Thursday, 29 June 2017

Eroding Democracy: Revising the Election of Jurats

From 1603 Jurats were elected "by the plurality of votes of the common people of the isle". Once elected they could not resign without special permission from the King in Council. There are 12 Jurats in the island and they're in office until they turn 72. Jurats act as lay juror, who along with the Bailiff form the Royal Court and oversee polling at the islands elections.

As the BBC website notes:

The original role of the Jurats was judicial and legislative but the legislative side of the role was removed in 1948 was the States of Jersey was reconstituted without them.

Jurats are appointed by an Electoral College, made up of the Bailiff, Jurats, the 12 Constables, elected States members and members of the Jersey Bar and Royal Court Solicitors.

When a vacancy comes up for a new Jurat a letter is sent announcing the vacancy to every member of the Electoral College by the Bailiff.

It is then up to the members of the Electoral College to nominate candidates for the vacant position. Each candidate has to be nominated and seconded by members of the Electoral College.

The proposals for changing how the Judiciary are appointed suggest the establishment of a Judicial and Legal Services Commission. While the idea is not without merit (and will be returned to in another blog later), in this instance it would detract from democracy, replacing a broader electorate (the electoral college) by a panel of 10.

The consultation asks about the Jurats:

"Should the current Electoral College process be replaced by selection by the Judicial and Legal Services Commission and appointment by the Bailiff or should the present system of election by the Electoral College continue?”

“For example, selection by the Commission might encourage more persons to put themselves forward for Jurat as the Electoral College process might be off-putting to potential candidates who might otherwise put themselves forward for the important role of Jurat. This might be so both because of the very public risk of failure should a candidate not be successful (regardless of whether the unsuccessful candidate had the necessary qualities and qualifications for appointment), and also because of the ‘electoral’ nature of the process.”

“On the other hand, does election by the Electoral College provide a public and transparent process that provides important legitimacy to the role of Jurat?"

On paper, the Commission sounds promising:

“It is proposed that the Commission would have a membership comprising members drawn from the judiciary, the legal profession, and the public and that half of the members should be drawn from across the judiciary of Jersey with representation from the Court of Appeal, the Royal Court, the Magistrate’s Court and the Tribunals”

Then you realise it is just 10 people!!!

“There would be 10 members of the Commission (“the JLSC Commissioners”).”

“The JLSC Commissioners would be: the Bailiff (ex officio, in his role as Chief Justice, President of the Royal Court and President of the Court of Appeal); an Ordinary Judge of the Court of Appeal (the “Court of Appeal Commissioner”); the Deputy Bailiff (ex officio); the Magistrate (ex officio); the Chairman of the Jersey Employment and Discrimination Tribunal (ex officio) (the “Tribunal Commissioner”); 3 lay Commissioners (“the Lay Commissioners”); 2 lawyer Commissioners (“the Lawyer Commissioners”)”.

Apart from the ex-officio members, the rest – 6 members in all – would be appointed by the Jersey Appointments Commission following a public appointments process.

So what is the current system for Jurats and their voting in by an electoral college?

The current electoral college is made up of made up of the Bailiff, the Jurats, the 12 Constables, elected States members and members of the Jersey Bar and Royal Court Solicitors.

This is broad and representative in many ways. It has 372 members! And any of the Electoral College can nominate a candidate.

Is a commission of 10, selected by the Jersey Appointments Commission, or members ex-officio, going to have anything like the range and diversity of those?

It might be said that the election of Jurats by a commission of 10 will be on the basis of “merit”, but 10 individuals will have a much narrower spread of views on what constitutes merit.

The Electoral College may have its biases, but it is broad. The commission will be narrow by comparison. With the best will in the world, it cannot hope to match the wider scrutiny of proposed Jurats given by the College. And there is always the problem that a small panel will have all the prejudices of a a select and small elite. It is more likely to be biased rather than balanced.

Do we want this erosion of democracy?

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