Jersey’s Electoral System and the Venice Commission

At the end of last week, Deputy Southern lodged an amendment to the referendum law to change the format of the referendum so that it removed Option B, to leave it as a simple "yes" or "no" vote on Option A.

I argued very strongly for this format of referendum after the publication of the interim report, but had reservations over whether to seek to carry on arguing after the final report had been written and the draft law lodged. But since Deputy Southern has had the initiative to do so, I have written this report to back it up.

I think it is important to have the facts and statistics laid out bluntly as I have tried to do here. I have also changed some of the charts I had previously used to include the most up-to-date figures available.

Jersey’s Electoral System and the Venice Commission

The Venice Commission says - “Equality in voting power, where the elections are not being held in one single constituency, requires constituency boundaries to be drawn in such a way that seats in the lower chambers representing the people are distributed equally among the constituencies, in accordance with a specific apportionment criterion, e.g. the number of residents in the constituency, the number of resident nationals (including minors), the number of registered electors, or possibly the number of people actually voting.”[1]

It goes on to say – “the maximum admissible departure from the distribution criterion adopted depends on the individual situation, it should seldom exceed ten per cent and never 15%, except in really exceptional circumstances (a demographically weak administrative unit of the same importance as others with at least one lower-chamber representative, or concentration of a specific national minority).”[2]

The Chief Minister, in answers to a question from Deputy Pitman on the 29th January 2013, said “the Venice Commission is a code of good practice in electoral matters and therefore it is not written in law.”[3]

Whilst this is technically true, the European Convention on Human rights is written in law, and Protocol 1, Article 3 states “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature”[4]. However, the Venice Commission is a body of the European Council, the same body that governs the ECHR and provides the courts to uphold the convention. The purpose of the Venice Commission is to define exactly what constitutes a “fair” election, and how constituencies must be composed to ensure that the principle of “equal suffrage” (which is fundamental to the fairness of an election) is adhered to. So to be in contravention of the Venice Commission, is by extension, arguably to be in contravention of Protocol 1, Article 3 of the ECHR, which therefore opens Jersey’s electoral system up to embarrassing legal challenge.

The Chief Minister also went on to say “it does recommend the principle of equal voting powers but it also recognises that there might be exceptions for geographical, administrative or historical boundaries”[5]. As the previous quotations from the Venice Commission show, the exceptions for breaching the 10% deviation limit are to protect minorities and for weak administration units. It is highly unlikely that the Parishes would fall under this category, especially when the functions of the Parish administrations and the States are not fundamentally linked, and when it is possible to combine Parishes to create electoral districts for the national parliament. In fact, one could argue that St Helier would deserve to be overrepresented on the basis that it has the highest proportion of foreign nationals and minorities residing there, and that they currently have no representation at all in the States of Jersey.

Under Jersey’s current electoral system –

Table 1

Parish	Eligible voters[6]	D + C	D+C/E	% Deviation
St Mary	1,340	2	670	-60.7
St John	2,280	2	1,140	-33.18
Trinity	2,370	2	1,185	-30.54
St Martin	2,970	2	1,485	-12.95
St Ouen	3,200	2	1,600	-6.21
Grouville	3,870	2	1,935	13.42
St Peter	4,010	2	2,005	17.53
St Lawrence	4,280	3	1,427	-16.35
St Clement	7,170	3	2,390	40.09
St Brelade	8,590	4	2,147	25.85
St Saviour	10,590	6	1,765	3.46
St Helier	26,890	11	2,717	59.26
Total	77,560	41	1,706	119.96

As can be seen from table 1, of the 12 Parishes, 10 of them fall outside of the 10% deviation limit prescribed by the Venice Commission. The difference between the two furthest deviations is 119.96 percentage points.

When the population figures from the 2001 census are used, the total deviation was 95.5 percentage points. So as the time goes on and different Parishes expand at different rates, the problem of malapportionment is getting worse, not better.

Under the Electoral Commission's proposed Option A –

Table 2

District	Parish	Eligible voters[7]	% deviation from average
1	St. Helier 1	13,960	7.99
2	St. Helier 2	12,900	-0.20
3	St. Clement, Grouvile, St. Martin	14,010	8.38
4	St. Saviour, Trinity	12,960	0.26
5	St. Lawrence, St. John, St. Mary, St. Ouen	11,100	-14.12
6	St. Brelade, St. Peter	12,600	-2.52
		Average – 12,962

Table 2 shows that in the proposed new and simplified system, only one constituency falls out of the 10% deviation limit. However, it does still fall within the ultimate 15% limit. Given that it is impossible to provide better voter equity without abandoning the existing Parish boundaries, it is unlikely that District 5’s deviation would be considered a big problem.

The total deviation from highest to lowest is 22.5 percentage points. This is a huge improvement on the 119.96 points in the current system.

Under the Electoral Commission's proposed Option B –

Option B is complicated by the fact that two concurrent sets of constituencies would exist.

Looking first at the Parishes separately as single member constituencies –

Table 3

Parish	Eligible voters[8]	% Deviation from average
St. Mary	1,340	-79.27
St. John	2,280	-64.72
Trinity	2,370	-63.33
St. Martin	2,970	-54.05
St. Ouen	3,200	-50.49
Grouville	3,870	-40.12
St. Peter	4,010	-37.95
St. Lawrence	4,280	-33.78
St. Clement	7,170	10.94
St. Brelade	8,590	32.91
St. Saviour	10,590	63.86
St. Helier	26,890	416.06
Total	77,560
Average	6,463

As you can see, not a single Parish falls into the 10% limit. The overall deviation is 495.33 percentage points. Using the previous census figures, the total deviation was 425.18 percentage points. So the problem is getting worse, not better.

Now, combining the two sets of constituencies, these are the figures –

Table 4 –

District	Parishes	Eligible voters[9]	Number of States  Members	Voters per D + C	% deviation from average
1	St Helier No. 1	13,960	5.5	2,538	32.19
2	St Helier No. 2	12,900	5.5	2,345	22.14
3	St Clement, Grouville, St Martin	14,010	8	1,751	-8.8
4	St Saviour, Trinity	12,960	7	1,851	-3.56
5	St Lawrence, St John, St Mary, St Ouen	11,100	9	1,233	-35.78
6	St Brelade, St Peter	12,600	7	1,800	-6.25
Total/ average		77,530		1,920

As can be seen in table 4, the total deviation is 67.97 percentage points. You can also see that district 5, despite having a lower population, has twice as many representatives than districts 1 and 2.

Note that half of the constituencies are outside of the 10% limit, two of which are over 3 times the limit.


Conclusion

It is clear from these statistics that the status quo and Option B are both totally incompatible with the limits set out in the Venice Commission. A move to Option B would not fix any of the problems with Jersey’s democratic deficit, and will over time exacerbate the problems and lead to potential legal challenges and years more of debate, which will further disenchant the people of Jersey with politics. Not to mention it will cost more taxpayers money.

However, Option A provides Jersey with an electoral system that will provide all islanders an equal say in the composition of the States of Jersey.

The Electoral Commission itself received an expert report from Dr Alan Renwick that confirmed that Option B actually increases malapportionment from the current system and is in clear violation of Venice Commission.[10]

Option B and the Electoral Commission’s principles and research 

In the Electoral Commission’s report, it outlined what overriding democratic principles must be adhered to for a democratic reform. They were as follows –

1. All electors should have the same number of votes.
2. Constituencies should as far as possible be of equal size.
3. A candidate should generally require a significant number of votes in order to be elected to the Assembly.
4. The electoral system should be simple, fair, and easy to understand. 

Further to the statistics provided, simple logic can be used to further show the problems with Option B.

Option B is incompatible with each of the commission’s principles.

1. Whilst each voter may in theory have the same number of votes, in practice, most Constable elections are uncontested. So those in Parishes with an uncontested Constable election will have one less vote than those in other Parishes. Under Option A, each election will be contested and each person will have the same number of votes.
2. Whilst each super-constituency will have a similar number of voters, the Parish constituencies will have hugely varying populations.
3. Whilst those in the super-constituencies will require a substantial number of votes, that will not be the case in the Parish constituencies. Many will be elected unopposed, and so receive no votes (this may become more common owing to the fact that Constables work load will increase substantially in a reduced chamber). Even in contested elections in the smaller Parishes, the winner will not have obtained anywhere near as many votes as the Deputies.
4. How simple something is, is ultimately subjective. However there is no doubt that Option B is less simple than Option A. There will be two categories of States Member, one of which will be elected primarily to run the Parish (though this contravenes the commission’s report that says they should see themselves as primarily States Members), and many will find it incomprehensible (as they already do) as to why the Constables are necessary in the States to the detriment of equal suffrage. 

Further to this, the commission’s report states that all members (including the Constables) would have to see themselves as primarily States Members, rather than anything else. This would fundamentally change the nature of honorary role of Constable, and ultimately detract from the Parish system which is so important to the island. In a reduced sized chamber, each States Member would be required to take on a greater work load, with more Constables having to take on roles, potentially even ministers.

This would ultimately reduce democracy in the Parishes, as the father/ mother of the Parish would be forced to dedicate themselves to the States before the Parishes.

Option B is illogical and inappropriate. It is evidently a product of having States Members on the Electoral Commission, rather than it being an independent panel. It should therefore be removed from the referendum to save Jersey time, money and potential embarrassment. 

---

[1] European Commission for Democracy through Law (Venice Commission) Code of Good Practice in Electoral Matters, guidelines and explanatory report, paragraph 15

[2] Ibid

[3] States of Jersey hansard, 29/01/2013

[4] European Convention on Human Rights

[5] States of Jersey hansard, 29/01/2013

[6] Estimate using 2011 census data. Same figures as used in the Electoral Commission Final Report page 14.

[7] Electoral Commission Final Report page 27

[8] Estimate using 2011 census data. Same figures as used in the Electoral Commission Final Report page 14

[9] Electoral Commission Final Report page 27

[10] http://www.electoralcommission.je/wp-content/uploads/2012/08/Note-for-the-Jersey-Electoral-Commission-Dr.-Alan-Renwick-9th-October-20121.pdf page 6

Letter to the Chief Minister

One of the most useful blogs out there is The Jersey Way blog. It essentially provides an audio archive of important questions and debates in the States on things of particular interest. The States website does have an archive of hansard, but doesn't have the audio and it is sometimes hard to search through if you do not know exactly what you are looking for. Plus how something is said is often just as important as what specific words were used.

This was one posting that was particularly important to those of us concerned with electoral reform -

http://thejerseyway.blogspot.co.uk/2013/01/questions-without-answers-290113_31.html

Hearing the Chief Minister responding to questions about the Electoral Commission's report and whether it is compatible with various international legal obligations, is a disheartening experience.

He is asked perfectly fairly to outline and justify his support, or lack of it, for a particular option and he just bluntly refuses to do so.

I talked in my last blog about the political culture in Jersey and, despite Senator Gorst being English, I think his answers prove a lot of my points.

He just isn't willing to talk about something that really we should be having a mass public debate on. He won't overtly say what he supports and won't explain why. What we need is to hear what people think and how they came to their views, so we can become more informed and make the best decision on polling day.

So I have written to him (in as nice a manner as I can) to explain this, as well as point out his mistakes on the significance of the Venice Commission and how Option B is totally incompatible with it, and potentially opens us to legal challenge.


Further to this, Deputy Southern has lodged an amendment to the referendum law, which essentially turns the referendum into a "yes" or "no" question on Option A. I hesitated as first over whether to get behind the amendment (on the basis that we shouldn't open the floodgates to cherry picking), but think that I am now convinced that it is worth supporting the amendment.


-


Dear Chief Minister,

I write to you having listened to your answers to questions about electoral reform at the States sitting on the 29th January. As a vocal proponent of electoral reform I am keen to find out the views of States Members and work out who can be considered allies for the campaign so that we can work together on a cross party basis and help frame a healthy debate.

You were asked by Deputy Southern whether you would be happy for a "no" vote/ vote for Option C, in the upcoming referendum. You declined to answer. Deputy Pitman then attempted to tease out from you an endorsement of Option B. Again, you declined to answer.

In an island that suffers from appallingly low voter participation rates, I really do not believe that it is healthy for our political culture for politicians to bluntly avoid answering questions that were quite reasonable. For the people of Jersey to have a good referendum campaign and be informed to make a good decision, there must be an open and frank dialogue with all parties talking about the issues and engaging in well mannered debate. If you have a point of view on the subject, you should have answered the question because ordinary islanders would have found it useful to hear a rationale for a particular point of view, and then consider it when deciding how they will vote.

If serious and important questions (like "what option do you support and why?") are not answered, it denigrates the whole debate. We need to be engaging, not ignoring.

I understand that as Chief Minister you and your Council of Minister colleagues are very busy and may not wish to detract from that by playing an overly active part in the reform debate. I would respect that position. But as Chief Minister, your duty is to enthusiastically take part in these questions sessions to be held accountable to the public through their elected representatives, and so I would like to ask in future if you could be a bit more frank with your opinions. I hope I do not come across badly for making that comment, but I do mean it to be well intentioned.

Further to that I just wanted to correct an answer you gave to a related question. The question was from Deputy Pitman on the importance of the Venice Commission and it's incompatibility with the Electoral Commissions proposed Option B.

Whilst the Venice Commission is, as you say, a "code of good practice", to not abide by it's recommendations essentially means Jersey is adopting a "bad practice" which is absolutely not the image we want to be getting across in the 21st Century where we should be promoting the island as a modern, dynamic and democratic society that is a good place to business in. Not one that struggles to comply with the most basic of democratic principles. 

The Venice Commission may not be legally binding, but the European Convention on Human Rights is, and under Protocol 1, Article 3, it is a fundamental right to have "regular, free and fair elections". A key component of a "fair election", as laid out in Article 21 (3) of the Universal Declaration of Human Rights is "equal suffrage", which the Venice Commission seeks to define. So it is not correctly to imply that the commission has no legal significance, because it may well prove to be very persuasive in a human rights court.

You said that whilst the commission decreed that population figures should be used, they also said cultural, geographic and local authority boundaries could be used too. This is not strictly accurate in the way you meant it. The commission says that population comes first and that no constituencies population should deviate more than 10% from the average population. It only provides an exception to that on the basis you used, but not a total exception, it is qualified that it is still not more than a 15% deviation. It can only exceed 15% to protect minorities or in large sparsely populated areas. This means that the Parish boundaries are absolutely excluded from being used as single member constituencies, because the deviation figures are as follows -

Parish	Eligible voters	% 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

Not a single one of the Parishes falls into the Venice Commission's final limit of 15% for cultural reasons. They therefore cannot remain as an unaltered mechanism for electing single members to our national Parliament. Failing to provide a system that is in line with our human rights obligations opens Jersey up to legal challenge in the European Court of Human Rights or UK courts which would, to put it bluntly, make our island look very strange and backwards to ordinary people in the world who will just think we are mad for not having a system that treats all voters as equals. This means it is fundamental that Jersey does not adopt Option B.

The fact that the option would be chosen in a referendum would not be a defence. A referendum is not democratic if the question is of an undemocratic nature. An overwhelming vote to disenfranchise left-handed people from voting, would not be considered democratic, just because it had been endorsed in a vote. Democracy is about much wider principles of equality and choice that every single person is entitled to on an equal and unqualified basis. Option B and Option C provide the island with systems that artificially create a greater voting power of the country areas over the urban areas. This is unacceptable. All islanders must be equal so that we can be a beacon of democracy and virtue to the rest of the world and not end up like Sark which is having to be bullied into the 21st Century by rich and unpopular oligarchs.

I hope you will consider these points for future questions in the States on electoral reform. I also hope these points could sway yourself and your colleagues to supporting Deputy Southern's amendment to the Referendum Law which will seek to eliminate Option B from the referendum and save Jersey from potential embarrassing legal challenge.

Regards,
Samuel Mézec