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

From the horses mouth - why the bus drivers went on strike again.

Dear all,

I thought that the last post would be the final one of the year, but I was sent this document by a reader and felt it was too important not to share.

Today we had another strike from the Connex workers (this one being fully balloted, not a wildcat strike like the last one) and my views remain unchanged from what they were in October.

It is clear from the information provided here, which I have provided links to, that there was always an understanding and intention that all bus drivers would have their terms and conditions automatically transferred unaltered. This was done on the basis that the last time there was a transfer, the same problems were encountered, so they couldn't be allowed to happen again. In fact, so determined were they to make sure there wasn't a repeated scenario, that they were absolutely unequivocal in specifically saying that the transfer had to be of the exact terms and conditions and not just "similar".

You would think that this undertaking would be enough to make it happen, but apparently not. And of course we have had the same thing happen to the scrap metal workers who have mostly lost their jobs because of a failure to provide for a TUPE transfer in the tender.

It is clear that the TTS Minister was either totally incompetent, or purposely engineered this situation to impose the changes.

Either way, I don't believe he is fit for the job, because ordinary people have paid for his mistakes with their jobs and livelihoods. And it frankly makes me angry to hear him be so complacent on the radio, dismissing any suggestions that it is unfair for hard working folk to lose their jobs on Christmas Eve, for goodness sake, on the basis that "the tender process was fair" when it so clearly was not.

And how convenient this all is for the first strikes at the beginning of this period of discontent to be from the bus drivers, rather than a profession that is far harder to demonise, like the nurses. This coupled with the populist upcoming proposition from Constable Rennard on States Members pay is all just part of the overall strategy to create a consensus that public pay increases are unacceptable in any circumstances. And the principle that those in positions of authority have the right to bully those below them and force them to accept worse conditions.

But anyway, have a read of this. It is what the bus drivers hung up at the bus station during their strike and is well worth a read.

Happy new year!


EDIT -

Following the Channel Report news article on the strike and Deputy Lewis, I wanted to address the points that were made there.

The report can be read here - http://www.channelonline.tv/channelonline_jerseynews/DisplayArticle.asp?ID=503084

Here Deputy Lewis says that the dispute is about the overtime arrangements and how it is worked out, which are not part of the workers terms and conditions package, but are part of an "informal agreement". Since it is part of this informal agreement, it does not constitute a part of the transfer, which has been an exact transfer of the standard terms in a week.

This is absolute nonsense and would not stand up in court for one moment.

It is my view that there is absolutely no way it could be considered an "informal agreement" in the legal sense of it.

Why? Simply because for something to be a legally binding contract, it needs to satisfy these three elements -

1. There must be a clear agreement (consisting of an offer and acceptance). 
2. There must be consideration (i.e. what is actually transferred between the parties, e.g. money, goods, a service etc) that has passed between both parties (it cannot just be a one way transfer). 
3. There must be an intention for it to be legally binding.

Note, that it is NOT a requirement for there to be a written document with a signature on it at any stage. If all contracts had to be written down to be binding, we would spend most of our lives signing papers because we can enter up to dozens of contracts every day. And when things are written down, it is also not a requirement for all of it to be consolidated in one document. All that matters is proving that those three elements are present.

When a bus driver works overtime, all three of those elements are so blindingly obviously there. If a driver worked a few extra hours and was not paid for that work, the employer would be sued and it would fall under breach of contract. Despite it not being written down, it would be implied into any contract anyway because it was obviously a proper arrangement in employment and the usual business practices are adopted.

This is basic contract law. It was not an informal agreement, it was a wider part of their terms of employment and should have been transferred along with the rest of the contract.

"The amounts of overtime that some drivers were doing with Connex do not comply with health and safety."

Well there are a few things to be said there. If Connex were operating under standards that were not health and safety compliant, then TTS should be coming down on them like a ton of bricks. Given the mistakes he made on referring to the law before, I am unsure when he says it isn't compliant as to whether he means that in a strict legal sense or not. There is plenty of things that aren't safe, but aren't covered by health and safety laws yet, but the phrase may still be used to refer to them by laymen (which he so evidently is). Given that no action was taken against Connex, I'm inclined to think that he is not actually saying there has been a breach of the law.

This coupled with the fact that the hours that can be spent behind a wheel for bus drivers is exactly the same for taxi drivers and coach drivers etc so are all of them in breach of health and safety too? If they are, why on Earth is the TTS Minister just focusing on the bus drivers when he should be pursuing all of them?

An interview with one of the bus drivers can be heard here from 02:07:20 - http://www.bbc.co.uk/iplayer/episode/p0122gvs/Matthew_Price_30_12_2012/

It is clear from this that one of the workers primary concerns is keeping the public safe (and of course it would be because if a bus is crashed a driver will be hurt too!) and they are happy to have limits put on them over how many hours they can drive.

Their view is that imposing contract changes on the bus drivers does not address the problem, which can only be fixed by legislation.

If Deputy Lewis was genuine about his supposed desire to limit the hours they could drive, why did he not bring it up in his negotiations with the workers earlier in the year, before the tender was put out? Why did he bury his head in the sand and wait until it was too late and industrial action became inevitable? This was totally irresponsible of him. If he didn't know that such a change would annoy the workers, then we really have to wonder if he is fit to be the minister.


-

Why more bus strikes?

Back in 2002 when Connex took over the running of the bus service in Jersey it was placed in to the tender documentation that all staff were to be transferred with their terms and conditions unchanged, Connex abided by this with the exception of the shift allowance that had been awarded as part of a pay negotiation prior to them starting the service. The public services committee (now TTS) overruled Connex's claim that they had no knowledge of this pay adjustment and upheld the conditions of tender that stated they had to pay this to relevant staff. A Judicial Greffe enquiry was then carried out into the problems that had been caused over this pay deal that culminated in an official response in Aug 2005. The findings of this were that the wording of the tender was not clear enough and they recommended that the wording should be changed regarding the T&C to state that all staff should be transferred 'with T&C similar or no less favourable , the committee responded by saying that THEY felt this was still open to misinterpretation & that they HAVE ALREADY changed the CONTRACT TO RUN THE BUS SERVICE IN JERSEY to state that any renewal of the contract or any new tender MUST TRANSFER ALL STAFF WITH THE EXISTING TERMS & CONDITIONS SET AT THE INITIAL DATE OF THE TENDER PROCESS, (available at the States assembly web site, document no R.C.58/2005, recommendation 4). The Chief Minister also made a commitment to follow the Cabinet Office Statement of practice for TUPE (Transfer of undertakings & protection of Employees) which protects employees in these types of situations.

FAILURE TO FOLLOW THESE TERMS OF CONTRACT AND PRACTICES HAS NOT ONLY COST ALL CONNEX STAFF THEIR TERMS & CONDITIONS IT HAS ALSO LED TO THE REDUNDANCY OF SEVERAL STAFF AT THE LOCAL SCRAP YARD!

WHO’S NEXT?

TEACHERS? NURSES? PORT STAFF?

This is why we feel the need to show our anger at the failure of the Transport Minister to protect employee rights and his failure to follow his OWN DEPARTMENTS conditions of contract.

EXTRACT FROM DOCUMENT R.C.58/2005

Recommendation 4

In the absence of “Transfer of Undertakings: Protection of Employment” Regulations such as are in force in the United Kingdom, in the event that a Committee or Minister has to give an undertaking as to future terms and conditions of employment it should be “on terms no less favourable than those in force on [the operative date].”

The Committee does not understand how the inclusion of the term ‘no less favourable than’ will ensure that the shift allowance experience cannot recur. If the tender documents had included this phrase, the Committee believes the issue could still have arisen and tenderers could have submitted bids on differing terms and conditions but still fulfilled the ‘no less favourable than’ clause. However, the Committee does accept that absolute clarity as to employees’ terms and conditions must be ensured in any future tendering process. To this end, the Committee had already amended the Conditions of Contract for Local Bus Services agreed between the current operator and the Committee (of which the Committee of Inquiry had received a copy) to include a clear statement regarding the operative date. Clause 18.3, which refers to ‘Consequences of Termination’, includes the following conditions –

“ On expiry of the Contract . . . the Committee shall . . . . require in any tender documentation that the incoming service provider submit proposals that ensure that all of the Contractor’s staff . . . . are taken on by the incoming service provider on the same terms and conditions as apply at the date of the issue of any tender documentation. . .”

What this revision does is to ensure that ‘the operative date’ is not some months in the past – as it was during the tender process under review where the 1st August date had been agreed by the States during the Bus Strategy debate – but is current and relevant. The Committee believes this will ensure that all tenderers submit bids on the same basis and any change to terms and conditions can then be accounted for subsequently.

AND THIS IS INFORMATION FROM THE HANSARD REPORTS ON THE STATES WEBSITE

HANSARD REPORT 12/6/12

2.8.6 Deputy S.G. Luce of St. Martin:

I do not want to repeat Deputy Southern’s question but maybe I could be a little bit more specific.  Would the Minister tell the Assembly whether it is his intention to transfer terms and conditions from Connex to the new buscompany?

Deputy K.C. Lewis:

Yes, as I say, it is all under negotiation at the moment with the preferred tenderer, CT Plus, that all the basic conditions would be carried forward.  With regard to pay, I think they would be linked to the 2011 pay scale.

HANSARD DOCUMENT 23/10/12

2.6.4 Deputy G.P. Southern:

Using the Minister’s own words, what responsibility does the Minister accept for his failure to learn from the trials and tribulations of the previous contract change and to address and minimise the risks associated with the transfer process this time?  There was seemingly a failure.  Here we are a fortnight on from the 10th October meeting and we have had a strike.  Surely the Minister must agree that he has not succeeded in minimising risks.

Deputy K.C. Lewis:

Under the circumstances, I think things have gone very well.  Great play has been made of clause 18.3 on the expiry of the contract or early termination, I will not go through the whole thing, but is taken over on existing terms.  But the proviso is: “Provided always that the contractor shall fully co-operate with both the committee and the incoming service provider by providing them both with such employee information as is reasonably necessary for the committee to compile any tender documentation and for bidders properly to price their bids.”  That was very slow in forthcoming.  There was a document I have here from Deputy Southern as of several weeks ago which is… I believe it could be one of the driver’s documentations.  Employee name redacted, address redacted, salary redacted, pensions redacted.  This was insufficient information for the bid to be compiled.  This is why we have the problems now.  

HANSARD REPORT 6/11/12

The successful tenderer's submission

6. HCT Group is the parent company of CT Plus Jersey Limited ("CT Plus"). HCT Group's response to the second stage of the tender process was submitted under covering letter dated 14 June 2012. This response was submitted on the basis of a "seamless transfer of staff".

HCT Group stated:

"…we will not change any of the staff terms and conditions we have been made aware of in

the first stage tender documents, for the first nine months of the contract."

HANSARD REPORT 6/11/12

Questions asked by Deputy Geoff Southern and answered by Deputy Kevin Lewis (TTS)

(iii) On what date did the Minister satisfy himself that CT Plus were fully aware of the terms and  conditions under which Connex drivers were employed?

(iii) This was undertaken, as for all tenderers, as part of the First Stage Tender evaluations  between mid October 2011 and end of January 2012.

(iv) If this was after 14th June 2012, what reliance, if any, could be placed on the HCT Group  response of that date, if before, why have those guarantees of no change to terms and  conditions terms not been met?

(iv) CT Plus bid for the 2013 Bus Operator’s Contract was on exactly the same like for like basis as the other tenderers. Of course as a charitable Social Enterprise CT Plus’s company’s structure and motivation is different to the traditional corporate model, as it does not have to return a dividend to shareholders, but reinvests any money made back in the community where it is generated to create social good, such as transport for older and disabled people or community groups or training for the unemployed. This aspect of CTPlus’s operations was excluded from the quality / cost tender assessment as it was not part of the evaluation criteria.