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

Change that Jersey so desperately needs

I've spent a very large amount of time blogging and campaigning for electoral reform in Jersey and am about to spend even more time on it when the referendum campaign officially begins. But sometimes a criticism of this whole process is made (quite rightly I think), that it isn't the be all and end all and that there are still a great many things that need to be fixed in Jersey before we can have a fully democratic system that ensures the "demos kratos" of democracy is fully applied.

This could not be more accurate.

An outspoken former politician once told me that he wished me all the best with Reform Jersey's campaign and believed that we were arguing for something that was fundamentally right, but that the most important democratic change that Jersey needs is nothing to do with the system, but all to do with the political culture of Jersey. He said that even under the current electoral system, if the people of Jersey adopted a mature political culture that doesn't currently exist, the quality of Jerseys government and democracy would improve far more than a rearrangement of the electoral boundaries will achieve. He believed that this change in culture would only come about when Jersey faced a cataclysmic crisis (a huge hit to the finance industry, or something like that).

I suspect that much of that is right, though I would much prefer that we won the campaign for a fair electoral system and would hope that, from that, a better political culture would naturally develop in Jersey, without a crisis. And so for that reason I remain dedicated to the campaign for Option A.

But this point about Jersey peoples attitude to politics I think is something to really worry about. If people don't treat politics as something that is an acceptable thing to be involved in, it ultimately will impact negatively on democracy and we end up in a situation where we have a government that can't really claim to be founded upon the bedrock of popular consent.

And there isn't just a lack of people actively involved in politics in Jersey, there are actually people who make it their business to actively discourage people from exercising their right to express themselves (including several fake Twitter, Blogger and Facebook accounts specifically created to abuse and libel those involved in intelligent and sensible, but left wing or "anti-Establishment" political discussions. Do watch out for these, because they should not be taken seriously nor given any attention).


Goodmangate

An example of this has been the recent tornado of online abuse that has been shamelessly fanned by the local media against American journalist Leah McGrath Goodman. I'm not going to defend or criticise Goodman here, nor analyse what she said in any detail, but make observations on the reaction to her interview going viral last week.

Whether you love or hate Goodman and what she is doing/ saying about Jersey, one thing that was interesting to note is just how unintelligent the majority of criticism against her was. I saw countless people on Twitter and Facebook posting the interview she did with Russia Today along with a pretty vacuous comment about how "everything she said was wrong".

When I could be bothered to challenge them to say something with a bit more substance, most couldn't, but when they proceeded to repeat that "everything she said was wrong", I would point them in the direction of Rico Sorda's posts and The Jersey Way recordings of States sessions that prove she was right when she mentioned about a Jersey blogger being gagged by the government. (You can argue the rights or wrongs of that, but it is a fact that it has happened). This was enough to convince many people that they had been unfairly dismissive of her, and that (at least) one thing she had said was actually true.

So, a foreign journalist had actually made one particular observation about Jersey that is provably true, yet the instinct of the average Jersey person was to totally dismiss her without any sort of constructive thinking or even spending a few moments on Google. Bit ironic considering one criticism was that we are "insular" as an island.

This relates to a point I've made a few times before that I make again - Patriotism in the final refuge of the scoundrel, and defending Jersey uncritically is actually bad for the island because it is an excuse to brush things under the carpet instead of paying attention to thought-out criticism and acting upon it. Jersey has a habit of trying to demonise those outside the island, to distract the populace from the islands own internal failings. (I wrote about one example here)

Some commentators made legitimate and intelligent criticisms of Goodman (Tony Bellow's blog being a good example), but we also had James Rondel's blog on the subject which demonstrated all of the things I have observed here.

I know and like James and respect him for being committed, articulate, sensible and often showing a lot of integrity (despite having huge ideological differences with him), but his blog demonstrated everything that is bad about Jersey politics. It contained not one single analysis of the accusations she made, and instead threw up all sorts of irrelevant criticisms of American politics. This is the worst of Jersey politics. The issues are ignored and the person is attacked for no reason other than that she had inconvenient and unpleasant things to say about Jersey.

This sort of way of engaging with Jersey politics has to stop. It is not healthy and does not make this island a better place.

What Jersey needs is a political culture that lets people speak their minds and provides forums for those who care about something in Jersey to actively get involved and engage with the political process, through more pressure groups and eventually political parties.

What does a young person who cares about the environment do in Jersey to get involved with the cause? Well not a lot really. There are one or two things, but nothing captivating.

Or even a young person who has suddenly become politically aware and has adopted an ideology (be it conservativism, socialism, etc) and wants to just be a part of a group that talks about these things and has various campaigns that they are involved in.

One thing that I am aware of is a group of Hautlieu students that are wanting to form a Students Association to be an official group made up of students and other interested people to advocate specifically for the interests of students in the island. So that will mean campaigning on higher education funding, how the education budget is allocated etc. But I really dread to think how these enthusiastic and well intentioned young people will suddenly realise that there are huge numbers of horrible people (that is a moderate description) in Jersey that will make it their business to rain on their parade and demoralise them into just giving up. Their tactic will be abuse, not reasoned argument.


A Golden Opportunity

This is all part of why I want to really utilise the upcoming referendum campaign to try and set a standard for politics in Jersey and show that debate is much better when it focuses on the issues, not the personalities, and that anyone can (and should!) get involved.

Many commentators seem to mistakenly believe that somehow this referendum is democratic.

As I argued in my second submission to the Electoral Commission, that is not the case because democracy is about so much more than voting on an arbitrary question. In fact Guernsey has an electoral system very similar to Option A, but they didn't have to bother with a referendum to achieve it because it was objectively more democratic than what they had before. No-one could claim that that process was undemocratic.

Referendums are simply tools used by politicians to get what they want. That's why they are not offered on questions that the executive knows they won't get the answer they want. In a Parliamentary democracy we elect people to make the decisions, not to put random and inconsistent issues to a public plebiscite.

The reason we are having the referendum in Jersey is because for decades the States have been unable to reform themselves, and if there is a clear public endorsement in a direct vote for a particular electoral system, it will become politically impossible for the States not to implement it (though they will still legally be able to ignore it). That is what it is about. It is just a tool being used as a convenient practical assistance to making progress, not for any ideological democratic reasons. But that isn't to denigrate it, in fact I think it's positive, because it will make sure that something is actually done.


A Second Question?

There is some talk at the moment about potentially using this referendum as an excuse to get a few other things out of the way too. Namely, the position of the Bailiff as President of the States Assembly. I opposed two questions on the electoral reform issue, because I saw them as being interlinked, however this I see as a standalone issue and am open to offering it my support for a second ballot question.

We have had two independent reports (Clothier and Carswell) that have said that the dual role of the Bailiff should end and that the States should elect a speaker. But no progress has been made (despite some politicians attempting to get the States to either endorse the reports findings, or put them to referendum), and so for the same reason we are having the electoral reform referendum, it may be a good idea to use this as an opportunity to get the inevitable over and done with.


Separation of Powers

As I briefly mentioned in my last post, the position of the Bailiff as the speaker of our Parliament is just not normal. In any other country, it would be considered a no-brainer that there should be a separation of powers. It is not right for the person who implements the law in the courts to also preside over the creation of the law in the Parliament.

Some argue that current system has never actually produced bad results and that all of our Bailiffs have carried out the role properly. That may or may not be true, but nevertheless, there is nothing to say that the next Bailiff may not carry out the role properly. There are no safeguards. We need a system by which the States (and by extension, the people) have the ability to get rid of a bad Speaker.

One of my favourite Tony Benn quotes is - "If one meets a powerful person, ask them five questions: "What power have you got? Where did you get it from? In whose interests do you exercise it? To whom are you accountable? And how can we get rid of you?" If you cannot get rid of the people who govern you, you do not live in a democratic system."

That last question would be the hardest to answer if we keep the Bailiff as President of the States.

If a Bailiff turned out to be a poor Speaker, but was an excellent judge, what could the States do? By sacking him, we would lose an excellent judge, by keeping him, we would have a States that isn't being managed well. If the roles are separated, that no longer becomes an issue. (Note that that is almost identical to one of my reasons for abolishing the dual role of the Constables). And sacking a speaker is much less controversial than sacking the civic head of the island.

As usual, some have come out with all sorts of strange arguments for the status quo. One incredible argument I heard was that we shouldn't change the system because any alternative would be more expensive! Nonsense. States Members already get a wage, so electing one of them to be the speaker would not mean adding a wage to anyone. In fact, it would mean we have a head of the judiciary that can do that job full time (thus meaning value for money from his current wage) and a speaker that can do it full time (meaning less money needing to be spent on assistants etc). If your concern for public spending restraint trumps your desire for democracy, separating the roles should still appeal to you.

Another point I would make is that on the face of it, the role of Bailiff (and the other law officers) appears to attract only men into the position. If the speaker came from the ranks of the States we would be much more likely to have female representation, which is an area that I think Jersey has a lot of work to do.

Further to that, law is a career that is stereotypically viewed as being mostly pursued by the wealthy. This is increasingly becoming less of the case, but many of the top jobs still go to those from wealthy backgrounds, simply because to train to become a barrister takes a year and it is done totally unpaid, so you need to have significant financial means already to be able to enable yourself to get to that point. Whereas training to be a solicitor is done under a paid training contract. So for years to come, if Jersey's Speaker is the top judge, it is far less likely for us to get someone from a background other than from the privileged ranks. The House of Commons previous speaker was a working class, Glaswegian, former manual worker and he did a great job.

Now, of course I'm not starting a class or gender war and saying I don't want rich men in the States, but I want the role to be able to be occupied by any Jersey person who possesses the skill to carry it out, not aided or inhibited by their background.


21st Century Jersey

The final point to make in favour of ending the dual role of the Bailiff is this - If Jersey wishes to be taken seriously across the world and wants to project an image of this island being a modern, dynamic and forward thinking jurisdiction, we cannot get bogged down in silly traditions that are universally decried as being undemocratic.

When I have spoken to lecturers, fellow students and visiting lawyers at university about Jersey and how our top judge is also Speaker of the Parliament, they genuinely raise their eyebrows in disbelief. I am not even vaguely exaggerating when I say that. To any non-Jersey person, it is just a weird (in a bad way) concept. The question I'm asked is "why on Earth would you give those two jobs to the same person?". I can't answer with "tradition" because I'll just get laughed at.

When I took part in the Commonwealth Youth Parliament in 2011, I was lucky enough to get to ask John Bercow MP, the Speaker of the House of Commons, a question about what it means to be a Speaker. Naturally I jumped at the chance to ask him what he thought about Jerseys system and if he thought it was acceptable, and I recall his words being something along the lines of "it sounds totally inappropriate".

I've even heard some Jersey lawyers who some would regard as being "Establishment" that say the dual role isn't acceptable and really ought to change.

Things like this (and the dual role of the Constables) are things that Jersey people really should be embarrassed by, not proud of, and will have a hard time trying to justify it to foreign politicians and businesspeople who will look at these things in a curious and negative way, not in an endearing way as many Jersey folk attached to their culture and tradition may do.


It is for all of these reasons that a part of me thinks that a referendum would be totally unnecessary, as it could (and should) just be done by the States without the need for all this hassle. But if that isn't an option and a referendum is what it takes to get it done, I say bring it on!


Sam


P.S. To any readers that are interested in being a part of the campaign for Option A, no matter how big or small a role you want, please send me a message with your email address (or email us at reformjersey@gmail.com) and we will make sure you are invited to the next meeting.

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 -

Response to the comments from Guernsey

On the 18th January the Jersey Evening Post published a letter from a former States Member in Guernsey, appealing to us not to end our system of an island-wide mandate. It can be read here.

Well, the appeal was just a part of the letter. Much of the rest was an ill informed attack against the fact we are not being offered an option of change that includes keeping the Senators, as that is "an anti-democratic farce".

This of course forgets the fact that the people of Jersey have every democratic right to vote against any reform and to keep the Senators that way. And also that there has been an incredibly comprehensive public consultation exercise and lots of money spent on expert reports. So it cannot be said that anything is being forced onto the people of Jersey against their will.

I've written a response to his letter to the JEP, so hopefully that will be published, but regardless it is produced below.

I am currently working on a comprehensive post on the Electoral Commissions final report and the upcoming referendum which should be up in a few days.


-


I write following the letter (18th January) from Mr Tony Webber from Guernsey. It is always good to hear from our sister island and learn from both what they do well and what they do badly. But the former Conseiller makes a couple of bad points and from a non-Jersey context.

That context is that Guernseys electoral system is infinitely better than Jerseys current system, in that it provides for almost total equality across the island meaning their States is much more representative of the island than the States of Jersey is. We have an option in the referendum (Option A) that essentially just copies it (though is better because it has STV and all constituencies have the same number of reps). With any luck, when given the chance, the people of Jersey will enthusiastically choose that system.

In an ideal world, all of our States Members would be elected by the whole island, but Mr Webber can’t tell us to keep the Senators without telling us HOW we do it. It is just impossible for 42 members to be elected on one ballot paper. It works well in Gibraltar where they have only 15 MPs and (crucially) party politics. But Jersey and Guernsey are too big for it to work well and we don’t have parties. It’s just not possible.

He uses rhetoric about an “anti-democratic farce”, but he is just being over the top and illogical. All people having the right to vote for all members is not a key component of democracy. The vast majority of countries do not have such a system, the only ones that do, are much smaller than Jersey. The key components of democracy are principles like “equality”. It is entirely possible to have a democratic system that embraces equality wholeheartedly, without an island wide mandate. In fact we have one, it’s called Option A.

We have had an extensive public consultation and thousands of pounds have been spent on expert reports, but no system could be suggested to enable all islanders to elect all members. Further to that, there is no way that having a 2-tier membership enhances the system. Senators are not “senior” to the other States Members, they are all equal when they walk through the door, so they should all be equal in terms of their mandates too.

However, the former Conseillers points on the Constables (or Douzaine reps) are different to his comments on the Senators. Because whilst the island-wide mandate is not a key component of democracy, equal representation is, and having Parish reps in the States makes it impossible to have equal representation, so it is right to unequivocally say that they should not be in the States. What he says about Guernsey not feeling their loss I suspect will inevitably come to be true in Jersey.

But it is disingenuous to say that an absence of an option retaining the Senators is undemocratic for the simple reason that there IS an option. It is Option C for no change. At the end of the day, if the people of Jersey are adamant they want to keep the Senators, they can vote for Option C. It’s as simple as that.

Sam Mézec

The Electoral Commission's final recommendations are almost upon us...

Dear all,

The Electoral Commission is set to release it's final recommendations to the public at a meeting at the Town Hall on the 11th January at 9:30am. They will be presenting to the Privileges and Procedures Committee the day before.

I will be at the meeting, open to be impressed, but ready to criticise if need be. I'd urge as many that can get the morning off work to come to the meeting too.

I'm not going to make any concrete predictions of what will be in the report because I doubt it will be radically different to the preliminary report. But I had heard rumours about a change to the format for the referendum, but looking at the language used in their press release, it appears that may not be the case. We'll have to wait and see.

The format of the referendum will be crucial to how progressives should approach the subject.

The most disappointing thing they could do, will be to have not changed their mind about having a two question referendum. As I and many others who are not affiliated with Reform Jersey have said, two questions makes it virtually impossible to back the reforms, because our votes could end up backing a result in the second question by the result we voted against in the first question. This would flaw the entire process and would mean having to campaign against the whole thing. If the referendum is a single question, then we can campaign positively, which is what we want to do.

So to decide how we act once we know the questions and the exact proposals, we will need a meeting to co-ordinate a strategy.

Reform Jersey is going to be doing a group meeting of our activists in the next week or so. If you are someone that has agreed with what we have been doing/ saying so far and want to contribute, please feel free to send me your email address (I will not publish it) and I can add you to our mailing list so you know when the meetings are and when you can come and be a part of it all.

Many thanks,
Sam