I have not heard Ben Shenton speak on Option B, and he gave an interesting perspective last Friday at Communicare on how he sees Government in Jersey, quite apart from the Options themselves. While Deputy Sean Power was defending the role and responsibilities of the Constables in the States, and thereby making a case against Option A, Ben Shenton took on the task of opposing Option C.
What is remarkable is that his argument could still be made from either a supporter of Option A or Option B. It was not, in fact dependent on retaining the Constables. That is because he was opposing the Troy Rule which gives the number of States members by which those outside the Executive (Council of Ministers, Assistant Ministers) should outnumber those within the Executive.
The Troy rule, proposed by Deputy Peter Troy, just gave weight and formality to principles that had already been present in the Clothier report, but which had been overlooked when Senator Pierre Horsfall was bringing in the other changes from Committees to Ministerial Government and cherry picking like mad.
Clothier concludes that: "There must be a majority of Members of the States not in executive office to provide scrutiny of those who are, by means of 3 or 4 Scrutiny Committees."
The amendment brought in by Peter Troy adapted the Clothier recommendation for a 'minority' executive by specifying that this minority should always be smaller than the size of the executive by a factor of at least 10% of the total membership of the Assembly. That rule is now embodied in article 25(3) of the States of Jersey Law 2005 as follows - "The number of Assistant Ministers appointed shall not cause the aggregate of the Chief Minister, Ministers and Assistant Ministers to exceed 22 individuals." [The number is due to reduce to 21 in 2014 as a result of the States of Jersey (Miscellaneous Provisions) (Jersey) Law 2011.]
And again, elsewhere in Clothier, it is noted that "These considerations all point to an Assembly in which a clear majority of members are not holders of executive office but are numerous enough to constitute a number of bodies sufficiently detached from the business of government to provide an independent scrutiny."
As Senator Sarah Ferguson remarked on the Friday meeting, this was a major check against the Council of Ministers pushing through measures without consensus, and she quoted Clothier here:
"The existence of party however is not necessary to the concept of audit or scrutiny. What is absolutely necessary is that there should exist in any assembly a sufficient number of members not actually in executive office and therefore free to observe with a critical eye those who are. Moreover those uncommitted members should have the ability, the facilities and the resources to study some particular aspect of government, to research it and so be able to audit effectively the conduct of government by those in charge and to participate in the formulation of policy. This is what is meant by the commonly used, but ill-defined expression "checks and balances". It is clear enough what is meant - the prevention of the uncontrolled exercise of power by a few powerful people."
Ben Shenton, however, has a very different idea of how Government should work. He argued that Jersey must be one of the few jurisdictions where the executive is actually in a minority. He said that we elected the States, the States elected a Chief Minister, a Council of Ministers was elected, and we should trust them to get on with the job of governing.
But that's actually not looking at the fine details of how many jurisdictions operate. In many jurisdictions, proportional representation in some form is the norm, rather than the "first past the post" method used in the UK. An executive body is formed, but is is often a coalition between different factions, and dependent on their support, so it has to be much broader based if it is to survive; there is an inbuilt element of consensus.
That's not the case, of course, in the UK, where the government is only really accountable to the country at election time, and has with the structure of whips and parties can command a majority without the need for a coalition, until recently (and not counting the Lib-Lab pact of the late 1970s).
Moreover, Jersey does not have parties, so you can't apply that model here; the only way to ensure consensus government is to have the Jersey equivalent of a coalition, which is the Troy rule.
Ben Shenton's idea of government, that you elect people and trust them to govern for 4 years with no way of being effectively accountable to the rest of the States is totally at odds with anything I would wish for. It is fact a far more radical change than removing the Constables from the States; it shifts the whole balance of power, and removes the checks and balances that Clothier was so keen upon.
Ben's argument that Assistant Ministers do not have to vote the same way as the Council of Ministers (also in the Commission's Final Report)also begs the question of whether that will be the case if the Council of Ministers changes from its present form as a consensus body chaired by the Chief Minister to more of a cohesive Cabinet. That may well change the dynamic and make more incentive for towing the Council of Ministers stance, as might differential pay for Ministers, with prospects of promotion dangling before Assistant Ministers. Who will rock the boat then, when there is more inducement to be loyal?
Clothier in fact, was rather critical of the UK style of government, and thought Jersey could do better:
"In the party system familiar in Westminster the accepted duty of those not in power is to constitute a formal opposition to the government in being. This tends to become a ritual duty to oppose everything that is done, which therefore does little to change the course of government action in any constructive way. But a formal opposition is by no means the only, nor necessarily the most effective, way of providing that scrutiny of government which constitutes a check on the abuse of power."
Instead, he advocated effective scrutiny: "In any reconstruction of the central component of Jersey's machinery of government the provision of effective scrutiny seems to us essential." But part of the way that had to be effective, and could not be dismissed out of hand, because the executive could just push matters along regardless, was for what we now call the Troy rule to be in place:
"These considerations all point to an Assembly in which a clear majority of members are not holders of executive office but are numerous enough to constitute a number of bodies sufficiently detached from the business of government to provide an independent scrutiny"
The main thrust of the argument by Senator Ferguson on Friday for Option C was against the massive reduction in numbers to 42, in which she thought that with at least one more Ministerial positions (Minister for Justice), the Troy rule could not easily hold, and hence the checks and balances would be gone.
That is something that Option A need to examine in detail, because the thrust of their argument has been on voter parity in the super constituencies, and certainly on Friday night, they did not address the Troy rule, and how it could work in terms of numbers in a much smaller assembly. Rather than just focusing on voter parity across districts, this is as important.
Would Option A provide a more democratic form of government in Jersey if it gave rise to an Executive that could rule regardless of opposition? As Sarah Ferguson noted: "If there are 2 more ministers agreed - which is by no means certain - that means 27 in the executive and 15 in the non executive. What price dictatorship then?" (She doesn't mince her words!). Option A needs to get its act together on this. If there is to be a reduction to 42, and more Ministers, how can the safeguard of the Troy rule be applied?
It is also worth Option B supporters reconsidering whether they should be as dismissive of the Troy rule as Ben Shenton was on Friday night. He is, according to the press, the chief spokesman in support of Option B. The lack of concern for a system whereby trust is invested in the execute is something that certainly concerns me very considerably. It might be how a business is run, but that messy element of consensus in the States because of the Troy rule is something very important; it prevents "the uncontrolled exercise of power by a few powerful people.". If you are voting for Option B, do you really want to be supporting a case which tears up the Troy rule? Should other voices on this subject be heard within Option B, if they don't all agree with Ben Shenton?
Now I'm not advocating Option C here, but I am saying that there are matters apart from the Constables which seem to be largely overlooked, and the reduction to 42 and how well the Troy rule can work with that needs more far consideration than it is getting.
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