Saturday 20 July 2013

Letter to the JEP Re: States voting against Option B

Just a brief update with the letter I have sent to the JEP following Tuesdays vote not to implement Option B into law. I will do a full update when I have time.

-

Tuesday’s vote in the States not to implement Option B into legislation was a sad day for democracy. But we must rest assured that the alternative would have been a catastrophic day for democracy.

It was a sad day because it is utterly shameful that this state of affairs has ever been allowed to happen and that it got as far as it did. The public were presented with a flawed set of reform proposals in a sham of a referendum after the reform process had been hijacked by politicians with vested interests.

We were meant to have an independent Electoral Commission whose primary aim was to create a fair democratic system fit for purpose in the 21st Century. Instead we had three biased States Members (who had already declared their support for the retention of the Constables and lowering the numbers to 42 for some inexplicable reason) create a system that was judged by all expert observers as being less democratic than what we currently have and non-compliant with the Venice Commission Code of Good Practice on Electoral Matters (which therefore makes it a bad practice).

No self respecting democracy would ever have allowed that to happen (in fact our sister island the Isle of Man has just done the precise opposite).

The reform that was before the States was undemocratic in that it left the rural parts of the island totally over-represented at the expense of the urban areas. No number of referendums can legitimise that sort of gerrymandering and taking away the right to an equal vote of the residents of St Helier.

In fact, the majority of voters in April’s referendum actually voted against Option B! Even after 2nd preferences were counted only 8,190 people voted for it, when 16,779 came out to vote. That is less than half. That is not manipulation of figures, it is simple arithmetic. This still ignoring the fact that ¾ of population didn’t even vote. By no stretch of the English language can what the States did be described as “ignoring the will of the people”. The people were either totally ambivalent or totally divided. There was no mandate for this change, especially when the change itself was unfair and undemocratic on voters in St Helier who are not second class citizens.

28 States Members have stood up and risked a slating in the press and unpopularity because they actually stood up for the people of Jersey and said that we could not have an electoral system as ridiculously unfair and undemocratic as Option B for which there was no real mandate. Deputy Baudains described the reforms as an attempt to “consolidate power”. He was spot on and thank God it lost.

So long as those 28 retain their commitment to seek a fair democratic system for Jersey, then they deserve our congratulations and thanks, not our contempt.

For Reform Jersey, the campaign for equality and fairness in our electoral system carries on.


Sam Mézec - Chairman of Reform Jersey

Wednesday 10 July 2013

My Report on Deputy Green's Amendment


I have distributed this report amongst States Members to lobby them to support Deputy Green's amendment to the Option B legislation to create an extra St Helier district, so that St Helier isn't disgustingly under-represented as is the plan now.

I should clarify my position first before I get accused of abandoning my principles -

I do not, nor will I ever accept that it is good for Jersey's democracy to have a two tier system, nor that it is good for the Parishes for their heads to be States Members.

I will always continue to argue that the Constables shouldn't be in the States and we should have one type of States Member, each with as much democratic legitimacy as the rest.

I believe that the best government (which is what Jersey deserves) is also the most democratic government.

But I also fundamentally believe that you have to live in the real world and play with the hand you are dealt with.

The sad reality is that next week there is a chance that the States may vote to implement Option B and Jersey will have a less democratic system than what we have now (and what we have now is pretty bad too). That is the worst case scenario. We have to accept that this is what might happen, and try and mitigate things as much as possible.

If Deputy Green's amendment is successful, it is better to fall back on that, than to fall back on Option B unamended.

The States will have to vote for or against any amendments, and then vote for the overall legislation. If I were in the States I would vote against the legislation, but still vote for the amendment, because if I was outvoted on the overall package, at least the amendment would be there as a safety net. Voting for the amendment is not legitimising it as a system, it is simply mitigating your losses and preventing an even worse system from being adopted.

Neither proposal is acceptable, but Deputy Green's amendment is far better than Option B on it's own, so it is better to eliminate the possibility of Option B, so that it becomes a debate on the new system instead. I have met with Deputy Green to offer him my support and I have confidence that he is doing this for all the right reasons.


If I'm really honest, I would quite like Option B to go through unamended so we can take it to the Privy Council and have lots of fun! But that is for another day...

In the meantime, here is the report -



P.64/2013(Amd)(2) 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]

With regards to the above criterion, it is abundantly clear that the States reform proposition P.64/2013 is clearly not compatible with this international code of good practice for European democracies.

Whilst the Venice Commission is not a piece of legislation, it is a “code of good practice” and therefore to be in breach of it is to have a bad practice. A jurisdiction that is not capable of creating a fair electoral system is not the image Jersey should be aspiring to in the 21st Century and it will be challenged in the Privy Council if it is passed.

The figures for the P.64/2013 reforms are as follows –

District
Parishes
Eligible voters
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



Half of the 6 districts fall well out of the limits prescribed by the Venice Commission. Two of them are over double that limit.

In the Electoral Commission’s own research by Dr Alan Renwick of the University of Reading, it is very clearly demonstrated that the reform option being put before the States actually provides for worse voter equity than the current system. Despite some States Members contributions to the reform debate in April, Dr Renwick very unambiguously states that this system is not compatible with the Venice Commission’s criterion.[3]

When the biggest failing of Jersey’s electoral system is that it is an unfair system, to then propose replacing it with a system that is even less fair defies logic.

The Oxford dictionary defines the word “Reform” as - “[Verb] To make changes in (something, especially an institution or practice) in order to improve it.”

Given that the “reform” is objectively more unfair, it does not even technically fit into the definition of reform.

States Members will have had their various reasons for backing Option B in the reform referendum in April. Most of these reasons will be concerning perceptions of the reforms impact on the islands valuable Parish system. These may be perfectly reasonable and genuinely held beliefs, but they must be reconciled with the fact that Jersey must uphold its commitments to democratic principles, as this is the 21st century and anything less is unacceptable (and even illegal, given European human rights law).

To reconcile this desire to keep the link between the Parishes and the States alive with your duty as States Members to uphold democracy, a compromise has to be sought.


The Deputy Green amendment

Deputy Green has lodged an amendment which aims to provide this compromise.

His amendment will essentially implement Option B, with the simple (yet significant) change of adding an extra electoral district in St Helier, with its own 5 Deputies.

This reduces the number of States Members, whilst keeping the Constables in the States, but does not deprive St Helier of its fair share of representatives.

It is in line with the principles that were voted for by the majority of those in the country Parishes, whilst addressing the primary concern of the voters in St Helier who overwhelmingly voted against this proposed reform.


In terms of its compatibility with the Venice Commission, these are the figures –

District
Parishes
Eligible voters
Number of States  Members
Voters per D + C
% deviation from average
1
St Helier No. 1
9,130
5.3
1,723
3.05
2
St Helier No. 2
9,710
5.3
1,832
9.57
3
St Clement, Grouville, St Martin
14,010
8
1,751
4.72
4
St Saviour, Trinity
12,960
7
1,851
10.71
5
St Lawrence, St John, St Mary, St Ouen
11,100
9
1,233
-26.26
6
St Brelade, St Peter
12,600
7
1,800
7.66
7
St Helier No. 3
8,020
5.3
1,513
-9.51
Total/ average
77,530
47
1,672




A comparison of these figures with those for the unamended proposal can be found as Annex 1.

It is immediately clear that this proposition provides a system that is objectively much fairer than what P.64 is proposing. It goes from having half of the 6 districts being far out of the Venice Commission limits, to having just one district being out of the limits.

Any politician that is committed to democracy and fair representation to all should find it very difficult to argue that this amendment should not be accepted.


The Referendum Result

One argument against accepting this amendment is that is creates a specific system that was not put to the public in the referendum in April. This is true and this point will probably carry much weight amongst many States Members and members of the public.

But it must be said that though Option B won the referendum by the prescribed rules, it did not obtain a majority from all voters.

In the referendum, 16,779 islanders voted, but only 8,190 voted for Option B. Most of those that voted for Option C did not indicate their second preference, and so their votes were not carried into the second round. This on top of the fact that the turnout was only 26% of the electorate.

I would submit that when the purpose of the referendum is to legitimise a reform that is built on unfairness, the threshold for an appropriate mandate is much higher than for something that is not objectively unfair.

The majority of islanders that voted in the referendum voted against the system that is now being pushed for implementation. The argument that “we are just doing what the public have said” is simply not true.

But what can be said is that a very clear majority of those that voted (80%) in the first round backed changing to a system that reduced the number of States Members and swap to larger electoral districts, so there is clearly a mandate for those particular changes, but they were split almost evenly down the middle on whether the Constables should stay or go.

On top of this, the States must accept that the islands capital, St Helier, must be treated with the same respect and dignity as the rest of the island. St Helier voted over 2:1 in the referendum for Option A, above Option B. It is fairly safe to assume that this will have been because Option A was the only option on the table that gave St Helier equal representation with the rest of the island on a population basis. St Helier has a 1/3 of the islands population, and so it is not unreasonable to suggest that they should therefore have 1/3 of the overall political representation.

To impose a system that disenfranchises St Helier as badly as it does and against their will by a huge margin is inarguably undemocratic by any standard.


Deputy Green’s amendment will allow the States to implement Option B but avoid this undemocratic catastrophe. A failure to accept the amendment will inevitably do two things –

  1. It will not silence the calls for further reform, it will make them louder. A system that has at its very foundation the unfairness and injustice of Option B will not be sustainable in the long run.
  2. It will push many that currently believe the Constables should remain in the States to change their mind, because it will be their presence in the States that causes this unfairness. Plenty of democrats will be happy for the Constables to remain, but not at the expense of fairness for St Helier. The retention of the Constables will make them unpopular amongst those that are under-represented because of them, and that is not healthy for the States or the Parishes.

It is clear that Deputy Green’s amendment aims to bring both sides of the argument together and reach a compromising point that caters for the extreme worries of both sides and provides a much better platform for progress in the future.



I urge all States Members who care about fairness and democracy to back this amendment.





Annex 1




Note – lines going upwards represent under-representation, whereas lines going down represent over-representation.




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

Tuesday 2 July 2013

Deputy Green's Reform Amendment and the Venice Commission.


A very very brief post to put something in context.

Deputy Andrew Green has lodged an amendment to the ridiculous reform law, in an attempt to make it fairer.

It can be read here -
http://www.statesassembly.gov.je/AssemblyPropositions/2013/P.064-2013Amd(2).pdf

It is worth reading the report that goes with it to understand the context in which it is made.

Essentially the purpose is to rectify some of the problems with Option B as a system to make is less unfair.

What is at the very heart of Option B is this unfairness that those that created and campaigned for Option B had no interest in fixing nor even properly addressing in the referendum campaign. Such a system is astounding in the 21st Century that politicians, in what purports to be a democracy, can accept without protest.

Deputy Green's amendment creates a new electoral district in St Helier, so there will be 3 instead of the proposed 2. This new district will be the same as the others having 5 Deputies, taking the total number to 47 (and alleviating some of the worries with regards to having enough members to do the work).

I have very quickly worked out the population figures to see how this system would fit in with the Venice Commission's criteria.

Here is what I have found -


District
Parishes
Eligible voters
Number of States  Members
Voters per D + C
% deviation from average
1
St Helier No. 1
8,953
5.3
1,689
1.02
2
St Helier No. 2
8,953
5.3
1,689
1.02
3
St Clement, Grouville, St Martin
14,010
8
1,751
4.72
4
St Saviour, Trinity
12,960
7
1,851
10.71
5
St Lawrence, St John, St Mary, St Ouen
11,100
9
1,233
-26.26
6
St Brelade, St Peter
12,600
7
1,800
7.66
7
St Helier No. 3
8.953
5.3
1,689
1.02
Total/ average

77,529
47
1,672




Compare this to what the reform is set to be if this amendment does not go through -


District
Parishes
Eligible voters
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



It is very clear already that Deputy Green's amendment is substantially fairer than the current proposal. It still has one constituency that is out of line with the criterion (which says that no constituency should deviate more than 15%.


Here is how it looks as a bar graph -



Little more needs to be said.


Any politician that votes against this amendment cannot claim to be a democrat.


More commentary to come soon...




P.S. Apologies for the brevity of this post. I am in a hotel with limited wifi access!