Monday, 1 October 2018

Preserving the subsidiary sovereignty of the Parish

The Constables in Jersey: Preserving the subsidiary sovereignty of the Parish

"Just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do. For every social activity ought of its very nature to furnish help to the members of the body social, and never destroy and absorb them." (Quadragesimo anno)

This piece is an argument that the Constables being in the States (to speak and vote) preserves a degree of independence of the Parish from the States, and acts as an important counterweight to ensure that smaller Parishes cannot be easily be dominated by the larger ones, or too much power is taken by central government against the smaller administrative units of the Parishes.

The Jersey system whereby the Constables sit in the States is not bicameral, and indeed it is weaker than perfect bicameralism, but nevertheless it preserves elements of bicameralism within a unicameral parliament. It is however, as a result, weaker than perfect bicameralism, and yet from those roots it can nevertheless justify its existence.

The Justification for a Perfect Bicameral Legislature

So what is a bicameral legislature? It is one which divides the legislators into two separate assemblies, chambers, or houses. Often, the members of the two chambers are elected or selected by different methods, which vary from country to country. This can often lead to the two chambers having very different compositions of member.

Enactment of primary legislation often requires a concurrent majority – the approval of a majority of members in each of the chambers of the legislature. When this is the case, the legislature may be called an example of perfect bicameralism.

It forms part of a “check and balance” which can – as a side-effect - help prevent the passage into law of ill-considered legislation. Walter Bagehot, writing in "The English Constitution", noted that:

“A formidable sinister interest may always obtain the complete command of a dominant assembly by some chance and for a moment, and it is therefore of great use to have a second chamber of an opposite sort, differently composed, in which that interest in all likelihood will not rule.”

However, the House of Lords is not a good example of a secondary chamber as its members are not elected to office. But other countries such as the USA (“House of Senate”) and Pakistan (“House of Federation”) have second chambers where members are elected to office.

In both these, the second chamber allows equal weight to regional differences. In the USA, each State elects two members to the Senate, unlike the House of Representatives, which is elected on a basis of population in each State. In Pakistan, there is also equal representation from all four federating units. This was created in 1973 to ensure that interests of smaller provinces are protected.

In Pakistan, no legislation can become an effective law without being passed by both houses of the parliament. In the USA, no bill becomes a law, unless it is passed by a majority vote of both the House and the Senate, and then signed by the President

So there are two justifications for bicameralism. It provides a check against power to protect the rights of smaller political regions against larger ones and also provides opportunities for second thoughts about legislation.

Both are cited by James Madison of the USA system that "the government ought to be founded on a mixture of the principles of proportional and equal representation". Due to this, each state has equal power in the Senate, which in turn protects smaller states from being overpowered by larger states.

Why the USA chose Perfect Bicameral Government.

The history of the USA is interesting in this regard.

This original Congress was made up of members elected by each of the states, which were represented equally. However, it soon became clear that this form of government was inadequate in many ways—namely, the more-populated states complained that they should have greater representation in the government than their smaller counterparts and that the unicameral legislature did not provide adequate “checks and balances” against potential abuse of power.

With the writing of the U.S. Constitution, which was ratified in 1787, the framers effectively “went back to the drawing board” and created a bicameral legislature.

The Constitution established the two houses of Congress, with the Senate featuring two members from each state, appointed to six-year terms, and the House of Representatives made up of varying members from each state, based on population, elected to two-year terms.

The framers of the Constitution created the United States Senate to protect the rights of individual states and safeguard minority opinion in a system of government designed to give greater power to the national government.

To balance power between the large and small states, the Constitution's framers agreed that states would be represented equally in the Senate and in proportion to their populations in the House.

James Madison, paraphrasing Edmund Randolph, explained in his notes that the Senate's role was "first to protect the people against their rulers [and] secondly to protect the people against the transient impressions into which they themselves might be led."

A major change in the Senate's institutional structure occurred in 1913 with the ratification of the Constitution's Seventeenth Amendment, providing for direct popular election of senators.

Jersey: Elements of weak bicameralism within a unicameral parliament

The Constables with the States are elected by the Parishioners to represent their individual Parish in the States. This is very like the Senators in the USA being elected to represent the individual States. And it has the same effect: to protect the people against their rulers, and protect smaller parishes from being overpowered by larger ones.

It is also a check against the centralism of government. Subsidiarity is an organizing principle that matters ought to be handled by the smallest, lowest or least centralised competent authority. It is something that we have seen in the United Kingdom, with the development of independent assemblies for Wales and Scotland with a degree of devolved power. In Jersey, however, the Parish already has a devolved power, and it is important not to lose it.

The same principle is also present within the European Union, in the Treaty of Lisbon in which it is made explicit. Here the general aim of the principle of subsidiarity is to guarantee a degree of independence for a lower authority in relation to a higher body or for a local authority in relation to central government. It therefore involves the sharing of powers between several levels of authority, a principle which forms the institutional basis for federal states.

Jersey’s Constables in the States represent that element of bicameralism but they are weaker than a perfect bicameral legislature. Were that the case, there would be a second house with the right to bring legislation and to vote down legislation from the other house. Alternatively, they could effectively be reduced to a token bicameral legislature with merely the power to scrutinise and suggest amendments to legislation, capable of being overridden at any time by the other house.

In a small Island, neither solution would provide both a limit to how much say they could have, and that they should have a vote in order to protect the smaller units of government – the Parishes – from a more centralised State.

In the Jersey system, they have a say, they have a vote, but there are, after all, only 12 Constables, and they do not always agree – unlike a political party which might be expected to vote “en block”.

The fact that this is weaker than a perfect bicameral legislature, while still preserving the essential strengths of that system of government, means that it can be seen as democratic, but tailored to a much smaller jurisdiction.

"Decentralization has, not only an administrative value, but also a civic dimension, since it increases the opportunities for citizens to take interest in public affairs; it makes them get accustomed to using freedom. And from the accumulation of these local, active, persnickety freedoms, is born the most efficient counterweight against the claims of the central government, even if it were supported by an impersonal, collective will." (Alexis de Tocqueville)

Postscript: The Deputies

The Deputies do not represent the Parishes as part of  the Civic Administration in the same way as the Constables, so if there is any focus on needing a fair representation, I think there should be changes made there. Some suggestions to make that more equitable are given here by Lewis Baston [Senior Research Fellow of Democratic Audit, a research organisation based at the University of Liverpool]

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