Submission to the Electoral Commission following the publication of the interim recommendations

Here is my submission to the Electoral Commssion -

Submission to the Electoral Commission following the publication of the interim recommendations

Dear members of the Electoral Commission,

I write following the publication of your interim recommendations to convey both what I am pleased with and what I am concerned with, as well as further comments on the matters you have not fully settled on yet.

Firstly I would like to congratulate the commission on making a series of recommendations that have certainly exceeded my expectations.  Obviously I am delighted that the commission has adopted, almost word for word, the three principles that we in Reform Jersey have been arguing for. And of course, the addition of a fourth principle (“A candidate should generally require a significant number of votes in order to be elected to the Assembly”) is certainly most welcome and I agree wholeheartedly.

I find it impossible to imagine a better set of democratic principles to base reform on and the commission has to be commended for adopting them.

I particularly liked the line “With thriving debate, and greater public participation, Jersey’s government will have a better claim to be founded upon the bedrock of popular consent” which I think really gets to the whole point of what electoral reform should be about.

A “Workable Solution”

One of the solutions on the table, 42 Deputies in 6 super-constituencies (which I will call “Option 1”), is a good workable solution that I am happy to endorse. It is not what I would call an “ideologically perfect” solution; however it is clearly tailored to what will be acceptable to the public given Jersey’s history and culture and is such a significant step in the right direction that I believe it is imperative that the people of Jersey adopt it. So it could be described as “practical perfect” solution, in that it is probably the best Jersey could hope for.

I also believe that a situation where all of our States Members are elected on equal mandates, none of whom will be elected unopposed, will do immense good for the political culture of Jersey.

All one has to do is engage in a 5 minute conversation with the average person in Jersey to realise how unpopular politics is, how little trust many people have in our leaders and, most importantly, how they feel they are unable to influence their government by taking part in the current political process.

As has been shown in Guernsey with their similar styled reform, I believe the new States will lead to a greater participation from the people of Jersey because it will repair much of the voter disparity across the island, meaning for the first time in Jerseys history voters will actually be all, more or less, equal.

However, unlike Guernsey, I also hope that a political system that is equal across the whole island will make it easier for political parties to form and fight elections. This will be the next important step that Jersey would need to take to improve its democracy. But as I said in my interview with the commission, that is something that will only occur naturally through grassroots movements, so it is right that the commission does not seek to make recommendations on it.

I understand that at the commission’s public meeting in Trinity, some parishioners expressed concern at being amalgamated with St Saviour for their electoral district. I am also aware that some have expressed concerns about some districts returning Deputies that all reside in one Parish, rather than be spread across all of them. I think such concerns are unnecessary. The States of Jersey is our national parliament; it debates national issues that are the same across all parishes, so where a Deputy lives is not really of any relevance. As it stands, many Deputies are currently elected in districts that they do not live in and it does not in any way inhibit their ability to represent that district. But for the joined up Parishes, I find it very difficult to believe that someone would stand as a Deputy intending to only be a representative for their Parish. Aside from the fact that it will not be in the job description, it would be a very bad strategy electorally when they should be campaigning for votes from all of the Parishes in their districts. Any candidate that ignores a large part of their electorate is less likely to succeed.

Though I have to say that Trinity’s opposition should be most surprising given that Trinity is currently a “rotten borough” that will only be able to have elections if it is joined with other Parishes. You would have thought they would be elated at this idea. That just demonstrates the political culture in some parts of Jersey that needs to be overcome.

Some who are upset at the removal of the Senators have also been upset at what they believe is a system that offers them less of a say over the whole assembly. For some in the island, this is correct, but only because they would have been living in a constituency that had several Deputies before where they had votes for a large number of States Members. In the old system, if you lived in a Parish with a single Deputy and Constable, at each election you were offered a say over 8 of the 53 Members of the States. That works out as 15.1% of the total. Whereas, in this new Option 1, they will have a say over 7 of the 42 members, which is 16.7%. So actually for people living in those Parishes, their proportion of a say is going up. Admittedly it is going down for those in the more urban areas, but it is not right for different parts of the island to have a different level of say, so this is a sensible compromise.

Option 1 has the backing of Reform Jersey and would like to enthusiastically campaign in favour of it in the run up to the referendum, but only if a few concerns are addressed.

Minor reservations

Even though I have endorsed Option 1, and would like to campaign in favour of it, it is worth pointing out the current problems there are with it in case solutions can be found to them before the final report.

The commission’s research by Professors Ron Johnston and Iain McLean outlined the percentages of deviation from the average number of voters per States Member in each constituency. Here is what I have worked out is the case for the new districts in Option 1 -

District	No. of eligible voters[1]	Option 1 – No. of voters per Deputy	Deviation from average
St Helier No. 1	13,960	1,994	8.07%
St Helier No. 2	12,900	1,842	-0.16
St Clement, Grouville, St Martin	14,010	2,001	8.45%
St Saviour, Trinity	12,960	1,851	0.33%
St Lawrence, St John, St Mary, St Ouen	11,100	1,586	-14.04%
St Brelade, St Peter	12,600	1,800	-2.44%
Total/ average	77,530	1,845	22.49%

From this you can see that only one constituency goes outside of +/- 10% from the average, and that is the 5^th district. This is obviously not desirable, however in the current system 8 of the 12 parishes are outside of the +/- 10% deviation, so this is a huge improvement. But it has to be said that changes in population are likely to only make this worse over time.

The difference between the largest and smallest constituencies is only 22.49% of the average population, whereas in the current system it is 95.5%. Again, a huge improvement.

I suggested in my original submission that the best way to ensure no voter disparity would be to have an independent boundary commission establish borders based solely on population, and could more easily alter them if the demography changes. I still maintain that this would be a better way of doing it, but a system that is based on the parishes like you have suggested is probably one that will be much easier to win in a public referendum.

One relatively minor point I might make is that perhaps the new members should not be called Deputies. Simply because they are not Deputies as they currently are. You have specifically (and rightly in my opinion) aimed to create a hybrid of the qualities of the current Senators and Deputies to make them better equipped to act in a national parliament. Some people are not fond of the Deputies as they are (for reasons like their small electorates or that they might spend much of their time only pushing for their particular constituents interests in their areas), so may find it hard to accept a States made up of just “Deputies” given the connotations that word may have to them.

Referendum v Referendums

I have real concerns with the commission’s suggestion of a referendum on the Constables both on issues of principle and practicality.

The public are not often offered a referendum for the simple reasons that they are incredibly difficult to get right and are not always the most democratic option. All one has to do is look at Scotland’s debate on independence where the SNP administration and coalition government had to wrangle to come up with an agreement on the terms of the referendum. They had to argue over how many questions there could be, when it would be held, who could vote in it etc.

There is an art to getting a referendum right. The best way to do it is for there to be one simple yes or no question on a straightforward issue. This is the only way to ensure an unambiguous answer that clearly shows a public endorsement. It is also important that there is no possible justification for a legal challenge to the answer. I therefore strongly recommend that the commission should only recommend one referendum.

A referendum with more than one question is far more difficult to get a clear endorsement that does not leave it open to room for interpretation. When there are two questions, if both are only won by a small margin, it will be very difficult to say that the public clearly believe in one thing over another.

But, most importantly, how can the public vote to endorse your recommendations when they do not actually know which of the two options they are being asked to endorse? Their vote in one question may be dependent on the result in the other question.

I asked at the St Helier meeting for clarification and was told that the first question would be asking to endorse the commission’s recommendations, then the second would be whether the Constables should be a part of that or not.

As I have said, I would like to vote for Option 1. But I do not like Option 2. In fact I think it is worse than what we currently have. So I will vote in favour of the recommendations, and then against the Constables. But if that second vote is lost, I will then have inadvertently voted for Option 2 by my yes vote to the first question, even though I absolutely do not endorse Option 2. I would have rather had voted against the recommendations than accidentally voted for them.

I, and possibly many others, will then be part of a statistic that is used to justify the changes, when I do not support them whatsoever. This situation is completely unacceptable.

It also means that people will be going into the polling station working out the chances in their heads and deciding on how to vote tactically. If in the days leading up to the vote polls show that the public are likely to vote for keeping the Constables, I am going to have to vote against the entire reform package, even though I do actually support one of the reform packages.

Two votes mean people are going to have to vote with their heads rather than their hearts. Fewer people are going to go in voting for what they actually want.

The only possible way that some of this may be avoided would be to have one question, but with 3 options (Option 1, Option 2 and the status quo). However, in that situation it must be imperative that it is done with a first and second preference vote, so that if no option receives 50%, the second preferences can be taken into account.

At the public meetings I attended, Senator Farnham and several others were irate at there being no referendum on the Senators as well. I do not feel that the commission made the point well enough that the new Deputies are intentionally designed to have all the qualities of the current Senators that made the public so fond of them (which is also why the name “Deputy” does not help). But it must also be known that referenda on the minutia of reform will only lead to a package that is incoherent and not led by an overriding thought out context. It will just be a conglomeration of various views trying to make everyone happy but inevitably leaving no one happy.

If the referendum process is flawed, as it is currently being set up to be, I will vote against the entire reform package because I do not want my vote to stand any chance of being used to back up a new system that I believe is less democratic than the current system.

Is a referendum democratic?

The practical problems with having two referendums are obvious, and in my opinion should be enough to deter you from having two referendums. However there are also the issues of principle behind it.

The worst part of a referendum is that it accepts the principle that issues should be decided by the majority. That is not democracy. Democracy is about much broader principles than just doing what 51% of people want.  It is about inclusion, freedom and choice. Having a referendum on a specific constitutional amendment can make sense, but some issues are not democratic just because they have been endorsed by a majority in a public vote. A system worked on just doing what the majority want is not a democracy; it is a dictatorship of the majority. A vote to endorse something that is undemocratic does not make it democratic.

For example, if the public voted to disenfranchise left-handed people, that would not be accepted because it is not compatible with our wider democratic principles of equality and choice, despite being endorsed by the majority. I would wager that if a public vote was held on reinstating the death penalty it would probably be won. But we do not accept it because it is not a democratic practice for the state to be able to have the power to end the lives of its citizens.

Voting to keep the Constables in the States is not democratic because it creates an arbitrary rule that all Parishes must send their Constable to the States and leaves no room for choice on the matter. If 5 out of 12 Parishes decide that they do not want their Constable in the States, why should they be forced to just because the other 7 Parishes do want theirs? The Constable and Parish administration is only the business of their parishioners and it should not be the business of any other parish, or the island as a whole to tell them that their Constable must be in the States.

The only democratic way around this is to accept that no Constable should be automatically in the States and that if a parish wants their Constable in the States, they can nominate him or her to stand as a Deputy and they can be elected through that manner. That way everyone has a choice and it completely does away with all of the current undemocratic elements.

Those that argue that the Constables should remain automatic members of the States often defend this position by praising the Constables wisdom and experience and the role in general. But it has to be said that this must be a totally disingenuous argument, because if an individual happens to possess all of those qualities, why would they be so fearful of them having to face another election? If it is widely accepted that the individual would be an asset to the States, they will easily win an election. There is no need to fix it so they are automatically in the States.

The real reason they make this argument must be because they are worried they would not otherwise get in. Such reasoning is from an undemocratic way of thinking.

A peculiar “Option 2” of 30 Deputies and 12 Constables

To put it bluntly, Option 2 does not make sense. It is clearly just a compromise to avoid the politically difficult (but necessary) decision to end the automatic right of the Constables to be in the States.

In the commission’s interim report it laid out four principles that it said were fundamental to reform, yet you have recommended the possibility of an Option 2 which is simply incompatible with those principles.

The commission says that “all electors should have the same number of votes” yet many Constable elections end up being uncontested. So those in Parishes with an uncontested election will have 5 votes, yet the rest will have 6. In Option 1 all elections will be contested and everyone will have 7 votes.

The commission says that “Constituencies should as far as possible be of broadly equal size” yet this is obviously not the case if the Constables are kept as each Parish has a very different population. In Option 1, all constituencies have a similar population.

The commission says that “a candidate should generally require a significant number of votes in order to be elected to the Assembly” yet some Parishes have very small populations, so even in the unlikely event the elections are contested, they will still barely get any votes. In Option 1 all candidates will likely receive a large number of votes (especially if the commission also recommends the STV voting system).

The commission says that “the electoral system should be simple, fair and easy to understand” yet this option will mean two types of States Member with different jobs and different mandates. Option 1 is far simpler.

Option 2 is totally incompatible with every single one of the commission’s principles.

But worse than this, even the commission has admitted that Option 2 is actually less democratic than the system we currently have. All it does is perpetuate the current overrepresentation of the country Parishes at the expense of the urban ones. It really is strange for the commission to have left an option on the table that is a backwards step in Jerseys democracy. If there was to be an Option 2, the commission should have come up with a completely different arrangement that kept the Constables but was not as undemocratic as what you are actually suggesting.

Under the current system, St Helier has 11 representatives and the District 5 Parishes have 9. This will remain exactly the same under Option 2. It also means that St Helier as a whole will only have 2 more representatives than District 5, despite having twice the population. Since the current systems biggest fault is the unevenness of representation, a new system that does not even come close to addressing that is doomed to failure and will only result in another 10 years of debate on reform.

As with Option 1, I have worked out how the Option 2 constituencies vary in their representation -

District	No of eligible voters	Option 1 – No. of voters per Deputy	Deviation from average	Option 2 - No. of voters per D + C	Deviation from average
St Helier No. 1	13,960	1,994	8.07%	2,538	32.19%
St Helier No. 2	12,900	1,842	-0.16	2,345	22.14%
St Clement, Grouville, St Martin	14,010	2,001	8.45%	1,751	-8.8%
St Saviour, Trinity	12,960	1,851	0.33%	1,851	-3.56%
St Lawrence, St John, St Mary, St Ouen	11,100	1,586	-14.04%	1,233	-35.78%
St Brelade, St Peter	12,600	1,800	-2.44%	1,800	-6.25%
Total/ average	77,530	1,845	22.49%	1,920	67.97

As is obvious from this chart, Option 2 is far less democratic than Option 1 and still leaves each district with a disproportionate and unequal level of representation.

But just looking at the Constables constituencies on their own –

Parish	Eligible voters[2]	% Deviation from average
St Mary	1,227	-76.21
St John	2,029	-60.66
Trinity	2,054	-60.18
St Martin	2,728	-47.11
St Ouen	2,990	-42.03
Grouville	3,424	-33.62
St Peter	3,529	-31.58
St Lawrence	3,733	-27.63
St Clement	6,167	19.56
St Brelade	7,637	48.06
St Saviour	8,373	62.33
St Helier	18,000	348.97
Total	61,891 – average - 5158	425.18

In the Parish constituencies, not a single constituency falls into the -/+10% area. In the 21^st century, this as an arrangement of constituencies in a national parliament is totally unacceptable by any democratic standards and it just simply cannot be used as the mechanism by which Constables are put into the States. The only way that the Constables can be in the States in a democratic way is to have them stand as Deputies with the rest of the candidates in the Option 1 districts.

This Option 2 does not even come close to addressing any of the problems that this commission was set up to solve. I therefore urge the commission to either ditch it, or have a serious rethink on it and come up with an Option 2 that looks very different to this one and does something to address the issues with representation. Perhaps each super constituency could have 7 Deputies, minus the number of Constables that that district has. So District 5 would have 3 Deputies, each St Helier district would have 7 etc. That way each constituency would have the same number of representatives.

Further Issues

On whether Jersey should have an STV type of voting system, I will not repeat the arguments because they are well rehearsed. But I will say that the First Past the Post System is acknowledged in most democracies across the world to be inadequate and I think Jersey should not lag behind and be at the forefront instead. Form Senator Pierre Horsfall made a good case for STV in his submission and I endorse it.

The only thing to balance that with is whether it would make the reforms too radical that it would make it harder to win it in the referendum. I would hope that STV would be uncontroversial, but it’s always hard to tell in Jersey.

On an upper chamber, if the commission believes there are an appropriate number of members in the reformed chamber, then why would there be a need for an upper chamber? It seems to me to be a waste of time.

Conclusion

A brief summary of my points are as follows –

1. Option 1 fits the democratic principles of reform almost perfectly and is capable of being won in a referendum.
2. Option 2 does not fit any of the democratic principles and its mere existence creates a flawed referendum process.
3. STV should be adopted.
4.  An upper chamber is unnecessary

I thank the commission for the opportunities I have had to speak at several public meetings and submit this analysis of the report to them. I hope you have found it useful and I am happy to be contacted for any discussion on the points I have made if you seek clarification.

Many thanks,
Samuel Mézec

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[1] I used the same figures used on the interim reports chart for this calculation.

[2] For this calculation I used the same figures used in the charts in Professors Johnston and McLeans report, Table 2.2, which appear to be different to those used in your report.