Reform - Option A - Deputies for the States, Constables for the Parishes

So there it is. That is what the ballot paper in Jersey's first proper referendum will look like.

The Electoral Commission has more or less kept it's recommendations the same as in their interim report. What has changed/ evolved is the process by which we get to pick between the two reform packages on offer. At the St Helier meeting the commission implied that they would ask two questions, the first being to approve super-constituencies, the second on the retention of the Constables. I don't know how seriously this was considered, but it was a flawed way to do it (for the reasons I set out in this posting) and it is unsurprising, given that they had to obtain expert advice on how to frame the question, that they have changed their mind to asking one question but with multiple choices.

This means that if over 50% of the people want Option A, we will get Option A. The views of the people will be clear.

It is a clear choice between one democratic option and two undemocratic options.

If you have the time and inclination, here is the full 49 page report outlining all of the recommendations and the reasons for them in detail -

http://www.electoralcommission.je/wp-content/uploads/2012/10/2013.01.14-Electoral-Commission-Final-Report.pdf

If you don't have the time, you could always just read this summary leaflet, which is also going to be sent to every household in the island -

http://www.electoralcommission.je/wp-content/uploads/2012/10/2013.01.03-Executive-Summary-as-printed.pdf

Further to this, we can actually see the Draft Referendum Act which will be debated in the States on the 19th February. It specifically bars the Constables from observing the election (quite rightly) and also explains what markings on the ballots will be accepted, so that there are as few spoilt ballots as possible -

http://www.statesassembly.gov.je/AssemblyPropositions/2013/P.005-2013.pdf

The Only Democratic Option

If you accept the objectives tests of democracy (equality, representation and choice) then Option A, 42 Deputies in 6 super-constituencies, is the only option on the table that meets all the criteria. It is simple, clear and fair.

In this situation, for the first time, every islander will have exactly the same number of  votes, they will have the same number of representatives and their votes will be equal. These principles should be uncontroversial.

With constituencies based on population (though taking into account the Parishes), it will no longer be possible to say that the country Parishes are over-represented at the expense of the urban areas. Coupled with the fact that elections will be done using a preferential voting system, only the most popular candidates would get elected in each constituency. 

It means the end of safe seats, uncontested elections and unrepresentative results. No more will a Constable or a Deputy be able to be criticised for who they are, rather than for what they are saying, on the basis that "oh, they only just crept in on a few hundred votes". Every single States Member will have to earn the right to get elected by winning over a large chunk of the population. This means every States Member will at least have a sufficient personal mandate to try and carry out their manifesto commitments. You won't get someone elected unopposed bringing forward propositions that have never been put to the public for our approval.

What more needs to be said? (That question isn't necessarily rhetorical, please do ask questions on it so we can get a good debate going)

Option B

Now, let's be blunt, the fact we have an Option B which includes the Constables is a cop out by the Electoral Commission who did not want to make the only possible decision they could have, which would be to unequivocally recommend the end of the automatic right of the Constables to sit in the States. But whilst that is regrettable, it is too late to complain. It is done. We just have to accept that it will be on the ballot paper and deal with it.

There are no democratic arguments for accepting Option B. None at all. The Commission's own expert advice very clearly shows that Option B is a step backwards for democracy in the island. The principle of "malapportionment" (where different electors votes do not carry the same weight) is fundamental to working out how fair a system is. Here is what the rates are with the options we have (bear in mind that "eligible electorate" are the rates that are normally used) -

This table and context can be found on page 6 here.

It is clear from here that Option A suffers from a very low rate of malapportionment, one that is comparable to countries like Germany and Ireland. Whereas Option B is even worse than the current system (and that's saying something)!

The tables and graphs I produced for my submission to the commission have been confirmed as accurate (to a few decimal places at least) by the commissions own research.

Option B is less democratic for all the reasons that I have already overstated. It means District 5 will have 9 representatives, whereas St Helier will only have 11, even though it has twice the population etc.

This graph above shows how far each of the proposed constituencies deviates from the average number of people per States Member. It clearly shows that Option B is well out there.

What is worth drawing attention to here is the Venice Commission which determines how constituency deviations should be limited to be in line with objective democratic principles of equality. It essentially says that in so far as possible (taking into account culture, demographics, and other boundaries etc), constituencies should not deviate by more than 10% of the average population, but certainly no more than 15% in any circumstances.

Option A shows that all the constituencies fall comfortably within the 10%, except for District 5, which does not, but it is below the 15% limit which is allowed for exceptional circumstances.

I argued that the constituencies should not be Parish based so that the deviation could be limited to just a few percentage points across the board. But I accept that the Parish boundaries have other merits that make them a good source for new boundaries, and so I think on balance it is worth accepting this structure as a compromise that is not too severe as it still falls within the acceptable range of the Venice Commission.

Option B has half of the constituencies fall outside of this acceptable limit, some even double the amount of the limit. In fact, if you take the Parishes as single-member constituencies for the Constables by themselves, not a single Parish falls into the 15% band. Not a single one. Some of them even go into the 100s of percentage points out of the deviation limit.

Article 21(3) of the Universal Declaration of Human Rights says - "The will of the people shall be on the basis of the authority of the government; this shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures."

Since it is impossible to keep the Constables in the States without breaching these international standards, if we vote for Option B that makes these breaches worse, we open ourselves up to legal and human rights challenges. Does Jersey really want that sort of international attention? As a jurisdiction that aspires to be modern, efficient and a good place to do business in the 21st century, is that really the image Jersey wants to be getting across that we are not capable of applying such basic principles of democracy?

As a law student in the UK, I have a hard enough time trying to explain to people the fact our head of the judiciary is also president of the Parliament. That raises more eyebrows than you can imagine. I haven't yet tried to explain to anyone that the heads of our equivalents of the "local councils" are also automatically in the Parliament. I don't think I'll even bother trying.

A Positive Vision for the Future

These democratic arguments will be enough to convince many people, but not all, so our argument will have to consist of more than that. Some people are fully aware that Option B is less democratic, but will be voting for it anyway because of other reasons. One of those reasons will be that they support the link between the Parishes and the States. So lets tackle that argument too.

I believe that if the Constables are kept in States under Option B, it will lead to serious problems in both the parish system and national government. It could also ironically lead to the total demise of the Parish system.

The commissions report clearly states that if the Constables are retained, they must be treated as equals in the States and it must be considered a full time job. In the 21st Century it sounds entirely appropriate to me that those in the States should consider it a full time job, but I also think that running a Parish should be a full time job. I cannot see how the latter is possible if the former is done.

Last week came the barely noticed news that the Constable of St Brelade has resigned from a scrutiny panel because he was struggling to juggle that role with running his Parish. I probably don't need to remind my readers that this particular Constable won his election against the previous incumbent who took on a ministerial role that led to a wide perception that he was not focusing enough on the Parish.

In a chamber of just 42 members, including the Constables, the Constables will have to play a much bigger role in the States than they currently do. If they don't, our government will be worse off because we will only have a pool of 30 Deputies to fish for talent, unlike the 42 we would have in Option A.

They will have to take a greater role in scrutiny, ask more questions, contribute to more debates, bring more amendments forward, possibly become ministers (something which at the moment they do not do as much as the other members). Can anyone imagine that they could do this without detriment to the Parishes? Or alternatively they could remain focused on the Parishes and we have 12 members of our Parliament who don't play an active role. That would be really really convenient for a Council of Ministers to not have to face much opposition.

Without straying too much into conspiracy theory territory, I bet there are lots of politicians who would love to have a smaller chamber with a large proportion of members there just to rubber stamp the Council of Ministers policies. And there is a real risk of this becoming a reality given that many politicians (including most of the Constables) will want to preserve the Constables seats in the chamber and also won't want for Senator Bailhache to face the embarrassment of failing in his number one manifesto pledge to achieve reform. Their natural position will be Option B. Though we have yet to hear anyone specifically come out and endorse Option B.

But just because Option B can be predicted to have this negative impact on the Parishes and States, that doesn't automatically mean that Option A is the solution, so we have to make the positive case for it.

Rescuing the Parish System

I believe that severing the automatic link between the States and the Parishes will improve both systems. The Parishes, as our form of local government, are not currently reaching their full potential. Elections for Constables are rarely contested and elections for other Parish positions suffer from appallingly low turnouts (2% was the last one I can recall). There is huge apathy in the system as it stands.

Some point to Guernsey to predict what will happen to Jersey's Parishes if the Constables are out of the States. Guernsey's Parishes have certainly declined, but Jersey's Parishes start from a stronger position (Guernsey never had honorary policing for example) in terms of it's institutions, but it already suffers from much of what Guernsey suffers from regardless of the fact we still have the undemocratic link (in fact I would say because we still have the undemocratic link).

If Guernsey have not seized the opportunity to rejuvenate their Parish system, it is their own failing, and not because it was an inevitability. We can learn from Guernsey's mistakes and do better than them.

Being in the States holds the Constables back from being able to dedicate all their time to the Parishes and approach them from a different angle and make them more inclusive and participatory.

I'll share a brief anecdote. I reckon my granddad, who is a retired successful businessman (I doubt there is a pair of feet in the island that haven't walked on carpets my granddad had fitted), would make a great Constable. He's got the experience in business, he's a pretty popular guy, knows how to negotiate and get a good deal, plus he was a good employer. A few years ago he and my grandmother voted in the elections like they always do and enthusiastically voted for the guy who won the Constable election because they liked what he had to say about the Parish and he also promised to vote against higher rates of GST and in favour of exemptions for food etc. Needless to say, the first thing that happened when he got to the States was vote in exactly the opposite way he had promised to.

Now, that is just a casual example of political betrayal that virtually everyone is familiar with, but it has ruined what my grandparents thought of their Constable. When my granddad had to speak to the Constable because of a problem with his rates bill, at the end he and my grandmother could not resist telling him that they would never vote for him again because of that betrayal. Forget how well the Constable is running the Parish, because of his politics he has totally put off someone who would be an asset to the Parish from ever wanting to be a part of it.

The Constables having to be political inevitably has this result. It can cause cynicism and actually actively discourage people from wanting to be a part of it because of it's political nature and in extreme cases can cause outright contempt. Severing the link will totally get rid of this. It will make it a neutral position judged by it's outcomes, rather than it's ideology. That is surely a much healthier position for the Parishes?

So I make a direct challenge to the Comité des Connétables - come forward and produce a vision for what the Parishes could look like separated from the States. Show us that it is not the end of the world, and come up with something comprehensive to show us what you would do to reverse the current trend towards the death of the Parishes. When being a Constable is a full time and paid job, it will present the perfect opportunity to fundamentally change the nature of the Parishes and take advantage of the situation to reinvigorate them, get more people interested in taking part to make an effective level of local government that all can be confident with.

Cherry Picking

The whole reason we are where we are now is because the Clothier Report in 2001 was half accepted and half ignored. The States took the bits they liked and forgot the bits they didn't. So, accordingly, the past 12 years have been spent arguing over reform, despite a perfectly good reform package existing.

I say that one of the options we have in front of us is perfectly good enough for Jersey and further to that, there is no need for another decade of wrangling. There will still be battles to be won (the separation of powers being one I'd like to take up the cause of next), but we will have made such huge progress I believe the rest would come much easier.

But there is still time for the States to ruin it. Which is why it is imperative that they do not cherry pick this report.

Months of extensive public consultation and thousands of pounds on expert reports has been spent to come up with their final report and no States Member is capable of doing an equivalent amount for an amendment before the referendum. I know some are disappointed that there is no option of reform including the Senators, but that is just simply because the arguments were not strong enough to be won and they should just rubber stamp the commissions proposals so the people of Jersey can have their say.

To the Disappointed

I understand for many people, Option A does not look like what they would have liked it to. There are plenty of good reasons for believing that every States Member should be elected island-wide or in single member constituencies and you can understand why some must be disappointed.

So I make this plea to them - Just because the aesthetics are not what you supported, it is not a reason to vote against the principles that most of you will surely support.

Whilst a vote for Option A may be a vote for a system of super-constituencies that you may not like, but it is also a vote for wider democratic principles. It is a vote for a system with equal voter parity, an end to uncontested elections, everyone having the same number of votes, a rejuvenated Parish system, and simplicity and fairness across the board. This is surely progress?

A vote for Option C is not just a vote against a reform option that does not look how you would like it to, it is also a vote for the continuation of an unrepresentative distribution of seats, 3 classes of member and a Parish system falling well below it's potential.

I appeal to those with democracy as their ambition to still vote for Option A because it embraces principles that will ultimately make Jersey more democratic and provide us with a better system of government. To reject this opportunity to endorse those principles is nothing more that cutting off the nose to spite the face.

Let the campaign begin! Deputies for the States, Constables for the Parishes!

Sam

P.S. Here are some interviews I did last week -