ratification  of international  agreements,  through  an amendment to Standing Orders, will be lodged  imminently.  Drafting  has commenced  and  Scrutiny  will  be notified  informally  (in  advance  of lodging) in the next few weeks.

An amendme nt to Standing Orders to be debated before the summer recess.

3

The Minister for External Relations should introduce a process by which the Department tracks and monitors departmental reviews of compliance with international agreements and conventions. This would reduce the risk of being unintentionally outside compliance of an agreement. A formal process should be introduced before the end of Q1 2021.

ER Min

Partially Accept

External Relations monitors and tracks compliance  with  international agreements and arrangements for which the Minister for External Relations is the lead signatory.

External  Relations  supports  other departments  in  ensuring  international agreements are extended to Jersey in an appropriate  and  timely  fashion.  It  is, however, the responsibility of the lead policy department to ensure compliance with each agreement.

The Ministry is conducting an exercise to  review  and  list  the  international Treaties  that  have  been  extended  to Jersey.  The  detail,  which  is  being published  on  gov.je,  will  assist

Ongoing

Recommendations

To

Accept/ Reject

Comments

Target date of action/ completion

departments in ensuring they have full sight  and  understanding  of  the international agreements for which they are accountable.

4

The Minister for External Relations and Scrutiny should introduce a formal engagement and disclosure process which includes set timelines and covers the full range of instruments, agreements, conventions, arrangements and MoUs to which the Minister signs up. A discussion with the Minister on this matter should take place

in Q4 2020.

ER Min

Neither accept or reject

The  Minister  will  seek  to  set  up  a discussion with the Chair at the earliest opportunity to discuss in more detail the intention behind this proposal.

As  already  referenced, External Relations have made efforts to ensure Scrutiny, and indeed all States Members, are proactively informed of its work.

It  is,  at  present,  not  clear  how  this proposed  process  could  meaningfully add to the existing programmes of public and  private  hearings/briefings  and  the regular  sharing  of  information  that  is already in place, and is to be enhanced as referenced  in  this  response,  including through the new Standing Order process for  the  ratification  of  international agreements.

Meeting to be set up as soon as possible

5

The Minister for External Relations should ensure that an Officer is designated responsibility for maintaining the Department's page on the website and that those pages are maintained in an up to date and informative fashion.

ER Min

Accept

The Minister recognises the importance of ensuring External Relations webpages are updated on a regular basis.

An officer within the Communications team supporting the Office of the Chief Executive  has  been  designated  this responsibility.

Ongoing

6

The Minister for External Relations should ensure that the Department formulates a code of conduct for

ER Min

Reject

It  is  not  seen  as  appropriate  for  one Minister to develop a code of conduct for public  engagement  –  any  such  code should  be  agreed,  and  apply,  across Government.

N/A

Recommendations

To

Accept/ Reject

Comments

Target date of action/ completion

public engagement which indicates the appropriate level of information to be published and the timeframes within which it should be published. A copy of the code should be introduced before the end of Q1 2021 and provided to Scrutiny for feedback prior to it being approved

This recommendation will be referred to the Chief Minister for consideration as to whether  further  consideration  to  it should be given by the full Council of Ministers.

7

In addition to the current methods of public engagement, the Minister for External Relations should publish an annual report, at the end of every year, on the work of the Department, visits undertaken during the year and any key decisions made on international affairs matters.

ER Min

Accept

As referenced above, the Minister will return to the arrangement of presenting an annual report to the States Assembly. This is timely as the need for the six- monthly Brexit update reports has come to an end.

The Ministry commits to publishing the requested  detail  on  its  work  for  the preceding year, either as  a standalone report or as part of the Government of Jersey's  Annual  Report,  whichever  is deemed the most appropriate.

Detail  of External Relations 2021 activity to  be published either  as a standalon e  report by 31 Jan 2022,  or as part of GoJ's Annual Report.