Friday, July 13, 2012

All government, even at its best, is but a necessary evil

Electoral Commission

Submission from Michael Dun                                                  10 July 2012

Having sat in on part of yesterday’s hearing I am provoked to prepare this for the Commission’s consideration.

The people of Jersey need more elected representation – not less.

Parish representation.
In simple terms I would propose that the Constables’ Committee be expanded in its functions and processes to form a sort of lower level of government, with twelve Constables elected by Parishioners, all on the same day and for terms as at present or four years if necessary for consistency (the same as for members of a reformed States).
The Constables should be paid by their own Parishes at rates fixed by Parishioners and have much wider responsibilities and powers to control Parish matters such as public transport strategies and regulation, roads, street lighting, licensing matters for pubs and entertainments, honorary policing etc.

The Parish Halls should also be encouraged to develop as centres of activity and information or advice on all matters of Island life for residents and visitors.

The Committee of Constables should meet at least every month, around the Parishes in rotation, their meetings should be open to the public of the whole Island with published agenda and receive propositions for discussion etc from the general public or Parish Assemblies and serve as a conduit for written and oral communications between the Parishes and the (reformed) States Assembly.

A reformed States Assembly.
“An upper level of government” – would consist of  elected Parish Deputies and Senators – all elected for the same term (say four years) on the same day as a “general election.”
Every Parish should elect at least one Deputy but additional seats should be created (probably about four in total) for the more densely populated constituencies of the Island.

The States Assembly would be responsible primarily for all Island - “National” – matters and International issues or relationships.  So far as practicable, all “parochial” administration would be dealt with through the Parish system and under the Constables’ authority.

Senators – no more than twelve in number - would continue to be elected on an “all Island basis” for the same (four years) term as Deputies. They would receive the same salaries and terms of employment as Deputies and would be required to represent all Islanders without discrimination.

Constables would have a seat and voice in the States Assembly but no vote. Their attendance in the States would be at the Constables’ own discretion but they could be required to express a Parish Assembly viewpoint when mandated by Parishioners.

A “Chief of Constables” could be mandated by the Constables’ Committee, as a conduit to present or receive policy decisions arising between the States Assembly and the Committee.

Constables could be “co-opted” onto States’ panels or committees as consultants or advisers but would have no vote.

The election of the twelve Constables’ should take place on the same day as the States’ general election.

A Constable could not also be a Senator or Deputy.

Other necessary changes.
These reforms are proposed on the basis that other major restructuring of the Jersey government system takes place soon.

This would require, for example, the removal of all the Crown Officers from the States, the creation of a Department of Justice for Jersey and that the States’ Greffier’s Department shall provide the “Speaker” for the States Assembly.
Furthermore, that better arrangements should be initiated for the States and the public of Jersey to consult with UK Government departments directly, that Jersey’s governmental information provision to the public should be improved and that a fully funded “Ombudsman” service, with wide terms of reference be introduced to replace the wholly ineffective “Complaints Board” system of administrative review.

I shall be pleased to amplify these suggestions if required by the Commission.

During Senator Ozouf’s oral presentation he touched upon the current vagueness about the status of the “States” as the government of Jersey. This was a matter that attracted some attention during the “Lord Carswell” examination of the role of the Crown Officers and there is a need to carry out much wider reforms than the current terms of reference seem to demand.
The government of Jersey also takes place in other locations, forums and institutions beyond the boundary of the Bailiwick.

This need also should require a comprehensive re-appraisal in accordance with international (human rights) standards of Jersey’s system of elections and democratic representation.

The method of selection of the Chief Minister (and the status of that appointment) also needs to be reviewed and reformed.

Taking part in the conduct of public affairs is a basic human right established under the UN Universal Declaration of Human Rights and the UN Covenant on Civil and Political Rights (both ratified for Jersey) and the (ECHR) European Convention on Human Rights (incorporated locally as the Human Rights (J) Law in 2006).

Elections alone (even fair ones), do not constitute a democracy.
The international standards on elections include the rights:
To take part in government
To vote and to be elected
To equal access to public service …without discrimination of any kind such as race, colour, sex, language, religion, political or other opinion, natural or social origin, property, birth or other status.

The electorate must also have the ability to remove a government when necessary.

Other rights are crucial to the enjoyment of a meaningful electoral process – especially during elections – such as freedom of expression, of information, of assembly, of association and of movement as well as freedom from intimidation.
In a small community, with only one Island newspaper, and no local restraints over standards of broadcasters or journalists, there are special difficulties in achieving fairness in many of these matters.

Each vote should also have the same weight and electoral districts must be organised on an equitable basis.

As the most recent Deputies’ election revealed, there are also uncertainties about contesting the results of an election and this procedure demands clarification, at least.

That prisoners in Jersey (unlike Guernsey) are denied the right to vote appears to be in breach of Article 3 of Protocol 1 of the ECHR following the decision in Hirst v UK.
This could have further implications so far as any Referendum is concerned with the results of this Commission’s findings but it is the UK as High Contracting Party, not the Jersey “government” (whatever this might be), that must ultimately reform Jersey practice, in line with the
European Court
’s decision and the requirements of the Convention on many diverse matters.

This constitutional oddity raises its own cause for concern that needs to be addressed since the population of Jersey has no vote in the choice of the High Contracting Party aka UK Parliament or its institutions.

Similarly, it is estimated that 20,000 people with Jersey “housing qualifications”actually live outside of the Island yet they appear to have no right to vote in Island elections. Why not? In the absence of a “Jersey nationality” status it may be difficult to otherwise demonstrate a close association with Jersey but “foreign nationals” can vote here and in the elections of other places.
There is also a legitimate call for “Foreign Nationals” to be able to stand for election in Jersey subject to several years’ residence – so why should the 20,000 with such strong links be denied the Jersey vote and how might this substantial denial affect the legitimacy of the whole election process?

The lack of political parties in Jersey is not merely a curiosity because they are a fundamental part of the democratic process in most places. Without them it is recognised that the task of “changing government” is doubly difficult so that in order to comply with Protocol 1 requirements (for example) there has to be a more deliberate effort to encourage political participation by diverse classes of people. Adequate terms of remuneration and the provision of pensions with proper working facilities for all members of the “government” are essential.
Equally so is a framework of protective legislation against private or public employers (for example) who might hinder employees’ participation in political, social reforming activities or in forming or promoting Trades Unions.

The Sark example demonstrates that the use of Parliamentary powers is not just a theoretical threat since ECHR and UK High Court judgments (following McGonnel  and Barclay Brothers) have been “imposed” upon that Island to ensure compliance with electoral standards in accordance with Article 3 of Protocol 1.

Similarly, following the ECHR case of Matthews v UK, the people of the Dependency of Gibraltar now participate in EU elections as voters in a UK South West constituency, in order to comply with the same ECHR Protocol requirements.
It is significant that the
European Court
accepted that the EU Parliament has now evolved into a “government” over the years in which the people of Gibraltar must have the right to take part etc. The Court acknowledged the increased role in law-making of the EU Parliamentary process and its direct impact on the people of Gibraltar.

It becomes ever more difficult in Jersey to argue that the UK and EU Parliaments do not act as governments or legislatures for the Island whereas so many decisions are made (on everyday matters such as health treatment, travel, passports or taxation) outside the Bailiwick, in London, Brussels or elsewhere.
Why are residents of Jersey not represented in those parts of “government”?
This seems to be yet another question that this Commission should be considering.

 “A” revised 11 July 2012


  1. A first class submission, well thought out and soundly based. Congratulations Mike.

  2. Your suggested new States structure sounds familiar. Has this model been proposed before?