What's happened at the Jersey Evening Post? The leader writer seems to have decided that the Electoral Commission has failed, even ahead of any proposed Referendum. He asks:
"Has the Electoral Commission become so entangled in the complexities and nuances of governmental reform that it has lost sight of what it set out to achieve, the enhancement of Island democracy? A case can certainly be made for asserting that the commission and Privileges and Procedures, which will next week present a referendum proposal on behalf of the commission, are locked on a course which is likely merely to bemuse and even confuse too many of Islanders." (1)
And then it makes a basic assumption, which although Geoff Southern also argues for it, is in fact historically false:
"A basic principle of referenda is that they should offer a simple and straightforward choice, ideally with either a single proposition, coupled with 'yes' and 'no' boxes to tick, or with only two divergent options. "(1)
In fact, this is very far from being the case. While most Referenda have been yes/no questions, there is nothing intrinsic about the notion of a Referendum which makes the choice a simply binary one. For example:
"In Switzerland, for example, multiple choice referendums are common; two multiple choice referendums held in Sweden, in 1957 and 1980, offered voters a choice of three options; and in 1977 a referendum held in Australia to determine a new national anthem was held in which voters were presented with four choices." (3)
And a multiple choice referendum was also proposed in Kenya in 2010, Lafayette in 2011, and of course in Scotland recently. And further in the past, New Zealand experienced a multiple choice referendum on 19 September 1992, when the voters were asked which of four different voting systems they preferred; furthermore, the national liquor licensing polls asked the voters to decide between "national continuance", "state control" or "national prohibition"
So to say that there is "essentially binary instrument of a referendum" is a mistake.
There may be very good reasons for preferring a binary yes / no choice in a Referendum, but the principle of a Referendum is to give the people choices to vote directly; the binary choice is not an essential part of that.
A common argument is that of "simplicity" - hence a yes/no vote, but simplicity, while it can have advantages may not give the voters the degree of choice that they want. In particular, it may not do justice to the complexity of the issues involved, like a a reductionist scientism often fails to do justice to how human beings behave and think.
An example of how simplicity can cause problems is that with a simple yes/no question, it can be hard to ensure a neutral wording, they can often be couched in a way that anticipates an answer.
Voters then feel compelled by the formulation of the question to answer yes or at least find it hard to say no (for example "Should there be less crime on the streets?"). The same issue can be formulated so differently that both questions, although exactly opposite, would almost certainly produce an overwhelming answer in the opposite direction. (3)
Andrew Geddis points out another problem with simple questions. There is an aim to ensure the questions are as neutrally phrased and unambiguous as possible, but in order to get a good turnout, the question asked must evoke some passion. This is especially the case in New Zealand where the public can initiate Referenda.
"Simply put, can you get 300,000 interested in the question 'Should Parliament have enacted The Crimes (Substituted Section 59) Amendment Act 2007?', as opposed to 'Should a smack as part of good parental correction be a criminal offence in New Zealand?'" (4)
He notes that referenda are "blunt and crude devices" for addressing public policy matters, and in fact the outcome goes to the government to decide anyway, so that it can well be rejected, as the "answer carries no more weight with government than a (very expensive) public opinion survey." Much the same could be said of the Jersey one, a criticism which I have already levied in my submission to the Commission. A non-binding Referendum gives a lot of wriggle room for excuses to dismiss its results.
Simple questions can also omit relevant facts which should be incorporated in the decision making process. This again is a problem of the kind of reduction which looks at one preference and cannot take account of the complex interrelations between choice and outcome, especially with regard to funding. As Geddis points out:
"The proposition 'Should all New Zealanders have access to comprehensive health services which are fully government funded and without user charges?' would certainly have provoked a different result than if the promoters had proposed a tax increase to finance the health services. "(3)
Simplicity may be one of the main planks for a Referendum - "a question should be clear and simple" - but that may have problems associated with it, just as much as "neutrality" does. What you may think as "simple" or "neutral" may not appear so to another person.
To use simplicity as a guiding principle can be valuable, like the use of Occam's Razor or its variants, for instance, "We consider it a good principle to explain the phenomena by the simplest hypothesis possible." But there can be cases where the good principle does not do justice to the complexity of the phenomena. As the philosopher Mary Midgley writes:
"Oversimple intellectual systems are welcome because they contrast with the practical chaos around us, and we do not criticise them sharply when the particular short-cut that they offer suggests a world view that we like. They extend patterns that already suit us over areas we would otherwise find awkward. They express visions that attract us, and they obscure alternative possibilities." (5)
What has happened with the Jersey Referendum is that it has been criticised on an axiomatic basis that simplicity must be preferable to all other considerations, hence the Jersey Evening Post and Deputy Geoff Southern are both singing from the same hymn sheet:
"Merely describing the proposed structure of the referendum ought to be enough to confirm that those closest to visions of reform have become hopelessly entangled in a web of their own making."(6)
The Jersey Evening Post argues that a referendum should be a binary instrument, which is not in fact essential for it to function, a neat sleight of hand in the phrase "essentially binary instrument of a referendum" which is a loaded sentence, prejudging matters. And coupled with this is an implicit argument about simplicity - you cannot use a binary system to "assess the popularity of a range of possibilities - in this case the appropriate number of States Members, the length of term they should serve, the nature of the constituencies they should represent, and the future role of the Constables."
Their conclusion is that the Commission has failed - "they should be thanked for many months of complex deliberation but advised that nothing that they are currently offering is likely to improve the quality of Island democracy and that, all in all, it would be better to go back to the drawing board."
It does make you wonder whether Daniel Wimberley's independent Electoral Commission would have been a better choice, always depending on the outcome of any proposals, if accepted by the States and going to a Referendum, being binding on the States. When the UK government had a Referendum on whether or not to stay in the EEC (as it then was) back in the 1970s, the result was binding.
But the one difference between Geoff Southern's proposition, which may have its faults (as I have highlighted), and the JEP's position, is that Geoff Southern, like Trevor Pitman, is trying to make the best of what they see as a bad job. The JEP is simply arguing for the "drawing board", in other words, as no other review can possibly now be complete in time for the next election, for the status quo.
What is interesting in their critique is how they mention Deputy Southern's amendment, and make what is probably a fair assessment - "it fails to acknowledge that many Islanders still believe that Senators and Constables have legitimate roles to play in government". Having heard people who want to keep the Senators as well as the Constables, this is fair comment. But implicit in this is their vision of a States which still has Senators.
This is also notable - the JEP criticises "the broad plan of the Electoral Commission, which appears to be preoccupied with the questionable goal of reducing the number of States Members".
But there's a dog which doesn't bark in the night time. Nowhere is there any mention of the architect of the Electoral Commission who said "there are now too many members of the States. Constitutional reform is urgent. The number of members should be reduced to 42" in his election manifesto. This is the individual whose name is unspoken throughout this JEP leader article. It's almost reminiscent of Harry Potter - "he who must not be named"!
Why is the JEP so coy about mentioning Sir Philip Bailhache, the Senator who grabbed the Electoral Commission out of independent hands, and who was even when standing for the States, "preoccupied with the questionable goal of reducing the number of States Members"? Let's face it, if the work of the Commission, and all the fact finding missions abroad, have turned out to be an expensive waste of time, shouldn't Sir Philip shoulder some of the responsibility for this state of affairs?
(3) You're the Voice, Try and Understand it, Ben Goschik, 2003
(5) The Myths We Live by, Mary Midgley, 2003
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