ELECTORAL COMMISSION - LAST PUBLIC HEARING

Storm in Bailhache’s absence

Today the final public meeting of the Electoral Commission was held in the Committee Room at the Town Hall.

In fact it wasn’t a complete Commission because Chairman Senator Philip Bailhache was absent and Deputy Baker only turned up at 11.20am for the hearings that started at 9.00am (although the screen in the lobby said 10.00am).

Left to their own devices the remaining four Commissioners seemed much more relaxed and Colin Storm, the former Guinness and Burger King Supremo was noticeably friendlier and tolerant as chair. He even invited yours truly as the token member of the public present at the outset if the sound was adequate – an issue raised during my own hearing some weeks ago - so the Commission is at least listening on some matters…and they presumably read the JEP too, as revealed during the hearings.

Seven witnesses appeared to give their oral evidence although several proceeded to read scripts that were written in haste at the last possible moment – and it showed.

Deputy Higgins was a rather disappointing self in his presentation and he always seems to be too busy with his aircraft hobby to concentrate on his more important duties public duties as a Deputy.

Shame, because he is a decent sort who means well, but when Colin Storm loaned him a pair of glasses to enable him to read his own script the credibility quotient hit a particularly low point on the scale.

The Deputy did commence though with a jibe at the recent JEP editorial which provoked Storm to clarify in strong terms that the Commission had not yet even considered any of the matters before it. He continued that he did not know why the JEP had written such a thing or whether it was done maliciously or benevolently but he resented that certain people had made that allegation which impugned the Commission’s honesty.

“I can assure you on my honour that we have not yet discussed these matters” Storm protested…

During Senator Farnham’s presentation yours truly passed a note to the Chair asking if the witness could speak up and true to his word Storm interrupted the Senator twice to raise the decibels a bit. So he was not only listening but prepared to act too…

Daniel Wimberley’s 11.00am session commenced with an initial heated discussion arising from a late night

e-mail exchange and his desire to be allowed to rebut an “expert opinion” commissioned and paid for by Advocate Mark Renouf and attached to his written submission “on the final day” allowed.

Colin Storm explained that this document would be examined along with others in the usual way…

Wimberley followed up with a request to see the “expert opinions” received by the Commission but Storm said that these were already published on the Commission’s web-site – which came as a surprise to both of us.

The former Deputy also raised the JEP question and Storm repeated that he did not know if the editorial was malicious or misguided etc but Wimberley persisted “Will you ask the JEP for a retraction?” Storm was unsure – he initially said it was a matter for the Chairman but then that he did not know – but thought it was unlikely that a retraction would be sought.

The exchange seemed to take the wind out of acting Chair Storm’s sails for a while and Dr Jonathan Renouf (the former Hautlieu student turned BBC TV documentary producer) then mostly asked the questions for a while on Wimberley’s “seven principles that the Commission should follow.”

As is traditional for the man from St Mary, his diatribe exceeded the time allowed and he was only silenced by Storm at 11.45am with thanks for all his written research and the promise that “we will read it all.”

Bob Hill next appeared and also explained his growing cynicism and how there was a perception “outside” that there was already a “done deal” by the Commission and that its constitution had been “loaded.” Storm assured him that they all had one vote only and Renouf affirmed “we are only lay members after the event.”

But, asked Bob, suppose there is a split vote between your 6 members? Would the Chairman have a casting vote? Storm responded that at worst there would be a deadlock but then added “This is not a charade; I would not be involved in a charade.”

The hearings eventually - and finally - ended at 12.50pm.

Other questions were asked by Commission members Constable Gallichan of St Mary and Professor Sallis.

Deputy Baker managed a few sentences including the comment that poor voting figures were a reflection of contentment.

Other witnesses were Raulin Amy a Jersey advocate working for a local practice.

Sylvia Lagadu, a candidate in the most recent Senatorial elections.

Constable Steve Pallett who had been turned from party politics and membership of the JDA through Honorary service in St Brelade…

Anyone for charades?

The Privy Council - Jersey's ancient bicameral government option...

Click on image to reveal eight hundred years of Jersey's existing bicameral government in operation!

And we already have the Westminster Parliament, all the UK Government Departments and institutions, the EU, The Council of Europe, the UN and the High Courts of the UK and the European Court of Human Rights to appeal to in order to check our legislation and any defects in the Jersey administration.

So why on earth do some people want another States Chamber to carry out scrutiny that already takes place? If Jersey was to become "independent" - what would happen to all these existing safeguards?

Answers on a history theme please...

HAPPY BIRTHDAY PRIVY COUNCIL....

Really it is my birthday too in a double sense because 30 July was also the date of my Petition to the Privy Council last year objecting to aspects of the absurd Jersey government proposals on Population, Jobs and Housing controls...

Of course nobody reveals what is happening in the corridors of power betwixt St Helier and Westminster but CM Gorst did let slip this week that the delay in implementation is related to the petition...

so cause for celebration on several counts and so I publish the petition here again approaching its first anniversary...don't send me a card or buy expensive presents please, just read and enjoy xxx

The Clerk of the Council                                                                               

Privy Council Office

2 Carlton Gardens

London SW1Y 5AA                                                                             30 July 2011 Jersey

Dear Madam,

PETITION

The States of Jersey Control of Housing and Work (Jersey) Law and the Names and Address Register (Jersey) Law

I the undersigned resident of the Island of Jersey hereby petitions the Committee of the Privy Council for the Affairs of Jersey and Guernsey not to recommend to Her Majesty in Council that Royal Assent be granted to the Laws entitled the States of Jersey Control of Housing and Work (Jersey) Law 201- and the Names and Address Register (Jersey) Law 201-, without due consideration of the reasons stated in this petition.

The Reasons for this Petition.

The Assembly of the States of Jersey has recently voted to replace existing legislation including the Housing (Jersey) Law 1949 and the Regulations of Undertaking and Development (Jersey) Law 1973 with the above named Laws.

It has been argued in the States that the new Laws will provide less complicated control over access to housing and  employment besides providing access to better information with regard to making decisions relating to migration and populations policy in Jersey.

However, the petitioner considers that the proposed Laws are intended to perpetuate existing policies that are already discriminatory and divisive and to impose yet further unreasonable limitations on the rights and freedoms of many residents or potential residents, in Jersey.

Furthermore, that the powers sought under these new laws are neither necessary nor desirable in a modern, affluent and democratic society but are rather designed to be oppressive, to create disharmony within this community and infringe universally  and internationally agreed and accepted standards.

Furthermore, since it was repeatedly argued by the proposers of these laws in the States, that they were only the beginning, and that further measures might follow, your petitioner believes very strongly that these should have been fully declared and discussed at the outset.

Also, that this legislation should, in fact, be considered to be a disguised immigration and population controlling device because such measures cannot be enacted openly within constitutional constraints existing between the peoples of the  Island and  those of the United Kingdom and other territories.

Your petitioner has been a campaigner on “human rights” issues in Jersey over many decades and notes with concern that there is still no anti-discrimination legislation in place in this Island (although it has been frequently promised locally and at Westminster) and, furthermore, there are many important international conventions and such-like that have not even been ratified for this Island.

Whilst the proposers of these Laws were required to give a statement of compatibility so far as the European Convention of Human Rights is concerned, the details of the legal advice supporting this statement were not made available (either to States Members or the public). Virtually no other discussion took place of the human rights implications of these Laws among Jersey’s tiny legal profession (which is mostly otherwise engaged in finance industry matters). As a result, neither States Members nor the electorate were enabled to discover or understand what the human rights implications of these proposals might have been.

As has been demonstrated in recent UK court cases regarding (for example), the Chagos Islanders and those of Sark, the liability for the upholding of human rights standards in such places as Jersey is not just a matter for the Islands own governments and administrations. That liability now clearly runs through UK institutions such as the Privy Council Committee for the Affairs of Jersey and Guernsey and possibly beyond.

Such liabilities can therefore be raised and challenged in UK courts.

Not only does this, by itself, raise profound constitutional issues so far as the residents of Jersey and other places are concerned but it must also be considered that the UK government has ratified many international conventions and treaties which have not been ratified for Jersey. Thus the implications for those seeking redress against a grievance arising under the proposed Laws are much wider than just those protected under the European Convention of Human Rights.

There may also be specific implications so far as the European Union is concerned - since the discriminatory measures enacted under these Laws apply to citizens of the Union who might otherwise have full rights of settlement and abode in British territories elsewhere. EU citizens, in this context might be from the UK, as well as any of the other nations within this organisation and there are different – possibly discriminatory – standards that apply to citizens of other Crown Dependencies, Overseas British Territories or from foreign countries.

The complexities that might arise from the application of these Laws have not been adequately discussed in Jersey and are too numerous to describe in this submission. However, it is evident that many existing residents of Jersey might be subject to retrospective decision making and that existing and future residents might be liable to have important licences or permits revoked or changed. Such decisions might also be taken in accordance with policies that are not clearly defined under these Laws but rely on some vague “aspiration” to control population numbers or immigration.

In this context it must be emphasised that Jersey’s government has operated since 1945 with a central policy based upon economic and population growth. Thus, although existing laws such at the Housing (J) Law 1949 and the Regulations and Undertakings  (J) Laws have included powers to restrict the ownership and occupation of housing accommodation or employment opportunities – the population has been deliberately increased from about 50,000 to the current 92,000 (winter) residents. It is currently proposed to increase the population to 100,000 residents – yet the Laws proposed are deliberately designed to restrict the occupation of proper housing accommodation or to deny employment for many in equity with others.

Thus, the proposed Laws perpetuate discrimination as a deliberate part of the economic and social policies of the Island and there is no plan to ever adequately house the entire population (whether that might be 92,000 or 100,000) or to ensure that all residents enjoy equal employment rights or opportunities.

The application of Island Planning (building) policies, Taxation and Social Security benefits policies need also to be considered in this context because they are also designed to favour certain groups over others on the basis of age, periods of residence, employment or wealth (for example) and add-to, rather than inhibit discriminatory behaviour towards many residents of Jersey, both by government bodies and private organisations or individuals. They are inevitably to be applied in conjunction with other discriminatory laws and policies and with those now currently proposed.

Underlying the whole package of new laws and policies is the centralised data collection and identity card system that will be applied to all residents of Jersey. This raises particular concerns about privacy, confidentiality and use since the information may be freely collected and viewed between different departments, including the Police initially and perhaps all government departments, eventually. It may also be transmitted out of the Island.

Since the Jersey Identity card was only originally agreed in conjunction with the UK card system that has now been abandoned on cost and human rights grounds, the reasons in favour in this Island have not been adequately promoted or examined. This is all the more of concern since the smallness of the Jersey population and the overlapping of so many institutions will ensure that abuse through access to the central  data banks is inevitable.

Your petitioner believes that these proposed laws have not been adequately considered by the States of Jersey or the public of the Island and that their application will be harmful to the interests of the people of Jersey as well of British people and others generally.

Yours faithfully

MICHAEL DUN               

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