Just a post to reproduce Daniel Wimberley's first submission to the Electoral Commission in which he addresses the commissions response to our request for more information as well as outlining his other problems with how the commission is working right now. I endorse every word he says.
I gave evidence to the commission on Monday. It was incredibly clear that by far the most valuable members of the commission were the non-States Members. They asked the best questions, they seemed to be the most informed (Deputy Baker didn't even know how many deputies St Helier has) and appeared to be the most engaged in the process (Senator Bailhache was an hour late).
The transcript will be available soon and I will post it here. But in the next few days there is going to be an announcement on a new campaign group for all of this. More details, hopefully on Monday!
Thanks
Sam
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http://www.electoralcommission.je/wp-content/uploads/2012/06/Wimberley-Daniel2.pdf
SUBMISSION TO ELECTORAL COMMISSION
Submission No: 175
From: Mr. D. Wimberley
Dated: 13 July 2012
Submission:
PRELIMINARY SUBMISSION TO THE JERSEY ELECTORAL COMMISSION
Daniel Wimberley
Friday, 13 July 2012
- - - - - - - - -
Before writing my main submission I would be grateful for answers to the following
questions:
1 Will the commission conduct research to find out how much work is done
by the different classes of member we currently have in the States, and publish the results soon in a form that is accurate, clear and transparent?
The reason for this is simple – the public need to know this, obviously, if they are to
make an informed judgement about the current classes of member, and which ones might be kept and which not.
I am aware that you have been asked to do this by a number of people already. I would
add my voice to theirs. I never seem to read in the JEP of proposals brought to the States by Constables (with the exception of Constable Crowcroft) . They never seem to be taking the lead in Scrutiny. The reports of questions rarely feature their names. Very few were or are Ministers.
It is obviously vitally important for the review of the composition of the States that you
find out the truth on this. Only with this information can an informed view be taken.
I also request that you publish the results quickly, (especially as it is not a difficult piece
of research to do) in time for further debate and analysis to take place amongst the public.
This request is perfectly reasonable You have rejected this request with arguments that
are manifestly absurd and throw into doubt the credibility and good faith of the Commission.
In other words, if the arguments you advance are so nonsensical then the question
arises – what is the real reason for the refusal?
You have said a) that if you were to grant one request for you to do something, then you would have to
grant all other requests. And following on from this, you have said b) that there would not be enough time to do that. (More precisely you have implied that – for the exact wording of the form reply which was sent out by the Commission, see footnote 1
On your reason a) for not doing the research, the simple point to make is that you have
received no other requests, so this sounds rather like a pathetic excuse. But more importantly, does the commission have a brain? Are you really saying that you have to do anything which anyone asks you to do? No, you make the judgement about whether the request is a good one and should be granted.
A moment’s thought shows reason a) to be utter nonsense. Imagine a teacher who said
to little Johnny asking to go to the toilet, “no, sorry son, you cannot go, because if I said yes, then I would have to say yes to the next person in the class, whatever they ask me, like, say, ‘can we all go home now?’ “ Or a judge never granting a lawyer’s request on the basis that he would then have to grant all the requests made by that lawyer. Absurd!
No the teacher and the judge decide each request on the merits of the case. And so
should the Commission. All you have to ask yourselves is: is this request well-founded? Does it help the public to understand the issues? Is it feasible? Is it not inordinately expensive? The answer to all three questions is yes, and so you should agree to do this research
If just one person had asked you to do it, then if it is the right thing to do, then you should agree to do it. However it does give added weight to the request that many people have made it.
In response to your reason b), again this is palpable nonsense. Did you ask for an
estimate of how long this research would take? How come there is time to ask experts to produce reports for the Commission, but not time for this simple piece of work to be done?
So, to recap, the question is:
“Will the commission conduct research to find out how much work is done by the
different classes of member we currently have in the States, and publish the results in a form that is accurate, clear and transparent?”
You have suggested that members of the public do this research themselves, in their
own time. You are the Commission, and you have the administrative support, and the budget which allows for this research to be done.
1
“As you may know the Commission is working to a very tight time-scale because the States have directed
the Commission to present its report before the end of the year. If the Commission was to carry out research for one individual, it would obviously have to agree to do the same for any other individual making such a request.
The Commission is unwilling to enter into a commitment of that kind.”I can offer to carry this out on your behalf, to a properly agreed specification, in a neutral
and correct manner. My research drew frequent praise in the States and I know my way around! It is not difficult, but it is time-consuming. I estimate that the collection and tabulating the data would take between two and three weeks. For a full description of what this research should include, please see Appendix 1.
2 Your consultation document entitled “The reform of Jersey’s States
assembly” goes through the classes of member one by one and says a few words about the number of members in the States. There is no explicit mention or discussion of the fundamental principles of electoral reform or of the purposes of having elections, and so there is no context to help people understand the issues and come to a view. Why is this?
Why are we doing this reform? Elections have a purpose. Without a purpose, the
discussion of more or less of this or that class of member is meaningless. Without such a context how can people understand the issues? And if they do not get to grips with the issues, then they are unlikely to modify their positions, which will be essential if we are to create a reasonable consensus on the way forward.
2
There are also certain fundamental principles underlying elections. For example “Every
schoolchild in Germany is taught that elections to the German Bundestag are general, direct, free, equal and secret. But what does that mean in practice?” (From http://www.bundestag.de/htdocs_e/bundestag/elections/index.jsp)
If the relevant fundamental principles had been worked on by the Commission and
stated in the consultation document, then the public would have had a framework to guide their thinking, or with which to disagree.
2
For ease of reference I have described these purposes as follows. The first is “to arrive at a
representative Assembly which accurately and fairly reflects the wishes of the people, so far as this is possible.” (Report for P15/2011paragraph 1.) As I am sure you are aware, this is not just a matter of proportionality.
And the second purpose is to pass a verdict on the government and to have a say in the formation
of that government. I stated this purpose in my opening speech on P15/2011:
“A member of the public said to me as I was preparing for all this, he said to me: ‘I do sometimes
think it is not worth voting, it is just a waste of time, it is not going to make any difference.’ That was not from someone who wants to be put off the electoral process, it was from a politically interested retired worker from the finance industry. He also said: ‘Many of my friends have come to that conclusion, they do not vote, I still do.’ So he has not lost hope, but I think we need to listen to that cry quite carefully because he is telling us something very important. There should be a link between the vote or votes the voter casts in the polling booth and the end result that matters most to voters, which is who gets to have decision making powers in their jurisdiction. But in Jersey, as things stand, the public does not vote the Government in or out and this weakens the mandate of Ministers and the Chief Minister. They cannot tell the world honestly that they or their colleagues have won the election. They do not have direct legitimacy from the voters.”
Hansard for debate on P15/2011 (my emphasis)
A fuller statement of this function of the electoral process is at P15 Amd. (2) Report page 3
section “Amendment 1”:So why are the fundamental principles and the purposes of holding elections nowhere to be seen in your consultation? A consultation on an issue such as electoral reform, without context being given, is likely to produce a shotgun effect of responses.
And if the answer is that you were waiting for your experts to advise you on these
matters, then why was the consultation launched before the public could be given the benefit of that advice?
3 Has the issue of “how do we promote a debate on electoral reform
throughout society,” ever been on the Commission’s Agenda? If so, what strategy has been agreed?
Promoting such a debate is absolutely vital if the Commission is to succeed in devising
a package which will command public acceptance. I explained this in my response to the former PPC’s consultation paper R54/2011 on possible options for the Electoral Commission.
The chairman has seen this document as it was sent as an attachment to the
memorandum which I sent to the current PPC on January 9 th this year, and which was minuted as “noted” by that committee.
However, in case members of the Commission have not seen it, I attach it to this
submission. See especially sections 2 and 3. This quote gives a flavour of the content:
“3.5 So, that is the first aspect – a Commission which goes out of its way to
engage with the public, indeed sees that engagement as essential to its success”
4 Has the issue of “what are the fundamental principles of electoral reform?”
ever been on the Agenda, and if so, where can the public see the outcome of those discussions?
It is difficult to see how you can conduct hearings without having overtly considered this.
Of course I am not saying that those discussions would lead you to firm conclusions. I
am saying that it is difficult for you to develop an intelligent approach to questioning those giving their views to the Commission without having considered these issues beforehand.
And these fundamental principles should have figured in the Consultation leaflet (see
Question 2, above)
5 Have any of the expert advisers mentioned in your Minutes of your first
meeting on May 17 th been appointed? If not, why not? If so, who are they? And what work have they been asked to do?
6 Will their work be published as soon as it is completed?
7 Why was the public consultation begun before the expert critique of the
present system and other work had been completed and available to the public?
This is the normal procedure. For example the consultation on the future of the Health
Service was preceded by expert analysis of the issues facing Jersey, and rightly so. How can the public be expected to give their views without a clear statement of the issues involved?
8 What steps have you taken to ensure that your processes and methodology
are free from bias, as far as this is possible? Other bodies with important jobs to do, particularly jobs where bias or perceived bias is an important issue, take great care to ensure freedom from bias. For example the Appointments Commission, which has to be scrupulously free from bias and seen to be so, has the following four guiding principles:
“Recruitment principles:
- Prospective applicants must be given equal and reasonable access to adequate
information about the job and its requirements and about the selection process;
- Selection techniques must be reliable and guard against bias;
- Selection must be based on objective criteria applied consistently to all
candidates;
- Applicants must be considered equally on merit at each stage of the selection
process.”
(JERSEY APPOINTMENTS COMMISSION, RECRUITMENT CODE, Version 3, March
2012, section 1.1, my emphases)
Again I covered the importance of this and how it could be resolved in my response to
the former PPC’s consultation paper R54/2011 on possible options for the Electoral Commission (attached). See section 6 entitled “INDEPENDENCE”
The way that the appearance of any bias could be avoided and a fair process be
guaranteed is set out clearly in my memorandum to PPC of January 9 th this year, at Paragraphs 29 – 33. I attach this memorandum, again in case members of the Commission have not seen it.
CONCLUDING REMARKS
Question 1 is a substantive request and needs no further comment. But the other questions
are about process. How is the Commission carrying out its task?
3
I ask these questions for two reasons.
First, in order to prepare my main submission I feel that I need to know how the Commission
is approaching its task. Otherwise it is difficult to decide what to say or how to say it. Second, the answers to these questions, which concern how the Commission is approaching its task are matters of public interest.
3
You could always walk away like our Comptroller and Auditor General when his process was questioned!
But surely it is better to simply face up to the implied criticism and justify your position.There is considerable disquiet about the way the Commission was set up. In total disregard
of the original intention that the Commission be “independent” it is now dominated by politicians. In total disregard of the original intention that the Commission be comprehensive and tackle the issue of electoral reform in the round, the Terms of Reference were cut in half.
So these questions are a sort of check-up: can the public believe the Commission is acting
in good faith? How is the Commission doing its job? I case you might be tempted to resist answering these questions, I would remind you that the Nolan principles developed by the Committee for Standards in Public life state, inter alia:
• Accountability Holders of public office are accountable for their decisions and
actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.
• Openness Holders of public office should be as open as possible about all the
decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands it I have taken great care with this letter. I am sure that I need not remind you of how important it is for Jersey that we get this matter of electoral reform right. I look forward to your reply.
Daniel Wimberley
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Attachments
COMMENTS RE R54 “ELECTORAL COMMISSION: POSSIBLE OPTIONS”
MEMORANDUM to Constable Simon Crowcroft, chair of PPC and all members of PPC,
January 9
th
2012APPENDIX 1
The research I am asking for would include
How many propositions of substance;
I add the words “of substance” to allow for nuances to be taken into account between
propositions and amendments which most would see as frivolous or vexatious, and “real”
propositions. The research would probably have to include a totals figure and one with the 2
frivolous or vexatious” ones removed. In practise, the difference would be tiny.
How many written Questions?
How many Oral Questions?
How many Written Questions?
How many supplementary Questions in oral question time?
How many questions in question time without notice??
How many contributions to debates (excluding mere interjections)
Again “contributions” is liable to different interpretations. Does “I agree with most of what has
been said and I suggest we should get on with it” count as a substantial contribution to a
debate? A similar solution to that described above would have to be adopted here also,
listing total contributions and then contributions under certain qualifications.
How many Scrutiny reports have different classes of member actively worked on?
Note the word “actively.” It is one thing to be listed as a member of a scrutiny panel. It is
quite another to actually turn up to meetings of the panel, and it is another again to take an
active part in hearings and in the drafting of the final report. (non-States members of the
Commission might indeed be surprised at the differences!)
How many serve as Ministers or Assistant Ministers?
What other work is carried out?
This covers work such as sitting on bodies such as the Planning Applications Panel or the
Bailiff’s Advisory panel. This work would have to be weighted in order for comparisons to be
made. This would be difficult as it requires objective (!) assessments from people who have
performed these roles (if the roles are not well-known and not carried out in public) COMMENTS RE R54 “ELECTORAL COMMISSION: POSSIBLE OPTIONS”
Daniel Wimberley
INTRODUCTORY REMARKS
First, can I say a warm thank you to PPC for putting out some preliminary thoughts
fairly speedily and then inviting comment, before you move further with this. Definitely
the right way to proceed.
Second, I believe that there is a firm principle standing above this whole process, and
that is that the final decision rests with the people of Jersey.
I know that technically the States will debate the proposal for reform that emerges
from the work of the ECC and phrase a question for the referendum, and that
question could refer to a package different from that put forward by the commission.
Technically they can even refuse to put the reform package to a referendum.
Technically they can then ignore a massive vote in favour of the proposed change, if
that were to happen.
I believe that it should be made quite clear, starting now, and at all stages of the
process that what we are trying to do is meet the needs of the people of Jersey. We
have to set this out from the start, to limit the danger which you yourselves refer to, at
the foot of page 5, where you write:
“If the Electoral Commission were to recommend fundamental and farreaching changes to the composition of the Assembly PPC is concerned that
any future States Assembly may simply decided to ignore the
recommendations, or amend them beyond recognition so that the entire work
and cost of the Commission would be wasted.”So the idea that it is the public who come first, and not the various vested interests
within the States, should be clearly signalled within any report coming from PPC on
this matter. It should be repeated during the debate on the ECC within the Business
Plan debate. And it should be clearly stated when recruiting to the ECC.
Local members of the ECC will be giving a substantial voluntary commitment of time
and effort to their island. They therefore have a legitimate expectation that the States
will not seek to subvert their work or run it into the sand. They therefore should be
given as clear a guarantee as it is possible to give, that their work will be respected
and honoured.
There is of course a quid pro quo. In return members of the Commission must be
under no illusion that their job is not to justify any prejudices they may bring to the
task, but to actively seek out the best solution, and actively use methods which will
guarantee public engagement and acceptance.
There is another reason that the primacy of the people’s wishes should be made
clear from the outset. I am sure we all agree that the process has to engage the
public. If it is to succeed in doing this, then we have to make it absolutely clear that
this is for real, that we want to hear the public, that we will go out to the public, and
that at the end of the day we will be fair with the public.
ACCEPTANCE
The end result must be accepted by the public. It is important to think a bit round
what that realistically means. What is this “acceptance” that we would all wish to
achieve?
I do not think it means that every single person on the island will agree. It does
however imply, first that all islanders (bar the inevitable sceptics-about-everything)
are satisfied that the process was both thorough and fair, and that therefore, even if
they do not agree with the final package as put forward by the ECC, they accept that
it was fairly arrived at. Then, if that package gains a majority in the referendum, they
will give consent to it. They may disagree with it, but they will accept it.
This is not a trivial matter. It is vital that any new voting arrangements are not the
source of ongoing bitterness and resentment and accusations that the whole
exercise was “rigged.” We are after all talking about the government of the island
going forward for decades.
And second, a good majority should be satisfied that the proposal would be an
improvement on current arrangements, preferably, a big improvement. Of course,
because without such a “good majority” the package will fall at the hurdle of the
referendum.
And then, the end result must be accepted also by the States. Again, States
members will need to be satisfied that the process was fair and thorough. They will
also need to be convinced that the package as put forward by the ECC is acceptable
to the public. If it is not, then the referendum is indeed pointless..
I do assume good faith in this matter on the part of the States. Some may question
this. Will not the vested interests, whichever they may be, arise once again? I
reiterate the point I made in the introduction. PPC, Ministers and all of us have to
say, so often and so loud, that we will on this occasion keep faith with the public, that
backsliding becomes very difficult.
HOW TO ACHIEVE ACCEPTANCEI think the two words thorough and fair cover the fundamental requirements for
achieving acceptance in a nutshell. I will make a couple of general points here, I
cover specific topics in detail below.
First the ECC should be focussed from the outset on the need to engage with the
public. They must ensure that the public know that the CC exists, that it actively
wants people to come and tell them what they think, and that they are proactively
going out into the community to establish people’s views.
They should deliberately stimulate debate on the issues. For example they should
negotiate with the media to ensure ongoing coverage, so that the progress of the
review is constantly brought to people’s attention, and what the key emerging issues
are, so that the whole process is very much a public process which all are invited to
comment on and participate in. Maybe the CC could build into the process certain
“staging posts” as pegs to hang media interest upon.
PPC writes in its report:
“Although the hope was expressed during the debate that solutions would emerge
from the consultation process to be undertaken by the Commission previous such
consultation exercises undertaken by former Privileges and Procedures Committees
have shown that there are extremely divergent views in the Island on the composition
of the States and it is possibly naïve to imagine that any one single solution will
emerge that would be acceptable to the public or to States members in a future
Assembly.”
PPC is right to point out the difficulties. However I do not think we should necessarily
predict the outcome of the work of the CC based on the experience of PPC’s in the
past. The point of setting up a CC is that they will have the resources, the undivided
focus and above all the time to carry out the task. (see the quote from the Chief
Minister below at Para. 5.8)
The process I have outlined is needed to increase understanding of the issues, of the
tradeoffs which can be made between this and that aspect of any package, and I
believe that they should lead ultimately to acceptance in the sense of section 2
above.So, that is the first aspect – a Commission which goes out of its way to engage with
the public, indeed sees that engagement as essential to its success. The second is
that the Commission should demonstrate expertise. We should all be confident that
they either have the necessary grasp of the issues within their membership, or that
they have access to such expertise.
The CC needs at least expertise about the principles behind voting systems and the
technical issues that can arise, about the local considerations which might apply in
Jersey, and about the difficult issues around how one establishes the views of the
public in a non-leading way amongst different sections of the population.
And the third aspect is of course the independence of the ECC. Independent they
must be, and seen to be so. There are, I believe, different ways of achieving this
independence. It is not just a matter of the membership, although that is clearly
important. It is also how they conduct themselves, how they present their activities to
the public,
PUBLIC OPINION
Establishing public opinion is difficult and contentious, hence my appeal that the ECC
must have expertise in this area or access to expertise. I cover this aspect below in
the section about membership of the CC.
Some thoughts however. First, before the debate I found out from Duncan Gibaut at
the Statistics Unit that their schedule for the annual Social Survey would allow for the
sampling of public opinion in mid 2012, which of course would entail no additional
cost. He wrote: “The schedule will be similar to previous years....questionnaire
design/development in Jan-April....pilot in May...run full survey in June/July....aiming
for results out around December.” Results for that section could presumably be done
first for the benefit of the CC’s work.
4
I am not saying that the Statistics Unit would develop the questions, merely that they
are a ready-made vehicle for carrying out the pilot and then the actual survey and
tabulating the results. Developing the questions would be a major task for the CC
and require much thought and expert input.
Other work might include focus groups working with different sectors of the
population. Again this requires much thought and expert input. In this way one could
confirm or otherwise the results of the survey, and also conduct qualitative
assessment of the issues, for example, exploring why it is that so many do not vote,
and how that might be remedied, if at all.
Towards the end of the process, elements of the emerging package should somehow
be subjected to testing for acceptability, if at all possible, so that all can know that the
final package is indeed going to pass the great test of the referendum.
MEMBERSHIP OF THE ECC
I have thought long and hard about this, as you might imagine. I have been
concerned about the cost, and wondered if there was another way to ensure that the
ECC had all the necessary qualities. I was troubled by the range of qualities and
expertise required, and wondered if the best way was to try and have it all “on the
CC” Maybe it was better and more feasible to have the expertise “on tap” so to
speak.
4
NOTE I did not ask specifically about the ECC’s work, simply asked in general
about the timeline for the JASS.I suggest that the qualities needed are
Expertise – of various kinds
Focus, keeping the show on the road
Desire for public engagement
Independence
Expertise This is needed in the areas of
electoral systems and voting systems, both the principles and the
practicalities;
how to successfully engage with the public and consultation methods; and
how to shape the discussions within the CC, and create a work programme
which will lead to the acceptable and better result we want to see.
It may be that the best way is to have expertise in these areas on the panel itself, but
it may be more productive, easier, cheaper and actually more transparent to have the
expertise in the first two of these areas at arm’s length in the form of an advisory
board.
The third area of expertise has to be available within the Panel. It is basically the
skill of a good chair – always having an overview of the entire work programme,
ensuring that this programme is robustly discussed with the Panel and agreed, and
then progressed, in a way that keeps everybody, both on the Panel and attending on
the Panel or working with the Panel involved and committed
Desire for public engagement must translate into the selection of the members of
the CC and in their choice of venues for hearings, in their media strategy, in the
execution of that strategy, in their handling of witnesses, in the way they go about
finding out what the public think about this issue and what the public might like to
see.
INDEPENDENCE.Independence And finally, this vital area. Here is what the Chief Minister said in the
debate on the third Amendment to P176:
“One thing which seems to be a common thread throughout many speakers today
has been the desire to have an Electoral Commission. I think for 2 reasons: firstly, it
can look at the whole subject in proper detail and at length, and secondly, because,
as an external body, it will have a greater degree of independence than we seem
to be capable of bringing to it in this Chamber. If there is one thing which maybe we
can learn from this week’s discussions it is that this problem is never going to go
away, but if we had an independent external Commission there is more chance
that something might get resolved in a proper way” (my emphasis, from Hansard
Wednesday 19
th
January 2011 paragraph 4.5.8
In this context, “independent” means “from outside the island” and also “unbiased”,
“not having a fixed view”. It is not enough to be “non-States”. How essential this is
can quickly be established by reference to Jersey’s normal practice in other areas.
We have our Police externally inspected, our schools are either externally inspected
or their self-assessment is externally validated, and we have just set up external
ongoing review of our Social Work provision.
This is all perfectly normal, indeed essential if impartiality is to be guaranteed. PPC
make the point in this way, when they rightly point out the problem with an all-local
line-up:
“This option nevertheless has the disadvantage that the local members may all come
with predetermined positions and it may be difficult to identify local residents who
would have the necessary interest and expertise in this subject without bringing
strong
preconceived ideas about the way forward.”
And they repeat that this problem arises with any local members. However the local
members are indispensable for their awareness of local sensitivities and issues, and
for the acceptability of the result. They are also on the spot, and they will find it
instinctively easier to relate to what is being said to them
PPC repeat that this problem arises with any local members. As I thought about this,
I realised that the process has to have outside input. But does that mean on the ECC
or available to the ECC? So in the light of that question, I went through the options in
my mind:
All from the outside
3/3
2/2
1/many
all local + expertise “on tap”All from the outside. This would logically follow from all I have said above about the
absolute need for independence, and to be seen to be independent. But this would a)
give problems with acceptability, it would appear to be a package “imposed from
outside” and b) it excludes local input and awareness from the Panel itself. It is
obviously a non-starter, in spite of apparently being the solution that would give the
most “independence”
3/3 – i.e. a 3-3 split between locals and non-locals. This gives visible
independence and robustness and it has equal representation from locals. But first,
even here there are problems with expertise. The 3 may not have all the specialised
expertise required. And one is limited to what the 6 members have at their disposal.
And secondly, there are the logistical problems set out by PPC. Those with full-time
jobs, for example serving academics, are effectively excluded, restricting the options
to people who are retired, or who are full-time consultants
A 2-2 split between locals and non-locals I feel, as PPC suggest, is too small. It
would limit the range of the debates within the CC and would damage acceptability.
Outside chair and many locals. Again ALL the expertise required is not actually
available in this scenario. In addition the one with the greatest expertise being also
the chair, is not the best way to secure a well-functioning group. In fact what is
essential, the key expertise to have within the ECC is the skill of chairmanship. And
this could as well be provided by a local skilled in this field as by an outsider.
All locals + expertise “on tap” This is now my favoured solution.
It is sure to be cheaper, much cheaper than having expertise on the ECC.
It solves the problems of availability, increasing therefore the range of
expertise we could draw on
Local knowledge and acceptability are not compromised at all
The expert advice drawn on by the Panel would be fully transparent – there
would be a full audit trail of written advice, email exchanges, notes of
discussions between the experts or between the experts and the ECC – more
transparent than unrecorded discussions and advice given within the panel’s
discussions.
It would ensure that the work of the ECC was quality assured by visibly
independent external experts in a transparent and accountable way.BUYING IN EXPERTISE
The appointments of this “Advisory Board” would be made by a process run by the
Appointments Commission. All the expertise necessary would be available on the
Board.
The expert group would meet on the mainland, and/or have email meetings, and
meet with the ECC as required.
They would peer review the agreed process the entire review would follow, challenge
assumptions, and make observations/suggestions
They would peer review the key elements of the work programme, for example the
thinking behind and the execution of any public surveys, or the proposed
methodology of any focus groups
They could write expert papers on particular aspects of the work as required
Importantly, all this work would be public and accountable.
The Advisory Board might provide specific elements of the work programme
APPOINTING THE LOCAL MEMBERSHIP
Again this process should be supervised by the Appointments Commission.
They should set out in advance clear criteria for the membership and for the desired
balance for the ECC, not just in terms of expertise or interest or known views, and in
terms of their openness and ability to listen, but also in terms of gender and in terms
of age.
I state here what might be seen as the “bleedin’ obvious” just to emphasise really the
need at every stage to ensure that this whole exercise is bullet-proof.
, absolutely fair-and-seen-to-be-fair.MEMORANDUM
To: Constable Simon Crowcroft, chair of PPC
From: Daniel Wimberley
Cc: all members of PPC; Senator Ian Gorst, Chief Minister; Anna Heuston, clerk to PPC;
Michael de la Haye, Greffier of the States
Date: Monday, 09 January 2012
About: PPC suggested proposals to take forward the Electoral Commission
INTRODUCTION
1. I was appalled to read of the package of proposals being considered by PPC with regard to
the Electoral Commission, as reported in the JEP, together with the JEP’s gloss on it which
was that its purpose was to enable Senator Bailhache to become the Electoral Commission
chairman.
2. As you may imagine I have a particular intense interest in this subject. I write to you as one
who has researched it thoroughly and as one who knows how vital it is that islanders have
a fair and effective electoral system.
3. At this stage this memorandum is private, in the hope that sense will prevail. Also, it may
be that you have been misreported, in which case please make clear in your reply to this
memo exactly where this is so.
4. As reported, I see the PPC basically strangling the baby Electoral Commission at birth, with
i) the suggestion that States members would sit on the Commission, ii) the possibility, and
this is being touted by the JEP as a near-certainty, of Senator Bailhache as the chairman,
and iii) the vital questions of voting systems and electoral functions being excluded from
the Terms of Reference. So what the States agreed, and what the public expects and
deserves, an independent and comprehensive Commission, has been apparently tossed
aside.
5. PPC’s suggested proposals will have, I believe, the following consequences:
a) The mistrust and division of the last three years will be immediately rekindled
b) You will seriously undermine Jersey’s credibility and reputation in the world, by showing
that we are unable to set about the review and improvement of our institutions when
they are defective, in a way which is fair and objective and which is seen to be so.
c) You will open the door to criticism of Jersey by whoever might wish to do so. Those, for
example, who might be inclined to criticise the finance Industry will have another stick
to beat Jersey with, and the beating which we will receive will be entirely justified.
6. For PPC to proceed along a path which has any of these consequences would be utterly
irresponsible, let alone all three. Would PPC agree?7. On the assumption that PPC does not actually want these things to happen, the only
defence is that the proposals would not actually have these effects. If that is the view of the
Committee, please as part of the response to this memo, say clearly that you believe that
a), b) and c) above would not happen and state why you think these consequences would
not come to pass. NB Why I think that these are very real risks will become clear in the
rest of this memo.
8. I will address briefly the different aspects of PPC’s reported proposals, and then make
some suggestions.
STATES MEMBERS ON THE ELECTORAL COMMISSION
9. In the debate on P15/2011 “ELECTORAL COMMISSION ESTABLISHMENT” on 15
th
March 2011 member after member referred to the fact that the States cannot reform its
own constitution. It has achieved some reform, such as a single election day, but the basic
issues of proportionality and fair representation, set out briefly in my Report to P15 and
more fully in my opening speech, remain, as does the failure of our electoral system to
deliver the other function of an election system, which is to enable the voters to cast a
verdict on who they want in government and to cast a verdict on the previous government.
10. When the States does try to carry out major reform it fails, and there is always the
suspicion, or the reality, of vested interests at work. That is why my proposition stressed
the word “independent” – the Electoral Commission must be independent and be seen to
be independent. PPC itself, in its report to the States “ELECTORAL COMMISSION:
PROPOSED STRUCTURE (R110/2011)” wrote: “The process for the selection of members
would, as already agreed by the States, be overseen by the Appointments Commission,
and it will be essential to ensure that those who apply do not come with preconceived ideas
or existing strong views on the matters to be addressed by the Commission.”
11. And here is what our Chief Minister said in the debate on the Third Amendment to P176,
the draft Law which gave legal effect to the decisions taken by the States on 13th October
2010 in relation to the composition and election of the States (P.118/2010). (In adopting
P.118/2010 the States agreed that, over time – · the term of office of all members of the
States should be 4 years; · the single election day for all members should be moved to the
Spring; · the number of Senators should be reduced from 12 to 8)
“One thing which seems to be a common thread throughout many speakers today has
been the desire to have an Electoral Commission. I think for 2 reasons: firstly, it can look
at the whole subject in proper detail and at length, and secondly, because, as an external
body, it will have a greater degree of independence than we seem to be capable of
bringing to it in this Chamber. If there is one thing which maybe we can learn from this
week’s discussions it is that this problem is never going to go away, but if we had an
independent external Commission there is more chance that something might get
resolved in a proper way” (my emphasis, from Hansard Wednesday 19
th
January 2011
paragraph 4.5.8)
12. The only way that having States members on the Electoral Commission could be made to
be remotely acceptable would be to ensure that the chosen ones had known, strong and
opposing views on the key issues. Thus you would have to have one who was known to be in favour of removing the Constables, one who was known to be in favour of removing the
Senators, and one who was known to be in favour of removing both. And so on.
SENATOR BAILHACHE CHAIRING THE ELECTORAL COMMISSION
13. (or indeed, anyone who has expressed strong views on the make-up of the Assembly)
Here we see underlined how extraordinary this proposal to have States members on the
Electoral Commission actually is. A man who has expressed in his election campaign
strong and specific views on what the States should look like, and who has said that an
Electoral Commission is actually unnecessary as “the answer is staring us in the face”
(http://www.philipbailhache.je/hustings-speeches/st-helier-17-october-2011/) could end up
as chair of the Commission, and indeed, if the JEP is to be believed, is the Chief Minister’s
nominee for the job.
14. How can such a person be seen to be impartial? How can he “secure the greatest possible
acceptance by the public of any new arrangements proposed” as the proposition setting up
the Electoral Commission states must happen? The answer must be that it is impossible. It
follows that such a person cannot be chair of the Commission – it’s as simple as that.
Please will PPC make it clear that this is unacceptable.
15. If PPC disagree with this conclusion and do nothing to stop this from happening, I would
ask that they explain how the appearance of impartiality is achieved under such a
chairman.
16. Note that I am assuming that the PPC wants the Electoral Commission to be a fair,
thorough, impartial and independent body which is trying to reach the best solution and
which will be seen by all islanders to be exactly that. That is the only way that public
acceptance of the results of the work of the Commission can be achieved. NB By “public
acceptance” I do not mean that “everyone will agree with their conclusions”. I refer PPC
members to section 2 of the submission which I made to PPC’s consultation report
R54/2011, which is attached to this memo, which explains what this goal of “public
acceptability” really means.
EXCLUSION OF VOTING SYSTEMS FROM THE TERMS OF REFERENCE
17. Voting systems are fundamental to having a fair electoral system. For example, even if
present single-member constituencies are maintained in the UK there is a massive
difference in the effects of the various voting systems: FPTP (First Past The Post); AM
(Alternative member); and the different forms of STV. (see, for example:
http://www.electoral-reform.org.uk/voting-systems/)
18. Derek Bernard has written excellent papers about the importance of these matters in the
Jersey context. I quoted from these in the unofficial Addendum which I circulated to
members shortly before the debate. I attach this Addendum for PPC members
convenience, Mr. Bernard’s comments are on the last page.
19. Voting systems are an integral part of electoral systems. To exclude them is completely
absurd. 20. Furthermore, the Electoral Commission must, as a matter of principle, tackle the electoral
system in the round. At paragraph (a) of P15 the States “agreed that an independent
Electoral Commission should be established in Jersey to investigate and report on all (my
emphasis) aspects of the composition of the elected membership of the States Assembly
and the election and voting processes for such members . . . ”
21. I explained why this is so in my opening speech; “it has to be comprehensive. The
piecemeal approach that we have seen for 10 years has led to hours and hours of debate,
more heat than light, and the linkages get obscured. A case in point is the recent debate on
Senators where we went from 12 to 8, and there was the fact that we have chosen to
reduce the only class of Member, which at the moment is truly proportional, the class for
which most people vote and the class of Member we know to be most popular with the
public. Now, I do not want to revisit that debate, I am just saying that is a result of the way
we have tackled these amendments one by one. But I do maintain that this has raised
questions out there about whether the decision was properly reached and the piecemeal
nature of how we make these decisions. The Commission has to be comprehensive, there
is no point in looking at this aspect or that aspect of our electoral system. To attempt to do
so reignites all the old accusations about vested interest, so that is why that first sentence
is there.” (Hansard of 15/3/2011)
THE FUNCTIONS OF THE ELECTORAL PROCESS
22. Again, the Terms of Reference must include these, for two reasons. First a little hurdle
(which may apply to all of PPC’s proposals): the Deputy Bailiff said these words during the
debate on P15: “The extent of the work of the Electoral Commission is set by paragraph (a)
of the proposition and the terms of reference are obligatorily set in paragraph (b) in the
appendix” (For your convenience, I have copied the context in this endnote
i
)
23. Second, we cannot leave to one side the issue of what elections offer to voters in most
democracies and which they fail to offer in Jersey. I covered this point in my opening
speech:
“A member of the public said to me as I was preparing for all this, he said to me: “I do
sometimes think it is not worth voting, it is just a waste of time, it is not going to make any
difference.” That was not from someone who wants to be put off the electoral process, it
was from a politically interested retired worker from the finance industry. He also said:
“Many of my friends have come to that conclusion, they do not vote, I still do.” So he has
not lost hope, but I think we need to listen to that cry quite carefully because he is telling us
something very important. There should be a link between the vote or votes the voter casts
in the polling booth and the end result that matters most to voters, which is who gets to
have decision making powers in their jurisdiction. But in Jersey, as things stand, the public
does not vote the Government in or out and this weakens the mandate of Ministers and the
Chief Minister. They cannot tell the world honestly that they or their colleagues have won
the election. They do not have direct legitimacy from the voters.”
24. A fuller statement of this function of the electoral process is at P15 Amd. (2) Report page 3
section “Amendment 1”. I reproduce this section at endnote
ii
25. Third, the argument of paragraphs 20 and 21 above applies here also – the Electoral
Commission must be comprehensive in its approach.26. As with voting systems, this cannot be omitted from the work of the Electoral Commission.
WHAT’S TO BE DONE?
27. PPC should draw back from these proposals. The consequences which I outlined in
paragraph 5 above would be politically disastrous.
28. In addition there is the issue of expert input. It is mentioned by PPC in their R110 and it has
to happen in some form or other, and yet it appears nowhere in the JEP’s coverage. Does
PPC really think we can do without?
29. The former PPC’s summary of my submission to them on this topic reads: “a better
structure would be for an all-local Commission assisted by an Advisory Panel of experts
from outside Jersey. In this way, there would hopefully be greater acceptance of the
Commission membership within the Island with no concerns about a solution being
imposed by ‘outsiders’, but the local members would nevertheless be able to draw on
advice and guidance from the Panel of experts, who would peer-review the Commission’s
work” (R110/2011, page 4)
30. This is the most cost-effective way of having access to the necessary expertise. The costs
of flights and accommodation are avoided, as are the costs and complications involved in
making arrangements which involve splicing in the availability of outsiders for meetings and
hearings.
31. The advantages of having expertise provided NOT inside the Commission are as follows:
• It is sure to be cheaper, much cheaper than having expertise on the Electoral
Commission.
• It solves the problems of availability, increasing therefore the range of expertise we
could draw on
• Local knowledge and acceptability are not compromised at all
• The expert advice drawn on by the Panel would be fully transparent – there would
be a full audit trail of written advice, email exchanges, notes of discussions between the
experts or between the experts and the Electoral Commission – more transparent than
unrecorded discussions and advice given within the panel’s discussions.
• It would ensure that the work of the Electoral Commission was quality assured by
visibly independent external experts in a transparent and accountable way
32. To be absolutely clear: the experts do not decide anything. They do not dictate anything.
But they do ensure that the local members of the Electoral Commission are fully aware of
the key issues and they provide an independent check and balance to the process. For
example, attempts to effectively gerrymander elections by packing or cracking would be
pointed out and resisted. You are not aware of what I am talking about? Exactly.
33. All is completely transparent. The public will be able to see what the Advisory panel’s
advice was on any given point, and whether or not it was accepted and the reasons given
by the Electoral Commission as to why the advice was accepted or rejected. Who could object to this, if they wished to guarantee objectivity and acceptability and try to get the
best possible result?
CONCLUSION
34. I look forward to the response of the Committee to this memorandum, in particular I request
that the questions which I pose at Paragraphs 6 and 7 and 15 and 28 are answered please,
and the point at paragraph 3 responded to if it applies.
35. I have taken much time and effort over this document, after recovering from the shock of
reading the item in the JEP. Improving our electoral system is of the utmost importance for
the well-being of islanders. I hope you accept these words in the spirit in which they are
intended – please draw back from proposals which if correctly reported will do serious
damage to the reputation of the States within the island and to the reputation of the island
in the wider world.
i
9.6.1 Senator B.E. Shenton: “It was just to point out to the Assembly, subject to having these
amendments go through, what we are now voting on is just the principle of having an Electoral Commission
subject to funding being found in the Business Plan. That is it. We are not here to discuss how it is going to
be constructed or anything else. That will all come back. P.P.C. will consult on it. It should be fairly
straightforward. You either want an independent Electoral Commission or you do not.
The Deputy Bailiff: I am not sure, Senator, that that is entirely accurate. [Laughter]
Senator B.E. Shenton: It was wishful thinking, Sir.
The Deputy Bailiff: The extent of the work of the Electoral Commission is set by paragraph (a) of the
proposition and the terms of reference are obligatorily set in paragraph (b) in the appendix” (Hansard
15/3/2011)
ii
“Amendment 1
This first Amendment and its partner Amendment 2(i) add few words, but they are very significant.
Elections have 2 main functions – the first is to enable the voters to decide who represents them in the
representative assembly of their jurisdiction. This should be achieved by fair and equal representation. In
Jersey this is manifestly not the case, and I covered this in my original report and proposition.
The second is to enable the electorate to cast a verdict on who they want in government and to cast a
verdict on the previous government. It is this aspect which, although implied in the original report and
proposition1 needs to be made explicit. There should be a link between the vote or votes the voter casts in
the voting booth and the end result that matters most to voters which is: who gets to have decision-making
powers in their jurisdiction.
However in Jersey, as things stand, the public does not vote the government in or out. This system has the
effect of weakening the mandate of Ministers and of the Chief Minister. They cannot tell the world, their
colleagues, or themselves, that they “won the election” or that they have direct legitimacy from the voters.
This is a very strange and unusual situation in modern democracies. Could it be that this gap, this
disconnect, between the votes cast and the end result is one reason for the voter apathy which we all know to
exist and which we all agree is so damaging to our democracy?
And so this Amendment expands in the guiding principles set out in the proposition at paragraph (a)(ii) the
phrase “the make-up of the States” to “the make-up of the States and of the Executive, namely the Chief
Minister, Ministers and Assistant Ministers.”
Amendment 2(i)
This first part of Amendment 2 amends paragraph 1 of the Terms of Reference in Appendix 1 of my original
proposition so that in the areas to be considered by the Commission, the area “the election process” becomes
“the functions of the election process.” This opens up discussion of these functions explicitly and invites
Islanders to express their views on these functions to the Commission.
I am not saying that there must be a direct link between voters and Ministerial positions, or that if a direct
link becomes a major issue in the discussion, what form that link might take. Squaring this requirement with
all the other factors in the equation is complicated, but the Commission clearly has to include it in their
deliberations, given its potential importance, hence this amendment.” (P15 Amd 92) page 3)
