Much is being made of Option B as not being "human rights compliant", and that if it is passed, even if this is what the majority of Islanders want, this will be challenged legally by Option A supporters.
I would find it very strange that human rights compliance should not have been considered by the Electoral Commission, especially by Dr Alan Renwick of the University of Reading. I have been told informally that at least one of the people involved thinks it highly unlikely that any such challenge would succeed.
But nonetheless, there is a deficiency in that the consideration of European human rights compliance of Option B is not explicitly stated, which provides a hole through which Option A supporters can drive a coach and horses. It shows that the Electoral Commission failed to address at least one question, and it is unlikely that any literature that comes from them now will address that question.
Part of the problem lies in the fact that an interim report was published, but without stating any form of questions, and when the final report came out, that was an end to the Commission's deliberations; no submissions were available on that which might have raised that issue, and had it resolved.
The result is a kind of political limbo, where Option A supporters make statements of varying certainty ranging from "almost certainly not human rights compliant" to "absolutely not human rights compliant". The spectre of Sark is raised, with the British government intervention flagged up as a possibility.
However, while there have been legal challenges in Sark, not all of them have succeeded. In 1988, a challenge was mounted against the sweeping reforms from a feudal electoral system to a more modern one by the Barclay Brothers, who felt it did not go far enough.
Lord Collins surveyed the ECtHR case law on A3P1, particularly Mathieu-Mohin v Belgium (1988) 10 EHRR 1 and Yumak v Turkey (2009) 48 EHRR 61, concluding that there was "no narrow focus on one particular element of democracy".
"Whilst the Seigneur and Seneschal were members of the legislature, it was clear from the case law that A3P1 did not require all members of the legislature to be elected, even where the legislature was unicameral. All the circumstances needed to be taken into account. A3P1's purpose was to ensure that legislation was enacted through genuinely democratic processes, and that was the case here: neither the Seigneur nor the Seneschal could vote. The fact that the Seigneur could speak on matters of substance in debate (and therefore influence the outcome of debate) was 'not undemocratic, especially where the influence is open and transparent'"
It is interesting to look at this case in detail, because it shows considerable flexibility in how the Courts interpreted the application of human rights law, especially regarding the need to take "into account historical and political factors".
When change came in 2010 and the role of the Seneschal as both judge and president was split, it came about through a vote from within Chief Pleas of 20 out of 25 members, and this followed from a criticism of the dual role made by the Court of Appeal in 2008. This was on the dual role, not the fact that the Seneschal was unelected, and no such criticism was made of the Seigneur.
Given the role of the Constables in the States of Jersey, and the fact that no challenge has ever been made against the current position for being non-compliant with human rights, it will be interesting to see if Option A succeed in any challenge. Of course, a lot will depend on the turnout, and the margin of victory. But if there was a high turnout of 40%, and a high margin for Option B, I suspect their chances of overturning it in the Courts would be slim.
A question that would undoubtably spring to mind would be why no challenge to the existing system had ever been mounted, when it is clear that the same arguments would apply as much to the status quo.
While it might be argued that Option B makes representation worse if all members are treated as one kind of member (which in fact they are not), Option C, or the status quo also has problems with representation, not least with the Parish of St Mary. Why has it taken until now for a threat of a challenge to systems be made by Option A?
Have they just suddenly "seen the light", and if the system reverts to Option C, the status quo, will they also be mounting a challenge against that too? Or is the rhetoric purely a "spoiler" to drive people from B to A, sending out a message that a vote for B will be a wasted vote?
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