A Few Comments on Electoral Reform

2014 Referendum: Keep Constables in States? Yes/ No

Kevin Keen, writing in the Bailiwick Express, set out his agenda for the new States. I’ll be looking at these over the next few weeks and offering some comments of my own.

"1. Electoral reform - often promised but still not delivered - is essential for more engagement from the public, and a fairer system. As we know it will take a while, so if I was the Chief Minister I would set a deadline of June 2019 for the debate, and some final decisions supported by referendum in Autumn 2019 if necessary."

The only item on the agenda for potential reform is that of removing the Bailiff from the States. The referendum proposition has been moved to July 2018. Four years ago, 62% voted to retain the Constables. The abortive attempts by Andrew Lewis and Lyndon Farnham in 2017 were thrown out that year, both of which involved super constituencies very much along the lines attempted before.

That previous attempt came in 2012, when the States decided that Senator Bailhache should take charge of what would have been an independent electoral commission. A referendum took place in 2013, but the turnout was very poor, and the States rejected the result. The options A and B again involved super constituencies.

Clearly a lot of time has been wasted on electoral reform, and has achieved very little.

While the number of States members elected unopposed has caused a good deal of disquiet, it should not be forgotten that while no seats are unopposed in the UK, there are a number of seats regarded as “safe seats” which rarely change hands from one party to another, and it is only the smaller numbers of “marginal seats” in which voters can actually make a difference.

It amazes me that UK voters for opposition parties retain their sunny optimism and vote when the likelihood is that their votes will almost never dislodge the party’s grip on a safe seat. Even the parties themselves target marginal constituencies far more than safe seats, where money and time spent is largely money and time wasted.

The problem with the UK system is that the first past the post allows a disproportionate amount of the votes cast to be wasted. Minority parties can do well as a percentage of the popular vote, but this does not translate well into seats. A proportion system of voting would be fairer as it would more evenly reflect the voting population, and even votes in safe seats would not be wholly wasted but could contribute to the totals of a minority party.

In Germany, for example, members of parliament are elected with two votes. One vote is for a direct candidate, who ought to receive a plurality vote in their election district. The second vote (considered as more important) is to elect a party list in each state as established by its respective party caucus. Half of the Bundestag is then filled with candidates that won their electoral districts by the first votes and the other half by candidates from the party lists according roughly to the proportion the parties receive from the second votes according to a mathematical formula.

While not going wholly down that path, I think that what Jersey needs is the introduction of some kind of electronic voting, and after that a move towards single transferrable vote or alternative vote (depending on whether it is a multi-member or single member constituency). Logistically, STV or AV is too complex to handle by hand, so the introduction of electronic voting would mean that it was realistic to opt for that.

That should be in place in four years, in time for the next election, and would provide a greater incentive for more candidates as under first past the post, split votes can actually let a candidate be elected whom the majority did not, in fact, want.

Once voting mechanisms are in place, and that, surely is a feasible reform, the thorny topic of States reform could be back on the agenda.

Before Reform is on the agenda, and a proposition is mooted, serious discussions should first take place on the following questions:

• Will the States agree to be bound by the results of a Referendum? The outcome in 2013 was a rejection of the results and angered many people, but how can that potential pitfall be avoided? 
• Should there be a minimum threshold for turnout? One of the factors in rejecting the 2013 result was a low turnout. Jeremy Macon wanted to pre-empt this by fixing a threshold which must be achieved for the States to consider the referendum, but his proposition was turned down. 
• Do we need a referendum? At present, we seem to be proceeding piecemeal and actually getting some results – that in 2014 being an example, the Bailiff as head of the States being another. When the options become complex, people may not actually want what is on offer – such as losing the Senators and super constituencies in 2013. 
• Do we need another electoral commission, but independent? We are looking at a change to the way politicians are elected that is probably far more complex that the Great Reform Act of 1832 which did away with rotten boroughs and reallocated seats to represent the existing population more. That was more akin to losing the Rectors and Jurats.
• Do we need a clean slate? The problem with a clean slate approach is that it usually isn’t a clean slate but gets ideas from elsewhere. Hence Clothier was actually a reflection of the UK Parliament presented as a best fit for Jersey. This is what Annie Parmeter used to call "cultural imperialism" - importing a set of structures and values that work elsewhere and trying to shoe-horn Jersey to fit.
• But would that have fitted well with the Parish system? How can we establish checks and balances so that the centre does not dominate? Do we examine any systems for checks and balances on power, so that the States cannot ride roughshod over smaller Parishes, for example? Do we need to incorporate how the electoral system will mesh with the Parish system and support principles like subsidiarity for example where power is devolved from the centre? 

Check and balances are fundamental. The UK has a single party system, which can, as we have seen, ride roughshod over Scotland - the Midlothian question, which still has not been resolved. The USA uses two houses to ensure that the smaller States can not be tyrannised by the majority. 

No system is perfect, but we do need to see what can be done under any new system to prevent the Parishes being diminished in economic power and responsibility where they run far more efficiently than central government. That is one of the tenets of subsidiarity, and it was challenged in 2014 by a paper commissioned on rates which looked at professionalising and centralising the rating system, and removing it from the Parishes at goodness knows what increase in expense.

So we do need reform, but it should be in the round, and not just limited to voting systems. 

Jersey Electoral Reform Referendum 2013 Results at a Glance

Today's post is an "Infogram" very kindly provided by Thomas Hathaway, a young graduate who has put a number of election figures into an informative diagram. It's a skill that I don't have, so I am very appreciative of his excellent work.

If it appears too small, click on it to enlarge the image.

Referendum Results

Option B was the winner of the referendum on States reform after a second round of voting. A - 45% and B - 54.98% of the vote. There was a definite protest vote in St Brelade, with 31 spoilt papers, 1.34% of the vote, and the highest number of spoilt papers.

By way of comparison, the 1948 change was done after polls in the Parish Halls. The result there was noted as follows:

"Island vote on Reform proposals taken in the parish halls: 64% register for Reform, 36% against".

I should note I haven't been able to find turnout, which was probably higher.

But given that Option C only got 19%, and that means Reform proposals (A and B) got together around 81%, I would say that is a good mandate for change.

Will an overall turnout of 26% be enough to make a difference with regard to the States? That will be interesting to see.

Yet excluding St Helier, turnout rises to around 37%, which is certainly significant. I think St Helier has to be treated as a statistical "outlier", as turnout is disproportionately low there. It is a bit like looking at average wage, where an outlier skews the distribution significantly. I think there are good arguments for taking it out of the equation. And 37% turnout, while not brilliant, isn't far off Jeremy Macon's magic 40%. That's something which really must be made clear.

After all you are looking at wages, an outlier skews the distribution. Hence there are grumbles because one or two high wages can push the average way above what most people earn. The same principle applies here. St Helier skews voter turnout. It distorts the picture for the rest of the Island. And while it has the largest population, should we allow this distortion to effect how the other 11 Parishes stack up? Should 29% (St Helier's proportion of the Islandwide voters) dictate the interpretation of 71% (the other Parishes) with respect to turnout?

St Helier has a huge drag effect, with only 16.75% turnout, which is really terrible. For all the canvassing around St Helier, the A-Team must feel very disappointed. It could have made a huge difference, as could St Saviour, which also had a poor turnout of 22.1%, not as bad, but not good either. If those extra voters had turned out, even up to 25%, it might have made a significant difference.

My random survey in St Helier put Option A at the top, but I did  note "It should be borne in mind that the sample is mostly of people either working or living in St Helier, and that may have a partial bias. I haven't been to the more rural Parishes." That was evidently the case, as the low turnout showed.

Tristan Gray noted "All as expected votes wise so far. Country voted B, Town voted A."  Clearly the apathy of the town citizens, and their inability to come and vote was a major problem. As another A Team supporter said: "If 5% more of St Helier got off their arses and turned off Corrie for one minute - it could have been different.." And another person noted: "Spoke to a shopkeeper at lunchtime opposite the Town hall, He said it had been dead all morning, no-one would know there was anything happening today."

I'd say it was a mandate for democratic change, and with a bare 19% for Option C in the first round, the days of Parish Deputies and Senators are numbered. Option C never gained a majority in any Parish, and never even managed to come second.

47% of those voting for Option C went for a second option, of those, 92% of the second choices went to Option B. That pushed B further ahead, but it had already the highest position after round one, and ended at 54.9% to Option A at 45%. That does mean that Option A supporters should not feel cheated, as they might have if Option A had been at the front in the first round, and lost to the second. But that was not the case. Option B had a lead and just increased that lead. There was no "second bite of the cherry"; it would have won on the first round alone.

Mark Forskitt made a very good point: "Over half of those voting C first preference did not put a second preference. Either their principal objective was keep senators, or they were proxy for none of the above. A better thought out option set would have made that distinction possible."

He also made the point that it is "Essential to have AV/STV for all elections and reopen nominations/none of the above on all ballots."

I doubt if we will get "none of the above", but we do need AV (alternative vote) for Constables, STV (single transferable vote)for Deputies or we will not have a complete democratic reform, but only a half-way house. First past the post is a system that is past its sell by date. It might have been acceptable in the past, but not any more. The case of the UK shows this clearly, where a party like the Liberals can get around 30% of the vote, and translate that into between 15 to 30 seats, which is wholly disproportionate.  That was the second part of the Commission's recommendations, and let's hope they don't get dropped like parts of Clothier were. And this Referendum shows the public are perfectly capable of making ranked choices, and the Parishes of counting them.

Of course, there will be criticism that Constables elections will be largely uncontested, but the problem is simply solved: contest them. To complain on the wings about elections being uncontested, and not mounting a challenge is not an option.

This Referendum was a vote for Reform, but only the start. Without a reform of voting systems as well, it will not be satisfactory in representing the people standing for election.

Friendly Faces at Communicare

I took this around 5.30pm outside Communicare, just before going in to vote. Pictured are (left to right), Constable Steve Pallett, Reg Langlois, Deputy Sean Power, and Deputy Montfort Tadier.

Despite having been there for a considerable period, the sunshine no doubt had raised their spirits, and they were all in a friendly mood, no animosity between them.

There were three B supporters and one A, which led me to joke that it was rather like a game of scrabble!

The results for St Brelade were
956 A
957 B
377 C

and 31 spoilt papers

and on the second round (because this was an alternative vote election, with the lowest dropping out, and any second ranked choices redistributed)

978 A
1109 B

which meant that Option C 2nd choices were distributed:
22 A
158 B

My Random Sample on the Referendum: Some Results

I've been out and about taking a random sample. Most of the sampling was in St Helier, along the High Street, Royal Square, and West Centre, but I also did some around Quennevais Parade. Unlike the online polls which are on blogs, campaign sites, and media pages, this was a random survey and not a self-selecting one. Online polls get people to come and vote; they reflect only those who choose to do so, which may not reflect the population as a whole. A random sample aims to ask people at random, and eliminate self-selection bias. I deliberately avoided any meetings or rallies as that would bias the result.

Some of the interesting results from my survey:

82% of the people I spoke to have heard of the Referendum. However, only 27% actually received or read a leaflet. This tallies with what Ben Shenton mentioned about his meeting of businessmen who had no idea about any Referendum. It suggests that the increased  impact of the Referendum on the public consciousness is coming most from supporters of the Options and the media.

At the time of sampling, only 31% knew the date of the Referendum, although they knew it was in April.

At the 10% confidence level, liking the options correlates most strongly with Option A At the 5% level, there is no correlation between liking an option and any choice. This means that there is a weak link between liking the options and choosing Option A.

There is no correlation between people who want Constables and people who want Senators. Some want both, some are undecided about Constables but want Senators, some just want Constables and not Senators. This suggests a split between Option B and Option C.

My poll gave 55% of those polled saying they would vote, and 24% undecided. The rest would not be voting. Of course saying you will vote and turning out are two different things. An opinion poll problem is that people are not always honest; they don't like to say they won't be voting. My gut feeling is that only around 15-20% will vote.

69% of those I asked said they had voted in the last election, suggesting some dissatisfied voters who will not be turning out deliberately. When asked if they had ever voted, the number rose to 76%.

89% said they were registered to vote, which again highlights a disparity between being able to vote and turning out to vote. The registration form comes as an official document, and speaking to people who have never voted, I gleaned the information that they will fill in any official form which says complete and return, but that's as far as it goes. They have no interest in politics, but they'll fill in forms!

Only 13% said they liked the options, but there were some "not sures". The fact, however that the options have not got much support, even among people who are going to vote, suggests people are prepared to vote for the "least bad option" because that is all that is on the table. There is no correlation between that and any actual option, suggesting that people in all three camps do not like the options much at all. Just imagine if "None of the Above" had been on the form, and got 55% of the vote!

Results on options, taking uncertain into account, are as follows:

Option A - between 16% and 44%
Option B - between 9% and 36%
Option C - between 11% and 38%
Abstain deliberately - between 13% and 22%

The certain figure is the lower bound, the upper figure is if all the wavering people on an option decide to go with it. Those wavering may, of course, decide on the day not to vote at all, or may cast a first and second choice. As it stands, it looks unlikely that any Option will get more than 50% of the vote, but Option A will do best. Some put undecided against several options.

It should be borne in mind that the sample is mostly of people either working or living in St Helier, and that may have a partial bias, although the presents of commuters should suggest some rural input. But I haven't been to the more rural Parishes. However, as it stands it looks as if it is A versus C with the 2nd choice of B being significant, and perhaps swinging in favour of C if B voters mostly have C as a second option.

Between 36% and 53% wanted to keep the Constables (again there was an element of uncertainly). This will be a mix of Option B and Option C voters, and suggests that Option C voters are not unanimous about keeping the Constables. Note that this was asked (and made clear) as if it was a separate Yes / No question. No Option A supporters wanted the Constables to remain.

Between 38% and 56% wanted to keep the Senators. This is surprising, given that Option C has an upper bound of around 38%, but the question asked if people had a choice apart from those give, a plain Yes / No, would they want the Senators, and there was a degree of support across the options. This reflects the very low value given to the choice of options, and some Option A supporters would still would have liked to keep an Islandwide mandate if it had been on the table. This was reflected in a number of verbal "asides".

Some of the "asides" were interesting. My favourite was an old chap who said "I don't vote; it only encourages them". There were a number of people unhappy with the options and were instead calling for an all Islandwide mandate (even though it has been ruled out by the Commission) - all Deputies as Senators. These are voters who don't attend hustings, which after all, is the majority! There was also a considerable degree of cynicism expressed about whether the States would take any notice of the results.

Quite a few people said they just "didn't do politics", and how one reverses this disengagement is something to explore in the future; my own fancy is that better psychological means of engagement will be needed. We have to engage with people and appeal to their emotions, captivate them, not just bombard them with facts and hope that will bring them out to vote.

A wider appeal is what I've tried (albeit poorly) to do with my presentation "The Constables of Jersey" on YouTube. It's not by any means perfect (I wanted music as well; I don't like my own voice, and wanted two voices speaking alternatively), but I think it is a step in the right direction in engagement (even if you disagree with its intent). In case you missed it, it is here:

http://youtu.be/U-9z-RYwcVk

and it is short, around 3 minutes to get a message over.

The Constables of Jersey

Today' blog posting links to a You Tube video, which is also available at:

http://youtu.be/U-9z-RYwcVk

It is a presentation giving background history of the Constables of Jersey, and their role in the States of Jersey, past and present.

While the Referendum Campaign Groups have focused on the role of the Constables with regard to the Options A, B, or C, I wanted to make a short presentation which looks at their history as well as their role in the States and Parishes.

It is I hope both accessible and interesting for people who don't take much of an interest in local politics, and even for informing tourists and recent immigrants a little bit about our Parish system.

Optional Matters

Apologies to Sam Mezec for misrepresenting him on my blog and in the JEP. Unfortunately the letter went out before I had the comments on my blog. Sam says "I have never said that Constables either will or will not be paid. I have always said that it will be up to each Parish on a case by case basis. That's the wonderful thing about the Parish system. If a Constable says he/ she doesn't want to be paid, then he/ she won't be. If one says that he/ she will need to be paid, then the Parishioners will have to decide and they are within their rights to go to Parish Assemblies and have their say and vote against it. Democracy!"

But that doesn't answer my other point: if there are two candidates, one who has private means and says he doesn't want to be paid, and one who says he would need to be, you are back in the situation where lack of means disenfranchises one individual. Like the old days when the States were not paid. Is it right that someone can effectively "bribe" the electorate by saying they don't need to be paid; they have enough independent wealth? Is that Sam's idea of democracy?

Incidentally, the JEP only put part of my letter online; I'd refer to my blog posting if you want a more detailed argument and do not have a JEP.
http://tonymusings.blogspot.com/2013/03/blissful-ignorance.html  

The JEP does make this clear "The full version of this letter has been published in Tuesday's Jersey Evening Post".

On Facebook I read: "I want the constables to sit in the states as I believe that it is one of the main reasons why many of them stood in the first place.. I wouldn't want a constable who couldn't be bothered to sit in the states and fight his/hers parish's corner.. I don't want them having to go cap in hand to a district deputy who lives in another parish to beg for a vote in the states that affects their own parish..."

Sam Mezec commented on this "The other day the States spent a couple of hours debating a wall being moved at Green Island. Why does the Deputy of St Ouen (for example) have a right to debate something that only affects the people that live near Green Island? Surely that is something that should be dealt with in the Parish, not the States. Parish issues should be pushed out of the States and into the Parishes. When that is done, you won't need Parish representation in the States, only island representation."

But does it? Some of the arguments revolved around sea defenses, which should be a concern to all islanders, not just those in St Clement. is that a principle we should endorse, or a one off exception? For those concerned with climate change, it is more than just a Parish matter. In another example, Guy de Faye, as Planning Minister signed an order allowing a developer to force landowners to have utility companies dig through their properties. This was only in one Parish, but it had an island effect.

Another problem raised on Facebook is as follows: "But say for example a decision was being made on where to site some new development which presumably would be debated in the states. Under option A there could in theory be parishes with no representation from anyone living in that parish which would put them at a disadvantage."

Sam Mezec's response is that "If that Parish had a real problem with that development being in their Parish, they could call a Parish Assembly and all 7 of their districts Deputies (whether they lived in the Parish or not) would attend and have to fight that Parishes corner." Would they indeed?

Let us suppose the Deputies are elected in the constituency which includes St Mary, St Lawrence, St John and St Ouen. None of them live in St Mary, and all have previous ties to the other Parishes. That's not unlikely, as St Mary obviously has the smallest portion of the total vote. A development is planned in St Mary. Why on earth should the Deputies decide to fight the corner of St Mary? They may think it is a good thing; that it is time St Mary took on its share of development. There is no reason why they would have to either turn up to a Parish assembly in St Mary (where is any legal basis for their having to attend?) or fight St Mary's corner. I can't see that this statement of Sam's is anything but a kind of special pleading.

Sam also makes this statement about a bias in the Island plan: "For example, the Island Plan to a large degree limits development to St Helier. The Island Plan was able to get through because of the support of country Deputies and Constables, who were limiting developments to places that they don't represent. St Helier's 1 Constable would not be able to outvote the countries 8 Constables, even though St Helier's population is greater than all of them combined."

One of the main reasons behind the Island plan is to protect the green spaces where land is farmed. There is precious little of that in St Helier - there is no longer a spring running through Springfield -  and the move of older offices to the Esplanade has also left parts of St Helier ripe for a return from old houses converted to offices back into dwellings or replaced by modern dwellings. As it is, and as Mark Forskitt will explain, Jersey is not in any way self-sufficient in terms of own food production; we are dependent on supply lines, which can be costly and fragile. To remove the green zones would be to make the situation even worse.

Sam also says that "There should never have been a referendum in the first place. 10 years ago the States should have just adopted the Clothier recommendations and we wouldn't be in this mess." But while Clothier did favour one class of States member, and no Constables he did not want super-constituencies, he wanted to keep the Parish base. Option A doesn't do this.

And as Bob le Sueur pointed out, instead of voting for at least (back then) 6 Senators, 1 Constable and at least one Deputy, many Parishes would be down to just two or three to vote in. From 8 to 3 was a considerable reduction in choice, but Clothier assumed that a Party system would arise, no doubt because his main experience was the UK model of government. It was (as a friend told me) a form of "cultural imperialism", imposing another system on the local one as if it was somehow universally true.

Sam also says: "It is an inalienable human right that all people are free to take part in fair elections. Option B is an unfair system. If it wins, it will be thrown out by the human rights court or the UK. It matters diddly squat that the public voted for it."

So why has no one done anything about the current system which is also deemed to be an unfair system? Sam says it is because over 15 years, reform was in the air, and it would cost less! Given the failure of past proposals on reform, this seems to verge on extreme optimism.

15 years and all the failures would suggest that something should have been done ages ago; to raise the matter now seems more like electioneering spin, but we shall see. I can imagine the discussions which took place. "Shall we mount a legal challenge"? "No, there'll be another proposition for Reform in two years time, let's wait", "Well that was a missed opportunity, shall we now mount a legal challenge?" "No, there'll be another proposition for Reform in two years time"  etc etc. Talk about procrastination being the thief of time!

And Deputy Tadier tells me "A challenge in itself, whether successful or not, is not the kind of publicity Jersey should be seeking". But if it is right to challenge the status quo because it is unjust, should we let reputational damage be the final arbiter? I might expect that from former Senator Frank Walker; I'm surprised that Monty is making that argument. Maybe he should have a word with Sam!

So Option B will be challenged, Option C may be challenged - if the Referendum doesn't deliver Option A, but it has taken up to now (over 15 years) for any legal action to be proposed. People may go to their voting stations and have their say and vote against Option A. According to Sam, when Parishioners vote this way - "that's democracy!" - but when it is a Referendum, it is not. At this point, the A Team usually mentions that if a majority votes to outlaw red-heads or left-handed people, that would not be democratic, which is a typical straw man argument.

I'm not sure that having done nothing until now, it is a good strategy to threaten voters to vote for Option A or else! But that is the message coming across loud and clear. Personally, if I vote against Option A, at least one reason would be that I do not like being threatened. It strikes me as the sort of antics "Yes Minister" might describe as those of a "political thug". It is like saying "Vote A, because we have a loaded revolver waiting to be fired if Option B or C win."

I also look forward to the legal challenge, but perhaps we can have a few lawyer's advice (there must be some in Option A) on its likelihood of success. A legal opinion or two would do wonders for the credibility of this challenge. A lack of legal opinions does not inspire confidence.

Option C retains the Senators, and people like the Island Wide Mandate. Linda Corby said that "Everyone sitting in the States should be voted in by and island wide vote in my opinion, because they all vote on island wide issues." I've heard that proposal from a number of people, and it was turned down as unworkable by the Commission on the basis that (1) voting for that many people would be beyond the capability of the average voter (2) the hustings would be unworkable.

But is it quite as unrealistic as we are led to assume? The notion that you can't make choices of a large subset - say 30 Senators - is an assumption. It is not something which, as far as I can tell, has been demonstrated. There is something called "information overload" with regard to choices of products, but products are not people. If anyone has any experimental evidence relating to voting, it would be interesting to see it, but I have been unable to unearth any studies. Whether you can extrapolate from information overload on food packages or medical marketing to how people react when electing other people to represent them is questionable, but that seems to have been the first assumption made.

And the hustings might well be unworkable in their present form, but need we keep than form? In 1948, when 12 senators were all elected in one election - the first Senatorial election - the rounds of parish meetings which preceded the voting differed from modern elections in not having all the candidates present or speaking at each parish. If selected by lots for Parishes, people could attend the hustings they wanted to, and more time would be available for presentations and questions. In fact, hustings provide a very poor indicator today of electoral success; the main effect they have is to provide an opportunity for reporting in the media, which can of course be selective; it has to be, two hours has to be condensed into a few column inches, or one page of a website.

I'm not saying I'd promote that as an option, but I am saying that perhaps the assumptions made excluding those submissions calling for an Island wide mandate and Constables is not as impossible as it first appears. It may have been too swiftly dismissed.

The Legal Challenge

Much is being made of Option B as not being "human rights compliant", and that if it is passed, even if this is what the majority of Islanders want, this will be challenged legally by Option A supporters.
 
I would find it very strange that human rights compliance should not have been considered by the Electoral Commission, especially by Dr Alan Renwick of the University of Reading. I have been told informally that at least one of the people involved thinks it highly unlikely that any such challenge would succeed.
 
But nonetheless, there is a deficiency in that the consideration of European human rights compliance of Option B is not explicitly stated, which provides a hole through which Option A supporters can drive a coach and horses. It shows that the Electoral Commission failed to address at least one question, and it is unlikely that any literature that comes from them now will address that question.
 
Part of the problem lies in the fact that an interim report was published, but without stating any form of questions, and when the final report came out, that was an end to the Commission's deliberations; no submissions were available on that which might have raised that issue, and had it resolved.
 
The result is a kind of political limbo, where Option A supporters make statements of varying certainty ranging from "almost certainly not human rights compliant" to "absolutely not human rights compliant". The spectre of Sark is raised, with the British government intervention flagged up as a possibility.
 
However, while there have been legal challenges in Sark, not all of them have succeeded. In 1988, a challenge was mounted against the sweeping reforms from a feudal electoral system to a more modern one by the Barclay Brothers, who felt it did not go far enough.
 
Lord Collins surveyed the ECtHR case law on A3P1, particularly Mathieu-Mohin v Belgium (1988) 10 EHRR 1 and Yumak v Turkey (2009) 48 EHRR 61, concluding that there was "no narrow focus on one particular element of democracy".
 
"Whilst the Seigneur and Seneschal were members of the legislature, it was clear from the case law that A3P1 did not require all members of the legislature to be elected, even where the legislature was unicameral.  All the circumstances needed to be taken into account.  A3P1's purpose was to ensure that legislation was enacted through genuinely democratic processes, and that was the case here: neither the Seigneur nor the Seneschal could vote.  The fact that the Seigneur could speak on matters of substance in debate (and therefore influence the outcome of debate) was 'not undemocratic, especially where the influence is open and transparent'"
 
It is interesting to look at this case in detail, because it shows considerable flexibility in how the Courts interpreted the application of human rights law, especially regarding the need to take "into account historical and political factors".
 
When change came in 2010 and the role of the Seneschal as both judge and president was split, it came about through a vote from within Chief Pleas of 20 out of 25 members, and this followed from a criticism of the dual role made by the Court of Appeal in 2008. This was on the dual role, not the fact that the Seneschal was unelected, and no such criticism was made of the Seigneur.
 
Given the role of the Constables in the States of Jersey, and the fact that no challenge has ever been made against the current position for being non-compliant with human rights, it will be interesting to see if Option A succeed in any challenge. Of course, a lot will depend on the turnout, and the margin of victory. But if there was a high turnout of 40%, and a high margin for Option B, I suspect their chances of overturning it in the Courts would be slim.
 
A question that would undoubtably spring to mind would be why no challenge to the existing system had ever been mounted, when it is clear that the same arguments would apply as much to the status quo.
 
While it might be argued that Option B makes representation worse if all members are treated as one kind of member (which in fact they are not), Option C, or the status quo also has problems with representation, not least with the Parish of St Mary. Why has it taken until now for a threat of a challenge to systems be made by Option A?

Have they just suddenly "seen the light", and if the system reverts to Option C, the status quo, will they also be mounting a challenge against that too? Or is the rhetoric purely a "spoiler" to drive people from B to A, sending out a message that a vote for B will be a wasted vote?
 
Links
(1) http://ukscblog.com/case-comment-r-barclay-v-secretary-of-state-for-justice-and-others-2009-uksc-9
(2) http://www.guernseylegalresources.gg/ccm/legal-resources/law-reports/Cases/GLR2009/GLR090314.htm

Rubbish Arguments for Option A

Before I mention this, I will say that I know a number of Option A supporters who think centralising refuse collection would be a very bad idea. But I heard it given as one of the reasons why the Parish system is wrong, and the Constables need to come out of the States.

This was a professional individual who told me his friends and fellow professionals all share the same view. And Nick Le Cornu also complains about twelve rubbish collection services from each Parish as if it is something bad, which Option A will do away with.

The complaint is: why are there different refuse collectors in different Parishes?

As this is in any case largely "invisible" to the end user, I think this is grasping at straws. I'm not convinced that "economies of scale" always work. By shopping around, and with some Parishes with larger needs than others (because of population), it is possible to get a "best fit" with lowest price for one Parish, and "best fit" for one is not best fit for all. So I don't think that's a good argument at all.

Let us look at this in more detail.

The Parish is responsible for refuse collection. As a general rule this is done by entering into contract for at least a 3-5 year period after which it is open to tender. The one exception is St. Helier, where due to its size it operates its own service.

So, first each parish does 'shop around' for best tender. But Parishes may not accept the lowest tender. This is for two reasons. The first is that if the lowest tender came in from a company that had only just started refuse collection services, it might be considered untried and therefore untested; second is what we might call "the knowledge" . As with taxi drivers, it is important that those supplying a service can locate the properties; just setting up in business is not a guarantee of that fact.

Perhaps more important here too is that it is NOT the Constable who deals with the issue of tender. That is in the first instance drawn up by the Parish Secretary and deliberations are thereafter conducted by the Procurers who make the recommendation to go with one service or another - the contract being signed on behalf of the Parish by the Constable. This is another example of general ignorance in how a Parish works.

Another point is equipment. Different parishes have a need for deploying different equipment. For example, St. Clement have a number of high-rise and community collection points needing specialised equipment to remove the rubbish - whereas say St. Ouen has a myriad of small lanes and isolated properties where an altogether smaller vehicle is required. Then there are collection patterns to consider. So it is much more complex that it might appear to be. Each parish tenders to the most appropriate operators for their needs.

One size fits all, as anyone who has had the misfortune to buy some item of clothing that does not fit knows, is rarely true. The same is true of refuse collection. The argument that a centralised States run department would do better is a chimera, and as I say, I know some strong and intelligent supporters of Option A who agree with that, and think that the States running refuse collection would probably be an expensive disaster costing much more to the taxpayer than the present system of different tenders. As Sam Mezec says: "Having a local administration is an effective and cost efficient way of delivering services at the lowest level possible to the people."

So by all means keep the arguments for demographic deficit for option A, but let's drop the argument about refuse collection. It is rubbish.

Blissful ignorance

I am still awaiting the A-Team's detailed study of how the Constables fit into their system. Sam Mezec seems to think that they will have a purely honorary capacity. Simon Crowcroft, who is after all in a better position to know, says that in that case they would certainly need to fund a Chief Executive for St Helier if they did not want to pay the Constable - in other words, there will be a cost element to ratepayers.

I do wonder how blissfully ignorant most people in the A-Team are in relation to Parish affairs; perhaps some more blog posting from Simon could help. He may even decide to retract what he told me at the Town Hall about the need for a paid position; after all, he has changed his mind once. To change it twice, however, reminds me of something Oscar Wilde once said.

In the A team scenario several assumptions have been made, all of which are false; based more on perception than fact. In 2010, Senator Sarah Ferguson did an analysis of the St. Brelade Parish Accounts. Given that the parish is the fourth largest, the figures are quite modest relative to the services and functions the Parish affords to its parishioners.

This analysis was published in La Baguette, and here is an extract:

"Former St. Brelade Deputy, and Public Accounts Committee Chairman Senator Sarah Ferguson explains. There is a considerable amount of detail in the accounts but they are clear and enable all rate payers to understand exactly where their money is spent. They are prepared on a very straightforward basis. Income is mainly recorded when it is actually received - in other words when cheques or cash are in the hands of the Parish Secretary. There are a few exceptions where money owing is recognised as income."

"Expenditure on the other hand is on the accruals basis. This means that all money owed by the Parish is always included in the accounts whether it has been paid or whether it is still owed by the Parish. Because of this the accounts always show the pure unvarnished truth of the state of the affairs of the Parish. In fact the balances in the accounts represent money in the bank."

"The main source of income for the Parish is the rates. The two crucial parts of the rates meeting are the estimates of the expenses for the following year and the decision on the Parish rates. If the forecasts of expenses are too low then the rates could be too low and the Parish would have to levy an additional rate, which would not go down well with Parishioners. If however the expenses are set too high then the Parish would have to set too high a rate which would also upset the Parishioners. Fortunately the Parish has an experienced team who make sensible forecasts."

It is notable too in that article there was mentioned just one dissenter to the rate proposed. That was Deputy Montford Tadier who wanted to increase the rate from 0.87p per quarter to 0.90p per quarter. And he is an A-Team supporter.

While it may be argued that there were (and still are) items seeking funding, it also needs to be remembered that the rates have a direct impact on all households. The prudent stance is therefore to raise the rates as little as possible and look toward other funding sources for non-urgent projects. It needs noting too that Maison St. Brelade as a singular and most urgent expense, had been financed from various sources - not just the Parish.

Income for that year [2010] totalled just under £1.3m, the majority of which was derived from rates. Of that the bulk of expenditure was spent on two items, services and administration. The running of the Parish Hall plus staff wages amounted £469,850  - or roughly one-third of total income.

It can be clearly seen therefore that that if the cost through salary to a Constable at the same level they enjoy by being a States member were part of the St. Brelade equation, the impact on expenditure would be significant - approximately 10% rise. Alternatively, if a Chief Executive was appointed, that would also cost at least the same.

There would also be several hidden costs too.

At times of deputation (such as illness, holiday, funerals etc) whereas at present the Procurer(s) or Chef de Police might temporarily fulfil some of the functions of Connétable. It is clearly far less acceptable that these be provided on a honorary basis if the Connétable himself were drawing a salary from the parish.

It could be further argued that anyone currently deployed in a honorary position may equally take the view that they should also be paid. As it stands, honorary police officers do get a small honorarium but that forms part of the overall policing budget (a separate item) not an administration cost.

The Connétable is not an administrator like the Parish Secretary, but option A pre-supposes that they are and to some extent seeks to re-define their role. They also suggest that there are many people who would 'like' to be Connétable but don't stand because it brings with it a seat in the House with which of course comes a £40k+ per annum salary which presumably they would be happy to give up!

Even supposing that were true, the 'post' of Connétable would only be open to those who could afford to take this philanthropic view - and if anything the incidence of contested elections would be even less than at present, as the workload would undoubtedly mean that it was only open to people with independent means of income, and that it also did not take them away from time spent on that; in other words, it would mean the Constable would be elected on the same kind of basis as States members were before they were being paid. That seems a very retrogressive step, and one which would almost certainly ensure many worthy candidates would simply not stand. It would be reserved to people of substantial means.

The whole purpose of remuneration for States members was that lack of means would not prove a barrier to standing for election. Under the Option A proposals, if the Constable's remuneration is not funded from the ratepayers, then it would mean turning back the clock to the days before remuneration.

I bumped into a curmudgeonly old boy today when conducting a random survey, and he told me that he wished it was still "the good old days when States members didn't get paid". I don't think that was a particularly healthy position; apparently, the A-Team think otherwise with regards to Constables. Do they want to be in that kind of company?

Quite how that position of an honorary Constable is supposed to improve democracy and revitalise the Parish is questionable. I think the trouble is that the A-team have repeated their same mantra so often they have begun to believe it without spelling out in practical terms of costs. "Vote for A - it means a renewed Parish", is just so much flim-flam unless it is costed out thoroughly. Let's have some flesh on the bones, please. Some solid accounting, based on Parish accounts, as has been done in the case of St Brelade.

On the other hand, if A-Team agree that the Constables were to be paid, St. Brelade would face a 10% increase in administration costs just to keep par with current salary, but the lesser populated and largely country parishes would be facing huge increases to match par. It may be the case that smaller Parishes could manage with an honorary position, but an investigation of their finances and workloads would also be needed to provide facts and figures by someone with the requisite accounting skills, like Senator Sarah Ferguson.

Rhetorical flourishes do not constitute sound accounting, and quite honestly the same phrases are about "strengthening the Parish" (coupled with a lack of a detailed accounting and administrative study) is beginning to sound like a record that has got stuck. The devil is very carefully avoiding the details, one might say!

Of course St. Helier would have a far less of a problem - but they would also be seeking to engage a CEO if they didn't pay the Constable - again the impact on the rates would not be insignificant. A CEO for St Helier might actually end up being paid more than the Constable is at present. Simon Crowcroft hinted as much to me.

In summary: A Parish is de facto a business, one that needs to balance to books and deliver dividends to its shareholders (me and you) by way of services which they do more efficiently than the spendthrift States members (or would-be members) who don't appear to understand even the basic principles of running a business - let alone the municipality (of which they don't seem to understand its function) or even the role of the Connétable. Either the rates of the larger Parishes will need to increase for a paid position - CEO / Constable - or it is back to the bad old days when gentlemen of private means could aspire to that office, but ordinary people could not.

Running Scared

There is an interesting report on Referenda in Europe by Pierre Garrone, Head of the Division of Elections and Referenda Secretariat of the Venice Commission (Council of Europe).

A distinction is made between what Garrone calls a "quorum of participation" or a "quorum of approval".

"The quorum of participation (minimum turnout) means that the vote is valid only if a certain percentage of registered voters take part in the vote. The quorum of approval makes the validity of the results dependent on the approval, or perhaps rejection, of a certain percentage of the electorate."

He then lists those countries which have these limits:

"A quorum of participation of the majority of the electorate is required in the following states: Bulgaria, Croatia, Italy and Malta (abrogative referendum), Lithuania, Russia and "the former Yugoslav Republic of Macedonia" (decision-making referendum). In Latvia, the quorum is half the voters who participated in the last Parliamentary election (except for constitutional revisions, see below), and, in Azerbaijan, it is only 25% of the registered voters. In Poland and Portugal, if the turnout is lower than 50%, the referendum is consultative and non-binding."

"A quorum of approval is laid down in Hungary (a quarter of the electorate); in Albania and Armenia (one-third). In Denmark, a constitutional amendment must be approved by 40% of the electorate; in other cases, the text put to the vote is rejected only if not simply the majority of voters vote against it, but also 30% of the registered electorate."

"Moreover, a particularly high quorum is sometimes required for fundamental decisions. In Latvia, when a constitutional amendment is submitted to referendum, it must be approved by more than 50% of registered voters. In Lithuania, certain particularly important rules relating to sovereignty can only be decided by a majority of three-quarters of the electorate. In Croatia, a "yes" vote by the majority of the electorate is required in the case of an association with other states."

To summarise, in a participation quorum, also known as a minimum turn-out quorum, there is a predetermined turnout threshold of registered voters which must be reached in order to validate the result. With an approval quorum, the validity of the vote depends on the approval of a certain predetermined percentage of the electorate. So the turnout is not important, what does matter is that the choice made gets above a certain threshold.

So there is a wide diversity of thresholds in use, but what is clear is that there are a number of democratic countries in which thresholds are in use, especially if there is a constitutional amendment.

The Venice Commission doesn't really like thresholds, but they have no substantive arguments against thresholds, except that they can make it difficult for change to come about. The Referendum in Sudan for independence for Southern Sudan had a threshold of 60% and was easily exceeded.

Jeremy Macon's proposition is one relating to voter turnout. He has put it at 40%, which is a turnout of voters needed for approval. Obviously there is a degree of commonsense in this. A voter turnout of around 15 - 20% of the electorate might well indicate that 80-85% of the voting public did not want the choices on offer.

One argument against this is the "activist" one - "they had their chance, they could have voted". It seems particularly perverse when it comes to a major constitutional change to make that argument, as part of democracy is to involve all the people, not just those who live and breathe politics. If they have failed to get enough people out to vote, should they be rewarded for this failure? It will not do to say "They had their chance, and they didn't take it." That is an expression of contempt for ordinary people.

The point of democracy is to bring people in, to get them to participate, and to ensure that those ordinary people who often have no voice have a chance to have their voice heard. It is not for activists to drown out that silent voice because they did not participate but to try and listen and make sure that voice is heard. Unfortunately, the activist often speaks a lot but does not listen. To listen, you have to shut up and be quiet, and that is very hard for the political activist.

As a guide to Buddhism notes: "Some people combine their rhetorical skills with clever arguments and a loud voice to dominate every conversation and stifle every point of view but their own." That's not going to draw people in to participate; it is going to send them away.

Another argument is being made that Deputies may well have been elected on a lower threshold. True, but this is an Island wide referendum. The fair comparison, which Jeremy Macon makes - and why he chose 40% - is to look at the overall turnout Islandwide on the Senatorial elections. So we can forget the cheap shots against Jeremy Macon on the basis of his own turnout.

Why is there so much fear about a threshold? Might it be because it means that change can only come about not through the activists mustering their supporters out there, but because those who are politically active will have to change their game; and get people to participate.

Instead of appealing to arguments, and browbeating the ordinary person, they'll have to listen before they speak, and then may have earned the right to be heard. But that must be genuine, and not just political politeness. Here is some Buddhist wisdom on the subject:

"For communication to take place it is not just enough to let others talk, we have to genuinely listen to them when they do. Sometimes, when others are talking, we affect an expression of interest although we are not really listening to them but only waiting for an opportunity to interrupt them so we can say what we want. To genuinely listen, we have to close our mouths and open our minds so that the other person's words are not just heard but comprehended." (Bhante Dhammika)

Animal Farm Revisited

"All animals are equal", said Percy the Pig. But the animals still couldn't quite believe it. They had got rid of Mr Alfred Battery, the farmer, who had made them work like slaves, and now they were free to decide for themselves.
 
"We can all vote," said Jemima Puddleduck, "and we can decide for ourselves how the farm shall be run".
 
Plans were drawn up. Everyone was very excited. The farm was going to be run on quite different lines. But there were questions unanswered. The farm had twelve fields. Should each field have a special representative? After all, some fields had sheep, some goats, some cows, and some had free-range chickens. Some fields were used to plough and plant crops and the farm horses were looking after those. The goats and the sheep were looking after fields that needed to be fallow; the cows the fields for their grazing and milk production.
 
"Our fields are all quite different, and they have different needs. We need to have someone to look after our interests" said Sherman the Sheep, "Otherwise, we will have to do all the hard work farming, and the others will reap the benefits."
 
But the animals that lived around the farmyard thought that wasn't fair. "We need to have our say, and there are more of us," said the farm cat. And there was a rooster, crowing loudly in the farmyard by the house, the cat had a lot of kittens, and there were all the young puppies to consider. There were even some goldfish swimming in the ornamental pond. And some barn owls.
 
In the end, they settled on a compromise. They would all vote on how to run the farm. Attila the Hen suggested one option, that every area should have the same number of votes as farm animals, regardless of any special conditions in the fields. This was Attila's option. And Sherman the Sheep suggested that the numbers should be split two ways, one on the same number of animals, and one for the different fields, so that the smaller fields were kept as safe as the larger fields. "Otherwise we may lose sight of what makes a farm special", he said. It was called Sherman's compromise.
 
Everyone was excited. At last the Animal farm could decide for themselves. And the day of the vote drew nearer and nearer.
 
But a number of animals were worried. Attila the Hen had suggested that she would take the matter to the outside Farmer's Union if she didn't get her vote. She said that "it was the only fair vote, and if I don't get my way here, I'll get the Farmer's Union to back me. There is only one fair option, and we'll make sure this is the only one. That's democracy, Comrades. I'm going to stand up for my animal rights!"
 
The animals had thought they were going to decide their own future. They thought they'd have all have a say, and that would be that. They had their options to pick, and they all could decide. But they were mistaken.
 
"You are wrong," said Attila. "All options are equal, but some are more equal than others. We can't let the common herds decide for themselves. If they make the wrong decision, we will have to change it. But all right thinking animals will vote for our option. We can re-educate them.". The pit-bull terrier snarled encouragingly.

The Case for Option C

"Politically I would suggest that the following strands intertwine themselves through the consciousness of the Public.
1) There is significant support for the retention of the Constables within the States Assembly.
2) There is strong support for the Island wide vote (i.e. position of Senator).
3) There is a recognition that the present political system has very strong 'grass roots' connections. For example both Deputies and Constables are elected through the Parish, and because of those strong connections to the Parish, are regularly seen at Parish events, are easily communicated with etc etc. " (Deputy John Le Fondré, submission to Commission)

"It is worth repeating that no top-level jurisdiction in the world uses equalised population (or registered electorate) as the sole criterion for representation. Issues of practicality, the imprecision of the data the exercise is based upon, stability of boundaries over time, representation of communities and the protection of 'small states' all affect the distribution of seats." (Lewis Baston , Electoral systems research)

Supporters of the A-Team are widely touting Option A as "the only democratic option". But I think there might be growing support for Option C.

Option C keeps the existing status quo, which will lead to a reduction in Senators to 8, a general election to be moved to the Spring, and a four year term of office. Yet it keeps the existing inequalities regarding the Parishes, and in particular, the Parish of St Mary. So who would vote for it, except people who want to perpetuate those inequalities.

The answer is very simple. There is no option for "None of the above" as that was ruled out of the States, yet I know from speaking to quite a few States members that they are really unhappy with the way the Electoral Commission has come up with its proposals; in particular,

- they want the Deputies as well as the Constables to keep a Parish connection
- they think that the Clothier recommendation that those outside the Executive (Council of Ministers and Assistant Ministers) should number more than the Executive to keep it in check; a proposal which took formulation in the "Troy Rule".
- they think that the number 42, and the obsession with reducing numbers, is a mistake, especially as a Justice Ministry and a Foreign Ministry have both been proposed, increasing the number within the Executive
- they note that 42 could potentially lead to a hung vote, and they don't think that is good for democracy

In fact, on numbers, the report by Alan Renwick, University of Reading notes that:

"International political science offers one principal insight on this issue: broadly speaking, the membership of the lower (or sole) chamber of a country's national legislature tends to be roughly equal to the cube root of its population....The cube root law reflects the fact that, as we move from small to larger countries, the size of the legislature tends to rise, but at an ever declining rate...Jersey's population, as of the 2011 census, is 97,857. By the cube root law, this implies a legislature of 46 members, only slightly below the actual figure of 51."

Regarding Deputies and Parishes, much has been overlooked of the submission of Advocate Mark Renouf who felt he needed his own expert advice, and commissioned out of his own pocket, an independent report by Lewis Baston.  As he noted, "Mr Baston is a well known academic expert on electoral systems and is currently a Senior Research Fellow of Democratic Audit, a research organisation based at the University of Liverpool. Inter alia, he assisted a committee of the States of Deliberation of Guernsey in advising on electoral systems in our sister island."

Advocate Renouf noted that the report by Mr Baston showed that "by reference to international standards, the present system is not perfect (none is) but it is acceptable. IF it is thought that some further adjustment is necessary to equalise voting power, it is quite clear that various adjustments can be made without removing the Constables from the States."

He also argued that "we should maintain all three types of representation in the States: they give a blend of different talents, life experiences, and types of representation to the electorate."

Mr Baston does a tabular analysis of voting, and notes from this that:

"Jersey scores relatively poorly in two criteria for electoral equality - the overall variability of the ratio between electors and representatives, and in the relatively small number of electoral districts that fall close to the average. Nevertheless, other democracies from the same tradition, such as Canada and Jamaica, are comparable."

"Jersey, however, scores impressively on another measure of electoral equality by numbers. The spread between the largest and smallest ratio of representative to electorate is narrow, more so than in the UK and not far off highly equalised jurisdictions such as the US, Australia and England."

Regarding keeping Parish boundaries, he notes that:

"Legislative boundaries usually take account of internal boundaries within the state, for instance each State of Australia or the US is allocated a whole number of seats and cross-border seats are unacceptable. The same is true under both the 1986 and 2011 versions of the UK rules for the four nations of the UK. Under the 1986 rules, English and Welsh counties were regarded as being units entitled to whole numbers of seats and under the 2011 rules the nine English regions are similarly regarded, although in each case this is not guaranteed by statute. "

He suggests that the Parishes follow this same procedure regarding legislative boundaries and internal boundaries:

"The division of Jersey into Parishes is time-honoured and the boundaries between them are very stable (for instance there is no 'St Helier metropolitan authority' although the urban area spreads across parts of three Parishes and each Parish also contains rural areas). It is reasonable to regard Parishes as being of the same level of importance as the English counties under the 1986 Act and the regions under the 2011 Act. Because of the small overall size of Jersey and the small size of certain Parishes, this introduces more inequality into the ratio of electors to seats, although this is the consequence of preserving these strong traditional Parish boundaries."

He also notes that effectively by being a unicameral system, the States combine two different patterns of representation:

"Many larger states, particularly those that use the most 'equalised' systems of drawing up constituencies such as Australia and the United States, have a second chamber where representation is based on a criterion other than population. That Wyoming and California each have two Senators makes the voter in the small-population state vastly stronger than the Californian in terms of voting power in Congress."

And he says that in the unicameral Jersey system, Constables can be seen as analogous to how second chambers are set up, which is not on the basis of proportional representation, but State representation in America; that's what is known as the Sherman Compromise. Could Jersey live with a similar compromise?

"Representation of Constables in the Assembly can be seen as performing analogous functions to some of these second chamber systems, such as giving representation to the territorial integrity of well-established units within the country and representing a different tier of government - Constables also represent the interests of local government within the overall political system."

So how can the system work better. Well, he has some suggestions, principally that "redistribution of Deputy seats would achieve more equality of numbers without changing long-established constitutional features like the representation of Constables. "

"This analysis has assumed that each Parish has a de minimis allocation of a Constable and one Deputy; allowing only a Constable to represent St Mary (i.e. abolishing the separately elected Deputy) would improve equality without enlarging the Assembly so much but may not be considered desirable. One of the positive features of multi-member constituencies is that representation can be adjusted by changing the number of elected representatives rather than disruptive boundary changes."

"If this de minimis is reduced to that of a Constable and no additional Deputy (after all, a Constable is a Deputy with an additional local role, and in many jurisdictions individuals may combine local and national office), greater equalisation is possible without increasing numbers. Removing Deputies from St John, St Mary and Trinity, and adding them to St Brelade-2, St Clement and St Helier-3, reduces variability to 14.2 with no increase in size. It would also reduce the spread between the most and least represented electors with the smallest (St Mary) being 84 per cent of average and the largest (Trinity) being 128 per cent of average. This spread, which is probably for the public the most intuitive measure of electoral inequality (it is most quoted in UK discourse) even though it is a crude measure, would be smaller in Jersey than in any other top-level jurisdiction studied in this analysis: smaller than the United States House of Representatives, for instance. "

So there may be a lot to be said for Option C, and perhaps we shouldn't be too quick to rule it out as an option. It could give a breathing space for looking at a better model, like that suggested by Mr Baston, for Parish systems.

I'm not saying I would vote for it; I would simply say that the single minded concentration on numbers of Option A overlooks some of the arguments above. It should be noted that in speaking of representation, the Venice Commission says:

 "the maximum admissible departure from the distribution criterion adopted depends on the individual situation, it should seldom exceed ten per cent and never 15%, except in really exceptional circumstances (a demographically weak administrative unit of the same importance as others with at least one lower-chamber representative, or concentration of a specific national minority)."

Which makes the implicit assumption that there will probably be upper chamber representation, which may be on quite different lines. In fact the Venice Commission on bi-cameral systems notes that "It is very difficult to identify a pattern and there is an extraordinary heterogeneity of models for selecting the members of Second Chambers", which ties in with Mr Baston's comments about the USA.

Option C? We'll see!

Reform - the Rocky Road Ahead

States members will be allowed to sit on Jersey's new electoral commission when it is up and running. After nearly four hours of debate, politicians voted against St Saviour Deputy Roy le Herissier's amendment to exclude them from the reform group. Deputy le Hérissier wanted to keep members out of the committee so it could be truly independent. He lost the debate with 25 members voting against his change to 22 in favour. (1)

So the Commission will no longer be independent. Can it come up with a result that is acceptable to the States members? Clearly, if those who voted for it are in favour of the proposals, then it can. But the question is how public consensus will be sought?

The most likely outcome of the removal of independence will be the following:

a) Token consultation. The public will have the opportunity for a public consultation, but there will be no referendum on the final outcome. The consensus will be one approved by the States, and the public will have no part in the final decision making process. This is tokenism, where a crust falls from the table of the rich man, so that the poor man can feel as though he participates in the meal. There should be a real engagement with the public, and a chance for the public to vote on proposals. It is time that the referendum be used for serious purposes rather than idiotic tinkering with time systems that never was going to happen.

b) Clothier style Uniformity. One reason why the Harwood report did so much better in Guernsey than Clothier in Jersey was that it was like a multiple choice questionnaire. Where there were several options possible, all of which would help reform the States of Guernsey, a preferred one was suggested, but alternatives were given.

Clothier presented a single "take it or leave it" approach, which not surprisingly failed to be implemented. For instance, whether the Constables remain or are left out can remain an option to be voted upon, and not predetermined with the proposals brought to the States.

c) The Ghost of Clothier. Just as the devil can cite scripture for his purposes, as the saying goes, and fundamentalists use selective proof texts from scripture to support their case, expect the removal of the Senators to be justified by reference to the Clothier report, but the removal of the Constables (also in the Clothier report) to be neatly glossed over. Clothier was like a failed attempt at cloning; it gave us a man with only half a brain. It is time to ditch Clothier as a flawed attempt to impose a uniform regime, and start afresh.

d) The worst of all possible worlds? Perhaps the introduction of election deposits will rear its ugly head again, and the Senators will be removed. A stability will be achieved, but it will be the stability that comes because the majority of voters are excluded from voting on most politicians as a result, and are thereby rendered impotent to vote for change.

One scenario is that the Deputies remain more or less with small constituencies that follow Parish boundaries, rather than clustering together in 4 or 5 larger constituencies. Then we can expect Chief Ministers and Ministers who have the support of a mandate of 1/33 of the electorate, rather than Island wise, and who - unlike Putin in Russia, or Obama in America - continue in office more or less indefinitely, because there are no restrictions on the number of terms of office.

After all, if Frank Walker or Terry Le Sueur had a safe Deputies seat in a smaller Parish, would they have needed to stand down rather than being trounced (as I am sure would have been the case) if they stood as Senators?

Incidentally, no one has raised the term of office of Chief Minister, and isn't this a golden opportunity to do so?

There are two things which any reform of the States needs to watch, which can mean that there is an apparent reform, without any substantial change possible in the States because of an increase in potential voter representation.

Both of these can be seen in America:

Rotten Boroughs

American State legislatures, which in this way scarcely vary from many other legislatures elsewhere, have often relied upon rotten boroughs and gerrymandering to preserve the existing proportions of seats or to increase the proportion of seats held by a single party or faction. Rotten boroughs are historical accidents that give disproportionate weight to the votes of a thinly populated district in relation to a thickly populated one, despite a rule requiring reapportionment. (2)

If Deputies districts are not increased enough, Parishes like St Mary will end up as "rotten borough"; as it stands it has a disproportionate vote in the States. People in such small districts can remain there for years, as the size of the district means any credible opposition is unlikely.

Gerrymandering

The usual objective of a gerrymander is to maximize the number of districts returning safe majorities for the apportioning group and to minimize the number of districts returning safe majorities for the opposition party or faction. The gerrymandering group seeks to draw district boundaries in a way that will concentrate its opponents' votes in as few districts as possible and will spread its own dependable majorities over as many districts as possible; or it seeks to disperse the majorities of its opponents and gather together its own partisans to create new majorities. (2)

The drawing up of borders if districts are made larger for Deputies may mean that they are grouped so as to disenfranchise the town in favour of the country. It is notable how in the Senatorial elections, there is an "election bounce" so that some candidates get more votes when the town districts cast their vote, and this can make a substantial difference. This is because the spread of different kinds of voters for Senatorials is far wider than for a smaller districts.

If more urban but rural districts such as St Brelade are combined with St Ouen and St Peter, this will lead to a wider spread of different kinds voters than, for instance, if St Brelade is one district, and St Ouen, St Peter and St Mary is another. There are possibilities for gerrymandering there, and it must be carefully guarded against.

Questions to Consider

Given a need for constituencies to have wider boundaries, what balance should be struck between trying to equalise electorates and trying to respect local geographical identities?

Should such a far-reaching review process be guided solely by the number of registered electors or by potential electors? There is a risk that urban areas, in which under-registration is heavily concentrated, may experience the greatest reductions in the number of seats - largely because of the challenges of getting certain social groups to register to vote.

Transparency

- The commission should provide the present and proposed boundaries maps on its website.
- To safeguard its recommendations the commission should provide a rationale for their recommendations.
- The commission should document its process, and maintain a record of all submissions made, a list of reviewed records, and interviews. This should be available for public scrutiny.

Review and the Future?

The proposed reforms should provide for regular review of the number of States members in each of the constituencies perhaps every 10 years to cater for population growth and migratory patterns. This should be be required by law - no longer at the executive's discretion - a periodic redistribution every twenty years, after the release of the census results, to be conducted by an independent commission.

The latter would be composed of people who were non-partisans; it would follow a rigid time schedule and consult the general public; and its recommended electoral map would have to be accepted as final by the Legislative Assembly.

Links
(1) http://www.bbc.co.uk/news/world-europe-jersey-17275398
(2) Apportionment and Representative Government. Alfred De Grazia, 1963

Referendum Trivia

The "changing hour" brigade are trying to get into full flow with their hugely distracting referendum on whether the hour should change. "Just think", said Jim Perchard, on BBC Radio Jersey, "of how an extra hour of light means you could be outside, having a barbeque".

 

If the recently falling temperatures are set to continue - hardly surprising as we approach October - and watch for those gales - I'm not really sure there are going to be that many people sitting outside.

 

But when you come in, you can always stay up to 11.30 for the Channel News after the ITV News at 10.00 (UK Time).

 

Or maybe they'll bring back Jacques Durand for his news in French as that was the time he used to be on Channel TV. "Bon soir," he always used to say, and I'd reply "Bon nuit", and turn the TV off. Those were the days  - nostalgia warning - when Channel signed off with an extremely young looking Queen Elizabeth from 1957 on horseback and the Royal Anthem (even up to the 1980s). After which there would be a blank fuzzy white screen, and a high pitched whine.

 

And remember - an extra hour of darkness in the morning means an extra hour of ground frost, black ice, or snow before the sun can rise up and start to melt it. By which time, if the hour changes, everyone will have to be on the roads.

 

It will be ok for Jim, though, because his tractor will run in all weathers!

 

Referendum on Triviality

Central European Time Referendum: Jersey is holding it's first ever referendum.

The States want to know whether islanders would like to adopt central European time. That means the island would be an hour ahead of the United Kingdom and Guernsey. The proposer Senator Jimmy Perchard believes in time they will also shift their clocks.

The States will still make the final decision following the referendum on 15th October - the same day as the Senatorial elections.

http://www5.channelonline.tv/news/templates/jerseynews2.aspx?articleid=15213&zoneid=1

This is the recent news on Channel TV tonight!

When one considers that Shona Pitman submitted a proposition to the Bailiff last year which asked for a referendum to be held to engage the public's view on whether or not the Chief Minister should be directly elected by his/her electorate, we can see that referendums can be held on the kind of matter than doesn't really matter (except to cause major confusion between Jersey and the UK and Guernsey, mess up radio signal clocks etc etc)

The Bailiff subsequently ruled the Shona's proposition out of order for the following reasons -

'the election by the public of the Chief Minister would in my view confuse a ministerial system of government with a presidential-type system. The Chief Minister must, in our current system of government, enjoy the confidence of the majority of elected members of the States. To have the Chief Minister elected by popular vote might involve the election of a person who did not enjoy that confidence. In such a state of affairs a paralysis of government could follow. I do not think that one can fairly invite the public to vote upon a question which would lead to a constitutionally unworkable system'.(E-mail - 8/1/07).

So much for the idea that the Bailiff does not intervene in the political process. This is clearly a political decision by the Bailiff, and a unilateral one at that! To say that the Bailiff is outside the political process, and is purely a "speaker" to bring order to the Chamber is therefore disingenuous.

Look at the implications too - we can have a chief minister who does not have the support of the majority of the electorate, but is still voted in by the States.

To paraphrase the Bailiff: To have the Chief Minister elected by the States in this manner does not give confidence in democracy in this Island. In such a state of affairs apathy and cynicism of voters who have been ignored could follow.

Accordingly, the proposition did not go to the States. Instead she tried for the following this year: to agree in principle that any candidate for the position of Senator, Connétable or Deputy should be required, at the time of his or her nomination for the position, to make a public declaration if he or she intends to stand for the post of Chief Minister after the election;

It didn't get through, of course.

POUR: 6 CONTRE: 37 OUT OF ISLAND: 1 EN DEFAUT: 1 NOT PRESENT: 8
Deputy Peter Nicholas Troy
Deputy Judith Ann Martin
Deputy Geoffrey Peter Southern
Deputy Patrick John Dennis Ryan
Deputy Shona Pitman
Deputy Ian Joseph Gorst

Now instead, thanks to Senator Jim Perchard, we have a referendum on trivialities, a kind of token referendum which shows that they can take place, and you - members of the public - are being asked, so don't say we don't consult you. Of course, when it comes to the really serious issues, forget it! They don't want to know!