STATES OF JERSEY
From: Ted Vibert
August 30th 2012
This Commission has been set up because of widespread dissatisfaction with the way in which our government has been functioning since the Clothier recommendations of 2000
The Clothier panel was put in place because many States members at that time believed that trying to run a sophisticated community through 24 Committees was inappropriate for the year 2000 and onwards.
Senior States members of that era realised that decision –making through the process of 24 Committees needed to be reviewed and in 1987 a management study was commissioned by a firm of independent accountants and management consultants in an attempt to streamline and speed up the business of decision- making by the States
Their report led to the creation of the Policy and Resources Committee whose intended function was to draw together the various Committees and regulate the interaction.
As the Clothier Report noted (p19 4.4)
“This has not proved to be a cure for the ills in the system because the P&R Committee did not have the authority which is necessary and so cannot require committees to follow established policy”.
Between 1987 and 1999 the States struggled on trying to make the Policy and Resources situation work effectively. Then, on 2nd March,1999, the States approved a proposition to appoint a body to review all aspects of the Machinery of Government in Jersey.
This panel consisted of Sir Cecil Clothier KCB, QC; Sir Kenneth Bloomfield, KCB; Professor Michael Clarke, CBE DL ;Mr. John Henwood MBE ;Dr. John Kelleher: Mr. David Le Quesne; Mrs. Anne Perchard; Mr. Colin Powell,OBE; and Sir Maurice Schock
Panel head Sir Cecil Clothier, as well as being a distinguished judge, was Britain’s first Ombudsman.
This panel heard 132 witnesses and received 161 written submissions and it met for approximately 200 hours.. It held meetings with officials from the Isle of Man and Guernsey, held a public meeting in St. Helier, advertised extensively for evidence and sampled public opinion (Mori Social Research)
I would respectfully suggest that this Commission read their report thoroughly for their findings are, in my view, as relevant today as they were then and were arrived at following a huge amount of effort by what can only be described as a highly intelligent and august body of people.
Without wishing to be disrespectful to this Commission, I am sure even they would accept that, along- side of that panel, their knowledge of constitutional law, Jersey society and the way the States of Jersey is constituted is no better than the Clothier panel.
Which raises the question as to how an impartial Commission can reach any different conclusions to that reached by the Clothier panel?
It also raises the question as to why the major recommendations of that panel were not accepted by the States. These major recommendations were:
- The role of Senator should be abolished
- Constables should cease to be in the States
- The Committee of Constables should be consulted whenever their Parish is particularly affected
- An electoral commission to be set up to re-assign the vacant seats among the parishes.
- All members of the States to enjoy the same title Member of the States of Jersey(MSJ).
- The States Assembly should consist of between 42-44 members
- The Bailiff should cease to be the president of the States and a speaker of the House should be selected from States members( also the view of the recent Cardswell Inquiry into the Role of the Bailiff)
The 44 recommendations are to be found on pages 41-43 of the Clothier Report.
The panel also outlined that the committee structure should be scrapped and seven departments ( ministries) should be created, each with a Minister and two assistant ministers. These ministers would form the Council of Ministers; the chairman of which should be the Chief Minister.
So why did the major recommendations – the removal of Constables and Senators -fail to materialise. In simple terms, the turkeys didn’t want Christmas to come. Put even more simply, it was naked self-interest. The Senators did not want to lose their positions and neither did the Constables.
The combined voting strength of the Constables and Senators (24) plus the country deputies made it impossible for these reforms to be carried in an assembly of 53. If they supported the proposals it would have meant them losing their seats in the States and with that their income.
.The Jersey States then decided to do the worst possible thing which was to “cherry pick” the Clothier proposals.
The Clothier panel warned them against this, saying
“Our recommendations amount to a comprehensive plan for the revision of the Machinery of Government in Jersey. We hope that the plan will be implemented as a whole, rather than piecemeal. Employing, for the last time, the metaphor of machinery, it is no use assembling some parts only of a machine and expecting it to work”.
In fact that was precisely what happened and the result is the mess that exists today.
The architect of that decision to “cherry pick” the Clothier proposals despite the warning that what was being recommended was a “comprehensive package” was this Commission’s chairman .
In an infamous letter of 14th February 2001 to the Policy and Resources Committee Sir Philip declared that
“The panel (Clothier) suggests that their plan should be implemented as a whole. ~For my part, I can see no compelling reason for treating the recommendations as an indissoluble package. This suggestion seems to me to be a denial of a member's responsibilities. They are perfectly entitled and indeed have a duty to examine the recommendations on their respective merit and decide which of them should be adopted and which should be rejected or accepted in part Members. The suggestion that the Panel’s recommendations are so perfectly formulated that they must, all without exception, be embraced seems to be to be very questionable indeed.”
This advice was quite extra-ordinary given the fact that the States had commissioned a report from a Panel held in high regard whose brief was to examine what was wrong with Jersey’s system of government and after two years of meetings and receiving submissions, written and oral, from a large cross-section of Jersey society and which had produced a complete package of reform which the Panel warned was a complete plan and should not be tampered with.
By giving his official seal of approval to “cherry pick” the Clothier plan- which the States did- he effectively neutered the reform process, the result of which is we now have a system of government that is totally unsatisfactory.
THE ROLE OF THE COMMISSION CHAIRMAN IN HELPING TO THWART THE CLOTHIER PROPOSALS.
This Commission should be aware that advising the States that they should cherry pick the Clothier proposals was only one element of the former Bailiff’s opposition to the Clothier proposals which resulted in scuppering most of the reforms proposed by Clothier. In an unprecedented incursion into politics, Sir Philip wrote a 15page letter spelling out his views on the proposals put forward by the Clothier panel. This letter was sent to the media and received huge coverage and it was also distributed to all States members.
I have attached a copy of this letter to this submission so that members of the Commission can read how the chairman thinks of the various reforms suggested and to realise that these are long- held views that are deeply ingrained in his thinking. Any suggestion that he is impartial on the question of States reform is simply ludicrous and they should treat his position with circumspection.
I believe it is important that members of this Commission should be reminded of Sir Philips conduct in respect of the Clothier Report and the strongly held views that he has so publicly expressed.
There is a widespread view in the island that the Commission chairman is hopelessly conflicted on the issue of States reform. No normal jurisdiction would allow anyone so conflicted to sit on a body reviewing this crucial subject about which he has expressed such strong views, let alone chair it. I was not intending to make a submission to this Commission as I viewed it as a tainted body but decided that I had a public duty to put forward the views expressed in this submission.
. EVOLUTION OR REVOLUTION?.
Some people have argued that a country’s Constitution is something precious and should only be altered gradually. The Commission chairman himself holds this view and has stated that the
” the Clothier proposals recommends changes which amount to a total re-constitution of the States Assembly which has evolved gradually over the past 500 years”.... a complete rupture with the past...revolutionary proposals of this kind, as opposed to a more evolutionary approach, need careful and measured appraisal”.
For Sir Philip to suggest that Jersey’s constitution has evolved gradually over the last 500 years is totally misleading. Up to 1948 that may have been the case for back then the Jersey States consisted of 12 Jurats, 12 rectors and 12 Constables for over 200 years but later 17 deputies were added.
Jurats were elected primarily to be judges of the Royal Court but it was not a democratic situation. A candidate for Jurat, prior to 1948, had to be a native of the island, he could not be a brewer, a butcher, a baker or an inn-keeper and women were barred from holding this office Neither could he be a catholic, a Jew or a” freethinker”.. A candidate for Jurat also had to have £30 worth of assets and an elected Jurat held the office for life.
The 12 rectors sat in the States by virtue of their office and were unelected. The 17 deputies were elected in a “normal election,” The Constables like-wise.
In 1948 a Committee of the Privy Council proposed a massive reform of the States of Jersey which removed the 12 Jurats and 12 rectors and replaced them with 12 Senators, 12 Constables and 28 Deputies The first Senators were to be elected on an island-wide basis and 4 would sit for a period of nine years, 4 for six years and 4 for 3 years; Constables for 3 years and Deputies also 3 years.
In addition the role of the Jurats was updated and restrictions on religion, finance, locally born and gender were removed. They would serve six years with two retiring each year
Those huge changes could hardly be described as evolutionary but were clearly revolutionary. The Jurats are one of the most ancient offices within Jersey’s social. legal and administrative structures yet the States of 1948 took the view that despite this they should not be involved in the political process The same applied to the Rectors
The Commission of1948 effectively decreed that Jersey’s form of Government in 1948, despite its long and ancient traditions, was ” no longer fit for purpose” and they replaced it with a totally new structure, which remained in place for 56 years until 2004
Had the Commission chairman been the Bailiff back in 1948 no doubt his love of tradition ,which he appears to put above what is appropriate to the times, might have led him to campaign against these changes He probably would have complained that these changes were ”a total reconstruction of the States of Jersey which has evolved gradually over the past 500 years” and called them“ a complete rupture with the past” and “ a constitutional arrangement and a system of government of such long standing should not be so casually discarded.”(which is how he described the Clothier proposals of 2000).
But it was felt by the States of 1948 that the changes proposed were right for their time--- 1948 which was 64 years ago. The population of Jersey then was 57,310. Today it is 97,857, an increase of 40,547 or 70%. Back in 1948 governing Jersey was simple compare d to the complexities of today. The island now finds itself part of the complex business world that is truly global whereas back then it was a simple agricultural society.
In 1948, States business took one morning a fortnight with Committee meetings once a week.
Between 1948 and 2000, there have been some minor changes to the construction of the States-like the addition of one more Deputy for St. Brelade. And, of course.. Members of the States are now paid.
Whenever the question of States reform is raised there is a tendency for some people to get extremely “precious” about the island’s constitution, arguing that a constitution it is something very special, particularly if it has stood for hundreds of years and should only be changed gradually over time. The Commission chairman has gone as far as suggesting that a constitution is “shaped by tradition and history, and is a living organism”.
He has also argued that “a community that ignores the weight of history does so at its peril. Its history and its heritage are part of its individuality and its soul...we should remain connected to our past and concentrate on adapting our institutions. There is nothing inherently wrong about being different.”
To suggest that altering the way in which the States operates by as massive a change as that of 1948 was somehow ignoring the islands history and heritage is simply ludicrous. The ultimate aim of this Commission should be to produce a blue print that will make the States of Jersey a democratic organisation where every person who stands for election is voted for by an equal number of voters and has an equal chance of success.
This and only this should be the aim of this Commission.
.I hope this Commission does not put tradition and history before fairness and practicality and takes note of the decision of 1948 and act positively to produce a plan that is fit for purpose
SO WHAT IS WRONG WITH THE MAKE-UP OF THE STATES OF JERSEY?
This Commission has the task of advising the States of Jersey of changes that should be made to the make-up of the States Assembly. To do this, it is necessary to decide what is wrong with the make-up of the Assembly and what should be done to rectify what is wrong.
In my view the Clothier panel had it exactly right in their conclusions and the proposals they put forward to implement change.
There is little doubt that the way in which the States is constituted is totally undemocratic. No Assembly can be called fair when there are three different classes of members representing totally different numbers of people yet all have the same influence and power
The Constables are a classic example. If you look at the table Parish by Parish table (where I have removed those who are under 16) it can be seen that the residents of the Parish of St.Helier have one Constable to represent 29,027 voters or 18,019 registered to vote whereas the 1,463 population or1, 228registered voters of St.Mary also have one Constable to represent them.
The four most populated parishes, St.. Brelade, St. Clement, St. Saviour and St. Helier have only 4 Constables to represent a total of 56,926 potential voters and 40,333 registered voters- representing an average of 14,980 voters per Constable
The remaining 8 Constables represent 26817 or 3,352 per Constable.
These figures illustrate how blatantly unfair the current situation is and how unacceptable it is.
.The same applies to the Senatorial position where 4 Senators have to appeal to a voting population of75,820 or 62,041 registered voters- -- 15.541 per Senator.
The same applies to Deputies where the number of electors can range from 4,122 to !,136 per deputy.
It is a basic requirement of a democratic society that each member of a government body should represent an equal or near equal number of people. This can only be achieved by removing the Constables and Senators from the States as it would be impossible to equalise their representation im any fair way. That alone would mean the States should have only one class of member( as Clothier recommended).
The constituencies would be along Parish lines but with adjustments to bring the numbers into some form of equality.- a 1%tolerance would be acceptable.
There are a number of other reasons why Constable and Senators should be removed from the States
The greatest blight on democracy within the structure of the States are the Constables. They are elected specifically to be the head of the parish administration. As such they head up a team which includes the honorary police force of centeniers, vingteniers and Constable Officers plus the Procureurs. In modern terms they are, in effect, the managing directors of the parish and are responsible for all parish administration from setting the rates to ensuring that expenditure does not exceed income. They are also responsible for issuing gun licences, dog licences, the parish roads (through a roads committee ) and ensuring that their electoral register is kept updated. They are responsible to a parish assembly which has to approve expenditure and the level of rates plus any controversial matters that may come forward that concerns the Parish. The Constable cannot act on his own when it comes to important matters within the parish as the Parish Assembly controls what a Constable can do.
They become States members by virtue of their election as Constable. However it is unusual for a Constable to be challenged in an election unless he/she has alienated the parishioners in some way. In the last election, for example, the Constable of St.Saviour lost his election to a political newcomer whose only claim to fame was the ability to sing “Beautiful Jersey”. He had angered his parishioners by supporting a proposal to build a community club in a large field.
In St.Brelade, the Constable lost his seat partly because his parishioners felt that he was spending too much time working on States business in his role of Minister for Transport and Technical Services.
When a Constable retires or a vacancy is created by a death, there is never a rush of candidates to take the role. Generally speaking candidates come from within the parish’s political hierarchy This gives a candidate a strong support base against which someone outside of that system finds it difficult to compete. It is not a level playing field. Whilst that is possibly acceptable for a parish role, it is totally unfair for an election of a States member
. .A sitting Constable has a quite unfair advantage over a challenger. As head of the parish, he/she becomes very well-known within the parish boundaries. Being at the apex of the parish hierarchy enables him /her to build support from a powerful group of parish officials and their supporters, When a challenger appears and if the sitting Constable has done nothing to alienate his supporters the challenger finds himself on a veyy unlevel playing field. It is a totally unfair situation.
This unfairness, combined with the unequal number of votes for each Constable. should preclude them from being part of the States.
THE ARGUMENTS TO KEEP THE CONSTABLES IN THE STATES
The Commission chairman has argued that
“ their standing would be reduced. They would chair the Parish Assembly but even there ,their influence would be greatly diminished.They could not carry forward the views of the parishioners. The ancient title ’pere de la paroisse or’ father of the parish’.that is the protector of those in need of protection, would become empty of meaning. ~Their role would become relatively minor and secondary to that of their parish deputy or deputies who alone would have the power to represent parishioners in the States.”
To suggest that by changing the status of the Constable by removing him/her from the States “reduces their standing and greatly diminishes their influence within the Parish” is pure speculation and supposition. There are those who argue that removing them from the States would enable them to spend more time working on Parish matters and their parochial position will be enhanced
If one accepts the argument put forward by the chairman of the Commisison” “that they would chair the parish assembly but even then their standing would be greatly reduced can only mean that the Chairman believes that all other functions carried out by the Constable become unimportant if the Constable is not in the States. This is an argument put forward totally without any evidence or examples of how this could be.
The Commission chairman has also suggested that if a Constable is not in the States ,his parishioners would have no one to put forward their views in the States. One has to ask—what is the Parish Deputy doing?. That is one of their jobs.
In the case of St.Helier, they have 10 deputies to do that job; St. Brelade has 3;St. Clement has 2; St. Lawrence has 2; St. Saviour has 5. The other seven parishes have a deputy each. How can anyone argue that if the Constable is removed ,the parishioners won’t have anyone in the States to represent them is not supported by the facts and is simply untrue.
The Commission chairman also argues that
“the long tradition of the Connetables convening parish assemblies to guage public reaction to significant matters under consideration in the States (the original reason for lodging a proposition au greffe) would come to an end.”
That long tradition ended years ago and it hardly ever happens today as the chairman well knows
The chairman has also made the following statement:
“This diminution in the status of the office of Connetable could have more serious consequences for the parishes themselves. The ancient pyramid of honorary officers with the Constable at the apex have an important part to play in local administration and in the life of the community....their removal(from the States) would not only diminish the standing of the Constable but would also risk a weakening of the influence of the parish in island life”
The counter argument to this is that if the Constable is removed from the States the ancient pyramid of honorary officers with the Constable at the apex remains intact and unchanged regardless and will continue as before and will continue to have an important part to play in local administration and in the life of the community.
Again, the contention that the parish system would be weakened if the Constable is not in the States is unsupported by any factual evidence but is unsubstantiated supposition which does not stand up to rational argument.
A SECOND CHAMBER OF CONSTABLES.
I am aware that proposals have been put forward to the Commission that a second chamber consisting of the 12 Constables should be introduced. The purpose of this would be for the Constables to be the equivalent of a scrutiny panel. They would have no vote on matters within the States but would put forward their views on various matters and review proposed legislation. I believe this view has been put forward to make it more palatable to the States for the removal of Constables from the Assembly.
This should be resisted by the Commission. The last thing the island needs is another level of Government
It is to be hoped that the Commission will not be tailoring its proposals based on what it thinks would be acceptable to the States but puts forward an honest appraisal of the current situation based on the facts and not on emotion and tradition.
THE ROLE OF SENATORS. .
Senators were introduced to the States in the 1948 reforms and it would appear that this was to replace the Jurats, who were elected by a form of an island-wide vote. .They were to have a 9 year term which was eventually reduced to six years so that was a distinct advantage over other members. In the 2011 changes, when two Senators were removed from the States,their terms was reduced to 4 years for all members.
Much has been made of the “all-isand mandate” as if this bestows on a Senator some form of advantage in the House. But it does no such thing. A Senator elected with 17,000 votes, when he takes his seat in the House ,has absolutely no greater power than a Deputy elected with 350 votes or a Constable returned without even facing an election.
In the absence of party politics every elected States member has a mandate from those who vote for them. It makes no difference in the long run whether this mandate is a from an island base or a parish constituency. In the end, they are all equal. So whats the point of having Senators.
The Clothier panel concluded that
“The very title of Senator is inappropriate, suggesting as it does, some kind of revising or upper house, such as found in other jurisdictions . We received no convincing evidence that there was s significant difference between the nature and content of the Senator’s role and that of the Deputies. In an island about 9 miles long and about 5 miles wide and with excellent communications, we found the distinction between Senators and Deputies less than plausible and in practice there is little difference in the contributions to debate of either category of representative. Nor can the Senators do anything which the Deputy cannot also do “
This should be the view of the Commission and the role should be abolished.
AN ISLAND- WIDE VOTE
There have been a number of submissions proposing that all members of the States should be elected on an island-wide vote. Even if the proposed number of members is reduced to 40-42 it is likely that an island wide election would result in a ballot paper containing over 150 names. Such a system would b totally unworkable.
In addition to this, members elected on an island-wide basis would find it impossible to have a close relationship with their electorate compared to constituencies with much smaller numbers.
HOW MANY PEOPLE SHOULD BE IN THE STATES
This should be decided by the number of members that form the Council of Ministers and the assistant ministers. If the Council of Ministers consists of 10 members and there are 12 assistant ministers, this means that there are 22 members making up “the executive”. It would be totally undemocratic if there were more members in the executive than outside of it. Therefore 26 would seem a proper number to have outside of the executive making a house of 48.
Based on a voting population of 75,820 the 48 deputies would have an electorate of 1574.
What- ever figure is proposed, it is essential that the number of States members outside of the executive is greater than the number in the executive. That- and only that- should be the guiding criteria for the Commission to consider.
OTHER MATTERS TO BE CONSIDERED BY THECOMMISSION.
The Commission should accept the principle that only people who have been elected by the people should have a seat in the States, other than the Greffiers. The Bailiff should not be the president , as decreed by both the Clothier panel and the more recent Carswell Panel .
The Dean should not be there. He has no place in the seat of Government. That he is permitted to take part in debates and attempt to influence the members is a travesty. No one has elected him to that office