The Electoral Commission has been taking submissions and holding hearings. The one advantage of the hearings, I suppose, is that it enables the Commission to ask questions relating to submissions, although this does mean that, in cricketing terms, they can bowl a googly to the person in front of them. That's no bad thing, but it is a pity that the hearing is the last word - there is no reason why the person involved shouldn't think about the questions asked, and provide a further submission which address those matters.
The hearings are also useful because they also allows us a glimpse of how the Commission's thinking is proceeding, or at least how Sir Philip Bailhache's thinking is proceeding.
I've been looking at recent submissions and hearings, and when Ian Gorst's is up, I'll comment on that - in the meantime, here are a few comments on others. I hate to say it, because I've crossed swords with the Senator on other matters, but Senator Ozouf's hearing is one of the most coherent, well argued, and I actually agree with quite a lot of what he says! Pierre Horsfall is also quite good, but I'm not convinced that most people will understand PR, or that it could be counted out without significant delays or changes (and costs) to the voting system. As for online electronic voting, or even plain electronic voting, I'm still not convinced - from the USA and UK - that the problems of abuse have been ironed out.
Lack of Statistics
There's a submission by Connétable John Refault on behalf of the parishioners of St. Peter, which notes that "The Parish of St Peter held a meeting of Parishioners to get a broad selection of views from them on the Electoral Reform. The results were as follows:- Retain the 12 Connetables - have 12 Deputies, one for each Parish and an further number of Senators with no agreement on number with Island wide representation."
What we don't know - and really need to know - is how many people attended the said meeting. Parish Assemblies can be packed on some issues, but on others, there may only be half a dozen people present. Without knowing that, any indication that this somehow is representative of the Parish is just so much hot air. A random poll of Parishioners by telephone would achieve a more representative result. And there is nothing on the Parish website - not even in the Parish events archive! I've emailed Mr Refault, and hope to find the information, which will give us a more accurate picture.
Balancing the Parish against the Centre:
A hearing on electoral districts by Sam Mezec about grouping together Parish districts gave rise to the following question by Professor Ed Sallis:
We have had people, though, who have suggested something similar, that the problem is let us say you put together, I do not know, St. Peter and St. Brelade - just for argument's sake - and then you end up not electing anybody from St. Peter because the majority of the population is St. Brelade. Would you think get people in St. Peter saying: "We do not have representation any longer, the bigger parish has overwhelmed us" do you see that as a problem or not?
This is a good point, and I'm not sure that Sam adequately answers it. My own solution is to have larger districts to cluster Deputies - 5-6 per district, possibly aggregating Parishes together, but to retain the Constables to ensure the Parish representation. That was the Sherman solution in the United States, where there is a balance between electing people to the States there, and ensuring that no single State should lack representation. That's done through an upper house there, but there seems no reason why it could not be done though the same house in Jersey.
The Connecticut Compromise (also known as the Great Compromise of 1787 or Sherman's Compromise) was an agreement that large and small states reached during the Constitutional Convention of 1787 that in part defined the legislative structure and representation that each state would have under the United States Constitution. It retained the bicameral legislature as proposed by James Madison, along with proportional representation in the lower house, but required the upper house to be weighted equally between the states. (1)
The reason for this was to retain a degree of balance. Less populous states like Delaware were afraid that the trend to proportional representation would result in their voices and interests being drowned out by the larger states. The thrust of the proposals were to ensure the balance, so that the smaller States should not see their voice drowned by the larger States:
The report recommended that in the upper house each State should have an equal vote and in the lower house, each State should have one representative for every 40,000 inhabitants. (1)
The compromise was proposed by Roger Sherman and modified slightly by Benjamin Franklin. It was to ensure each state was equally represented in the senate, which was the main aim of the smaller states. That seems to be to be of the essence of the problem in Jersey: how to ensure that representatives cannot be elected who actually have no Parish allegiance whatsoever, and who may therefore decide on matters in which Parishioners have no voice at all. Larger districts for Deputies (so that they become quasi-Senatorial) and retention of the Constables achieves this kind of balancing act. Part of the reason for the Sherman compromise in the USA was to balance the small against the larger.
One of the fundamental arguments that John Stuart Mill took up and expanded on was John Adam's idea of the "tyranny of the majority". Mill sees that this occurs when a government that takes the majority view of its voters can use that power to oppress a particular minority. This of course, notoriously occurred in Jersey when in October 1799, the States passed a law imposing banishment on all Jerseymen who refused to conform with the laws and usages of the Militia Act. This required Royal Consent in Privy Council, but it was so drawn as to suggest that it was aimed only at the most obdurate offenders. There was no mention of the Methodists nor of their petition, although it was directed specifically against them.
It is therefore, not impossible, that a majority could exist which could impose its decisions on a Parish against that Parish, and in a situation - as described by Professor Sallis, where the Parishioners had no representation to support their case. That is something which need to be avoided, and I think that the USA provides, in macrocosm, a history of the compromises to achieve that, which should receive very careful consideration in Jersey.
We can see the opposite extreme in the submission by Deputy Luce of St Martin, who wants - somehow - a kind of Island wide mandate. His position is not entirely coherent, but roughly speaking, it seems he wants to retain the Constables, but have every other States member elected on an Island wide mandate. This - as he himself notes - means that some extraordinary results might occur:
I think it is important to get the best people for the job of States Member and that may well mean that all 40-50 people may live in St. Ouen.
The problem with an all Island mandate is well stated by Senator Bailhache:
That gives rise, probably, to the question which arises the wish to have a larger number of people with an all-Island mandate, which is something that a number of people have said to us. We wonder if you have any ideas as to how one solves the practical difficulties. Suppose we have 30 Senators or 30 people with an all-Island mandate. How do we cope with 70-80 people on the platform?
Deputy Luce's proposal is for a 6 or 8 year term, with half the Senators being elected each time. He would do away with the Deputies, but later in his interview, he changes his mind, and suggests that either a Deputy of Constable for each parish would be possible:
If you are not going to elect your Constables to the States - and I would say they are in or they are out but there is no compromise - then I think you need a Deputy or somebody to deputise for the Constable to represent the parish, because I get back to parish representation is vitally important.
But he is clear that the Constables must all be in the States or Deputies to - effectively - Deputise for them, not a mixed bag of Constables or Deputies.
But the split of the voting from one general election day brings a problem which is well stated by Juliette Gallichan:
The Connétable of St. Mary: If we do away with the single-day election, if we have a staggered election, what do you feel about, for example, the Chief Minister elected in one Assembly at the end of 4 years, not having been elected at that time, if he is one of the ones that was in the interim period? If we do away with the single-day election, if we have a staggered election, what do you feel about, for example, the Chief Minister elected in one Assembly at the end of 4 years, not having been elected at that time, if he is one of the ones that was in the interim period?
Deputy Luce, with his "best man for the job" approach does not see this as a problem. I think he is mistaken, and looking at his hearing, there are three important issues raised:
1) An all Island vote for States Members can lead to the "St Ouen" scenario, where all the members might come from just one or two Parishes. In practice that's obviously not likely, but nevertheless, some Parishes may be under represented or even not represented at all and we face the same problem of whether we want to retain the Parish system. This is partly addressed by the retention of the Constables, but not adequately.
2) An all Island vote for States Members, even if they were split between two terms of office, is still incredibly difficult in practical terms - voting for 17 people is just overload. I don't think this has been adequately thought through by its proponents. It does achieve proportionality, but at the cost of making the voting system almost unworkable. I couldn't vote for 17 people easily, and I seriously doubt if anyone could. Hustings would be unworkable.
3) The split of a general election day sees the return of a Chief Minister who has not faced the people in an election. If the powers of a Chief Minister are increased, so that they have more say over who they can propose, this should involve more checks and balances. This would be a retrograde step.
The submission of Brian Bullock throws up another issue relating to the Constables. This is one of the problems with a Clothier style solution, in which the Parish are just represented by Deputies, but a Constable can stand as a Deputy if he or she wants to.
Mr B. Bullock: If you have a problem within your Parish, you do not go to your Deputy, you go to the Parish Constable. I think that will always be the case in Jersey. I have referred in my list, even, to the parishes. I personally believe that is sacrosanct. What I do not think is necessary is to burden, in some cases, the Constable with also being a States Member, possibly a committee member, which has got to take them away from their role as father of the parish if you are multiplying the amount of work. But I can see that the parishes, through their Constable, although they have got a Deputy as well, might well have some argument in certain things that are brought up within the States Assembly. So I made what I thought was a pretty cunning compromise there, that they are always allowed to attend but they are allowed to speak if the issue affects the parish. But the other part of the compromise, any Constable can stand for election as a Deputy, or whatever you call a States Member.
The Connétable of St. Mary: How do you think it might be if say, 6 of the Constables are successful in that and so 6 parishes are directly represented in the States but 6 are not?
Mr B. Bullock: That is because they chose to do so.
The Connétable of St. Mary: Or because they wanted to, but the electorate did not choose them.
Senator Sir P.M. Bailhache: I am rather troubled by this. I see the logic of taking the Constables out of the States and saying: "That is a job which you can do and it only takes a couple of hours a week, but it is an honorary job, and so ..." whatever. Maybe it takes longer than that, but whatever amount of time it takes: "and if you want to be in the States, you will have to stand as a Member of the States of Jersey." What puzzles me, and I would just like you to explore this a little bit more, is how you would mix the 2 up. It is the same question, I suppose, as the question the Constable put to you. Where does it lead us if we have, in fact, 6 Constables in the States and 6 Constables not in the States? It just has a funny feel to it, does it not?
Mr B. Bullock: It does not have a funny feel to me, but you as a States Member may feel that. They would sit there, not as Constables. They would sit there as a States Member.
Senator Sir P.M. Bailhache: The ones who are in sit there as States Members.
Mr B. Bullock: Yes, and they could only get there by being elected.
Senator Sir P.M. Bailhache: So at the moment you have a block of Constables sitting in the States, but we would split them up in the future, as between those Constables who have been elected as Members of the States who would sit in the appropriate ... and then there would be another corner of the States where the honorary Constables would sit, who were there by right of ...
I can see where Senator Bailhache is coming from - some Constables would be able to speak and vote on States matters that concerned the Parishes, and others would not, perhaps only able to speak but not vote. This certainly seems a problem. It assumes the Deputies would be adequately briefed in those cases to speak on behalf of the Parish, and yet the voting record of the States shows that Deputies and Constables do not vote the same way. In the matter of States buildings, and Parish Rates, for example, a Constable who is looking after Parish finances might well have a stronger opinion that a Deputy who would be more detached from that consideration. The situation for a Deputy and Constable over Parish affairs is very different. It is certainly something to ponder.
Deputy as probation, Senators as experienced
One of the matters which keeps arising is the idea of Deputies as serving a term of introduction to the States before more experienced Deputies seeking election as Senators. One idea which has not, as far as I can see, been mooted very largely, is a consequence of this: the idea that Senatorial candidates can only be drawn from the rank of Deputies.
While that makes sense on the basis of the argument that the Deputy needs to learn the ropes first, it is surely not fair in that it excludes people from standing to the States. It says that the only people who can stand are on a particular slate - that of being a Deputy - and that is restricting both the choice of the electorate - who may not want any of the candidates who decide to stand, or the electorate, who all should have an opportunity to stand in any election.
The worse case scenario would be a single day election, where instead of there being an abundance of candidates for Senator, there was only the number required, or perhaps only one or two more. Most of the candidates would know they were onto a winning streak, and the ability of the electorate to vote against candidates would be impoverished to the point where voting would be virtually pointless.
It is not perhaps as far fetched as it may seem. I know several Deputies who have thought long and hard and decided against standing as Senator because of the risk involved. In their smaller constituency, they could marshal more support, deal with local issues, and top their poll; in the Island wide voting, they risked losing their seat.
This has come about largely because of the change to a single day election. Previously, a candidate could have two "bites of the cherry" - they could, and often did, try for the Senatorial election, while knowing that they had a safety net of a Deputy election a month later. There were a considerable number of States members who have either lost their seat as Senator, and gained re-entry as Deputy (e.g. Clarence Dupre, Don Filleul, Paul Le Claire to name a few), or who have tried as Senator and then got back in as Deputy (e.g. Guy de Faye, Geoff Southern etc). Equally some Deputies tried as Senator for their first entry to the States. There was no real risk, and indeed the extra publicity and platform gave them an advantage over candidates who were trying for Deputy for the first time.
The notion that someone could be voted out on an Island wide basis, return as a Deputy, and take up position as President or Minister on those matters for which the Island wide vote clearly acted as a vote of no confidence clearly was a breeding ground for electoral apathy, and the same day election was a good step. But to restrict - effectively as an electoral college - the membership of Senators (should that be retained) could lead to a choice so restricted as to be non-existent.
Moreover, some of the best States members have been elected for the first time on an Island wide basis. Examples from recent history would be Francis Le Gresley, and Ian Le Marquand, whom the general public have favoured over sitting States members who also stood. To say that they could not have stood, would be akin to the position in Guernsey, where there was a rule that the Chief Minister had to have been a States member who was not new to the States, which would have led to no vote for Chief Minister within the States and excluded the considerable talents of Deputy Harwood - who was in his way, Guernsey's equivalent of Cecil Clothier.
If the Senators are retained, they should be retained on the same basis at present, an Island wide mandate, open to anyone to stand.
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