Friday, 1 November 2013

The Machinery of Government Debate: The Executive

"This Assembly reflects our ordinary community and we are human with strengths and weaknesses and we will have candidates with all their foibles and the lot.  But we want to be more policy-driven and less dependent on personalities, so policy statements, proper mandates and so on." (John Young)

This debate in the States was on how the States would work internally. It was a debate to gauge the response to the proposals of the PPC sub-committee, rather than a vote. Here I'm focusing on the part concerning the executive.

The current situation is that the Chief Minister proposes his recommended Ministers, and then other States members can propose their candidates. Clearly this is unsatisfactory, as a Chief Minister may find themselves saddled with Ministers whom they would have not chosen, making working as a team in harmony very difficult.

The UK style solution is a much more a very centralist tight control, where the Prime Minister appoints Ministers; it's what Tony Benn terms "Prime Ministerial Patronage". The Prime Minister has the power to hire and fire, and coupled with a salary system which sees Ministers with considerably more remuneration than back benchers, it is clear he has considerable power over his fellow Ministers.  As he asked, "Power has got more centralised and the real question is, what is the role of House of Commons?"

But PPC were proposing a "via media", a middle way, so that the States Assembly would remain sovereign over the choice of Ministers, while at the same time, giving the Chief Minister more control over whom he or she chose. (I choose those words deliberately - wouldn't it be great to have a woman Chief Minister?). It is, as John Young, says, "a hybrid solution", a case of balances and checks to power. This is how it would work:

"We have concluded and what we propose is a kind of a compromise.  There are opposing views on this but the current compromise is that the Chief Minister will propose to the Assembly a group of Members, candidates for the Ministerial team and that then should be put to the Assembly, not en bloc.  We believe that there should be a separate vote on each Member.  We would not have the situation where we have now, where we can have chopping and changing en route.  It would be a simple yes, no, on each of the choices.  Going back to the recommendations of Clothier, the proposal is that the Chief Minister would have 3 attempts at that."

The way this would work is that there would be a vote on the Ministers separately but only to publish the results of that vote at the end of the total voting process.  So States members would not voting on Minister one, and if that fails that is it.  They vote through the whole process and they only know the results at the end. The reason one has done it that way is to give the Chief Minister the indication of where the problem is if the slate fails.

"Of course, if the previous attempts had failed, the Chief Minister would know which of the appointments had not been agreed and would be able to review.  We think that procedure is a compromise position and on the third attempt, if the Chief Minister's slate of Ministers is not approved - and you only need one of the candidates for it not to be approved - for the thing to work then the election would fall away and we would have to go through it again.  That may seem laborious but it was a way that we concluded, as a Sub-Committee, of trying to find a way where there are sharply divided opinions between those 2 extremes, at finding a solution that we believe allows the Chief Minister better control over their choice of Ministers, which they do need, and not to have Ministers on their team that the Chief Minister thinks would be completely contrary to the mandate that they put forward when they were elected but at the same time allows the States a veto over those appointments."

One key question focused on by the current Chief Minister was whether the proposed Council of Ministers should be elected one by one, as PPC propose, or as a single slate, where if it was rejected in total, the Chief Minister would have to revise and return to the House. Ian Gorst favoured a single slate, because as he argued, if for example the second proposed Minister was rejected, the Minister might want to change some of the portfolios around. Under the current system, this in fact happened, of course, when Ian Le Marquand, proposed for Treasury, was moved to Home Affairs after the States preferred Philip Ozouf in the former post.

Ian Gorst also raised the matter that collective responsibility could not just be a simplistic approval of the decisions of the Council of Ministers, in that there should be "parameters set around matters of conscience, matters of long-held policy and opinions for individuals coming into a Council of Ministers  He said:

"I support collective responsibility but some of the technicalities of how it would work, how Ministers would be expected to act collectively when they had long-held policy opinions or they had matters of conscience would need to be thought about and factored into such responsibility."

Collective responsibility, as developed in the UK was originally a means of giving the Commons the ability to wrestle control from the Monarch who could make his own nominees, but as that fell into disuses, it became a mechanism for giving the Cabinet a united front. It meant:

1)      A minister must not vote against government policy: this is perhaps the most fundamental
point of the doctrine.

2)      A minister must not speak against government policy: this is similar to the previous category,
although a speech or other form of expression may not always be as clear cut as a vote.

3)      All decisions are decisions of the whole government: this does not mean that the identity of
the relevant departmental minister is not disclosed.

4)      A former minister must not reveal Cabinet secrets: this extended example of confidentiality. clearly has less force than revelations when a minister is still in office

Tony Benn was bound by the much more stringent "collective responsibility" in the UK when in office, but he found a rather ingenuous way of side-stepping the second principle:

"I realised that collective responsibility applied to the present Parliament, so I would say "looking ahead ten years this is what we will have to think about..." so I could open up a whole area. They couldn't get me on that. I would also say: "I'm getting an awful lot of letters at the moment saying this, that or the other..." It didn't please colleagues but I think that on the whole, a government where it is known there is a debate going on is more credible than the pretence of unanimity. The idea that a Cabinet is unanimous on every issue isn't true and everybody knows it isn't true."

It is worth a digression to compare the UK system, because party politics in the UK is very bound up with a much stronger Prime Ministerial patronage which gives them power to choose and fire their Ministers, the bindings of a very strict collective responsibility, and far less ability of the Parliament to veto matters.

If we went down the route of party politics, and the machinery of whips to control dissenting party members, we would end up with a very different States, where there would certainly be much less diversity, and fewer "free votes", and sooner or later the Troy rule would probably go as well.

Ian Gorst certainly thinks that however "collective responsibility" functions, it should ensure that those bound by it are a voting minority, and the other members such as Assistant Ministers should not be bound except where it related to their own department. This would ensure the sovereignty of the States:

"The question is who are the Executive and what bit of the Executive should remain in the minority?  Surely it should be a voting minority. But if we say that the Executive is the Council of Ministers and the one or 2 Deputy Ministers, Assistant Ministers within that department, and that would be the only group that we would expect to vote en bloc then we could consider whether there could be more people carrying out that sort of function as well but they would never, other than when they were voting on a proposition from their own department, be expected or be considered to be part of the Executive.  We need to make sure that there is a voting minority at all times."

Deputy Geoff Southern took the view that any changes would just increase the power of the executive, which he thought was strong enough as it was; he harked back to the Committee system. I have to say that his memory and mine are at odds. I remember that, perhaps informally, almost all the members of an individual committee voted the same way as proposals by a committee; they exercised their own kind of collective responsibility, and the Policy and Resources committee tended to bind the other Presidents into a tighter control, hence the ejection of Stuart Syvret by Pierre Horsfall. There may have been more different foci for power, but a concentration of power was still there, and States members who were not Presidents but committee members would find themselves more bound than they may be at present.

Of course, he cites voting patterns, but voting patterns of the Assistant Ministers, for example, would remain more or less the same under these proposals. It has been rare for an Assistant Minister to vote against their Minister on a departmental proposal, and we have to remember that Assistant Ministers are more likely to vote the same ways as the Council of Ministers simply because they are appointed by Ministers.

What he fails to address is the problem where a Chief Minister has very little say against lobby groups who can propose alternative Ministers. Under the current system, Philip Ozouf came in as Treasury Minister; under the proposed system, that would have been harder. Under the current system, we ended up with Guy de Faye as Transport Minister, and despite the absence of trains, that was a train wreck of an appointment by the Assembly. Guernsey failed to understand that for ages, and I have had Guernsey friends telling me how much more control the Chief Minister has than theirs. But at present, it is very much a hollow crown.

Deputy Rob Duhamel can be counted on to come in with very original views, but I have to say he came up with some very worthwhile issues, an in particular localism. His point is that we must go back to the fundamental issues first before we can draw up a more ideal machinery of government if they are to engage with the electorate. He notes that the public find that they:

 "basically vote for ordinary Members who come forward with particular manifestos promising this, that and the other, only to find that for whatever reasons, when they get to the States Chamber they are not particularly popular with their colleagues or well-understood, and the opportunity to reflect their voters' preferences disappears."

He would like some more solid way of achieving consensus and perhaps a review of manifestoes as a way to look at how there could be more engagement with the electorates voting wishes. And he is also concerned that losing some powers of a Minister to collective responsibility could lead to an "in group" defining policy and imposing it on other Ministers.

"there have been some attempts at the moment within Council of Ministers to direct other departments and that is potentially extremely dangerous as well in the absence of a clearly defined and centrally agreed overall direction."

That surely is to some extent autobiographical. But I take his point. There needs to be a balance between a powerful enough grouping within the Council of Ministers effectively imposing their own agenda on their Ministerial Colleagues, and on the other hand, Ministers treating their department as their own sovereign fiefdom because they are essentially beyond control except by a vote of no confidence. The only Minister for which that occurred was Senator Stuart Syvret, although the current Transport Minister is facing a vote of no confidence now.

And as Deputy Mike Higgins suggested "the Council of Ministers we have at the present time consists of about 3 or 4 different tiers.  You have the inner-grouping, which is Senators Bailhache, Senator Ozouf and Senator Gorst in that order.  They are the principal decision-makers."

Yet a Minister can charge off on his own agenda, and it is extremely difficult for a vote of no confidence to succeed; it is seen very much as a nuclear option. Freddie Cohen had (in my opinion) singularly bad aesthetic taste, which he seemed able as Minister to impose upon the Island as a sovereign Minister with some extraordinary inept planning decisions, including an "improved Portelet Plan" (what on earth was the original like?), a sunken road (costing ½ million maintenance), and a "wonderful design" for the new incinerator (it's a giant ugly box, for goodness sake).

It was only the public who had a say at the elections over his reign at Planning that curtailed goodness knows how many more iconic world class Masterplans! I say that as a criticism of how he seemed to have no controls as Minister over what he could do, although in person, he was as an extremely affable and likeable individual, which is why I voted for him when he first stood for election. His failure to be re-elected was, I am sure, a vote on policy not personality.

Constable Philip Rondel highlighted one of the most important deficiencies, in how Assistant Ministers worked with Ministers, and again this comes to the personal fiefdom. Deputy Judy Martin also brought this up as she described how she as an Assistant Minister does engage in "round the table" discussions with her Minister, although this does not happen a lot elsewhere:

"Politically across the divide, myself, the Minister and the other Assistant Minister, the Constable of St. Peter, are probably quite different, and I think that makes for healthy debate.  Unfortunately, it does not happen in a lot of other Ministries"

It does seem that Assistant Ministers seem to function very much as lackeys to do the bidding of their Lord, and given information on a "need to know" basis rather than functioning as a team. As Deputy Rod Bryans agreed: "The assertion that Assistant Ministers do not receive enough information:  I think that is absolutely true."

This is Constable Philip Rondel's comments, in a very vivid (and amusing) picture of his own experience:

"As for Assistant Ministers, and call them what you will, but I have been to the Council of Ministers as a chairman of a Scrutiny panel, to be met outside where they have their luxury piece of salmon, ready to go in for their lunch and all their other fancy food for the Council of Ministers.  I have been there, waiting outside, and I have seen an Assistant Minister - who was the Assistant Minister of a department that we were discussing yesterday - and I said: "What are you doing outside?"  She said: "I am waiting to go in to the Council of Ministers because my Minister is away."  I said: "Why are you not in there already?  You should be up to speed."  "No, I have never been told what I am supposed to be doing."

And he was - in my view rightly - strongly critical of the Ministers who chose to absent themselves from the debate, perhaps to enjoy their luxury piece of salmon:

"There are as many people outside the government sitting in this Chamber as in, but where are our Ministers today?  Those who are in power, missing.  Why are they not here in the middle of this debate?  Running the Island, you say, Chief Minister.  I would challenge you because this affects their future or the future of this Island, and to see Deputy Green and Senator Le Marquand, the Chief Minister - Mr. Le Gresley has just gone out - but to see those 4 Members only in the Chamber and I do not see any others around ... sorry, the Minister for Planning and Environment, my apologies.  They have been here all morning apart from their comfort-breaks but, in general, Sir, I would expect the Ministers to be here to have some input in this debate and they are not.  I am really disappointed.  I am not surprised but disappointed."

It is early days for the Machinery of Government review. This debate was very much dipping a toe in the water for PPC; very wisely, they decided to gauge the mood of the Assembly rather than just bringing a proposition. Whether they are best to focus any propositions on one or two issues as paramount to get them dealt with before the next election will be interesting to see.



James said...

The UK style solution is a much more a very centralist tight control, where the Prime Minister appoints Ministers.

True, but that isn't the whole story. For starters, the Prime Minister designate is invited to form a government once it is clear that he or she has a working majority (and the only time in living memory that people didn't know that within 12 hours of the polls closing was in 2010). The election has a clear winner, and the winner starts with a set of manifesto commitments which are decided by the executive of the winning party (or in 2010 parties), not by individual ministers.

In Jersey this is not the case. You might imagine that protocol might require that the candidate placed first in the Senatorial elections, having the most votes of any candidate, be offered first shot at forming a government - but there is an election inside the house, and in 2011 Gorst took about 2000 votes fewer than Bailhache and yet was elected CM by the 51 members of the States.

Tony Benn's question about the purpose of the Commons is a reasonable one, but the fact is that quite a lot of voting is done according to conscience - not every vote is whipped, and as has been seen lately even in whipped votes the whips do not always get their way.

It is also fair to point out that the average MP represents a constituency of between 60000 and 80000 electors, and the electorate generate a considerable body of work.

This is one of the really big differences in the workings of the Commons and the States. The States regards the one critical thing as being attendance at sittings; MPs in the House of Commons routinely avoid the House because they know that the real work is done in committee rooms and in lobbying for the little changes here and there which nuance the meaning of laws - those are the places where differences can be made.

Ironically the size of the Commons (650-odd members) is what makes this possible: in an assembly of 50, that sort of behind-closed-doors negotiation would, I submit, lead to accusations of special pleading - the more so in an environment where everyone is an independent, rather than limited by a party line. To that extent trying to compare Jersey and UK practice is probably not helpful.

It would, of course, be very interesting to see how things work across the water in Guernsey...

TonyTheProf said...

Isn't it the case that the House of Commons could not hold all the MPs anyway? That was certainly true in GK Chesterton's day:

Take, if only as an excellent example, the very matter alluded to before; I mean the seats, or rather the lack of seats, in the House of Commons. Perhaps it is true that under the best conditions it would never happen that every member turned up. Perhaps a complete attendance would never actually be. But who can tell how much influence in keeping members away may have been exerted by this calm assumption that they would stop away? How can any man be expected to help to make a full attendance when he knows that a full attendance is actually forbidden? How can the men who make up the Chamber do their duty reasonably when the very men who built the House have not done theirs reasonably? If the trumpet give an uncertain sound, who shall prepare himself for the battle? And what if the remarks of the trumpet take this form, "I charge you as you love your King and country to come to this Council. And I know you won't."

TonyTheProf said...

And you may note that the House in his time was of much more importance than today; it has been sidelined, but not necessarily for the better. Behind the scenes lobbying may be useful, but it can also be fraught with problems, when lobbying is bought and paid for by vested interests - a state of affairs which we see time and again in the UK.

James said...

In answer to the first point: within my living memory, the vote of no confidence in the Callaghan government in March 1979 went 311-310 - so there were 622 members (the Speaker abstaining) in the House that day. Recollection says that at the time there were 635 constituency MPs.

Chesterton is therefore wrong: there is (just about, at a pinch) enough room for every member to assemble safely - though you'd not want to do it every day. But with the existing whipping system, it is not generally necessary: three-line whips are rare.

As regards the committee work, that is not "behind closed doors"; it's on public record in the same way as Scrutiny meetings are. Some of these meetings are broadcast (the PAC exchanges with Amazon, Google and Starbucks certainly were). Much of the minuting is available on Parliament's website.

Correspondence between an MP and a minister would (I think) be subject to FOIA; I believe that only Cabinet records are specifically exempted.

I don't accept that the average back-bench MP is less powerful now than a century ago: in fact, quite the opposite.

TonyTheProf said...

I'd say they are still pretty powerless, albeit differently, for example:

Mitchell, Austin. Backbench influence: a personal view. Parliamentary Affairs. Vol. 47, no 4 (October 1994). P. 687-704:

"What has changed is the pace and the balance between roles. The rise
of the specialist committees balances the decline of the legislative role.
Career politics makes Members more effective but more amenable. The
politics of economic decline harnesses them tighter to the governmental chariot, forcing on them the lies, double-talk and humiliation economic failure produces, but they also strain party unity and reduce MPs to levels of unpopularity unplumbed by predecessors. There are no

TonyTheProf said...

And note John Barnes' comments:

"From the very heart of government, a former Permanent Secretary to the Treasury has observed the ease with which a minister can railroad his business through Cabinet,25 and, once he or she has its backing, little short of a major backbench revolt can stop the measure from going through. A whole series
of examples can be adduced in support of this point, ranging from the abysmal compromise of the 1957 Homicide Act and the abolition of Retail Price Maintenance in 1964 to the Community Charge legislation and the ratification of Maastricht."

TonyTheProf said...

And look at Private Members bills!
Usually slaughtered.

So much for backbench power. The Jersey backbencher has far more power.

In the UK members can raise private bills but it is a tokenist sop to democracy.

Mark Forskitt said...

Missing the most important point about collective responsibility. Responsible to whom? The proposals are still just internally referential to the States, there being mo mechanism of accountaility ro responsibility to the polis eg via a minsterial colective manifesto. Therefore a waste of time.

Chesterton may have been right in that not all members can attended debates there are not enough benches. The division bells ring all round the precincts to give 10 minutes to attend so it is possible for all to vote.

TonyTheProf said...

Chesterton was right.

Despite its large membership, the chamber of the House of Commons seats only 427 persons!

At the general election in May 2010, 650 members were returned.

I rest my case!

TonyTheProf said...

"We’ve actually only got seats for two thirds of the Members of the House."

Sir Robert Rogers, Clerk of the House of Commons and Chief Executive, speaking in 2012

TonyTheProf said...

The British House of Commons can seat only 427 of its 650 members, and was designed thus when built in the 19th Century, when there were even more members as Ireland was still part of the United Kingdom then, and a decision was made not to increase seating when it had to be rebuilt after the Second World War, having been bombed badly.

Suggestions of giving every MP their own chair and desk were shot down by Winston Churchill, who thought the crowds and sense of urgency added to the atmosphere of major debates and that lots of empty desks at other times would be depressing.

James said...

The House of Commons does not have seats. It has benches.

This is not as stupid as you think: a nominal figure of 427 can actually be stretched considerably if people are prepared to squeeze up, far more so than would ever be possible with seats.

(I have seen this done in a different context - church pews which normally seated four at morning service were returned to their original Victorian specified capacity of seven for Christmas services. This brought the church in question back to somewhere near its original seating capacity of 2000).

As I said, if you want to fit 600+ members into the Commons, it can be done. (Remember also that adherence to Health and Safety law in Royal palaces - which Westminster is - cannot be enforced).

TonyTheProf said...

Not sure that today's MPs would fit. One Eric Pickles surely = 2 ordinary MPs from the 1950s. And John Prescott etc.

I've been squeezed in a pew which originally may have seated 3, but which if two are somewhat large, left very little room to move, let alone breath.

The increasing size of people as the nation becomes more obese makes it far less likely that it could be done. Certainly if they reflect statistically the rest of the UK, you'd never manage 600+ members. Not without surgery.