Thursday, 27 September 2012

Machinery of Goverment Review

Alongside the Electoral Commission review, with submission date ending this Friday, is a review by Privileges and Procedures on the Machinery of Government. That's been so little publicised that I doubt if many people know about it, although details are available on the PPC website. There's also a review going on regarding the Jersey Election Law, but that doesn't seem to have any details lurking anywhere; it's a purely private review, as far as I can see, just mentioned in passing in the PPC minutes, which still don't seem to be up to date.

Here is my submission to the consultation.

1. To what extent, if any, do you believe that ministerial government is more effective than the committee system that preceded it?
2. Should Ministers continue to have sole responsibility or should they be required to consult a ministerial board of other States Members before taking significant decisions?
3. Should the Council of Ministers be bound by collective responsibility?

The main problem with the Ministerial system is Ministerial autonomy. A Minister like Guy de Faye, for instance, can make a Ministerial order changing the ground rules - in his case, allowing utility companies the authority to dig through people's gardens to lay down the necessary conduits and overriding any protests by the individuals. In that instance, a proposition by Senator Ben Shenton led to it being revoked. James Reed put forward proposals as a Minister for cutting educational grants to non-States schools, and the States forced him to rescind that. And Planning Minister Freddie Cohen was more or less a law unto himself regarding developments.

This can be put in a nutshell: There is too much responsibility in single hands without the need for consultation and soundings, and even a veto against the action.

I think that this can be resolved in two ways. Firstly, Ministers have Assistant Ministers, and there should be more shared consultation on any Ministerial orders. However, as Ministers have the power of patronage over Assistant Ministers, they may not bring to be quite the critical friend that they should be.

Hence the second change required is for collective responsibility - that Ministers must discuss any policy or changes of significance with the Council of Ministers, and come to a collective view which carries more weight, especially if the Chief Minister has the power to remove a maverick Minister too bound up with their own department as an independent fiefdom, and not looking at the joined up picture that other Ministers can bring to bear.

However, resignation of a Minister who disagrees - perhaps on grounds of conscience or religious belief - with Collective responsibility should not be automatic; it should be a matter for discussion as to whether it warrants it or not.

If I can take an analogy from the logic of scientific discovery. A scientific theory can be falsified, but in normal science what is called "naive falsification" is not a wise move; it may be better to live with problems at the edges of a theory because it is still workable for the most part. In a similar way, one disagreement would not be expected to be the cause of resignation; persistent and multiple disagreements would be.

Also the Ministers should rely not just on their Chief Officers (one source of experience and knowledge) but also liaise with Scrutiny to see if there are any problems which can be resolved before pursuing a particular line - Tracy Valois (from Scrutiny) has demonstrated how effective this can be in reducing States time on what are potentially unnecessary debates.

4. Should the Chief Minister have the power to dismiss an underperforming Minister?

I think it would be unwise, and a concentration of too much power for a Chief Minister to have this power alone, but rather than the States having to have a vote, a decision by a college of States members - other Ministers and heads of Scrutiny Panels would be a good step to this.

It might, for instance, be not "underperformance" that is the real issue but a clash of opinions or unpopularity, and it would be easy for the Council of Ministers to side with the Chief Minister against a Minister who was perhaps more critical of other policies, or unpopular with the public, and use alleged underperformance to rid themselves of him/her.

Hence the need to involve Scrutiny. If Ministers and Heads of Scrutiny all agree on underperformance, they can give a vote for the Chief Minister to dismiss that Minister. It is a case of checks and balances.

5. Should the Executive continue to be forced to seek consensus by being outnumbered in the States?

This is a good safeguard against the abuse of power, and in fact, I'm not sure of any occasion where the Executive has brought a proposition which has fallen through being outnumbered. On several occasions, however, Terry Le Sueur's Council of Ministers took a swift recess to discuss and change their opinions on propositions to avoid being outnumbered, which was no bad thing.

While there are no political parties, there are political alignments (clearly visible in voting patterns), and these usually work in favour of the executive anyway. Reducing the need for consensus would therefore not be a wise move.

6. Who should departmental chief officers be reporting to?

There is no problem with the current arrangement of reporting to Ministers as long as the Minister faithfully conveys departmental advice to the Council of Ministers, which should be done as part of Collective Responsibility. Any advice should also be available on request to the Council if it feels it is getting an incomplete picture (perhaps to hide the failings of  an underperforming Minister).

However, as the Chief Executive is also advising the States, they should also be privy to all reporting to individual Ministers. This will ensure that information is transmitted accurately, because there are two streams of data coming to the Council of Ministers - in computer terms, an error checking protocol. A Minister may have simply misunderstood a briefing by Departmental Chief Officers; there is no need to posit anything sinister.

7. What role are ministerial advisory and oversight groups playing in government?

The use of special groups is well known in politics, ever since the time of Lloyd George's garden advisory group (special advisors initially housed in temporary huts in the gardens of Number 10), and can be very helpful as a means of providing independent advice from the civil service. That's not to say the civil service advice may not be good, but the civil service is, for instance, less well able structurally to undertake its own reform, and may overlook potential problems; it is a case of having another set of eyes on problems that could arise. In Jersey, this is well known for the economy of the island, the popularly called "wise men" who provide advice and expertise which is needed.

However, both States Members and the electorate need to be given more information regarding: the number of such groups in existence; their membership (and whether the membership includes unelected members) their terms of reference and activity; and, to whom each group reports. The groups should also keep minutes of meetings, either to be made public, or public within 30 years, and available to any successors in office.

8. How well is Scrutiny working?

(a) that Scrutiny Panels have sometimes sacrificed their objectivity in favour of pursuing the strongly held political views of one or more of their members, thereby allowing Ministers to dismiss a report as being merely 'another point of view;''

It can be seen in the past that this criticism has some merit. On the other hand, it is all to easy to lobby as a means of dismissing a report where it does not apply. Scrutiny should produce evidence and arguments which need to be answered, and opinions and recommendations should be firmly based on those. Despite having very firm opinions, Trevor Pitman's subcommittee did function objectively in trying to ask questions to get at the truth, and not wandered off on tangents, as can be seen from the fact that Ian Le Marquand acknowledged some of the points made in the final report.

What is needed is good recommendations, with the reasons for those, and a timetable should be given for implementing any by the Minister concerned, and it should be returned to and progress reviewed until complete.

(b) that legislative scrutiny - though very important - is rarely being conducted under ministerial government;

Legislative scrutiny probably requires some degree of legal expertise.

(d) that a tendency of some Scrutiny Panels to adopt broad terms of reference for reviews has made it more difficult to produce timely reports;

Scrutiny should have to set a timetable for producing reports, and ensure that any reports come out on or before that date. This should be part of the process of setting up a scrutiny consultation as well as adopting terms of reference, and if the terms are too broad, this will need to be reviewed as part of the timetabling process. As most Scrutiny panels seem to have consultations which have a fixed date, a reporting date not long after that, also fixed, would seem to be within the realm of feasibility.

9. Should Assistant Ministers be able to serve on Scrutiny?

The Sub-Committee has heard a number of calls for a change in the rules to allow Assistant Ministers to serve on Scrutiny Panels, provided that there is no conflict of interest.

Better liaison with the Executive and Scrutiny would ensure that Scrutiny recommendations are not dismissed out of hand, as long as there is perhaps no more than one Assistant Minister for any Scrutiny Panel, and that provided that no States members outside of the Executive want to stand on that Panel. They will also provide expertise in the general machinery of the Executive and Civil Service, which was more available under the Committee system.

10. To what extent is poor communication affecting ministerial government?

It is important that Ministerial government does not just communicate with briefings, but has actual and even less formal contact with other States members so that any lack of communication can be pointed out. While it is the task of the Executive to govern, there should also be a desire both to seek consensus within the States, and to seek consensus from the general public and special interest groups.

The way planning, under Rob Duhamel, is seeking to engage and work with Parish planning groups (set up with codes of practice, constitutions etc) in (for example) St John or St Brelade, is a good indication of better communication, which does not always mean more visible communication (as measured in the media), simply more effective communication.

Poor communication can be seen (for instance) in the Guy de Faye Ministerial order, or James Reed's educational reform plans. In the latter case, a sizable public backlash demonstrated how out of touch the department was with one segment of the general public. The Imagine Jersey consultation, rigidly defined in how it was presented or those taking part could deal with pre-set options is also another good example of a failure in communication. Some other consultations have taken the same pre-set form which steers the debate down a particular path. This is not good communication.

It's also not clear how consultations are used, except as a pick-n-mix for what the department wants to do. If submissions were published, as with the electoral commission and scrutiny, there would be better insight into what elements are being used, and which ignored. Incidentally, I don't know if this submission will be published; the PPC site doesn't communicate that well.

The inability to provide details of the "golden handshakes" is another example; this was refused until Ian Gorst made a decision to release it. He was right to make that decision, but the refusal (not by him) beforehand should not have been made. The new police station saga is the current contender for bad communication with the public, with any objections dismissed summarily.

General vagueness over promises to make changes, with no dates given specifically - the Discrimination Law being supposedly brought in "sometime in 2012", for example, are also bad communication. Timetables for implementing promises should be set out clearly, so that it can be seen when targets are met. If that needs revising, the reasons should be given, and it should not be continually shifting out of reach.

However, it's not clear how matters can be improved over communication with changes to the machinery of government.

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