Wednesday, 18 April 2018

Party and the Public Elections (Jersey) Law 2002

Public Elections (Jersey) Law 2002

4) The nomination of a candidate for a public election shall be made by the production to a nomination meeting of a document, in such form as the States may prescribe by Regulations, subscribed by a proposer and 9 seconders, all 10 of whom shall be persons entitled under Article 2(1), (1A), (2) or (3) to vote for that candidate in any poll held for the election

Before the document described in paragraph (4) is subscribed by a proposer and 9 seconders –

(a) the prospective candidate shall complete a declaration, which shall be contained in that document, of the registered political party by which he or she is endorsed, indicating whether the registered name, or the registered abbreviation (if any) of the name, of the party is to be entered on the ballot paper; and

(b) the declaration shall be signed by –

(i) the prospective candidate, and
(ii) 2 persons (of whom one may be the prospective candidate) who are registered officeholders of the registered political party. 

I was sorry to hear that Marilyn Carre has withdrawn from contesting the seat of Constable of St Brelade, but it is understandable given the distress she has suffered. I hope she does not feel too bruised by what has turned out to be a political minefield and a baptism of fire.

As a novice, she was being helped by Reform to complete the forms in what seems to have been extreme rapidity, and she was clearly relying on their knowledge and expertise to help her complete the paperwork. They should apologise to her for failing to do this properly.

Jersey Peeps has this:

"Marilyn Carré decided to run for election as Constable of St Brelade just two days prior to the nomination deadline and was assisted by Reform Jersey to complete her nomination form."

The cause for the concern and referral was that Reform had failed to sign the form as a candidate being endorsed by their party, and with two signatories, before the proposer and nomination signatures appeared on the form. This is described in the law above.

This is important, because proposers and seconders need legally to know that the candidate they endorse has also a party affiliation. Otherwise, they could be signing a form and not knowing that the person asking for signatures was in fact affiliated to a party rather than standing as an independent candidate.

To put in in simple terms: order matters. It is like a Treasurer filling in a cheque and asking a second signatory to sign, or the Treasurer asking for the signatory to sign and saying they'll fill in the details later. I;ve known cases where this is done, and nothing has gone wrong. But that is not the point. The point is that filling in the cheque first is a safeguard against matters going wrong.

The equivalent of the election law would be to say you had to fill the details in before the second signatory to prevent fraud. That seems perfectly reasonable to me. And yet I've seen some people commenting on social media that this provision should be scrapped! Someone said: "This system is out of date and needs a major review."  The point is not whether deception was intended, which it clearly was not, but that the law is designed to prevent deception.

According to Reform, all those signing did know that Ms Carre was a Reform candidate, and it was an “honest mistake”. I'm sure it was, but their response has been a fine example of displacement activity.

Sam Mezec, as Chairman for Reform Jersey made this comment:

“This was an honest mistake on the part of Ms Carré and Reform Jersey, who were rushing to complete the form in a short period of time. We are disappointed that this has been handled in such a heavy-handed way.”

“It is regrettable that rather than attempt to investigate the matter further or contact Ms Carré to inform her of her belated discovery of this discrepancy, the Parish Secretary of St Brelade instead chose to contact the Royal Court as the first port of call.”

On the contrary, what is regrettable is that Reform seem to have not bothered to get their facts straight, and have vilified the Parish Secretary, no doubt in an attempt to shift blame from their own mistake.

The facts, as far as I have been able to ascertain from witnesses, are as follows. The Nomination Meeting was presided over by Peter Norman, Procureur du Bien Public of the Parish as the electoral administrator for the Parish (the ''Electoral Administrator"). At that meeting, Ms Marilyn Carré and Mr Michael Jackson were each proposed and seconded for the office of Connétable for the Parish.

It was at that meeting that the problem was spotted. The Election Law provisions require that where a prospective candidate wishes to be endorsed by a registered political party, they must complete a declaration as to the endorsement before the nomination document is subscribed by a proposer and 9 seconders.

In this case, it seems that the signatories from the political party were made after the proposer and seconders had signed the form, in violation of the Elections Law.

It should be noted that prior to the nomination night, when the Parish Secretary had been asked to check that the names of proposer and seconders were on the electoral roll some time previously, that is precisely what she did. There would have been no requirement to check any other names, as any party signatories would not have to be on the electoral roll of St Brelade.

Moreoever the Parish’s failure to notice the “‘Party Declaration” error at that point assumes they were themselves aware at that time that Ms Carrre was endorsed by Reform. But unless Ms Carre voluntarily imparted that fact, how were they to know? There was no documentary evidence on the form.

The matter of the discrepancy on order of signing arose at the nomination meeting, and whether to let the nomination stand pending a court decision on the omission was the responsibility of the Electoral Administrator - regardless of who spotted the discrepancy, which may have been the Parish Secretary. It appears that the Electoral Administrator referred it to the autorise who took advice.

It should be noted that,as far as I am aware, this would not disqualify Ms Carre from standing, but because the law had been broken there would need to be a decision taken as to what penalties, if any, would be given. This offence, as I understand it, can result in a fine up to £500, but of course it might have been a lesser amount or none.

Since this, the Royal Court has confirmed that Ms Carre's nomination form would have stood as valid had she not withdrawn, which was what I expected the legal position to be when I wrote the above.

As far as I am aware, it would not disqualify a candidate – she had the prerequisite proposer and 9 nominations, but at most would have resulted in a fine on Reform Jersey.

Another matter which should be noted which is very important was that this arose at the night of nomination meeting, and Ms Carre and any Reform supporters would have been aware of it at that time. My witnesses place them in the Parish Hall. To talk of the Parish Secretary not deciding to “contact Ms Carré to inform her of her belated discovery of this discrepancy” was a nonsense because they were present on the occasion at the Parish Hall. My witnesses say they were aware of the issue, and Ms Carre and Reform would have been too.

I have since have had conversations with other people who were present at the meeting, including a nomination signatory on Ms Carre's form, and they confirm my record from witnesses I had checked with - and I did say - are you absolutely sure? - are correct. The only disagreement comes from Sam Mezec who himself is relying on at least one witness as I was told he was not present.

Once the Electoral Administrator had decided that the law had been broken, even by an honest mistake – and note that he let the nomination stand – it was a requirement to contact the Court. That is what the law requires, and Reform should have been aware of that. The task of contacting the Royal Court would have been delegated to the Parish Secretary, but it was the Electoral Administrator who was responsible for doing that under the requirements of the Election Law. Have Reform read the relevant paragraphs of the law?

The order of events, as I have since discovered, Electoral Administrator consults with Authorise (Jurat) who refers matter to Attorney-General, who then decides to refer the matter to the Royal Court. This is the due process which should be followed, and was. At no point was it the Parish Secretary who referred the matter to the Royal Court, as Sam Mezec told the media, and Ms Carre said in her interview on BBC Radio Jersey. 

In fact, the Deputy Bailiff was also present as a Parishioner but rightly refused to give advice to the Electoral Administrator and the Authorise as it was not his place to circumvent due process of law.

While I can quite understand that Ms Carre probably had little understanding of the due process which had to be followed, and hence a summons to appear in the Royal Court must have come as a shock, the same cannot be said of Reform.

They should understand the Election Law. They should have understood the due processes which must be followed, and the summons to appear which would be the next step. It was not for the Parish to investigate further, but to refer the matter to the Court. The first port of call if a discrepancy is found is the Royal Court. It is not for the Parish to make decisions. It has no authority to do so.

Reform are a professional political Party. And if they were expecting, as they might well have been, a summons from the Court, they should have also warned their candidate to expect that and what it might entail. 

Because they appear to have neglected to tell her, they are now attempting to shift responsibility away from their own failings, and onto the Parish Secretary, who was in any case not legally responsible for deciding what action to take – that was down to the Electoral Administrator, as they would have seen if they studied the Public Elections (Jersey) Law 2002.

They shouldn’t push all the responsibility off themselves, but take some responsibility both for messing up the form, and then failing to tell their candidate the consequences of breaking the law, which they could know but she probably did not. If nothing else, they had a duty of care to Ms Carre which they seem unwilling to accept.

It will be interesting to see what the Royal Court makes of the case.

The Royal Court declared that the nomination paper would have stood even despite procedural mistakes, and Ms Carre could have carried on. As she had withdrawn, Mike Jackson was elected Constable.

Ms Carre has now stated she will stand again in 4 years time for Constable. It is good that despite the initial distress this has caused her, she has "bounced back" and that is good for democracy.

Postscript 1: 

It seems all the signatories have been summonsed to the Royal Court. This makes sense. The Court probably has to decide whether they know Ms Carre was a Reform candidate before signing. The only way they can do that is to have them in Court as witnesses, and hence under oath. The Court may need legal corroboration rather than informal ones.

Postscript 2: 

On Facebook, Anne Southern of Reform says: "Why weren't the rules written on the form and the instructions for filling it in?".  Here's the form. I think she should go to Specsavers (other opticians are available). I can see the instructions quite clearly.

It also raises the question why the proposer and nominators signed the form knowing it was not being done in the right order.

Postscript 3

It has been brought to my notice that Reform's statement  says: ‘The guidance notes attached to the nomination make no reference to the order in which in section must be completed ….”

Only it does, maybe not in the guidance notes (nice bit of get-out) but the form itself states:

"A candidate for the office of Senator, Connétable or Deputy must complete the following declaration BEFORE the proposer and seconders sign the Nomination Document.”

The emphasis on ‘BEFORE” is actually on the form. It seems that no one completing that form read the text which is in clear print, not small print!

1 comment:

Arthur Morley said...

By far the clearest account of this sorry episode.

Deputies Mezec and Tadier doubtless participated in prior elections under this Law and should have well understood their responsibilities.

Shame that the Candidate did not make herself aware of what she was undertaking.