Sir Philip Bailhache has had a lot of mention in Tweets and quotes on Facebook citing him stating that "there is no voter equity in Reform Option B". This reminds me a good deal of Christian fundamentalists that I have had dealings with in the past who came up with Bible texts to support their particular positions. What they did was to take a single text and use that, often out of context. It is called a "proof text", and it is generally recognised as a bad way of presenting a case; it tears the quotation from its overall context, where all the other things that should be heard are also found. The Option A camp are basically doing something very similar with Sir Philip's quotation, presenting it torn out of context, so that the rest of what he says goes unheard.
Let's look at a a few examples from Hansard when he says as much, but looking at the broader context:
"The Deputy's approach seems to be that there is no voter equity in reform option B and, therefore, reform option B should go. But as the commission has made it clear in its report, the question of voter equity is not the only consideration. Option A offers the public voter equity, whereas option B offers something quite different. It offers voter equity in terms of the 30 Deputies, but it also offers a continuation of the direct constitutional link between the States and the Parishes, which many people believe to be of fundamental importance. "
"You cannot voter equity on the one hand and the link with the Parishes on the other. They are apples and pears. You cannot have voter equity if the Constables remain in the States, the commission has conceded that, but equally you cannot have a constitutional link with the Parishes if you have an Assembly composed only of Deputies representing large Districts. So which is the more important? That, the commission says, is the issue for the electorate; it is for the people to decide."
"The commission knew that more than half of those who had made submissions to it had wanted the Constables out of the States. Now, it seemed to the commission much fairer to the public to give the public separate options, one with the Constables and one without. I wonder what Deputy Southern would have done if the commission had recommended a single question around option B. That would have met the Deputy's requirement for a clear and simple yes/no question, but he would not have liked the question. Would he have sought, then, to amend it to include an option A, which is the commission's recommendation, or would he have voted against the Referendum Act and deprived the public of the right to vote in the referendum? "
So what Senator Bailhache is saying is that there are two differing considerations, and they need to be balanced. We can see an example of this balance in the USA, in its bicameral system, where in "Connecticut Compromise", it was established that in the Senate, every state would have two seats. In the House of Representatives, the number of seats would depend on population.
If Jersey was bicameral with the Constables sitting in one House, and the Deputies in the other allocated to even constituencies, this would be an exact match with the USA setup. No one, as far as I am aware, has been saying that the USA is a terrible democracy because this breaches the Venice Commission; this may be because the Venice Commission considers only the primary legislative chambers (as can be seen by reading their literature), and yet it is well known that the Senate can cause considerable difficulties and compromises by the Government to enable legislation to be passed; the recent crisis over the "fiscal cliff" is a good example of that. Unlike the House of Lords, the Senate has real abilities to impede or block legislative change, and it can in fact pass any bill except that for raising revenue or authorizing the expenditure of federal funds (appropriation bills). It also has considerable other powers to do with ratification of treaties and appointments of officials.
But Jersey is unicameral, hence it is rather like a merging of two different bicameral systems into one, one of which (the Deputies) could certainly be arranged on a proportional basis, and the other (the Constables), like the USA Senate, is based on historic divisions - in Jersey, the Parishes, in the USA, the separate States.
Without the creation of a bicameral system, which has been mooted as a possibility, there are, as in the USA, two different methods of representation, one of which preserves a "direct constitutional link between the States and the Parishes" in the same way that the Senate preserves the direct link between the United States Congress and the discrete States, and in exactly the same way - "each U.S. state is represented by two senators, regardless of population".
This differentiation between "apples and pears" is something which is lost in the simple numerical considerations of option A, but one which certainly exercised the founding father's of the USA Congress considerably. That is why the Senate has considerable powers; it was designed to ensure that it could provide a "check and balance" to the powers of other elements of the Federal Government. It can be argued that the Constables exercise a partly similar role in providing a check on an over centralised States of Jersey.
The USA rejected the Virginia Plan which would have seen the Senate as well as the House of Representatives both on a proportional basis because smaller States were afraid that such an arrangement would result in their voices and interests being drowned out by the larger states., and they argued successfully that the states were, in fact, of a legally equal status. The compromise was that the House of Representatives should be on the proportional Virginia plan, while the Senate would allow the States an equal vote in the New Jersey Plan. Apples and Pears was the order of the day.
Sir Philip Bailhache makes it very clear that Option B provides thinking on those lines; by selectively quoting him out of context, the arguments for Option B get overlooked, and it appears as if he is suggesting one Option would be less democratic. But in fact, he is suggesting no such thing; he is suggesting that like the USA, there are different considerations to be made in determining how the democratic systems function. It is Apples and Pears.
And he also addresses - as recorded in Hansard - the situation of where Option A candidates can go for a second preference. It has been argued that those who wish to retain the Constables can argue for B - reform, or if reform fails, Option C, the current situation, which they don't clearly want (otherwise why vote for Option B!) but as a fall back position against Option A. After all Option B supporters want change, but not Option A, and the same (in reverse) is true for Option B supporters:
The same strategy can be adopted against Option B by the supporters of Option A:
"The effect of the second preference is to move your ballot paper from one pile to another if your first preference is eliminated. The misapprehension is that you get 2 votes. You do not. The second preference is to allow your vote to count if your first preference is eliminated. So if you are an A voter, like Deputy Martin or Deputy Southern, you should ask yourself what you would like to happen in the unlikely event that the A vote comes lowest in the poll and is eliminated. It is probably not very likely but I assume that such voters would ask themselves which was the lesser of 2 evils, the B option or the C option, the status quo, and that would be the second preference. If they felt genuinely that they could not vote for either then that would be their position but that would be surprising, considering that the status quo is what we have at the moment."
He also makes it clear how he sees the result of a vote in favour of Option C:
"A vote for the status quo is, and was intended by the commission, to be a negative vote in relation to the reform options. It was not necessarily intended to be an endorsement of the status quo because the commission has made it clear that it does not like the status quo but it is the only other option available."
So the Commission's interpretation of Option C is not that the status quo is satisfactory, but that the reform choices given (Option A, Option B, reduction to 42 members, loss of Senators) is not necessarily ones which the general public endorse. In other words, back to the drawing board, but not that change is not necessary, only that there is no public endorsement for the changes on offer. That is something also worth remembering.
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