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FOCUS: Ministers relent in battle to have confidential covid minutes scrutinised

FOCUS: Ministers relent in battle to have confidential covid minutes scrutinised

Thursday 04 November 2021

FOCUS: Ministers relent in battle to have confidential covid minutes scrutinised


Ministers’ discussions behind closed doors about how to handle the pandemic will finally be released for scrutiny after an overwhelming vote in favour yesterday.

Express has been campaigning for many months for minutes of meetings of the Competent Authority Ministers’ (CAM) – those who, legally, had the final say on all covid restrictions - to be released.

However, following challenges under the Freedom of Information Law, the Government decided that they should remain locked away, arguing that Ministers needed a ‘safe space’ for their discussions

In September, politicians tasked with officially reviewing the Government’s response to the pandemic argued that the minutes should at the very least be shared with them “in confidence”, to facilitate their review.

Scrutiny put forward a proposal in September, which secured backing from an overwhelming majority of States Members yesterday – despite an initial attempt by Ministers to water down their request. That attempt was later withdrawn.

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Pictured: Competent Authorities Ministers - External Relations Minister Ian Gorst, Economic Development Minister Lyndon Farnham, Chief Minister John Le Fondré, Health Minister Richard Renouf, Infrastructure Minister Kevin Lewis and Home Affairs Minister Gregory Guida.

The proposition was eventually agreed with 37 votes and five votes against. The Deputies who opposed releasing the minutes were Lindsay Ash, Grégory Guida, Rowland Huelin, Susie Pinel and Trinity Constable Philip Le Sueur.

Presenting the proposition to the States Assembly, Chief Scrutineer Senator Kristina Moore said releasing the minutes would enable “oversight and understanding of the decision-making in response to the covid pandemic."

“The proposition is simple: to assist Scrutiny in carrying out its functions to be the critical friend when required to provide confidence to this Assembly and to the general public of the decision making during the pandemic," she said.

While her motion secured the backing of a majority of States Members, the debate itself was nonetheless a heated discussion about transparency and accountability. Here, Express summarises the twists and turns...

The legal position 

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Pictured: There were concerns that the proposition would lead to legal advice from the Law Officers' Department being included in the minutes.

One of the main arguments advanced to oppose the proposition was that it would force privileged legal advice to be shared. 

Prompted by a question from the Deputy Russell Labey, the Attorney General, Mark Temple, said on Tuesday that the wording of the proposition, which requested the minutes to be shared “in confidence and without redaction”, would mean legal advice provided by the Law Officers’ Department to Ministers would have to be included. 

Some members, including Deputy Steve Ahier, however pointed out that it was never the intention for the Scrutiny Panels to see the legal advice and reminded such a precedent already existed for minutes of other meetings. 

On Wednesday, the Deputy Bailiff, Robert MacRae, ruled that legal advice could be omitted, as set out in the Scrutiny Code of Practice. He said there would need “clear words” in the proposition to “oust or set aside the constitutional convention regarding legal advice from the Law Officers’”. 

Critical friend or political enemy?

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Pictured: “Scrutiny is here as our critical friend not our enemy,” the Constable of St. Ouen and Assistant Chier Minister, Richard Buchanan, said.

The topic of the role of Scrutiny arose several times during the debate, highlighting how States Members’ views differ. 

“Scrutiny is here as our critical friend not our enemy,” the Constable of St. Ouen, and Assistant Chief Minister, Richard Buchanan, said.

“I think we should trust Scrutiny, we appoint them, they are ours,” Deputy John Young, the Environment Minister, added.

Deputy Kirsten Morel, the Assistant Minister for Economic Development, shared concerns that, under a Ministerial government, Ministers always want more power but with less accountability and transparency. He noted how some parties wanted Scrutiny out of the way and believe it is wrong “because it stops them achieving what they want in their temporary position”. 

The Home Affairs Minister, Deputy Grégory Guida, agreed that Scrutiny should be “a critical friend”. Whilst he said some of the panels were “very professional” and had “debugged his policies and come back with things he hadn’t thought of”, others were “disruptive” and “the opposition”.

The Chief Minister, Senator John Le Fondré, also suggested mistrust over Scrutiny arguing they had been the sources of leaks in the past.

Deputy Mike Higgins said that while he believed in Scrutiny being a critical friend, some of the work had been political. 

Deputy Rob Ward described the “lack of trust in Scrutiny” as “unfair and dangerous for our governance”. “In the future any attempt by any grouping, by any party, to undermine [Scrutiny] has to be resisted,” he added.

“If you want to stop criticism or accountability you are in a very dangerous position and you will not provide good governance because you will end up in an echo chamber of your views only.”

Do politicians need a safe space?

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Pictured: Some Ministers said they should have a "safe space" to discuss policies.

On behalf of the Council of Ministers, Chief Minister initially sought to amend the proposition by offering to provide “agendas, papers and actions agreed”, arguing that a “confidential safe space” was needed to provide “frank, candid and open discussions”.

“Ministers and officers must be at liberty to express their views, without being unduly influenced to give performative interventions for the sake of the minutes,” he wrote in his report. “Equally, participants could be dissuaded from giving an opinion or be circumspect with their advice for fear of looking foolish in hindsight.”

In the Assembly, he suggested if the minutes were released CAM discussions would be “weaker, potentially less candid and potentially less useful”. 

Several States Members disagreed with the view. Deputy Higgins said one should only say in private what they would say in public. He went on to say that given that officers are “really well-paid civil servants”, some earning three times what States Members earn, he would like to think “their advice is sought and wouldn’t be thought to be foolish”. 

Deputy Young said he wouldn’t have approved the Chief Minister’s proposal to water down Scrutiny's demand for the minutes, had he been given a draft as people shouldn’t think about ‘performing’ – “Do people think this is a theatre?” he said – or appearing foolish in Ministerial meetings.

For Deputy Morel, if a politician needs “a safe space”, they “really shouldn’t be a politician”.

“It’s that simple,” he said. “We stand up and put our heads above the parapet on a daily basis and it’s tough and there are times I know it’s been really tough, and I wondered if I should have kept my mouth shut.”

Avoiding misunderstandings

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Pictured: Some members expressed distrust for the media.

Deputy Guida said discussions about policy should be done “safely” and that, should the minutes be released, most of Ministers' discussions would end up taking place privately in the pub to avoid their words being taken out of context.

He argued this using the example of an incident about an interview in which he had discussed the fishing crisis and a French journalist had focused on his “10-second comment” about hoping the smoke from the island’s generators would blow towards France.

He said he disliked interviews, as “you know every word that you utter may and probably will be used against you in exactly the opposite way that you have tried to build over hours of conversation”. 

In her closing speech, Senator Moore offered a “small piece of advice”, saying it was “generally not a good idea to make inappropriate comments” either in Ministerial meetings or to the media.  

What are minutes?

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Pictured: Some of the speeches appeared to show a misunderstanding as to the nature of minutes.

Some of the speeches appeared to show a misunderstanding as to the nature of meeting minutes.

Luckily, several members took the time to explain the notion, with Deputy David Johnson summarising: “They are not a verbatim account”.

Deputy Morel said he was “amused” by the way minutes had been discussed as a “transcript”, arguing they are in fact an “outline sketch of the conversation that took place”.

“It doesn’t tell you in great depth what each Ministers said, how they insulted each other, how they threw their arms in the air in despair at the other’s ridiculous arguments,” he said.

The Minister for Infrastructure, Deputy Kevin Lewis, gave the most poetic interpretation describing them as “giving out a recipe by removing some of the contents”. “The minutes give a flavour of what went on,” he added, noting that this could lead to some misrepresentation.

Deputy Russell Labey however voiced concerns that the Assembly was “voting for something that says one thing and does the other”.

“It’s not our finest hour,” he said, stating that Jersey was the only place where “unredacted minutes” means minutes without legal advice.

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Posted by Philip Hudson on
What are they Hiding
Maybe we will now find out...
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