Wednesday, 3 April 2013

The Legal Challenge

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?
 
Links
(1) http://ukscblog.com/case-comment-r-barclay-v-secretary-of-state-for-justice-and-others-2009-uksc-9
(2) http://www.guernseylegalresources.gg/ccm/legal-resources/law-reports/Cases/GLR2009/GLR090314.htm

11 comments:

Deputy Montfort Tadier said...

Good article Tony, but the points you miss are (1) That under A, the question of ECHR compliance does not arise at all. (2) A challenge in itself, whether successful or not, is not the kind of publicity Jersey should be seeking. (3) The UK is ultimately responsible for good governance in Jersey. Whether or not B is likely to constitute a breach of ECHR - it certainly contravenes he Venice Commission on Electoral best practice - does not matter, as the UK can still step in if the system is obviously gerrymandered as we think it is.

Deputy Montfort Tadier said...
This comment has been removed by a blog administrator.
rico sorda said...

You have laid the Electoral Commission bare. All these problems have arisen because of one man and one man only.. Tony, there is so much wrong with this referendum that I find it scary that so many jumped on it's bandwagon.

Sam Mézec said...

Will do a full response on my blog, but in response to your last question, yes Option C is just as invalid as Option B and will be challenged. The only reason it hasn't been challenged thus far is because for the past 15 years reform has been on the horizon. Why bother mounting a challenge if it looked like we were about to fix it ourselves anyway? Would just be a waste of money.

TonyTheProf said...

So all the States members who have been in favour of Option A have just been sitting around doing nothing like Mr Micawber because "something will turn up"?

Given the failure of reform propositions over the last 15 years, I find it incredible that no States member who would now talk about a challenge failed to bring one up before.

Monty, do you mean that you have simply held back on a legal challenge to the existing system because of bad publicity?

Nick Le Cornu said...

Tony,

The precedents you need to consider are those brought by the Barclay brothers in the UK Courts ending up in the Supreme Court. They were seeking judicial review of a decision by the Privy Council to approve legislation passed by Sark and sent to the Crown for final approval. Once the PC had made a decision, it could then be challenged in a UK Court.

The present system in Jersey with its minor tinkering has never required a fundamental opinion to the passed by the PC as to whether the legislation was HR compliant. In so far as the Brits actually bother too much about what happens here, they will only act if something is obvious and gross and otherwise slumber on. Jersey is not the centre of the world, however hard we may find that. Option A will not attract much criticism, but legislation passed by the States of Jersey and sent to the PC which embodies Option B, is going to meet stiff opposition.

The opposition will come first from the PC itself and secondly from Democrats in the island fed up with gerrymandering and indolent government. The PC is obliged to check Jersey legislation as they are the “high contracting party” with ultimate responsibility for good government of the territory. This is why the Referendum has been arranged by the EC and the Council of Ministers, who fully recognises retention of the Constables is anomalous. If it can be shown this quirky institution is genuinely popular it might be tolerated. It is fully recognised by all that representatives sitting ex officio and elected in constituencies of anomalous size, does not follow acceptable principles of democracy and in particular the Venice Commission.

I look forward to hearing the INTELLECTUAL arguments put forward by B supporters. Most of their case will be argued around emotion and big dollops of heritage. Removing Constables from the States would be like blowing up Gorey Castle and selling the rubble to Dandara as aggregate etc, etc.

Option A gives us a new breed of politician elected by (potentially) 11,000 to 14,000 electors, which will produce a qualitative game shift in the type of person that gets elected.

The Right of course hope it will be their boys and girls that make it through. These nouveau riche will rely on low voter turnout, knowing it is the wealthy who understant voting is essential to keep things as they are. In fact Option A should be the Option of preference for all conservatives.

Muse on the paradox: "For things to remain the same, things must change."

Nick Le Cornu said...

Incidentally, where are the campaigns for B and C? No one has been out on King Street or Queen Street to my knowledge for these groups, if indeed they have any substance.

Again perhaps it is beneath them to do such thinks as be seen barking in the street like stray dogs. Perhaps they will surprise us all with a last minute dash and the a the JEP booked solid for a week before the referendum with advertising.

There will be a St Helier Parish Assembly on Tuesday 16th April to discuss the Referendum Options. Will B and C send their finest to make their case?

Deputy Montfort Tadier said...

The idea that States Members, including myself, sat back and have only waited till now to raise concerns about B (and C) - including the HR implications is simply not true: there was a move to amend the referendum, which took place on 19th Feb as you know, by Geoff Southern to remove option B and C altogether, as they are both anti-democratic. And we knew they would contravene best or even good international practice.

On page 125 of Hansardyou will see that Francis Le Gresley actually mentions the Venice Commission, and how B contravenes it.

Deputy Southern was supported by 18 States Members in his proposal to remove B and C from the ballot paper and have a simple 'Yes/No' as a referendum should be.

TonyTheProf said...

That's February THIS YEAR. If the existing position was bad, why wait until now? Or is it only Option B that has problems, and while it has similar difficulties, we have lived with Option C as an acceptable fudge? Surely C - the status quo - contravenes the Venice Commission as well? Why has no one not mounted a legal challenge to that? Why wasn't the Venice Commission mentioned in early years over the last 15 years when changes have been proposed in the States?

TonyTheProf said...

I'm not arguing in favour of B or C; I'm just noting that the "Damascus Road" of the Venice Commission seems strangely recent.

Nick Le Cornu said...

The "Damascus Road" of the Venice Commission is indeed very recent. It came as a veritable bolt of lightning from the heavens both to Senator Bailhache, as chair of the EC, and I. In our ignorance, neither of us was aware of its existence and it was only the admirable academic research that pointed out that we need not reinvent the wheel. Others had considered the issues at the European level already. What is applicable to an emerging Democracy like Kosovo or Montenegro is surely valid to Jersey. We do indeed have to live in the modern world and adhere to commonly accepted standards if we are to be respected.


It was clearly an embarrassment to the traditionalists on the EC that a semi "International Convention" should have been discovered that pointed out the gross inequalities, unfairness and unacceptability of devising a structure for the States Assembly that retained Constables sitting ex-officio and elected in constituencies of unequal number of electors – i.e. favouring a few, prejudicing many.